1 In The 

### Court of Appeals Ninth District of Texas at Beaumont

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- C R NO. 09

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CARLOS HERNANDEZ CAMACHO A/K/A EDGARDO ALVARADO

- CAMACHO , Appellant

V.

THE STATE OF TEXAS , Appellee

_______________________________________________________ ______________ On A ppeal from the 258 t h District Court San Ja cinto County, Texas Trial Cause No s . 11031, 11032

________________________________________________________ _____________ MEMORANDUM OPINION
In these appeals, Carlos Hernandez Camacho 1 complains th e trial court,
during his punishment hearing, erred by considering a presentence investigation

report that included “entries alleging an arrest [in 1996] for driving while
intoxicated, and an arrest [in 2000 ] for criminal trespass [

. ] ” According to

1 The record reflects that Camacho is also known as Edgardo Alvarado

Camacho.2 Camacho, the report did not show that he had been convicted of the 1996 and 2000

offenses. Based on the State ’s lack of proof that he had committed the se two

offenses beyond a reasonable doubt
, Camacho argues the trial court erred by
considering th e information regarding these arrests at his sentenc ing hearing

. At
the conclusion of the sentencing hearing, the trial court sentenced Camacho to a

twenty

- year sentence o n both the ag gravated assault case , trial cause number

11031
, and on the manslaughter case , trial c ause n umber 11032

. Because the trial

court did not abuse it s discretion by considering the arrests at issue, w e affirm the
trial court’s judgment s

.

Background

Camac h o pled guilty to an information charg ing him with aggravated assault
causing serious bodily injury and an information charging him with manslaughter

.
See Tex. Pena l Code Ann. §§ 19.04, 22.02 (West 2011). Camacho ’s plea in each

case subjected him to a poten tial sentence on each case of not more than twenty
years in prison. See id. § 12.33(a) (West 2011). After the trial court found
Camacho guilty, it scheduled a sentencing hearing and requested that the State

conduct a presentence investigation. See Tex. Code Crim. Proc. Ann. art s

. 37.07 §
3(d), 42.12 § 9(a) (West Supp. 2014 ).3 During the sentencing hearing, Camacho object ed to the trial court
considering the information in the report regarding his 1996 and 2000 arrests

. The

court overruled Camacho’s objections and considered the report
, which indicates

that no record s were located show ing how Camacho’s 1996 and 2000 arrests were

resolved. According to Camacho, these two arrest s should not have been
considered by the trial court during the se ntencing hearing because the evidence

was not sufficient to allow the trial court to conclude, beyond a reasonable doubt,

that Camacho had actually committed these offenses.
Trial courts are authorized to obtain a presentence investigation before
sentencing a defendant in a felony case. See id. art. 37.07 § 3(d). The trial court is
statutorily authorized to then consider the presentence report during the sentencing
hearing. Id. “By statute, the Legislature has directed what is to be included in a

PSI , and the statute does not limit the criminal history to final convictions.”
Stringer v. State , 309 S.W.3d 42, 48 (Tex. Crim. App. 2010). The trial court shall

allow the defendant to review and comment on the report , and, with leave of the
court, proffe r evidence as to any factual inaccuracies in the report

. See Tex. Code

Crim. Proc. Ann. art . 42.12 § 9(d), ( e ) (West Supp. 201 4 ) ; Stringer , 309 S.W.3d at
48 (“The PSI statute also provides the defendant the opportunity to present
contrary evidence.”)

.4 In Smith v. State , the Court of Criminal Appeals held that a trial court may

consider evidence of extraneous misconduct in assessing punishment when that

information is included in a presentence investigation
, even where the defendant

w as not shown beyond reasonable doubt to have actually committed the

misconduct. 227 S.W.3d 753, 763 (Tex. Crim. App. 2007). Based on the holding in

Smith , w e hold that the trial court did not abuse its discretion by considering the

information concerning Camacho’s arre sts

. See i d

. W e overrule the sole issue
raised by Camacho in his appeal s

. Nevertheless, the judgment in cause number 11031, Camacho’s aggravated

assault case, contains a clerical error. The judgment the trial court rendered in this

case refers to section 19.04 of the Penal Code, a statute that make s it a crime to
commit manslaughter. See Tex. Penal Code Ann. § 19.04

. But, i n ca u se number

11031, Camacho pled guilty and was convict ed of aggravated assault , a conviction

based on section 22.0 2 of the Penal Code. See id. § 22.0 2

. An appeals court may modify a judgment to correct clerical error s

. Bigley v.

State , 865 S.W.2d 26, 27

- 28 (Tex. Crim. App. 1993). W e correct the clerical error

in the judgment in cause number 11031 by replacing th e reference in the judgment

to section 19.04 of the Penal Code with a reference to section 22.02 of the Penal5 Code

. Therefore, t he trial court’s judgment in cause number 11031 is affirmed as

modified. T he trial court’s judgment in cause number 11032 is affirmed.

AFFIRMED AS MODIFIED; AFFIRMED

.

_________________________ HOLLIS HORTON Justice

Submitted on May 21, 2014 Opinion Delivered September 10, 2014 Do Not Publish
Before McKeithen, C.J., Kreger, and Horton, JJ.