Daniel Urbina v. State

• Court: Court of Appeals of Texas
• Decided: March 30, 2015
• Docket: 05-14-00330-CR
• Status: Published

Opinion

AFFIRMED as Modified; Opinion Filed March 30, 2015.

In The Court of Appeals Fifth District of Texas at Dallas No. 05-14-00329-CR No. 05-14-00330-CR

DANIEL URBINA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 291st Judicial District Court Dallas County, Texas Trial Court Cause Nos. F07-23478-U, F08-00824-U

MEMORANDUM OPINION Before Justices Lang, Stoddart, and Schenck Opinion by Justice Lang

Daniel Urbina appeals his convictions, following adjudication of his guilt, for possession

of cocaine in an amount less than one gram and injury to a child. See TEX. HEALTH & SAFETY

CODE ANN. § 481.115(a), (b) (West 2010); TEX. PENAL CODE ANN. §22.04(a)(3) (West Supp.

2014). In two issues, appellant contends the judgments should be modified to correctly reflect

his pleas to the motions to adjudicate and the conditions of supervision he was found to have

violated. We modify the trial court’s judgments adjudicating guilt and affirm as modified.

The State’s motions to adjudicate guilt alleged appellant violated five conditions of

community supervision: (1) condition (A), by committing the offense of assault family violence; (2) condition (G), by traveling outside the county without permission; (3) condition (J), by

failing to pay community supervision fees; (4) condition (L), by failing to complete community

service hours as directed; and (5) condition (Q), by failing to participate in counseling and

continue counseling as required and by failing to submit to a penile plethysmograph assessment

by a therapist or supervision officer. At a hearing on the motions, the State moved to strike the

allegation regarding the violation of condition (A), and the trial court granted that motion.

Appellant pleaded true to the allegations that he violated conditions (G), (J), and (L) and pleaded

not true to the allegation that he violated condition (Q). The trial court found true all of the

remaining allegations , granted the State’s motions, and adjudicated appellant guilty in each case.

The trial court assessed punishment at one year’s confinement in state jail on the cocaine case

and ten years’ imprisonment on the injury to a child case.

Appellant asks that we modify the judgments adjudicating guilt to reflect he pleaded not

true to violating condition (Q), and to correctly reflect the conditions of community supervision

he was found to have violated. The State agrees the judgments should be modified in the manner

appellant requested.

The judgments adjudicating guilt incorrectly recite that appellant pleaded true to the

“motion to adjudicate.” Accordingly, we sustain appellant’s issues.

In each case, we modify the judgment adjudicating guilt to show the “plea to motion to

adjudicate” was “Not True to Condition (Q); True to Conditions (G), (J), (L)” and that the trial

court found appellant violated conditions (G), (J), (L), and (Q) as alleged in the State’s amended

motion to adjudicate. See TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex.

Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529–30 (Tex. App.—Dallas 1991, pet.

ref’d).

-2- We note the judgment adjudicating guilt in cause no. 05-14-00330-CR also incorrectly

recites the statute for the offense as “21.11 Penal Code,” the statute for indecency with a child.

Appellant was indicted for, pleaded guilty to, and was convicted of injury to a child under statute

22.04. See TEX. PENAL CODE ANN. §22.04(a)(3). Accordingly, we modify the judgment

adjudicating guilt to show the statute for the offense is “22.04 Penal Code.”

As modified, we affirm the trial court’s judgments adjudicating guilt.

/ Douglas S. Lang/ DOUGLAS S. LANG JUSTICE

Do Not Publish TEX. R. APP. P. 47 140329F.U05

-3- Court of Appeals Fifth District of Texas at Dallas

JUDGMENT

DANIEL URBINA, Appellant Appeal from the 291st Judicial District Court of Dallas County, Texas (Tr.Ct.No. No. 05-14-00329-CR V. F07-23478-U). Opinion delivered by Justice Lang, Justices THE STATE OF TEXAS, Appellee Stoddart and Schenck participating.

Based on the Court’s opinion of this date, the trial court’s judgment adjudicating guilt is MODIFIED as follows:

The section entitled “Plea to Motion to Adjudicate” is modified to show “Not True to Condition (Q); True to Conditions (G), (J), (L).”

The section entitled “(5) While on community supervision, Defendant violated” is modified to show “(5) While on community supervision, Defendant violated conditions (G), (J), (L), and (Q) of community supervision as set out in the State’s amended motion to adjudicate guilt.”

As modified, we AFFIRM the trial court’s judgment adjudicating guilt.

Judgment entered this 30th day of March, 2015.

-4- Court of Appeals Fifth District of Texas at Dallas

DANIEL URBINA, Appellant Appeal from the 291st Judicial District Court of Dallas County, Texas (Tr.Ct.No. No. 05-14-00330-CR V. F08-00824-U). Opinion delivered by Justice Lang, Justices THE STATE OF TEXAS, Appellee Stoddart and Schenck participating.

Based on the Court’s opinion of this date, the trial court’s judgment adjudicating guilt is MODIFIED as follows:

The section entitled “Statute for Offense” is modified to show “22.04 Penal Code.”

The section entitled “Plea to Motion to Adjudicate” is modified to show “Not True to Condition (Q); True to Conditions (G), (J), (L).”

The section entitled “(5) While on community supervision, Defendant violated” is modified to show “(5) While on community supervision, Defendant violated conditions (G), (J), (L), and (Q) of community supervision as set out in the State’s amended motion to adjudicate guilt.”

As modified, we AFFIRM the trial court’s judgment adjudicating guilt.

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