Brian Lancaster v. State ( 2010 )

IN THE
TENTH COURT OF APPEALS
No. 10-08-00026-CR
No. 10-08-00058-CR
No. 10-09-00156-CR
BRIAN LANCASTER,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 272nd District Court
Brazos County, Texas
Trial Court Nos. 07-01490-CRF-272,
07-01489-CRF-272, and 07-01491-CRF-272
OPINION
Brian Lancaster pleaded guilty in the underlying cases to criminal solicitation of
a minor, indecency with a child by exposure, and five counts of indecency with a child
by contact.1 In a separate trial, “not guilty” pleas were entered on Lancaster’s behalf to
two counts of promotion of child pornography.2
1
Lancaster pleaded guilty to the following: (1) trial court cause no. 07-01490-CRF-272 (appellate
cause no. 10-08-00026-CR)—2 counts of indecency by contact; (2) trial court cause no. 07-01489-CRF-272
On the charges to which Lancaster pleaded guilty, the jury found him guilty as
instructed by the court and assessed his punishment at ten years’ imprisonment on the
criminal solicitation and indecency by exposure charges and twenty years’
imprisonment on the indecency by contact charges. In the other trial, the jury convicted
Lancaster of both counts of promotion of child pornography and assessed his
punishment at twenty years’ imprisonment for each count.3 The juries in both trials
assessed a $10,000 fine for each of the nine convictions.
Lancaster contends in what amounts to seven points4 that:
(1) his convictions for four of the five indecency by contact charges and for both
promotion of child pornography charges violate his double jeopardy rights;
(2) prosecution on these same four indecency by contact charges and for both
promotion of child pornography charges was improper because the conduct
relied on to prove these charges was subsumed by the conduct relied on to prove
the other charge of indecency by contact;
(appellate cause no. 10-08-00058-CR)—1 count of criminal solicitation and 3 counts of indecency by
contact; and (3) trial court cause no. 07-01491-CRF-272 (appellate cause no. 10-09-00156-CR)—1 count of
indecency by exposure.
2
Lancaster was charged in trial court cause no. 07-01490-CRF-272 (counts 1 & 4) (appellate cause
no. 10-08-00026-CR) with 2 counts of promotion of child pornography. These charges were severed from
the 2 counts of indecency by contact referenced in note 1 and tried together with 100 counts of possession
of child pornography which we address in a separate opinion being issued on the same date as this
opinion in appellate cause nos. 10-08-00025-CR, 10-08-00027-CR, 10-08-00028-CR, 10-08-00029-CR, and 10-
08-00030-CR.
3
Lancaster filed 2 separate briefs in appellate cause no. 10-08-00026-CR. One addresses his
convictions under counts 2 and 3 for indecency by contact, to which he pleaded guilty, and the other
addresses his convictions under counts 1 and 4 for promotion of child pornography, for which he was
separately tried.
4
The seven points we have identified assimilate the points raised in Lancaster’s briefs. We will
address the points as we have renumbered them here. As we address each point, we will indicate how
Lancaster has numbered the point in his briefs (e.g., point one in cause no. 10-08-00058-CR).
Lancaster v. State Page 2
(3) prosecution for criminal solicitation was improper because the conduct relied on
to prove this charge was subsumed by the conduct relied on to prove indecency
by exposure;
(4) the court abused its discretion by overruling his objection that the prosecutor’s
argument during the punishment phase struck at Lancaster over the shoulders of
defense counsel;
(5) his right to due process was violated by the court’s entry of judgments nunc pro
tunc;
(6) the court erred by altering his sentences after he had commenced serving them;
and:
(7) the court abused its discretion by refusing to permit him to ask during voir dire
whether the jurors could be fair and impartial in a hypothetical case involving
sexual molestation of children.
We will affirm.
Double Jeopardy
Lancaster contends in his first point5 that his conviction and punishment for all
but one count of indecency with a child by contact and his conviction and punishment
for both counts of promotion of child pornography violate the prohibition against
double jeopardy.
Specifically, he argues that, because of his conviction and punishment for
indecency by contact under count 2 of trial court cause no. 07-01489-CRF-272 (appellate
cause no. 10-08-00058-CR), his convictions and punishment for the other two counts of
indecency by contact in the same case and his convictions and punishment for two
counts of indecency by contact in trial court cause no. 07-01490-CRF-272 (appellate
5
Lancaster’s first point as renumbered consists of: (1) the first point in his brief in cause no. 10-08-
00026-CR challenging the indecency by contact convictions; (2) the second point in his other brief in cause
no. 10-08-00026-CR challenging the promotion of child pornography convictions; and (3) the first point in
his brief in cause no. 10-08-00058-CR.
Lancaster v. State Page 3
cause no. 10-08-00026-CR) and for two counts of promotion of child pornography in the
same case are all jeopardy-barred. He avers that this is a multiple-punishments claim.
Before we reach the jeopardy issue however, we note that Lancaster did not raise
this objection at trial. Nevertheless, he will be excused from the ordinary rules of
procedural default “when the undisputed facts show the double jeopardy violation is
clearly apparent on the face of the record and when enforcement of usual rules of
procedural default serves no legitimate state interests.” Gonzalez v. State, 8 S.W.3d 640,
643 (Tex. Crim. App. 2000); Hanson v. State, 180 S.W.3d 726, 732 (Tex. App.—Waco 2005,
no pet.).
Here, because we have a complete record, “it can be determined from
undisputed facts clearly apparent on the face of the record” whether there has been a
jeopardy violation. Hanson, 180 S.W.3d at 732 (citing Murray v. State, 24 S.W.3d 881, 889
(Tex. App.—Waco 2000, pet. ref’d)).
There are three distinct types of double jeopardy claims: (1) a
second prosecution for the same offense after acquittal; (2) a second
prosecution for the same offense after conviction; and (3) multiple
punishments for the same offense. A multiple punishments claim can
arise in two contexts:
(1) the lesser-included offense context, in which the same conduct is
punished twice; once for the basic conduct, and a second time for that
same conduct plus more (for example, attempted assault of Y and
assault of Y; assault of X and aggravated assault of X); and
(2) punishing the same criminal act twice under two distinct
statutes when the legislature intended the conduct to be punished only
once (for example, causing a single death by committing both
intoxication manslaughter and involuntary manslaughter).
Langs v. State, 183 S.W.3d 680, 685 (Tex. Crim. App. 2006) (footnotes omitted).
Lancaster v. State Page 4
Lancaster’s multiple punishments claim arises under the second alternative,
namely, being punished more than once for the same criminal act when the legislature
intended the conduct to be punished only once. If, however, the evidence establishes
the commission of “distinct and separate offenses,” then there is no violation of the
Double Jeopardy Clause prohibition of multiple punishments. See id. at 688; Martinez v.
State, 212 S.W.3d 411, 422 (Tex. App.—Austin 2006, no pet.); Hanson, 180 S.W.3d at 732-
33.
Counts 2 and 4 of the indictment in trial court cause no. 07-01489-CRF-272
alleged that Lancaster engaged in sexual contact with K.M by touching her genitals and
breast. Count 3 of this indictment alleges that he engaged in sexual contact with K.M.
by touching her breast.
Counts 2 and 3 of the indictment in trial court cause no. 07-01490-CRF-272
alleged that he engaged in sexual contact with K.M. by touching her genitals. Counts 1
and 4 of this indictment allege that he engaged in the promotion of child pornography
by manufacturing visual material that visually depicted a child engaging in sexual
conduct, “to-wit: actual or simulated lewd exhibition of the genitals.”6
State’s Exhibit No. 130 is a DVD which depicts eleven separate instances of
sexual contact. Lancaster suggests that, because these instances all occurred during a
6
Both indictments alleged that these offenses were committed “on or about December 31, 2006.”
However, the State is not bound by the date alleged in the indictment so long as the evidence establishes
that the offense was committed before the presentment of the indictment but within the limitations
period. Sledge v. State, 953 S.W.2d 253, 255-56 (Tex. Crim. App. 1997); Lane v. State, 174 S.W.3d 376, 386
n.12 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d).
Lancaster v. State Page 5
relatively brief period of time7 when K.M’s mother left K.M and her sister in Lancaster’s
care while she went Christmas shopping with Lancaster’s former wife, the conduct
depicted should be treated as a single instance of sexual contact. However, a defendant
may be prosecuted for each discrete sex crime committed against a child during the
same criminal episode “because each act is a separate violation of the child.” Hanson,
180 S.W.3d at 733 (quoting Lopez v. State, 108 S.W.3d 293, 300 n.28 (Tex. Crim. App.
2003)).
The second segment in the DVD depicts Lancaster touching K.M.’s genitals and
breast while seated in a recliner. The fifth segment depicts him doing the same thing in
a bath tub. The fourth segment depicts him sitting in the recliner reaching under her
shirt to touch her breast. Thus, these three segments depict separate instances of
conduct when Lancaster committed indecency by contact as alleged in the indictment in
trial court cause no. 07-01489-CRF-272.
The third and sixth segments of this DVD depict two other instances when
Lancaster touched K.M.’s genitals. Thus, these segments depict separate instances of
conduct when Lancaster committed indecency by contact as alleged in the indictment in
trial court cause no. 07-01490-CRF-272.
The seventh and eighth segments of the DVD depict separate instances 8 when
Lancaster uncovered K.M.’s genitals and made a close-up recording of her genitals.
7
There is no testimony in the record regarding how long the shopping trip lasted. K. M.’s mother
testified that they met Lancaster and the children at a restaurant for dinner that evening.
8
We need not determine whether a defendant may be prosecuted both for indecency by contact
and promotion of child pornography for a single video recording depicting the defendant engaging in
Lancaster v. State Page 6
Thus, these segments depict separate instances of conduct when Lancaster committed
promotion of child pornography as alleged in the indictment in trial court cause no. 07-
01490-CRF-272.
State’s Exhibit No. 130 depicts at least seven separate incidents when Lancaster
engaged in the conduct alleged in the indictments. Because the evidence establishes the
commission of “distinct and separate offenses,” there is no violation of the Double
Jeopardy Clause prohibition of multiple punishments. See Langs, 183 S.W.3d at 688;
Martinez, 212 S.W.3d at 422; Hanson, 180 S.W.3d at 732-33; Murray, 24 S.W.3d at 889.
Accordingly, we overrule Lancaster’s first point.
Conduct Subsumed
Lancaster contends in his second point9 that the judgments of conviction for all
but one count of indecency with a child by contact and for both counts of promotion of
child pornography should be vacated because the conduct relied on to prove the
challenged offenses was subsumed by the conduct relied on to prove indecency by
contact under count 2 of trial court cause no. 07-01489-CRF-272 (appellate cause no. 10-
08-00058-CR). He similarly claims in his third point10 that the judgment of conviction
for criminal solicitation should be vacated because the conduct relied on to prove this
sexual contact with a child because the record in this case contains video recordings of multiple instances
of sexual contact.
9
Lancaster’s second point as renumbered consists of: (1) the second point in his brief in cause no.
10-08-00026-CR challenging the indecency by contact convictions; (2) the third point in his other brief in
cause no. 10-08-00026-CR challenging the promotion of child pornography convictions; and (3) the second
point in his brief in cause no. 10-08-00058-CR.
10
This is the third point in Lancaster’s brief in cause no. 10-08-00058-CR.
Lancaster v. State Page 7
offense was subsumed by the conduct relied on to prove indecency by exposure under
trial court cause no. 07-01491-CRF-272 (appellate cause no. 10-09-00156-CR).
Lancaster places primary reliance on Patterson v. State, 152 S.W.3d 88 (Tex. Crim.
App. 2004). There the Court of Criminal Appeals explained that, although the
Legislature has authorized multiple punishments for the repeated commission of such
crimes against a child during a single criminal episode, “there is nothing in the
language [of the pertinent statutes] to suggest that it intended to authorize ‘stop-action’
prosecution.” Id. at 92.
Just as a conviction for a completed offense bars prosecution for an
attempt to commit the same offense, a conviction for an offense set out in
§ 3.03 bars conviction for conduct that, on the facts of the case, is
demonstrably part of the commission of the greater offense. For example,
indecency by genital exposure of oneself in the course of manual
penetration of another are separate offenses, while penile contact with
mouth, genitals, or anus in the course of penile penetration will be
subsumed.
Id.
As we have explained, however, if the evidence shows the commission of distinct
offenses based on different (albeit similar) conduct, then the conduct which serves as
the basis for one of the offenses necessarily cannot be subsumed in the conduct which
serves as the basis for commission of the other(s). See Hanson, 180 S.W.3d at 732-33.
In addressing Lancaster’s first point, we explained how State’s Exhibit No. 130
depicts the commission of factually distinct offenses which provide a separate
evidentiary basis for each of the convictions he challenged in his first point and again
challenges in his second point. Because this evidence establishes the commission of at
Lancaster v. State Page 8
least seven “distinct and separate offenses,” his prosecution for the challenged
convictions is not barred under the principles enunciated in Patterson. Id. Thus, we
overrule Lancaster’s second point.
In his third point, Lancaster similarly contends that the conduct relied on to
prove criminal solicitation is barred under Patterson because it is subsumed within the
conduct relied on to prove indecency by exposure.
The indictment count for criminal solicitation alleges that Lancaster, with intent
that sexual performance by a child be committed, induced K.C. to allow him to
photograph her vagina. The indictment for indecency by exposure (the sole count in
that case) alleges that he exposed his genitals to K.C. with the requisite intent.
In Patterson, the Court cited as an example of an offense which is not subsumed
indecency by genital exposure committed in the course of aggravated sexual assault by
manual penetration. See Patterson, 152 S.W.3d at 92. In the same manner, we hold that a
person soliciting a child to permit him to photograph her vagina is not subsumed
within the act of the person exposing his genitals to the child, even if done at the same
time. Id.; Hanson, 180 S.W.3d at 732-33. Thus, we overrule Lancaster’s third point.
Voir Dire
Lancaster contends in his seventh point11 that the court abused its discretion by
refusing to permit him to ask during voir dire whether the jurors could be fair and
impartial in a hypothetical case involving sexual molestation of children. We address
11
This is the first point in Lancaster’s brief in cause no. 10-08-00026-CR challenging the promotion
of child pornography convictions.
Lancaster v. State Page 9
this issue in the other opinion we have issued today in appellate cause nos. 10-08-00025-
CR, 10-08-00027-CR, 10-08-00028-CR, 10-08-00029-CR, and 10-08-00030-CR. We hold
that the court abused its discretion by refusing to permit him to ask the question but
this error, beyond a reasonable doubt, did not contribute to his conviction. See Lancaster
v. State, No. 10-08-00025-CR, slip op. at 4-6 (Tex. App.—Waco May 26, 2009, no pet. h.).
Thus, we overrule Lancaster’s seventh point.
Improper Argument
Lancaster contends in his fourth point12 that the court abused its discretion by
overruling his objection that the prosecutor’s argument during the punishment phase
struck at him over the shoulders of defense counsel.
There are four categories of permissible jury argument: (1) summation of the
evidence; (2) reasonable deduction from the evidence; (3) an answer to the argument of
opposing counsel; or (4) a plea for law enforcement. Gallo v. State, 239 S.W.3d 757, 767
(Tex. Crim. App. 2007). The State may not strike at a defendant over the shoulders of
defense counsel or accuse counsel of bad faith or insincerity during argument. See id.;
Harris v. State, 122 S.W.3d 871, 886 (Tex. App.—Fort Worth 2003, pet. ref’d).
During closing, defense counsel discussed the impact of Lancaster’s convictions
on his family, career and personal life. Counsel urged the jury to show mercy in
assessing punishment. In rebuttal, the State reminded the jury that Lancaster’s actions
12
Lancaster’s fourth point as renumbered consists of: (1) the third point in his brief in cause no. 10-
08-00026-CR challenging the indecency by contact convictions; (2) the fourth point in his brief in cause no.
10-08-00058-CR; and (3) the first point in his brief in cause no. 10-09-00156-CR.
Lancaster v. State Page 10
had impacted the lives of several children and their families. After addressing this for a
few moments, the State talked further about Lancaster.
STATE: Now, I want to talk about the defendant, too; but I also want to
make sure we understand the context in which we are talking
about the defendant. Mr. Banks said a very important thing. He
said, “You know, the first time that I went up to the jail, I expected
to meet a pervert, to hate him, to be angry; but when I met him,
oh, he was a nice guy, good at his job, salvageable. There’s
something good about him.”
You heard from their own witness, Charlie Russ, about the
concept of grooming. That is the stock and trade of the child
molester, of the pedophile. It is—and listen very carefully,
because you are being victimized in exactly the same way—gain
your trust and violate it. Gain your trust and then violate it. And
that’s what they are trying to do to you. That’s what this defense
is about. They are grooming the jury to try and have you think
about anything other than the victims in this case—
DEFENSE: Judge, I object. That is striking at the defendant over the
remarks of counsel.
The State responded that the argument was invited. The court overruled the objection.
We assume without deciding that the argument was improper. See Mosley v.
State, 983 S.W.2d 249, 258 (Tex. Crim. App. 1998) (“The comments in the present case
are milder, merely indicating that the defense attorneys would attempt to use argument
to divert the jury’s attention or obscure the issues.”); Graves v. State, 176 S.W.3d 422, 430
(Tex. App.—Houston [1st Dist.] 2004, no pet.); Brantley v. State, 48 S.W.3d 318, 330 (Tex.
App.—Waco 2001, pet. ref’d); but cf. Pope v. State, 161 S.W.3d 114, 126-27 (Tex. App.—
Fort Worth 2004) (finding similar remarks “were not suggestive of bad faith or
insincerity on the part of opposing counsel, but were responsive to arguments of the
defense and therefore not improper”), aff’d, 207 S.W.3d 352 (Tex. Crim. App. 2006).
Lancaster v. State Page 11
To determine whether this error requires reversal, we consider: (1) the severity of
the misconduct; (2) the measures adopted to cure the misconduct; and, (3) the certainty
of the punishment assessed absent the misconduct. See Archie v. State, 221 S.W.3d 695,
700 (Tex. Crim. App. 2007); Martinez v. State, 17 S.W.3d 677, 692-93 (Tex. Crim. App.
2000); Searcy v. State, 231 S.W.3d 539, 548 (Tex. App.—Texarkana 2007, pet. ref’d).
The challenged argument was at worst mildly inappropriate, so the first factor
does not weigh heavily in Lancaster’s favor. See Mosley, 983 S.W.2d at 260; Graves, 176
S.W.3d at 430; Brantley, 48 S.W.3d at 331. The second factor does not come into play
because the court merely overruled Lancaster’s objection, so this factor weighs in his
favor. See Brantley, 48 S.W.3d at 331. Regarding the third factor, the jury assessed the
maximum punishment for each count. However, Lancaster pleaded guilty to each
count, and the State presented overwhelming evidence of his guilt in addition to
extraneous-offense evidence revealing his guilt of numerous similar offenses for which
he was not indicted. Thus, the third factor weighs heavily in favor of the State because
“it is likely that the same punishment would have been assessed regardless of the
improper [argument].” Archie, 221 S.W.3d at 700 (quoting Archie v. State, 181 S.W.3d
428, 432 (Tex. App.—Waco 2005)); see Martinez, 17 S.W.3d at 693; Mosley, 983 S.W.2d at
260; Searcy, 231 S.W.3d at 550.
Given the mildness of the challenged argument and the overwhelming evidence
supporting the punishment assessed, we hold that any error was harmless. See
Martinez, 17 S.W.3d at 694; Mosley, 983 S.W.2d at 260; Searcy, 231 S.W.3d at 550.
Accordingly, we overrule Lancaster’s fourth point.
Lancaster v. State Page 12
Judgments Nunc Pro Tunc
Lancaster contends in his fifth point13 that his right to due process was violated
by the court’s entry of judgments nunc pro tunc without notice or an opportunity to be
heard. He claims in his sixth point14 that the court’s entry of the judgments nunc pro
tunc constitutes the erroneous alteration of his sentences after he had commenced
serving them. We address these in reverse order.
At issue are Lancaster’s sentences for five counts of indecency by contact, a single
count of indecency by exposure, and a single count of criminal solicitation. The court
ordered that Lancaster’s sentences for indecency by exposure, criminal solicitation, and
one count of indecency by contact run concurrently beginning with the date of
imposition of sentence, November 19, 2007. The sentences for the other four counts of
indecency by contact were to run consecutively thereafter.
The court signed the judgments on November 28. These judgments recited the
concurrent and consecutive sentences by specifying the cause numbers and counts
which were to run concurrently or consecutively. For example, the judgment in trial
court cause no. 07-01491-CRF-272 provided in pertinent part:
The Court ORDERS that the sentence in this conviction shall run
concurrently with the following judgments and sentences: Brazos County
cause number 07-01489-CRF-272 (Count One), with the date of sentence
imposed being November 19, 2007; and Brazos County cause number 07-
13
Lancaster’s fifth point as renumbered consists of: (1) the fourth point in his brief in cause no. 10-
08-00026-CR challenging the indecency by contact convictions; (2) the fifth point in his brief in cause no.
10-08-00058-CR; and (3) the second point in his brief in cause no. 10-09-00156-CR.
14
Lancaster’s sixth point as renumbered consists of: (1) the fifth point in his brief in cause no. 10-08-
00026-CR challenging the indecency by contact convictions; and (2) the sixth point in his brief in cause no.
10-08-00058-CR.
Lancaster v. State Page 13
01489-CRF-272 (Count Two), with the date of sentence imposed being
November 19, 2007.
On January 2, 2008, the court signed judgments nunc pro tunc for each count,
specifying the offense of conviction for each cause number recited in the
concurrent/consecutive sentencing paragraph. For example, the judgment nunc pro
tunc in trial court cause no. 07-01491-CRF-272 provided in pertinent part:
The Court ORDERS that the sentence in this conviction shall run
concurrently with the following judgments and sentences: Brazos County
cause number 07-01489-CRF-272 (Count One), for the offense of Criminal
Solicitaion [sic] of a Minor and with the date of sentence imposed being
November 19, 2007; and Brazos County cause number 07-01489-CRF-272
(Count Two), for the offense of Indecency with a Child by Sexual Contact
and with the date of sentence imposed being November 19, 2007.
Lancaster’s sixth point depends on his underlying contention that the cumulation
orders in the original judgments signed in November 2007 were ineffective. As the
argument goes, because the cumulation orders were ineffective, his sentences ran
concurrently, and the trial court had no authority to correct the ineffective cumulation
orders after he began serving his sentences. However, we reject the underlying
premise.
The Court of Criminal Appeals has identified five recommended elements for a
cumulation order: (1) the cause number of the prior conviction; (2) the name of the trial
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. Williams
v. State, 675 S.W.2d 754, 763-64 (Tex. Crim. App. 1984); Strahan v. State, 306 S.W.3d 342,
352 (Tex. App.—Fort Worth 2010, pet. filed). The purpose of these elements is to enable
Lancaster v. State Page 14
prison authorities to know how long to detain the inmate. Williams, 675 S.W.2d at 764;
Strahan, 306 S.W.3d at 351-52.
The elements are not mandatory so long as the judgment is “’substantially and
sufficiently specific,’ . . . to give notice both to the defendant and to the Department of
Corrections exactly which sentences the instant sentence is cumulated with.” Williams,
675 S.W.2d at 764 (quoting Ex parte Lewis, 414 S.W.2d 682, 683 (Tex. Crim. App. 1967));
accord Strahan, 306 S.W.3d at 351-52. In fact, “a cumulation order which refers only to a
prior cause number is sufficient if the order is entered in the same court as the sentence
to which it is made cumulative.” Williams, 675 S.W.2d at 764; see Greer v. State, No. 03-
07-00447-CR, 2008 WL 2938795, at *2 (Tex. App.—Austin July 31, 2008, pet. ref’d) (not
designated for publication); Holder v. State, No. 11-01-00363-CR, 2002 WL 32344923, at *1
(Tex. App.—Eastland Oct. 10, 2002, no pet.) (per curiam) (not designated for
publication).
Here, the cumulation orders in the November 2007 judgments contained
essentially two of the five recommended elements: (1) the cause number of the prior
conviction; and (2) the date of the prior conviction. Although the cumulation orders do
recite the county of the prior conviction, they do not name the particular district court 15
where the prior conviction was obtained. However, because all of Lancaster’s
convictions were obtained in the 272nd District Court of Brazos County, the recitation
of the cause numbers of the prior convictions is all that was required to make the
cumulation orders sufficiently specific. Id. Therefore, because the original cumulation
15
Brazos County has three district courts.
Lancaster v. State Page 15
orders were sufficiently specific, the trial court’s decision to add more specificity by
judgments nunc pro tunc after Lancaster began serving his sentences did not constitute
an alteration of the sentences. Thus, we overrule Lancaster’s sixth point.
Lancaster contends in his fifth point that his right to due process was violated by
the court’s entry of the judgments nunc pro tunc without notice or an opportunity to be
heard. We addressed a similar contention in Popp v. State, No. 10-03-00263-CR, 2004 WL
2306635 (Tex. App.—Waco Oct. 13, 2004, pet. ref’d) (not designated for publication).
The purpose of a nunc pro tunc order is to have the court records correctly
reflect a judgment actually rendered by the trial court. See Jones v. State,
795 S.W.2d 199, 202 (Tex. Crim. App. 1990); McGinnis v. State, 664 S.W.2d
769, 770 (Tex. App.—Amarillo 1983, pet. ref’d). The Court of Criminal
Appeals has said, that before any unfavorable nunc pro tunc orders are
entered, the person convicted should be given an opportunity to be
present for the hearing and represented by counsel, in order to accord him
due process of law. Shaw v. State, 539 S.W.2d 887, 890 (Tex. Crim. App.
1976). But more recently, the Court has said that if the trial court properly
changed the order, remanding for a hearing would be a “useless task.”
Homan v. Hughes, 708 S.W.2d 449, 454-455 (Tex. Crim. App. 1986).
Id., 2004 WL 2306635, at *1.
Sending these appeals back to the trial court for a hearing would be a “useless
task.” See Homan, 708 S.W.2d at 454-55; Popp, 2004 WL 2306635, at *2. Thus, we
overrule Lancaster’s fifth point.
We affirm the judgments.
FELIPE REYNA
Justice
Lancaster v. State Page 16
Before Chief Justice Gray,
Justice Reyna, and
Justice Davis
(Chief Justice Gray concurs in the Court’s judgment to the extent it affirms the
trial court’s judgment. A separate opinion will not issue.)
Affirmed
Opinion delivered and filed May 26, 2010
Publish
[CRPM]
Lancaster v. State Page 17