Nos. 05-07-00040-CR, 05-07-00041-CR, 05-07-00042-CR
Opinion issued August 17, 2007. DO NOT PUBLISH Tex. R. App. P. 47
On Appeal from the Criminal District Court No. 4, Dallas County, Texas, Trial Court Cause Nos. F06-18721-PK, F06-18722-NK, F06-38408-MK.
Before Justices WHITTINGTON, BRIDGES, and LANG-MIERS.
DAVID L. BRIDGES, Justice.
Michael Christopher Epps waived a jury and pleaded guilty to evading arrest or detention while using a vehicle, unauthorized use of a vehicle (UUMV), and burglary of a habitation. See Tex. Pen. Code Ann. §§ 30.02, 31.07, 38.04 (Vernon 2003). Appellant also pleaded true to one enhancement paragraph each in the evading arrest and burglary cases. The trial court assessed punishment at two years' imprisonment for the evading arrest, ten years' imprisonment for the burglary, and two years' confinement in a state jail facility for the UUMV, and assessed $750 fines in each case. In four points of error, appellant contends the trial court's judgment in the evading arrest case conflicts with the sentence orally pronounced and all of the sentences constitute cruel and unusual punishment. We affirm the trial court's judgments.
Background
Appellant was charged with, and pleaded guilty to, the third-degree felony offense of evading arrest or detention, having a previous conviction for evading arrest or detention. See Tex. Pen. Code Ann. § 38.04(b)(2)(A). The indictment included an enhancement paragraph alleging a prior felony conviction for burglary of a habitation. Appellant entered an open guilty plea to the charge and pleaded true to the enhancement paragraph. Appellant's signed judicial confession and stipulation of evidence and plea of true to the enhancement paragraph were admitted into evidence without objection. Appellant also pleaded guilty to the UUMV and burglary of a habitation charges, and true to the enhancement paragraph in the burglary case. A sentencing hearing was later conducted in all three cases. The trial judge found appellant guilty in each case. The judge then said, "[i]n the evading arrest and in the unauthorized use case, I assess your punishment at 2 years in the state jail and a fine of $750. In the other case, I find the second paragraph to be true and I assess your punishment at 10 years and a fine of $750." The written judgment in the evading arrest case sets out the punishment and place of confinement as "2 Years Institutional Division, TDCJ." The judgment also reflects the enhancement paragraph was found true. Oral Pronouncement vs. Written Judgment
In his first point of error, appellant asserts the trial court's judgment in the evading arrest case should be modified to show he was sentenced to two years' confinement in a state jail facility and not imprisonment in the Institutional Division of the Texas Department of Criminal Justice. Appellant also asserts that because the trial judge did not orally find the enhancement paragraph true, the written judgment should be modified to delete the enhancement finding. The State responds that the judgment in the evading arrest case properly recites the sentence and finding of true on the enhancement paragraph. Evading arrest or detention while using a vehicle is a state-jail felony offense. See Tex. Pen. Code Ann. § 38.04(b)(1). The punishment range for a state-jail felony is confinement in a state jail facility for any term between 180 days and two years and an optional fine not to exceed $10,000. See id. § 12.35. However, if the accused uses a vehicle while in flight and has been previously convicted of an evading arrest or detention offense, the offense is punishable as a third-degree felony. See id. § 38.04(b)(2). The punishment range for a third-degree felony is imprisonment in the institutional division for any term between two and ten years and an optional fine not to exceed $10,000. See id. § 12.34. In this case, appellant was charged with the third-degree felony offense of evading arrest or detention. The indictment also included an enhancement paragraph alleging a prior felony conviction for burglary of a habitation. Thus, the punishment range increased to that of a second-degree felony — imprisonment in the institutional division for any term between two and twenty years and an optional fine not to exceed $10,000. See id. § 12.33. However, in sentencing appellant, the judge orally pronounced confinement for two years in a state jail facility. Thus, there is a variance between the trial court's oral pronouncement of the sentence and the written judgment in the evading arrest case. Generally, when there is a variation between the oral pronouncement of sentence and the written memorialization of the sentence, the oral pronouncement controls. See Coffey v. State, 979 S.W.2d 326, 328 (Tex.Crim.App. 1998). The Eastland Court of Appeals addressed a somewhat similar issue in Campbell v. State, 215 S.W.3d 544 (Tex.App.-Eastland 2007, pet. granted). In Campbell, the appellant was charged with, and pleaded not guilty to, possession of less than one gram of cocaine in a drug-free zone. The trial judge, however, found Campbell guilty of possession of less than one gram of cocaine, a state-jail felony offense, and made no reference to the drug-free zone. The written judgment then recited that Campbell was found guilty of possession of cocaine in a drug-free zone, a third-degree felony offense. The trial court found two enhancement paragraphs true and assessed punishment at thirty-five years' imprisonment. The Eastland Court of Appeals held that because the trial court clearly found Campbell guilty of a state-jail felony, it sentenced him outside the maximum punishment range for a state-jail felony with two prior felony convictions in assessing the thirty-five years sentence. The court held the written judgment must be modified to reflect the trial court's oral rendition that Campbell was convicted of the lesser-included simple possession offense. We conclude Campbell is distinguishable from this case in two respects. First, Campbell pleaded not guilty to a third-degree felony offense, and the trial judge found him guilty of a lesser-included state-jail felony offense. In the case before us, appellant pleaded guilty to, and was found guilty of, the third-degree felony offense of evading arrest or detention. Second, Campbell dealt with the length of confinement. The issue before us is the place of confinement. Appellant was convicted of evading arrest or detention, having a previous conviction for evading arrest or detention, a third-degree felony. Appellant also pleaded true to one enhancement paragraph, elevating the punishment range to that of a second-degree felony. See Tex. Pen. Code Ann. § 12.42(a)(3) (Vernon Supp. 2006). The proper place of imprisonment for a second-degree felony is the institutional division. See Tex. Pen. Code Ann. § 12.34. To the extent appellant complains about the lack of an oral finding on the enhancement paragraph, we find his complaint without merit. The trial court is not required to read the enhancement paragraph or the findings to a defendant when the trial court alone assesses the defendant's punishment. See Reed v. State, 500 S.W.2d 497, 499 (Tex.Crim.App. 1973); Seeker v. State, 186 S.W.3d 36, 39 (Tex.App.-Houston [1st Dist.] 2005, pet. ref'd). Because the trial court had no duty to make an oral finding of true or not true on the enhancement paragraph, we conclude the finding of true recited in the written judgment of conviction is not inconsistent with the trial court's oral silence concerning the finding. It is clear from the record the trial judge misspoke when he included the sentence for evading arrest or detention with the sentence for the UUMV in pronouncing confinement in a state jail facility. Nevertheless, the oral rendition of punishment was error because the place of imprisonment for a second-degree felony is properly the institutional division, not the state jail division. See Tex. Pen. Code Ann. § 12.33(a) (imprisonment in the institutional division). Thus, the sentence to a state jail facility was not authorized by law. See id. A sentence that is not authorized by law is unenforceable. See Mizell v. State, 119 S.W.3d 804, 806 (Tex.Crim.App. 2003). Nothing in Coffey suggests that if the oral pronouncement of sentence is legally unenforceable, as in the present case, the unenforceable oral pronouncement nonetheless prevails over an enforceable written sentence as set forth in the judgment. See Tufele v. State, 130 S.W.3d 267, 274 (Tex.App.-Hous. [14th Dist.] 2004, no pet.); see also Ribelin v. State, 1 S.W.3d 882, 885 n. 2 (Tex.App.-Fort Worth 1999, pet. ref'd). Here, as in Ribelin, the trial court committed error, but not harmful error. The trial court's error arises from a variance between the oral pronouncement of sentence and the court's written judgment. Under such circumstances, we can only reverse if the variance affected appellant's substantial rights. See Tex. R. App. P. 44.2(b); Ribelin, 1 S.W.3d at 885. In this case, as previously noted, the written judgment sets forth the proper place of confinement. Appellant is currently confined in the Institutional Division of the Texas Department of Criminal Justice for a ten-year term in the burglary case. Given these facts, we do not see how appellant's substantial rights have been affected. Nor do we see how appellant has been harmed by the variance between the oral pronouncement and the written judgment. We therefore disregard the variance and overrule appellant's first point of error. See Ribelin, 1 S.W.3d at 885. Cruel/Unusual Punishment
In his second, third, and fourth points of error, appellant argues the trial court imposed grossly disproportionate sentences in each case in violation of the United States and Texas Constitutions. See U.S. Const. Amend. VIII, XIV; Tex. Const. art. 1, § 13. The State responds that appellant did not preserve his complaints for appellate review and, alternatively, the sentences do not violate the United States or Texas Constitution. Appellant did not complain about the sentences either at the time they were imposed or in his motions for new trial. See Tex. R. App. P. 33.1(a)(1); Castaneda v. State, 135 S.W.3d 719, 723 (Tex.App.-Dallas 2003, no pet.). Even constitutional rights, including the right to be free from cruel and unusual punishment, may be waived. Rhoades v. State, 934 S.W.2d 113, 120 (Tex.Crim.App. 1996); Castaneda, 135 S.W.3d at 723. Moreover, there is no evidence the sentences are cruel or unusual, and they are within the statutory punishment ranges for the offenses. See Tex. Pen. Code Ann. §§ 12.32, 12.33, 12.35; Kirk v. State, 949 S.W.2d 769, 772 (Tex.App.-Dallas 1997, pet. ref'd). We overrule appellant's second, third, and fourth points of error. We affirm the trial court's judgment in each case.