Opinion
No. 06-17-00113-CR
01-31-2018
MICHAEL PATRICK HEALY, SR., Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 188th District Court Gregg County, Texas
Trial Court No. 45,930-A Before Morriss, C.J., Moseley and Burgess, JJ.
MEMORANDUM OPINION
Michael Patrick Healy, Sr., entered an open plea of guilty to indecency with a child by sexual contact and was sentenced to twenty years' incarceration. In a companion case decided of even date herewith, Healy was convicted of attempted indecency with a child by contact and was sentenced to ten years' incarceration. The trial court ordered the sentences to run consecutively. On appeal, Healy contends that the trial court erred in imposing his sentence under a non-existent section of the Texas Penal Code, rendering the judgment void, and erred in cumulating his sentences. Because (1) the judgment was not rendered void due to a typographical error, we modify the judgment to reflect the correct statute for the offense and to reflect the correct offense date. Further, because (2) Healy's sentences were improperly cumulated, we modify the judgment to provide that the sentences will run concurrently. We affirm the judgment as modified.
See Healy v. State, cause number 06-17-00111-CR.
(1) The Judgment Was Not Rendered Void Due to a Typographical Error
The judgment indicates that Healy was convicted of indecency with a child by sexual contact, for which he received a twenty-year sentence. The statute for the offense listed in the judgment is "21.00(a)(1) Penal Code." Healy maintains that, because no such Section of the Penal Code exists, the judgment is void. We disagree.
At the plea hearing, the trial court informed Healy that he was charged with indecency with a child by sexual contact. After Healy indicated that he understood the charge and was properly admonished, he entered his guilty plea, which was received by the court. Following the trial's punishment phase, Healy was sentenced to twenty years' confinement:
In 45,390-A, based on your guilty plea and now based on the evidence, I'm going to find you guilty under Count III of the Indictment of the offense of indecency with a child by sexual contact. I'm going to sentence you to 20 years['] confinement, Institutional Division Texas Department of Criminal Justice, give your credit for all the time that you've been in the county jail as required by law.Clearly, Healy pled guilty to the offense of indecency with a child by sexual contact, was found guilty of that offense, and was sentenced to twenty years' incarceration for that offense. The judgment, however, incorrectly lists the statute for the offense, apparently due to a typographical error.
The Texas Rules of Appellate Procedure give this Court authority to modify judgments to correct errors and make the record speak the truth. TEX. R. APP. P. 43.2(b); French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992); Rhoten v. State, 299 S.W.3d 349, 356 (Tex. App.—Texarkana 2009, no pet.). Consequently, we modify the judgment to reflect the correct statute for the offense of indecency with a child by sexual contact as Section 21.11(a)(1) of the Texas Penal Code. See TEX. PENAL CODE ANN. § 21.11(a)(1) (West Supp. 2017).
Furthermore, though not contested on appeal, the judgment of conviction lists the offense date as "1/1/1987." This date pertains to count I of the indictment, which was abandoned by the State. Count III of the indictment, the count on which Healy was convicted, alleged an offense date of January 1, 1992. Healy pled guilty to count III of the indictment, and he was convicted of the offense as listed and described therein. We, therefore, further modify the judgment to reflect the correct offense date as January 1, 1992.
The State alleged four different counts of indecency with a child. At trial, the State abandoned counts I, II, and IV and accepted Healy's guilty plea to count III.
The State introduced, without objection, its stipulation of evidence. That stipulation includes Healy's judicial confession that the offense of which he was convicted happened on or about January 1, 1992.
(2) Healy's Sentences Were Improperly Cumulated
Healy contends that the trial court erred by cumulating his sentences. In support of this contention, Healy relies on Section 3.03(a) of the Texas Penal Code. That section provides,
(a) When the accused is found guilty of more than one offense arising out of the same criminal episode prosecuted in a single criminal action, a sentence for each offense for which he has been found guilty shall be pronounced. Except as provided by Subsection (b), the sentences shall run concurrently.TEX. PENAL CODE ANN. § 3.03(a) (West Supp. 2017). Healy maintains that the offenses of which he was convicted were part of the same criminal episode, see TEX. PENAL CODE ANN. § 3.01 (West 2011), and were not tried separately to completion. Consequently, he contends that the trial court erred in cumulating the sentences. See Robbins v. State, 914 S.W.2d 582, 583-84 (Tex. Crim. App. 1996); Jackson v. State, 157 S.W.3d 514, 516 (Tex. App.—Texarkana 2005, no pet.).
The Penal Code defines "criminal episode" as "the commission of two or more offenses, regardless of whether the harm is directed toward or inflicted upon more than one person or item of property, under the following circumstances:
(1) the offenses are committed pursuant to the same transaction or pursuant to two or more transactions that are connected or constitute a common scheme or plan; orTEX. PENAL CODE ANN. § 3.01.
(2) the offenses are the repeated commission of the same or similar offenses."
Because it claims that Healy's offenses arose under Section 21.11 of the Texas Penal Code and the victim was younger than seventeen years of age at the time of the commission of the offenses in question, the State contends that Section 3.03(b)(2)(A) applies. That section provides:
(b) If the accused is found guilty of more than one offense arising out of the same criminal episode, the sentences may run concurrently or consecutively if each sentence is for a conviction of:
TEX. PENAL CODE ANN. § 3.03(b)(2)(A) (West Supp. 2017). Because we find that Section 3.03(b)(2)(A) does not apply in this case, Healy's sentences were improperly cumulated.. . . .
(2) an offense:
(A) under Section 33.021 or an offense under Section 21.02, 21.11, 22.011, 22.021, 25.02, or 43.25 committed against a victim younger than 17 years of age at the time of the commission of the offense regardless of whether the accused is convicted of violations of the same section more than once or is convicted of violations of more than one section;
The trial court stacked Healy's sentence for indecency with a child by sexual contact with his sentence for attempted indecency with a child, the conviction which he appeals in our companion case. The Texas Court of Criminal Appeals has determined that a sentence for an attempted offense does not qualify as a stackable offense. Parfait v. State, 120 S.W.3d 348, 349-50 (Tex. Crim. App. 2003).
In Parfait, the defendant was convicted of indecency with a child by exposure and attempted aggravated sexual assault of a child. Id. at 349. The trial court ordered the sentences to run consecutively, and the appellate court affirmed the conviction. In concluding that the appellate court erred in ruling that the trial court had discretion to cumulate the sentences, the Texas Court of Criminal Appeals explained,
Section 15.01 of the Penal Code governs attempted offenses. But, section 3.03(b)(2)(A) does not include section 15.01 in the list of offenses for which sentences may run consecutively. If our Legislature had intended for the statute to include attempted offenses, it could have easily added the words "or a conviction for an attempted offense of these penal code provisions under section 15.01." But, it did not do so, and it is not for us to add or subtract to that which the Legislature has expressed.Id. at 350 (footnotes omitted). The court further explained that, when "a person is found guilty of an attempted offense, his conviction is not under both section 15.01 and the underlying penal code provision, and so Section 3.03(b)(2)(A) does not include attempted offenses." Id. at 351.
Here, Healy was convicted in our companion case of attempted indecency with a child, a Section 15.01 offense. See TEX. PENAL CODE ANN. § 15.01 (West 2011). Because Section 3.03(b)(2)(A) does not include Section 15.01 in the list of offenses for which sentences may run consecutively, Healy's sentences were improperly cumulated. Accordingly, we modify the judgment by deleting the language cumulating the sentences.
In summary, we modify the judgment (1) to reflect the correct statute for the offense as Section 21.11(a)(1) of the Texas Penal Code, (2) to reflect the correct offense date of January 1, 1992, and (3) by deleting the language cumulating the sentences.
We affirm the trial court's judgment, as modified.
Josh R. Morriss, III
Chief Justice Date Submitted: January 24, 2018
Date Decided: January 31, 2018 Do Not Publish