Ernesto Hernandez v. State

• Court: Court of Appeals of Texas
• Decided: April 27, 2006
• Docket: 14-05-01020-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed April 27, 2006

Affirmed and Memorandum Opinion filed April 27, 2006.

In The

Fourteenth Court of Appeals

____________

NO. 14-05-01020-CR

ERNESTO HERNANDEZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 183rd District Court

Harris County, Texas

Trial Court Cause No. 899,891

M E M O R A N D U M   O P I N I O N

Appellant entered a plea of guilty to the offense of possession with intent to deliver. On March 4, 2003, the trial court sentenced appellant to confinement for thirty years in the Institutional Division of the Texas Department of Criminal Justice.

In his sole issue on appeal, appellant claims the trial court erred in executing a written judgment of sentence that was inconsistent with the trial court=s oral pronouncement.  The record reflects that after finding appellant guilty, the trial court stated:

. . . [I]n your case I assess your punishment at confinement in the [I]nstitutional [D]ivision of the Texas Department of Criminal Justice for a period of 30 years.

Jose Hernandez, it is the Order of this Court that you be delivered by the Sheriff of Harris County[,] Texas, to the director of the Institutional Division of the Texas Department of Criminal Justice or to any other person who is legally authorized to receive such prisoners where you will be confined for a period of time not less than 15 and not more than 30 years in accordance with the laws that govern that institution.

The written judgment provides appellant is to be confined for thirty years.  Appellant argues the written judgment is inconsistent with the oral pronouncement.  As the excerpt above reflects, the trial court orally pronounced a sentence of A30 years.@  The trial court=s subsequent statement that appellant will be confined for fifteen to thirty years was an indeterminate sentence unauthorized by law.  See Manz v. State, 787 S.W.2d 580, 582 (Tex. App.CHouston [1st Dist.] 1990, no pet.).  To the extent the trial court erred, appellant has not shown it affected his substantial rights.  See Ribelin v. State, 1 S.W.3d 882, 885  (Tex. App.CFort Worth 1999, pet. ref=d); Tex. R. App. P. 44.2 (b).  More importantly, the trial court did orally pronounce the same sentence as that memorialized in the written judgment.  See Coffey v. State, 979 S.W.2d 326, 328-29 (Tex. Crim. App. 1998).  Accordingly, there is no conflict between the written judgment and the oral pronouncement of sentence.  Appellant=s issue is overruled.

The judgment of the trial court is affirmed.

PER CURIAM

Judgment rendered and Memorandum Opinion filed April 27, 2006.

Panel consists of Justices Hudson, Fowler, and Seymore.

Do Not Publish C Tex. R. App. P. 47.2(b).