Opinion
02-23-00020-CR
10-26-2023
Juan Jesus Alvarez, Appellant v. The State of Texas
Do Not Publish Tex.R.App.P. 47.2(b)
On Appeal from Criminal District Court No. 4 Tarrant County, Texas Trial Court No. 1560709D
Before Sudderth, C.J.; Wallach and Walker, JJ.
MEMORANDUM OPINION
Mike Wallach Justice
Appellant Juan Jesus Alvarez appeals from his conviction on two counts of indecency with a child. See Tex. Penal Code Ann. § 21.11(a)(1). In two issues, Alvarez contends that the trial court erred by issuing deficient cumulation orders in the judgments and by imposing a fine in one judgment that was unsupported by the jury verdict. We modify the trial court's judgments to correct the deficient cumulation orders and to remove the fine, and we affirm the judgments as modified.
I. Background
Alvarez was indicted for continuous sexual abuse of a child and indecency with a child. In its complaint, the State included a notice that Alvarez had been previously convicted of aggravated sexual assault of a child under fourteen. The State later added a second indecency-with-a-child charge.
The jury acquitted Alvarez of the continuous-sexual-abuse charge and found him guilty of the remaining two counts (Counts Two and Three). The jury assessed punishment as thirteen years in prison with no fine on each count. The trial court ordered the sentences to run concurrently with each other but included in the judgments cumulation orders requiring each sentence to run consecutively with the sentence imposed in the prior aggravated-sexual-assault conviction. The trial court also imposed a $100 fine in its judgment on Count Two. This appeal followed.
II. Discussion
A. Cumulation Orders
In his first issue, Alvarez contends that the cumulation orders in the judgments are deficient and should be voided because they do not contain sufficient information to identify the prior sentence.
1. Applicable Law
A trial court has discretion to order concurrent or consecutive sentences. Tex. Code Crim. Proc. Ann. art. 42.08(a); Stokes v. State, 688 S.W.2d 539, 540 (Tex. Crim. App. 1985). A cumulation order must be specific enough "to enable the prison authorities to know just how long to detain the prisoner under the sentence." Stokes, 688 S.W.2d at 540.
An order containing the following five elements is sufficiently specific: (1) the cause number of the prior conviction; (2) the correct name of the trial court in which the conviction was taken; (3) the date of the prior conviction; (4) the term of years of the prior conviction; and (5) the nature of the prior conviction. Id.; Ward v. State, 523 S.W.2d 681, 682 (Tex. Crim. App. 1975). These elements are not mandatory, and a cumulation order with fewer than all elements may still be valid if it contains sufficient information to identify the prior conviction. Stokes, 688 S.W.2d at 540; see Sanders v. State, No. 2-08-058-CR, 2008 WL 4445644, at *9 (Tex. App.-Fort Worth Oct. 2, 2008, no pet.) (per curiam) (mem. op., not designated for publication); see also Hicks v. State, No. 09-12-00474-CR, 2013 WL 3487357, at *3 (Tex. App.-Beaumont July 10, 2013, pet. ref'd) (mem. op., not designated for publication).
The order should be sufficiently clear so that it may be understood without reference to other evidence. Stokes, 688 S.W.2d at 540. When a cumulation order is not sufficiently clear, an appellate court may reform the order and affirm as modified if the record reveals all information required to reform it. Banks v. State, 708 S.W.2d 460, 462 (Tex. Crim. App. 1986); Revels v. State, 334 S.W.3d 46, 56 (Tex. App.-Dallas 2008, no pet.).
2. Analysis
After the jury returned its punishment verdict, the trial court orally pronounced that it would sentence Alvarez to thirteen years' confinement on each of the two convictions. The State requested that the sentences be "served consecutively with the sentence [Alvarez] received in Indictment No. 1244142." The trial court granted the State's request and orally pronounced, "Counts Two and Three will run concurrently, and service of Counts Two and Three['s] sentence of 13 years in this particular case number will not begin until [Alvarez] completes service of his 25-year sentence in the aforementioned case." The trial court's written judgments each contain a cumulation order stating, "Counts Two and Three to be served consecutively with sentence rendered in cause no. 1244142."
The parties agree that the cumulation orders are deficient. We also agree. See Sanders, 2008 WL 4445644, at *10 (holding cumulation order containing only cause number and "U.S. District Court" was insufficient). Although the cumulation orders identify the prior conviction's cause number, they include no other details from which the sentence length could be determined. See Stokes, 688 S.W.2d at 540. Thus, we hold that the cumulation orders are not specific enough to provide notice to prison officials of the sentence to be cumulated. See id.
Although both parties acknowledge that an appellate court may modify a deficient cumulation order and affirm the judgment as modified if the record contains the required evidence, they disagree on the remedy. Alvarez contends that the cumulation orders should be deleted while the State contends that the record contains sufficient evidence for us to modify the orders to reflect the trial court's intent.
According to Alvarez, the trial court's oral pronouncement controls over the written cumulation orders. See Coffey v. State, 979 S.W.2d 326, 328 (Tex. Crim. App. 1998) ("[W]hen there is a variation between the oral pronouncement of sentence and the written memorialization of the sentence, the oral pronouncement controls."). Citing Banks, he contends that we may modify the cumulation orders only "if the oral pronouncement of sentence contains the necessary information." See Banks, 708 S.W.2d at 462 (modifying deficient cumulation order based on trial court's detailed oral pronouncement). Because the trial court's oral pronouncement is also deficient, Alvarez contends that we should delete the cumulation orders.
The oral-pronouncement rule is a due-process protection preventing a trial court from orally pronouncing one sentence then entering a written judgment imposing a harsher sentence. Ette v. State, 559 S.W.3d 511, 516 (Tex. Crim. App. 2018); see also Ex parte Madding, 70 S.W.3d 131, 132 (Tex. Crim. App. 2002) (applying the oral-pronouncement rule when trial court orally pronounced concurrent sentences and then entered a written judgment with a cumulation order). Here, the trial court's oral pronouncement and written judgments indicate that the sentences on Counts Two and Three will be cumulated. Thus, they do not conflict, and the oral-pronouncement rule does not apply. See Ette, 559 S.W.3d at 516.
Additionally, although the Texas Court of Criminal Appeals considered the trial court's oral pronouncement in Banks, it did not limit a court's consideration to that one fact, holding only that "the written sentence should be reformed to reflect the record of the proceedings and to include the requisite information for cumulation of sentence." See Banks, 708 S.W.2d at 462. Indeed, Banks does not mention the oral-pronouncement rule but merely points out that the trial court's oral pronouncement was "ideal in containing all of the recommended elements under Ward." Id. at 461-62 (citing Ward, 523 S.W.2d at 682). Thus, our review of the record is not limited to the trial court's oral pronouncement. See, e.g., Hicks, 2013 WL 3487357, at *3 (considering prior judgment admitted into evidence at punishment hearing); Simmons v. State, No. 13-10-00576-CR, 2013 WL 3326823, at *6 (Tex. App.-Corpus Christi-Edinburg June 27, 2013, pet. ref'd) (mem. op., not designated for publication) (same); Sanders, 2008 WL 4445644, at *10-11 (considering an oral exchange between counsel and the trial court disclosing additional information about the prior conviction).
During trial, the trial court admitted an indictment and judgment reflecting cause number "1244142D"-the same cause number referenced in the State's cumulation request. This evidence indicates that Alvarez was sentenced on January 6, 2012, by the 372nd District Court of Tarrant County, Texas, to twenty-five years in prison for aggravated sexual assault of a child under fourteen. Because the record provides the information for all five elements of a sufficient cumulation order, see Banks, 708 S.W.2d at 462, we overrule Alvarez's first issue, and modify the cumulation-order portions of each judgment to read:
Although Alvarez objected to the admission of this evidence, he does not complain about the admission on appeal.
The sentences imposed under Counts Two and Three shall commence when the sentence imposed in cause number 1244142D-out of the 372nd District Court, Tarrant County, Texas, on January 6, 2012, for a term of twenty-five years for the offense of aggravated sexual assault of a child under fourteen years of age-ceases to operate.
B. Fine Assessment
In his second issue, Alvarez contends that the trial court erred by assessing a $100 fine on Count Two because the jury did not assess a fine and the trial court did not include a fine in its oral pronouncements. Alvarez asks us to delete the fine from the trial court's judgment.
When, as here, a jury assesses punishment, the trial court's judgment must reflect that the defendant has been punished in accordance with the jury's verdict. Tex. Code Crim. Proc. Ann. art. 42.01, § 1(8); see also Ette, 559 S.W.3d at 515 ("Generally, a trial court has no power to alter a lawful jury verdict unless it is with the jury's consent and before the jury has dispersed."). Additionally, it is well-settled that when the oral pronouncement of sentence and the written judgment vary, the oral pronouncement generally controls. Ette, 559 S.W.3d at 516. A judgment that differs from the jury's verdict should be modified to reflect the jury's verdict. Nelson v. State, 149 S.W.3d 206, 212-13 (Tex. App.-Fort Worth 2004, no pet.); see Tex. R. App. P. 43.2(b).
At the punishment hearing, the State began its closing argument by noting that the jury could assess a $10,000 fine and confinement but nevertheless informed the jury, "We don't care about fines. . . . We don't want a fine. So[,] I want you [the jury] to forget about that." Consistent with the State's request, the jury assessed punishment for both counts as confinement with no fine. The trial court orally pronounced the sentences as "13 years['] confinement" on Count Two and "13 years['] confinement in TDCJ and a fine -- no fine" on Count Three. The trial court's written judgment on Count Two, however, assessed a $100 fine.
The trial court's written judgment differs from the trial court's oral pronouncement and the jury's punishment assessment. See Ette, 559 S.W.3d at 516; Nelson, 149 S.W.3d at 212-13. Accordingly, we sustain Alvarez's second issue and modify the trial court's written judgment on Count Two to reflect "Fines: $0.00."
III. Conclusion
Having overruled Alvarez's first issue and modified the trial court's cumulation orders in the judgments, and having sustained his second issue and modified the fine portion of the trial court's judgment on Count Two, we affirm the trial court's judgments as modified.