FRANKIE RENE OLVERA v. THE STATE OF TEXAS

MEMORANDUM OPINION

Opinion By Justice Lang

Frankie Rene Olvera waived a jury and pleaded nolo contendere to sexual assault of a child.   After finding appellant guilty, the trial court assessed punishment at thirteen years' imprisonment and a $2,000 fine.   In two points of error, appellant contends the written judgment should be modified to reflect the correct statute for the offense and the victim's age.   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 cases is well settled.

In two points of error, appellant asks this Court to modify the written judgment to show the correct statute for the offense and the victim's age at the time of the offense.   The State responds that the judgment should be modified as requested by appellant.

Section 22.011 of the Texas Penal Code defines the offense of sexual assault.   Subsection (a)(1) defines sexual assault as penetration of the anus or sexual organ of another person by any means without that person's consent, and subsection (a)(2) defines sexual assault of a child as penetration of the anus or sexual organ of a child by any means.   See Tex. Penal Code Ann. § 22.011(a)(1), (b)(1) (West 2011).   Appellant was convicted for the offense of sexual assault of a child.   The trial court's written judgment recites the statute for the offense as “22.011(a)(1) Penal Code.” Thus, the judgment is incorrect.   Additionally, in the sex offender registration section, the written judgment does not list the victim's age.   We sustain appellant's two points of error.   We modify the judgment to show the statute for the offense is section 22.011(a)(2), and the age of the victim at the time of the offense was fifteen years.   See Tex.R.App. P. 43.2(b);  Bigley v. State, 865 S.W.2d 26, 27–28 (Tex.Crim.App.1993);  Asberry v. State, 813 S.W.2d 526, 529–30 (Tex.App.—Dallas 1991, pet. ref'd).

As modified, we affirm the trial court's judgment.

S

Court of AppealsFifth District of Texas at DallasJUDGMENT

FRANKIE RENE OLVERA, Appellant

No. 05–11–00815–CR V.

THE STATE OF TEXAS, AppelleeAppeal from the 283rd Judicial District Court of Dallas County, Texas.  (Tr.Ct.No.F09–40381–T).

Opinion delivered by Justice Lang, Justices Bridges and FitzGerald participating.

Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED as follows:

The section entitled “Statute for Offense” is modified to show “22.011(a)(2) Penal Code.”

The section entitled “The age of the victim” is modified to show “The age of the victim at the time of the offense was 15 years.”

As modified, we AFFIRM the trial court's judgment.

Judgment entered March 28, 2012.

/Douglas S. Lang/

DOUGLAS S. LANG

JUSTICE

DOUGLAS S. LANG JUSTICE