Reginald Hicks v. State of Texas ( 2002 )

NO. 12-00-00301-CR NO. 12-00-00302-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

REGINALD HICKS,

§ APPEAL FROM THE 114TH

APPELLANT

V.

§ JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE

§ SMITH COUNTY, TEXAS

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PER CURIAM

Appellant Reginald Hicks appeals two convictions for the offense of aggravated assault. Appellant presents three issues for our consideration. We modify the judgments and, as modified, affirm.

Background

In January of 1995, Appellant pleaded guilty to aggravated assault with a deadly weapon in two separate causes, but the trial court deferred making a finding of guilt and placed Appellant on deferred adjudication probation for ten years in each cause. Appellant did not appeal at that time. In August of 2000, the State filed a motion to adjudicate Appellant's guilt and revoke his probation in each cause. Appellant pleaded true to several of the various allegations in each of the motions to adjudicate. The trial court "revoked" Appellant's probation and orally pronounced sentence at confinement for five years, probated for five years, and no fine in each cause. The written judgments, signed eight days later, sentenced Appellant to five years incarceration, not probated, and a fine of $5,000.00 in each cause. This appeal followed. ⁽¹⁾  

Adjudication of Guilt  

In his first issue, Appellant contends that the trial court erred by sentencing him without first finding that the allegations in the motion to adjudicate were true and adjudicating his guilt.

At the conclusion of the hearing, the trial court pronounced:

The court in [the first cause] revokes the prior sentence of deferred adjudication probation and sentences the defendant to five years confinement . . . and probates that for five years. . . . In the other cause...the court revokes the deferred adjudication probation and sentences the defendant to five years confinement . . . and places him on probation under the identical terms and conditions announced in the previous case.

The written judgment in each cause recites that the trial court found that certain of the allegations in the motions to adjudicate were true. Each judgment goes on to state, "It is therefore adjudged by the court, that [Appellant] is guilty of the felony offense...."

The resolution of this issue is controlled by Villela v. State, 564 S.W.2d 750 (Tex. Crim. App. [Panel Op.] 1978). In that case, the trial court accepted the defendant's guilty plea but did not orally adjudicate guilt, and the proceedings were recessed for preparation of a pre-sentence investigation report. At a subsequent hearing, the trial court assessed punishment without orally adjudicating guilt. However, the written judgment of the trial court did recite an affirmative finding of guilt. The court of criminal appeals held that the trial court's actions necessarily implied a finding of guilt and, therefore, supported the written judgment. See Id. at 751.

In the cases before us, the trial court's oral pronouncement that he "revoked" Appellant's deferred adjudication probation in each cause necessarily implies a finding that at least some of the allegations against Appellant were true and, further, necessarily implies a finding of guilt. Therefore, Appellant's first issue is overruled.

Conflicting Sentences  

In his second issue, Appellant contends that the trial court erred by entering written judgments in each cause which conflict with its oral pronouncement of sentence. In his third issue, Appellant argues that the variation between the oral pronouncement of sentence and its written memorialization in the two judgments signed eight days later renders the judgments void. We address these issues together.  

A trial court does not have the statutory authority or discretion to orally pronounce one sentence in front of the defendant, but enter a different sentence in its written judgment, outside the defendant's presence. Ex parte Madding, 70 S.W.3d 131, 136 (Tex. Crim. App. 2002). It violates a defendant's constitutional right to due process to orally pronounce sentence to him and then later, without notice to the defendant and without giving him an opportunity to be heard, enter a written judgment imposing a significantly harsher sentence. Id. at 136-37. When such occurs, the judgment is not "void," but it must be reformed if possible. See Id.

When there is a variation between the oral pronouncement of sentence and the written memorialization of the sentence, the oral pronouncement controls. Coffey v. State, 979 S.W.2d 326, 328 (Tex. Crim. App. 1998). The written sentence should be reformed to conform with the record of the proceedings. See Ex parte Madding, 70 S.W.3d at 137; Banks v. State, 708 S.W.2d 460, 462 (Tex. Crim. App. 1986).

An appellate court has the power to modify incorrect judgments when the necessary data and information are available to do so. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993). We have the necessary data before us for reformation. Therefore, we modify the trial court's judgment in each cause to reflect that Appellant is sentenced to five years of imprisonment, probated for five years, and no fine. ⁽²⁾ The sentences are to commence on the date on which they were orally pronounced. Furthermore, as per the trial court's oral pronouncement, each judgment is modified to require that Appellant perform and render 300 hours of community service restitution and be supervised under intensive supervision for one year.

Appellant's second issue is sustained. Appellant's third issue is overruled. The judgments of the trial court, as modified, are affirmed.

Opinion delivered May 22, 2002.

Panel consisted of Worthen, J., and Griffith, J.

(DO NOT PUBLISH)

1. Appellant's original appellate counsel filed an Anders brief stating that the appeal was wholly frivolous and without merit. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). We conducted an independent review of the record to satisfy ourselves that the attorney had provided the client with a diligent and thorough search of the record for any arguable claim and to determine if counsel had correctly concluded the appeal was frivolous. See High v. State, 573 S.W.2d 807, 811 (Tex. Crim. App. [Panel Op.] 1978). We determined that the appeal was not frivolous, struck appellate counsel's Anders brief, granted counsel's motion to withdraw, and abated the appeal, returning the cause to the trial court for appointment of new counsel to review the record and file a brief for Appellant. See Evans v. State, 933 S.W.2d 334, 336 (Tex. App.- Waco 1996, no pet.). This second appeal is before us.

2.

We note that there was no affirmative finding of a deadly weapon in either cause. Unless and until the trial court makes an affirmative finding of a deadly weapon, and enters same in the judgment, a defendant is eligible for community supervision. See Tex. Code Crim. Proc. Ann. art. 42.12, § 3g(a)(2) (Vernon Supp.2002); Hooks v. State, 860 S.W.2d 110, 113-14 (Tex. Crim. App. 1993). Appellant was, therefore, eligible for regular probation, so the sentences orally pronounced by the trial court were legal, valid sentences. See Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon Supp.2002).