Opinion
NO. 01-11-00021-CR
04-19-2012
MICHAEL CHARLES EVANS, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 174th District Court
Harris County, Texas
Trial Court Case No. 1259297
MEMORANDUM OPINION
Appellant Michael Charles Evans pleaded guilty to burglary of a habitation without having an agreed punishment recommendation. See TEX. PENAL CODE ANN. § 30.02(a), (c) (West 2011) (establishing offense). The trial court convicted and sentenced him to nine years of imprisonment. In his sole issue on appeal, Evans argues that the trial court pronounced a partially illegal sentence and asks us to strike the allegedly illegal portion of the orally pronounced sentence. We modify the judgment to correct an unrelated error concerning Evans's right of appeal, and we affirm the judgment as modified.
Background
Without having an agreement with the State about its recommendation on punishment, Evans entered a plea of guilty on the charge of burglary of a habitation. At that time, the trial court withheld a finding of guilt until completion of a presentence investigation report. Following Evans's testimony and arguments by counsel on both sides, the trial court orally pronounced the following sentence:
Having pled guilty to the offense of burglary of habitation, having had a full-blown presentence investigation, having read the presentence investigation and the letters, which were provided to me—provided to me today from your grandmother and others, I, at this time, sentence you to nine years in the Institutional Division of Texas Department of Criminal Justice. You will be remanded to the Sheriff so he can obey and carry out the sentence of this Court. You will serve not less than nine years, no more than nine years in the Institutional Division of the Texas Department of Criminal Justice. You are remanded to the Sheriff so he can obey and carry the sentence of this court.The written judgment stated, "Punishment and Place of Confinement: 9 YEARS INSTITUTIONAL DIVISION, TDCJ." Evans filed a notice of appeal on the same day that the judgment was signed.
Analysis
In his sole issue, Evans challenges the legality of the portion of the orally pronounced sentence that he "serve not less than nine years." He does not otherwise challenge the oral pronouncement of sentence, nor does he challenge the written judgment. Evans offers two alternative interpretations of the trial judge's pronouncement that he "serve not less than nine years, no more than nine years." His first interpretation is that the trial judge attempted to pronounce an indeterminate sentence, which he argues would be illegal because an indeterminate sentence's minimum must be the same as the statutory minimum sentence for the offense. The statutory minimum for Evans's offense, a second degree felony, is two years. See TEX. PENAL CODE ANN. § 12.33 (West 2011). Evans's second interpretation is that the trial judge attempted to pronounce a mandatory incarceration sentence of exactly nine years, which he argues would also be illegal because it does not allow for parole or good time credits. Evans argues that regardless of the trial court's intention, the proper remedy is to strike the allegedly "illegal portion" of the oral sentence, that is, the statement that Evans "will serve not less than nine years." Evans does not request any other relief from this court.
The State argues that the oral pronouncement of sentence was legal because it falls within the statutory range. The State alternatively argues that even if the oral pronouncement is somehow erroneous, this court does not need to take any corrective action because Evans's substantial rights have not been prejudiced and Evans will serve the sentence reflected in the written judgment. See TEX. CODE CRIM. PROC. ANN. art. 42.01, § 1 (West 2006) ("The sentence served shall be based on the information contained in the judgment.").
A review of the record does not clarify what the trial judge intended when he orally sentenced Evans to "not less than nine years, no more than nine years." When there is a conflict between the oral pronouncement of sentence and the sentence in the written judgment, the oral pronouncement ordinarily controls. See Thompson v. State, 108 S.W.3d 287, 290 (Tex. Crim. App. 2003). In the event of such a discrepancy, the usual remedy is to reform the written judgment to conform to the sentence that was orally pronounced. Id. "The rationale for this rule is that the imposition of sentence is the crucial moment when all of the parties are physically present at the sentencing hearing and able to hear and respond to the imposition of sentence." Ex parte Madding, 70 S.W.3d 131, 135 (Tex. Crim. App. 2002).
However, when the orally pronounced sentence is illegal and unenforceable, but the sentence in the written judgment is legal and enforceable, Texas courts have recognized an exception to the general rule. In such a case, the written judgment is not reformed to conform to the illegal sentence that was orally pronounced, and the only issue on appeal is whether the variance affects the appellant's substantial rights. See TEX. R. APP. P. 44.2(b); State v. Posey, 300 S.W.3d 23, 34-35 (Tex. App.—Texarkana 2009), aff'd on other grounds, 330 S.W.3d 311 (Tex. Crim. App. 2011); Epps v. State, No. 05-07-00040-CR, 2007 WL 2446546, at *3 (Tex. App.—Dallas Aug. 17, 2007, no pet.) (mem. op., not designated for publication); Jolly v. State, No. 02-06-00386-CR, 2008 WL 2510619, at *5 (Tex. App—Fort Worth June 19, 2008, no pet.) (mem. op., not designated for publication); Tucker v. State, No. 05-02-00616-CR, 2003 WL 42438, at *3 (Tex. App.—Dallas Jan. 7, 2003, pet. ref'd) (not designated for publication); Ribelin v. State, 1 S.W.3d 882, 884-85 & n.2 (Tex. App.—Fort Worth 1999, pet. ref'd). Because the sentence to be served is "based on the information contained in the judgment," see TEX. CODE CRIM. PROC. ANN. art. 42.01, § 1, any variance between an illegal, unenforceable sentence in the oral pronouncement and a legal, enforceable sentence in the written judgment usually does not affect the defendant's substantial rights, and the variance is disregarded. See Posey, 300 S.W.3d at 34-35; Epps, 2007 WL 2446546, at *3; Jolly, 2008 WL 2510619, at *5; Tucker, 2003 WL 42438, at *3; Ribelin, 1 S.W.3d at 884-85 & n.2.
Evans relies heavily on Tufele v. State, 130 S.W.3d 267, 274 (Tex. App.— Houston [14th Dist.] 2004, no pet.), to argue that this court should strike the allegedly illegal portion of the trial court's oral sentence. In Tufele, the trial court's oral pronouncement of sentence ordered that a criminal defendant, who was convicted of shaking a child to death, display photographs of the victim in his prison cell, although the written judgment did not reflect this sentencing requirement. Id. at 269. The court of appeals concluded that this part of the oral pronouncement on punishment, which had no statutory basis, was illegal. Id. at 273-74. Observing that it had "no way of knowing" whether the Texas Department of Criminal Justice was complying with the "illegal portion" of the oral pronouncement of sentence, the court of appeals struck the illegal portion of the oral pronouncement, but it otherwise affirmed the written judgment. Id. at 274.
This case does not present the unique concern resented in Tufele. The trial court in this case, unlike in Tufele, did not orally pronounce a special order on punishment distinct from the sentence's duration. Evans's sentence "shall be based on the information contained in the judgment," notwithstanding the wording of the orally pronounced sentence. See TEX. CODE CRIM. PROC. ANN. art. 42.01, § 1. On appeal, any alleged variance between the oral pronouncement of sentence and the written judgment that does not affect the criminal defendant's substantial rights is disregarded. See TEX. R. APP. P. 44.2(b); Epps, 2007 WL 2446546, at *3; Ribelin, 1 S.W.3d at 885. Assuming, without deciding, that the oral pronouncement of sentence in this case was partially illegal, we disregard the variance because Evans's substantial rights have not been affected.
We overrule Evans's sole issue.
Modification of Judgment
The written judgment of the trial court, under the heading of "special findings or orders," states, "APPEAL WAIVED. NO PERMISSION TO APPEAL GRANTED." The preprinted form containing the plea of guilty, reflecting signatures by Evans, his attorney, the deputy district attorney, the assistant district attorney, and the presiding judge, purports to "waive any right of appeal" that Evans may have. This part of the form suggests a plea bargain and waiver of Evans's right of appeal. See TEX. CODE CRIM. PROC. ANN. art. 1.14(a) (West 2005) (providing that non-capital criminal defendant may waive rights); TEX. CODE CRIM. PROC. ANN. art. 44.02 (West 2006) (providing that defendant may not appeal without trial court's permission if he pleaded guilty pursuant to plea bargain and sentence did not exceed agreed recommendation).
However, the trial court's "Certification of Defendant's Right of Appeal" form has a checked boxed next to preprinted text stating that this "is not a plea - bargain case, and the defendant has the right of appeal." See TEX. R. APP. P. 25.2 (requiring trial court to enter defendant's certification of right of appeal). Because some evidence in the record tends to refute the certification, we must examine it for any defect. See Dears v. State, 154 S.W.3d 610, 615 (Tex. Crim. App. 2005) (holding that "Court of Appeals was obligated to review that record in ascertaining whether the certifications were defective" when "certifications state that these are plea bargain cases, but the record refutes this").
A waiver of appeal is not binding when it is executed before the trial court proceeds to adjudicate guilt, it is not bargained for, and there is no recommended sentence. Ex parte Delaney, 207 S.W.3d 794, 798 (Tex. Crim. App. 2006). In this case, the trial court had not yet adjudicated guilt when Evans signed the waiver. The boilerplate "plea of guilty" form reflects no plea bargain. See Shankle v. State, 119 S.W.3d 808, 813 & n.11 (Tex. Crim. App. 2003) (discussing "two basic kinds" of plea bargains: charge-bargaining and sentence-bargaining). A handwritten notation on the form states that Evans's punishment would be set "without agreed recommendation—defendant to complete PSI." The reporter's record corroborates the absence of an agreed recommendation, insofar the trial judge expressly acknowledged at the opening of the PSI hearing that "[t]here was no agreed recommendation." An agreed recommendation on punishment is essential to deprive a plea-bargaining defendant of his right of appeal under the rules of appellate procedure. See Shankle, 119 S.W.3d at 814; TEX. CODE CRIM. PROC. ANN. art. 44.02; TEX. R. APP. P. 25.2(a)(2). Thus, the record before this court reflects the three factors required to render a waiver of appeal non-binding. See Ex parte Delaney, 207 S.W.3d at 798.
Furthermore, the trial court's certification of the right of appeal presumptively reflects whether the appellant may appeal, because the certification must reflect whether the defendant has a right of appeal but the judgment need not reflect any such finding. See Grice v. State, 162 S.W.3d 641, 645 (Tex. App.— Houston [14th Dist.] 2005, pet. ref'd) (comparing TEX. R. APP. P. 25.2 and TEX. CODE. CRIM. PROC. art. 42.01, § 1 and concluding that stamped indication of waiver of appeal in written judgment was "surplusage"). The State's failure to assert waiver of appeal in this court further indicates that there was no understanding that Evans would waive his right of appeal. See Menefee v. State, 287 S.W.3d 9, 12 n.12 (Tex. Crim. App. 2009) (relying on trial court's certification of defendant's right of appeal, despite signed waiver of appeal, when State failed to raise issue of waiver); Willis v. State, 121 S.W.3d 400, 403 (Tex. Crim. App. 2003) (concluding that record demonstrated appellant's intention to appeal, despite boilerplate waiver on plea-of-guilty form, when State failed to assert waiver in court of appeals).
The parties have not addressed the judgment's special finding or order regarding Evans's right of appeal. Nevertheless, based on our review, we conclude that this portion of the trial court's judgment does not accurately comport with the record. "[A]n appellate court has authority to reform a judgment to include an affirmative finding 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) (citing Asberry v. State, 813 S.W.2d 526, 531 (Tex. App.— Dallas 1991, pet. ref'd)); accord Nolan v. State, 39 S.W.3d 697, 698 (Tex. App. — Houston [1st Dist.] 2001, no pet.) (observing that appellate court has power to correct and reform trial court judgment to make the record speak truth when appellate court has necessary data and information to do so); see also TEX. R. APP. P. 43.2(b). Because the boilerplate waiver of appeal is non-binding, the trial court's certification states that Evans has the right to appeal his conviction, and the State has not argued that Evans waived his right of appeal, the record supports modification of the judgment. Accordingly, we modify the trial court's judgment to strike the special finding or order of "APPEAL WAIVED. NO PERMISSION TO APPEAL GRANTED."
Conclusion
We modify the judgment of the trial court to strike the special finding or order of "APPEAL WAIVED. NO PERMISSION TO APPEAL GRANTED." We affirm the judgment as modified.
Michael Massengale
Justice
Panel consists of Justices Jennings, Massengale, and Huddle. Do not publish. TEX. R. APP. P. 47.2(b).