### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-11-00035- CR

Misty Lara Her nand ez, A ppellan t

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F B ELL COUNTY , 264 TH JUDICI AL DISTRICT NO. 645 52, H ONO RAB LE F ANCY H. JEZEK, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

This is an appea l pursuant to Anders v. Calif ornia , 386 U.S. 738 (1967). Appellant Misty L ara Her

nandez pleade d nolo contender e to the off ense of injury to a child. See Tex. Penal Code Ann. § 22.04 (West Supp. 2011). The district court assessed punishment at ten y ear s’ defe rre dadjudication probation and a $1,000 fine. The State subsequently filed a motion t o adjudi cate , alleg ing that Her

nandez had violated multipl e terms and conditions of her probation. At the hear ing

on the motion to adjudicate , Her nandez pleade d true to the S t at e’ s al l eg ations. The district court then proc eede d to hear

evidenc e re lating to the a lleg ations, including the testimony of He rnande z, who admitted to violating the terms and conditions of her probation. At the conclusion of the hear ing, the district court found the alleg ations to be tru e, revoke d Her nandez’s probation, and
sentenc ed her

to 18 y ear s’ imprisonment. This appeal f ollowed. Her nandez’s cour

t-appointed attorney

has filed a

motion to wit hdrawsupported by

a brief concluding that the appea l is frivolous and without merit. The brief meets the require mentsof Anders v. Calif ornia by prese nting a profe ssional evaluation of the rec ord dem o n s trating why there are no arguable g rounds to be advanc ed. See 386 U.S. at 744-45; see also Penson v. Ohio , 488 U.S. 75 (1988); High v. S t a t e , 5 7 3 S.W .2d 807 (Tex. Crim. App. 1978); Currie v. State , 516 S.W .2d 684 (Tex. Crim. App. 1974); Jack son v. State , 485 S.W .2d 553 (Tex. Crim. App. 1972); Gainous v. St a t e , 4 3 6 S

. W .2d 137 (Tex. Crim. App. 1969). Her nandez was mailed a copy of counsel’s brief and advised of her rig ht to examine the appellate rec ord and to file a pro se brief. No pro se br ief ha s been f

iled. We h a v e revie wed the rec ord and counsel’s brief and ag ree that the appea l is frivolous and without merit. We find nothing in the rec ord that might arguably support the appea l. Counsel’s motion to wit hdrawis gr anted.

We observe, how ever , that the judg ment adjudicatingg uilt contains clerica l error s. First, the judgme nt indicates that the offe nse was committed on J une 1, 2008. Howeve r, the rec ord ref lects t hat t he offense was commi tted on Aug ust 17, 2 0 0 8

. Second, the judgme nt indicates that the offense o f i n

j u ry to a child was a “lesser -included offense .” Howeve r, t he record refle cts that it wa s not a lesser- included offe nse of any char g ed offe nse. Finally , the judgme nt indicates that 1 Her nandez “violated the terms and conditions of community supervision as set out in the State’s ORI GI NAL Motion to Adjudicate Guilt.” Howeve r, the rec ord ref lects that the case proce eded on the State’s “F irst Amended Motion to Adjudicate G uilt.”

I n a three -count indictment, Her nandez was char g ed with two counts of indece ncy with a 1 child by contac t, both occur ring on J une 1, 2008, and one count of injury to a ch i l d , o cc u rring on August 17, 2008. Pursuant to a plea ag ree ment, the State abandone d the indece ncy -with-a- child char g es. Thus, the only char g ed offe nse rema ining at the time Her nandez enter ed her plea was injury to a child. 2This Court has the authority to modify incorre ct judgme nts wh en t he nece ssary

information is available to do so. See Tex. R. App. P. 43.2(b); Bigley v. State , 865 S.W .2d 26, 27-28 (Tex. Crim. App. 1993); Smith v. State , 176 S.W .3d 907, 920 (Tex. App.—Dallas 2005, pet. ref ’d) (citing Asberry v. State , 813 S.W .2d 526, 529 (Tex. App.—Dallas 1991, pet. ref ’d)) ; see also Tolbert

v. State , No. 03-10-00245- CR, 2011 Tex. App. L EXI S 858, at *2-3 (Tex. App.—A u stin Fe b. 4, 2011, no pet.) (mem. op., not desig nated for publication) (modifying judgme nt to delete finding s that appellant had violated community supervis i o n o n g rounds that had been abandone d by State at

revoc ation hear ing)

. Acc ording ly , we modify the judgme nt to (1) ref lect that the “date of offe nse”

was Aug ust 17, 2008; ( 2) delete the lang uag e in the judgme nt indicating that the offe nse for which the defe ndant was con v i ct ed was “a lesser- included offe nse”; and (3) ref lect that Her

nandez “violated the terms and conditions of community supervision as set out in t h e S t ate’s FI RST AMENDED Motion to Adjudi cate Guilt.”

As modified, the judg ment adjudicatingg uilt is aff irmed.

__________________________________________ Bob Pembe rton, J ustice Be fore Chief J ustice Jones, J ustices Pemberton a nd Rose Modified and, a s Modified, Aff irmed Filed: Jul y

11, 2012 Do Not Publish

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