Jammie Celestine v. State

In The Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-07-00577-CR NO. 09-07-00578-CR NO. 09-07-00579-CR ____________________ JAMMIE CELESTINE, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 252nd District Court Jefferson County, Texas Trial Cause Nos. 99671, 99672, and 99680 MEMORANDUM OPINION Pursuant to plea bargain agreements, Jammie Celestine pled guilty to three charges of burglary of a habitation. See Tex. Pen. Code Ann. § 30.02(a)(3) (Vernon 2003). Celestine appeals from the judgments in all three cases: Trial Cause No. 99671, Trial Cause No. 99672, and Trial Cause No. 99680. (1) Because they raise related issues, we consider all three cases in this opinion. We modify the judgments in these causes and affirm them as modified. Background After Celestine's pleas, the trial court found the evidence sufficient to find him guilty, but deferred further proceedings, placed Celestine on community supervision for seven years, and assessed a fine of $500 in each of the three cases. In September 2007, the State filed a motion to revoke Celestine's unadjudicated community supervision in each case. Celestine pled "true" to four violations of the conditions of his community supervision. In each case, the trial court found that Celestine violated the conditions of his community supervision, found Celestine guilty of burglary of a habitation, and assessed punishment. The judgments the trial court signed and entered, however, vary from the trial court's oral pronouncements. In No. 99671, which was the first sentence orally pronounced, the trial court did not order the twenty-year sentence to run consecutive to any other sentence. The judgment, however, contains a cumulation order providing for the No. 99672 sentence to commence when the No. 99671 sentence ends. In No. 99672, the trial court orally pronounced a twenty-year sentence to run consecutive to the No. 99671 sentence. The entered judgment, however, provides for a ten-year sentence and contains no cumulation order. In No. 99680, the trial court orally pronounced a ten-year sentence that was to run consecutive to the No. 99672 sentence. The entered judgment contains a ten-year sentence, but provides that the sentence in No. 99672 shall commence when the sentence in No. 99680 ends. Celestine's original appellate counsel filed an Anders brief in each case and concluded that the appeals were frivolous. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed. 2d 493 (1967). Our review of the record, however, revealed arguable error, and we remanded the cases to the trial court for appointment of new counsel. In briefs filed by his new appellate counsel, Celestine claims the trial court lacked jurisdiction over the cases, attacks the sentencing procedures, and contends that any variance between the oral pronouncement and the written judgment should benefit him. Jurisdiction In issue one of all three cases, Celestine contends that the trial court lacked jurisdiction because the State's First Amended Motions to Revoke Probation had "impossible" filing dates. The "file-stamped" date of each motion was October 32, 2007, and Celestine correctly notes that October has only 31 days. Celestine's entire argument is as follows: The trial court chose to proceed on the State's First Amended Motion to Revoke Probation. The central question is can the court go forward on a motion that is obviously filed on an impossible date? The answer is no. Is the Court's jurisdiction invoked by such motion? Again the answer is found in the negative. Celestine's counsel did not object to the incorrect date at the revocation hearing, nor does Celestine contend that but for his attorney's failure to object, the outcome of the hearing would have been different. Further, Celestine cites no authorities or record references to support his jurisdictional argument as required by Rule 38.1(h) of the Texas Rules of Appellate Procedure. See Bell v. State, 90 S.W.3d 301, 305 (Tex. Crim. App. 2002) ("It is incumbent upon appellant to cite specific legal authority and to provide legal arguments based upon that authority."). The State acknowledges that all three amended motions contain an erroneous "file-stamp" date and argues that the incorrect date is a clerical error. We agree. "A clerical error is one which does not result from judicial reasoning or determination." Ex parte Poe, 751 S.W.2d 873, 876 (Tex. Crim. App. 1988) (citation omitted). Other documents in the record reveal that the erroneous date was a clerical mistake. The pertinent entries on the docket sheets show that the amended motions were filed on October 23, 2007, and the orders attached to the amended motions are dated October 23, 2007, and are signed by the presiding judge. We conclude that the error is clerical and did not deprive the trial court of jurisdiction. Cf. Thorn v. State, 491 S.W.2d 425, 426 (Tex. Crim. App. 1973) (holding that order reciting return of indictment as November 29, 1972, in a case tried on May 26, 1972, contained a non-fatal clerical error when another order and the docket sheet showed the indictment was received on November 29, 1971). Thus, we overrule issue one in all three causes. Sentencing In Celestine's remaining issues in all three cases, he contends that he should serve his sentences concurrently because of the discrepancies between the oral pronouncements and the written judgments. The following chart outlines the various discrepancies: Cause Nos. Oral Pronouncement Judgment 99671 20 years. 20 years. Sentence in 99672 to start when sentence in 99671 ends. 99672 20 years, to run consecutive to 99671. 10 years. No cumulation order. 99680 10 years, to run consecutive to 99672. 10 years. Sentence in 99672 to start when sentence in 99680 ends. Generally, when the oral pronouncement of sentence in open court and the written judgment conflict, the oral pronouncement controls. Thompson v. State, 108 S.W.3d 287, 290 (Tex. Crim. App. 2003); see Taylor v. State, 131 S.W.3d 497, 502 (Tex. Crim. App. 2004) (applying Thompson in a deferred adjudication case). "The solution in those cases in which the oral pronouncement and the written judgment conflict is to reform the written judgment to conform to the sentence that was orally pronounced." Thompson, 108 S.W.3d at 290; see Tex. R. App. P. 43.2(b). Trial Cause No. 99671 Next, we resolve the discrepancies between the oral sentencing hearing and the written judgments in No. 99671. Celestine argues in issue two that the trial court erred in ordering cumulation when the trial court had pronounced no prior sentence. While the trial court orally pronounced a twenty-year sentence and did not order this sentence to run consecutive to any other sentence, the judgment contains a cumulation provision. The State argues that the cumulation language is surplusage. We agree and reform the written judgment in this cause to delete the cumulation language. See Tex. R. App. P. 43.2(b); Thompson, 108 S.W.3d at 290. Trial Cause No. 99672 In No. 99672, the trial court orally pronounced a twenty-year sentence to run consecutive to the No. 99671 sentence. The entered judgment, however, provides for a ten-year sentence and contains no cumulation order. Celestine advances two arguments aimed at reforming the trial court's judgment in Cause No. 99672. Issue two contends that in the absence of a written cumulation order, Celestine's sentence should run concurrently with his sentences in 99671 and 99680. Issue three argues that he should receive the ten-year sentence contained in the written judgment, not the twenty-year sentence pronounced by the trial court. The State concedes that there is no written cumulation order to reform and states: There was no cumulation order entered onto the Adjudication of Guilt. The Order is completely absent. Therefore, the defendant and the Institutional Division have no written notice of a cumulated sentence. There is no variance between the oral pronouncement and a cumulation order and there is thus no cumulation order to reform. The State prays that we consider Celestine's issues "in light of there being no written cumulation order to reform." We agree with the State that there is no written order to reform. See Jagaroo v. State, 180 S.W.3d 793, 801-02 (Tex. App.-Houston [14th Dist.] 2005, pet. ref'd); Perez v. State, 831 S.W.2d 884, 887 (Tex. App.-Houston [14th Dist.] 1992, no pet.). In the absence of a written cumulation order, Celestine's sentence in No. 99672 runs concurrently with his sentence in No. 99671. See Perez, 831 S.W.2d at 887. In issue three, Celestine argues that because the written sentence is ten years rather than the twenty years pronounced by the trial court, he should only be required to serve a ten-year sentence for his conviction in Cause No. 99672. Celestine, however, cites no authority to support his argument as required by the Texas Rules of Appellate procedure. See Tex. R. App. P. 38.1(h). Appellate courts have the authority to modify incorrect judgments when the necessary data and information to do so are available. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.- Dallas 1991, pet. ref'd). As the Texas Court of Criminal Appeals explained, even a judgment of acquittal may be reformed when the defendant was not in fact acquitted. Ex parte George, 913 S.W.2d 523, 526 (Tex. Crim. App. 1995). Generally, the oral pronouncement of a sentence controls if there are variations between the pronouncement and the written judgment, which simply memorializes the pronouncement. Coffey v. State, 979 S.W.2d 326, 328 (Tex. Crim. App. 1998). The orally pronounced sentence is the appealable event. Id. Any subsequent deviation from the orally pronounced sentence, whether a decrease or an increase, does not supersede what was imposed in open court. Id. at 328-29. Thus, because the record of this cause provides the information necessary to reform Celestine's sentence, we reform the judgment's sentencing provision to make it consistent with the trial court's oral pronouncement. Accordingly, we sustain issue two to the extent that it contends Celestine's sentence in No. 99672 should run concurrently with the sentence in No. 99671. We overrule issue three. Trial Cause No. 99680 With respect to No. 99680, Celestine also argues that the cumulation order is erroneous and that he should serve a concurrent rather than a consecutive sentence. The trial court orally pronounced a ten-year sentence in No. 99680 that was to run consecutive to the sentence in No. 99672. While the judgment contains a ten-year sentence, it reverses the cause numbers in the cumulation order and provides that the sentence in No. 99672 shall commence when the sentence in No. 99680 ends. Based on the trial court's oral pronouncement, we conclude that the trial court made a clerical error when it stacked No. 99672 onto No. 99680 in its written order. Because we have the information necessary to modify the cumulation provision, we overrule issue two and reform the judgment in No. 99680 to provide that its sentence shall run consecutively to the sentence in No. 99672. See Tex. R. App. P. 43.2(b); Banks v. State, 708 S.W.2d 460, 461-62 (Tex. Crim. App. 1986). Conclusion We sustain issue two in No. 99672 to the extent that it contends Celestine's sentence in No. 99672 should run concurrently with the sentence in No. 99671. We overrule all of Celestine's remaining issues in all three causes, Trial Cause Nos. 99671, 99672, and 99680. We modify the judgments in the three causes as follows: 1. In Trial Cause No. 99671, we delete the following language from the judgment: Furthermore, the following special findings or orders apply: Cumulation Order (Art. 42.01, Sec 1 (19) CCP): The sentence in Cause No. 99672 shall commence once the sentence in Cause No. 99671, from the 252nd District Court, Jefferson County, Texas, in which the defendant was sentenced to 20 years in prison for the offense of burglary of a habitation, ends and ceases to operate. 2. In Trial Cause No. 99672, under the section entitled "Punishment and Place of Confinement," we delete the number "10" and insert the number "20" in its place. 3. In Trial Cause No. 99680, we delete the following language from the judgment : The sentence in Cause No. 99672 shall commence once the sentence in Cause No. 99680, from the 252nd District Court, Jefferson County, Texas, in which the defendant was sentenced to 10 years in prison for the offense of burglary of a habitation, ends and ceases to operate. In place of the language deleted from the judgment in Trial Cause No. 99680, we insert the following: The sentence in Cause No. 99680 shall commence once the sentence in Cause No. 99672, from the 252nd District Court, Jefferson County, Texas, in which the defendant was sentenced to 20 years in prison for the offense of burglary of a habitation, ends and ceases to operate. Accordingly, as modified, we affirm the trial court's judgments in Trial Cause Nos. 99671, 99672, and 99680. AFFIRMED AS MODIFIED. ____________________________ HOLLIS HORTON Justice Submitted on December 11, 2008 Opinion Delivered March 4, 2009 Do Not Publish Before McKeithen, C.J., Gaultney and Horton, JJ. 1. The respective appellate cause numbers for the cases are: 1) No. 09-07-00577-CR, 2) No. 09-07-00578-CR, and 3) No. 09-07-00579-CR.