PD-0842-15 & PD-0843-15 COURT OF CRIMINAL APPEALS Oral argument requested AUSTIN, TEXAS Transmitted 7/27/2015 8:44:42 AM Accepted 7/28/2015 2:33:45 PM ABEL ACOSTA PD-0842-15 & PD-0843-15 CLERK
IN THE TEXAS COURT OF CRIMINAL APPEALS _________________________________________________
GEORGE CONTRERAS APPELLANT
vs.
THE STATE OF TEXAS APPELLEE _________________________________________________
FROM THE FIFTH COURT OF APPEALS Cause Nos. 05-13-00752-CR & -53-CR
APPEAL FROM THE 282ND DISTRICT COURT OF DALLAS COUNTY, TEXAS, CAUSE NOS. F-1231118-S & -19-S _________________________________________________
APPELLANT’S PETITION FOR DISCRETIONARY REVIEW _________________________________________________
BRUCE ANTON SORRELS, UDASHEN & ANTON State Bar No. 01274700 2311 Cedar Springs, Suite 250 ba@sualaw.com Dallas, Texas 75201 214-468-8100 (office) BRETT ORDIWAY 214-468-8104 (fax) State Bar No. 24079086 bordiway@sualaw.com Counsel for Appellant
July 28, 2015 Ground for Review
In determining whether the timing of the State’s notice of an enhancement allegation impaired the ability to present a defense, should a court of appeals (1) consider whether defense counsel asked for more time, as this Court instructed in Villescas; or (2) just make its own evaluation as to how much time was needed?
2 Table of Contents
Ground for Review ................................................................................................ 2!
Index of Authorities ............................................................................................. 4!
Identity of Parties and Counsel ......................................................................... 5!
Statement Regarding Oral Argument ............................................................. 6!
Statement of the Case and Procedural History ............................................. 7!
Argument ................................................................................................................ 9!
In determining whether the timing of the State’s notice of an enhancement allegation impaired the ability to present a defense, a court of appeals should consider whether defense counsel asked for more time, as this Court instructed in Villescas—not just make its own evaluation as to how much time was needed. ................................... 9!
Prayer .................................................................................................................... 17!
Certificate of Service .......................................................................................... 19!
Certificate of Compliance .................................................................................. 19!
Appendix ............................................................................................................... 20!
3 Index of Authorities
Cases Arredondo v. State, No. 05-08-00477-CR, 2009 WL 901980, *1 (Tex. App.—Dallas 2009, no pet.) .................................................................. 14 Callison v. State, 218 S.W.3d 822, 825–26 (Tex. App.—Beaumont 2007, no pet.) ................................................................................................... 14 Contreras v. State, No. 05-13-00752-CR, 2015 WL 3554086 (Tex. App.— Dallas 2015) ................................................................................. 8, 11, 12 Davis v. Ayala, 135 S. Ct. 2187, 2201 (2015) ........................................... 16 Hernandez v. New York, 500 U.S. 352, 365 (1991) .................................. 16 Kennedy v. State, No. 12-08-00246-CR, 2009 WL 4829989, *2 (Tex. App.—Tyler 2009) ................................................................................. 15 Ketchum v. State, 199 S.W.3d 581, 593 (Tex. App.—Corpus Christi 2006, pet. ref’d) ...................................................................................... 13 Majors v. State, No. 07-07-0259-CR, 2008 WL 5401593, *7 (Tex. App.— Amarillo 2008, pet. ref’d) ...................................................................... 13 Morgan v. State, No. 12-06-00226-CR, 2009 WL 2767300, *5 (Tex. App.—Tyler 2009, pet. ref’d, untimely filed)........................................ 14 Pelache v. State, 324 S.W.3d 568 (Tex. Crim. App. 2010) ....................... 12 Ruth v. State, No. 13-11-00385-CR, 2012 WL 3755607, *5 (Tex. App.— Corpus Christi 2012, pet. ref’d) ............................................................ 13 State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004) .................... 15 Villescas v. State, 189 S.W.3d 290 (Tex. Crim. App. 2006) ............... 11, 12 Wainwright v. Witt, 469 U.S. 412, 428 (1985) ......................................... 16 Statutes TEX. HEALTH & SAFETY CODE § 481.112 ............................................... 7, 12 TEX. HEALTH & SAFETY CODE § 481.121 ..................................................... 7 Rules TEX. R. APP. P. 21.8 ..................................................................................... 8
4 Identity of Parties and Counsel
For Appellant George Contreras:
EDWARD P. SHOEMAKER Trial counsel of record LAW OFFICE OF EDWARD P. SHOEMAKER 705 Ross Avenue Dallas, Texas 75202
BRUCE ANTON BRETT ORDIWAY Appellate counsel of record SORRELS, UDASHEN & ANTON 2311 Cedar Springs, Suite 250 Dallas, Texas 75201
For Appellee the State of Texas:
ANDREW NOVAK Trial counsel of record DALLAS COUNTY DISTRICT ATTORNEY’S OFFICE 133 North Riverfront Boulevard Dallas, Texas 75207
GRACE E. SHIN Appellate counsel of record DALLAS COUNTY DISTRICT ATTORNEY’S OFFICE
Trial Court:
THE 282ND DISTRICT COURT OF DALLAS COUNTY THE HONORABLE ANDY CHATHAM PRESIDING
5 Statement Regarding Oral Argument
The Dallas Court of Appeals in this case ignored this Court’s
precedent and created a new test for evaluating whether the State’s
notice of an enhancement allegation gave the defense sufficient time to
prepare a defense. Contreras believes oral argument would be useful to
this Court’s understanding as to how.
6 Statement of the Case and Procedural History
Following a month-long investigation in which the police made
controlled purchases of methamphetamine at a Grand Prairie residence,
officers obtained a search warrant for the property. (RR4: 63-71).
Immediately before it was to be executed, however, Contreras left the
home in a vehicle driven by another individual. (RR5: 137). The officers
stopped them, and found a methamphetamine pipe and cash on
Contreras’s person. (RR5: 146). At the home, officers discovered
methamphetamine, marijuana, weapons, and drug ledgers attributable
to Contreras. (RR4: 80, 81, 138-141, 145,170; RR5: 97).
Contreras was indicted for possessing, while intending to deliver,
methamphetamine in an amount over four grams but less than 200
grams, and possessing marijuana in an amount over four ounces but
less than five pounds. See TEX. HEALTH & SAFETY CODE § 481.112(d);
TEX. HEALTH & SAFETY CODE § 481.121(b)(3); (CR1: 8; CR2: 8). 1 The
indictments further alleged Contreras possessed the substances within
1,000 feet of property leased to a school or school board, and that
1“CR1” refers to the methamphetamine charge, F-1231118. “CR2” refers to the marijuana charge, F-1231119. 7 Contreras used or exhibited a firearm during the commission of the
offenses. (CR1: 8; CR2: 8). Ten days before trial, however, the State
revised its allegation to instead contend Contreras was within 1,000
feet of a playground. (CR1: 56; CR2: 54). After Contreras unsuccessfully
objected that he did not have sufficient notice of the amended
allegation, he pleaded not guilty and not true and a jury trial was held
from May 14, 2013, through May 22, 2013. (RR1: 3-6; RR2: 30-36; RR4:
52-53). The jury ultimately found Contreras guilty, and that the
offenses were committed in a drug-free zone, and assessed punishment
at fourteen years’ imprisonment for the methamphetamine charge and
four years’ imprisonment for the marijuana charge. (RR9: 129-131).
Contreras filed a notice of appeal and a motion for new trial on
May 23, 2013, the latter of which was overruled by operation of law.
(CR1: 100-101; CR2: 96-97); see TEX. R. APP. P. 21.8. The Dallas Court of
Appeals overruled Contreras’s appeal and affirmed his conviction in an
opinion released on June 8, 2015. Contreras v. State, No. 05-13-00752-
CR, 2015 WL 3554086 (Tex. App.—Dallas 2015). No motion for
rehearing was filed.
8 Argument
In determining whether the timing of the State’s notice of an enhancement allegation impaired the ability to present a defense, a court of appeals should consider whether defense counsel asked for more time, as this Court instructed in Villescas—not just make its own evaluation as to how much time was needed.
I
A mere ten days before trial, the State revised the enhancement
allegation in the indictment to contend Contreras was within 1,000 feet
of a playground, not a school. (CR1: 56; CR2: 54). The State only
attempted to alert Contreras’s trial counsel six days prior to trial,
though, and the e-mail by which the State attempted to notify
Contreras’s counsel of the change did not contain the intended
attachment. (RR2: 31). The State did not provide actual notice until jury
selection was set to begin. (RR2: 30).
The trial court agreed to quash the original jury panel and give
Contreras’s counsel the afternoon to “scout that out.” (RR2: 32). But
counsel objected that, even accounting for that accommodation, he had
not received sufficient notice. (RR2: 35-36). He explained that he had
9 spent significant time preparing to dispute the allegation as to the
original location, and that he was not prepared to do the same for the
playground. (RR2: 35-36). The court nonetheless told him it was
“inclined” to overrule his objection, and Contreras’s trial proceeded the
following day. (RR1: 3-6; RR2: 30-36; RR4: 52-53).
Before the State rested, Contreras’s counsel again urged that he
had received insufficient notice of the enhancement allegation, asking it
to be excluded, but the court again overruled the objection. (RR6: 43-
44). The jury then found Contreras guilty of both counts and, after later
finding the special issues to be true, assessed punishment at fourteen
years’ imprisonment for the methamphetamine charge and four years’
imprisonment for the marijuana charge. (RR9: 129-131); (CR1: 91; CR2:
83).
On appeal to the Fifth Court of Appeals, Contreras argued that
the trial court erred in finding that the State provided sufficient notice
that it intended to enhance Contreras’s punishment. (Ap. Br. at 9-14).
Contreras’s trial counsel repeatedly objected that, because of the late
notice, he was unprepared to defend the allegation. (Ap. Br. at 12). And
10 this Court, in Villescas v. State, 189 S.W.3d 290 (Tex. Crim. App. 2006),
held that notice satisfies due process requirements when a defendant
has no defense to a sentence enhancement allegation and has not
suggested the need for a continuance in order to prepare one.
The court of appeals nonetheless rejected Contreras’s appeal and
affirmed his conviction. Contreras v. State, No. 05-13-00752-CR, 2015
WL 3554086, *2 (Tex. App.—Dallas 2015). And for just one reason. The
court determined that, in light of the timing of the notification, “[e]ven
if Contreras had a defense to the drug-free zone allegation, he had
sufficient time to develop that defense.” Id.
II
The court of appeals resolved the issue, then, by making its own
determination as to whether counsel needed more time than he was
given.2 Unsurprisingly, the court cited to absolutely nothing in support.
2 In full, the court’s analysis was:
Contreras’s counsel was notified six days prior to the beginning of trial that the State intended to seek a punishment enhancement based on distance of the offenses to a playground. Additionally, the trial court quashed the original jury panel and recessed for the purpose of allowing Contreras’s counsel to visit the location of the playground, which he did. Voir dire did not begin again until May 15, 2013. Finally, 11 Not a single case or statute. See id. For, this Court, and the courts of
appeals, have consistently held that reviewing courts are to consider
whether counsel says he needs more time, not make the determination
independently.
This Court’s seminal modern opinion on the issues is Villescas.
189 S.W.3d 290. In that case, this Court determined that notice was a
due process issue and, therefore, of a constitutional nature. Id. at 294.
This Court then decided that notice given prior to the beginning of the
punishment phase satisfies the federal constitutional due process
requirement “when a defendant has no defense to the enhancement
allegation and has not requested a continuance.” Id. (emphasis added).
This Court then re-affirmed as much four years later, in Pelache v.
State, 324 S.W.3d 568 (Tex. Crim. App. 2010). There, this Court utilized
the Villescas test in evaluating whether notice was sufficient,
Contreras’s counsel did not rest his case until May 20, 2013, nearly two weeks after he originally was notified of the Notices and one week after he received paper copies of the Notices. Contreras’s counsel had sufficient time to investigate whether the playground was within 1,000 feet of the site of the offense and to develop a defense to the drug-free zone allegations.
Contreras, 2015 WL 3554086 at *2.
12 remarking: “In fact, we have held that ‘when a defendant has no
defense to the enhancement allegation and has not suggested the need
for a continuance in order to prepare one, notice given at the beginning
of the punishment phase satisfies the federal constitution.’” Id. at 577.
The courts of appeals have not hesitated to follow suit. In Ruth v.
State, No. 13-11-00385-CR, 2012 WL 3755607, *5 (Tex. App.—Corpus
Christi 2012, pet. ref’d), the court held that the amended enhancement
notice “was inadequate and unreasonable in light of counsel’s repeated
requests for a continuance in order to prepare a defense to the amended
enhancement paragraphs.” And in scores of other cases, the courts have
affirmed convictions precisely because counsel did not protest. See, e.g.,
Ketchum v. State, 199 S.W.3d 581, 593 (Tex. App.—Corpus Christi
2006, pet. ref’d) (“Even assuming he preserved error, Ketchum did not
state that a continuance was necessary to discover or prepare a defense
and, accordingly, he received the notice minimally required to satisfy
due process.”); Majors v. State, No. 07-07-0259-CR, 2008 WL 5401593,
*7 (Tex. App.—Amarillo 2008, pet. ref’d) (“…it appears to this court that
appellant’s position is exactly the same as that described in Villescas.
13 Appellant did not request a continuance and had no defense to the
second enhancement paragraph. Therefore, the notice given appellant
before the beginning of the punishment hearing was sufficient.”);
Callison v. State, 218 S.W.3d 822, 825–26 (Tex. App.—Beaumont 2007,
no pet.) (defendant was not denied right to adequate notice when he
failed to request additional time to prepare his defense after receiving
notice of the State’s intent to enhance his punishment); Arredondo v.
State, No. 05-08-00477-CR, 2009 WL 901980, *1 (Tex. App.—Dallas
2009, no pet.) (“In these cases, appellant asserted no defense to the
enhancement allegation and pleaded true to the prior conviction alleged
in the enhancement paragraph. He did not move for a continuance or
suggest a continuance was necessary to discover or prepare a defense.
Under these facts and circumstances, we conclude constitutionally
adequate notice was given by the State when, three days before trial, it
filed notice of its intent to enhance appellant’s punishment in each case
with a prior felony conviction.”); Morgan v. State, No. 12-06-00226-CR,
2009 WL 2767300, *5 (Tex. App.—Tyler 2009, pet. ref’d, untimely filed)
(“Here, Appellant did not request a continuance and pleaded true to the
14 enhancement allegations contained in the Brooks notice. Therefore, the
timing of the notice was acceptable.”); Kennedy v. State, No. 12-08-
00246-CR, 2009 WL 4829989, *2 (Tex. App.—Tyler 2009) (“Appellant
did not request a continuance or additional time to prepare and has not
shown that he was prejudiced by the amount of notice he did receive.
Accordingly, and while not endorsing the method of providing notice the
State used in this case, we hold that Appellant received sufficient notice
prior to trial of the enhancements the State would seek.”).
Tying the inquiry to counsel’s attestation makes sense. For, under
the alternative standard employed by the Dallas Court of Appeals in
this case, where courts of appeals make their own determinations
notwithstanding counsel’s input, the courts are implicitly evaluating
the credibility of defense counsel. And appellate courts are poorly
positioned to do so. See, e.g., State v. Moff, 154 S.W.3d 599, 601 (Tex.
Crim. App. 2004) (“When the resolution of a question of law does not
turn on an evaluation of the credibility and demeanor of a witness, then
the trial court is not in a better position to make the determination, so
appellate courts should conduct a de novo review of the issue.”).
15 Credibility judgments lie “‘peculiarly within a trial judge’s province.’”
Hernandez v. New York, 500 U.S. 352, 365 (1991) (plurality opinion)
(quoting Wainwright v. Witt, 469 U.S. 412, 428 (1985)). Just as
“Appellate judges cannot on the basis of a cold record easily second-
guess a trial judge’s decision about [an attorney’s] motivation” in
striking a juror, neither can an appellate court confidently determine
whether an attorney is lying about needing a continuance to to recently
added enhancement allegations. Davis v. Ayala, 135 S. Ct. 2187, 2201
(2015).
The Dallas Court of Appeals in this case, then—in ignoring
counsel’s protestations otherwise and affirming Contreras’s conviction
because, in the court’s opinion, counsel had time to develop a defense—
based its decision on an entirely inappropriate analysis. As this Court
has held, repeatedly, and the other courts of appeals have had no
difficulty following, notice of enhancement allegations satisfies the
federal constitution when a defendant has no defense to the
enhancement allegation and has not suggested the need for a
continuance in order to prepare one.
16 On this basis, alone, then, this Court should grant this petition so
that it may reverse the court of appeals’s decision and remand this case
to that court with instructions to conduct the proper analysis. But
because the record so plainly shows that counsel did request additional
time to prepare a defense, in the interests of judicial economy this Court
should simply grant this petition so that it may reverse the judgment of
the court of appeals and remand this case to that court to consider
whether Contreras was harmed by the trial court’s error.
Prayer
Accordingly, Contreras respectfully requests this Court to grant
this petition so that it may reverse the court of appeals’s judgment and
remand this case to that court to conduct a harm analysis.
Respectfully submitted,
/s/ Bruce Anton BRUCE ANTON Bar Card No. 01274700 ba@sualaw.com
17 /s/ Brett Ordiway BRETT ORDIWAY Bar Card No. 24079086 bordiway@sualaw.com
SORRELS, UDASHEN & ANTON 2311 Cedar Springs Road Suite 250 Dallas, Texas 75201 (214)-468-8100 (office) (214)-468-8104 (fax)
Attorneys for Appellant
18 Certificate of Service
I, the undersigned, hereby certify that a true and correct copy of the foregoing Appellant’s Petition for Discretionary Review was electronically served to the Dallas County District Attorney’s Office and State Prosecuting Attorney on July 27, 2015.
/s/ Bruce Anton Bruce Anton
Certificate of Compliance
Pursuant to TEX. R. APP. P. 9.4(i)(3), undersigned counsel certifies that this brief complies with:
1.! the type-volume limitation of TEX. R. APP. P. 9.4(i)(2)(D) because this brief contains 1,861 words, excluding the parts of the brief exempted by TEX. R. APP. P. 9.4(i)(1).
2.! the typeface requirements of TEX. R. APP. P. 9.4(e) and the type style requirements of TEX. R. APP. P. 9.4(e) because this brief has been prepared in a proportionally spaced typeface using Microsoft Word 2011 in 14-point Century Schoolbook.
19 Appendix
20 Affirmed as Modified; Opinion Filed June 8, 2015.
In The Court of Appeals Fifth District of Texas at Dallas No. 05-13-00752-CR No. 05-13-00753-CR
GEORGE CONTRERAS, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 282nd Judicial District Court Dallas County, Texas Trial Court Cause Nos. F-1231118-S & F-1231119-S
MEMORANDUM OPINION Before Justices Fillmore, Stoddart, and Whitehill1 Opinion by Justice Stoddart A jury convicted George Contreras of possession with an intent to deliver
methamphetamine and possession of marijuana and found the offenses were committed in a
drug-free zone. The jury assessed punishment of fourteen years’ confinement and a $10,000 fine
for the methamphetamine offense, cause number 05-13-00752-CR, and four years’ confinement
and a $10,000 fine for the marijuana offense, cause number 05-13-00753-CR. In a single issue,
Contreras argues the State failed to timely notify him of amended punishment enhancement
allegations. In a single cross-issue, the State argues the judgment should be reformed to reflect
the fine orally pronounced by the trial court in cause number 05-13-00753-CR. We affirm the
1 Justice Bill Whitehill succeeded Justice Kerry FitzGerald, retired. Justice Whitehill has read the briefs and reviewed the record and now serves as a member of the panel. trial court’s judgment in cause number 05-13-00752-CR. We modify the trial court’s judgment
in cause number 05-13-00753-CR, and affirm as modified.
Contreras was indicted for possession of methamphetamine with an intent to deliver and
possession of marijuana. Both indictments alleged the offenses were committed “in, on, or
within 1,000 feet of any real property that is owned, rented or leased to a school or school
board.” Before trial, the State filed a Notice of Intent to Seek Finding of Offense Committed in
Drug-Free Zone in each cause number (Notice). Each Notice reflected the State’s intention to
offer evidence “that the offense charged in the indictment was committed in, on, or within 1,000
feet of a playground.” On appeal, Contreras argues the State failed to timely provide the Notices
to him.
On Tuesday, May 7, 2013, six days prior to trial, the State filed the Notices in OnBase,
the electronic case management system for Dallas County’s criminal courts. Each Notice
included a signed certificate of service stating: “[A] copy of this motion was emailed to attorney
for [Contreras], on May 7, 2013.” The State emailed the Notices to Contreras’s counsel; the
subject line of the email was: “motions service including amended dfz motion and dfz motion on
the PCS Meth case.” Contreras’s counsel was able to read the subject line of the email, but
stated he was unable to open the attachment with the electronic copies of the Notices.
On Monday, May 13, 2013, jury selection began and the State provided Contreras’s
counsel with paper copies of the Notices. Counsel complained about receiving the Notices on
the first day of trial. Responding to his concerns, the trial court stated it would quash the jury
panel and instructed the parties to return the following morning for jury selection. The trial court
stated he would delay the trial to “give [counsel] an opportunity to this afternoon . . . to scout”
out the location of the playground alleged in the Notices.
–2– The following day, May 14, 2013, the trial court began jury selection again with a new
venire. On May 15, 2013, Contreras’s counsel again complained the Notices were not provided
to him in a timely fashion. In response, the State provided a printout from OnBase showing the
Notices were filed on May 7, as well as the email sent to Contreras’s counsel. While
acknowledging the State’s assertion that the Notices were filed in OnBase on May 7, 2013, and
that he received an email from the State about the Notices, Contreras’s counsel again argued he
was unable to open the attachment to the email and, therefore, did not receive timely notice.
Contreras’s counsel requested a ten-day continuance “so that I can prepare an expert to go out
and measure that [the distance between the playground the site of the offense] myself. . . I think
the exact distance is something that can be in dispute.” The trial court stated: “I did dismiss the
jury panel mid-afternoon Monday [when] this first flared up and - - I think I said so probably
give [sic] you an opportunity to make more investigation on the school zone site overnight. You
represented, I believe, you had already been out there to the location.” Counsel agreed he visited
the location. The trial court continued: “And so I recessed, gave you that opportunity to do that.
So that was the purpose behind that, obviously.” The trial court did not grant a continuance.
Contreras’s two cases were tried together. The guilt-innocence stage of trial began on
May 15, 2013, and concluded on May 20, 2013, recessing two days for the weekend. At trial,
the State presented evidence concerning the proximity between the house where Contreras
conducted drug sales and the playground. After the State rested its case-in-chief, Contreras’s
counsel re-urged his objection to the timeliness of the Notices for the third time. He also
requested the trial court exclude the special issue asking the jury to determine whether Contreras
committed the offenses within 1,000 feet of a playground from the jury charge. The trial court
overruled the objection. The jury found Contreras committed the offenses within 1,000 feet of a
playground.
–3– In a single issue, Contreras argues the State failed to timely notify him of its amended
enhancement allegations, which impaired his defense. While the indictment alleged the offenses
were committed within 1,000 feet of property owned, rented, or leased to a school or school
board, the Notices alleged the offenses were committed within 1,000 feet of a playground. A
school and a playground are drug-free zones. See TEX. HEALTH & SAFETY CODE ANN. § 481.134
(West Supp. 2014). When certain offenses are committed in drug-free zones, punishment may
be enhanced. See id. The Texas Health and Safety Code does not specify when a notice of
intent to seek a drug-free zone finding must be given or the required manner of notice. See id.
The record shows the State filed its Notices in OnBase and emailed the Notices to
Contreras’s counsel on May 7, 2013. Although Contreras’s counsel was unable to open the
attachment, Contreras’s counsel conceded he could read the subject line of the email: “motions
service including amended dfz motion and dfz motion on the PCS Meth case.” There is no
indication in the record that Contreras’s counsel contacted the State and requested the email
attachments be re-sent or that he was unable to access the Notices via OnBase.
Additionally, voir dire with the first jury panel began on May 13, 2015, six days after the
State filed the Notices in OnBase and emailed them to Contreras’s counsel. Even in light of the
passage of six days between the State notifying counsel and the beginning of the trial, the trial
court quashed the original jury panel and recessed the case so that Contreras’s counsel could
investigate the merits of the amended allegations in the Notices. The trial court did not resume
jury selection until May 15, 2015, eight days after the State filed the Notices in OnBase and
emailed them to Contreras’s counsel.
Based on this record, we conclude that Contreras failed to establish that his ability to
present a defense was impaired by the timing of the State’s Notices. Even if Contreras had a
defense to the drug-free zone allegation, he had sufficient time to develop that defense.
–4– Contreras’s counsel was notified six days prior to the beginning of trial that the State intended to
seek a punishment enhancement based on distance of the offenses to a playground. Additionally,
the trial court quashed the original jury panel and recessed for the purpose of allowing
Contreras’s counsel to visit the location of the playground, which he did. Voir dire did not begin
again until May 15, 2013. Finally, Contreras’s counsel did not rest his case until May 20, 2013,
nearly two weeks after he originally was notified of the Notices and one week after he received
paper copies of the Notices. Contreras’s counsel had sufficient time to investigate whether the
playground was within 1,000 feet of the site of the offense and to develop a defense to the drug-
free zone allegations. We overrule Contreras’s sole issue.
In a single cross-issue, the State asserts the jury assessed a $10,000 fine in the marijuana
case and the trial court orally pronounced this fine. However, the written judgment does not
reflect the fine. The State requests that we modify the judgment to reflect a $10,000 fine.
This Court has the authority to correct the trial court’s judgment to make the record speak
the truth when it has the necessary data and information 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); Asberry v. State, 813 S.W.2d
526, 529–30 (Tex. App.—Dallas 1991, pet. ref’d). The record reflects that the jury assessed a
$10,000 fine in the marijuana case and the trial court orally pronounced the fine as part of
Contreras’s sentence. The judgment, with the assessed sentence, is the written declaration and
embodiment of the oral pronouncement. TEX. CODE CRIM. PROC. ANN. art. 42.01, § 1 (West
Supp. 2013). When the oral pronouncement of a sentence and the sentence in the written
judgment conflict, the oral pronouncement controls. Taylor v. State, 131 S.W.3d 497, 500 (Tex.
Crim. App. 2004).
–5– Because the jury’s sentence included a $10,000 fine and the trial court pronounced the
fine, we modify the judgment in cause number 05-13-00753-CR to reflect that a $10,000 fine
was assessed by the jury and orally pronounced by the trial court.
We affirm the trial court’s judgment in cause number 05-13-00752-CR. We modify the
trial court’s judgment in cause number 05-13-00753-CR, and affirm as modified.
/ Craig Stoddart/ CRAIG STODDART JUSTICE
Do Not Publish TEX. R. APP. P. 47 130752F.U05
–6– Court of Appeals Fifth District of Texas at Dallas JUDGMENT
GEORGE CONTRERAS, Appellant On Appeal from the 282nd Judicial District Court, Dallas County, Texas No. 05-13-00752-CR V. Trial Court Cause No. F-1231118-S. Opinion delivered by Justice Stoddart. THE STATE OF TEXAS, Appellee Justices Fillmore and Whitehill participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 8th day of June, 2015.
–7– Court of Appeals Fifth District of Texas at Dallas JUDGMENT
GEORGE CONTRERAS, Appellant On Appeal from the 282nd Judicial District Court, Dallas County, Texas No. 05-13-00753-CR V. Trial Court Cause No. F-1231119-S. Opinion delivered by Justice Stoddart. THE STATE OF TEXAS, Appellee Justices Fillmore and Whitehill participating.
Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED to reflect the $10,000 pronounced by the trial court. As modified, the judgment is AFFIRMED.
–8–