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Hawthorne v. State

Court of Appeals of Texas, Fifth District, Dallas
Jun 7, 2005
No. 05-04-00325-CR (Tex. App. Jun. 7, 2005)

Opinion

No. 05-04-00325-CR

Opinion Filed June 7, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the 283rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F01-48246-T. Affirm as Modified.

Before Justices BRIDGES, O'NEILL and MAZZANT.


MEMORANDUM OPINION


Deborah Hawthorne appeals the revocation of her community supervision, which was based on a plea bargained conviction. She asserts that the order cumulating the sentence for this offense with a separate offense is defective, rendering the consecutive sentences void. The State requests that we reform the written judgment to correctly reflect the oral judgment pronounced. For the reasons that follow, we reform the judgment and affirm. In January 2001, appellant was charged by indictment with forgery in violation of section 32.21 of the Texas Penal Code. On July 3, 2001, pursuant to the terms of a plea-bargain agreement, appellant pleaded guilty to the forgery charge and true to the enhancement paragraph relating to a prior aggravated armed robbery conviction in Dallas County. The trial judge assessed punishment at ten years in the state penitentiary, probated for five years, and assessed a $500 fine. On July 28, 2003, appellant was convicted of another offense of forgery in Tarrant County and received a sentence of eleven months in the state jail. Based on the Tarrant County conviction, the State moved to revoke appellant's community supervision. At the revokation hearing on March 5, 2004, appellant confirmed that she had been convicted in Tarrant County on July 28, 2003, for forgery and had received an eleven month sentence in the state jail. At the conclusion of the hearing on March 5, 2004, the trial court granted the State's motion and assessed punishment on the forgery conviction at nine years confinement in the penetentiary, to begin "after you complete the time out of Tarranty County." The actual written judgment revoking community supervision ordered that the term of punishment shall run consecutively to the sentence for "aggravated robbery/DW" in Tarrant County for a fifteen year term set to expire on August 6, 2006. This is a clerical error and, under the evidence presented at the revocation hearing, should have referenced the forgery conviction in Tarrant County and eleven month sentence. In one point of error, appellant argues that the trial court erred and abused its discretion in attempting to impose a cumulation order for which no proof was offered connecting appellant to the prior specific offense stated in the judgment. Appellant has not been convicted of armed robbery in Tarrant County and is not serving a term to expire on August 6, 2006. The trial court's right to cumulate sentences is found in rule 42.08 of the Texas Code of Criminal Procedure. When the same defendant has been convicted in two or more cases, judgment and sentence shall be pronounced in each case in the same manner as if there had been one conviction. Tex. Code Crim. Proc. Ann. art. 42.08 (Vernon Supp. 2004-2005). A trial court may order any sentence imposed in a separate trial to be served either concurrently or consecutively ("cumulated"). Id. When the oral pronouncement of sentence and the written judgment vary, the oral pronouncement controls. Ex parte Madding, 70 S.W.3d 131, 135 (Tex.Crim.App. 2002). 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. Id. The record reflects that the trial judge in this case intended for appellant's sentence for the two forgery convictions to run consecutively. Appellant complains that there is no evidence of conviction for the Tarrant County armed robbery case, as there was no Tarrant County armed robbery conviction. But there is sufficient evidence of conviction for the actual Tarrant County forgery case — appellant admitted as true to the conviction in open court. 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. Banks v. State, 708 S.W.2d 460, 461-62 (Tex.Crim.App. 1986). See also Asberry v. State, 813 S.W.2d 526, 529 (Tex.App.-Dallas 1991). We conclude that this court may reform the judgment of the trial court in this case to reflect the court's actual intent. We must now address whether the record provides information sufficient to adequately reform the judgment. 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 occured, (3) the date of the prior conviction, and (4) the term of years assessed in the prior case. Gaston v. State, 63 S.W.3d 893, 899-900 (Tex.App.-Dallas 2001) (citing Ex parte San Migel, 973 S.W.2d 310, 311 (Tex.Crim.App. 1998)). These requirements are not absolutes, and a cumulation order not setting out all of the requirements may, in some circumstances, be valid. Id. (citing Banks, 708 S.W.2d at 461). A cumulation order should be sufficiently specific to allow the Texas Department of Criminal Justice to identify the prior conviction with which the newer conviction is cumulated. Id. (citing Ward v. State, 523 S.W.2d 681, 682-83 (Tex.Crim.App. 1975)). A cumulation order may be valid when it contains fewer than all of the details of the prior conviction if these are sufficient to allow the TDCJ to uniquely identify that conviction. Ex parte March, 423 S.W.2d 916, 918 (Tex.Crim.App. 1968). The cumulation order here incorrectly references appellant's prior conviction. The record, however, provides us with the exact date of conviction, the nature of the conviction, the term imposed, and the county in which appellant was convicted. That information, in turn, is sufficient to enable the TDCJ to ascertain the other enumerated particulars from the Tarrant County District Clerk's office. We conclude there is sufficient data in the record to adequately reform the judgment and support the cumulation order. We modify the judgment of the trial court in cause number F01-48246-T to reflect that the sentence in this cause commence on the date upon which the judgment and sentence of eleven months imposed for forgery in State of Texas vs. Deborah Hawthorne in Tarrant County on July 28, 2003, has ceased to operate. As modified, we affirm the judment of the trial court.


Summaries of

Hawthorne v. State

Court of Appeals of Texas, Fifth District, Dallas
Jun 7, 2005
No. 05-04-00325-CR (Tex. App. Jun. 7, 2005)
Case details for

Hawthorne v. State

Case Details

Full title:DEBORAH HAWTHORNE, Appellant, v. THE STATE OF TEXAS, Appellee

Court:Court of Appeals of Texas, Fifth District, Dallas

Date published: Jun 7, 2005

Citations

No. 05-04-00325-CR (Tex. App. Jun. 7, 2005)