James Covarrubia v. the State of Texas ( 2021 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-19-00219-CR
NO. 09-19-00220-CR
__________________
JAMES COVARRUBIA, Appellant
V.
THE STATE OF TEXAS, Appellee
__________________________________________________________________
On Appeal from the 252nd District Court
Jefferson County, Texas
Trial Cause Nos. 10-09032, 10-09733
__________________________________________________________________
MEMORANDUM OPINION
After the Court of Criminal Appeals gave James Covarrubia permission to file
out-of-time appeals, he filed appeals from two judgments, trial court cause numbers
10-09032 and 10-09733, he had received permission to appeal.1 In cause number 10-
09032, the judgment reflects the trial court found Covarrubia guilty of aggravated
See Ex parte Covarrubia, Nos. WR-89,642-01, WR-89,642-02, 2019 Tex.
1Crim. App. Unpub. LEXIS 361 (Tex. Crim. App. June 26, 2019).
1
assault. In cause number 10-09733, the judgment shows the trial court found
Covarrubia guilty of engaging in organized criminal activity. 2 In the briefs
Covarrubia filed to support his appeals, he argues the judgments are illegal because
the trial court acted without authority by first placing him on shock probation and
then, after revoking his probation, ordering his sentences executed. In a second issue
in which he challenges the lengths of the sentences, Covarrubia argues (1) the trial
court was not authorized to assess sentences exceeding ten years after the trial court
ordered him placed on shock probation, and (2) the stacking order relevant to the
judgment in cause number 10-09733 (engaging in organized criminal activity) is
void because the trial court lacked the authority to stack his sentences.
For the reasons explained below, we conclude the arguments Covarrubia
raised in the briefs lack merit.
Background
In May 2010, in cause number 10-09032, a Jefferson County grand jury
indicted Covarrubia for aggravated assault. 3 Two months later, another grand jury
indicted Covarrubia in cause number 10-09733 for engaging in organized criminal
2
See Tex. Penal Code Ann. §§ 22.02 (Aggravated Assault), 71.02 (Engaging
in Organized Criminal Activity).
3
Id. § 22.02 (Aggravated Assault).
2
activity.4 In a hearing that occurred on both cases in January 2011, Covarrubia
pleaded guilty to both the charges that resulted in the judgments under plea
agreements that he reached with the State. In carrying out the terms of those
agreements, the trial court ordered Covarrubia’s cases deferred finding him guilty
and instead chose to place him on deferred adjudication, community supervision.
In April 2011, the State moved to revoke the trial court’s deferred-
adjudication, community-supervision orders. In its motion, the State alleged that
Covarrubia violated the requirements of the orders. The trial court conducted a
hearing on the motions to revoke in May. The reporter’s record from the May hearing
reflects the trial court found that Covarrubia violated the requirements of the court’s
community-supervision orders. Then, the trial court pronounced separate findings of
guilt and then sentenced Covarrubia, in each case, to serve a twenty-year sentence.
The reporter’s record from the May 2011 sentencing hearing reflects the trial court
stacked the sentence in cause number 10-09733 on top of the sentence it gave
Covarrubia in cause number 10-09032. 5 But when the trial court signed the written
judgment—meaning the judgment the court signed in May 2011 in cause number
4
Id. § 71.02 (Engaging in Organized Criminal Activity).
5
Near the end of the sentencing hearing and after pronouncing a sentence in
both cases, the trial court pronounced: “Cause No. [10-0]9733 will run consecutive
to Cause No. [10-0]9032.”
3
10-09733—the trial court failed to include a written cumulation order with the
written judgment.
Less than a mother later, Covarrubia asked the trial court to set aside the
judgments in both cases, that is the judgment the trial court signed in May 2011. The
trial court conducted a hearing on the motions to reconsider within thirty days of the
day it found Covarrubia guilty in both cases. During the June 2011 hearing on
Covarrubia’s motions to reconsider, Covarrubia asked the trial court to allow him
another chance to live up to the requirements of the trial court’s community-
supervision orders, the orders the trial court found he violated in the hearing the
court conducted in his cases in May. At the conclusion of the June 2011 hearing, the
trial court announced: “I will reinstate your unadjudicated probation in Cause No.
9032 and Cause No. 9733.” 6 That said, the trial court then failed to follow up on the
statements it made during the June 2011 hearing about returning Covarrubia to
community supervision by signing written orders memorializing what occurred in
the June 2011 hearing.
6
Covarrubia perfected appeals from the trial court’s May 2011 judgments. See
Covarubbia (sic) v. State, Nos. 13-11-00435-CR, 13-11-00436-CR, 2011 Tex. App.
LEXIS 6926 (Corpus Christi—Aug. 24, 2011, no pet.). But Covarrubia subsequently
asked the Corpus Christi Court of Appeals to dismiss his appeals. We note the
Corpus Christi Court considered Covarrubia’s appeals from the May 2011
judgments pursuant to a docket-equalization order issued by the Texas Supreme
Court. The Corpus Christi Court of Appeals granted the motions to dismiss, which
disposed of the appeals Covarrubia filed from the judgments in his two cases in 2011.
4
Yet the record before us reflects that both the State and Covarrubia relied on
the trial court’s oral rulings, as both then began operating under a mistaken belief
that no written orders were needed on Covarrubia’s motions to reconsider. In
February 2012, the record shows the State (once again) moved to revoke the decision
the trial court made in June 2011 to return Covarrubia to community supervision. In
March 2012, the trial court conducted a hearing on the State’s motions to revoke. In
the March 2012 hearing, after the trial court found Covarrubia guilty in each case,
the trial court assessed separate twenty-year sentences based on Covarrubia’s pleas
of guilt in each case. When the trial court sentenced Covarrubia in cause number 10-
09733, the trial court advised Covarrubia he would begin serving his sentence in
cause number 10-09733 after completing his sentence in cause number 10-09032.
In September 2018, Covarrubia filed writ of habeas corpuses challenging the
judgments in both cases. In his application for the writs, Covarrubia claimed the trial
court assessed illegal sentences. In July 2019, the Court of Criminal Appeals gave
Covarrubia the right to file out-of-time appeals to appeal the judgments in trial court
causes 10-09032 and 10-09733.7 After the Court of Criminal Appeals issued its
opinion allowing Covarrubia to file out-of-time appeals, he filed notices of appeal
and briefs complaining about the legality of the judgments of conviction the trial
court signed in trial court causes 10-09032 and 10-09733.
7
See Ex parte Covarrubia, 2019 Tex. Crim. App. Unpub. LEXIS 361.
5
Analysis
Are the May 2011 or the March 2012 Judgments the Trial Court
Signed Relevant to Covarrubia’s Appeals?
Covarrubia filed briefs in which he argues the judgments the trial court signed
in March 2012 should be overturned based on his claim that before he began serving
his sentence the trial placed him on shock probation. So he treats the March 2012
judgments as the final judgments relevant to his appeals. But he is mistaken about
whether the March 2012 judgments are the final judgments that are relevant to his
appeals. Covarrubia’s arguments fail to recognize that under Texas law, motions for
rehearing may be granted only by written order.8 Rule 21.8(b) of the Texas Rules of
Appellate Procedure is crystal clear on this subject, as it provides: “The granting of
a motion for new trial must be accomplished by written order. A docket entry does
not constitute a written order.”9 And trial courts have only a limited period of time—
seventy-five days after the party’s filing of a motion for new trial—in which they
may sign a written order setting aside the court’s earlier judgment, otherwise the
judgment by operation of law becomes final. 10
8
State v. Davis, 349 S.W.3d 535, 538 (Tex. Crim. App. 2011) (holding the
defendant’s motion for reconsideration was the functional equivalent of a motion for
new trial).
9
Tex. R. App. P. 21.8(b).
10
Id. 21.8(a).
6
In the present case, we note the clerk’s record reflects the docket sheets
contain entries that reflect the trial court intended to grant Covarrubia’s motions to
reconsider. But it is well-settled that docket entries cannot substitute for a written
order under the requirements set out in Rule 21.8. Moreover, a motion for rehearing,
according to the Court of Criminal Appeals, is the functional equivalent of a motion
for new trial. 11 For these reasons, we cannot overlook Covarrubia’s failure to obtain
a written order on his motions to reconsider.
We conclude the record contains no written order granting Covarrubia’s
motion to reconsider. Consequently, his motions to reconsider were overruled by
operation of law seventy-five days after the trial court orally pronounced his
sentences during the May 2011 hearing.12 That means the judgments the trial court
signed in March 2012 are void, while the May 2011 judgments are judgments that
we must treat as the judgments from which he has appealed. 13
May We Reach the Issues Covarrubia Raises in His Briefs?
While Covarrubia’s briefs reflect he is mistaken about what judgments he
intended to appeal, the record shows he received permission from the Court of
11
State v. Garza, 931 S.W.2d 560, 561-62 (Tex. Crim. App. 1996); State v.
Rinehart, 971 S.W.2d 542, 544-45 (Tex. App.—Dallas 1997, no pet.).
12
Tex. R. App. P. 21.8(c).
13
See Garza, 931 S.W.2d at 562 (noting that in Cobb v. Godfrey, 739 S.W.2d
47, 49 (Tex. Crim. App. 1987), the Court held “that once a motion for new trial is
overruled by operation of law, the trial court loses jurisdiction to rule upon it”).
7
Criminal Appeals to file out-of-time appeals in an opinion that does not identify the
specific judgments that Court was referring to when it gave him permission to
appeal. 14 Yet we must assume the Court of Criminal Appeals intended to allow
Covarrubia to appeal from the final judgments that were relevant to his two cases
even though it did not identify the specific judgments from which it was giving him
permission to appeal. Stated another way, it seems unlikely to us that the Court of
Criminal Appeals would give Covarrubia permission to appeal from the March 2012
judgments when both are void. Additionally, even in the Court of Criminal Appeals,
Covarrubia’s complaints addressed the authority of the trial court to assess and stack
his twenty-year sentences. Because Covarrubia could have made the same
arguments about the validity of the May 2011 judgments had he recognized those as
the final judgments relevant to his appeals, we address his arguments because it
appears to us that he would have made the same arguments had he realized which of
the judgments were relevant to his appeals.
The Conviction for Aggravated Assault
In the brief Covarrubia filed complaining about the judgment in trial court
cause number 10-09032 for aggravated assault, he argues the trial court placed him
on shock probation before he began serving his sentence. Relying on that premise,
14
Ex parte Covarrubia, 2019 Tex. Crim. App. Unpub. LEXIS 361.
8
Covarrubia concludes the trial court, after placing him on shock probation in June
2011, could not on a later date require that he serve anything more than ten-years in
prison on each of his convictions.
Covarrubia’s arguments, however, rely on a mistaken premise. Nothing in the
record supports Covarrubia’s claim that the trial court, during the June 2011 hearing,
placed Covarrubia on shock probation. The trial court never mentioned the words
“shock probation” in that hearing. Instead, the reporter’s record shows that during
the June 2011 hearing the trial court stated that it would allow Covarrubia another
opportunity to complete the requirements imposed on him under the orders the trial
court signed when it originally decided to place Covarrubia on deferred adjudication,
community supervision. Because Covarrubia’s argument the trial court placed him
on shock probation has no support in the record, it is overruled.
The Conviction for Engaging in Organized
Criminal Activity
The brief Covarrubia filed to challenge the twenty-year sentence the trial court
gave him in trial court cause number 10-09733 (engaging in organized criminal
activity) also claims the judgment assesses an illegal twenty-year sentence.
According to Covarrubia, after the trial court put him on shock probation during the
June 2011 hearing, the trial court could not then later assess a sentence of more than
ten years. But we rejected that same argument when explaining why Covarrubia’s
9
appeal from his conviction for aggravated assault lacks merit. We reject the
argument for the same reasons here.
The Appeal and the Cross-Appeal:
Are Covarrubia’s Sentences Stacked?
After Covarrubia appealed, the State filed a brief in which it suggests this
Court should correct the judgment in trial court cause number 10-09733 because it
“incorrectly provides that it should run concurrently rather than consecutively to
Cause Number 10-09032 in contradiction to the court’s oral pronouncement of
sentence.” Covarrubia also complains about the stacking order. According to
Covarrubia, the judgment in the case convicting him for engaging in organized
criminal activity should not include a stacking order in its March 2012 judgment
because it failed to include one in the May 2011 judgment.
There is no doubt the written judgment the trial court signed in May 2011 does
not contain a written stacking order. Yet there is also no doubt that during the May
2011 sentencing hearing, the trial court pronounced the court had decided to
cumulate Covarrubia’s sentence in cause number 10-09733 on top of the sentence
the trial court gave him in trial court cause number 10-09032.
The State’s complaint suggesting the written judgment signed in May 2011
fails to conform to the oral pronouncement of Covarrubia’s sentence is based on the
10
reporter’s record of the May 2011 hearing. The State is authorized to raise the issue
in its cross-appeal. 15
Under Texas law, the sentence a trial court pronounces at sentencing, even
though oral, must be assessed in the defendant’s presence.16 Thus, while the written
judgment is to reflect the defendant’s sentence, it is still merely a written declaration
and embodiment of the sentence the trial court pronounced during the defendant’s
sentencing hearing while the defendant was in the court’s presence. 17 Because courts
must assess sentences while the defendant is present, trial courts cannot legally
orally pronounce one sentence in the defendant’s presence “but enter a different
sentence in [a] written judgment, outside the defendant’s presence.” 18 “When there
is a conflict between the oral pronouncement of sentence and the sentence in the
written judgment, the oral pronouncement controls.”19
We may modify a trial court’s judgment to make the record speak the truth
when the information that we need is in the record that is before us in the appeal.20
Here, the record reflects that during the May 2011 sentencing hearing, the trial court
15
Tex. Code Crim. Proc. Ann. art. 44.01; Tex. R. App. P. 25.2(a)(1); Pfeiffer
v. State, 363 S.W.3d 594, 599, 604 (Tex. Crim. App. 2012); Mizell v. State, 119
S.W.3d 804, 807 (Tex. Crim. App. 2003).
16
Taylor v. State, 131 S.W.3d 497, 500 (Tex. Crim. App. 2004).
17
Id.
18Ex parte Madding, 70 S.W.3d 131, 136 (Tex. Crim. App. 2002).
19
Taylor, 131 S.W.3d at 500.
20
Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim.
App. 1993).
11
told Covarrubia the court was stacking, that is cumulating, his sentence in cause
number 10-09733 on top of his sentence in cause number 10-09032.
Because the judgment the trial court signed in cause number 10-09733 does
not conform to the trial court’s oral pronouncement of the sentence, we sustain the
State’s cross-appeal. We also reject Covarrubia’s argument claiming the court
required him to begin serving his sentences before they were stacked. Instead, the
record shows the trial court stacked the sentences during the hearing in September
2011 and ordered the sentences executed at that time.
Conclusion
Because Covarrubia’s issues lack merit, his issues are overruled. We sustain
the State’s cross appeal in trial court cause number 10-09733. We correct the written
judgment by deleting the language on page one of the judgment stating, “THIS
SENTENCE SHALL RUN CONCURRENTLY.” We replace that language with the
following: “Covarrubia’s twenty-year sentence in trial court cause number 10-09733
shall begin only when the judgment and sentence in trial court cause number 10-
09032 ceases to operate.”
As modified, the judgments in trial court cause numbers 10-09032 and 10-
09733 are affirmed.
12
AFFIRMED AS MODIFIED.
_________________________
HOLLIS HORTON
Justice
Submitted on March 24, 2021
Opinion Delivered July 14, 2021
Do Not Publish
Before Golemon, C.J., Kreger and Horton, JJ.
13