Opinion issued October 21 , 2021

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01 - 20 - 00052 - CR N O . 01 - 20 - 0 005 3 - CR

——————————— ROGER DALE SCHEXNAYDER , A ppella nt

V. THE STATE OF TEXAS , Appell e e On Appeal from the 212th District C o urt Galveston County, Texas Trial Court Ca se No s . 18 - CR - 0993 & 19 - CR - 0952

MEMORANDUM OPINION Roger Dale Sche xnayder appeals his convic tio ns for injury to a child and

e vading arrest

. On appeal, he argues that the judgment erroneously assessed court cost s a nd fees for his injury to a child conviction. He also contends that the judgment2

for evading arrest incorrectly lists the court ’ s findings on the motion to adjudicate his guilt. We hold that Schexnayder ’ s issues related to the injury to a child convicti on , trial court case number 18

- C R

- 0 993, are moot and affirm the judgment

. W e reform the judgment for the evading arrest conviction, t rial court case number 19

- CR

- 0952, t o correc tly reflect the trial court ’ s findings

. W e affirm the judgment

as m odified. Back g round In April 2019, S ch ex na yder pleaded guilty to two offenses in exchange for an agreed disposition of six years ’ deferred adjudication community supervision for both offenses. First, he pleaded guilty to injury to a child with intent to cause bod ily in j ury, a third

- degree felony , which wa s reduced from sexual assault of a child. See T EX . P ENAL C ODE § § 22.04 (injury to a child); 22.011 (sexual assault of a child). H e also pleaded guilty to evadi ng arrest and d e tention in a motor vehicle

. See T EX . P ENAL C O DE § 38.04(b )(2)(A) (evading arrest with a motor vehicle )

. In July 2019, the State filed a m ot i on to adjudicate guil t for both offenses. The motion alleged t hat Schexnayder c om mitted three new offenses while under community supervision . The m otion also a l leged t hat he failed to pay monthly community supervision fees in the evading arrest case

. At a hearin g on the motion, Sche x n ayder pleaded true to the allegation that he failed to pay the monthly

c om munity supervision fee and not t rue to the remaini ng all e gations. At sentencing,3

the court found all of the allegations true and assessed punishment at five years ’ impr isonme n t for each offense, with the sentences running concurrently

. The court found Sch e x nayder indigent and waived court costs and fees i n both cases.

I mposition of Court Costs and Fees In his first two issues, Sche xnayder contends that the judgment in th e inju r y to a child case , trial court case number 18

- CR

- 0993 , erroneously assessed cou rt costs and a Crime Stoppers fee. A f ter Schexnayde r file d his brief, t he State, agreeing with Sc he xnayder, requested that the trial court issue a judgment nunc pro tunc elimin a ting the assessment of costs and fees. T he trial court issued a nunc pro tunc j ud gment on July 2 1, 2020 that eliminates the compla ined

- o f fees. See Ex parte Madding , 70 S.W.3d 131, 135 & n.8 (Tex. Crim. App. 2002) (when oral pronouncement of sent en ce a n d the written judgment vary, the oral pronouncement controls and this can be corr ected v ia nunc pro tunc )

. Accor dingly, Schexnayder ’ s first two issues are moot.

Findings on M o tion to Adjudicate I n his third issue, Schexna yder argues that the judgme nt adjudicating guilt for evading arrest , trial court case number 19

- CR

- 0952 , err oneousl y lists the trial court ’ s findings on the motion to adjudi c ate guilt

. Specifically, he contends that the judgment erroneously states that t he trial court found allegatio n 1B not true , alleging interfering with public duti es . The trial co ur t orally pr o n o unce d that it found that the4

allegation was true . Schex nayder asserts that we should modify the judgment to reflect that the court found allegation 1B true. T h e State agree s that the judgment does not reflect the court ’ s oral pronouncement but argues th a t the judgment need not be modified because the error doe s not i mpac t Sche x n ayder ’ s s entence.

“ A defendant ’ s sentence must be pronounced orally in his presence.” Taylor

v. State , 131 S.W.3d 497, 500 (Tex. Crim. App. 2004)

. Where there is a variation be tw ee n th e oral pronouncement of sentence and the written ju dgment , the oral pronouncement controls. Thompson v. State , 108 S.W.3d 287, 290 (Tex. Crim. App. 2003)

. “The judgment , including the sentence assessed, is just the written declaration and embodime nt of tha t oral pronouncemen t.” Taylor , 131 S.W.3d at 500. After reviewing the record, we agree that the judgment contains a clerical

error r egarding the trial co urt ’ s finding s on allegation 1 B. The judgment reflects that the allegation was found not tr ue, wh ile the trial court orally pronounced that the finding was tr u e. An appellate court has the authority to reform a judgment to make the record speak the truth w hen the matter has been called to its attention by any

source. French v. State , 83 0 S.W. 2d 607, 609 (Tex. Crim. App. 1992); see also Dromgoole v. State , 470 S

. W.3d 204, 226 (Tex. App.

– Houston [1st Dist.] 2015, pet. ref ’ d)

. We modify the judg m ent in trial court case number 19

- CR

- 0952 to reflect that the trial court f

ound allega tion 1B true.5 Conc lu sion We affirm the judgment in trial court case number 18

- C R

- 0993

. We modify the judgment in trial court case number 19

- CR

- 0952 to reflect that the trial court found allega tion 1B true , and we affirm the judgment as modified.

Peter Kelly J usti ce Panel consists of Justices Kelly, Guerra, and Farri s. Do n ot publish. T EX . R. A PP . P. 47.2(b).