RUSKv.STATE

Court of Appeals of Texas, Fifth District, DallasFeb 22, 2007
Nos. 05-06-00613-CR, No. 05-06-00614-CR (Tex. App. Feb. 22, 2007)

Nos. 05-06-00613-CR, No. 05-06-00614-CR

February 22, 2007. DO NOT PUBLISH.

Appeal from the 195th Judicial District Court Dallas County, Texas, Trial Court Cause Nos. F05-18274-MN, F05-18530-MN.

Before JUSTICES O'NEILL, LANG-MIERS, and MAZZANT.


OPINION


AMOS L. MAZZANT, JUSTICE.

Gilbert Anthony Rusk pleaded guilty to a jury to two burglary of a habitation offenses. The trial court assessed punishment, enhanced by a previous felony conviction, at thirty-five years' imprisonment in each case. In two issues, appellant contends the trial court's judgments should be modified. We affirm as modified. In his first issue, appellant argues the trial court's judgments should be modified to show he pleaded true to an enhancement paragraph in each case. In his second issue, appellant argues the trial court's judgments erroneously state the sex offender registration requirements apply to him in these cases. The State concedes the trial court's written judgment in each case contains clerical errors that should be modified. In both cases, the trial court's judgment recites the plea to the enhancement paragraph and the finding on enhancement is "not applicable." However, the record shows appellant pleaded true to one enhancement paragraph and the trial court found the enhancement true in each case. Thus, the trial court's judgments are incorrect. We sustain appellant's first issue. The trial court's judgments also recite the sex offender registration requirements under Chapter 62 of the Texas Code of Criminal Procedure applies to appellant, and that "the age of the victim at the time of the offense was 17 or older." Appellant was convicted of burglary of a habitation with intent to commit theft. See Tex. Pen. Code Ann. § 30.02(a) (Vernon 2003). The sex offender registration requirements apply to a conviction for burglary of a habitation only where the underlying felony is one other than theft. See Tex. Code Crim. Proc. Ann. art. 62.001(5)(D) (Vernon 2006). Thus, the trial court's judgments are incorrect. We sustain appellant's second issue. We modify the trial court's judgment in each case to show the plea to enhancement is true, the finding on enhancement is true, and to delete the sex offender registration requirements. 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 in each case.