Ronald Douglas Nevels v. State ( 2018 )


Menu:
  •                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.
    2
    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.
    3
    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
    4
    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
    5
    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.
    6
    

Document Info

Docket Number: 13-17-00215-CR

Filed Date: 9/20/2018

Precedential Status: Precedential

Modified Date: 9/20/2018