Opinion
No. 05-05-00628-CR
Opinion issued May 31, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 283rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F04-41096-T. Affirmed as modified.
Before Justices MORRIS, O'NEILL, and MAZZANT.
OPINION
Jason Wayne Hawkins appeals his conviction for aggravated sexual assault of a child and sixty-year prison sentence. In two issues, he claims the cumulation order is insufficient to link him to the prior conviction and should be set aside and that the conviction should be reversed because notes from the jury, which are essential to his appeal, have either been lost or destroyed. As modified, we affirm the trial court's judgment.
Factual Background
Appellant was indicted in three cases: aggravated sexual assault of a child under the age of fourteen, cause number F04-41612-T; aggravated sexual assault of a child under the age of fourteen, cause number F04-41096; and indecency with a child, cause number F04-41097. The latter two cases were tried together. After hearing the evidence, the jury found appellant guilty in both cases. In the indecency case, the jury set punishment at five years in prison and recommended appellant be placed on community supervision. In the aggravated sexual assault case, the jurors assessed punishment at sixty years in prison. At the State's request, the trial court ordered the sixty-year sentence in the aggravated sexual assault case cumulated with a prior conviction for aggravated sexual assault of a child in cause number F04-41612-T. This appeal concerns only the conviction for aggravated sexual assault in cause number F04-41096.Discussion
In his first issue, appellant claims the cumulation order is insufficient to link him to the prior conviction and should be set aside. The State argues that the record contains sufficient evidence to prove the prior allegation and asks us to modify the cumulation order and affirm the judgment as modified. We agree with the State. Article 42.08(a) of the Texas Code of Criminal Procedure governs the cumulation of sentences. Tex. Code Crim. Proc. Ann. art. 42.08(a) (Vernon Supp. 2004-05). In order to be eligible for cumulative sentencing, a defendant must have been convicted in two or more cases and the sentence in the earlier case or cases must not have been fully served. See Miller v. State, 33 S.W.3d 257, 261 (Tex.Crim.App. 2000). If a defendant has not previously been convicted as required by the statute, then the trial judge does not have the discretion or authority to cumulate the sentences. Id. Only when the record contains some evidence that links the defendant to the prior convictions is the trial judge's authority under 42.08(a) triggered. Id. Thus, the record must support the trial judge's exercise of discretion. Id. A cumulation order should contain (1) the cause number of the prior conviction, (2) the correct name of the court in which the prior conviction occurred, (3) the date of the prior conviction, and (4) the term of years assessed in the prior case. Ex parte San Migel, 973 S.W.2d 310, 311 (Tex.Crim.App. 1998); Gaston v. State, 63 S.W.3d 893, 899 (Tex.App.-Dallas 2001, no pet.). Some cases include a fifth criteria: recommending the order also show the nature of the conviction. Gaston, 63 S.W.3d at 899. These requirements are not absolutes, however, and a cumulation order not setting out all of the requirements may, in some circumstances, be valid. Id. A cumulation order should be sufficiently specific to allow the Texas Department of Criminal Justice (TDCJ) to identify the prior conviction with which the newer conviction is cumulated. Id. The court of criminal appeals has held that the written sentence could be reformed to reflect the record and to include requisite information for cumulation of sentence when the appellate court has the necessary data and evidence before it. See Banks v. State, 708 S.W.2d 460, 461-62 (Tex.Crim.App. 1986). The cumulation order in the present case reads as follows: "The sentence in this cause to begin once the sentence for cause F-0441612-T ends and ceases to operate." The order does not mention the name of the court, the date of conviction, the years of punishment assessed, or the nature of the conviction. The cumulation order, however, specifies the cause number of the prior conviction. Furthermore, the record includes the reporter's record from cause number F04-41612-T, which was admitted during the punishment phase of appellant's trial. The reporter's record from cause F04-41612-T provides us with the name of the court, the precise date of conviction, the nature of the conviction, the sentence imposed, and the county in which appellant was convicted. Citing Turner v. State, 733 S.W.2d 218, 219 (Tex.Crim.App. 1987), appellant contends that the transcript alone is insufficient to establish the necessary link. The essential holding in Turner was the record on appeal failed to reflect the proper evidence of the prior conviction offered, as well as the lack of evidence identifying the defendant as the person previously convicted. See id. at 221. In the present case, by contrast, the record includes the complete reporter's record of the prior case, and the cumulation order identifies the cause number of the prior conviction. See Gaston, 63 S.W.3d at 901 ("We do not condone the lack of specificity in the cumulation order here. But we conclude that, given the assignment of unique case numbers in Dallas County, the TDCJ will be able to identify correctly the prior conviction in Dallas County for cumulation."). We therefore conclude there is sufficient information in this record to support the trial court's cumulation order. We further conclude this court has the necessary information in the record to reform the judgment of the trial court to reflect the court's actual intent. We modify the judgment of the trial court in cause number F04-41096-T to reflect the sentence in this cause shall commence once the sentence in cause number F04-41612-T, from the 283rd Judicial District Court, Dallas County, Texas, in which the defendant was sentenced to fifty-two years in prison for the offense of aggravated sexual assault of a child, ends and ceases to operate. We overrule appellant's first issue. In his second issue, appellant contends the conviction should be reversed because notes from the jury, which are essential to his appeal, have either been lost or destroyed. Appellant relies on rule 34.6(f) of the Texas Rules of Appellate Procedure, which provides that an appellant is entitled to a new trial when (1) he timely requested a reporter's record, (2) a significant portion of the reporter's record was lost or destroyed through no fault of appellant, (3) the lost portion of the reporter's record is necessary to the resolution of the appeal, and (4) the parties cannot agree on a complete reporter's record. Tex.R.App.P. 34.6(f). Obtaining a new trial under rule 34.6(f) is conditioned upon a showing of harm. Issac v. State, 989 S.W.2d 754, 757 (Tex.Crim.App. 1999); Nejnaoui v. State, 44 S.W.3d 111, 114-15 (Tex.App.-Houston [14th Dist.] 2001, pet. denied); Gaston, 63 S.W.3d at 899. Furthermore, one does not suffer harm unless the missing portions of the record are necessary to the resolution of the appeal. Issac, 989 S.W.2d at 757. In the present case, appellant argues the record does not contain one or more notes from the jury which reflect the jury's difficulty in reaching a verdict in the aggravated sexual assault case. Appellant claims these notes are essential to his appeal because without them it cannot be determined if any of the notes were intended as an informal verdict of acquittal on the issue of aggravated sexual assault or whether they were communications regarding the jury's progress. The record shows that, while the jury was deliberating guilt in the two cases, the trial court received two or more notes from the jury which prompted the following exchange between the court and the jury:THE COURT: All right. Mr. Broadway?
PRESIDING JUROR: Yes.
THE COURT: You are the foreman?
PRESIDING JUROR: Yes, sir.
THE COURT: I'm sorry. Keep your seat.
PRESIDING JUROR: Okay.
THE COURT: Mr. Broadway, I need to talk to you about some of the notes you have sent me. The last note you sent me was that you had reached a verdict, and I don't want to know any figures like you put in the note. I just want to know — you said you were deadlocked on one of the cases and you have reached a verdict on the other case?
PRESIDING JUROR: Yes, Your Honor.
THE COURT: Have you made any progress on the other case that you were deadlocked in?
PRESIDING JUROR: No.
THE COURT: All right. Do you feel like any further deliberations in that case would result in a verdict or do you feel like that you're going to end up hopelessly deadlocked in that matter? In other words, you cannot reach a verdict? I'm going to ask every member of the jury the same question, so I'm just asking your personal opinion.
PRESIDING JUROR: I think — my personal opinion, I think that probably with some further deliberations, but honestly I really don't think so because some jurors are kind of
THE COURT: All right. Every member of the jury that believes that that [sic] with further deliberations in that case, and I believe that is the aggravated sexual assault case, will not result in a verdict, raise your right hand. Does everybody believe that you can continue deliberating and reach a verdict? Maybe I'm not making myself clear.
THE COURT: How many of you believe that you can go back and continue your deliberations and reach a verdict one way or the other in the aggravated assault case? How many of you agree you can do that? All right. How many of you think you cannot do that?All right. I'm going to send you back and let you try again, but you — if you can't, if you get back in there and one way or another and cannot come to a unanimous verdict, send me a note and let me know. But as long as you think you are making progress, I'm going to let you continue to deliberate. All right. After the jury left the courtroom, defense counsel moved for a mistrial:
It is my understanding from looking at the people that raised their hand in response to the judge's question, I think about six raised their hand about [sic] could reach a verdict and about six raised their hand about [sic] could not reach a verdict. I think that that number of hands either way, plus the testimony from the jury foreman that he did not think they could reach a verdict, we believe that is sufficient amount of evidence to ask this Court for a mistrial and we would so move on the aggravated sexual assault case. We would so move.The trial court denied defense counsel's oral motion for a mistrial, and the jury subsequently returned with verdicts of guilty in both cases. There is no indication in the record of any additional notes or communications from the jury. Appellant argues that, without the actual jury notes, there is no way of knowing whether the jury reached an informal verdict of acquittal. The rule, however, is that jury notes must be "plainly intended as an acquittal" before they can be considered an informal verdict. Antwine v. State, 572 S.W.2d 541, 543 (Tex.Crim.App. 1978). In the present case, the record shows only that the jury was deadlocked for a time in the aggravated sexual assault case. Although the record suggests jury notes were submitted, the notes are not part of the record. Therefore, appellant has neither met his burden of showing that the missing notes are necessary to resolve this appeal, nor that he is harmed by their absence from the record. Absent a showing of harm, we cannot say the missing notes require a reversal of appellant's conviction. See Nejnaoui, 44 S.W.3d at 114-15; Gaston, 63 S.W.3d at 899. Appellant also claims the record indicates testimony was read back to the jury. Without knowing the precise wording of the jury notes, appellant contends it is impossible to determine whether this was done in error. However, there is nothing in the record to suggest that any testimony was read back to the jurors. Appellant's only support for this contention is a letter from the court reporter which is not part of the record and cannot be considered by this court. See Whitehead v. State, 130 S.W.3d 866, 872 (Tex.Crim.App. 2004) (appellate court may not consider factual allegations that are outside of the record, and a party cannot circumvent this prohibition by submitting an affidavit for the first time on appeal); Ramirez v. State, 104 S.W.3d 549, 551 n. 9 (Tex.Crim.App. 2003) (appellate record cannot be supplemented with evidence not introduced during trial); Gabriel v. State, 973 S.W.2d 715, 719 (Tex.App.-Waco 1998, no pet.) (letter attached to appellate brief not part of record). Accordingly, appellant's second issue is overruled. As modified, we affirm the trial court's judgment.