Jimmie Kyle Anderson v. State

In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________
No. 07-17-00421-CR
No. 07-17-00428-CR
No. 07-17-00429-CR
No. 07-17-00430-CR
________________________
JIMMIE KYLE ANDERSON, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 46th District Court
Hardeman County, Texas
Trial Court No. 4360; Honorable Dan Mike Bird, Presiding
March 22, 2019
MEMORANDUM OPINION
Before QUINN, C.J., and PIRTLE and PARKER, JJ.
Following open pleas of guilty to three counts of indecency with a child by sexual
contact and one count of aggravated sexual assault of a child, Appellant, Jimmie Kyle
Anderson, was convicted on all counts. After electing to have the jury assess his
punishment, he was sentenced to fifteen years for each count of indecency with a child
by sexual contact1 and ninety-nine years for aggravated sexual assault of a child.2
By a sole issue, Appellant maintains the trial court committed reversible error by
ordering his sentences to run consecutively in violation of the Eighth Amendment to the
United States Constitution. We affirm.
PROCEDURAL FUBAR3
As a preliminary matter, it is essential that we untangle the confusion created by
the trial court’s unexplained renumbering of the offenses—not once, but three times—
and its errors in the drafting of the final written judgments, making this case an excellent
example of why separate charges should be brought as separate indictments, resulting
in separate judgments. As originally indicted, Appellant was charged with five offenses.
Counts I and II charged Appellant with aggravated sexual assault of Jane Doe and Sara
Doe, respectively, and the remaining three counts charged him with indecency with a
child by sexual contact with Jane Doe, Sara Doe, and Mary Doe, respectively. Count II
was subsequently dismissed. When the case was presented to the jury and sentence
was pronounced in open court, Count I remained the aggravated sexual assault charge
as to Jane Doe; the dismissed Count II became the indecency with a child by sexual
contact charge as to Jane Doe (formerly Count III); Count III became the indecency with
1 TEX. PENAL CODE ANN. § 21.11(a)(1) (West Supp. 2018). An offense under this section is a felony
of the second degree.
2 TEX. PENAL CODE ANN. § 22.021(a)(2)(B) (West Supp. 2018). An offense under this section is a
felony of the first degree.
3 Fubar: [fo͞oˌbär] adj.; A military acronym indicating that something is out of working order;
seriously, perhaps irreparably damaged. Oxford English Dictionary (third ed.). Oxford University Pres.
2005.
2
a child by sexual contact as to Sara Doe (formerly Count IV); Count IV became the
indecency with a child by sexual contact as to Mary Doe (formerly Count V); and Count
V disappeared. When the written judgments were finally prepared, Count I somehow
became the indecency with a child by sexual contact as to Jane Doe; Count II became
the indecency with a child by sexual contact as to Sara Doe; Count III became the
indecency with a child by sexual contact as to Mary Doe; and Count IV became the
aggravated sexual assault charge. This means that at four different stages (indictment,
jury charge, pronouncement of sentence, and execution of written judgments), the trial
court referred to the various charges using three different “count” numbering systems.
This confusion should have been avoided and it could have been by simply using a
separate indictment as to each offense.
And, if that wasn’t confusing enough, contrary to the trial court’s oral
pronouncement of sentences, the trial court’s written judgments incorrectly ordered that
Appellant’s sentences for indecency with a child be served consecutively to one another,
but not consecutively to the aggravated sexual assault sentence. Finally, as drafted, the
written judgments as to Counts I and II create an impossible sentence because they
provide that the sentence for that particular offense “shall begin” when the sentence for
that same offense has “terminated,” creating an incongruous circuity.
A chart of the four convictions, arranged by the count number used in the final
written judgments, is as follows:
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COUNT PER CHARGE PENAL CODE SENTENCE PER SENTENCE PER
JUDGMENT JUDGMENT ORAL
PRONOUNCEMENT4
Count I Indecency with a child TEX. PENAL CODE Fifteen years Fifteen years
by sexual contact ANN. § 21.11(a)(1)
(Jane Doe) (West Supp. 2018) Consecutive to Consecutive to Count I
Counts I, II, and III
Count II Indecency with a child TEX. PENAL CODE Fifteen years Fifteen years
by sexual contact ANN. § 21.11(a)(1)
(Sara Doe) (West Supp. 2018) Consecutive to Consecutive to Counts
Counts I and II I and II
Count III Indecency with a child TEX. PENAL CODE Fifteen years Fifteen years
by sexual contact ANN. § 21.11(a)(1)
(Mary Doe) (West Supp. 2018) Consecutive to Consecutive to Counts
Count I I, II, and III
Count IV Aggravated sexual TEX. PENAL CODE Ninety-nine years Ninety-nine years
assault of a child ANN. §
22.021(a)(2)(B) Concurrent
(West Supp. 2018)
Because an understanding of the proper judgment is critical to our analysis, we will first
address the reformation of the judgments to reflect the sentences as pronounced in open
court.
REFORMATION OF THE JUDGMENTS
As we have indicated above, in its submission of the case to the jury, the trial court
renumbered the “counts,” with Counts I, II, and III becoming the indecency with a child by
sexual contact offenses and Count IV becoming the aggravated sexual assault offense.
Because the trial court used a different numbering system when it pronounced each
sentence, it is necessary to reform the judgments to conform to the sentence pronounced.
This is particularly confusing because, at the time of the trial court’s oral pronouncement, it was
4
referring to Count I as Count II, Count II as Count III, and Count III as Count IV, and Count IV as Count I.
4
This court has the power to reform the judgment of the court below to make the
record speak the truth when we have the necessary information to do so. TEX. R. APP. P.
43.2(b). Ramirez v. State, 336 S.W.3d 846, 852 (Tex. App.—Amarillo 2011, pet. ref'd)
(citing Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993)). Appellate courts
have the power to reform whatever the trial court could have corrected by a judgment
nunc pro tunc where the evidence necessary to correct the judgment appears in the
record. Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet. ref'd). The
power to reform a judgment is “not dependent upon the request of any party, nor does it
turn on the question of whether a party has or has not objected in the trial court.” Id. at
529-30.
It is well-settled that when there is a conflict between the oral pronouncement of
sentence in open court and the sentence set out in the written judgment, the oral
pronouncement controls. Burt v. State, 445 S.W.3d 752, 757 (Tex. Crim. App. 2014);
Taylor v. State, 108 S.W.3d 497, 500 (Tex. Crim. App. 2004); Thompson v. State, 108
S.W.3d 287, 290 (Tex. Crim. App. 2003). The solution in such a situation is to reform the
written judgment to conform to the trial court’s oral pronouncement. Id.
Here, the record reflects that, immediately following the assessment of the ninety-
nine year sentence with respect to the aggravated sexual assault charge, the trial court
said nothing with respect to whether that sentence would be served concurrently or
consecutively. Because the trial court did not otherwise provide, this sentence must be
served concurrent to any other sentence. In that regard, the written judgment as to Count
IV is correct.
5
Immediately following the assessment of the fifteen-year sentence with respect to
the indecency with a child by sexual contact as to Jane Doe, the trial court stated, “[t]hat
sentence would begin from when the sentence on Count I was terminated.” Because, at
that point, Count I was the aggravated sexual assault charge, the trial court effectively
ordered that the sentence could not begin until that sentence (now Count IV) was
completed. In order to correct this error, we reform the judgment in Count I (indecency
with a child by sexual contact) to reflect: “This sentence shall begin when the judgment
and sentence in Cause No. 4360 (Count IV) has ceased to operate.”
Immediately following the assessment of the fifteen-year sentence with respect to
the indecency with a child by sexual contact as to Sara Doe, the trial court stated, “[t]hat
sentence will begin . . . when the sentences on Count I and II are terminated.” Because,
at that point, Count I was the aggravated sexual assault charge and Count II was the
indecency with a child by sexual contact as to Jane Doe, the trial court effectively ordered
that the sentence could not begin until the sentences (now Counts I and IV) were
completed. In order to correct this error, we reform the judgment in Count II (indecency
with a child by sexual contact) to reflect: “This sentence shall begin when the judgment
and sentence in Cause No. 4360 (Count I) and Cause No. 4360 (Count IV) have ceased
to operate.”
Immediately following the assessment of the fifteen-year sentence with respect to
the indecency with a child by sexual contact as to Mary Doe, the trial court stated, “[t]his
sentence . . . will begin when the sentences on Count I, II and III are terminated.”
Because, at that point, Count I was the aggravated sexual assault charge, Count II was
the indecency with a child by sexual contact as to Jane Doe, and Count III was the
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indecency with a child by sexual contact as to Sara Doe, the trial court effectively ordered
that the sentence could not begin until the sentences (now Counts I, II, and IV) were
completed. In order to correct this error, we reform the judgment in Count III (indecency
with a child by sexual contact) to reflect: “This sentence shall begin when the judgment
and sentence in Cause No. 4360 (Count I), Cause No. 4360 (Count II) and Cause No.
4360 (Count IV) have ceased to operate.”
BACKGROUND
After Appellant pleaded guilty to four counts of the indictment, a jury heard
punishment evidence. Appellant’s ex-wife testified that she and Appellant met online in
2007 and they married in 2008. In 2013, they became foster parents and over time, they
fostered twenty-five children. In 2017, they had six children in the home ranging in age
from four months to ten years.
In May 2017, Appellant’s wife went into a bedroom to check on some of the children
and discovered one of the girls had her pants unzipped. When questioned about it, the
five-year-old child responded that she and two other children were playing a game
Appellant played with them.5 She described the game as one where “daddy puts that
thing in our butts.” When questioned further, she indicated the “thing” she was referring
to was Appellant’s penis. More questioning by Appellant’s wife led one of the girls to say
that Appellant sometimes puts his “body part” in her mouth causing her to choke.
5 Two of the girls were five years old and one was three.
7
Appellant’s wife told the children they were going for a drive so they could be out
of the house when Appellant arrived home. She took them to the foster care agency in
Wichita Falls and the police were called. An investigation ensued.
Texas Ranger Rickey Brown was asked to assist in the investigation. He assisted
Appellant’s wife in making a voluntary phone call to Appellant to confront him about the
allegations. The call was recorded. After his initial denials, Appellant admitted abusing
the girls and expressed remorse. At a later date, he agreed to waive his rights and be
interviewed by Ranger Brown. Speaking candidly and remorsefully, Appellant described
what he did to the girls. The audio recordings of Appellant’s phone call with his wife and
of his interview with Ranger Brown were played for the jury.
During the punishment hearing, three former foster children who stayed with
Appellant and his wife in 2014, also testified. These three children were sisters, and at
the time of the punishment hearing, they were eleven, twelve, and thirteen years of age.
Each of them testified they were sexually assaulted by Appellant. One of the sisters
testified that he “raped” her “[e]very day for, like, a week or more.” Another sister testified
he “bribed us with money . . . if we did what he wanted . . . .” The third sister testified that
Appellant made her do uncomfortable things when his wife was not around such as “drink
his sperm and basically have sex with him.” According to them Appellant threatened to
kill them if they told anyone of the abuse.
During his case-in-chief, Appellant presented the testimony of his sister, his father
and mother, and a former co-worker. They testified to his favorable character traits, his
childhood activities, and his dependability as an employee.
8
By his sole issue, he asserts his consecutive sentences constitute cruel and
unusual punishment in violation of the Eighth Amendment to the United States
Constitution. For the reasons discussed below, we disagree.
APPLICABLE LAW
The Eighth Amendment prohibits excessive bail or fines as well as cruel and
unusual punishment. U.S. CONST. amend. VIII. This provision is applicable to the states
through the Fourteenth Amendment. Furman v. Georgia, 408 U.S. 238, 239 92 S. Ct.
2726, 33 L. Ed. 2d 346 (1972).
A complaint that punishment is cruel and unusual must be preserved for review.
Sharp v. State, No. 07-17-00128-CR, 2017 Tex. App. LEXIS 11295, at *2 (Tex. App.—
Amarillo Dec. 5, 2017, no pet.) (mem. op., not designated for publication). Constitutional
rights, including the right to be free from cruel and unusual punishment, may be waived
by failure to object. See Castaneda v. State, 135 S.W.3d 719, 723 (Tex. Crim. App.
2003). To avoid procedural default on appeal on a punishment issue, a defendant must
complain of the sentence by objection during trial or, if there was no opportunity to object,
in a motion for new trial. See TEX. R. APP. P. 33.1(a)(1). See also Hardeman v. State, 1
S.W.3d 689, 690 (Tex. Crim. App. 1999); Issa v. State, 826 S.W.2d 159, 161 (Tex. Crim.
App. 1992). The requirement that an objection be raised in the trial court assumes that
the defendant had the opportunity to raise it there. Hardeman, 1 S.W.3d at 690.6
6 The sentences imposed were within the applicable range of punishment for the offenses, and
Texas courts have traditionally held that, so long as the punishment imposed is within the range prescribed
by the Legislature in a valid statute, that punishment is not excessive, cruel, or unusual. See Stacks v.
State, No. 07-15-00336-CR, 2017 Tex. App. LEXIS 7690, at *15 (Tex. App.—Amarillo Aug. 14, 2017, pet.
ref’d) (mem. op., not designated for publication). See, e.g., Darden v. State, 430 S.W.2d 494, 496 (Tex.
Crim. App. 1968). See also Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984); Rodriguez v.
State, 917 S.W.2d 90, 92 (Tex. App.—Amarillo 1996, pet. ref'd).
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ANALYSIS
Appellant complains that the trial court erred in “stacking of the four sentences in
which the first sentence of 99 years Appellant [is] not eligible for parole.” As we have
noted above, as reformed to conform to the trial court’s oral pronouncement of sentence,
this is, in effect, what the trial court ordered with respect to Appellant’s four sentences.
During the sentencing phase of the underlying case, after the jury returned its punishment
verdict, the trial court inquired, for each separate count, if there was any legal reason why
sentence should not be pronounced to which defense counsel replied “[n]o” each time.
As such, during pronouncement of sentence, Appellant was given an opportunity to
complain about the alleged “cruel and unusual” nature of his punishment, including the
cumulative nature of his sentences, but he did not. Neither did he raise it in a motion for
new trial. Accordingly, Appellant has failed to preserve error by failing to object at his
earliest opportunity. Appellant’s sole issue is overruled.
CONCLUSION
The trial court is ordered to execute a corrected judgment nunc pro tunc as to
Counts I, II, and III and to provide a copy of those corrected judgments to the Texas
Department of Criminal Justice. As reformed, the trial court’s judgments are affirmed.
Patrick A. Pirtle
Justice
Do not publish.
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