McBride, Kirk v. State

Opinion

Affirmed as Modifie(L Opinion Filed Januar 31, 2013.

lii The (!nurt nf pral !fiftIi Jistrirt nf iexai at Oa11ai No. 05-11-01727-CR

KIRK MCBRIDE, Appellant

TIlE STAl’E OF TEXAS, Appellee

On Appeal from the 203rd Judicial District Court Dallas County, Texas Trial Court Cause No. Fl 1-70032-P

MEMORANDUM OPINION Before Justices Lang-Miers, Myers, and Lewis Opinion By Justice Myers

Kirk McBride appeals his conviction for aggravated sexual assault of a child under fourteen

years of age. Appellant pleaded nob contendere to the charge. After finding appellant guilty, the

court assessed appellant’s punishment at seven years’ imprisonment and a S2000 fine. On appeal,

appellant brings one point of error contending the trial court erred by failing to allow appellant or

his attorney the opportunity to object to the presentence report. We modify the trial court’ sjudgment

to show appellant pleaded nob contendere and to correct the name of appellant’s trial attorney, and

we affirm the judgment as modified.

Appellant contends the trial court erred by not allowing appellant an opportunity to object to the presentence report. Appellant acknowledges he did not object to any lack of opportunity at

trial. Nor did appellant file a motion for new trial. Before a party can raise an issue on appeal. the

party must have objected in the trial court and obtained a ruling on the objcction. See Tix. R. An.

P. 33.1(a). In this case, appellant did not object to the lack of opportunity to object to the

presentence report, so any error is not preserved for appellate review, hi.

Moreover, the record shows appellant had opportunities to object to the presentence report

At the conclusion of the guilt phase of the trial, the court found the evidence sufficient to support

finding appellant guilty, but the court refrained from finding appellant guilty until it had the

opportunity to review a presentence report. At the punishment hearing, before the State’s first

witness testified, the trial court stated, “For the record, the Court has reviewed the Pre-Sentence

Report.” The State put on its case, consisting of the victim’s father’s testimony. When the State

rested, appellant presented his case, consisting of his own testimony. Both sides then rested and

closed. The parties presented argument to the court before the court found appellant guilty and

sentenced him. Appellant could have objected to the report at any time in this hearing, but he failed

to do so. We conclude the record does not show appellant lacked an opportunity to object to the

report We overrule appellant’s sole point of error.

The trial court’s judgment contains two clerical errors. First, it recites appellant pleaded

guilty, but the record shows appellant pleaded nob contendere. Second, appellant’s attorney at trial

was Tom Grett, but the judgment shows his attorney was “T.Guett.” This Court has the power to

correct and reform the trial court’s judgment to make the record speak the truth when it has the

necessary data and information to do so. Asbeny v. State, 813 S.W.2d 526,529 (rex. App.—Dallas

1991, pet. ref d) (en bane). On our own motion, we modify thejudgment to show appellant pleaded

“nob contendere” to the offense and that appellant’s attorney was “T. Grett.” See Thx. R. An. P.

—2— 43.2(b): Rig/cr . Sian’. X(5 S.W.2d 26. 27 2 1 cx. (nm. App. I 993): :i,cbcriv. 13 S.W.2d it

529 3O.

We affirm the trial court’s judgment as modified.

LANA M ERS JUSTICE Do Not Publish FEX. R. A1r. P. 47 II 1727F.U05

—3 nitrt tif ;ina1 .!FiftI! Jitrirt nf cxt it Jt11zu

JUDGMENT KIRK MCBRIDE. Appellant Appeal from the 203rd Judicial District Court of Dallas County, Texas. (Tr.Ct.No. No. 05-1 1-01727-CR V. Fl l-70032-P). Opinion delivered by Justice Myers, Justices TI-iE STATE OF TEXAS, Appellee Lang-Miers and Lewis participating.

Based on the Court’s opinion of this date, the judgment of the trial court is MODI Fl ED as follows; The section entitled “Attorney for 1)cfendant” is NIODIFIEI) to show “T. (irelt”; thc ScLtion cntitlcd “Plc to Offcnsc is MODIf II D to show ‘Nob Contenderc

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

Judgment entered January 3 1, 2013.

LANA MYERS LI JUSTICE