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
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
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,
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
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
4