Lopez v. State

515 S.W.3d 547, 2017 WL 641320, 2017 Tex. App. LEXIS 1331
CourtCourt of Appeals of Texas
DecidedFebruary 16, 2017
DocketNO. 14-16-00247-CR, NO. 14-16-00248-CR
StatusPublished
Cited by12 cases

This text of 515 S.W.3d 547 (Lopez v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lopez v. State, 515 S.W.3d 547, 2017 WL 641320, 2017 Tex. App. LEXIS 1331 (Tex. Ct. App. 2017).

Opinion

OPINION

Marc W. Brown, Justice

Appellant Alexis Lopez brings two issues on appeal: (1) the trial court erred by entering cumulation orders in the written judgments that conflict with the trial court’s oral pronouncement of the sentences; and (2) the trial court erred by failing to instruct the jury on the burden of proof, at the punishment phase, regarding extraneous offenses. We reform the trial court’s judgments and affirm the judgments as reformed.

I. Background

Appellant was in a dating relationship with the complainant’s mother. Appellant, upset with the complainant’s mother, sexually assaulted the complainant. The complainant was age 12 at the time of the offense. Appellant was indicted in two cases for aggravated sexual assault of a child under the age of 14. The cases were tried together. A jury found appellant guilty in both cases. Jurors assessed punishment at 20 years’ confinement in each case. The trial judge ordered the sentences to run consecutively. Appellant filed a timely notice of appeal.

II. Discussion

A. The variance between the oral pronouncement and the judgments does not make the cumulation orders void; the remedy is to reform the judgment.

In his first issue, appellant contends that the cumulation orders in the judgments are void because they conflict with the trial judge’s oral pronouncements of the sentences.

Under article 42.08 of the Code of Criminal Procedure, the trial judge may cumulate or “stack” the sentences for two or more of a defendant’s convictions. Tex. Crim. Proc. Code Ann. art. 42.08(a) (West 2015). In each case, the trial judge shall pronounce the judgment and sentence in the same manner as if there had been but one conviction. Id. The trial judge should pronounce the sentence orally in open court and in the defendant’s presence. See id. art 42.03; Taylor v. State, 131 S.W.3d 497, 500 (Tex. Crim. App. 2004). The oral pronouncement is memorialized by the trial court’s written judgment. Tex. Crim. Proc. Code Ann. art. 42.01 (stating the judgment is “a written declaration of the court signed by the trial judge and entered of record” and reflects defendant’s conviction and sentence); see also id. art. 42.02 (“The sentence is that part of the judgment ... that orders that the punishment be carried into execution”); Coffey v. State, 979 S.W.2d 326, 328 (Tex. Crim. App. 1998) (“The written sentence or order simply memorializes [pronouncement] and should comport therewith”).

If the oral pronouncement of sentence “conflicts” with or varies from the written judgment, the oral pronouncement controls. Thompson v. State, 108 S.W.3d 287, 290 (Tex. Crim. App. 2003) (using the word “conflict”); Coffey, 979 S.W.2d at 328 (using the words “deviation” and “variation”). A variance is “a difference or dis[550]*550parity between two statements or documents that ought to agree,” Black’s Law Dictionary 1915 (10th ed. 2014).

Here, the written judgments reverse the oral pronouncement’s sequence of appellant’s sentences. The State filed a pre-trial motion to cumulate, stating “the interests of justice would best be served by beginning any sentence in Cause No. 1455786 when the sentence in Cause No. 1455787 has ceased to operate.” At sentencing, the trial court orally pronounced appellant’s sentences. Initially, the trial court did not state that the sentences would be cumulated. The State reminded the trial court about the pending motion to cumulate. In response, the trial court stated, “And the two sentences will run consecutively.” The trial court implicitly granted the State’s motion during oral pronouncement. The trial court later entered written cumulation orders, in both judgments, stating “case # 1455787 stacked on case # 1455786,” reversing the sequence of the two sentences in the State’s motion. In other words, instead of the sentence in case number 1455786 following that in case number 1455787, the judgment ordered that the sentence in case number 1455787 would follow that in case number 1455786. Therefore, there is a variance between the oral pronouncement of sentences and the judgments.

Appellant contends that the variance renders the cumulation orders void, and requests that we reform the judgments by deleting the orders. We disagree that the variance makes the orders void. Appellant does not cite, nor have we found, any case where a court voided a cu-mulation order simply because the written order erroneously reversed the oral pronouncement’s sequence of sentences. Indeed, a judgment containing a clerical error will not render a cumulation order void. See McIntosh v. State, 686 S.W.2d 759, 763 (Tex. App.-Houston [1st] 1985, no writ) (clerical error in cumulation order did not render it void). “A clerical error is one which does not result from judicial reasoning or determination.” Ex parte Poe, 751 S.W.2d 873, 876 (Tex. Crim. App. 1988). The error here was clerical and not a product of judicial reasoning. Appellant’s issue is overruled.

We have authority to reform a judgment to make the record speak the truth when the matter has been called to our attention by any source. French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992). We may reform judgments to correct improper recitations or omissions relating to punishment when the court has the necessary data for reformation. See Tex. R. App. P. 43.2(b) (permitting the court of appeals to modify the trial court’s judgment); see also Banks v. State, 708 S.W.2d 460, 462 (Tex. Crim. App. 1986) (reforming insufficient cumulation order). Because the oral pronouncement and the written judgments vary, the solution here is to reform the written judgments to conform to the sentences that were orally pronounced. Thompson, 108 S.W.3d at 290; see also Banks, 708 S.W.2d at 461-62 (reforming insufficient cumulation order to reflect oral pronouncement).

Accordingly, we reform the trial court’s judgments so that the sentence of 20 years’ confinement imposed upon appellant for his aggravated-sexual-assault-of-a-child conviction in Cause No. 1455786, from the 248th Criminal District Court of Harris County, begins when the sentence of 20 years’ confinement for his aggravated- sexual- assault- of- a- child conviction from the 248th Criminal District Court of Harris County in Cause No. 1455787 has ceased to operate.

B. A reasonable-doubt instruction was not required in the punishment-phase jury charge.

[551]*551In his second issue, appellant contends the trial court erred by failing to sua sponte instruct the jury, during the punishment phase, that the State must prove extraneous offenses beyond a reasonable doubt.

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Bluebook (online)
515 S.W.3d 547, 2017 WL 641320, 2017 Tex. App. LEXIS 1331, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lopez-v-state-texapp-2017.