Ronald Anuscewski v. State

• Court: Court of Appeals of Texas
• Decided: June 25, 2013
• Docket: 03-12-00655-CR
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-12-00655-CR

Ronald Anuscewski, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT NO. D-1-DC-12-200104, HONORABLE KAREN SAGE, JUDGE PRESIDING

MEMORANDUM OPINION

A jury convicted Ronald Anuscewski of aggravated assault with a deadly weapon.

See Tex. Penal Code § 22.02(a)(2). The jury assessed punishment at twenty years’ imprisonment

in the Institutional Division of the Texas Department of Criminal Justice. In one issue, appellant

contends that his conviction is void because the written judgment of conviction was signed by a

different judge from the judge who presided over his trial. We will affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Appellant was indicted for the offense of aggravated assault with a deadly weapon

after a confrontation with a neighbor during which he pointed a loaded semi-automatic handgun at

the neighbor and threatened to shoot him. Appellant pleaded not guilty and proceeded to a jury trial.

The State presented nine witnesses, including the neighbor and law enforcement officials who

responded to the incident. The jury found appellant guilty of the offense alleged in the indictment. Appellant elected for the jury to assess punishment. The jury assessed punishment at twenty years’

imprisonment and a $10,000 fine. The trial court’s docket sheet contains an entry recording the final

conviction, the deadly weapon finding, and the punishment. The docket sheet entry is dated August

16, 2012, is signed by the judge who presided over the trial, and includes appellant’s thumbprint.

The same day, the judge signed a certification of appellant’s right to appeal. The certification was

also signed by appellant and his court-appointed counsel. On August 20, 2012, the written judgment

of conviction was signed by a judge different from the one who presided over the trial. Appellant

perfected this appeal.

DISCUSSION

Appellant asserts that his conviction is void because the written judgment of

conviction was signed by a judge who did not preside over his trial. We disagree. First, “the written

judgment is not itself the conviction but evidence, among other things, that a conviction has

occurred.” Jones v. State, 795 S.W.2d 199, 202 (Tex. Crim. App. 1990); see also Modica v. State,

151 S.W.3d 716, 720 (Tex. App.—Beaumont 2004, pet. ref’d) (written judgment is merely record

of events that have occurred in fact). Appellant was convicted when the judge presiding over his

trial received and accepted the jury verdict. Jones, 795 S.W.2d at 201. “No further ritual or special

incantation from the bench is necessary to accomplish an adjudication of guilt beyond the

pronouncement of sentence as required by law.” Id. (citing Villela v. State, 564 S.W.2d 750, 751

(Tex. Crim. App. 1978), Ex parte Gibson, 128 S.W.2d 396 (Tex. Crim. App. 1939)). In the present

case, the trial judge received the verdict of the jury finding appellant guilty of the offense of

aggravated assault with a deadly weapon as alleged in the indictment and assessing his punishment

2 at confinement in the Texas Department of Criminal Justice Institutional Division for a period of

twenty years and a $10,000 fine. The trial judge then stated:

[T]he jury having reached a verdict of 20 years and a fine of $10,000 for the defendant, I will follow the verdict of the jury and sentence the defendant to twenty years in the Texas Department of Criminal Justice Institutional Division and assess a fine at $10,000.

Thus, the trial judge both received the verdict convicting appellant and pronounced the sentence

assessed. Nothing further was required for appellant’s conviction to be complete. Id. at 202. The

purpose of the written judgment is simply to record that the conviction has occurred. Any

irregularity in the written judgment would not render the conviction void. Id. (defective written

judgment may be corrected nunc pro tunc without necessity of further judicial action).

The written judgment here is not defective in any regard. The judge who signed the

judgment was a retired district judge who did not preside over the trial.1 Although neither party so

states, we presume that he was sitting by assignment pursuant to section 74.056 of the Texas

Government Code. See Tex. Gov’t Code § 74.056. The purpose of section 74.056 is to establish

a system whereby qualified judges may be assigned to serve as “acting presiding judge” in the

absence of the presiding judge and to hold court “to try cases and dispose of accumulated business.”

Id. § 74.056(a), (c). An acting presiding judge “has all the rights, duties and powers of the presiding

1 Appellant’s assertion in his brief that the judge who signed the written judgment was a sitting judge in another court is incorrect. The judge had retired from his elected position as a district judge almost two years before signing the judgment in this case.

3 judge.” Id. § 74.056(c). Consequently, the assigned judge here had the same authority to sign the

written judgment as would the judge who presided over the trial.

Appellant contends, however, that the assigned judge’s authority is limited by article

42.01 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. art. 42.01. Article 42.01

states that the judgment is “the written declaration of the court signed by the trial judge and entered

of record showing the conviction or acquittal of the defendant.” Id. (emphasis added). Appellant

maintains that this statute mandates that the judgment must be signed by “the trial judge who

presided over the trial.” The statute does not, however, impose such a requirement, but simply states

that the judgment must be signed by “the trial judge.” When construing a statute we do not read into

the statute words that are not there. See City of Rockwall v. Hughes, 246 S.W.3d 621, 629 (Tex.

2008). We conclude that the term “trial judge” in article 42.01 includes any judge with the authority

and jurisdiction to preside over the court in which the defendant was tried and is not necessarily

limited to the judge who actually presided over the defendant’s trial.

Appellant argues that such an interpretation of the statute could result in an incorrect

judgment because the judge signing the written judgment may not be as familiar with the

proceedings and their result. This concern does not justify limiting the authority of an assigned judge

to sign a written judgment presented to him and thereby frustrating the purpose of assigning visiting

judges to dispose of accumulated business of the district courts. As previously stated, the conviction

occurs when the judge presiding over the trial receives the verdict and pronounces the sentence. In

the event a judgment signed later by a different judge varies from the oral pronouncement of

sentence, the oral pronouncement controls. See, e.g., Ex parte Manning, 70 S.W.3d 131, 135 (Tex.

4 Crim. App. 2002). Moreover, a written judgment that does not accurately reflect the oral

pronouncement at sentencing can be reformed. See Banks v. State, 708 S.W.2d 460, 461-62 (Tex.

Crim. App. 1986).

Nothing in article 42.01 prohibits an assigned judge who did not preside over a trial

from signing the written judgment. See Eubanks v. State, 11 S.W.3d 279, 281 (Tex.

App.—Texarkana 1999, no pet.) (elected judge of court could sign written judgment even though

she had no other relationship with case and even though assigned visiting judge pronounced

judgment in open court); Sparkman v. State, 997 S.W.2d 660, 663 (Tex. App.—Texarkana 1999,

no pet.) (same). We overrule appellant’s appellate issue.

CONCLUSION

Having overruled appellant’s sole appellate issue, we affirm the judgment

of conviction.

_____________________________________________

J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Goodwin and Field

Affirmed

Filed: June 25, 2013