Juan Leal, Jr. v. State

Opinion

ACCEPTED 03-15-00095-CR 7392299 THIRD COURT OF APPEALS AUSTIN, TEXAS 10/15/2015 1:38:26 PM JEFFREY D. KYLE CLERK

No. 03-15-00095-CR FILED IN 3rd COURT OF APPEALS In the AUSTIN, TEXAS Court of Appeals 10/15/2015 1:38:26 PM Third District JEFFREY D. KYLE Austin, Texas Clerk

Juan Leal, Appellant

v.

The State of Texas, Appellee

Appeal from the 299th District Court of Travis County Honorable Karen Sage, Judge Presiding Cause Number D-1-DC-13-300082

STATE’S BRIEF

Rosemary Lehmberg District Attorney Travis County

Angie Creasy Assistant District Attorney State Bar No. 24043613 P.O. Box 1748 Austin, Texas 78767 (512) 854-9400 Fax (512) 854-4810 Angie.Creasy@traviscountytx.gov AppellateTCDA@traviscountytx.gov

Oral argument is not requested Table of Contents

Index of Authorities............................................................................. ii Statement of Facts ................................................................................1 Summary of the State’s Argument....................................................... 2 Argument ............................................................................................. 2 Reply Point: The written judgment should not be modified. ........... 2 Prayer .................................................................................................. 3 Certificate of Compliance and Service ................................................. 4

i Index of Authorities

Cases Ablon v. State, 537 S.W.2d 267 (Tex. Crim. App. 1976) ...................... 3 Dunlap v. State, No. 03-95-00743-CR, 1997 Tex. App. LEXIS 1737, 1997 WL 152628 (Tex. App.—Austin 1997, pef. ref’d) ...................... 3

Statutes Tex. Code Crim. Proc. art. 42.03 ......................................................... 3

ii No. 03-15-00095-CR

In the Court of Appeals Third District Austin, Texas

Appeal from the 299th District Court of Travis County Honorable Karen Sage, Judge Presiding Cause Number D-1-DC-13-300082

To the Honorable Third Court of Appeals:

Now comes the State of Texas and files this brief in response to

Appellant’s brief.

Statement of Facts

Appellant was placed on deferred adjudication for assault. The

State filed a 3-page motion to adjudicate, alleging numerous

violations. CR 50-52. After a hearing, the judge stated on the record

1 that she found the allegations in the motion to be true. The judge then

proceeded to read through the allegations one-by-one. 2RR 150-52.

As she was reading through the lengthy list, the judge missed a

few allegations. Appellant asks this court to modify the written

judgment to delete the allegations that were not read aloud by the

judge. CR 70-72.

Summary of the State’s Argument

There is no real conflict between the oral pronouncement and the

written judgment. Even if there were, the trial court’s written order

revoking probation controls over the oral pronouncement. Therefore,

the written judgment should not be modified.

Argument

Reply Point: The written judgment should not be modified.

As an initial matter, the judgment is not actually in conflict with

the oral pronouncement because the judge did not find that any of the

allegations were Not True. To the contrary, she stated that the

allegations were True. She just missed a few when she read them

aloud.

2 Even if there was a discrepancy, the trial court’s written order

revoking probation controls over the oral pronouncement. See

Dunlap v. State, No. 03-95-00743-CR, 1997 Tex. App. LEXIS 1737,

*5-7, 1997 WL 152628 (Tex. App.—Austin 1997, pef. ref’d) (not

designated for publication), citing Ablon v. State, 537 S.W.2d 267,

268-69 (Tex. Crim. App. 1976). Therefore, the written judgment

should not be modified.

Appellant argues that the oral pronouncement should control, but

the cases he cites involve discrepancies as to the sentence assessed. In

that situation, the oral pronouncement controls because the sentence

must be pronounced in the defendant’s presence. See Tex. Code Crim.

Proc. art. 42.03, §1(a). But there is no discrepancy as to the sentence

assessed in this case. Rather, the discrepancy, if any, involves the

grounds for revocation. In that situation, the written judgment

controls.

Prayer

The State asks this Court to overrule Appellant’s point of error and

affirm the trial court’s judgment.

3 Respectfully submitted,

Angie Creasy Assistant District Attorney State Bar No. 24043613 P.O. Box 1748 Austin, Texas 78767 (512) 854-9400 Fax (512) 854-4810 Angie.Creasy@traviscountytx.gov AppellateTCDA@traviscountytx.gov

Certificate of Compliance and Service I certify that this brief contains 383 words. I further certify that,

on the 15th day of October, 2015, a true and correct copy of this brief

was served, by U.S. mail, electronic mail, facsimile, or electronically

through the electronic filing manager, to the defendant’s attorney,

Paul Evans, 811 Nueces Street, Austin, Texas 78701.

Angie Creasy