Darrell Wayland Nichols v. State ( 2007 )

In The

Court of Appeals

Ninth District of Texas at Beaumont

______________________ NO. 09-06-102 CR ______________________ DARRELL WAYLAND NICHOLS, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the Criminal District Court Jefferson County, Texas Trial Cause No. 96703

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    MEMORANDUM OPINION

Darrell Wayland Nichols pled guilty without a plea bargain to the offense of burglary-of-a-building. The trial court found him guilty and sentenced him to one year in a state jail facility. With a single issue, he appeals his conviction. ⁽¹⁾

Nichols was indicted for five other burglary-of-a-building offenses that, like the instant offense, occurred between May 2005 and December 2005. The final sentencing in each of the six cases occurred on the same day; each case was called separately.

Nichols challenges the trial court's "stacking" order at the sentencing hearing, which involves the instant case and Nichols' five other burglary-of-a-building convictions. He argues the sentence in the instant case (trial cause number 96703) should run concurrently with the sentences in trial cause numbers 95172, 95589, 96349, and 96702. ⁽²⁾

The trial court's oral pronouncements at the sentencing hearing are set out below:

[TRIAL JUDGE:] The Court having adjudicated Mr. Nichols guilty [in trial cause number 96349], the Court assesses punishment at confinement in a state jail facility for a term of one year. Having assessed punishment, you're hereby sentenced to serve one year.

This sentence in Cause No. 96349 shall run concurrent with Mr. Nichols' sentence in Cause Nos. 95589, 95172.

. . . .

Having adjudicated Mr. Nichols guilty [in trial cause number 96702], the Court assesses punishment at confinement in a state jail facility for a term of one year. Having assessed his punishment, he's hereby sentenced to serve one year in a state jail facility.

. . . .

Having assessed his punishment, Mr. Nichols is hereby sentenced to serve one year. This sentence in Cause No. 96702 shall run concurrent with Mr. Nichols' sentences in cause numbers 95172, 95589, 96349.

. . . .

Having adjudicated you guilty [in trial cause number 96055], the Court assesses your punishment at confinement in a state jail facility for a term of one year. . . . This judgment and sentence in Cause No. 96055 shall run consecutive with your conviction and sentence in Cause Nos. 96702, 95172, 95589, 96349.

. . . .

Therefore, based on the evidence, the Court at this time adjudicates you, Darrell Nichols guilty of the felony offense of burglary of a building [in trial cause number 96703]. Having adjudicated you guilty, the Court assesses your punishment at confinement in a state jail facility for a term of one year. . . .

This judgment and sentence in Cause No. 96703 shall run consecutive with your conviction and sentence in Cause No. 96055.

The written judgment states as follows:

This sentence shall run consecutive to the case specified below[.]

. . . .

Cumulation Order (Art. 42.01, Sec.1(19) CCP): The court orders that the sentence in this conviction shall run consecutively and shall begin only when the judgment and sentence in cause(s) 96055 for the offense of burglary of a building, out of the Criminal District Court of Jefferson County, TX has ceased to operate.

(Emphasis in original).

A trial court's pronouncement of sentence is oral; the judgment, including the sentence assessed, is merely the written declaration and embodiment of that oral pronouncement. Ex parte Madding, 70 S.W.3d 131, 135 (Tex. Crim. App. 2002). The trial court had statutory authority and discretion to decide whether Nichols' one year sentence in trial cause number 96703 should be served concurrently with or consecutively to the sentences in the five other convictions. See Tex. Code Crim. Proc. Ann. art. 42.08(a) (Vernon 2006); Ex parte Madding,70 S.W.3d at 136. If the trial judge decides to "stack" a defendant's sentences so that they run consecutively, he must make such an order at the time and place that sentence is orally pronounced. Ex parte Madding, 70 S.W.3d at 136 (citing Ex parte Vasquez, 712 S.W.2d 754, 755 (Tex. Crim. App. 1986). The "trial court does not have 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." Id.

In open court in Nichols' presence, the trial judge took each case separately, found Nichols guilty in each case, sentenced him in each case, and pronounced whether the sentences would run concurrently or consecutively. See Tex. Code Crim. Proc. Ann. art. 42.03, § (1)(a) (Vernon 2006). The oral pronouncement of judgment is clear. Four of the sentences -- trial cause numbers 95172, 95589, 96349, and 96702 -- are to run concurrently. The sentence in trial cause number 96055 is to run consecutively to the four that are running concurrently. The sentence in the instant case (trial cause number 96703) is to run consecutively to the sentence in trial cause number 96055. The oral pronouncements were neither ambiguous nor in conflict with the written judgment.

We overrule appellant's issue and affirm the judgment.

   AFFIRMED.

____________________________

DAVID GAULTNEY

Justice

Submitted on January 10, 2007

Opinion Delivered January 31, 2007

Do Not Publish

Before McKeithen, C.J., Gaultney and Horton, J.J

1. Nichols' counsel filed a brief on the merits in this case (trial cause number 96703). Subsequently, Nichols filed a pro se brief challenging this conviction and five others. Appellant is not entitled to present his own issue on appeal when his counsel has submitted a brief on the merits--a situation termed "hybrid" representation. See Patrick v. State, 906 S.W.2d 481, 498 (Tex. Crim. App. 1995); see also Ex parte Taylor, 36 S.W.3d 883, 887 (Tex. Crim. App. 2001). Consequently, we consider only the appellate brief filed by Nichols' attorney. See Rudd v. State, 616 S.W.2d 623, 625 (Tex. Crim. App. 1981).

2.

Appellant asserts that the written judgment does not specify which sentence the sentence in trial cause number 96703 shall run consecutively to. However, the judgment expressly states number 96703 shall run consecutively to number 96055.