Holly Brooke Meyer v. State ( 2013 )


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  •                     In The
                  Court of Appeals
    Sixth Appellate District of Texas at Texarkana
    
    
                      No. 06-12-00165-CR
    
    
    
             HOLLY BROOKE MEYER, Appellant
    
                                V.
    
               THE STATE OF TEXAS, Appellee
    
    
    
             On Appeal from the 114th District Court
                     Smith County, Texas
                 Trial Court No. 114-1816-10
    
    
    
    
           Before Morriss, C.J., Carter and Moseley, JJ.
            Memorandum Opinion by Justice Moseley
                                        MEMORANDUM OPINION
            St. Patrick’s Day of 2011 found Holly Brooke Meyer entering her plea of guilty to the
    
    offense of possession of a prohibited substance (marihuana) in a correctional facility. 1 See TEX.
    
    PENAL CODE ANN. § 38.11 (West 2011). Under the plea agreement, the Smith County trial court
    
    placed Meyer on three years’ deferred adjudication community supervision. Meyer’s period of
    
    deferred adjudication lasted a little over a year.
    
            The record on appeal at the time of the filing of Meyer’s brief reflected that on August 2,
    
    2012, the State filed an application to proceed to final adjudication, alleging that Meyer had
    
    violated the terms of her community supervision by possessing and consuming a controlled
    
    substance (methamphetamine). Meyer entered a plea of “true” to the allegations of the State on
    
    August 23, 2012, and the trial court found Meyer guilty. At the hearing, Meyer requested a
    
    sentence of 180 days, and the State responded by recommending a sentence of fifteen months.
    
    Although the trial court orally pronounced a sentence of “15 [m]onths confinement in the state
    
    jail facility,” it initially entered a written judgment signed on August 28, 2012, which purported
    
    to sentence Meyer to seven years’ imprisonment.
    
            Meyer’s first issue on appeal alleges the trial court erred in signing a written judgment
    
    containing a different sentence than the oral pronouncement. Meyer’s second issue alleges the
    
    oral pronouncement, which controls, was an illegal sentence requiring (in her opinion), that we
    
    reverse and remand for a new punishment hearing.
    
    1
     Originally appealed to the Tyler Court of Appeals, this case was transferred to this Court by the Texas Supreme
    Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (West 2013). We are
    unaware of any conflict between precedent of the Tyler Court of Appeals and that of this Court on any relevant
    issue. See TEX. R. APP. P. 41.3.
    
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              After Meyer filed her brief, the State supplemented the record with documents which
    
    showed that a second punishment hearing had been held on the same day as the first. This
    
    supplemental record revealed that the trial court had granted a new trial on punishment, 2 held a
    
    second punishment hearing (which the record reflects was attended by Meyer), and orally
    
    sentenced her to seven years’ imprisonment.
    
              After the State had filed the supplemental record, we afforded Meyer the opportunity to
    
    file a supplemental brief “in which appellant may raise and brief additional issues should counsel
    
    choose to do so.” The only response we received to that correspondence was a supplemental
    
    briefing which consisted entirely of a computer-generated word count; no additional issues were
    
    raised.
    
              When a trial court orally pronounces an illegal sentence, 3 the Texas Court of Criminal
    
    Appeals has approved of the holding of a second punishment hearing to operate in lieu of the
    
    first. See Cooper v. State, 
    527 S.W.2d 898
    , 899 (Tex. Crim. App. 1975). But see Davis v. State,
    
    
    349 S.W.3d 535
     (Tex. Crim. App. 2011) (trial court erred in making second oral pronouncement
    
    with defendant absent); Harris v. State, 
    153 S.W.3d 394
     (Tex. Crim. App. 2005) (due process
    
    2
     We note that the record does not contain a written motion for new trial. The record is unclear concerning whether
    an oral motion was made or whether the trial court granted a new trial sua sponte. At the second punishment
    hearing, defense counsel stated as follows: “In looking at the last case we did, it just dawned on me that it was
    actually a third degree felony, not a state jail. So I got with the State, and that’s why we’re here right now.” We
    further note the record does not contain a written order granting a new trial. See TEX. R. APP. P. 21.8. Meyer does
    not complain about the lack of a written motion for new trial or a written order granting a new trial. Further, it is not
    necessary for us to determine whether, given that the first sentence was a nullity, the granting of a new trial on
    punishment was necessary.
    3
     The trial court’s first oral pronouncement, fifteen months, was an illegal sentence for a third degree felony. “A
    sentence that is outside the maximum or minimum range of punishment is unauthorized by law and therefore
    illegal.” Mizell v. State, 
    119 S.W.3d 804
    , 806 (Tex. Crim. App. 2003). Possession of a prohibited substance in a
    correctional facility is a third degree felony. See TEX. PENAL CODE ANN. § 38.11. The statutory minimum
    punishment for a third degree felony is not less than two years. TEX. PENAL CODE ANN. § 12.34 (West 2011).
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    violation when trial court did not make finding regarding enhancements at first punishment
    
    hearing and first sentence was within range of unenhanced offense). The actions taken as a
    
    result of the second hearing, conducted as a new trial, superseded those taken during the first
    
    trial. We note that Meyer lodged no objection to the holding of the second hearing on
    
    punishment and has raised no issue on appeal contesting the propriety of that second hearing.
    
            Meyer’s complaint on appeal is that the oral pronouncement is inconsistent with the
    
    written judgment. 4 The second oral pronouncement of seven years’ imprisonment is consistent
    
    with the written judgment and falls within the statutorily prescribed range of punishment. See
    
    TEX. PENAL CODE ANN. §§ 12.34, 38.11. Both of Meyer’s issues were dealt with and cured at
    
    the trial level. Meyer’s issues are overruled.
    
            For the reasons stated, we affirm.
    
    
    
    
                                                         Bailey C. Moseley
                                                         Justice
    
    Date Submitted:           April 23, 2013
    Date Decided:             April 24, 2013
    
    Do Not Publish
    
    
    
    
    4
     See Taylor v. State, 
    131 S.W.3d 497
    , 500 (Tex. Crim. App. 2004) (“When there is a conflict between the oral
    pronouncement of sentence and the sentence in the written judgment, the oral pronouncement controls.” Ex parte
    Madding, 
    70 S.W.3d 131
    , 136 (Tex. Crim. App. 2002) (“A trial court does not have the statutory authority or
    discretion to orally pronounce one sentence in front of the defendant, but enter a different sentence in his written
    judgment, outside the defendant’s presence.”).
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