Misty Laverna Dale Mayo v. State ( 2012 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
_________________________
No. 06-11-00246-CR
______________________________
MISTY LAVERNA DALE MAYO, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 354th Judicial District Court
Hunt County, Texas
Trial Court No. 26,279
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
Misty Laverna Dale Mayo entered an open plea of guilty to all fourteen charges spread
across five cases tried together in Hunt County, Texas. The multiple counts included charges for
injury to a child, indecency with a child by contact, sexual assault of a child, and aggravated
sexual assault of a child.1 The trial court accepted her plea, found her guilty on all counts, and
ultimately sentenced her to various terms of confinement ranging from ten to fifty years each.
After finding errors in the judgments regarding whether the sentences for the eight charges
contained in the last two cases were to be served concurrently or consecutively, the trial court
attempted to correct the errors by entering nunc pro tunc judgments with revised sentencing
instructions.
1
The five cases before us on appeal, all resolved by opinions issued today, are as follows:
Appeal Case Trial Case Count: Offense Sentence Sentence
Number Number Group
06-11-00243-CR 26,276 Count 1: injury to a child 10 years
Count 2: injury to a child 10 years
06-11-00244-CR 26,277 Count 1: injury to a child 10 years
A
Count 2: injury to a child 10 years
06-11-00245-CR 26,278 Count 1: aggravated sexual assault of a child 50 years
Count 2: aggravated sexual assault of a child 50 years
06-11-00246-CR 26,279 Count 1: indecency with a child by contact 20 years
Count 2: indecency with a child by contact 20 years
B
Count 3: aggravated sexual assault of a child 50 years
Count 4: aggravated sexual assault of a child 50 years
06-11-00247-CR 26,303 Count 1: indecency with a child by contact 20 years
Count 2: sexual assault of a child 50 years
C
Count 3: sexual assault of a child 50 years
Count 4: sexual assault of a child 50 years
2
Here, Mayo appeals from her convictions in trial court cause number 26,279. She
contends that the trial court erred in entering: (1) the nunc pro tunc judgments because they were
not issued in her presence; (2) the nunc pro tunc judgments because they vary from the trial
court’s oral pronouncement of sentence; and (3) the original judgments because they varied from
the trial court’s oral pronouncement of sentence.
We modify the nunc pro tunc judgments, for the purpose of clarity, and affirm the
judgments as modified.
On September 17, 2011, the trial court orally sentenced Mayo to prison terms for each of
the fourteen total counts contained within the five cases. The trial court pronounced sentence as
follows:
In Cause No. 26,276, there are two counts of injury to a child, I sentence
you to ten years in the Texas Department of Criminal Justice Institutional
Division in each of those cases, those two sentences to run concurrently.
Cause No. 26,277, there are two counts of injury to a child. I sentence you
to ten years TDC on each one of those, those also to run concurrently and
concurrently with 26,276.
In Cause No. 26,278, there are two aggravated sexual assault charges. I
sentence you to 50 years TDC in each of those, all those to run concurrent with
the prior announced sentences.
In Cause 26,279, there are two aggravated sexual assault counts. I
sentence you to 50 years in each one of those cases and the two indecency by
contact, sentence you to 20 years in TDC in each of those. Those four sentences
to run consecutively after the first set of sentences in the first three cause
numbers.
26,303, find you -- sentence you to 50 years in each one of the three
sexual assault cases and 20 years in the indecency by conduct -- contact, those
four sentences to run consecutively after the second group of sentences. So, in
essence, you have three consecutive 50-year sentences.
3
On October 4, 2011, the trial court entered written judgments for each count, including
instructions regarding whether the sentence for each count was to be served concurrently or
consecutively. For example, the sentencing portion of judgment for Count 1 of trial court cause
number 26,279, states:
THIS SENTENCE SHALL RUN CONSECUTIVELY (see below).
This sentence will run CONSECUTIVELY to Cause No. 26,276, 26,277 &
26,278-COUNT 2; therefore, the conviction in Cause No. 26,279 is
STACKED upon the conviction in Cause Nos. 26,276, 26,277, AND 26,278-
COUNT 1. The punishment for this conviction in Cause No. 26,279 shall not
begin until the judgment and sentence in Cause Nos. 26,276, 26,277 AND
26,278-COUNT 1 styled the State of Texas vs. Misty Laverna Dale Mayo in
the 354th Judicial District Court of Hunt County, Texas HAS CEASED TO
OPERATE.
The sentencing language in the judgments for the remaining three counts in trial court cause
number 26,279 are similar in style, format, and structure.
Three months after entering the written judgments, the trial court found errors in the
judgments regarding whether the sentences in the last two cases were to be served concurrently
or consecutively. Attempting to remedy these errors, the trial court entered judgments nunc pro
tunc for the eight charges contained in the two trial court cases. For example, the sentencing
instructions in the nunc pro tunc judgment for Count 1 of trial court cause number 26,279 (the
same case and cause as the previous example), states:
THIS SENTENCE SHALL RUN CONSECUTIVELY (see below). This
sentence will run CONCURRENTLY to Cause No. 26,278-Count 1 and Cause
No. 26,279-Counts 2, 3, and 4; therefore, the conviction in Cause No. 26,279-
Count 1 is stacked upon the convictions in Cause No. 26,276; Cause No. 26,277
and Cause No. 26,278-Count 2. The punishment for this conviction in Cause No.
26,279-Count 1 shall not begin until the judgment and sentences in Cause No.
26,276; Cause No. 26,277 and Cause No. 26,278-Count 2 styled the State of
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Texas vs. Misty Laverna Dale Mayo in the 354th Judicial District Court of Hunt
County, Texas has ceased to operate.
The sentencing instructions in the nunc pro tunc judgments for the remaining three counts in
cause number 26,279 are similar in style, format, and structure.
On appeal, Mayo contends the nunc pro tunc judgments should be modified because they
are confusing2 and vary from the trial court’s oral pronouncement of sentence. We agree.
Nunc pro tunc literally means “now for then,” and describes the inherent power possessed
by a court to make its records speak the truth by correcting the record at a later date to reflect
what actually occurred at trial. Collins v. State, 240 S.W.3d 925, 928 (Tex. Crim. App. 2007).
The purpose of a nunc pro tunc order is to correctly reflect from the records of the court a
judgment actually made by it, but which for some reason was not entered of record at the proper
time. Ex parte Dopps, 723 S.W.2d 669, 670 (Tex. Crim. App. 1986) (per curiam). Where there
is a variation between the oral pronouncement of sentence and the written memorialization of the
sentence, the oral pronouncement of sentence controls. Thompson v. State, 108 S.W.3d 287, 290
(Tex. Crim. App. 2003).
We find that the sentence and cumulation instructions in the nunc pro tunc judgments
vary from the trial court’s pronouncement. We modify the nunc pro tunc judgments and hold
that Mayo shall serve the following sentences, as pronounced by the trial court in open court, in
three defined groups.
2
A valid cumulation order should provide sufficient specific information to allow the Texas Department of Criminal
Justice to identify the prior conviction and sentence with which the newer conviction is to be cumulated. Ex parte
San Migel, 973 S.W.2d 310, 311 (Tex. Crim. App. 1998); Ward v. State, 523 S.W.2d 681 (Tex. Crim. App. 1975).
5
Sentence Group A shall consist of the sentences ordered in three cases, trial court cause
numbers 26,276; 26,277; and 26,278. In the case bearing trial court cause number 26,276,
Mayo’s sentences for two counts of injury to a child are each set at ten years’ confinement. In
the case bearing trial court cause number 26,277, Mayo’s sentences for two counts of injury to a
child are each set at ten years’ confinement. In the case bearing trial court cause number 26,278,
Mayo’s sentences for two counts of aggravated sexual assault of a child are each set at fifty
years’ imprisonment.
Sentence Group B shall consist of the sentences ordered in the case bearing trial court
cause number 26,279. Mayo’s sentences for the four counts in that case are set as follows: one
sentence of twenty years’ imprisonment for each of the two counts for indecency with a child by
contact and one sentence of fifty years’ imprisonment for each of the two counts for aggravated
sexual assault of a child.
Sentence Group C shall consist of the sentences ordered in the case bearing trial court
cause number 26,303. Mayo’s sentences for the four counts in that case are set as follows: a
sentence of twenty years’ imprisonment for the single count for indecency with a child by
contact and one sentence of fifty years’ imprisonment for each of the three counts for aggravated
sexual assault of a child.
All sentences within the above referenced Sentence Group A are to be served
concurrently with the other sentences within Sentence Group A. When the last sentence from
Sentence Group A has been served or has ceased to be effective, the sentences from Sentence
Group B will begin. All sentences within Sentence Group B are to be served concurrently with
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the other sentences within Sentence Group B. When the last sentence from Sentence Group B
has been served or has ceased to be effective, the sentences from Sentence Group C will begin.
All sentences within Sentence Group C are to be served concurrently with the other sentences
within Sentence Group C.
Due to our modification hereinabove, we need not address Mayo’s remaining points of
error. As modified, the nunc pro tunc judgments are affirmed.
Josh R. Morriss, III
Chief Justice
Date Submitted: June 4, 2012
Date Decided: June 7, 2012
Do Not Publish
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