Richard H. Varela v. State ( 2015 )

Fourth Court of Appeals
San Antonio, Texas
DISSENTING OPINION
No. 04-14-00563-CR
Richard H. VARELA,
Appellant
v.
The /s
The STATE of Texas,
Appellee
From the County Court at Law No. 7, Bexar County, Texas
Trial Court No. 354648
Honorable Genie Wright, Judge Presiding
Opinion by: Karen Angelini, Justice
Dissenting Opinion by: Rebeca C. Martinez, Justice
Sitting: Karen Angelini, Justice
Marialyn Barnard, Justice
Rebeca C. Martinez, Justice
Delivered and Filed: April 22, 2015
The record in this case reflects that the trial court made no affirmative finding of family
violence, and the majority agrees that “no evidence was presented about the relationship between
the complainant and Varela, or whether they lived together.” See TEX. CODE CRIM. PROC. ANN.
art. 42.013 (West 2006). On appeal I believe Varela has sufficiently raised an argument that the
written judgment contains a clerical error by requesting remand for the trial court to “enter a
judgment that is congruent with the trial proceedings.” See TEX. R. APP. P. 38.9 (briefing rules are
to be liberally construed). The judgment, in my opinion, clearly reflects the trial court’s finding
of no family violence within the parenthetical “(No AFFV)” as referenced by the majority in
Dissenting Opinion 04-14-00563-CR
footnote 4 of its opinion. Further, the record shows the information charged Varela with assault
bodily injury and the jury charge asked the jury to determine whether Varela was guilty of assault
bodily injury, not “assault bodily injury-married.” In addition, as the majority notes, the trial court
“repeatedly reminded the State” that it had presented no evidence of a “family” relationship
between the victim and Varela, and stated on the record its intention to “put in parentheses no
affirmative finding of family violence.” While I agree with the majority that the trial court did not
err by refusing Varela’s request for “an affirmative finding of no family violence,” I believe the
trial court effectively made such a finding, which is supported by the record, and it is within our
purview to correct what is clearly a clerical error in the August 6, 2014 corrected judgment’s
statements that Varela was convicted of “assault bodily injury-married.” See Villarreal v. State,
No. 04-11-00771-CR, 2015 WL 1393422, at *1 n.2 (Tex. App.—San Antonio March 25, 2015, no
pet. h.) (mem. op., not designated for publication) (modifying the judgment to correct a clerical
error in the statement of the offense of conviction); Agyin v. State, Nos. 04-12-00749 through 751-
CR, 2013 WL 5864483, at *7 (Tex. App.—San Antonio Oct. 30, 2013, pet. ref’d) (mem. op., not
designated for publication) (modifying the judgment to correct a clerical error and state defendant
was convicted of first degree, not second degree, felonies). Therefore, I would modify the
judgment to correctly reflect the offense of which Varela was convicted, and would affirm the
judgment as modified. TEX. R. APP. P. 43.2(b).
Rebeca C. Martinez, Justice
DO NOT PUBLISH
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