Weldon, Laconte Troy ( 2014 )

PD-1586-14
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 12/31/2014 12:21:13 PM
Accepted 12/31/2014 1:03:40 PM
PD-1586-14 ABEL ACOSTA
CLERK
IN THE COURT OF CRIMINAL APPEALS
OF THE STATE OF TEXAS
LACONTE WELDON
Petitioner/Appellant
v.
THE STATE OF TEXAS
Respondent/Appellee
On Petition for Discretionary Review from the First Court of Appeals
In Cause No. 01-13-00113-CR, affirming the conviction in
Cause No. 1779615 from County Criminal Court at Law No. 7
of Harris County, Texas
PETITION FOR DISCRETIONARY REVIEW
ORAL ARGUMENT REQUESTED ALEXANDER BUNIN
Chief Public Defender
Harris County, Texas
FRANCES BOURLIOT
Assistant Public Defender
Harris County, Texas
Texas Bar No. 24062419
December 31, 2014 1201 Franklin, 13th Floor
Houston, Texas 77002
Phone: (713) 368-0016
Fax: (713) 437-4317
frances.bourliot@pdo.hctx.net
Counsel for Petitioner
IDENTITY OF PARTIES AND COUNSEL
APPELLANT: Laconte Weldon
24134 Landing Way Drive
Spring, Texas 77373
TRIAL PROSECUTORS: Kristina Daley
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
DEFENSE COUNSEL AT TRIAL: Peter Justin
402 Main Street
Houston, Texas 77002
PRESIDING JUDGE: Hon. Pam Derbyshire
County Criminal Court at Law 7
Harris County, Texas
1201 Franklin, 9th Floor
Houston, Texas 77002
COUNSEL ON APPEAL FOR APPELLANT: Frances Bourliot
Assistant Public Defender
Harris County, Texas
1201 Franklin, 13th Floor
Houston, Texas 77002
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TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ................................................................... ii
TABLE OF CONTENTS ........................................................................................... iii
INDEX OF AUTHORITIES........................................................................................ iv
STATEMENT REGARDING ORAL ARGUMENT.......................................................... 1
STATEMENT OF THE CASE ...................................................................................... 1
STATEMENT OF PROCEDURAL HISTORY ................................................................ 2
QUESTION FOR REVIEW ......................................................................................... 2
DID THE COURT OF APPEALS ERR IN AFFIRMING THE JUDGMENT AND
SENTENCE WITHOUT HAVING THE COURT REPORTER’S NOTES TO
EXAMINE?
REASON FOR GRANTING REVIEW ........................................................................... 2
ARGUMENT............................................................................................................. 2
PRAYER .................................................................................................................. 4
CERTIFICATE OF SERVICE ...................................................................................... 5
CERTIFICATE OF COMPLIANCE .............................................................................. 5
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INDEX OF AUTHORITIES
Cases
Ortiz v. State, 651 S.W.2d 764 (Tex. Crim. App. 1983) ...............................................................2, 3
Weldon v. State, 01-13-00113-CR, 2014 WL 5500484 (Tex. App.—Houston [1st Dist.] Oct.
30, 2014) .......................................................................................................................................2, 3
Rules
Tex. R. Evid. 1002 ................................................................................................................................ 2
iv
STATEMENT REGARDING ORAL ARGUMENT
Petitioner requests oral argument as it may aid the Court since the analysis of
this case depends upon a detailed review of the record.
STATEMENT OF THE CASE
This petition seeks review of a direct appeal brought after a conviction for a
Class A misdemeanor DWI second offender. (C.R. at 116). On April 17, 2012, Mr.
Weldon was convicted in a jury trial and the trial court assessed his punishment at one
year in the Harris County Jail and a fine of $400, probated for eighteen (18) months.
(C.R. at 76). On June 1, 2012, the State filed a Motion to Revoke Community
Supervision, and on January 24, 2013, after hearing testimony, the trial court assessed
his punishment. (3 R.R. at 8). The trial court orally pronounced a sentence of five (5)
days confinement and court costs in the amount of $500.00. (3 R.R. at 8). However,
the written judgment reflects a sentence of one year confinement in the Harris County
Jail, a fine of $500.00, and court costs of $412.00. (C.R. at 116).
On May 29, 2014, the First Court of Appeals abated the case and ordered the
trial court to hold a hearing to determine whether the reporter’s record reflected an
inaccurately recorded oral pronouncement. On June 11, 2014, the court reporter
testified that the oral pronouncement in the original reporter’s record had been a
mistake. (1 Supp RR. At 8). On July 23, 2014, the court reporter filed a supplemental
reporter’s record that reflected an oral sentence pronouncement of one year
confinement in Harris County jail, credit for five days. (3 Supp. R.R. at 7).
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STATEMENT OF PROCEDURAL HISTORY
On appeal, Mr. Weldon asserted that the judgment should be reformed to
conform to the oral pronouncement. In a memorandum opinion dated October 30,
2014, the First Court of Appeals affirmed Mr. Weldon’s judgment. Weldon v. State, 01-
13-00113-CR, 2014 WL 5500484 (Tex. App.—Houston [1st Dist.] Oct. 30, 2014). See
Appendix. No motion for rehearing was filed.
QUESTION FOR REVIEW
DID THE COURT OF APPEALS ERR IN AFFIRMING THE JUDGMENT AND
SENTENCE WITHOUT HAVING THE COURT REPORTER’S NOTES TO
EXAMINE?
REASON FOR GRANTING REVIEW
The opinion of the First Court of Appeals conflicts with decisions by this
Court that assert that the best evidence rule would require the contents of the
document, in this case the court reporter’s notes, should be proved by the very writing
itself. Tex. R. Evid. 1002; Ortiz v. State, 651 S.W.2d 764, 766 (Tex. Crim. App. 1983)
ARGUMENT
THE COURT REPORTER SUBMITTED A SUPPLEMENTAL REPORTER’S
RECORD BUT DID NOT SUBMIT HER ORIGINAL NOTES. DID THE
COURT OF APPEALS ERR WHEN IT AFFIRMED THE JUDGMENT AND
SENTENCE WITHOUT HAVING THOSE NOTES TO EXAMINE?
Mr. Weldon asserted that because the oral pronouncement of sentence and
written judgment were in conflict, the oral pronouncement should prevail and the
written judgment should be reformed. During a hearing, the court reporter testified
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that the original reporter’s record filed with the oral pronouncement of a five day
sentence was an error; she stated that her original notes showed an oral
pronouncement of a sentence of one year confinement in the Harris County jail,
credit for five days. On appeal, the Court of Appeals found that any dispute had been
resolved and that there was no longer a conflict between the oral pronouncement and
written judgment. Weldon v. State, 01-13-00113-CR, 2014 WL 5500484, at *2 (Tex.
App.—Houston [1st Dist.] Oct. 30, 2014).
According to the best evidence rule, Tex. R. Evid. Rule 1002, the only
competent evidence should have been the court reporter’s original notes. “[I]f the
contents of a writing are to be proved, it must be by the production, if possible, of the
very writing itself.” Ortiz v. State, 651 S.W.2d 764, 766 (Tex. Crim. App. 1983).
Without examining the court reporter’s original notes, the Court of Appeals was
unable to examine the full and relevant record of the actual original oral
pronouncement that occurred in the trial court.
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PRAYER
Mr. Weldon asks the Court to grant his petition and conduct a full review of his
appeal in the First Court of Appeals.
Respectfully submitted,
ALEXANDER BUNIN
Chief Public Defender
Harris County Texas
/s/Frances Bourliot
FRANCES BOURLIOT
Assistant Public Defender
Harris County, Texas
Texas Bar No. 24062419
1201 Franklin, 13th Floor
Houston, Texas 77002
Phone: (713) 368-0016
Fax: (713) 437-4317
frances.bourliot@pdo.hctx.net
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CERTIFICATE OF SERVICE
This is to certify that a copy of the foregoing petition for discretionary review
has been served on the District Attorney of Harris County, Texas, by e-file on the 31st
day of December, 2014. A copy has also been sent by e-file to the State Prosecuting
Attorney, also on the 31st of December, 2014.
/s/Frances Bourliot
Frances Bourliot
Certificate of Compliance
Pursuant to proposed Rule 9.4(i)(3), undersigned counsel certifies that this brief
complies with the type-volume limitations of Tex. R. App. Proc. 9.4(e)(i).
1. This brief contains 1,217 words printed in a proportionally spaced typeface.
2. This brief is printed in a proportionally spaced, serif typeface using Garamond
14 point font in text and Garamond 13 point font in footnotes produced by
Microsoft Word software.
3. Upon request, undersigned counsel will provide an electronic version of this
brief and/or a copy of the word printout to the Court.
4. Undersigned counsel understands that a material misrepresentation in
completing this certificate, or circumvention of the type-volume limits in Tex. R. App.
Proc. 9.4(j), may result in the Court's striking this brief and imposing sanctions against
the person who signed it.
/s/Frances Bourliot
Frances Bourliot
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Opinion issued October 30, 2014
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-13-00113-CR
———————————
LACONTE TROY WELDON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court at Law No. 7
Harris County, Texas
Trial Court Case No. 1779615
MEMORANDUM OPINION
Appellant Laconte Troy Weldon was charged by information with Class A
misdemeanor DWI as a second offender. A jury found Weldon guilty, the trial
court assessed his punishment at one year of confinement in county jail, probated
for eighteen months, and a $400.00 fine. Months later, after a hearing, the trial
court granted the State’s motion to revoke and assessed Weldon’s punishment.
Weldon appealed, arguing that there was a conflict between the oral
pronouncement of his sentence and the written judgment and that the judgment
should be reformed so the shorter orally-pronounced sentence could control. We
affirm.
Background
In its motion to revoke, the State alleged that Weldon drove his motorcycle
without an ignition interlock device in violation of the terms of his community
supervision. Weldon pleaded true to the allegation. As originally filed in this
court, the reporter’s record reflected that the trial court revoked Weldon’s
community supervision and orally pronounced the following sentence: “I find the
allegation to be true, that he violated probation by driving without an ignition
interlock. Probation is hereby revoked. Sentence you to five days. Court costs in
the amount of $500.” The written judgment reflected a different sentence:
confinement for one year, with a fine of $500.00, and court costs in the amount of
$412.00.
Discussion
In his sole issue on appeal, Weldon argued that the written judgment should
be reformed because it conflicts with the oral pronouncement of sentence. See
Taylor v. State, 131 S.W.3d 497, 500 (Tex. Crim. App. 2004) (when there is a
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conflict between oral pronouncement of sentence and written judgment, oral
pronouncement controls); Coffey v. State, 979 S.W.2d 326, 328–29 (Tex. Crim.
App. 1998) (en banc) (“[W]hen there is a variation between the oral
pronouncement of sentence and the written memorialization of the sentence, the
oral pronouncement controls . . . . Any subsequent deviation from that sentence,
i.e. either a decrease or increase, could not supersede what had already been
imposed in open court.”). The State correctly responded that because of the nature
of the charge, a Class A misdemeanor DWI, the oral pronouncement of five days’
confinement could not control because it would be below the statutory minimum
and therefore illegal. See Mizell v. State, 119 S.W.3d 804, 805–06 (Tex. Crim.
App. 2003) (en banc) (sentences below the statutory minimum are illegal and
void); State v. Cooley, 401 S.W.3d 748, 751 (Tex. App.—Houston [14th Dist.]
2013, no pet.) (Class A misdemeanor DWI requires confinement “for at least 30
days and not more than one year.”). The State also challenged the accuracy of the
reporter’s record and sought an abatement under Texas Rule of Appellate
Procedure 34.6(e)(3).
We abated this appeal and directed the trial court to conduct a hearing to
settle the dispute concerning whether the reporter’s record accurately reflected the
trial court’s oral pronouncement. See TEX. R. APP. P. 34.6(e)(2) (requiring the trial
court to settle a dispute concerning inaccuracies in the reporter’s record when
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parties cannot agree on whether or how to correct); TEX. R. APP. P. 34.6(e)(3)
(allowing appellate court, if dispute arises regarding accuracy after filing of
reporter’s record in appellate court, to submit dispute to trial court for resolution).
Our abatement order directed the trial court, if it determined that the reporter’s
record was inaccurate, to ensure that the reporter’s record was made to conform to
what occurred in the trial court. See TEX. R. APP. P. 34.6(e)(2) (“If the court finds
any inaccuracy, it must order the court reporter to conform the reporter’s record
(including text and any exhibits) to what occurred in the trial court, and to file
certified corrections in the appellate court.”). Our abatement order also directed
that the reporter’s record of the hearing and the supplemental clerk’s record be
certified and sent to our court.
The supplemental record reflects that the trial court held a hearing pursuant
to our order of abatement, concluded that the reporter’s record of the oral
pronouncement was inaccurate, and concluded that the reporter’s record should
have reflected a sentence of one year in jail with credit of five days. The trial
court’s findings were based on the oral testimony of the court reporter at the
abatement hearing. Specifically, the court reporter testified that a scopist helped
her edit the file and emailed the court reporter the file under the name
“Weldonsentence.” The court reporter proofread that file, edited it to conform to
her notes, and then saved the file as “Weldonsentencing” instead of
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“Weldonsentence.” The court reporter testified that her notes—which could not
have been changed because they were written on her stenotype—state that the trial
court orally pronounced a sentence of one year. The “Weldonsentencing” file
reflected the correct one-year sentence, but the court reporter erroneously included
the unedited and incorrect version of the file, which was titled “Weldonsentence,”
in the record. The court reporter brought her original notes from sentencing to the
hearing. Her notes corroborated her oral testimony.
At the conclusion of the hearing, the trial court stated: “So the record is clear
that there was a mistake by the court reporter; the sentence was one year in jail
with credit for five days. And his costs were all run concurrent. He did not owe
any costs for this.” Following the hearing, the trial court entered the following
findings of fact:
• “The official court reporter’s transcription accurately reflects that Judge
Derbyshire properly sentenced Mr. Weldon.”
• “The official court reporter did not catch the error in the sentencing portion
of the transcription during preparation of the record.”
• “Upon receiving the Order of Abatement from the Court of Appeals, the
reporter reviewed her notes, corrected the transcript and submitted the
corrected copy to the Court of Appeals.”
In short, the trial court resolved the dispute over the accuracy of the record,
concluded that the reporter’s record reflecting the oral pronouncement of a five-
day sentence of confinement was inaccurate and caused to be filed a supplemental
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record reflecting that the actual oral pronouncement of sentence was confinement
for one year with credit for five days. See TEX. R. APP. P. 34.6(e)(2) (“the trial
court must . . . settle the dispute”). We give almost total deference to a trial
court’s rendition of the historical facts. Ross v. State, 32 S.W.3d 853, 856 (Tex.
Crim. App. 2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)
(en banc); Stafford v. State, 63 S.W.3d 502, 511 (Tex. App.—Texarkana 2001, pet.
ref’d) (trial court’s procedure to correct record complied with appellate rules
allowing correction of record before and after it was filed with appellate court
where single mistake was corrected in record). Accordingly, the conflict between
the oral pronouncement and the written judgment as to the length of confinement
no longer exists, and no reformation of the length of sentence of confinement is
necessary.
We overrule Weldon’s sole issue.
Conclusion
We affirm the judgment of the trial court.
Rebeca Huddle
Justice
Panel consists of Justices Massengale, Brown, and Huddle.
Do Not Publish — TEX. R. APP. P. 47.2(b).
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