Johnathan David Strahan v. State ( 2010 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-384-CR
NO. 2-08-385-CR
JOHNATHAN DAVID STRAHAN APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 271ST DISTRICT COURT OF WISE COUNTY
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OPINION
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I. INTRODUCTION
Appellant Johnathan David Strahan appeals his convictions for seven
counts of possession of child pornography (Cause No. 14,235) and four counts
of aggravated sexual assault (Cause No. 14,236). In five points, Strahan
argues that the trial court erroneously refused to excuse a prospective juror for
cause, that the trial court erroneously denied his motion to quash the indictment
in Cause No. 14,236; that the evidence was legally insufficient in Cause No.
14,236; that the State made improper jury argument at the guilt-innocence
phase of the trial; and that the trial court incorrectly cumulated his sentences.
We will affirm the judgment in Cause. No. 14,236, and we will modify the
judgment in Cause No. 14,235 and affirm it as modified.
II. F ACTUAL B ACKGROUND1
A.H., who was born February 18, 1994, testified that she had lived in a
house with John and Gennevieve (her grandparents), 2 her sister M., her mother,
someone named Marley, a girl named Sarah, and Strahan. A.H. testified that
Strahan was her dad.
A.H. testified that when she was about ten years old, Strahan asked his
mother Gennevieve if A.H. could stay in his room, and she remembers Strahan
taking pictures of her at night. A.H. testified that she wore a nightgown to bed
and that she was awakened many times when Strahan would lift up her
nightgown and take pictures of her. A.H. saw pictures of herself on Strahan’s
computer.
1
 Because Strahan does not challenge the factual sufficiency of the
evidence to support his convictions, we set forth only a brief factual
background here. Additional background facts are provided as necessary
throughout our opinion to fully address the particular points raised by Strahan.
2
 The record revealed that John was the father of A.H.’s mother and
that Gennevieve was the mother of Strahan and his brother Joe.
2
A.H. said that Strahan touched her “[p]retty much everywhere” and later
specified that he touched her chest, her bottom, and her front private area with
his hand, his mouth, and his penis. A.H. said that Strahan put his finger inside
of her. A.H. testified that the touching happened a lot and went on for a while
before she told anyone.
When A.H. made an outcry to a friend’s mother, A.H. said, “[M]y dad
was raping me.” Shortly after A.H. made her outcry, she spoke with the
sheriff’s office. After the report was made, the police went to Strahan’s
residence to search it while CPS removed A.H.’s sister. The grandparents
consented to the search of the residence, and the police seized from Strahan’s
room a computer, a knife, and porn magazines and paperbacks. When the
police turned on Strahan’s computer, he immediately said, “I know what this
is about. I never touched [A.H.],” and stated in reference to the materials on
his computer, “This is some weird stuff, but they’re all of age.”
At the conclusion of the evidence, the jury found Strahan guilty on all
seven counts of possession of child pornography (Cause No. 14,235) and on
all four counts of aggravated sexual assault (Cause No. 14,236). The trial court
followed the jury’s recommendations on punishment, sentencing Strahan to ten
years’ imprisonment and assessing a $10,000 fine on each count of possession
of child pornography and sentencing Strahan to life imprisonment and assessing
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a $10,000 fine on each count of aggravated sexual assault. The trial court
ordered the sentences to run consecutively. This appeal followed.
III. D ENIAL OF C HALLENGE F OR C AUSE
In his first point, Strahan argues that the trial court erroneously denied his
challenge for cause to veniremember Ms. Fincher. Strahan argues that Ms.
Fincher could not be fair and was crying during her questioning.
The following exchange took place during the State’s voir dire:
[THE STATE]: And we want you to [make us do our job]. We
want you to. We want you to hold us to our burden; that’s our
responsibility.
Is there anyone else that has any concerns because of the
charge?
THE JUROR: (Indicating.)
[THE STATE]: Yes, ma’am?
THE JUROR: I just -
[THE STATE]: Ms. Fincher?
THE JUROR: I’m uncomfortable, and I don’t know that I could
really give him a fair –
I just want you to know how I feel.
[THE STATE]: Okay. Are you comfortable talking about that from
where you’re sitting? Would you rather do it at a later time
privately? Can you explain –
THE JUROR: Why –
4
[THE STATE]: -- how you’re feeling uncomfortable, or why?
THE JUROR: I guess because I have a 16-year-old, too.
[THE STATE]: Okay.
THE JUROR: I don’t know. I just have a problem with sexual
abuse.
[THE STATE]: And you should. I mean, it shouldn’t happen. It
shouldn’t happen to kids. And it should be against the law. I think
we all agree on that. And if it ever happened to your child, you
would be devastated. You would be angry. And no one would
expect you to be on the jury. No [one] would expect you to be fair
and impartial, if it were your own child.
But the question is: Is because of what he’s charged with,
are you going to walk in and go; he must be guilty? I don’t even
want to hear any of it; just give me a verdict form, Judge.
THE JUROR: That’s why I wanted you to know how I felt,
because I know he’s not --
I know I have concerns.
[THE STATE]: And I -- I respect those feelings. I have those
feelings. I bet everybody else on the panel has those feelings.
But I guess my question to you is: Because of your feelings,
are you going to, I guess, disregard your responsibility as a -- as a
juror?
THE JUROR: No.
[THE STATE]: Are you going to come in and give him the -- the
presumption of innocence and make us prove that guilt?
THE JUROR: I would try. I really would. Yes, ma’am.
5
[THE STATE]: Okay. Knowing yourself better than anybody else
in this courtroom, would you -- do you think you could do it? Do
you think you could hold us to that burden?
THE JUROR: I would try.
[THE STATE]: Okay. Anybody else have any questions or
concerns?
At the conclusion of voir dire, Defense counsel challenged Ms. Fincher,
for cause, arguing that she “couldn’t be fair.” The trial court stated that it had
written down that Ms. Fincher felt “uncomfortable,” that she said that she
would try to hold the State to its burden, and that she had not unequivocally
stated one way or the other that she could not be fair. The trial court denied
the defense’s challenge for cause. When defense counsel stated that the trial
court had erroneously overruled challenges to Ms. Fincher and two other jurors
and requested three additional strikes, the trial court denied defense counsel’s
request for additional strikes.
A trial court’s ruling on a challenge for cause will not be overturned on
appeal unless the ruling constitutes an abuse of discretion. Ladd v. State, 3
S.W.3d 547, 559 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1070 (2000).
When we review a trial court’s decision to grant or to deny a challenge for
cause, we look at the entire record. Feldman v. State, 71 S.W.3d 738, 744
(Tex. Crim. App. 2002). We give great deference to the trial court’s decision
6
because the trial judge is present to observe the demeanor of the veniremember
and to listen to her tone of voice. Id. Particular deference is given when the
potential juror’s answers are vascillating, unclear, or contradictory. Id.; King v.
State, 29 S.W.3d 556, 568 (Tex. Crim. App. 2000).
Here, the record reflects that Ms. Fincher did not cry during voir dire
questioning; another veniremember, Jody Carter, did. Ms. Fincher expressed
concerns but agreed that she would hold the State to its burden. From Ms.
Fincher’s responses, the trial court could have reasonably concluded that she
was expressing her intention to follow the law. See Stallings v. State, 47
S.W.3d 170, 174 (Tex. App.—Houston [1st Dist.] 2001, no pet.) (indicating
trial court could have concluded veniremember was expressing intention to
follow the law by not forming an opinion until he had heard the case). The trial
court saw and heard Ms. Fincher as she responded to questioning, and in light
of Ms. Fincher’s answers we must defer to the trial court’s evaluation and belief
that she could follow the law. Feldman, 71 S.W.3d at 744. Based on the
record as a whole, we hold that the trial court did not abuse its discretion by
denying Strahan’s challenge for cause to Ms. Fincher. See Stallings, 47
S.W.3d at 174; see also Newbury v. State, 135 S.W.3d 22, 35 (Tex. Crim.
App.) (holding that trial court did not abuse its discretion by denying appellant’s
challenge for cause to veniremember who gave conflicting answers because
7
trial court was in best position to evaluate veniremember’s demeanor and
responses), cert. denied, 542 U.S. 990 (2004). We therefore overrule
Strahan’s first point.
IV. D ENIAL OF M OTION TO Q UASH
In his second point, Strahan argues that the trial court erred in Cause No.
14,236 by denying his motion to quash the indictment. Strahan complains that
because the indictment did not allege a specific date but instead used “on or
about” language, the offenses presented to and indicted by the grand jury could
have been different than those presented at trial.
The State may allege in an indictment that an offense occurred “on or
about” a date certain. Sledge v. State, 953 S.W.2d 253, 255–56 (Tex. Crim.
App. 1997) (citing Mitchell v. State, 168 Tex. Crim. 606, 611, 330 S.W.2d
459, 462 (1959)). It is well settled that the “on or about” language of an
indictment allows the State to prove a date other than the one alleged in the
indictment as long as the date proved is anterior to the presentment of the
indictment and within the statutory limitations period. See Tex. Code Crim.
Proc. Ann. art. 21.02(6) (Vernon 2009); Wright v. State, 28 S.W.3d 526, 532
(Tex. Crim. App. 2000), cert. denied, 531 U.S. 1128 (2001); Scoggan v. State,
799 S.W.2d 679, 680 n.3 (Tex. Crim. App. 1990); Thomas v. State, 753
S.W.2d 688, 692 (Tex. Crim. App. 1988).
8
“[A]n indictment must ‘allege on its face the facts necessary (1) to show
that the offense was committed, (2) to bar a subsequent prosecution for the
same offense, and (3) to give the defendant notice of precisely what he is
charged with.’” State v. Edmond, 933 S.W.2d 120, 131 (Tex. Crim. App.
1996) (Baird, J., concurring and dissenting) (quoting Terry v. State, 471
S.W.2d 848, 852 (Tex. Crim. App. 1971)). An indictment or information
normally provides sufficient notice if it tracks the language of the statute.
Olurebi v. State, 870 S.W.2d 58, 62 (Tex. Crim. App. 1994). We review a trial
court’s denial of a motion to quash an indictment for an abuse of discretion.
Weatherby v. State, 61 S.W.3d 733, 736 (Tex. App.—Fort Worth 2001, pet.
ref’d).
Here, the four counts of aggravated sexual assault that were alleged in
the indictment, which was filed on May 24, 2007, tracked the language of the
aggravated sexual assault statute. See Tex. Penal Code Ann. § 22.021(a)(1)(B)
(Vernon Supp. 2009). The indictment alleged that Strahan had committed
aggravated sexual assault of A.H. on or about November 30, 2005; on or about
January 30, 2006; on or about July 30, 2006; and on or about November 30,
2006. During the trial, A.H. testified that “it happened a lot,” that it was pretty
random, and that it went on for about two years before she told Ms. Heeter on
December 1, 2006. At the conclusion of the evidence, Strahan put the State
9
to an election outside the presence of the jury. The State elected “the first time
it happened, the second time it happened, the third time it happened, and then
the last time it happened” to coincide with the four times alleged in the
indictment. Each of these times occurred before A.H. made her outcry on
December 1, 2006, and therefore occurred before the indictment date of May
24, 2007.
The evidence thus demonstrates that the acts alleged in the indictment
occurred before the presentation of the indictment to the grand jury. See Tex.
Code Crim. Proc. Ann. art. 21.02(6); Wright, 28 S.W.3d at 532. And there is
no statute of limitations period for aggravated sexual assault under penal code
section 22.021(a)(1)(B). See id. art. 12.01(1)(B) (Vernon Supp. 2009).
Moreover, grand jury proceedings are required to be kept secret, see id. art.
20.02(a) (Vernon Supp. 2009), so no evidence exists here that the offenses
presented to the grand jury differed from the offenses proved at trial. We hold
that the trial court did not abuse its discretion by denying Strahan’s motion to
quash the indictment in Cause No. 14,236. See Weatherby, 61 S.W.3d at 736
(holding that trial court did not abuse its discretion by failing to quash
indictment when there was no evidence to show that offenses presented to
grand jury differed from offenses proved at trial). We overrule Strahan’s second
point.
10
V. S UFFICIENCY OF E VIDENCE TO P ROVE V ICTIM W AS N OT S TRAHAN’S W IFE
In his third point, Strahan argues that the evidence is legally insufficient
to support his conviction in Cause No. 14,236 because the State failed to prove
that A.H. was not his spouse.
To prove a case of aggravated sexual assault of a child, the State must
show that the defendant (1) intentionally or knowingly (2) caused the
penetration (3) of the sexual organ (4) of a child. Tex. Penal Code Ann.
§ 22.021(a)(1)(B). A child is defined as a person younger than seventeen years
of age who is not the spouse of the actor. Id. § 22.011(c)(1) (Vernon Supp.
2009). However, direct evidence that the victim was not the spouse of the
defendant is not required; it may be proved by circumstantial evidence. Martin
v. State, 819 S.W.2d 552, 556 (Tex. App.—San Antonio 1991, no pet.)
(evidence that victim was six to nine years of age when offenses occurred was
sufficient evidence that she was not defendant’s spouse); Meyers v. State, 737
S.W.2d 6, 8–9 (Tex. App.—Corpus Christi 1987, no pet.) (evidence sufficient
to support inference that child victim was not defendant’s spouse).
The standard of review is the same for direct and circumstantial evidence
cases; circumstantial evidence is as probative as direct evidence in establishing
the guilt of an actor. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.
2007); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). The
11
appellate court must view all of the evidence in the light most favorable to the
prosecution in order to determine whether any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt. Jackson
v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton, 235
S.W.3d at 778.
In the instant case, we have carefully reviewed the record, and although
we find no direct evidence establishing that A.H. was not Strahan’s spouse,
there is ample circumstantial evidence establishing this fact. The evidence
established that A.H. was approximately ten years old when the sexual assaults
began taking place. A.H. initially testified that Strahan was her father but later
testified that it was confusing and that she did not know who her father was.
However, when A.H. made her outcry to a friend’s mother, she said that her
dad was raping her and then identified Strahan at trial as the perpetrator. The
nurse who examined A.H. also testified that A.H. had told her that her dad put
his privates and his finger in her privates and that her dad was Strahan.
Moreover, when A.H.’s mother testified, she said that she had a sexual
relationship with Strahan while her husband Joe was in jail and that occurred
approximately two weeks before she found out that she was pregnant with
A.H. A.H.’s mother testified that A.H. looks like Strahan and that she believes
Strahan is A.H.’s father, even though there has been no DNA testing and Joe’s
12
name is on the birth certificate. The record also reveals that while the State
was questioning A.H.’s mother about something that Strahan had said, defense
counsel objected based on the husband-wife privilege, thereby indicating a
belief that A.H.’s mother (not A.H.) was married to Strahan while Strahan was
sexually assaulting A.H.
Although the State has the burden to prove every element of the offense
of aggravated sexual assault, after reviewing the evidence in the light most
favorable to, or consistent with, the verdict of guilt, we cannot say that the
evidence supports any inference other than that A.H. was not Strahan’s
spouse. See Meyers, 737 S.W.2d at 8–9 (looking at circumstantial evidence
and holding that evidence supported no inference other than that the victim
was not the spouse of the appellant); see also Salinas v. State, No. 13-99-
00226-CR, 2000 WL 34252060, at *2 (Tex. App.—Corpus Christi Aug. 31,
2000, no pet.) (not designated for publication) (holding that it was legally
impossible for victim to be appellant’s spouse because victim was five years old
when sexual assaults occurred and appellant testified that he was victim’s
father).
We hold that the evidence is legally sufficient for a rational factfinder to
conclude that A.H. was not Strahan’s spouse. We overrule Strahan’s third
point.
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VI. P ROPER J URY A RGUMENT
In his fourth point, Strahan argues that the State made an improper jury
argument during the guilt-innocence phase of trial. Specifically, Strahan argues
that the prosecutor’s statement that he believed he had proven his case
constituted improper argument.
During closing arguments, defense counsel reread a portion of the jury
charge: “The Prosecution has the burden of proving the Defendant guilty, and
it must do so by proving each and every element charged beyond a reasonable
doubt. And if it fails to do so, you must acquit the Defendant.” Immediately
thereafter, defense counsel made the following statements:
Do you remember when you first sat down in this chair, and
Judge Fostel said, you’re going to hear evidence from the witness
stand, you’re going to hear evidence in the form [of] maybe a
photograph or an exhibit?
That’s what you consider when you decide if the State has
proved each and every element of the offense. And they have
catastrophically failed in both of these cases.
....
And they say that matter is proven, but they alleged
something that they can’t prove.
I’d be mad as I could be at my District Attorney’s office, if I
was you. I’d be furious.
I don’t live her[e]. I don’t vote here. I may not ever get
another deal here. I’d be out of here. I’d be furious.
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....
The question is: Are those the photographs that were on
that computer in a place where he knew where they were and he
could identify where they were?
And the way they have brought this to you does not prove
that; does not prove that.
If they’ve got 900 photographs, maybe they can try one of
those and get it right.
....
They may try one of these other sexual assaults and get it
right; if it’s -- if it’s been hundred of times; there’s nothing wrong
with any of that.
They failed on what they brought you here. They failed.
They failed miserably. [Emphasis added.]
During the State’s rebuttal, the prosecutor responded as follows:
You all said, when Ms. McCormick was talking to you on voir
dire, that if we proved our case, you could find him guilty.
Sometimes for a lot of people it takes a certain amount of
bravery to find somebody guilty and convict them of their crimes.
I understand that.
Sometimes it’s easy to just say, oh, we could just let him go
and forget the whole thing; I mean, that’s fine, you know. But I –
And I understand that, too.
But I’m -- I’m going to hold you to your word, because I
believe we have proven our case, beyond any doubt, actually, that
there can be no doubt --
15
Strahan’s objection followed, asserting that the prosecutor’s feelings are not
the proper subject of argument.
To be permissible, the State’s jury argument must fall within one of the
following four general areas: (1) summation of the evidence; (2) reasonable
deduction from the evidence; (3) answer to argument of opposing counsel; or
(4) plea for law enforcement. Felder v. State, 848 S.W.2d 85, 94–95 (Tex.
Crim. App. 1992), cert. denied, 510 U.S. 829 (1993); Alejandro v. State, 493
S.W.2d 230, 231 (Tex. Crim. App. 1973). The prosecution is afforded a wide
degree of latitude in drawing reasonable deductions from the evidence so long
as the inferences drawn are reasonable, fair, legitimate, and offered in good
faith. Gaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim. App. 1988). A
prosecutor is permitted to argue his opinion about a case to the jury so long as
it is based on the evidence in the record and does not constitute unsworn
testimony. Wolfe v. State, 917 S.W.2d 270, 281 (Tex. Crim. App. 1996);
Barnard v. State, 730 S.W.2d 703, 718 (Tex. Crim. App. 1987), cert. denied,
485 U.S. 929 (1988). And, likewise, a prosecutor may answer jury arguments
by the defense as long as the response does not exceed the scope of the
invitation. Andujo v. State, 755 S.W.2d 138, 144 (Tex. Crim. App. 1988).
Although Strahan characterizes the prosecutor’s argument as
impermissibly interjecting her “feelings,” her remarks actually argue that the
16
State shouldered its burden of proof. Contra Prudholm v. State, 274 S.W.3d
236, 241 (Tex. App.—Houston [1st Dist.] 2008, pet. granted) (holding
prosecutor’s argument that “I didn’t really want to come to work because I
didn’t want to have to deal with this filth. I’m tired of it. It’s disgusting,”
constituted impermissible expression of personal feelings). To the extent the
prosecutor’s argument may be construed as interjecting her belief that the State
has met its burden of proof, the argument was made in response to the defense
argument that the defense believed the State had catastrophically failed to
prove the elements of the offenses in both cases. See Mijores v. State, 11
S.W.3d 253, 258 (Tex. App.—Houston [14th Dist.] 1999, no pet.) (holding
prosecutor’s argument that the victim was credible was permissible argument
when made in response to defense argument that in his opinion victim was not
being entirely honest about the event); see also Andujo, 755 S.W.2d at 144;
Yates v. State, 917 S.W.2d 915, 919 (Tex. App.—Corpus Christi 1996, pet.
ref’d) (holding that prosecutor’s statement—in which he employed a rhetorical
device to argue that the evidence of appellant’s guilt was overwhelming—did
not indicate that his arguments were based on anything other than the evidence
admitted at trial); Ivison v. State, No. 13-01-00519-CR, 2002 WL 34230971,
at *9 (Tex. App.—Corpus Christi Aug. 30, 2002, no pet.) (not designated for
publication) (holding that prosecutor’s remarks were made in response to
17
defendant’s arguments and did not exceed the bounds of the invitation). We
overrule Strahan’s fourth point.
VII. C UMULATION OF S ENTENCES
In his fifth point, Strahan argues that the trial court improperly cumulated
his sentences because the State made no motion for cumulation and because
the orders do not meet the specificity requirements imposed by case law.
Strahan also argues that the trial court improperly attempted to correct the
alleged defects by signing a judgment nunc pro tunc.
A. Standard of Review
A trial court’s decision to cumulate sentences is reviewed for an abuse
of discretion. Hurley v. State, 130 S.W.3d 501, 503 (Tex. App.—Dallas 2004,
no pet.). An improper cumulation order is a void sentence. Id.
B. No Motion Required
Article 42.08(a) of the code of criminal procedure provides, in relevant
part, as follows:
When the same defendant has been convicted in two or more
cases, judgment and sentence shall be pronounced in each case in
the same manner as if there had been but one conviction. Except
as provided by Sections (b) and (c) of this article, in the discretion
of the court, the judgment in the second and subsequent
convictions may either be that the sentence imposed or suspended
shall begin when the judgment and the sentence imposed or
suspended in the preceding conviction has ceased to operate, or
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that the sentence imposed or suspended shall run concurrently with
the other case or cases . . . .
Tex. Code Crim. Proc. Ann. art. 42.08(a) (Vernon Supp. 2009) (emphasis
added).
As set forth above, article 42.08 vests a trial court with discretion to
cumulate a sentence without the necessity for a motion by the State.
Consequently, Strahan is presumed to know that the cumulation of his
sentences was possible. That being so, the lack of a pretrial motion by the
State to cumulate the sentences could not have rendered the cumulation order
void. See Levine v. State, Nos. 07-00-00154-CR, 07-00-00155-CR, 2001 WL
43052, at *3 (Tex. App.—Amarillo Jan. 16, 2001, no pet.) (not designated for
publication) (holding that article 42.08 authorizes a trial court to cumulate a
sentence without the necessity for a motion by the State); see also Castrellon
v. State, No. 02-05-00286-CR, 2006 WL 2830176, at *1 (Tex. App.—Fort
Worth Oct. 5, 2006, no pet.) (mem. op., not designated for publication)
(holding that appellant was not entitled to notice of stacking because statutes
provided appellant with notice). We hold that the trial court did not abuse its
discretion by entering a cumulation order without a motion from the State. We
overrule this portion of Strahan’s fifth point.
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C. Specificity of Cumulation Order
A cumulation order must be specific enough that prison authorities know
how long to detain the prisoner. Stokes v. State, 688 S.W.2d 539, 540 (Tex.
Crim. App. 1985). The Texas Court of Criminal Appeals has identified five
elements for a valid cumulation order: (1) the cause number of the prior
conviction; (2) the correct name of the trial court where the 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. Id.; Ward v. State, 523
S.W.2d 681, 682 (Tex. Crim. App. 1975). However, not all elements are
necessary for a cumulation order to be valid, so long as the earlier sentence
with which the latest sentence will be cumulated can be properly identified.
Stokes, 688 S.W.2d at 540.
The cumulation order should be sufficiently clear so that it may be
understood without having to refer to other evidence. Id. A trial court may
correct a cumulation order nunc pro tunc to add descriptive details of the prior
offenses inadvertently omitted from the trial court’s first cumulation order. See
Williams v. State, 675 S.W.2d 754, 765 n.6 (Tex. Crim. App. 1984). When a
cumulation order is not sufficiently clear, an appellate court may reform the
order and affirm it as modified if the record reveals all information required to
reform it. Banks v. State, 708 S.W.2d 460, 462 (Tex. Crim. App. 1986).
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1. The Cumulation Orders
Here, in open court, the trial court pronounced the sentence in the child
pornography case (Cause No. 14,235) at ten years’ confinement and a $10,000
fine for each of the seven counts. The trial court pronounced the sentence in
the aggravated sexual assault case (Cause No. 14,236) at confinement for life
and a $10,000 fine for each of the four counts. The trial court concluded,
As to the sentences in Cause No. 14,235, it is the order of
the Court that these the sentences -- the sentences in that case
will run consecutively.
In Cause No. 14,236, it is the order of the Court that the life
sentences in that case, the Defendant’s sentences, too, will run
consecutively.
Strahan objected to the consecutive sentences, and the trial court overruled his
objection.
The judgment for Cause No. 14,235 reflects the ten-year sentences and
the $10,000 fines that were assessed in open court in each of the seven
counts and states, “This sentence for each count shall run consecutively, and
consecutively with the sentence in 14,236.”
The judgment for Cause No. 14,236 reflects the life sentences and the
$10,000 fines that were assessed in open court in each of the four counts and
states, “This sentence for each count shall run consecutively, and consecutively
with the sentence in 14,235.”
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Less than a month later, the trial court signed judgments nunc pro tunc
in each of the cases. The judgment nunc pro tunc in Cause No. 14,236 states,
“This sentence for each count shall run consecutively as follows: Count II shall
run consecutively to Count I; Count III shall run consecutively to Count II; Count
IV shall run consecutively to Count III.”
The judgment nunc pro tunc in Cause No. 14,235 states,
This sentence for each count shall run consecutively as
follows:
Count I shall run consecutively to Count IV of Cause
#14,236;
Count II shall run consecutively to Count I;
Count III shall run consecutively to Count II;
Count IV shall run consecutively to Count III;
Count V shall run consecutively to Count IV;
Count VI shall run consecutively to Count V;
Count VII shall run consecutively to Count VI.
2. Judgments Nunc Pro Tunc Added Specificity
The situation presented here is unique: the oral pronouncement of
sentence mentioned the trial court’s intent to stack the sentences and ordered
them to run consecutively; the judgments in each case also captured this.
However, as set forth above, neither the oral pronouncement nor the judgments
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in each case stated which case’s sentence would be served first. The
judgments nunc pro tunc in each case corrected that omission, showing that
the sentence for Count I of Cause No. 14,236 would be served first. 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.
See Williams, 675 S.W.2d at 765 n.6.
However, both the original judgments and the judgments nunc pro tunc
failed to list the name of the court, the date of the conviction, the years of
punishment assessed, and the nature of the conviction; the judgments nunc pro
tunc list only the cause numbers. In a similar case in which only the cause
number and county were mentioned in a cumulation order out of Dallas County,
the appellate court took judicial notice of certain facts concerning how the
Dallas County District Clerk’s office assigns case numbers. See Gaston v.
State, 63 S.W.3d 893, 900 (Tex. App.—Dallas 2001, no pet.). In this case,
because one appeal was taken from the judgments in both Cause No. 14,235
and Cause No. 14,236, we have both judgments before us simultaneously. We
can see that the cause numbers are sequential, that the cases were tried at the
same time, and that both cases arose out of Wise County; therefore, we will
take judicial notice of how the Wise County Clerk’s Office assigns case
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numbers. See id. We do not condone the lack of specificity of the cumulation
orders here. But we conclude that, given the assignment of unique case
numbers in Wise County, the TDCJ will be able to correctly identify the
aggravated sexual assault convictions in Wise County for cumulation with the
pornography convictions.
However, out of an abundance of caution, we sustain the remainder of
Strahan’s fifth point complaining of the lack of the name of the count, date of
conviction, years of punishment assessed, and nature of conviction in the
cumulation order 3 and modify the judgment in Cause No. 14,235 to state,
This sentence for each count shall run consecutively as
follows:
Count I shall run consecutively to the life sentence imposed
on October 9, 2008, in Count IV of Cause #14,236 from the 271st
District Court of Wise County involving aggravated sexual assault
of a child;
Count II shall run consecutively to Count I;
Count III shall run consecutively to Count II;
3
 To the extent that Strahan complains in his fifth point that the
cumulation orders are void because the offenses arose out of the same criminal
episode, we overrule that portion of his fifth point. See Tex. Penal Code Ann.
§ 3.03(b)(2)(A) (Vernon Supp. 2009) (specifically allowing trial court to run
such sentences concurrently or consecutively when an aggravated sexual
assault is involved).
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Count IV in case #14,235 shall run consecutively to Count
III;
Count V shall run consecutively to Count IV;
Count VI shall run consecutively to Count V;
Count VII shall run consecutively to Count VI.
See Sanders v. State, No. 02-08-00058-CR, 2008 WL 4445644, at *9–11
(Tex. App.—Fort Worth Oct. 2, 2008, no pet.) (mem. op., not designated for
publication) (modifying cumulation order that included only a cause number out
of U.S. District Court); see also Revels v. State, No. 05-07-01555-CR, 2008
WL 5177374, at *9–10 (Tex. App.—Dallas Dec. 11, 2008, no pet.) (modifying
cumulation order that provided only a cause number because the intent of the
trial court as to sentencing was ascertainable from the record).
VIII. C ONCLUSION
Having overruled Strahan’s first four points and a portion of his fifth
point, we affirm the trial court’s judgment in Cause No. 14,236. Having
sustained a portion of Strahan’s fifth point and modified the cumulation order
in Cause No. 14,235, we affirm as modified the judgment in Cause No. 14,235.
See Tex. R. App. P. 43.2(b).
SUE WALKER
JUSTICE
PANEL: LIVINGSTON, WALKER, and MEIER, JJ.
PUBLISH
DELIVERED: January 7, 2010
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