Ronald Anuscewski v. State ( 2013 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-12-00655-CR
Ronald Anuscewski, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT
NO. D-1-DC-12-200104, HONORABLE KAREN SAGE, JUDGE PRESIDING
MEMORANDUM OPINION
A jury convicted Ronald Anuscewski of aggravated assault with a deadly weapon.
See Tex. Penal Code § 22.02(a)(2). The jury assessed punishment at twenty years’ imprisonment
in the Institutional Division of the Texas Department of Criminal Justice. In one issue, appellant
contends that his conviction is void because the written judgment of conviction was signed by a
different judge from the judge who presided over his trial. We will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant was indicted for the offense of aggravated assault with a deadly weapon
after a confrontation with a neighbor during which he pointed a loaded semi-automatic handgun at
the neighbor and threatened to shoot him. Appellant pleaded not guilty and proceeded to a jury trial.
The State presented nine witnesses, including the neighbor and law enforcement officials who
responded to the incident. The jury found appellant guilty of the offense alleged in the indictment.
Appellant elected for the jury to assess punishment. The jury assessed punishment at twenty years’
imprisonment and a $10,000 fine. The trial court’s docket sheet contains an entry recording the final
conviction, the deadly weapon finding, and the punishment. The docket sheet entry is dated August
16, 2012, is signed by the judge who presided over the trial, and includes appellant’s thumbprint.
The same day, the judge signed a certification of appellant’s right to appeal. The certification was
also signed by appellant and his court-appointed counsel. On August 20, 2012, the written judgment
of conviction was signed by a judge different from the one who presided over the trial. Appellant
perfected this appeal.
DISCUSSION
Appellant asserts that his conviction is void because the written judgment of
conviction was signed by a judge who did not preside over his trial. We disagree. First, “the written
judgment is not itself the conviction but evidence, among other things, that a conviction has
occurred.” Jones v. State, 795 S.W.2d 199, 202 (Tex. Crim. App. 1990); see also Modica v. State,
151 S.W.3d 716, 720 (Tex. App.—Beaumont 2004, pet. ref’d) (written judgment is merely record
of events that have occurred in fact). Appellant was convicted when the judge presiding over his
trial received and accepted the jury verdict. Jones, 795 S.W.2d at 201. “No further ritual or special
incantation from the bench is necessary to accomplish an adjudication of guilt beyond the
pronouncement of sentence as required by law.” Id. (citing Villela v. State, 564 S.W.2d 750, 751
(Tex. Crim. App. 1978), Ex parte Gibson, 128 S.W.2d 396 (Tex. Crim. App. 1939)). In the present
case, the trial judge received the verdict of the jury finding appellant guilty of the offense of
aggravated assault with a deadly weapon as alleged in the indictment and assessing his punishment
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at confinement in the Texas Department of Criminal Justice Institutional Division for a period of
twenty years and a $10,000 fine. The trial judge then stated:
[T]he jury having reached a verdict of 20 years and a fine of $10,000 for the
defendant, I will follow the verdict of the jury and sentence the defendant to twenty
years in the Texas Department of Criminal Justice Institutional Division and assess
a fine at $10,000.
Thus, the trial judge both received the verdict convicting appellant and pronounced the sentence
assessed. Nothing further was required for appellant’s conviction to be complete. Id. at 202. The
purpose of the written judgment is simply to record that the conviction has occurred. Any
irregularity in the written judgment would not render the conviction void. Id. (defective written
judgment may be corrected nunc pro tunc without necessity of further judicial action).
The written judgment here is not defective in any regard. The judge who signed the
judgment was a retired district judge who did not preside over the trial.1 Although neither party so
states, we presume that he was sitting by assignment pursuant to section 74.056 of the Texas
Government Code. See Tex. Gov’t Code § 74.056. The purpose of section 74.056 is to establish
a system whereby qualified judges may be assigned to serve as “acting presiding judge” in the
absence of the presiding judge and to hold court “to try cases and dispose of accumulated business.”
Id. § 74.056(a), (c). An acting presiding judge “has all the rights, duties and powers of the presiding
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Appellant’s assertion in his brief that the judge who signed the written judgment was a
sitting judge in another court is incorrect. The judge had retired from his elected position as a district
judge almost two years before signing the judgment in this case.
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judge.” Id. § 74.056(c). Consequently, the assigned judge here had the same authority to sign the
written judgment as would the judge who presided over the trial.
Appellant contends, however, that the assigned judge’s authority is limited by article
42.01 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. art. 42.01. Article 42.01
states that the judgment is “the written declaration of the court signed by the trial judge and entered
of record showing the conviction or acquittal of the defendant.” Id. (emphasis added). Appellant
maintains that this statute mandates that the judgment must be signed by “the trial judge who
presided over the trial.” The statute does not, however, impose such a requirement, but simply states
that the judgment must be signed by “the trial judge.” When construing a statute we do not read into
the statute words that are not there. See City of Rockwall v. Hughes, 246 S.W.3d 621, 629 (Tex.
2008). We conclude that the term “trial judge” in article 42.01 includes any judge with the authority
and jurisdiction to preside over the court in which the defendant was tried and is not necessarily
limited to the judge who actually presided over the defendant’s trial.
Appellant argues that such an interpretation of the statute could result in an incorrect
judgment because the judge signing the written judgment may not be as familiar with the
proceedings and their result. This concern does not justify limiting the authority of an assigned judge
to sign a written judgment presented to him and thereby frustrating the purpose of assigning visiting
judges to dispose of accumulated business of the district courts. As previously stated, the conviction
occurs when the judge presiding over the trial receives the verdict and pronounces the sentence. In
the event a judgment signed later by a different judge varies from the oral pronouncement of
sentence, the oral pronouncement controls. See, e.g., Ex parte Manning, 70 S.W.3d 131, 135 (Tex.
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Crim. App. 2002). Moreover, a written judgment that does not accurately reflect the oral
pronouncement at sentencing can be reformed. See Banks v. State, 708 S.W.2d 460, 461-62 (Tex.
Crim. App. 1986).
Nothing in article 42.01 prohibits an assigned judge who did not preside over a trial
from signing the written judgment. See Eubanks v. State, 11 S.W.3d 279, 281 (Tex.
App.—Texarkana 1999, no pet.) (elected judge of court could sign written judgment even though
she had no other relationship with case and even though assigned visiting judge pronounced
judgment in open court); Sparkman v. State, 997 S.W.2d 660, 663 (Tex. App.—Texarkana 1999,
no pet.) (same). We overrule appellant’s appellate issue.
CONCLUSION
Having overruled appellant’s sole appellate issue, we affirm the judgment
of conviction.
_____________________________________________
J. Woodfin Jones, Chief Justice
Before Chief Justice Jones, Justices Goodwin and Field
Affirmed
Filed: June 25, 2013
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