Demarcus Keonjay Johnson v. State ( 2019 )

Affirmed as modified; Opinion Filed November 26, 2019
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-18-01230-CR
No. 05-18-01231-CR
DAMARCUS KEONJAY JOHNSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 204th Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F17-76416-Q & F17-76473-Q
MEMORANDUM OPINION
Before Justices Myers, Osborne, and Nowell
Opinion by Justice Myers
Appellant Damarcus Keonjay Johnson was indicted in two cases for aggravated robbery.
He ultimately entered open pleas of guilty with a negotiated punishment range. Following a
consolidated punishment hearing during which the trial court heard punishment evidence on both
cases, the court sentenced appellant to forty-five years’ imprisonment in both cases, to be served
concurrently. The trial court made an affirmative deadly-weapon finding in each case. Appellant
argues the trial court did not orally pronounce sentence in one case and that it lacked jurisdiction
to hear either case and render judgment because they were not properly transferred to its docket.
The State brings two cross-issues seeking modifications of both judgments. As modified, we
affirm the trial court’s judgments.
DISCUSSION
1. Pronouncement of Sentence
In his first issue in appeal number 05–18–01230–CR, appellant argues the trial court erred
by not orally pronouncing sentence on the record, thereby violating section 3.03(a) of the Texas
Penal Code.
The record shows that in appellate cause number 05–18–01230–CR (trial court cause
number F17-76416-Q), appellant appeared before the court and the parties selected a jury.
Appellant ultimately chose to plead guilty to the jury, with a negotiated punishment range of five
to forty-five years. The jury found appellant guilty as charged in the indictment. Appellant then
elected to enter an open plea of guilty to the second aggravated robbery, cause number 05–18–
01231–CR (trial court cause number F17-76473-Q), again with a negotiated punishment range of
five to forty-five years.
The court held a consolidated punishment hearing where it heard evidence regarding the
two aggravated robberies. At the end of that hearing, the trial court announced:
THE COURT: Then, Mr. Johnson, I will accept your plea of guilt [sic] in Cause
No. F17–76473 [appeal number 05–18–01231–CR], and I will accept the jury’s
verdict in the other case. The Court finds you guilty of aggravated robbery with a
deadly weapon, and the Court sets your punishment at 45 years imprisonment in
the Institutional Division of the Texas Department of Criminal Justice. The Court
will also make an affirmative finding that a deadly weapon, namely a firearm, was
used or exhibited in this offense.
Is there any legal reason why your sentence should not now be imposed?
[DEFENSE COUNSEL]: No, Your Honor.
THE COURT: It is therefore the order, judgment, and decree of the Court that you
be taken by the Sheriff of Dallas County and safely transported by her to an agent
or representative of the Texas Department of Criminal Justice, and your sentences
will begin today, and you will get credit of any back time that you have, but you’ll
be confined there until these sentences are discharged. Off the record.
The trial court’s written judgment in each cause reflects a sentence of forty-five years’
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imprisonment, with each sentence to be served concurrently.
The code of criminal procedure provides that sentence shall be pronounced in the
defendant’s presence. See TEX. CODE CRIM. PROC. ANN. art. 42.03 § 1(a); Taylor v. State, 131
S.W.3d 497, 500 (Tex. Crim. App. 2004). Section 3.03 of the penal code provides that when an
accused is “found guilty of more than one offense arising out of the same criminal episode
prosecuted in a single criminal action, a sentence for each offense for which he has been found
guilty shall be pronounced.” See TEX. PENAL CODE ANN. § 3.03(a).
“The judgment, including the sentence assessed, is merely the written declaration and
embodiment of that oral pronouncement.” 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.” Id. If, however, the oral pronouncement is merely ambiguous, the
punishment verdict, the court’s pronouncement, and the written judgment should be read together
in an effort to resolve the ambiguity. See Aguilar v. State, 202 S.W.3d 840, 843 (Tex. App.––
Waco 2006, pet ref’d) (“Aside from the trial court’s omission of the phrase ‘Count 4,’ the court’s
pronouncement corresponds to the jury’s punishment verdict. The written judgment
unambiguously imposes sentence for each count, consistent with the jury’s verdict and not
inconsistent with the court’s pronouncement.”); Cazares v. State, No. 05–15–00231–CR, 2016
WL 3144274, at *2 (Tex. App.––Dallas June 6, 2016, no pet.) (mem. op., not designated for
publication) (although trial court omitted fine when orally pronouncing sentence, when jury’s
verdict, oral pronouncement, and written judgment are read together, ambiguity in oral
pronouncement is resolved to include the fine); Sparks v. State, Nos. 05–14–00629–CR & 05–14–
00630–CR, 2015 WL 2250242, at *2 (Tex. App.—Dallas May 12, 2015, no pet.) (mem. op., not
designated for publication) (although trial court mistakenly referenced wrong case in imposing
first of appellant’s two sentences, record as a whole showed trial court’s intended sentences and
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resolved any ambiguity in court’s oral pronouncement). The context of the trial court’s utterances
should also be considered. See Hill v. State, 213 S.W.3d 533, 536 (Tex. App.––Texarkana 2007,
no pet.); Sparks, 2015 WL 2250242, at *2.
Appellant argues that the trial court’s pronouncement of sentence violated section 3.03(a)
because no sentence was pronounced in cause 05–18–01230–CR, where the jury found appellant
guilty as charged based on appellant’s plea, yet a judgment was entered assessing a concurrent
sentence of forty-five years. But even if we assume the trial court’s oral pronouncement was
ambiguous, the record shows the trial court initially referenced both of appellant’s cases,
announcing it accepted the jury’s guilty verdict in 05–18–01230–CR and the guilty plea in 05–18–
01231–CR. Immediately after referencing both convictions, the court found appellant guilty of
aggravated robbery with a deadly weapon and orally sentenced appellant to forty-five years’
imprisonment. Just after that announcement, the trial court imposed appellant’s sentences, stating
that his pronounced sentences would begin that day, and he would be confined until his sentences
were discharged. The written judgment in each case unambiguously reflects that the trial court
imposed concurrent sentences of forty-five years, and there is no inconsistency with the trial
court’s pronouncement. See Aguilar, 202 S.W.3d at 843. Read together, the verdict, the oral
pronouncement, and the written judgments show the trial court imposed on appellant two
concurrent sentences of forty-five years’ imprisonment. Thus, the totality of the record resolves
any ambiguity in the pronouncement of sentence, and we overrule appellant’s first issue.
2. Jurisdictional Challenges
In his second issue in 05–18–01230–CR and his sole issue in 05–18–01231–CR, appellant
argues the trial court lacked jurisdiction to hear the instant cases and render judgment because the
cases were not properly transferred to its docket.
When, as in this case, a defendant fails to file a plea to the jurisdiction, he waives any right
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to complain that a transfer order does not appear in the record. See Lemasurier v. State, 91 S.W.3d
897, 899 (Tex. App.—Fort Worth 2002, pet. ref’d); Mills v. State, 742 S.W.2d 831, 834–35 (Tex.
App.—Dallas, 1987, no writ.); Thompson v. State, No. 05–14–00139–CR, 2014 WL 7399300, at
*2 (Tex. App.—Dallas Dec. 15, 2014, pet. ref’d) (mem. op., not designated for publication).
Appellant did not file a plea to the jurisdiction. In fact, the record shows that he appeared before
the court and pleaded guilty, judicially confessed, and waived all objections to the indictments
without raising any such complaint.
Furthermore, even if appellant had preserved his complaint for our review, we have
considered and rejected this argument on numerous occasions, concluding a transfer order is not
required in the first court where the indictment is filed after the grand jury returns it. See, e.g.,
Bourque v. State, 156 S.W.3d 675, 678 (Tex. App.—Dallas 2005, pet. ref’d); Hopkins v. State, No.
05–17–01344–CR, 2018 WL 5024023, at *1 (Tex. App.––Dallas Oct. 17, 2018, no pet.) (mem.
op., not designated for publication); Hines v. State, No. 05–17–00416–CR, 2017 WL 6276005 at
*1–2 (Tex. App.—Dallas December 11, 2017, no pet.) (mem. op., not designated for publication);
Hawkins v. State, No. 05–15–00859–CR, 2016 WL 335702, at *1 n. 1 (Tex. App.—Dallas January
27, 2016, no pet.) (mem. op., not designated for publication) (noting that “[w]e have cited Bourque
forty-two times rejecting the argument raised by appellant.”). In each case, the “writ” ordering
service of the indictment on appellant is captioned “204th Judicial District Court of Dallas County,
Texas,” and it was issued the same day (October 25, 2017 in 05–18–01230–CR; November 3, 2017
in 05–18–01231–CR) that each true bill of indictment was filed in that court. As we have pointed
out many times before under virtually identical circumstances, the trial court had jurisdiction to
hear appellant’s cases and render judgment. We overrule appellant’s second issue.
3. State’s Cross-Issues
The State brings two cross-issues in each appeal seeking modifications of both judgments.
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In its first cross-issue in both cases, the State points out that the court’s written judgments
show appellant’s first name as “Demarcus.” However, during appellant’s plea hearing defense
counsel informed the trial court that appellant’s “true and correct name is Damarcus Johnson,” and
that the parties had modified appellant’s plea paperwork to reflect the correct spelling of
appellant’s first name––i.e., “Damarcus.”
In the second cross-issue, the State argues the written judgments incorrectly identify
“Dmitri Anagnostis” as the attorney for State, but the reporter’s record shows that “Dimitrios
Anagnostis” represented the State. Similarly, the written judgments list “Stephanie Huggins” as
the attorney for the defendant. Yet, throughout the proceedings below, the reporter’s record refers
to defense counsel as “Ms. Hudgins-Woodward,” and, under appearances, the reporter’s record
lists the attorney representing the defendant as “Honorable Stephani S. Hudgins, Law Office of
Stephani Hudgins-Woodward.”
We may modify a trial court’s written judgment if the necessary information to do so is
contained in the record. TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex.
Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529–30 (Tex. App.—Dallas 1991, pet. ref’d);
Luna v. State, No. 05–17–01188–CR, 2018 WL 3490875, at *2 (Tex. App.—Dallas July 20, 2018,
no pet.) (mem. op., not designated for publication); Starnes v. State, No. 05–08–00795–CR, 2010
WL 1981792, at *5 (Tex. App.—Dallas May 19, 2010, no pet.) (mem. op., not designated for
publication).
We have concluded that there is a sufficient basis in the record to support the modifications
of both judgments requested by the State. Accordingly, we will modified the judgments to reflect
that (1) the correct spelling of appellant’s first name is “Damarcus”; (2) the attorney for the State
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was “Dimitrios Anagnostis”; and (3) the attorney for the defendant was “Stephani Hudgins-
Woodward.” See Asberry, 813 S.W.2d at 529–30.
/Lana Myers/
LANA MYERS
JUSTICE
Do Not Publish
Tex. R. App. P. 47.2(b)
181230F.U05
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
DEMARCUS KEONJAY JOHNSON, On Appeal from the 204th Judicial District
Appellant Court, Dallas County, Texas
Trial Court Cause No. F17-76416-Q.
No. 05-18-01230-CR V. Opinion delivered by Justice Myers.
Justices Osborne and Nowell participating.
THE STATE OF TEXAS, Appellee
Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:
* To reflect appellant’s name as “Damarcus Keonjay Johnson”
* The portion of the judgment entitled “Attorney for State: Dmitri Anagnostis,”
should be changed to read, “Attorney for State: Dimitrios Anagnostis”
* The portion of the judgment entitled “Attorney for Defendant: Stephanie
Huggins,” should be changed to read, “Attorney for Defendant: Stephani Hudgins-
Woodward”
As REFORMED, the judgment is AFFIRMED. We direct the trial court to prepare a new
judgment that reflects these modifications.
Judgment entered this 26th day of November, 2019.
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
DEMARCUS KEONJAY JOHNSON, On Appeal from the 204th Judicial District
Appellant Court, Dallas County, Texas
Trial Court Cause No. F17-76473-Q.
No. 05-18-01231-CR V. Opinion delivered by Justice Myers.
Justices Osborne and Nowell participating.
THE STATE OF TEXAS, Appellee
Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:
* To reflect appellant’s name as “Damarcus Keonjay Johnson”
* The portion of the judgment entitled “Attorney for State: Dmitri Anagnostis,”
should be changed to read, “Attorney for State: Dimitrios Anagnostis”
* The portion of the judgment entitled “Attorney for Defendant: Stephanie
Huggins,” should be changed to read, “Attorney for Defendant: Stephani Hudgins-
Woodward”
As REFORMED, the judgment is AFFIRMED. We direct the trial court to prepare a new
judgment that reflects these modifications.
Judgment entered this 26th day of November, 2019.
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