Opinion
09-22-00129-CR
05-04-2022
IN RE EDWARD CHARLES HOLLAND
Do Not Publish
Submitted on May 3, 2022
Original Proceeding Criminal District Court of Jefferson County, Texas Trial Cause Nos. 91161, 83949, 88140
Before Golemon, C.J., Horton and Johnson, JJ.
MEMORANDUM OPINION
PER CURIAM
In a petition for a writ of mandamus, Edward Charles Holland contends the cumulation order in the judgment assigned Trial Court Cause Number 91161 is void because the trial court failed to pronounce that his sentence in that cause would begin when the sentences imposed in two other cases, Trial Court Cause Numbers 83949 and 88140, ceased to operate. In the petition, Holland argues the trial court failed to orally pronounce his sentence in Trial Court Cause Number 91161 would begin when his sentences in two preceding cases, assigned Trial Court Cause Numbers 83949 and 88140, ceased to operate, which he says is required. Yet in Holland's petition, he acknowledges that when pronouncing his sentence in Trial Court Cause Number 91161, the trial court said: "This sentence shall run consecutive to your conviction and sentence in Cause N[umber] 83949 for the felony offense of burglary of a habitation out of the Criminal District Court . . . [and] consecutive to your conviction in Cause N[umber] 88140[.]" Yet Holland says the trial court's failure to use the words "shall begin" and "has ceased to operate" when conducting the sentencing hearing in Trial Court Cause Number 91161 voids the cumulation order the trial court included in the written judgment in that cause because the language the trial court used in the hearing doesn't match the language for stacking sentences in the Rule of Criminal Procedure that describes when trial courts may stack a defendant's sentence.
We note that Holland's petition is procedurally defective. See Tex. R. App. P. 52.3 (contents of petition), 52.7 (supporting record). For example, the petition does not include Holland's certification attesting to the fact that he served a copy of the petition on the State, the real party in interest. See Tex. R. App. P. 9.5. We nonetheless look past these deficiencies here since on the face of Holland's petition, we may determine that he has no valid claim to vacate the cumulation order that is the subject of his petition. See Tex. R. App. P. 2.
Even if the language the trial court used when pronouncing sentence varied from the language in the Code of Criminal Procedure provision that governs stacking a defendant's sentence, Holland is simply mistaken about the effect of the differences he complains about to challenge the validity of the stacking order in the trial court's judgment. We presume that when describing what occurred in the sentencing hearing, Holland used the words the trial court used to orally pronounce Holland's sentence. According to Holland's petition, in the sentencing hearing the trial court said:
See id; Williams v. State, 675 S.W.2d 754, 764 (Tex. Crim. App. 1984) (explaining that cumulation orders will be upheld so long as description the trial court provides notifies "both to the defendant and to the Department of Corrections exactly which sentences the instant sentence is cumulated with").
In accordance with the jury's verdict, the court hereby sentences you, Edward Charles Holland to serve 30 years in state prison. This sentence shall run consecutive to your conviction and sentences in Cause Number 83949 for the felony offense of burglary of a habitation out of the Criminal District Court dated February 2nd, '04. Will also run consecutive to your conviction in Cause N[umber] 88140 out of the Criminal District Court; judgment dated February 2nd, '04.
The information recited above allowed Holland and the Texas Department of Criminal Justice to identify the exact sentences on which his conviction in Trial Court Cause Number 91161 was stacked. We conclude the stacking order is not void given the language Holland contends the trial court used in pronouncing his sentence. Stated another way, the language the trial court used complies with the requirements identified by the Court of Criminal Appeals in Williams as to the information required by law for a court to stack the defendant's sentence. Moreover, the details the trial court chose to include in the cumulation order when it reduced its oral pronouncement to writing are not in conflict with the trial court's oral pronouncement of sentence and the variances between the oral pronouncement and the order at most are considered ministerial corrections to Holland's sentence.
See Strahan v. State, 306 S.W.3d 342, 353 (Tex. App.-Fort Worth 2010, pet. ref'd).
Aguilar v. State, 202 S.W.3d 840, 843 (Tex. App.-Waco 2006, pet. ref'd).
For the reasons stated above, Holland's petition for a writ of mandamus, which asks this Court to order the trial court to vacate the cumulation order in its judgment in Trial Court Cause Number 91161 is denied.
PETITION DENIED.