Douglas Michael Mitchell II v. State

In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-18-00333-CR
NO. 09-18-00334-CR
NO. 09-18-00335-CR
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DOUGLAS MICHAEL MITCHELL II, Appellant
V.
THE STATE OF TEXAS, Appellee
__________________________________________________________________
On Appeal from the 359th District Court
Montgomery County, Texas
Trial Cause Nos. 16-07-07650-CR, 16-07-07903-CR, 16-07-07920-CR
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MEMORANDUM OPINION
Douglas Michael Mitchell II appeals the trial court’s judgments stacking his
sentences following convictions by a jury on three separate counts of indecency with
a child by contact, a second-degree felony. See Tex. Penal Code Ann. § 21.11(a)(1).
Mitchell elected to have the jury assess punishment. The jury assessed punishment
of incarceration in the Institutional Division of the Texas Department of Criminal
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Justice for three years in trial cause number 16-07-07650, ten years in trial cause
number 16-07-07903, and four years in trial cause number 16-07-07920. In a single
issue on appeal, Mitchell complains that the judgments stacking the sentences were
inconsistent with the trial court’s oral pronouncement. We affirm the trial court’s
judgments.
Background
A Montgomery County grand jury indicted Mitchell for three separate counts
of indecency with a child by contact. Prior to trial, the State filed a motion to
cumulate the sentences. Before orally pronouncing the sentences, the trial court held
a brief hearing on the State’s motion to cumulate and granted the State’s motion
thereafter. Following its oral pronouncement, the trial court entered judgments
reflecting that the sentences would run consecutively. 1
Mitchell argues on appeal that the trial court did not exercise its discretion to
stack the sentences when the trial judge orally pronounced each sentence, and
specifically points to the trial court’s statement that each sentence should
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The original judgments noted that the sentences were to run consecutively.
However, the original judgments noted “see below” for additional information
pertaining to the consecutive sentences, but none of the original judgments contained
the language specifying the sequence in which the sentences were to run. Thereafter,
the trial court entered a judgment nunc pro tunc in each trial cause, which included
the language specifying the sequence in which the sentences would run.
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“commence this day[.]” Our review of the record reveals that during the hearing on
the State’s motion to cumulate the sentences, held immediately before the trial
court’s oral pronouncement, the trial court explained that
[h]aving heard the argument of counsel and having considered all of the
evidence in both phases of these cases, I do find that the sentences of
three, four, and ten years should be served cumulatively; that they
should be stacked and not served concurrently. And that will be the
order of this Court.
Following a brief recess after the trial court’s ruling on the motion to
cumulate, the trial court proceeded to orally pronounce Mitchell’s sentence. The trial
court pronounced the sentence for each cause number, stating after each one that the
sentence would “commence this day[;]” however, after going through each sentence
individually, the court orally pronounced that the “sentences shall run cumulatively
and shall be stacked.”
Analysis
The trial court has the discretion to cumulate sentences. See Tex. Code Crim.
Proc. Ann. art. 42.08. In all felony cases, the “sentence shall be pronounced in the
defendant’s presence.” Id. art. 42.03, § 1(a). If a “defendant is convicted of more
than one offense in the same proceeding, the court must pronounce whether the
sentences will run concurrently or consecutively.” Aguilar v. State, 202 S.W.3d 840,
842 (Tex. App.—Waco 2006, pet. ref’d) (citing Tex. Code Crim. Proc. Ann. art.
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42.08; Ex parte Madding, 70 S.W.3d 131, 136 (Tex. Crim. App. 2002); Nicholas v.
State, 56 S.W.3d 760, 767 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d)). A
trial court’s written judgment only memorializes the oral pronouncement. Id.;
Madding, 70 S.W.3d at 135.
If there is a variation between the written judgment and the oral
pronouncement of sentence, then the oral pronouncement controls. Coffey v. State,
979 S.W.2d 326, 328 (Tex. Crim. App. 1998); see also Taylor v. State, 131 S.W.3d
497, 500 (Tex. Crim. App. 2004). The Waco Court of Appeals explained in Aguilar
that not every “variation” invokes the rule pronounced in Coffey. See Aguilar, 202
S.W.3d at 843. Rather, it noted that “if there is a conflicting variation, the oral
pronouncement will control.” See id. (emphasis added); see also Taylor; 131 S.W.3d
at 500 (“When there is a conflict between the oral pronouncement of sentence and
the sentence in the written judgment, the oral pronouncement controls.”) (emphasis
added).
Mitchell contends the trial court’s oral pronouncement did not indicate his
sentences should run consecutively, and therefore, the written judgments should be
reformed to reflect that the sentences run concurrently. Mitchell specifically argues
that despite the trial court’s granting of the State’s motion to cumulate, “it still failed
to exercise its discretion to stack sentences during the official oral pronouncement
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of sentence in each cause.” Mitchell points to the fact that the trial court ordered that
the sentences in each cause “commence this day” and interprets that to mean the
sentences are to run together. We disagree.
Although the trial court’s statement that each sentence would “commence this
day” may have created ambiguity, we do not view this as being a conflict between
the written judgments and the oral pronouncement. See Aguilar, 202 S.W.3d at 843.
We read the jury’s punishment verdict, the court’s pronouncement, and the written
judgment together to resolve any ambiguity. See id. The jury assessed punishment
within the statutory range of three years, ten years, and four years on each cause
respectively. Prior to its oral pronouncement, the trial court granted the State’s
motion to cumulate. The trial court’s oral pronouncement was consistent with such
ruling as it accurately reflected the term of each punishment the jury assigned and
explained that the sentences would be stacked. Each original written judgment
likewise noted that the sentence would run consecutively.
The judgments nunc pro tunc also indicated the sentences would run
consecutively and addressed a clerical error failing to specify the sequential order in
which the sentences would run. See Alvarez v. State, 605 S.W.2d 615, 617 (Tex.
Crim. App. 1980) (“The purpose of a nunc pro tunc order is to correctly reflect from
the records of the court a judgment actually made by it, but which for some reason
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was not entered of record at the proper time.”). The judgments nunc pro tunc added
specificity by stating that the sentence in cause number 16-07-07650 would run first,
followed by the sentence in cause number 16-07-07903, which would then be
followed by the sentence in cause number 16-07-07920. See Strahan v. State, 306
S.W.3d 342, 353 (Tex. App.—Forth Worth 2010, pet. ref’d) (“Because a trial court
may correct a cumulation order nunc pro tunc to add descriptive details, we conclude
that the judgments nunc pro tunc were the proper vehicle for the trial court to
accomplish what it set out to do in its oral pronouncement.”) (citation omitted).
Accordingly, the judgments nunc pro tunc are not void.
Based on the foregoing, Mitchell’s assertion that the trial court impermissibly
stacked his sentences is unsupported by the record in this case. We determine the
record clearly establishes that the trial court granted the State’s motion to cumulate,
then subsequently pronounced the sentences “would be stacked” and would “run
cumulatively.” Considering the jury’s verdict, the entirety of the oral
pronouncement, and the written judgments together, we determine there is no
conflicting variation between the oral pronouncement and the written judgments.
See Aguilar, 202 S.W.3d at 843. The judgments nunc pro tunc were consistent with
the trial court’s oral pronouncement and permissibly added descriptive details. See
Strahan, 306 S.W.3d at 353. We overrule Mitchell’s sole issue on appeal.
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Conclusion
Having determined no impermissible conflict in the trial court’s oral
pronouncement and written judgments existed, the trial court properly cumulated
Mitchell’s sentences. We affirm the trial court’s judgments.
AFFIRMED.
_________________________
CHARLES KREGER
Justice
Submitted on November 20, 2019
Opinion Delivered December 18, 2019
Do Not Publish
Before McKeithen, C.J., Kreger and Johnson, JJ.
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