Cornelius Oyedapo Collier v. State ( 2013 )

Affirmed as Reformed and Opinion Filed August 7, 2013
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-12-01205-CR
No. 05-12-01307-CR
CORNELIUS OYEDAPO COLLIER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 291st Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F11-54230-U and F12-50565-U
MEMORANDUM OPINION
Before Justices Moseley, Bridges, and Lang-Miers
Opinion by Justice Bridges
In two issues, appellant Cornelius Oyedapo Collier seeks: (1) to receive back-time credit
for his previous time served on his sentence in cause number F11-54230-U (prostitution with
three or more priors) and (2) to remand cause number F12-50565-U (unauthorized absence from
community correction) to address the lack of specificity in the trial court’s order for his
sentences to run consecutively. As modified, we affirm the judgments of the trial court.
Background
Appellant was charged by indictment for prostitution with three or more prior
convictions. He entered a plea of guilty. In accordance with the plea agreement, the trial court
sentenced appellant to state jail for two years, probated for five years, and assessed a fine of
$1,500. As a condition to his community supervision, appellant was required to obtain treatment
at the Dallas County Judicial Treatment Center (“Treatment Center”).
Appellant subsequently absconded from the Treatment Center and was arrested.
Appellant was later indicted for the offense of unauthorized absence from a community
correctional facility. Based on appellant’s unauthorized absence and failure to participate in
treatment at the Treatment Center, the State filed a motion to revoke community supervision on
appellant’s prostitution case. Appellant entered a plea of true to the State’s motion to revoke and
entered an open plea of guilty to the charge of unauthorized absence from a community
correctional facility.
At the conclusion of the hearing on the State’s motion to revoke, the trial court revoked
appellant’s community supervision. In each case (prostitution and unauthorized absence), the
trial court sentenced appellant to state jail for a period of two years. The trial court further
ordered appellant serve these sentences consecutively, stating the unauthorized absence
conviction “shall run consecutively and shall begin only when the judgment and sentence in the
following case has ceased to operate: F11-54230-U.” Appellant filed a motion for new trial in
each case, both of which were overruled.
Analysis
Issue One–Back-time Credit (Trial Court Cause No. F11-54230-U)
Appellant argues the trial court erred by not crediting back-time for previous time served
on his sentence in cause number F11-54230-U (prostitution with three prior convictions). The
record before us shows the trial court made a notation on its docket sheet, noting that appellant
was to receive “No Backtime.”
In his initial brief, appellant asserts he is entitled to 414 days of back-time credit against
the 2-year state jail sentence assessed by the trial court, which includes both his time in jail and
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his time at the Treatment Center. However, in his reply brief, appellant correctly concedes he is
not entitled to his time spent in the Treatment Center (203 days) when he failed to successfully
complete the treatment program. See TEX. CODE CRIM. PROC. ANN. art. 42.12, §23(b); Stevenson
v. State, No. 05-11-00295, 2012 WL 1606625, at *2-3 (Tex. App.—Dallas May 9, 2012, pet.
ref’d) (not designated for publication). In addition, the State correctly concedes appellant is
entitled to 211 days of back-credit for the time he spent in jail. See Ex parte Harris, 946 S.W.2d
79, 80 (Tex. Crim. App. 1997).
This Court has the power to modify an incorrect judgment to make the record speak the
truth when we have the necessary information to do so. See TEX. R. APP. P. 43.2(b); Bigley v.
State, 865 S.W.2d 26, 27-8 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30
(Tex. App.—Dallas 1991, pet. ref’d). Therefore, we modify the trial court’s judgment in cause
number F11-54230-U to reflect appellant receives 211 days of back-time credit.
Issue Two–Consecutive Sentences (Trial Court Cause No. F12-50565-U)
Appellant contends “the trial court’s discretionary cumulation order stacking the sentence
in Cause No. F12-50565-U is insufficient regarding specificity of previous conviction.” As
already noted, the trial court stated the unauthorized absence conviction “shall run consecutively
and shall begin only when the judgment and sentence in the following case has ceased to operate:
F11-54230-U.” In particular, appellant argues that because the judgment of the trial court only
contains the cause number of the prostitution case, “the cumulation here is insufficiently specific
to give Appellant and the Department of Criminal Justice notice of the manner in which
Appellant’s sentences should be stacked.”
Under article 42.08 of the Texas Code of Criminal Procedure, a trial judge has the
discretion to cumulate a defendant’s sentences for two or more convictions. TEX. CODE CRIM.
PROC. ANN. art. 42.08. The Texas Court of Criminal Appeals has recommended five
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requirements for cumulation orders: (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. Revels v. State, 334 S.W.3d 46, 54 (Tex. App.—Dallas 2008, no pet.) (citing Ward
v. State, 523 S.W.2d 681, 682 (Tex. Crim. App. 1975)). It is well settled that inclusion of all of
the recommended elements is not mandatory. See Banks v. State, 708 S.W.2d 460, 461 (Tex.
Crim. App. 1986); Williams v. State, 675 S.W.2d 754, 764 (Tex.Crim.App.1984) (op. on reh’g).
However, the court of criminal appeals has “generally held that cumulation orders which recite
only one of the above elements (the trial court cause number) are insufficient.” Williams, 675
S.W.2d at 764. But cf. Hamm v. State, 513 S.W.2d 85, 86 (Tex. Crim. App. 1974) (cumulation
order that refers only to a prior cause number is sufficient if order is entered in same court as
sentence to which it is made cumulative); Gaston v. State, 63 S.W.3d 893, 900 (Tex. App.—
Dallas 2001, no pet.) (cumulation order that specified cause number and county of prior Dallas
County conviction was sufficient, where court took judicial notice that Dallas County court
system assigns unique numbers to all causes within system).
To be valid, a cumulation order “should be sufficiently specific to allow the Texas
Department of Criminal Justice—Institutional Division. . .to identify the prior with which the
newer conviction is cumulated.” Ex parte San Migel, 973 S.W.2d 310, 311 (Tex. Crim. App.
1998). The courts of appeals “have the authority to reform and correct cumulation orders when
the necessary data is contained in the record.” Madrigal Rodriguez v. State, 749 S.W.2d 576,
580 (Tex. App.—Corpus Christi 1988, pet. ref’d) (citing Banks, 708 S.W.2d at 462).
Because the judgment at issue only recites the trial court cause number, we agree with
appellant that the cumulative order is insufficient. See Revels v. State, 334 S.W.3d at 56 (citing
Williams, 675 S.W.2d at 764). However, we disagree with appellant’s argument that because the
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judgment lacks the required specificity on cumulation, cause number F12-50565-U must be
reversed and remanded to the trial court for a new hearing on punishment. The courts of appeals
“have the authority to reform and correct cumulation orders when the necessary data is contained
in the record.” Madrigal Rodriguez, 749 S.W.2d at 580 (citing Banks, 708 S.W.2d at 462).
Here, the intent of the trial court as to sentencing is ascertainable from the record before us. See
Revels, 334 S.W.3d at 56, Baltimore v. State, 757 S.W.2d 80, 82 (Tex. App.—Houston [14th
Dist.] 1988, pet. ref’d); see also Banks, 708 S.W.2d at 462; Madrigal Rodriguez, 749 S.W.2d at
580.
In assessing punishment, the trial court stated the unauthorized absence conviction “shall
run consecutively and shall begin only when the judgment and sentence in the following case has
ceased to operate: F11-54230-U.” From the record before us, we can ascertain the following
about cause number F11-54230-U: (1) it resulted in a conviction against appellant in the 291st
Judicial District Court of Dallas County, Texas; (2) the date of the original community
supervision order was July 6, 2011; (3) the judgment revoking community supervision was
entered on May 30, 2012; (4) punishment was set at two years in the state jail division; and (5)
appellant was convicted for prostitution with three or more priors. See Revels v. State, 334
S.W.3d at 54. Thus, it is apparent from the record that it was the intent of the trial court that
appellant’s sentence in cause number F12-50565-U should run consecutively with the two-year
sentence appellant received in cause number F11-54230-U in the 291st Judicial District Court of
Dallas County, Texas for prostitution with three or more priors. Accordingly, we modify the
judgment to reflect the sentence actually imposed by the trial court. See Banks, 708 S.W.2d at
462. The portion of the trial court’s cumulation order that reads, “this conviction shall run
consecutively and shall begin only when the judgment and sentence in the following case has
ceased to operate: F11-54230-U,” is modified to read as follows:
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The Court ORDERS that the sentence in this conviction shall run consecutively
and shall begin only when the May 30, 2012 judgment revoking community
supervision and two-year sentence in the following case has ceased to operate:
F11-54230-U in the 291st Judicial District Court of Dallas County, Texas
involving prostitution with three or more priors.
Conclusion
With the judgments modified in cause numbers F11-54230-U and F12-50565-U, we
affirm the judgments of the trial court. See TEX. R. APP. P. 43.2.
/David L. Bridges/
Do Not Publish DAVID L. BRIDGES
TEX. R. APP. P. 47 JUSTICE
121205F.U05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
CORNELIUS OYEDAPO COLLIER, On Appeal from the 291st Judicial District
Appellant Court, Dallas County, Texas
Trial Court Cause No. F11-54230-U.
No. 05-12-01205-CR V. Opinion delivered by Justice Bridges.
Justices Moseley and Lang-Miers
THE STATE OF TEXAS, Appellee participating.
Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:
We ORDER the trial court to amend the judgment to reflect Collier receives 211
days of back-time credit.
As REFORMED, the judgment is AFFIRMED.
Judgment entered August 7, 2013
/David L. Bridges/
DAVID L. BRIDGES
JUSTICE
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
CORNELIUS OYEDAPO COLLIER, On Appeal from the 291st Judicial District
Appellant Court, Dallas County, Texas
Trial Court Cause No. F12-50565-U.
No. 05-12-01307-CR V. Opinion delivered by Justice Bridges.
Justices Moseley and Lang-Miers
THE STATE OF TEXAS, Appellee participating.
Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:
We DELETE that portion of the trial court's judgment which reads, "this
conviction shall run consecutively and shall begin only when the judgment and
sentence in the following case has ceased to operate: F11-54230-U." We
ORDER the trial court to replace the deleted language with the following: “The
Court ORDERS that the sentence in this conviction shall run consecutively and
shall begin only when the May 30, 2012 judgment revoking community
supervision and two-year sentence in the following case has ceased to operate:
F11-54230-U in the 291st Judicial District Court of Dallas County, Texas
involving prostitution with three or more priors.
As REFORMED, the judgment is AFFIRMED.
Judgment entered August 7, 2013
/David L. Bridges/
DAVID L. BRIDGES
JUSTICE
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