Roger Dale Schexnayder v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: October 21, 2021
• Docket: 01-20-00052-CR
• Status: Published

Opinion

Opinion issued October 21, 2021

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-20-00052-CR NO. 01-20-00053-CR ——————————— ROGER DALE SCHEXNAYDER, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 212th District Court Galveston County, Texas Trial Court Case Nos. 18-CR-0993 & 19-CR-0952

MEMORANDUM OPINION

Roger Dale Schexnayder appeals his convictions for injury to a child and

evading arrest. On appeal, he argues that the judgment erroneously assessed court

costs and fees for his injury to a child conviction. He also contends that the judgment for evading arrest incorrectly lists the court’s findings on the motion to adjudicate

his guilt. We hold that Schexnayder’s issues related to the injury to a child

conviction, trial court case number 18-CR-0993, are moot and affirm the judgment.

We reform the judgment for the evading arrest conviction, trial court case number

19-CR-0952, to correctly reflect the trial court’s findings. We affirm the judgment

as modified.

Background

In April 2019, Schexnayder pleaded guilty to two offenses in exchange for an

agreed disposition of six years’ deferred adjudication community supervision for

both offenses. First, he pleaded guilty to injury to a child with intent to cause bodily

injury, a third-degree felony, which was reduced from sexual assault of a child. See

TEX. PENAL CODE §§ 22.04 (injury to a child); 22.011 (sexual assault of a child). He

also pleaded guilty to evading arrest and detention in a motor vehicle. See TEX.

PENAL CODE § 38.04(b)(2)(A) (evading arrest with a motor vehicle).

In July 2019, the State filed a motion to adjudicate guilt for both offenses. The

motion alleged that Schexnayder committed three new offenses while under

community supervision. The motion also alleged that he failed to pay monthly

community supervision fees in the evading arrest case. At a hearing on the motion,

Schexnayder pleaded true to the allegation that he failed to pay the monthly

community supervision fee and not true to the remaining allegations. At sentencing,

2 the court found all of the allegations true and assessed punishment at five years’

imprisonment for each offense, with the sentences running concurrently. The court

found Schexnayder indigent and waived court costs and fees in both cases.

Imposition of Court Costs and Fees

In his first two issues, Schexnayder contends that the judgment in the injury

to a child case, trial court case number 18-CR-0993, erroneously assessed court costs

and a Crime Stoppers fee. After Schexnayder filed his brief, the State, agreeing with

Schexnayder, requested that the trial court issue a judgment nunc pro tunc

eliminating the assessment of costs and fees. The trial court issued a nunc pro tunc

judgment on July 21, 2020 that eliminates the complained-of fees. See Ex parte

Madding, 70 S.W.3d 131, 135 & n.8 (Tex. Crim. App. 2002) (when oral

pronouncement of sentence and the written judgment vary, the oral pronouncement

controls and this can be corrected via nunc pro tunc). Accordingly, Schexnayder’s

first two issues are moot.

Findings on Motion to Adjudicate

In his third issue, Schexnayder argues that the judgment adjudicating guilt for

evading arrest, trial court case number 19-CR-0952, erroneously lists the trial court’s

findings on the motion to adjudicate guilt. Specifically, he contends that the

judgment erroneously states that the trial court found allegation 1B not true, alleging

interfering with public duties. The trial court orally pronounced that it found that the

3 allegation was true. Schexnayder asserts that we should modify the judgment to

reflect that the court found allegation 1B true. The State agrees that the judgment

does not reflect the court’s oral pronouncement but argues that the judgment need

not be modified because the error does not impact Schexnayder’s sentence.

“A defendant’s sentence must be pronounced orally in his presence.” Taylor

v. State, 131 S.W.3d 497, 500 (Tex. Crim. App. 2004). Where there is a variation

between the oral pronouncement of sentence and the written judgment, the oral

pronouncement controls. Thompson v. State, 108 S.W.3d 287, 290 (Tex. Crim. App.

2003). “The judgment, including the sentence assessed, is just the written declaration

and embodiment of that oral pronouncement.” Taylor, 131 S.W.3d at 500.

After reviewing the record, we agree that the judgment contains a clerical

error regarding the trial court’s findings on allegation 1B. The judgment reflects that

the allegation was found not true, while the trial court orally pronounced that the

finding was true. An appellate court has the authority to reform a judgment to make

the record speak the truth when the matter has been called to its attention by any

source. French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992); see also

Dromgoole v. State, 470 S.W.3d 204, 226 (Tex. App.–Houston [1st Dist.] 2015, pet.

ref’d). We modify the judgment in trial court case number 19-CR-0952 to reflect

that the trial court found allegation 1B true.

4 Conclusion

We affirm the judgment in trial court case number 18-CR-0993. We modify

the judgment in trial court case number 19-CR-0952 to reflect that the trial court

found allegation 1B true, and we affirm the judgment as modified.

Peter Kelly Justice

Panel consists of Justices Kelly, Guerra, and Farris.

Do not publish. TEX. R. APP. P. 47.2(b).