Opinion
No. 06-15-00129-CR
08-03-2016
JAMES CUNNINGHAM, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 85th District Court Brazos County, Texas
Trial Court No. 14-04342-CRF-85 Before Morriss, C.J., Moseley and Burgess, JJ. ORDER
James Cunningham appeals his jury conviction of unlawful possession of a firearm by a felon in Brazos County. See TEX. PENAL CODE ANN. § 46.04(a) (1) (West 2011). Both Cunningham and the State have filed their respective briefs. Cunningham initially asserts that the trial court did not have jurisdiction to proceed to trial and to enter judgment because it entered a written order June 15, 2015, quashing the indictment. We abate this appeal to the trial court for clarification pursuant to Rule 44.4 of the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 44.4.
Originally appealed to the Tenth Court of Appeals in Waco, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See TEX. GOV'T CODE ANN. § 73.001 (West 2013). We follow the precedent of the Tenth Court of Appeals in deciding this case. See TEX. R. APP. P. 41.3.
A brief background of the trial court proceedings is necessary to inform the basis for the issuance of this order. On September 4, 2014, the State indicted Cunningham for the offense of unlawful possession of a firearm by a felon. On June 12, 2015, the State filed its "Notice of Enhancement to Habitual Felon," in which it identified a second felony conviction and its intent to seek enhanced sentencing under Section 12.42(d) of the Texas Penal Code. See TEX. PENAL CODE ANN. § 12.42(d) (West Supp. 2015). On June 15, 2015, Cunningham filed his objection to the enhancement notice, in which he requested that the trial court "quash and set aside or dismiss the enhancement in this case."
The trial court conducted a hearing on the State's notice to seek habitual-felon sentencing, at which Cunningham claimed that the notice created unfair surprise and impaired his defensive strategy. The trial court sustained Cunningham's objection to the State's proposed enhancement, stating, "I'm going to grant the objection to the enhancement to habitual." The trial court thereafter entered a written order, which stated:
On this 15 day of June 2015, the court having considered the foregoing Motion to Quash Enhancement hereby (DENIES said motion) (GRANTS said motion _and orders the indictment be set aside and dismissed).The word "GRANTS" is circled on the original order. This pro forma order is located at the bottom of the motion to quash the enhancement.
Cunningham contends that the referenced order effectively quashed the indictment. Consequently, he claims the trial court lacked jurisdiction to enter a conviction against him. Conversely, the State contends that the referenced order contains a clerical error, as Cunningham's motion to quash the enhancement did not seek dismissal of the indictment. The parties thereafter proceeded to trial, and at the sentencing hearing, the State sought an enhanced sentence in the second-degree-felony range, relying on only one prior felony conviction.
Cunningham filed a separate motion to quash the indictment which also was apparently filed June 15, 2015. That motion, however, is based on the "vague and indefinite" nature of the indictment that purportedly failed to "properly place the defendant on notice of the specific dates that the alleged offense of Possession of a Firearm by a Convicted Felon occurred." While the trial court did not enter a written order on this motion, it orally denied the motion to quash the indictment before ruling on the motion to quash the enhancement provision. After Cunningham presented the motion to quash the indictment at the June 15 hearing, the trial court stated, "I'm going to deny the motion to quash." Later in the hearing, the trial court granted Cunningham's objection to the enhancement. --------
We conclude that Rule 44.4 of the Texas Rules of Appellate Procedure governs this situation. That rule provides:
(a) Generally. A court of appeals must not affirm or reverse a judgment or dismiss an appeal if:
(1) the trial court's erroneous action or failure or refusal to act prevents the proper presentation of a case to the court of appeals; and
(2) the trial court can correct its action or failure to act.
(b) Court of Appeals Direction if Error Remediable. If the circumstances described in (a) exist, the court of appeals must direct the trial court to correct the error. The court of appeals will then proceed as if the erroneous action or failure to act had not occurred.TEX. R. APP. P. 44.4. Henery v. State, 364 S.W.3d 915 (Tex. Crim. App. 2012) involved a situation similar to this one. Henery presented a conflict in the record between the trial court's oral denial of a motion to quash the information against Henery and a subsequent written order granting the same motion. Id. at 916. Thereafter, Henery pled guilty, the trial court accepted the plea, and a sixty-day sentence was imposed. Id. at 917. The appellate court held that the trial court lost jurisdiction when the trial court entered its order quashing the indictment, and all actions taken by the trial court after that point were void. Id.
The Texas Court of Criminal Appeals reversed, holding that it should have abated the case to the trial court pursuant to Rule 44.4 to determine if the written order quashing the indictment was a clerical error, or if the trial court intended the written order to control. Id. at 919. This was necessary because the conflict between the trial court's oral denial of the motion to quash and its written order granting the same motion prevented the case from being properly presented to the court of appeals. Id. at 918. The court reasoned that "only the trial court [was] in the position to know whether the grant or denial was intended." Id. at 919 (citing TEX. R. APP. P. 44.4(a)(2)). The court observed that apparently "the written order was signed as the result of a clerical error." Id. However, because there was "no such determination at the trial level, and an appellate court can not presume such," it was "the duty of the court of appeals to abate the case so that the trial court could clarify which actions was intended." Id.
Here, we are presented with a similar conflict in the record—the trial court orally granted the motion to quash the enhancement provision, but its written order purports to dismiss the indictment. We are not free to presume that this was the result of a clerical error. Consequently, we abate this matter to the trial court pursuant to Rule 44.4 of the Texas Rules of Appellate Procedure to clarify which action was intended. See Henery, 364 S.W.3d at 919; Taylor v. State, 247 S.W.3d 223, 224 (Tex. Crim. App. 2008) (abating case to trial court when trial court both granted defendant's motion for new trial and certified defendant's right to appeal); Towery v. State, 262 S.W.3d 586, 591 (Tex. App.—Texarkana 2008, pet. ref'd) (abatement pursuant to Rule 44.4 appropriate in the face of conflicting orders of acquittal and conviction).
We abate this case for a hearing solely to determine whether the trial court intended the oral pronouncement quashing the habitual offender enhancement to control, or whether the trial court intended the written order purporting to quash the indictment to control. If it is determined that the trial court intended that only the habitual offender enhancement was to be quashed, the trial court should correct the erroneous order so that the record speaks the truth. In that event, in accordance with Rule 44.4, this Court will then proceed as if the erroneous action or failure to act had not occurred. See TEX. R. APP. P. 44.4.
The hearing in the trial court shall be conducted within twenty days of the date of this order. The reporter's record of the hearing shall be filed in the form of a supplemental reporter's record within twenty days of the date of the hearing. Any supplemental clerk's record should likewise be filed within twenty days of the date of the hearing.
All appellate timetables are stayed and will resume on our receipt of the supplemental record.
IT IS SO ORDERED.
BY THE COURT Date: August 3, 2016