No. 05-03-00442-CR
Opinion Filed August 4, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 363rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F00-50480-HW. Affirmed In Part, Vacated In Part.
Before Justices BRIDGES, FRANCIS, and LANG-MIERS.
BRIDGES, Justice.
Derrel Harper a/k/a Derrall Harper appeals his conviction for possession with intent to deliver pentazocine in an amount less than twenty-eight grams. In two issues, appellant contends the trial court erred by sentencing him outside the punishment range and further erred in reassessing punishment by nunc pro tunc judgment.
Appellant's first appointed attorney filed a brief in which she concluded the appeal was wholly frivolous and without merit. See Anders v. California, 386 U.S. 738 (1967); Jeffery v. State, 903 S.W.2d 776, 779 (Tex. App.-Dallas 1995, no pet.). On initial submission, the Court concluded there was an arguable issue regarding the assessment of punishment.
Background
Appellant entered guilty pleas to this offense and two other drug offenses. The trial court deferred adjudication of appellant's guilt and placed him on community supervision for ten years. During the term of community supervision, appellant was convicted of two new drug offenses. Citing the new convictions, the State filed a motion to proceed with adjudication of appellant's guilt. On March 6, 2003, the trial court adjudicated appellant guilty of the present offense and the other two unadjudicated drug offenses, revoked his community supervision, and assessed punishment at thirty-five years confinement in each case. On July 10, 2003, appellant appeared in court for reassessment of punishment in this case. The trial court explained to appellant that it was reducing his sentence to twenty years because there was no enhancement paragraph on this case. The trial court entered a nunc pro tunc sentencing order but the record does not show entry of an amended judgment. On July 15 or 16, 2003, the trial court entered an amended nunc pro tunc sentencing order further reducing appellant's punishment to two years confinement in a state jail facility. Appellant was not present in court for oral pronouncement of the two-year sentence. The clerk's record thus contains two judgments adjudicating guilt, both dated March 6, 2003. The first judgment assesses punishment at two years confinement in a state jail facility. The second judgment assesses punishment at thirty-five years confinement in the institutional division of the department of criminal justice. Punishment Outside The Range
In his first issue, appellant contends the trial court erred by assessing a thirty-five year sentence that exceeded the maximum punishment for his offense. Appellant was convicted of a state jail felony. See Act of May 27, 1997, 75th Leg., R.S., ch. 745, § 24, 1997 Tex. Gen. Laws 2411, 2443 (amended 2001) (current version at Tex. Health Safety Code Ann. § 481.104(a)(2) (Vernon 2003)); Tex. Health Safety Code Ann. § 481.114(b) (Vernon 2003). The punishment range for a state jail felony is confinement in a state jail facility for not less than 180 days or more than two years and an optional fine not to exceed $10,000. See Tex. Pen. Code Ann. § 12.35 (Vernon 2003). Therefore, the trial court was not authorized to assess punishment at thirty-five years confinement. A sentence that exceeds the maximum punishment is unauthorized and illegal. See Mizell v. State, 119 S.W.3d 804, 806 (Tex.Crim.App. 2003). However, the trial court corrected the unauthorized sentence and entered a new judgment adjudicating guilt. See id. Because the new judgment adjudicating guilt assesses punishment within the range, we conclude appellant's substantial rights were not affected by the sentencing error. See Tex.R.App.P. 44.2(b). In the interest of clarity, we vacate the judgment adjudicating guilt that assesses a thirty-five year sentence. We overrule appellant's first issue. Failure To Orally Pronounce Sentence
In his second issue, appellant contends the trial court erred when it reassessed punishment but failed to orally pronounce the new sentence in appellant's presence. Appellant points out that when there is a conflict between the oral pronouncement of sentence and the written judgment, the oral pronouncement controls. Thus, appellant concludes, his conviction must be reversed because the controlling oral pronouncement in this case is the unenforceable twenty-year sentence. The State concedes the trial court erred in not orally pronouncing the two-year sentence, but the State asserts the error was harmless on the facts of this case. We agree with the State. The trial court must orally pronounce sentence in the defendant's presence. See Taylor v. State, 131 S.W.3d 497, 500 (Tex.Crim.App. 2004). Oral pronouncement is required because it 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). Ordinarily, when there is a variance between the oral pronouncement of sentence and the sentence set forth in the written judgment, the oral pronouncement controls. Coffey v. State, 979 S.W.2d 326, 328 (Tex.Crim.App. 1998); Taylor, 131 S.W.3d at 500. However, when the orally pronounced sentence is outside the punishment range but the sentence in the judgment is within the range, then the court will disregard the variance and enforce the written judgment unless the variance affected the defendant's substantial rights. See Tex.R.App.P. 44.2(b); Ribelin v. State, 1 S.W.3d 882, 885 (Tex. App.-Fort Worth 1999, pet. ref'd). Appellant is not serving the twenty-year sentence. Appellant is serving the two-year sentence set forth in the written judgment. The sentence appellant is actually serving is authorized. Appellant is serving his sentence concurrently with two thirty-five-year sentences assessed in the two drug cases adjudicated at the same time as the present case. Appellant has been assessed a life sentence and a sentence of confinement for twenty years for the drug offenses he committed while on community supervision. Because appellant's sentence was reduced substantially when punishment was reassessed, it is unlikely appellant would have objected to the new sentence. We conclude the variance between the oral pronouncement of punishment and the written judgment did not affect appellant's substantial rights and should be disregarded. See Ribelin, 1 S.W.3d at 885. We overrule appellant's second issue. Conclusion
We vacate the trial court's March 6, 2003 judgment adjudicating guilt that assesses punishment at thirty-five years confinement. We affirm the trial court's March 6, 2003 judgment adjudicating guilt that assesses punishment at two years confinement in the state jail division.