Thomas Freeman v. State ( 2014 )

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
MEMORANDUM ORDER
Appellate case name: Thomas Freeman v. The State of Texas
Appellate case number: 01-13-00342-CR
Trial court case number: 1280765
Trial court: 178th District Court of Harris County
The reporter’s record indicates that the trial court, in its oral pronouncement of judgment,
assessed two different punishments for Appellant, Thomas Freeman. See 21 R.R. at 23. The
trial court ordered that Appellant be sentenced to 18 years’ confinement and that Appellant be
sentenced to 25 years’ confinement. Id. There is no indication in the record of whether the
sentence of 25 years’ confinement was an intentional change or an inadvertent misstatement.
The written judgment indicates that Appellant’s sentence is 25 years’ confinement.
Appellant argues on appeal that there is a conflict between the oral pronouncement of judgment
and the written judgment. When there is a conflict between the oral pronouncement of judgment
and the written judgment, the oral pronouncement controls. See Taylor v. State, 131 S.W.3d 497,
500 (Tex. Crim. App. 2004).
Courts of Appeals have the authority to correct and reform a trial court’s judgment when
it has the necessary information and data to do so. Torres v. State, 391 S.W.3d 179, 185 (Tex.
App.—Houston [1st Dist.] 2012, pet. ref’d). In contrast, rule 44.4 of the Texas Rules of
Appellate Procedure prohibits a court of appeals from affirming or reversing a judgment if an
action by the trial court “prevents the proper presentation of a case to the court of appeals” if that
action can be corrected by the trial court. TEX. R. APP. P. 44.4(a).
Accordingly, we abate the appeal and remand the case to the trial court. The trial court is
ordered to issue findings of fact and conclusions of law resolving the conflict in the oral
pronouncement. If necessary, the trial court is authorized to correct any clerical errors in its
written judgment. See Ex parte Poe, 751 S.W.2d 873, 876 (Tex. Crim. App. 1988) (recognizing
authority of trial courts to correct clerical errors—corrections in written judgment to reflect
actual judgment—in judgment nunc pro tunc). A new punishment may not be assessed. See
State v. Aguilar, 165 S.W.3d 695, 698 (Tex. Crim. App. 2005) (holding modifications to
sentence cannot be made after day of assessment of initial sentence). The trial court is ordered to
take these actions no later than 45 days from the date of this order.
The district clerk is ordered to prepare and file with this Court a supplemental clerk’s
record containing any additional orders signed by the trial court in response to this abatement
order. Such supplemental clerk’s record shall be sent to this Court no later than 60 days from the
date of this order. If any record is created of any hearing ordered or granted by the trial court,
the court reporter is ordered to prepare and file a supplemental reporter’s record no later than 60
days from the date of this order. The cost of preparing this record will be assessed as part of the
costs of this appeal upon issuance of this Court’s judgment.
The appeal is abated, treated as a closed case, and removed from this Court’s active
docket. The appeal will be reinstated on this Court’s active docket when the supplemental
clerk’s record is filed in this Court.
It is so ORDERED.
Judge’s signature: /s/ Laura Carter Higley
Acting individually
Date: June 26, 2014