Whitacker, Jeffrey Fitzgerald v. State ( 2013 )

MODIFY and AFFIRM; and Opinion Filed June 10, 2013.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-12-00361-CR
No. 05-12-00399-CR
JEFFREY FITZGERALD WHITAKER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 292nd Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F10-40870-V & F10-40871-V
MEMORANDUM OPINION
Before Justices O’Neill, Francis, and Fillmore
Opinion by Justice Fillmore
Jeffrey Fitzgerald Whitaker was charged with one offense of sexual assault and one
offense of aggravated sexual assault. The trial court found Whitaker guilty of sexual assault and
assessed punishment of four years’ imprisonment and a $3000 fine. The trial court deferred a
finding of guilt on the aggravated sexual assault offense, placed Whitaker on community
supervision for a period of ten years, and assessed a $3000 fine. In two issues, Whitaker asserts
(1) the trial court’s judgment and order of deferred adjudication should be modified to reflect he
pleaded “no contest” to the charges, and (2) the evidence is insufficient to support the trial
court’s order that Whitaker pay $590 in court costs in each case. We modify the trial court’s
judgment convicting Whitaker of sexual assault and order deferring an adjudication of guilt on
the aggravated sexual assault charge to reflect that Whitaker pleaded no contest to the charges.
As modified, we affirm the trial court’s judgment and order of deferred adjudication.
Court Costs
In his second issue, Whitaker requests we modify the trial court’s judgment and order of
deferred adjudication to delete the requirement that he pay court costs because the clerk’s record
in each case does not contain a bill of costs. Following submission of this case, we ordered the
Dallas County District Clerk to prepare and file a supplemental clerk’s record containing a
detailed itemization of the costs and fees assessed in each case along with an explanation of any
abbreviations used to define the costs and fees. See TEX. CODE CRIM. PROC. ANN. arts. 103.001,
.006 (West 2006). The Dallas County District Clerk has complied with our order by filing a
signed and certified supplemental clerk’s record in each case containing the itemization of the
costs assessed in the case. Because the record now contains a bill of costs supporting the
assessment of costs in each case, we resolve Whitaker’s second issue against him. See Franklin
v. State, No. 05-12-00530-CR, 2013 WL 2446283, at *1 (Tex. App.—Dallas, June 4, 2013, no
pet. h.).
Modification
In his first issue, Whitaker asserts both the judgment and the order of deferred
adjudication should be modified to reflect that he pleaded “no contest” to the charges. Both the
judgment and the order of deferred adjudication state that Whitaker pleaded “guilty” to the
charges. However, the reporter’s record indicates that Whitaker actually pleaded “no contest.”
The State agrees the judgment convicting Whitaker of sexual assault should be modified to
reflect the correct plea entered by Whitaker, but asserts the trial court’s order deferring an
adjudication of guilt on the aggravated sexual assault charge is not a judgment and, therefore,
this Court does not have authority to modify the order.
This Court has the power to modify whatever the trial court could have corrected by a
judgment nunc pro tunc if the evidence necessary to correct the judgment appears in the record.
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Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet. ref’d); see also TEX. R.
APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993). 1 “The purpose
of a nunc pro tunc judgment is to provide a method for trial courts to correct the record when
there is a discrepancy between the judgment as pronounced and the judgment reflected in the
record.” Blanton v. State, 369 S.W.3d 894, 897–98 (Tex. Crim. App. 2012). A trial court can
issue an order nunc pro tunc to correct an error in an order of deferred adjudication. See Homan
v. Hughes, 708 S.W.2d 449, 454–55 (Tex. Crim. App. 1986) (orig. proceeding) (trial court could
properly enter nunc pro tunc order to correct order deferring adjudication of guilt to reflect
proper offense for which defendant’s guilt was deferred); Floyd v. State, 914 S.W.2d 658, 663
(Tex. App.—Texarkana 1996, pet. ref’d). Here, having erroneously stated in the order of
deferred adjudication that Whitaker pleaded guilty, the trial court could have corrected its error
with an order nunc pro tunc. Hughes, 708 SW.2d at 454; Floyd, 914 S.W.2d at 663.
We have the power to modify both the judgment convicting Whitaker of sexual assault
and the order deferring an adjudication of guilt on the aggravated sexual assault charge to reflect
the plea actually entered by Whitaker. See TEX. R. APP. P. 43.2(b); Hughes, 708 S.W.2d at 454;
Asberry, 813 S.W.2d at 529. 2 Accordingly, we modify the trial court’s judgment in cause
number F10-40870-V and the trial court’s order of deferred adjudication in cause number F10-
40871-V to reflect Whitaker pleaded “no contest” to the charges.
1
See also Wertenberger v. State, No. 05-97-01061-CR, 1999 WL 164109, at *2 (Tex. App.—Dallas Mar. 26, 1999, pet. ref’d) (not
designated for publication).
2
See also Lacy v. State, No. 05-11-01306-CR, 2012 WL 5265729, at *5 (Tex. App.—Dallas, Oct. 25, 2012, pet. ref’d) (mem. op., not
designated for publication).
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As modified, we affirm the trial court’s judgment and order of deferred adjudication.
/Robert M. Fillmore/
ROBERT M. FILLMORE
JUSTICE
Do Not Publish
TEX. R. APP. P. 47
120361F.U05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
JEFFREY FITZGERALD WHITAKER, On Appeal from the 292nd Judicial District
Appellant Court, Dallas County, Texas
Trial Court Cause No. F10-40870-V.
No. 05-12-00361-CR V. Opinion delivered by Justice Fillmore,
Justices O’Neill and Francis participating.
THE STATE OF TEXAS, Appellee
Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:
The section of the judgment titled “Plea to the Offense” is modified to state “No
Contest.”
As MODIFIED, the judgment is AFFIRMED.
Judgment entered this 10th day of June, 2013.
/Robert M. Fillmore/
ROBERT M. FILLMORE
JUSTICE
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
JEFFREY FITZGERALD WHITAKER, On Appeal from the 292nd Judicial District
Appellant Court, Dallas County, Texas
Trial Court Cause No. F10-40871-V.
No. 05-12-00399-CR V. Opinion delivered by Justice Fillmore,
Justices O’Neill and Francis participating.
THE STATE OF TEXAS, Appellee
Based on the Court’s opinion of this date, the order of the trial court is MODIFIED as
follows:
The section of the order titled “Plea to the Offense” is modified to state “No
Contest.”
As MODIFIED, the Order of Deferred Adjudication is AFFIRMED.
Judgment entered this 10th day of June, 2013.
/Robert M. Fillmore/
ROBERT M. FILLMORE
JUSTICE
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