Arin Laron Antwine v. State ( 2011 )

NUMBERS 13-11-00202-CR
13-11-00203-CR
13-11-00216-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
ARIN LARON ANTWINE, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 252nd District Court
of Jefferson County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Vela, and Perkes
Memorandum Opinion by Justice Rodriguez
Appellant Arin Laron Antwine challenges his sentences for his two convictions for
possession of a controlled substance (appellate cause numbers 13-11-00202-CR and
13-11-00216-CR) and one conviction for unauthorized use of a vehicle (appellate cause
number 13-11-00203-CR). See TEX. HEALTH & SAFETY CODE ANN. § 481.115 (West
2010); TEX. PENAL CODE ANN. § 31.07 (West 2003). In each of the foregoing cases, the
trial court revoked Antwine's deferred-adjudication community supervision, adjudicated
his guilt, and sentenced him to two years' incarceration in the State Jail Division of the
Texas Department of Criminal Justice. The trial court ordered the sentences to run
consecutively. In an identical single appellate issue in each cause number, which
causes we consolidate and address together in this opinion, Antwine complains that the
trial court's sentence-cumulation orders were legally insufficient and therefore void. We
modify the trial court's judgments adjudicating guilt and affirm those judgments as
modified.
I. BACKGROUND1
The State indicted Antwine for two possession of a controlled substance
offenses—trial court cause numbers 96380 and 97138—and one unauthorized use of a
vehicle offense—trial court cause number 97626. At a single hearing in January 2008,
Antwine pleaded guilty to each offense, and the trial court placed Antwine on five years'
deferred-adjudication community supervision for each offense.2
The State later filed motions to revoke Antwine's deferred-adjudication community
supervision in each cause, alleging that Antwine had violated various terms of his
deferred-adjudication community supervision. The trial court again held a single hearing
1
This case is before the Court on transfer from the Ninth Court of Appeals in Beaumont pursuant to
a docket equalization order issued by the Supreme Court of Texas. See TEX. GOV'T CODE ANN. § 73.001
(West 2005).
2
It appears from the record that Antwine was also indicted for an additional possession of a
controlled substance offense (trial court cause number 02295). At the same January 2008 hearing,
Antwine also pleaded guilty to and was given deferred-adjudication community supervision for this
additional offense.
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on the motions to revoke, at which it found that Antwine violated the terms of his
deferred-adjudication community supervision and revoked Antwine's community
supervision for all three offenses. The trial court adjudicated Antwine's guilt and, for
each offense, sentenced Antwine to two years' incarceration in state jail. 3 The
sentences were ordered to run consecutively both orally by the trial court at the revocation
hearing and in the written judgments of conviction.
The relevant portions of trial court's adjudications of guilt, sentences, and oral
pronouncements regarding the cumulation of the sentences follow:
[In] Cause No. 2295, . . . I find you guilty of the offense of possession
of a controlled substance. . . . I assess your punishment at two years
confinement in the state jail.
....
In Cause No. 97626[,] . . . I now find you guilty of the offense of
unauthorized use of a motor vehicle. . . . I assess your punishment at two
years confinement in the state jail. . . . Cause No. 97626 will run
consecutive to Cause No. 2295. . . .
....
[In] Cause No. 97138[,] . . . I now find you guilty of the offense of
possession of a controlled substance. . . . I assess your punishment at two
years confinement in the state jail. . . . Cause No. 97138 will run
consecutive to Cause No. 97626. . . .
....
[And in] Cause No. 96380[,] . . . I now find you guilty of the offense of
possession of a controlled substance. . . . I assess your punishment at two
years confinement in the state jail. . . . Cause No. 96380 will run
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At the revocation hearing, the trial court also revoked Antwine's deferred-adjudication community
supervision in cause number 02295, adjudicated his guilt, and sentenced him to two years' incarceration for
that offense. Antwine also appealed his conviction in that cause number but that appeal was dismissed by
this Court and that cause is not before us in this appeal. However, in so far as the trial court's cumulation
orders reference cause number 02295, we will refer to it as necessary in addressing the court's orders and
our modification of those orders.
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consecutive to Cause No. 97138.
The cumulation orders in Antwine's written judgments of conviction differed from
the above oral pronouncements. The judgment for cause number 96380 stated, "This
sentence shall run consecutive upon completion of cause 07-02295." (Emphasis
omitted.) The judgment for cause number 97138 stated, "This sentence shall run
consecutive upon completion of cause 96380." (Emphasis omitted.) The judgment for
cause number 97626 stated, "This sentence shall run consecutive to cause 97138."
Antwine appeals from those judgments.
II. DISCUSSION
A. Cumulation Orders
By his sole issue in each appellate cause number, Antwine argues that the trial
court's written cumulation orders in the judgments of conviction are void because they (1)
"fail[] to state any of the proper elements required by law," and (2) "fail[] to support the
validity of the oral cumulation order[s] made in open court." The relief Antwine prays for
is "remov[ing] all reference [in the judgments] to [his] sentence[s] running consecutively to
any other" and modification of the judgments to order that his sentences "run
concurrently." See Ex parte Hernandez, 758 S.W.2d 594, 596 (Tex. Crim. App. 1988)
(en banc) ("It is observed that where the sentence is silent as to any order of cumulation
of sentences or there is an improper order of cumulation the sentence will automatically
run concurrently with any other outstanding sentence.") (citations omitted).
"It has been recommended that [a trial court's orders cumulating a defendant's
sentences] contain:
(1) the trial court number of the prior conviction;
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(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) (citing Phillips v. State, 488
S.W.2d 97 (Tex. Crim. App. 1972); Ex parte Lewis, 167 Tex. Crim. 237, 320 S.W.2d 17
(1959)). While a cumulation order need not contain all five elements to be upheld, a
cumulation order containing only one of the elements is generally insufficient. Williams
v. State, 675 S.W.2d 754, 764 (Tex. Crim. App. 1984) (op. on reh'g). But there is an
exception to this general rule: cumulation orders that reference only the previous cause
number are sufficient "provided the order was in the same court as the sentence to which
it is made cumulative." Hamm v. State, 513 S.W.2d 85, 86-87 (Tex. Crim. App. 1974)
(citations omitted).
Here, the written cumulation orders in the judgments of conviction contain only the
trial court cause number of the prior conviction. However, each of Antwine's judgments
were entered by the same court pursuant to pronouncements made one right after the
other during the same revocation hearing. As such, we conclude that the cumulation
orders in this case fall within the exception to the general rule that inclusion of one
element is insufficient. We are unpersuaded by Antwine's first argument regarding the
necessary elements in cumulation orders.
But even though the cumulation orders contain sufficient elements, we do agree
with what seems to be the underlying premise of Antwine's second argument—that the
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trial court's written cumulation orders in the judgments of conviction do not correspond to
the oral pronouncements made by the court at Antwine's revocation hearing. We
disagree, however, that the proper remedy is alteration of the judgments to order that the
sentences for the convictions run concurrently. Rather, it is plain from the reporter's
record of the revocation hearing that the trial court intended to stack Antwine's sentences,
and the court's oral pronouncements contained the necessary elements, as described
above. Because the trial court's oral pronouncements were clear and provide this Court
with the necessary information, we will reform the written cumulation orders in the
judgments of conviction to conform with the trial court's oral cumulation pronouncements.
See Madrigal Rodriguez v. State, 749 S.W.2d 576, 580 (Tex. App.—Corpus Christi 1988,
pet. ref'd) (citing Banks v. State, 708 S.W.2d 460, 462 (Tex. Crim. App. 1986)). The
judgments are modified as follows to reflect the trial court's oral pronouncements:
For trial court cause number 97626, the cumulation order in the judgment of
conviction shall read: "This two-year state jail sentence for the offense of
unauthorized use of a vehicle shall run consecutively to the two-year state jail
sentence for possession of a controlled substance imposed on February 23, 2011
in Cause Number 07-02295 in the 252nd District Court of Jefferson County,
Texas."
For trial court cause number 97138, the cumulation order in the judgment of
conviction shall read: "This two-year state jail sentence for the offense of
possession of a controlled substance shall run consecutively to the two-year state
jail sentence for unauthorized use of a vehicle imposed on February 23, 1011 in
Cause Number 97626 in the 252nd District Court of Jefferson County, Texas."
For trial court cause number 96380, the cumulation order in the judgment of
conviction shall read: "This two-year state jail sentence for the offense of
possession of a controlled substance shall run consecutively to the two-year state
jail sentence for possession of a controlled substance imposed on February 23,
2011 in Cause Number 97138 in the 252nd District Court of Jefferson County,
Texas."
Antwine's appellate issues are overruled.
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B. Further Modification
In our review of the record, we have discovered that Antwine's two judgments of
conviction for possession of a controlled substance contain typographical errors. The
judgments for trial court cause numbers 96380 and 97138 (appellate cause numbers
13-11-00202-CR and 13-11-00216-CR, respectively) list the statute of offense to be "Sec.
481.115 T.C.S.A. Penal Code." (Emphases omitted.) While the judgments correctly
refer to the relevant section as being contained in the Texas Controlled Substances Act
(TCSA), the TCSA is contained in the Texas Health and Safety Code, not in the Texas
Penal Code. See TEX. HEALTH & SAFETY CODE ANN. §§ 481.001-.314 (West 2010).
Because we have the necessary information for reformation, we modify Antwine's
judgments of conviction in trial court cause numbers 96380 and 97138 to include the
following statute of offense: Section 481.115 of the TCSA, Texas Health and Safety
Code. See id. § 481.115; see also TEX. R. APP. P. 43.2; Bigley v. State, 865 S.W.2d 26,
27 (Tex. Crim. App. 1993).
IV. CONCLUSION
We affirm the judgments of conviction as modified.
NELDA V. RODRIGUEZ
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the 13th
day of October, 2011.
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