                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-12-00392-CR


ERNEST PHILLIP HERNANDEZ                                         APPELLANT

                                     V.

THE STATE OF TEXAS                                                    STATE


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         FROM THE 89TH DISTRICT COURT OF WICHITA COUNTY

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                       MEMORANDUM OPINION1

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                              I. INTRODUCTION

     Appellant Ernest Phillip Hernandez appeals the sentence he received after

he pleaded guilty to aggravated robbery and elected to have a jury assess

punishment.   In two issues, Hernandez argues that the trial court erred by




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      See Tex. R. App. P. 47.4.
granting the State’s challenge for cause to venireperson 35 and that the

judgment should be modified to delete a $5,000 fine. We will affirm.

                      II. NO HARM SHOWN BY EMPANELED JURY

      In his first issue, Hernandez argues that the trial court committed reversible

error when it granted the State’s challenge for cause to venireperson 35.

Hernandez first argues that the trial court erred by granting the State’s challenge

because the court erroneously excused venireperson 35 even though her

responses to the State’s questions demonstrated that she was impartial.

Second, Hernandez argues that this caused him harm and that we should

disregard the court of criminal appeals’s decision in State v. Jones, in which the

court held that the erroneous excusal of a veniremember calls for reversal only if

the record shows that the error deprived the defendant of a lawfully constituted

jury; that is, whether the jurors who actually sat on the jury panel were impartial.

982 S.W.2d 386, 394 (Tex. Crim. App. 1998), cert. denied, 528 U.S. 985 (1999).

      We decline the invitation to disregard binding precedent, and we hold that,

under the proper legal standard articulated by the court of criminal appeals, even

if the trial court erred by excusing venireperson 35, the alleged error does not call

for reversal because Hernandez fails to show he was deprived of a lawfully

constituted jury. See Gamboa v. State, 296 S.W.3d 574, 580 (Tex. Crim. App.

2009) (reasoning that it “need not decide whether the trial judge erred” by

excusing a specific venireperson when appellant failed to show he was deprived

of a lawfully constituted jury).


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      Hernandez argues that the standard announced in Jones is “unduly

burdensome” in light of select language found in the cases of Jones, the United

States Supreme Court case of Gray v. Mississippi, and the court of criminal

appeals’s recent decision in Gamboa v. State. See Gray v. Mississippi, 481 U.S.

648, 658–59, 107 S. Ct. 2045, 2051–52 (1987); see also Gamboa, 296 S.W.3d at

584; Jones, 982 S.W.2d at 394. But Hernandez’s reliance on select language

found in these cases is misplaced. In Gamboa, the court of criminal appeals

rejected a similar argument and reliance on the language found in Gray. See

Gamboa, 296 S.W.3d at 580. In Gamboa, the appellant argued that under Gray

the harmless-error doctrine does not apply when, as is alleged here, a trial court

erroneously excuses a juror who is not disqualified as a matter of law. Id. In

rejecting this argument, the court of criminal appeals reaffirmed the proposition

announced in Jones—that reversal is required only when an error deprives a

defendant of a lawfully constituted jury.       See id.; see also Jones, 982 S.W.2d at

394. This court has recently rejected similar arguments as well. See Robertson

v. State, No. 02-11-00361-CR, 2012 WL 2579593, at *3 (Tex. App.—Fort Worth

July 5, 2012, pet. ref’d) (mem. op., not designated for publication). Thus, in order

for this court to reverse under Hernandez’s argument, the record must show that

the jurors who actually sat were impartial. See Gamboa, 296 S.W.3d at 580.

      Hernandez does not argue that an impartial juror sat on the jury. Instead,

he argues that veniremember 38, who sat on the jury and who explained in voir

dire that he had been the victim of multiple assaults but that he still unequivocally


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could remain impartial, demonstrates that the trial court’s excusal of

veniremember 35 “could possibly have [ ] affected” the “composition of the jury

panel as a whole.” In short, Hernandez argues that veniremember 35 was a

better choice to serve on the jury than veniremember 38.         But, as explained

above, this argument is predicated on select language found in Jones, Gray, and

Gamboa, and does not reflect the well-established rule that in order to show

harm, an appellant must demonstrate that he was deprived of a lawfully

constituted jury. Gray, 481 U.S. at 658–59; Gamboa, 296 S.W.3d at 580; Jones,

982 S.W.2d at 394. Hernandez fails to even make an argument that such harm

occurred.   Robertson, No. 02-11-00361-CR, 2012 WL 2579593, at *3 (“[A]s

Robertson has not argued or shown—and the record does not reflect—that the

jurors who served in his trial were not qualified, we conclude that he was not

deprived of a lawfully constituted jury.”); see also Jones, 982 S.W.2d at 393

(stating that “[t]he defendant’s only substantial right is that the jurors who do

serve be qualified,” and that “[t]he defendant’s rights go to those who serve, not

to those who are excused”). We overrule Hernandez’s first issue.

                                   III. THE FINE

      In his second issue, Hernandez argues that we should reform the

judgment to delete the $5,000 fine, even though the jury assessed the fine,

because the trial court did not orally pronounce it and it therefore should not have

been included in the judgment.




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      “A defendant’s sentence must be pronounced orally in his presence. The

judgment, including the sentence assessed, is just the written declaration and

embodiment of that oral pronouncement. When there is a conflict between the

oral pronouncement of the sentence and the sentence in the written judgment,

the oral pronouncement controls.” Taylor v. State, 131 S.W.3d 497, 500 (Tex.

Crim. App. 2004) (footnotes omitted); Coffey v. State, 979 S.W.2d 326, 328 (Tex.

Crim. App. 1998).     But if the oral pronouncement is merely ambiguous, as

opposed to a genuine conflict, the jury’s punishment verdict, the court’s

pronouncement, and the written judgment should all be read together in an effort

to resolve the ambiguity. Aguilar v. State, 202 S.W.3d 840, 843 (Tex. App.—

Waco 2006, pet. ref’d).

      Here, as the jury returned its punishment verdict, the following exchange

occurred:

      THE COURT: Okay. As I understand it, Mr. Tucker, the Jury has
      arrived at a verdict; is that correct?

      FOREMAN TUCKER: Yes, sir.

      THE COURT: Okay. And the verdict is unanimous, that is the -- the
      vote of each and every juror?

      FOREMAN TUCKER: Yes, sir.

      THE COURT: Okay. Thank you. “We the Jury, find the Defendant,
      Ernest Phillip Hernandez, guilty of the offense of aggravated
      robbery as alleged in the indictment and do further find that it is true
      that the said person is the same person who, prior to the
      commission of that offense, has previously -- has been previously
      convicted of the felony offense alleged. We, the jury, assess his
      punishment at confinement in the Texas Department of Criminal


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      Justice, Institutional Division, for a term of 99 years and a fine of
      $5,000.” Signed by Jay Scott Tucker, Presiding Juror.

      After this exchange, the jurors were polled and each juror

acknowledged that the verdict as read was in fact his or her verdict. The

trial court then proceeded to pronounce sentence:

      THE COURT: Okay. Ernest Phillip Hernandez, the Jury having
      arrived at a verdict of imprisonment for you for the term of 99 years
      and a $5,000 fine, I hereby sentence you to serve 99 years in the
      Texas Department of Criminal Justice, Institutional Division. You
      will receive credit for any time you’ve already served in relation to
      this offense in jail. So with that, Sheriff, you can go ahead -- now,
      we’re going to need to have the Defendant here for the judgment
      and the -- but other than that, so . . .

      THE DEFENDANT: They can’t take my spirit. It doesn’t matter
      what they do. They can’t take my spirit.

      THE COURT: You’ll have to quit talking, sir. With that you are --
      could you possibly move him over just a little bit as the jury files
      out?

      [Prosecutor]: Judge, did you read his fine as well?

      THE COURT: I did, $5,000.

      We conclude that the trial court’s oral pronouncement in this case is

potentially ambiguous because when the trial court stated, “I hereby sentence

you,” it announced only the prison term and not the fine.         But considering

together the trial court’s having read aloud the jury’s verdict assessing

punishment at ninety-nine years and a $5,000 fine, the trial court’s having

announced the fine immediately preceding its pronouncement of sentence and

again after having been prompted by the State in Hernandez’s presence, and



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because the written judgment recites that the jury assessed ninety-nine years’

confinement and a $5,000 fine, any potential ambiguity is resolved. See Taylor,

131 S.W.3d at 500; see also Aguilar, 202 S.W.3d at 843.           We overrule

Hernandez’s second issue.

                               IV. CONCLUSION

      Having overruled both of Hernandez’s issues, we affirm the trial court’s

judgment.



                                                /s/ Bill Meier

                                                BILL MEIER
                                                JUSTICE

PANEL: GARDNER, WALKER, and MEIER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: April 17, 2014




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