Miguel Zuniga Lopez v. State

Opinion

Affirmed as Modified and Opinion February 4, 2014

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-12-00887-CR

MIGUEL ZUNIGA-LOPEZ, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court No. 3 Dallas County, Texas Trial Court Cause No. F12-00559-J

OPINION Before Justices FitzGerald, Francis, and Myers Opinion by Justice FitzGerald

Appellant Miguel Zuniga-Lopez pleaded guilty to burglary of a habitation with intent to

commit a sex offense. After a hearing, the trial judge accepted his guilty plea and sentenced him

to fifteen years in prison. Appellant raises four issues on appeal. We modify the judgment to

correct certain errors and affirm the judgment as modified.

I. CORRECTION OF ERRORS IN THE JUDGMENT

In his first point of error on appeal, appellant attacks the portion of the judgment reciting

that the trial judge imposed a $1500 fine on him. He argues that the trial judge did not impose

any fine when she orally pronounced sentence, and that the oral pronouncement of sentence

prevails over the written judgment when there is a conflict. See Taylor v. State, 131 S.W.3d 497,

500 (Tex. Crim. App. 2004). The record supports appellant’s contention, and the State agrees that appellant is entitled to have the fine deleted from the judgment. We sustain appellant’s first

point of error.

In his second point of error, appellant argues that the judgment erroneously reflects that

there was a plea bargain when the record demonstrates that appellant made an open plea. The

State agrees. We sustain appellant’s second point of error. In his third point of error, appellant

argues that the judgment erroneously states that he was charged by indictment when he was

actually charged by information. The State agrees. We sustain appellant’s third point of error.

II. COURT COSTS

In his fourth point of error, appellant argues that assessment in the judgment of $219 in

court costs must be reversed because there is no evidence in the record to support that

assessment. After briefing was completed, we ordered the district clerk to file a supplemental

clerk’s record containing a detailed itemization of the costs assessed in this case. The district

clerk then filed a supplemental clerk’s record. Appellant filed objections to the supplemental

clerk’s record. We then ordered the district clerk to file an additional supplemental clerk’s

record that complied with the Texas Code of Criminal Procedure. On January 3, 2014, the

district clerk filed another supplemental clerk’s record. On January 29, appellant filed objections

to the January 3, 2014 supplemental clerk’s record that repeated his previous objections to the

first supplemental clerk’s record.

Appellant’s original objections are moot in light of the filing of the January 3, 2014

supplemental clerk’s record. We conclude appellant’s objections to the second supplemental

clerk’s record are without merit. Appellant objects that the second supplemental clerk’s record

does not support the award of court costs (1) because the record contains only “unsigned,

unsworn computer printouts” and (2) because there is no indication that the documents were ever

filed in the trial court or brought to the trial judge’s attention before judgment was rendered. We

–2– have considered and rejected the same objections in several recent cases. See Coronel v. State,

No. 05-12-00493-CR, 2013 WL 3874446, at *4–5 (Tex. App.—Dallas July 29, 2013, pet. ref’d);

see also Ransom v. State, No. 05-12-01710-CR, 2013 WL 6570726, at *1 (Tex. App.—Dallas

Dec. 12, 2013, no pet.) (not designated for publication); Simpson v. State, No. 05-12-00999-CR,

2013 WL 6096534, at *1 (Tex. App.—Dallas Nov. 19, 2013, no pet.) (mem. op., not designated

for publication). We overrule appellant’s objections.

We have reviewed the second supplemental clerk’s record, and we conclude that it

supports the assessment of court costs against appellant. Cf. Franklin v. State, 402 S.W.3d 894,

895 (Tex. App.—Dallas 2013, no pet.). We reject appellant’s fourth point of error.

III. CONCLUSION

We modify the judgment as follows: (1) we delete the $1500 fine and replace it with the

entry “N/A”; (2) in the space for “Terms of Plea Bargain,” we delete the words “15 YEARS

TDC FINE $1500” and replace them with the word “OPEN”; and (3) in the space for “Charging

Instrument,” we delete the word “INDICTMENT” and replace it with the word

“INFORMATION.” We affirm the judgment as modified.

/Kerry P. FitzGerald/ KERRY P. FITZGERALD Do Not Publish JUSTICE TEX. R. APP. P. 47 120887F.U05

–3– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

MIGUEL ZUNIGA-LOPEZ, Appellant On Appeal from the Criminal District Court No. 3, Dallas County, Texas No. 05-12-00887-CR V. Trial Court Cause No. F12-00559-J. Opinion delivered by Justice FitzGerald. THE STATE OF TEXAS, Appellee Justices Francis and Myers participating.

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

In the space for “Charging Instrument,” we DELETE the word “INDICTMENT” and replace it with the word “INFORMATION.”

In the space for “Terms of Plea Bargain,” we DELETE the words “15 YEARS TDC FINE $1500” and replace them with the word “OPEN.”

In the space for “Fine,” we delete the $1500 fine and replace it with “N/A.”

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

Judgment entered February 4, 2014

/Kerry P. FitzGerald/ KERRY P. FITZGERALD JUSTICE

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