Gary Allan Seals v. State

Order filed November 16, 2006 Order filed November 16, 2006 In The Eleventh Court of Appeals ____________ No. 11-05-00009-CR __________ GARY ALLAN SEALS, Appellant V. STATE OF TEXAS, Appellee On Appeal from the 42nd District Court Taylor County, Texas Trial Court Cause No. 21,277-A O R D E R This court originally affirmed the conviction in an unpublished opinion on November 17, 2005. Gary Allan Seals=s petition for writ of habeas corpus seeking to file an out-of-time petition for discretionary review was granted, and Seals has now filed a petition for discretionary review in this court. Pursuant to Tex. R. App. P. 50, our opinion and judgment dated November 17, 2005, are withdrawn, and our opinion and judgment dated November 16, 2006, are substituted therefor. Seals=s petition for discretionary review filed in this court on October 25, 2006, is dismissed by operation of law. Rule 50. November 16, 2006 PER CURIAM Do not publish. See Tex. R. App. P. 47.2(b). Panel consists of: Wright, C.J., McCall, J., and Strange, J. Opinion filed November 16, 2006 In The Eleventh Court of Appeals ____________ No. 11-05-00009-CR __________ GARY ALLAN SEALS, Appellant V. STATE OF TEXAS, Appellee On Appeal from the 42nd District Court Taylor County, Texas Trial Court Cause No. 21,277-A O P I N I O N   P U R S U A N T   T O Tex. R. App. P. 50 The jury convicted Gary Allan Seals of burglary of a building. The trial court found both enhancement allegations to be true and sentenced appellant to confinement for fifteen years. We affirm. In both his petition for discretionary review and his brief on appeal, appellant raises challenges concerning only the punishment phase of the trial. Appellant argues that the trial court erred by admitting evidence concerning one of his prior convictions and by improperly enhancing the range of punishment. There is no challenge to the sufficiency of the evidence or to the conviction itself. The record reflects that appellant entered one of the Texas Health and Human Services Commission=s warehouses and removed a mobile air compressor unit without permission. The door to the warehouse was locked at the time. The air compressor was later retrieved from a pawn shop. According to the pawn ticket, appellant had taken the air compressor to the pawn shop less than an hour after he was seen removing it from the locked warehouse. The indictment alleged that appellant had two prior felony convictions: a 1989 Harris County conviction for burglary of a building and a 1986 Garza County conviction for burglary. Appellant entered a plea of true to the Harris County conviction and a plea of not true to the Garza County conviction. The State introduced pen packets for both offenses and testimony identifying appellant=s fingerprints as those of the person convicted in each of the pen packets. In his first issue in both his petition and his brief, appellant contends that State=s Exhibit No. 14 (the pen packet for the Garza County conviction) does not reflect that appellant had waived the ten days for his counsel to file pleadings provided by Tex. Code Crim. Proc. Ann. art. 27.11 (Vernon 1989). Appellant bases his argument on the fact that the Garza County judgment states that the offense was committed on February 3, 1986, and the sentence was imposed on February 11, 1986. Relying on the case of Oliver v. State, 646 S.W.2d 242 (Tex. Crim. App. 1983), appellant contends that the pen packet was inadmissible without evidence that he waived the ten-day preparation time for the trial. In Oliver, the defendant appealed from his conviction of practicing dentistry without a license. On the day of trial, the State abandoned the original information and refiled. Over the defendant=s objection that he was being denied his ten days to prepare for trial, the trial court proceeded with the trial that same day. Appellant correctly notes the court in Oliver held that, once invoked either formally or informally, the right to ten days for preparation for trial is mandatory. 646 S.W.2d at 245. However, we disagree with appellant=s contentions that the holding in Oliver is applicable in this case. Oliver involved a direct appeal challenging the conviction. Here, appellant is attempting to collaterally attack his 1986 Garza County conviction in the direct appeal of his 2004 Taylor County conviction. It is well settled that, after the State makes a prima facie showing of a valid prior conviction, the burden shifts to the defendant to affirmatively establish a defect that renders the prior conviction void. Allridge v. State, 762 S.W.2d 146, 156 (Tex. Crim. App. 1988); Johnson v. State, 725 S.W.2d 245, 247 (Tex. Crim. App. 1987); Smith v. State, 683 S.W.2d 393, 407 (Tex. Crim. App. 1984); Hankins v. State, 646 S.W.2d 191, 200 (Tex. Crim. App. 1981); Tinney v. State, 578 S.W.2d 137, 139 (Tex. Crim. App. 1979). There is a presumption of regularity where the procedural defect does not appear in the record unless the defendant sustains his burden. Jones v. State, 646 S.W.2d 449, 449 (Tex. Crim. App. 1983). Here, appellant made no affirmative showing that he did not waive the ten days to prepare for trial. See Tate v. State, 120 S.W.3d 886, 890 (Tex. App.CFort Worth 2003, no pet.) (defendant did not produce evidence that right to jury trial was not waived); Battle v. State, 989 S.W.2d 840 (Tex. App.CTexarkana 1999, no pet.); Bruce v. State, 744 S.W.2d 618, 619 (Tex. App.CHouston [1st Dist.] 1987, pet. ref=d). The trial court did not err in admitting State=s Exhibit No. 14 into evidence. The first issue is overruled. Tex. Pen. Code Ann. ' 12.42(a)(2) (Vernon Supp. 2006) provides that, when a person convicted of a state jail felony is shown to have two prior felony convictions, the punishment for the state jail felony is enhanced to that for the punishment for a second degree felony: confinement for a term of not more than twenty years and not less than two years with an authorization for an optional fine not to exceed $10,000. The original judgment in this case contains a notation: AEnhanced with two priors (5-99 or life).@ Appellant argued in his original brief that this notation established that the trial court erred by enhancing his punishment to a first degree felony. After appellant filed his brief, the trial court entered a judgment nunc pro tunc stating that the judgment should read Aenhanced with two prior felonies to a Second Degree Felony.@ Appellant now contends that not only did the trial court err by enhancing the punishment to that for a first degree felony but also that the trial court erred by entering the judgment nunc pro tunc. We disagree. Tex. R. App. P. 23 provides that the failure to render sentence or judgment may be corrected at any time by the trial court unless a motion for new trial or a motion to arrest judgment has been granted. The trial court retains this power to correct clerical mistakes in the judgment or sentence even if the conviction is on appeal. State v. Bates, 889 S.W.2d 306, 309 (Tex. Crim. App. 1994). The trial court cannot use a judgment nunc pro tunc to correct a judicial error. Id. To the extent that there is a variance, a trial court=s oral pronouncement of the sentence controls over the written pronouncement. Ex parte Madding, 70 S.W.3d 131, 135 (Tex. Crim. App. 2002); Coffey v. State, 979 S.W.2d 326, 328 (Tex. Crim. App. 1998). Other than the entry on the original written judgment, the record from the trial does not reflect that at any time the trial court referenced the appropriate punishment to be that for a first degree felony as opposed to a second degree. In open court, the trial court sentenced appellant as follows: You pled true to the first enhancement paragraph. The Court finds that paragraph true. Pled untrue to the second enhancement paragraph. The Court finds that enhancement paragraph true after hearing the evidence in the case and assesses your punishment at 15 years confinement in the State penitentiary and you are sentenced to serve 15 years confinement in the State penitentiary. Appellant has not established that the judgment nunc pro tunc corrected anything other than a clerical error or that the trial court abused its discretion by entering the judgment nunc pro tunc. The second issue is overruled. The judgment of the trial court is affirmed. PER CURIAM November 16, 2006 Do not publish. See Tex. R. App. P. 47.2(b). Panel consists of: Wright, C.J., McCall, J., and Strange, J.