Ronald Douglas Nevels v. State ( 2018 )

NUMBERS 13-17-00215-CR & 13-17-00250-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
RONALD DOUGLAS NEVELS, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 319th District Court
of Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Contreras, Longoria, and Hinojosa
Memorandum Opinion by Justice Longoria
In two separate but related causes, appellant Ronald Douglas Nevels was
convicted of possession of cocaine, a state-jail felony, see TEX. HEALTH & SAFETY CODE
ANN. § 481.115(a) (West, Westlaw through 2017 1st C.S.), and failure to comply with sex
offender registration requirements, a third-degree felony, see TEX. CODE CRIM. PROC. ANN.
art. 62.102 (West, Westlaw through 2017 1st C.S.). Nevels argues on appeal that the
trial court’s oral pronouncement of a “sanction” controls over the written order revoking
his community supervision. We affirm.
I. BACKGROUND
In trial court cause number 09-CR-1906-G (appellate cause number 13-17-00215-
CR), Nevels was charged by information with possession of cocaine. See TEX. HEALTH &
SAFETY CODE ANN. § 481.115(a). In 2009, he pled guilty to the offense pursuant to a plea
agreement. Nevels’s sentence of two years in state jail was suspended and he was
placed on community supervision for three years.
In trial court cause number 11-CR-1515-G (appellate cause number 13-17-00250-
CR), Nevels was charged by indictment with failure to comply with registration
requirements. See TEX. CODE CRIM. PROC. ANN. art. 62.102. In 2011, he pled guilty to
this offense pursuant to a plea agreement. Nevels’s sentence of five years in the
Institutional Division of the Texas Department of Criminal Justice was suspended and he
was placed on community supervision for five years.
Over the course of the next several years, the State filed three motions to revoke
community supervision in trial court cause number 09-CR-1906-G and two motions to
revoke community supervision in trial court cause number 11-CR-1515-G, alleging
various violations of his community supervision, including multiple instances of testing
positive for cocaine and failing to report to his community supervision officer. Nevels
pleaded true to all the allegations in all the motions to revoke. On each motion to revoke,
Nevels was continued on community supervision.
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In February of 2017, the State filed another motion to revoke in both cause
numbers. On April 17, 2017, the trial court held a hearing on the most recent motions to
revoke. The following exchanges occurred:
[State]: So we are giving Mr. Nevels another chance. The
recommendation is the substance abuse caseload, Coastal
Bend Outpatient Program, zero tolerance, a drug patch, a
one-year extension, and a sixty-day jail sanction.
....
[Trial Court]: All right. Based upon the defendant’s pleads [sic] of true and
the evidence submitted, I’m going to find the allegations true.
I am going to revoke the defendant’s probation. I’m going to
sentence him on—is the first one a state jail felony?
....
[Trial Court]: Then I’m going to sanction him—off the record
(Discussion off the record)
[Trial Court]: All right. Then I’ll sanction him to one year on the state jail on
Cause Number 09-CR-1906-G, and I’ll sanction him to three
years confinement on the 11-CR-1515-G. I’ll allow these
sentences to run concurrent with each other, and I’ll give the
defendant credit for any time he spent in jail prior to today’s
date. Okay. That will be the order for the Court. I know I did
not follow the recommendations of the State, but obviously as
I said before, it is a motion to revoke; so just advise your client
accordingly, okay?
The written judgment for trial court cause number 09-CR-1906-G reflects that
Nevels’s community supervision was revoked and that he was sentenced to one year in
state jail. The written judgment for trial court cause number 11-CR-1515-G reflects that
Nevels’s community supervision was revoked and that he was sentenced to three years
in the Institutional Division of the Texas Department of Criminal Justice. This appeal
ensued.
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II. ORAL PRONOUNCEMENT
In both cause numbers, Nevels argues that the trial court’s oral pronouncement of
a sanction controls over the written judgment and that the judgment should be modified
to delete the revocation of his community supervision.
A. Standard of Review and Applicable Law
Usually, the written order of the court controls over an oral announcement. See
Eubanks v. State, 599 S.W.2d 815, 817 (Tex. Crim. App. 1980); Ex parte Bolivar, 386
S.W.3d 338, 345–346 (Tex. App.—Corpus Christi 2012, no pet.). However, the Texas
Court of Criminal Appeals has stated that “when there is a variation between the oral
pronouncement of sentence and the written memorialization of the sentence, the oral
pronouncement controls.” Coffey v. State, 979 S.W.2d 326, 328 (Tex. Crim. App. 1998).
We have interpreted Coffey and its progeny to be limited to situations in which there are
“oral and written variations in sentencing.” Cross v. State, No. 13-11-00041-CR, 2011
WL 3840505, at *2 (Tex. App.—Corpus Christi Aug. 29, 2011, no pet.) (mem. op., not
designated for publication); see Ex parte Bolivar, 386 S.W.3d at 345 (“A written order
revoking community supervision controls over an oral pronouncement by the trial judge.”).
B. Discussion
Nevels argues that the trial court’s oral pronouncement of the sentence was
inconsistent with the written judgment. More specifically, Nevels argues that the written
judgment indicates that his community supervision has been revoked in both cause
numbers whereas the trial court’s oral pronouncement of sentence merely indicated that
he intended to sanction Nevels but keep him on community supervision. Accordingly,
Nevels asserts that the final written judgment should be modified to reflect the trial court’s
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oral pronouncement of sanction. The State argues that Nevels did not raise any
objections to the trial court and furthermore that there is no inconsistency between the
sentence and the written judgment. We agree with the State.
We find no inconsistency between the oral pronouncement and the written
judgment. The trial court clearly informed the parties of his decision to “revoke the
defendant’s probation.” The trial court followed this by stating, “Then I’ll sanction him to
one year on the state jail on Cause Number 09-CR-1906-G, and I’ll sanction him to three
years confinement on the 11-CR-1515-G.” According to Nevels, the trial court was using
“sanction” as a term of art to imply a continuation of community supervision. See TEX.
CODE CRIM. PROC. ANN. art. 42A.001(1) (West, Westlaw through 2017 1st C.S.).
However, the State argues that the trial court simply misspoke when it used the word
“sanction.”
We agree with the State because the record indicates that the trial court intended
to revoke Nevels’s community supervision, and there is nothing in the record suggesting
that the trial court intended to keep Nevels on community supervision. For example, the
trial court told the parties that he was revoking Nevels’s probation and never said anything
to indicate that he changed his mind. Furthermore, the State itself recommended that
Nevels be continued on community supervision, but the trial court specified that it “did not
follow the recommendations of the State.” Also, right after proclaiming that he intended
to revoke Nevels’s probation, the trial court pronounced the sentences of one year in state
jail and three years in the Institutional Division of the Texas Department of Criminal
Justice, to run concurrently, on Nevels’s two cause numbers; these sentences were
consistent between oral pronouncement and the written judgment. Therefore, we find no
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inconsistency; the written judgment accurately reflects the trial court’s oral
pronouncement of revoking Nevels’s community supervision and sentencing him to one
year in state jail and three years in the Institutional Division of the Texas Department of
Criminal Justice. See Coffey, 979 S.W.2d at 328. We overrule Nevels’s sole issue.
III. CONCLUSION
We affirm the trial court’s judgments.
NORA L. LONGORIA
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
20th day of September, 2018.
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