Opinion
No. 06-20-00081-CR
12-21-2020
ALICIA RAINE SPENCER, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 336th District Court Fannin County, Texas
Trial Court No. CR-19-26955 Before Morriss, C.J., Burgess and Stevens, JJ.
MEMORANDUM OPINION
Alicia Raine Spencer pled guilty to possession of less than one gram of methamphetamine within a drug-free zone, a third-degree felony, and was placed on deferred adjudication community supervision for five years pursuant to a plea-bargain agreement with the State. See TEX. HEALTH & SAFETY CODE ANN. § 481.134(d). After the trial court found that she failed to comply with the terms and conditions of her community supervision, it adjudicated Spencer's guilt and sentenced her to three and one-half years' confinement. The trial court also ordered that Spencer's sentence be served consecutively with the sentence in our companion cause number 06-20-00080-CR.
In companion cause number 06-20-00080-CR, Spencer also appeals her conviction for credit or debit card abuse of an elderly individual, a third-degree felony. See TEX. PENAL CODE ANN. § 32.31(b), (d).
On appeal, Spencer argues (1) that her counsel rendered ineffective assistance when she failed to object to hearsay statements about her drug and alcohol use at the revocation hearing and (2) that the trial court erred by ordering her sentence to run consecutively with the sentence imposed in cause number 06-20-00080-CR. We addressed these issues in our opinion of this date in Spencer's appeal in companion cause number 06-20-00080-CR. For the reasons stated therein, we conclude, here, that Spencer was not prejudiced by any alleged ineffective assistance and that the trial court properly ran her sentences consecutively.
Spencer also argues that the trial court erred by failing to affix her thumbprint to the judgment, in violation of Articles 42.01 and 38.33 of the Texas Code of Criminal Procedure. However, we find that the trial court complied with Articles 42.01 and 38.33.
Even though the judgment contained Spencer's state identification number, she also argued that the judgment did not contain any identifying information other than her name.
Article 42.01 states, "The judgment shall reflect . . . [t]he defendant's thumbprint taken in accordance with Article 38.33." TEX. CODE CRIM. PROC. ANN. art. 42.01, § 1(23). Article 38.33 states, "The court shall order that a defendant who is convicted of a felony or a misdemeanor offense that is punishable by confinement in jail have a thumbprint of the defendant's right thumb rolled legibly on the judgment or the docket sheet in the case." TEX. CODE CRIM. PROC. ANN. art. 38.33, § 1. The judgment adjudicating Spencer's guilt does not contain her thumbprint in the body of the judgment. As a result, Spencer's prayer for relief asks this Court to remand the judgment to allow the trial court to correct the defect.
The State argues that Spencer's thumbprint was taken on the day of sentencing before the judgment was signed and is affixed to the judgment as reflected in a supplemental clerk's record. We agree.
The judgment, signed on June 17, 2020, shows that Spencer was sentenced on May 28, 2020. The supplemental clerk's record contains a "CLERK'S CERTIFICATION FINGER [SIC] PRINT ON FELONY CASE" form showing a rolled right thumbprint taken on May 28. The form was signed by a "Matt Abbott" of the "Classification" Department or Office. While the document does not contain the clerk's signature, it contains language stating "I, Nancy Young, District Clerk in and for Fannin County, Texas[,] do certify the foregoing is the Thumb Print of the Defendant's Right Hand in the above and numbered cause." The cause number on the document matches the cause number on the judgment and appears directly underneath the judgment in the supplemental clerk's record. We recognize that no current authority suggests that substantial compliance with Articles 42.01 and 38.33 is sufficient. Even so, we find that the supplemental clerk's record shows actual compliance because the "CLERK'S CERTIFICATION FINGER [SIC] PRINT ON FELONY CASE" page was affixed to the judgment, as intended when the print was taken. As a result, we overrule this point of error.
We affirm the trial court's judgment.
Josh R. Morriss, III
Chief Justice Date Submitted: December 7, 2020
Date Decided: December 21, 2020 Do Not Publish