Christopher Yaites v. State ( 2005 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-05-00074-CR

Christopher Yaites,

                                                                      Appellant

 v.

The State of Texas,

                                                                      Appellee

From the Criminal District Court No. 3

Tarrant County, Texas

Trial Court No. 0912020D

MEMORANDUM  Opinion

          Christopher Yaites pleaded guilty to the offense of aggravated robbery without the benefit of a plea agreement.  The court assessed Yaites’s punishment at forty-five years’ imprisonment.  Yaites’s counsel filed an Anders brief contending that this appeal presents no issues of arguable merit.  Yaites has not filed a pro se brief or other response, though he was notified of his right to do so.  Because our independent review of the record reveals no issues of arguable merit, we will affirm the judgment.

          The documents Yaites signed in connection with his guilty plea provided him the admonishments required by law.  See Tex. Code Crim. Proc. Ann. art. 1.14 (Vernon 2005), art. 26.13 (Vernon Supp. 2005).  The court reviewed these admonishments on the record with Yaites, though not in the same level of detail.  Yaites waived his right to a jury trial in writing.  Id. art. 1.15 (Vernon 2005).  Yaites signed a judicial confession and admitted in his testimony that he committed the offense alleged.  See Dinnery v. State, 592 S.W.2d 343, 353 (Tex. Crim. App. [Panel Op.] 1979); Ramirez v. State, 139 S.W.3d 731, 732-33 (Tex. App.—Fort Worth 2004, pet. ref’d).

          Yaites’s trial counsel presented appropriate evidence and argument for the court to consider in mitigation of punishment.  Yaites’s appellate counsel notes that Yaites failed to preserve any complaint that his sentence constitutes cruel and unusual punishment in violation of the Eighth Amendment.  See Steadman v. State, 160 S.W.3d 582, 586 (Tex. App.—Waco 2005, pet. ref’d).

Our independent review of the record has revealed no issues of arguable merit.  Accordingly, we affirm the judgment.  Counsel must advise Yaites of our decision and of his right to file a petition for discretionary review.  See Sowels v. State, 45 S.W.3d 690, 694 (Tex. App.—Waco 2001, no pet.).

FELIPE REYNA

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed

Opinion delivered and filed November 9, 2005

Do not publish

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pan>                                                                     Appellee

From the 272nd District Court

Brazos County, Texas

Trial Court # 27839-272

MEMORANDUM Opinion

Raymond Olivas was indicted for the felony offense of possession of a prohibited weapon. He pled guilty to that offense and was placed on community supervision for six years.  The State later filed a motion to revoke community supervision. After a hearing on the motion, the trial court found that Olivas had violated conditions of his probation and sentenced him to four years’ confinement.  The court ordered that the sentence run consecutively to other sentences Olivas was currently serving.  Olivas brings this appeal, arguing: (1) the judgment ordering the cumulation of sentences was void for lack of specificity; and (2) the trial court violated his Eighth Amendment rights by stacking his sentences upon sentences assessed in a previous case.

          The State agrees with Olivas that the judgment ordering cumulation of the sentences is insufficient.  A cumulation order should be sufficiently specific to allow prison officials and the defendant to identify the prior convictions with which the new conviction is cumulated.  Williams v. State, 675 S.W.2d 754, 763 (Tex. Crim. App. 1984).  The Court of Criminal Appeals has set forth five recommended elements of a cumulation order: (1) the trial court number of the prior conviction; (2) the correct name of the court where the prior conviction was taken; (3) the date of the prior conviction; (4) the term of years of the prior conviction; and (5) the nature of the prior conviction.  Ward v. State, 523 S.W.2d 681, 682 (Tex. Crim. App. 1975).

The trial court ordered that Olivas’s sentence be “stacked on top of any other sentence that [he was] required to serve.”  The judgment revoking community supervision states: “This sentence shall run consecutive to the case specified below.”  However, the judgment does not identify a case.  The commitment order signed by the court states: “To be stacked with Cause Nos. 29,258-272, 29,311-272, 29,255-272, 29,308-272, & 29,252-272.”

The State urges that we reform the written judgment to include the requisite information for cumulating the sentences.  An appellate court may reform a judgment to correct a clerical error in the trial court’s judgment regarding a cumulation order.  Banks v. State, 708 S.W.2d 460, 462 (Tex. Crim. App. 1986).  Although the requisite information concerning the prior convictions does not appear in the record of this case, the State asks us to take notice that the causes listed in the commitment order have come before this Court on appeal.  We take notice that we have reversed the conviction and rendered an acquittal in one of the causes and reversed and remanded in three other causes.  Olivas v. State, No. 10-02-00308, No. 10-02-00309, No. 10-02-00310, 2004 Tex. App. LEXIS 10116 (Tex. App.—Waco November 10, 2004, no pet.); Olivas v. State, No. 10-02-00311, 2004 Tex. App. LEXIS 10131 (Tex. App.—Waco November 10, 2004, no pet.) (not designated for publication).  Thus we are not in a position to reform the judgment to sufficiently identify the sentences to be cumulated.  Accordingly, we resolve the issue by reforming the judgment to delete the cumulation order.  Ex Parte Jordan, 562 S.W.2d 483, 484 (Tex. Crim. App. 1978); Odlozelik v. State, 837 S.W.2d 825, 826 (Tex. App.—Tyler 1992, no pet.).

          Olivas’s second issue concerning his Eighth Amendment protection from cruel and unusual punishment is premised upon the order “stacking” his sentence.  Because we reform the judgment to delete that order, we need not address this issue.

CONCLUSION

The judgment of the trial court is reformed to delete the cumulation order.  We affirm the judgment as reformed.

          BILL VANCE

          Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

(Chief Justice Gray dissents without an opinion)

Reformed and affirmed

Opinion delivered and filed January 26, 2005

Do not publish

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