Vielma, Antonio v. State

Opinion

AFFIRM as modified; Opinion issued December 21, 2012

In The (!tntrt nf \ppcat fiftI! Ditrirt uf rxa at No. 05-1 1-00900-CR

ANTONIO VIELMA, Appellant

V.

TilE STATE OF TEXAS, Appellee

On Appeal from the 283rd .Judicial District Court Dallas County, Texas Trial Court Cause No. F09-72461-T

MEMORANDUM OPINION Before Chief Justice Wright and Justices Bridges and Myers Opinion By Chief Justice Wright

Antonio 7 i\ elma appeals from the adjudication of his guilt for indecency with a child by

contact. In four points of error, appellant contends the judgment adjudicating guilt should be

modified to show: (1) the correct statute for the oflnse: (2) he pleaded not true to the motion to

adjudicate (3) there was no plea bargain agreement: and (4) the condition of community supervision

he was found to have violated. We modify the trial court’s judgment and affirm as modified. The

background of the case and the evidence admitted at trial are well known to the parties. and we

therefore limit recitation of the facts. We issue this memorandum opinion pursuant to Texas Rule

of Appellate Procedure 47.4 because the law to be applied in the case is well settled.

Appellant was indicted for continuous sexual abuse of a child. The trial court granted the Stat&s motion 10 reduce the olknse charged to indecency with a child by contact. Appellant pleaded

guilty to indecency with a child. Pursuant to a plea agreement, the trial court deferred adjudicating

guilt, placed appellant on ten years’ community supervision, and assessed a $3,000 fine. The State

later moved to adjudicate guilt alleging appellant violated condition (b) by fhiling to report to his

supervision officer; condition (j) by failing to pay probation fees: condition (1) by failing to perform

community service hours: condition (n) by failing to pay urinalysis fees; condition (t) by failing to

submit to a DNA test; and condition (x) by failing to obtain a sex offender evaluation. During a

hearing on the motion, appellant pleaded not true to the allegations, and the State abandoned

allegations (j) and (n). The trial court found that appellant violated condition (b) of community

supervision, adjudicated appellant guilty. and assessed punishment at twenty years’ imprisonment.

Although appellant was convicted of the offense of indecency with a child by contact, as

defined in section 21.11 of the Texas Penal Code, the judgment recites the statute for the offense

as section 21.02. continuous sexual abuse of a child. The judgment also reflects appellant pleaded

true to the motion to adjudicate. the plea terms were “open.” and the trial court found appellant

violated the conditions ofcommunity supervision as set out in the “attached motion to adjudicate.’

which lists the original six violations. Thus, the judgment is incorrect. We sustain each of

appellant’s issues.

We modify the trial court’s judgment as follows: (I) the statute for the offense is section

21.11 (aX I) ofthe Texas Penal Code; (2) the plea to the motion to adjudicate is not true; (3)the terms

ofthe plea bargain are open; and (4) while on community supervision, appellant violated condition

(b) of community supervision by failing to report to his supervision officer. See Thx. R. App. P.

43.2(b); Bigley v. State, 865 S.W.2d 26. 27—28 rex. Crim. App. 1993); Asberry v. State. 813

S.W.2d 526.529—30 (Ta. App.—Dallas 1991. pet. ref’d).

—2— As modified, we aflirm the trial courts judgment.

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I)o Not Publish 1ix. R. App. P.47 11 0900F. U05 tutrt nf ApPcab iftI! 1i,trirt uf cxa at 1attai JUDGMENT AN IONI() VIELMA. Appellant Appeal 0om the 283rd Judicial [)istrict Court ol Dal lax County. Texas. (Er.Ct.No. No. 05—11 —00900—CR V. F09—7246 1 —T). Opinion delivered by ChieF Justice Wright. TI IL STATE OF TEXAS, Appellee Justices Bridges and Myers participating.

Based on the Court’s opinion of this date, the trial court’s judgment adjudicating guilt is NiO1)IFIED as follows:

The section entitled “Statute for Ofhmse’ is modilied to show “21 .1 1 (a)( I) Penal Code.”

The section entitled “Plea to Motion to Adjudicate” is modi lied to show “Not True.”

The section entitled “Terms of Plea Bargain” is modified to show “None.”

The section entitled “(5) While on community supervision Defendant violated the termS” is modified to show “(5) While on community supervision. Defendant violated condition (b) of community supervision as set out in the State’s original motion to adjudicate guilt.”

As modified, we AFFiRM the trial courts judgment.

Judgment entered December 21. 2012.

C AROLYN WR,LGHT CI ljJF JUSTIC f