David Wayne Kerr v. State

• Court: Court of Appeals of Texas
• Decided: November 25, 2014
• Docket: 07-13-00128-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo ________________________

No. 07-13-00128-CR No. 07-13-00380-CR ________________________

DAVID WAYNE KERR, APPELLANT

V. THE STATE OF TEXAS, APPELLEE

On Appeal from the 181st District Court Randall County, Texas Trial Court No. 21,768-B; Honorable John B. Board, Presiding

November 25, 2014

MEMORANDUM OPINION Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

On January 19, 2012, pursuant to a single, two-count indictment in cause

number 21,768-B, the trial court entered two separate orders placing Appellant, David

Wayne Kerr, on eight years deferred adjudication community supervision for the offense

of aggravated sexual assault.1 A year later, by a single motion designating the original

1 TEX. PENAL CODE ANN. § 22.021 (West Supp. 2014). Count I alleged digital penetration, whereas Count II alleged penile penetration. The indictment alleged an offense punishable in a manner cause number, but not differentiating as to Count I or Count II, the State moved to

proceed with adjudication and revoke community supervision alleging eight violations of

the terms and conditions thereof. Following an agreed-to, non-bifurcated hearing on the

State’s motion, the trial court found Appellant had violated the terms and conditions of

his community supervision and without specifying a count or counts, globally

pronounced a seventy-five year sentence. The trial court then entered two separate

judgments adjudicating Appellant’s guilt as to each count, both assessing a seventy-five

year sentence.

By a single amended notice of appeal, Appellant indicated his wish to appeal “the

judgment or other appealable order in this cause . . . .” The appeal was originally

assigned cause number 07-13-00128-CR. By a single issue, Appellant alleged the two

separate judgments were void due to violations of due process and equal protection of

law. In response, the State moved to abate this appeal and remand the matter to the

trial court for further proceedings. The State’s motion was denied and the two separate

judgments were assigned separate appellate cause numbers: 07-13-00128-CR for

Count I and 07-13-00380-CR for Count II. As to each count, we now reverse and

remand.

described by Subsection (f)(1) (minimum term of imprisonment of 25 years).

Pursuant to a plea bargain, the indictment was amended to allege an offense punishable in a manner described by Subsection (e) (minimum term of imprisonment of 5 years). A judge may place a defendant on deferred adjudication for an offense punishable in a manner described by Subsection (e), only if the judge makes a finding in open court that placing the defendant on community supervision is in the best interest of the victim.

2 BACKGROUND

At the commencement of the hearing on the State’s motion to proceed, 2 the trial

court called “Cause Number 21,768-B.” Counts I and II were not separately called.

Defense counsel announced Appellant was proceeding without a plea bargain. The trial

court then asked for a plea in each of the eight allegations alleged by the State and

Appellant entered six pleas of true and two pleas of not true. Evidence was then

presented in support of the State’s allegations.

After both sides rested and delivered closing arguments, the trial court

announced the following:

I do accept [Appellant’s] pleas of true to allegations 2, 3, 4, 6, 7, and 8. I do find the evidence is sufficient to sustain a finding of true to those allegations. I do also find that the evidence is sufficient to sustain a finding of true to allegations 1 and 5, and I also find those allegations to be true.

I will take judicial notice of the allegations contained in the indictment to which [Appellant] did plead guilty in front of Judge Anderson on January 19, 2012, and sentence him to 75 years . . . .3

The trial court did not announce an adjudication of guilt on either count nor did it specify

to which count the sentence applied.

2 Although there were separate orders of deferred adjudication specifying individual count numbers, the State’s motion to “revoke” did not make reference to which order the allegations applied. 3 It should be noted that although the “Felony Plea Memorandum” filed in conjunction with Appellant’s original plea indicated the agreement was to enter a plea to an “amended indictment” for an offense punishable pursuant to Subsection (e) (See fn. 1), the original indictment was not altered and no amended indictment appears of record. Because the judge who originally heard Appellant’s plea was not the same judge presiding at the adjudication hearing, we are unable to determine with certainty just what allegations the judge presumed he was taking judicial notice of.

3 Appellant filed a single brief bearing appellate cause number 07-13-00128-CR.

By his sole issue, he contends the trial court abused its discretion by issuing two written

judgments specifying two sentences on a two-count indictment when the trial court

pronounced a “global sentence” in a non-bifurcated hearing without specifying to which

count or counts the seventy-five year sentence applied. In response, the State filed a

Motion to Abate and Remand urging the trial court’s error could be corrected by

remanding the cause for imposition of sentences on both counts. See TEX. R. APP. P.

44.4. The motion was denied, and this Court sua sponte severed the appeal into two

separate appeals, one as to each judgment. The judgment on Count II was assigned

appellate cause number 07-13-00380-CR. See Kerr v. State, No. 07-13-00128-CR,

2013 Tex. App. LEXIS 14084, at *2 (Tex. App.—Amarillo Nov. 13, 2013, order).

The State then filed two separate briefs in response to Appellant’s arguments. In

cause number 07-13-00128-CR, the appeal from Count I, the State maintains this

Court’s severance of the two judgments makes the judgment on Count I “definite, free of

error and correct in all things.” In cause number 07-13-00380-CR, the appeal from

Count II, the State argues this Court is without jurisdiction to entertain the appeal

because sentence was not pronounced in Appellant’s presence and requests

abatement for a new sentencing hearing.

STANDARD OF REVIEW—DECISION TO ADJUDICATE

An appeal from a trial court's order adjudicating guilt is reviewed in the same

manner as a revocation hearing. See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5(b)

(West Supp. 2014). When reviewing an order revoking community supervision imposed

4 under an order of deferred adjudication, the sole question before this Court is whether

the trial court abused its discretion. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim.

App. 2006); Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984); Jackson v.

State, 645 S.W.2d 303, 305 (Tex. Crim. App. 1983).

ANALYSIS

Section 3.03 of the Texas Penal Code provides that when the accused is found

guilty of more than one offense arising out of the same criminal episode prosecuted in a

single criminal action, a sentence for each offense shall be pronounced. TEX. PENAL

CODE ANN. § 3.03 (West 2011). Article 42.03, section 1(a) of the Texas Code of

Criminal Procedure provides that sentence shall be pronounced in the defendant’s

presence. The pronouncement of sentence is the appealable event whereas the written

judgment simply memorializes the oral sentence and should comport with its terms.

Coffey v. State, 979 S.W.2d 326, 328 (Tex. Crim. App. 1998).

Appellant argues the trial court’s failure to orally pronounce on which count or

counts he was being sentenced renders the judgments vague and void. He requests

both judgments be reversed and remanded to the trial court for a new hearing. We

agree.

Relying on Robinson v. State, 553 S.W.2d 371, 372 (Tex. Crim. App. 1977),

Murray v. State, 108 S.W.3d 703, 706 (Tex. App.—Dallas 2010, pet ref’d), and Harmon

v. State, 889 S.W.2d 521, 523 (Tex. App.—Houston [14th Dist.] 1994, pet. ref’d), the

State defends the sentence on Count I by arguing the “carving doctrine.” The doctrine

“allows a prosecutor to carve as large an offense out of a single transaction as he can,

5 yet he must cut only once.” Ex parte Cantrell, 580 S.W.2d 369, 370 n.1 (Tex. Crim.

App. [Panel Op.] 1979); Owens v. State, 851 S.W.2d 398, 400 (Tex. App.—Fort Worth

1993, no pet.). In instances where two convictions occurred at the same time based on

the same evidence and the carving doctrine renders one invalid, the conviction with the

lower numbered indictment is the presumptively valid one. Robinson, 553 S.W.2d at

372. The carving doctrine, however, was abandoned in 1982 in Ex parte Williams, No.

03-02-00171-CR, 634 S.W.2d 815, 822 (Tex. Crim. App. 1982) (opinion on reh’g). See

Murphy v. State, 2002 Tex. App. LEXIS 7551, at *7-8 (Tex. App.—Austin Oct. 24, 2002,

pet. denied) (mem. op., not designated for publication).

The State acknowledges the record does not support a pronouncement of

sentence in Appellant’s presence as to Count II and argues this Court has no

jurisdiction over that judgment. The State requests either dismissal of the judgment in

Count II or abatement of the appeal and a remand to the trial court for a sentencing

hearing in Count II. Because the carving doctrine has long since been abandoned, we

disagree with the State’s analysis of these appeals.

Appellant directs us to White v. State, 543 S.W.2d 130, 131-32 (Tex. Crim. App.

1976), in which the appellant was convicted of aggravated robbery pursuant to a three-

count indictment and sentenced to twenty years confinement. The first count alleged

the offense occurred on or about July 17, 1975. The second and third counts alleged

those offenses occurred on or about July 19, 1975. The record contained a single

judgment referring only to a single conviction with a finding that the offense occurred on

July 17, 1975. On appeal, counsel filed a brief pursuant to Anders v. California, 386

U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1973), determining the appeal was frivolous.

6 In its independent review of the record, the Court determined the appeal was without

merit as to one conviction and there was no jurisdiction to review the other two

convictions, if any. White, 543 S.W.2d at 131. The Court determined the inclusion in

the judgment that the offense occurred on July 17, 1975, led to the conclusion that the

conviction was based on the first count of the indictment. Id. at 132. The Court

concluded that until the record reflected proper sentences on counts two and three,

there was no jurisdiction over those counts. Id.

Appellant distinguishes White and points out that in the instant appeals, we are

unable to identify through a review of the record a connection to either of the two

counts. Both counts contain the same date of offense—on or about August 23, 2005,

and both counts involve the same victim. Neither can we identify a specific count on

which sentence was pronounced. Not only does the record before us lack specificity on

which count Appellant was sentenced, the record also lacks specificity on the trial

court’s adjudication of guilt as to either Count I or Count II.

In Thompson v. State, 108 S.W.3d 287 (Tex. Crim. App. 2003), the defendant

was charged in a single indictment with one count of sexual assault of a child and one

count of indecency with a child. The trial court did not pronounce sentence on the count

for indecency with a child and entered one judgment reflecting a thirty year sentence on

both counts. When no sentence is pronounced, there is no valid judgment or conviction

from which to appeal. Id. at 290. The Court of Criminal Appeals determined the

appellate court properly dismissed the appeal of the count for indecency for lack of

jurisdiction. Id. at 289.

7 We distinguish Thompson and White under the unique facts of the case before

us. The pronouncement of sentence is the appealable event. Coffey, 979 S.W.2d at

328. In the underlying proceedings, the trial court pronounced a seventy-five year

sentence, reflected in two judgments, and Appellant perfected an appeal from that

event. The distinguishing factor in this case is the inability to determine to which count

the sentence applies. We will not presume nor speculate that the trial court intended to

pronounce sentence on a particular count and we cannot simply make that decision for

the trial court. Consequently, disposition of these appeals requires reversal of both

judgments and a remand for further proceedings. Appellant’s issue is sustained.

CONCLUSION

The trial court’s judgments are reversed and the cause is remanded for a new

hearing on the State’s motion to proceed with adjudication.

Patrick A. Pirtle Justice

Do not publish.