Rolanda Ursula Cross AKA Rolanda U Cross AKA Rolanda Ursula Robertson v. State

• Court: Court of Appeals of Texas
• Decided: August 29, 2011
• Docket: 13-11-00041-CR
• Status: Published

Opinion

NUMBER 13-11-00041-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

ROLANDA URSULA CROSS A/K/A ROLANDA U. CROSS A/KA ROLANDA URSULA ROBERTSON, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 252nd District Court of Jefferson County, Texas.

MEMORANDUM OPINION Before Justices Benavides, Vela, and Perkes Memorandum Opinion by Justice Benavides This appeal arises from a motion to revoke unadjudicated probation. Appellant,

Rolanda Ursula Cross a/k/a Rolanda U. Cross a/k/a Rolanda Ursula Roberson

(hereinafter “Cross”), argues that the trial court erred when it found her guilty for an offense for which she had not been indicted. We affirm.

I. BACKGROUND1

On October 24, 2007, Cross pleaded guilty to the offense of tampering with a

governmental record, a third-degree felony. See TEX. PEN. CODE ANN. §§ 12.34(a),

37.10(a)(2) (West Supp. 2010). The trial court deferred adjudication of guilt, assessed

a term of five years of community supervision, and ordered a $500 fine.

On October 22, 2010, the State filed its first Amended Motion to Revoke

Unadjudicated Probation. In its motion, the State alleged that Cross violated the terms

of her community supervision in seven ways. Cross pleaded “not true” to all of the

allegations except for one: she pleaded “true” to the allegation that she committed the

offense of theft by check on December 19, 2009. After a hearing on the motion to

adjudicate, the trial court revoked Cross’s deferred adjudication community supervision

and sentenced her to ten years in the Texas Department of Criminal

Justice—Institutional Division. Id. § 12.34(a) (“An individual adjudged guilty of a felony

of the third degree shall be punished by imprisonment . . . for any term of not more than

10 years or less than 2 years.”); see TEX. CODE CRIM. PROC. ANN. § 5(b) (West Supp.

2010) (“after an adjudication of guilt, all proceedings, including assessment of

punishment, pronouncement of sentence, granting of community supervision, and

defendant's appeal continue as if the adjudication of guilt had not been deferred.”).

1 This case is before this Court on transfer from the Ninth Court of Appeals in Beaumont pursuant to an order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001 (West 2005).

2 During sentencing, the trial court stated, “I find the evidence to be sufficient to find

Count 7 to be true . . . I now find you guilty of the offense of tampering with physical

evidence.” Cross’s original offense, however, was for tampering with a governmental

record, not for tampering with physical evidence. Compare TEX. PEN. CODE ANN.

§ 37.10(a)(2) with TEX. PEN. CODE ANN. § 37.09 (West Supp. 2010). The “Judgment

Adjudicating Guilt”, though, correctly states the original offense to which Cross pleaded

guilty—“tampering with a governmental record.”

Cross filed this appeal claiming that the trial court erred when it orally pronounced

her guilty of an offense for which she had not been indicted.

II. STANDARD OF REVIEW AND APPLICABLE LAW

We review the revocation of a probated sentence for an abuse of discretion.

Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993). A revocation proceeding

is neither criminal nor civil in nature—rather, it is an administrative proceeding. Id.

Proof of a single violation is sufficient to support revocation. Anderson v. State, 621

S.W.2d 805, 805 (Tex. Crim. App. 1981); Reynolds v. State, 746 S.W.2d 536, 537 (Tex.

App.—Texarkana 1988, no pet.).

III. ANALYSIS

Cross’s sole issue is that the trial court erred when it found her guilty for an

offense for which she had not been indicted. She cites Coffey v. State for the

proposition that when a trial court’s oral pronouncement of the defendant’s sentence and

its written memorialization of the sentence vary, the oral pronouncement controls. 979

S.W.2d 326, 328 (Tex. Crim. App. 1998). Coffey is inapplicable to the case at hand,

though, because Coffey’s holding is limited to oral and written variations in sentencing.

3 See id. (emphasis added). In other situations, such as when the trial court mistakenly

revokes probation on inconsistent grounds, “the written findings of the court control over

an oral announcement.” Id. (citing Eubanks v. State, 599 S.W.2d 815, 817 (Tex. Crim.

App. 1980); Aguilar v. State, 542 S.W.2d 871, 874 (Tex. Crim. App. 1976)). In this

case, the variation was in the crime for which Cross was found guilty. Cross’s sentence

of ten years, however, was the same when the trial judge pronounced it orally at the

hearing on the motion to adjudicate and in the written judgment. Thus, Coffey is

inapposite.

Regardless, even if we assume that the trial court did err, this error would be

harmless. See TEX. R. APP. P. 44.2 (providing that, in criminal cases, “any other error,

defect, irregularity, or variance that does not affect substantial rights must be

disregarded.”). Here, the trial court made the oral pronouncement that Cross was

guilty of the wrong offense at a hearing on Monday, November 29, 2010. The written

judgment, which correctly found Cross guilty of the crime for which she was indicted, was

entered on Wednesday, December 1, 2010. Assuming without deciding that the trial

court erred when it pronounced the wrong offense on the record, the error was corrected

when the final judgment was entered a mere two days later. Because Cross suffered

no harm from this minor discrepancy, we overrule her sole issue. See, e.g., Ex parte

Chavez, 213 S.W.3d 320, 324 (Tex. Crim. App. 2006) (holding that a punishment that

falls within the legislatively prescribed range is unassailable on appeal.).

4 IV. CONCLUSION

We affirm the judgment of the trial court.

________________________ GINA M. BENAVIDES, Justice Do not publish. TEX. R. APP. P. 47.2(b).

Delivered and filed the 29th day of August, 2011.