Opinion
No. 05-19-00622-CR
02-26-2020
COURTNEY ALAN SMITH, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 2 Dallas County, Texas
Trial Court Cause No. F-1845164-I
MEMORANDUM OPINION
Before Justices Bridges, Whitehill, and Nowell
Opinion by Justice Nowell
Courtney Alan Smith appeals the trial court's judgment revoking his community supervision. In two issues, appellant asserts: (1) the oral pronouncement of sentencing was ambiguous and, therefore, the case should be remanded for a new sentencing hearing; and (2) the trial court's judgment incorrectly shows which allegations the court found to be true. We modify the trial court's judgment and affirm as modified.
In his first issue, appellant argues the trial court's pronouncement of sentence was ambiguous and, thus, he is entitled to a new sentencing hearing. After hearing testimony on the State's motion to revoke, the trial court found five allegations true (A, A, Q, R, and S). Appellant then testified:
Q. And the judge has found certain allegations in the motion to adjudicate your guilt true. Did you understand that that's what just happened?
A. Yeah.After appellant testified, his counsel informed the trial court: "So we would ask the Court to revoke his probation, adjudicate his guilt, would request sentencing under Article 12.44(a), or, in the alternative, six months in state jail." The State asked that probation be continued or, in the alternative, "if jail sentence is going to be considered that that would consider anywhere between six months to at least a year in the state jail."
Q. So at this time what's going on is, the judge has to decide essentially what to do with you, whether to continue you on probation or whether to send you to the state jail. Is that - - or sentence you to some sort of time. Is that your understanding of what we're doing right now?
A. Yes.
Q. Now, is it your desire to be continued on probation?
A. No.
. . .
Q. And so are you asking the judge to continue you on probation or are you asking the judge to revoke your probation, essentially?
A. I'm asking for her to revoke.
Q. And are you asking the Judge for the minimum amount of time under Article 12.44(a)?
A. Yes.
Q. And if she's not willing to do that, you understand her only other course of action is to send you to the state jail?
A. Yes.
Section 12.44(a) of the penal code states: "A court may punish a defendant who is convicted of a state jail felony by imposing the confinement permissible as punishment for a Class A misdemeanor if, after considering the gravity and circumstances of the felony committed and the history, character, and rehabilitative needs of the defendant, the court finds that such punishment would best serve the ends of justice." TEX. PEN. CODE § 12.44 (a).
The trial court announced it would "sentence you to 662 days in a state jail facility." However, when imposing the sentence, the trial court stated: "It is the order, judgment and decree of this Court that after finding you guilty of possession of a controlled substance, I'm sentencing you to 662 days in the county jail." The trial court's judgment states the punishment and place of confinement as: "662 Days, State Jail Division, TDCJ."
Appellant argues the contradictory oral pronouncements—one that he would serve his sentence in a state jail facility and another that he would serve his sentence in a county jail—requires a new sentencing hearing. We disagree.
"The judgment, including the sentence assessed, is merely the written declaration and embodiment of that oral pronouncement." Taylor v. State, 131 S.W.3d 497, 500 (Tex. Crim. App. 2004). "When there is a conflict between the oral pronouncement of sentence and the sentence in the written judgment, the oral pronouncement controls." Id. If, however, the oral pronouncement is merely ambiguous, the punishment verdict, the court's pronouncement, and the written judgment should be read together in an effort to resolve the ambiguity. See Johnson v. State, No. 05-18-01230-CR, 2019 WL 6317866, at *2 (Tex. App.—Dallas Nov. 26, 2019, no pet.) (mem. op., not designated for publication); Cazares v. State, No. 05-15-00231-CR, 2016 WL 3144274, at *2 (Tex. App.—Dallas June 6, 2016, no pet.) (mem. op., not designated for publication) (although trial court omitted fine when orally pronouncing sentence, when jury's verdict, oral pronouncement, and written judgment are read together, ambiguity in oral pronouncement is resolved to include the fine); Sparks v. State, Nos. 05-14-00629-CR & 05-14-00630-CR, 2015 WL 2250242, at *2 (Tex. App.—Dallas May 12, 2015, no pet.) (mem. op., not designated for publication) (although trial court mistakenly referenced wrong case in imposing first of appellant's two sentences, record as a whole showed trial court's intended sentences and resolved any ambiguity in court's oral pronouncement). The context of the trial court's utterances should also be considered. Sparks, 2015 WL 2250242, at *2.
Appellant asked the trial court for "the minimum amount of time under Article 12.44(a)" and understood that if he did not receive what he requested then the trial court's "only other course of action is to send you to the state jail." Pursuant to section 12.44(a) of the penal code, a trial court can punish a defendant "who is convicted of a state jail felony by imposing the confinement permissible as punishment for a Class A misdemeanor if, after considering the gravity and circumstances of the felony committed and the history, character, and rehabilitative needs of the defendant, the court finds that such punishment would best serve the ends of justice." TEX. PENAL CODE § 12.44. An individual guilty of a Class A misdemeanor shall be punished by a fine not to exceed $4,000, "confinement in jail for a term not to exceed one year," or both the fine and confinement. TEX. PENAL CODE § 12.21. The trial court sentenced appellant to 662 days' incarceration, which is a term that exceeds one year. Therefore, it is clear the trial court did not exercise its authority under section 12.44(a). Instead, after being asked by both defense counsel and the State to sentence appellant to a term in the state jail, the trial court announced it was going to "sentence you to 662 days in a state jail facility." While the trial judge then misspoke when pronouncing the sentence and used the term "county jail," when we read the hearing, oral pronouncement, and written judgment together, they show the trial court imposed a sentence of 662 days in the state jail. Thus, the totality of the record resolves any ambiguity in the pronouncement of sentence. We overrule appellant's first issue.
In his second issue, appellant asserts the trial court's judgment incorrectly reflects which allegations the court found to be true and he requests we modify the judgment. The State agrees. Appellate courts may modify a trial court's judgment and affirm it as modified. See TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993). This Court "has the power to correct and reform the judgment of the court below to make the record speak the truth when it has the necessary data and information to do so." Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—Dallas 1991, writ ref'd). Appellate courts may reform trial court judgments where "the evidence necessary to correct the judgment appears in the record." Id. If a clerical error in the trial court's judgment is brought to our attention, we have a "mandatory duty" to correct it. Id.
The judgment adjudicating guilt states: "While on deferred adjudication community supervision, Defendant violated the conditions of community supervision, as set out in the State's AMENDED Motion to Adjudicate Guilt as follows: A,A,A,H,J,K,Q,R,S." The judgment continues: "Accordingly, the Court GRANTS the State's Motion to Adjudicate. FINDING that the Defendant committed the offenses indicated above, the Court ADJUDGES Defendant GUILTY of the offense." However, at the hearing, the trial court found the allegations A, Q, R, and S true; it found the allegations H, J, K, and N not true. Because the State's amended motion to revoke included three separate allegations labeled "A" and the trial court did not make a finding as to which of these allegations it found to be true, we ordered the trial court to file a corrected judgment showing which of the State's allegation(s) labeled "A" it found to be true. The trial court's amended judgment shows the trial court found the following allegations labeled "A" to be true:
a. The Defendant, Courtney Alan Smith, violated the laws of the State of Texas, in that on or about 3/1/2019 in Dallas County, Texas did unlawfully, knowingly and intentionally: commit the offense of Resist Arrest.These findings are supported by evidence in the record.
a. The Defendant, Courtney Alan Smith, violated the laws of the State of Texas, in that on or about 3/1/2019 in Dallas County, Texas did unlawfully, knowingly and intentionally: commit the offense of Evade Arrest/Det.
Because we have the necessary information, we modify the judgment to show the trial court found appellant violated the following conditions of community supervision as set out in the State's amended motion to adjudicate guilt: A (resisting arrest), A (evading arrest or detention), Q, R, and S. We further modify the judgment to show appellant did not violate the following terms of community supervision as set out in the State's amended motion to adjudicate guilt: A (criminal trespass), H, J, K, and N.
We modify the trial court's judgment and affirm as modified.
/Erin A. Nowell/
ERIN A. NOWELL
JUSTICE Do Not Publish
TEX. R. APP. P. 47.2(b)
190622F.U05
JUDGMENT
On Appeal from the Criminal District Court No. 2, Dallas County, Texas
Trial Court Cause No. F-1845164-1.
Opinion delivered by Justice Nowell. Justices Bridges and Whitehill participating.
Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED as follows:
We DELETE the sentence: While on deferred adjudication community supervision, Defendant violated the conditions of community supervision, as set out in the State's AMENDED Motion to Adjudicate Guilt, as follows: A,A,H,J,K,N,Q,R,S.
We ADD the following sentences: While on deferred adjudication community supervision, Defendant violated the following conditions of community supervision, as set out in the State's AMENDED Motion to Adjudicate Guilt: A (resisting arrest), A (evading arrest or detention), Q, R, and S. The Defendant did not violate the following conditions of community supervision, as set out in the State's AMENDED Motion to Adjudicate Guilt: A (criminal trespass), H, J, K, and N. As REFORMED, the judgment is AFFIRMED. Judgment entered this 26th day of February, 2020.