Jimmy Wayne Carr v. State ( 2020 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-19-00133-CR
JIMMY WAYNE CARR, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 6th District Court
Lamar County, Texas
Trial Court No. 27815
Before Morriss, C.J., Burgess and Stevens, JJ.
Memorandum Opinion by Justice Burgess
MEMORANDUM OPINION
After Jimmy Wayne Carr was found competent to stand trial by David Bell, Ph.D., he was
found guilty by the trial court of possession of child pornography and was sentenced to ten years’
imprisonment. 1 This case was tried with eleven companion cases, which are the subject of other
appeals pending before this Court. Carr filed a single, consolidated brief covering eleven of the
appeals, in which he contends that, since Bell’s qualifications do not appear in his report, there
was insufficient evidence to find him competent to stand trial.
The argument raised in this appeal is based exclusively on the argument brought before
this Court in the companion appeal styled Carr v. State, cause number 06-19-00126-CR. In our
opinion of this date disposing of that appeal, we found that Carr did not preserve his sole issue for
appeal. For the reasons set out in that opinion, we overrule Carr’s sole issue as it applies to this
appeal.
Nevertheless, we find, sua sponte, that the trial court’s judgment requires modification.
We have the authority to modify the judgment to make the record speak the truth, even if a party
does not raise the issue. TEX. R. APP. P. 43.2; French v. State, 830 S.W.2d 607, 609 (Tex. Crim.
App. 1992). “Our authority to reform incorrect judgments is not dependent on the request of any
party, nor does it turn on a question of whether a party has or has not objected in trial court; we
may act sua sponte and may have a duty to do so.” Rhoten v. State, 299 S.W.3d 349, 356 (Tex.
App.—Texarkana 2009, no pet.) (citing Asberry v. State, 813 S.W.2d 526, 531 (Tex. App.—Dallas
1991, pet. ref’d)); see French, 830 S.W.2d at 609.
1
See TEX. PENAL CODE ANN. § 43.26(a), (d).
2
In this case, the judgment of conviction recites that “THIS SENTENCE SHALL RUN:
CONSECUTIVELY.” However, when the trial court pronounced the sentences in six of the cases
consolidated for trial, including this one, he stated, “All of those sentences will run concurrently.”
When the oral pronouncement of a sentence varies from the written memorialization of that
sentence contained in the written judgment of conviction, the oral pronouncement controls. Coffey
v. State, 979 S.W.2d 326, 328 (Tex. Crim. App. 1998).
Where there is nonreversible error, we have the authority to modify judgments and affirm
as modified. Walker v. State, 557 S.W.3d 678, 690 (Tex. App.—Texarkana 2018, pet. ref’d). We
modify the trial court’s judgment by changing “THIS SENTENCE SHALL RUN:
CONSECUTIVELY” to “THIS SENTENCE SHALL RUN: CONCURRENTLY.”
For the reasons stated, we modify the trial court’s judgment by changing “THIS
SENTENCE SHALL RUN: CONSECUTIVELY” to “THIS SENTENCE SHALL RUN:
CONCURRENTLY.” As modified, we affirm the judgment of the trial court.
Ralph K. Burgess
Justice
Date Submitted: December 30, 2019
Date Decided: January 9, 2020
Do Not Publish
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