                                                                             PD-1586-14
                                                            COURT OF CRIMINAL APPEALS
                                                                             AUSTIN, TEXAS
                                                        Transmitted 12/31/2014 12:21:13 PM
                                                           Accepted 12/31/2014 1:03:40 PM
                             PD-1586-14                                       ABEL ACOSTA
                                                                                      CLERK

               IN THE COURT OF CRIMINAL APPEALS
                     OF THE STATE OF TEXAS



                        LACONTE WELDON
                         Petitioner/Appellant

                                  v.

                        THE STATE OF TEXAS
                         Respondent/Appellee


 On Petition for Discretionary Review from the First Court of Appeals
     In Cause No. 01-13-00113-CR, affirming the conviction in
    Cause No. 1779615 from County Criminal Court at Law No. 7
                       of Harris County, Texas


              PETITION FOR DISCRETIONARY REVIEW



ORAL ARGUMENT REQUESTED                     ALEXANDER BUNIN
                                            Chief Public Defender
                                            Harris County, Texas

                                            FRANCES BOURLIOT
                                            Assistant Public Defender
                                            Harris County, Texas
                                            Texas Bar No. 24062419
    December 31, 2014                       1201 Franklin, 13th Floor
                                            Houston, Texas 77002
                                            Phone: (713) 368-0016
                                            Fax: (713) 437-4317
                                            frances.bourliot@pdo.hctx.net

                                            Counsel for Petitioner
                   IDENTITY OF PARTIES AND COUNSEL


APPELLANT:                                Laconte Weldon
                                          24134 Landing Way Drive
                                          Spring, Texas 77373

TRIAL PROSECUTORS:                        Kristina Daley
                                          Assistant District Attorney
                                          Harris County, Texas
                                          1201 Franklin, Suite 600
                                          Houston, Texas 77002

DEFENSE COUNSEL AT TRIAL:                 Peter Justin
                                          402 Main Street
                                          Houston, Texas 77002

PRESIDING JUDGE:                          Hon. Pam Derbyshire
                                          County Criminal Court at Law 7
                                          Harris County, Texas
                                          1201 Franklin, 9th Floor
                                          Houston, Texas 77002

COUNSEL ON APPEAL FOR APPELLANT:          Frances Bourliot
                                          Assistant Public Defender
                                          Harris County, Texas
                                          1201 Franklin, 13th Floor
                                          Houston, Texas 77002




                                  ii
                                             TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ................................................................... ii

TABLE OF CONTENTS ........................................................................................... iii

INDEX OF AUTHORITIES........................................................................................ iv

STATEMENT REGARDING ORAL ARGUMENT.......................................................... 1

STATEMENT OF THE CASE ...................................................................................... 1

STATEMENT OF PROCEDURAL HISTORY ................................................................ 2

QUESTION FOR REVIEW ......................................................................................... 2

         DID THE COURT OF APPEALS ERR IN AFFIRMING THE JUDGMENT AND
         SENTENCE WITHOUT HAVING THE COURT REPORTER’S NOTES TO
         EXAMINE?

REASON FOR GRANTING REVIEW ........................................................................... 2

ARGUMENT............................................................................................................. 2

PRAYER .................................................................................................................. 4

CERTIFICATE OF SERVICE ...................................................................................... 5

CERTIFICATE OF COMPLIANCE .............................................................................. 5




                                                            iii
                                                    INDEX OF AUTHORITIES

Cases

Ortiz v. State, 651 S.W.2d 764 (Tex. Crim. App. 1983) ...............................................................2, 3

Weldon v. State, 01-13-00113-CR, 2014 WL 5500484 (Tex. App.—Houston [1st Dist.] Oct.

   30, 2014) .......................................................................................................................................2, 3

Rules

Tex. R. Evid. 1002 ................................................................................................................................ 2




                                                                          iv
                     STATEMENT REGARDING ORAL ARGUMENT

       Petitioner requests oral argument as it may aid the Court since the analysis of

this case depends upon a detailed review of the record.

                               STATEMENT OF THE CASE

       This petition seeks review of a direct appeal brought after a conviction for a

Class A misdemeanor DWI second offender. (C.R. at 116). On April 17, 2012, Mr.

Weldon was convicted in a jury trial and the trial court assessed his punishment at one

year in the Harris County Jail and a fine of $400, probated for eighteen (18) months.

(C.R. at 76). On June 1, 2012, the State filed a Motion to Revoke Community

Supervision, and on January 24, 2013, after hearing testimony, the trial court assessed

his punishment. (3 R.R. at 8). The trial court orally pronounced a sentence of five (5)

days confinement and court costs in the amount of $500.00. (3 R.R. at 8). However,

the written judgment reflects a sentence of one year confinement in the Harris County

Jail, a fine of $500.00, and court costs of $412.00. (C.R. at 116).

       On May 29, 2014, the First Court of Appeals abated the case and ordered the

trial court to hold a hearing to determine whether the reporter’s record reflected an

inaccurately recorded oral pronouncement. On June 11, 2014, the court reporter

testified that the oral pronouncement in the original reporter’s record had been a

mistake. (1 Supp RR. At 8). On July 23, 2014, the court reporter filed a supplemental

reporter’s record that reflected an oral sentence pronouncement of one year

confinement in Harris County jail, credit for five days. (3 Supp. R.R. at 7).

                                             1
                      STATEMENT OF PROCEDURAL HISTORY

      On appeal, Mr. Weldon asserted that the judgment should be reformed to

conform to the oral pronouncement. In a memorandum opinion dated October 30,

2014, the First Court of Appeals affirmed Mr. Weldon’s judgment. Weldon v. State, 01-

13-00113-CR, 2014 WL 5500484 (Tex. App.—Houston [1st Dist.] Oct. 30, 2014). See

Appendix. No motion for rehearing was filed.

                               QUESTION FOR REVIEW

      DID THE COURT OF APPEALS ERR IN AFFIRMING THE JUDGMENT AND
      SENTENCE WITHOUT HAVING THE COURT REPORTER’S NOTES TO
      EXAMINE?

                          REASON FOR GRANTING REVIEW

      The opinion of the First Court of Appeals conflicts with decisions by this

Court that assert that the best evidence rule would require the contents of the

document, in this case the court reporter’s notes, should be proved by the very writing

itself. Tex. R. Evid. 1002; Ortiz v. State, 651 S.W.2d 764, 766 (Tex. Crim. App. 1983)

                                      ARGUMENT

      THE COURT REPORTER SUBMITTED A SUPPLEMENTAL REPORTER’S
      RECORD BUT DID NOT SUBMIT HER ORIGINAL NOTES. DID THE
      COURT OF APPEALS ERR WHEN IT AFFIRMED THE JUDGMENT AND
      SENTENCE WITHOUT HAVING THOSE NOTES TO EXAMINE?

      Mr. Weldon asserted that because the oral pronouncement of sentence and

written judgment were in conflict, the oral pronouncement should prevail and the

written judgment should be reformed. During a hearing, the court reporter testified


                                            2
that the original reporter’s record filed with the oral pronouncement of a five day

sentence was an error;        she stated that her original notes showed an oral

pronouncement of a sentence of one year confinement in the Harris County jail,

credit for five days. On appeal, the Court of Appeals found that any dispute had been

resolved and that there was no longer a conflict between the oral pronouncement and

written judgment. Weldon v. State, 01-13-00113-CR, 2014 WL 5500484, at *2 (Tex.

App.—Houston [1st Dist.] Oct. 30, 2014).

      According to the best evidence rule, Tex. R. Evid. Rule 1002, the only

competent evidence should have been the court reporter’s original notes. “[I]f the

contents of a writing are to be proved, it must be by the production, if possible, of the

very writing itself.” Ortiz v. State, 651 S.W.2d 764, 766 (Tex. Crim. App. 1983).

Without examining the court reporter’s original notes, the Court of Appeals was

unable to examine the full and relevant record of the actual original oral

pronouncement that occurred in the trial court.




                                            3
                                        PRAYER

      Mr. Weldon asks the Court to grant his petition and conduct a full review of his

appeal in the First Court of Appeals.

                                              Respectfully submitted,

                                              ALEXANDER BUNIN
                                              Chief Public Defender
                                              Harris County Texas


                                              /s/Frances Bourliot
                                              FRANCES BOURLIOT
                                              Assistant Public Defender
                                              Harris County, Texas
                                              Texas Bar No. 24062419
                                              1201 Franklin, 13th Floor
                                              Houston, Texas 77002
                                              Phone: (713) 368-0016
                                              Fax: (713) 437-4317
                                              frances.bourliot@pdo.hctx.net




                                          4
                           CERTIFICATE OF SERVICE

      This is to certify that a copy of the foregoing petition for discretionary review
has been served on the District Attorney of Harris County, Texas, by e-file on the 31st
day of December, 2014. A copy has also been sent by e-file to the State Prosecuting
Attorney, also on the 31st of December, 2014.



                                         /s/Frances Bourliot
                                         Frances Bourliot



                              Certificate of Compliance

       Pursuant to proposed Rule 9.4(i)(3), undersigned counsel certifies that this brief
complies with the type-volume limitations of Tex. R. App. Proc. 9.4(e)(i).
1.     This brief contains 1,217 words printed in a proportionally spaced typeface.
2.     This brief is printed in a proportionally spaced, serif typeface using Garamond
14 point font in text and Garamond 13 point font in footnotes produced by
Microsoft Word software.
3.      Upon request, undersigned counsel will provide an electronic version of this
brief and/or a copy of the word printout to the Court.
4.       Undersigned counsel understands that a material misrepresentation in
completing this certificate, or circumvention of the type-volume limits in Tex. R. App.
Proc. 9.4(j), may result in the Court's striking this brief and imposing sanctions against
the person who signed it.



                                         /s/Frances Bourliot
                                         Frances Bourliot




                                            5
Opinion issued October 30, 2014




                                     In The

                             Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                             NO. 01-13-00113-CR
                           ———————————
                   LACONTE TROY WELDON, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee


          On Appeal from the County Criminal Court at Law No. 7
                           Harris County, Texas
                       Trial Court Case No. 1779615


                         MEMORANDUM OPINION

      Appellant Laconte Troy Weldon was charged by information with Class A

misdemeanor DWI as a second offender. A jury found Weldon guilty, the trial

court assessed his punishment at one year of confinement in county jail, probated

for eighteen months, and a $400.00 fine. Months later, after a hearing, the trial
court granted the State’s motion to revoke and assessed Weldon’s punishment.

Weldon appealed, arguing that there was a conflict between the oral

pronouncement of his sentence and the written judgment and that the judgment

should be reformed so the shorter orally-pronounced sentence could control. We

affirm.

                                  Background

      In its motion to revoke, the State alleged that Weldon drove his motorcycle

without an ignition interlock device in violation of the terms of his community

supervision. Weldon pleaded true to the allegation. As originally filed in this

court, the reporter’s record reflected that the trial court revoked Weldon’s

community supervision and orally pronounced the following sentence: “I find the

allegation to be true, that he violated probation by driving without an ignition

interlock. Probation is hereby revoked. Sentence you to five days. Court costs in

the amount of $500.”      The written judgment reflected a different sentence:

confinement for one year, with a fine of $500.00, and court costs in the amount of

$412.00.

                                   Discussion

      In his sole issue on appeal, Weldon argued that the written judgment should

be reformed because it conflicts with the oral pronouncement of sentence. See

Taylor v. State, 131 S.W.3d 497, 500 (Tex. Crim. App. 2004) (when there is a



                                        2
conflict between oral pronouncement of sentence and written judgment, oral

pronouncement controls); Coffey v. State, 979 S.W.2d 326, 328–29 (Tex. Crim.

App. 1998) (en banc) (“[W]hen there is a variation between the oral

pronouncement of sentence and the written memorialization of the sentence, the

oral pronouncement controls . . . . Any subsequent deviation from that sentence,

i.e. either a decrease or increase, could not supersede what had already been

imposed in open court.”). The State correctly responded that because of the nature

of the charge, a Class A misdemeanor DWI, the oral pronouncement of five days’

confinement could not control because it would be below the statutory minimum

and therefore illegal. See Mizell v. State, 119 S.W.3d 804, 805–06 (Tex. Crim.

App. 2003) (en banc) (sentences below the statutory minimum are illegal and

void); State v. Cooley, 401 S.W.3d 748, 751 (Tex. App.—Houston [14th Dist.]

2013, no pet.) (Class A misdemeanor DWI requires confinement “for at least 30

days and not more than one year.”). The State also challenged the accuracy of the

reporter’s record and sought an abatement under Texas Rule of Appellate

Procedure 34.6(e)(3).

      We abated this appeal and directed the trial court to conduct a hearing to

settle the dispute concerning whether the reporter’s record accurately reflected the

trial court’s oral pronouncement. See TEX. R. APP. P. 34.6(e)(2) (requiring the trial

court to settle a dispute concerning inaccuracies in the reporter’s record when



                                         3
parties cannot agree on whether or how to correct); TEX. R. APP. P. 34.6(e)(3)

(allowing appellate court, if dispute arises regarding accuracy after filing of

reporter’s record in appellate court, to submit dispute to trial court for resolution).

Our abatement order directed the trial court, if it determined that the reporter’s

record was inaccurate, to ensure that the reporter’s record was made to conform to

what occurred in the trial court. See TEX. R. APP. P. 34.6(e)(2) (“If the court finds

any inaccuracy, it must order the court reporter to conform the reporter’s record

(including text and any exhibits) to what occurred in the trial court, and to file

certified corrections in the appellate court.”). Our abatement order also directed

that the reporter’s record of the hearing and the supplemental clerk’s record be

certified and sent to our court.

      The supplemental record reflects that the trial court held a hearing pursuant

to our order of abatement, concluded that the reporter’s record of the oral

pronouncement was inaccurate, and concluded that the reporter’s record should

have reflected a sentence of one year in jail with credit of five days. The trial

court’s findings were based on the oral testimony of the court reporter at the

abatement hearing. Specifically, the court reporter testified that a scopist helped

her edit the file and emailed the court reporter the file under the name

“Weldonsentence.” The court reporter proofread that file, edited it to conform to

her notes, and then saved the file as “Weldonsentencing” instead of



                                          4
“Weldonsentence.” The court reporter testified that her notes—which could not

have been changed because they were written on her stenotype—state that the trial

court orally pronounced a sentence of one year. The “Weldonsentencing” file

reflected the correct one-year sentence, but the court reporter erroneously included

the unedited and incorrect version of the file, which was titled “Weldonsentence,”

in the record. The court reporter brought her original notes from sentencing to the

hearing. Her notes corroborated her oral testimony.

      At the conclusion of the hearing, the trial court stated: “So the record is clear

that there was a mistake by the court reporter; the sentence was one year in jail

with credit for five days. And his costs were all run concurrent. He did not owe

any costs for this.” Following the hearing, the trial court entered the following

findings of fact:

   • “The official court reporter’s transcription accurately reflects that Judge
     Derbyshire properly sentenced Mr. Weldon.”

   • “The official court reporter did not catch the error in the sentencing portion
     of the transcription during preparation of the record.”

   • “Upon receiving the Order of Abatement from the Court of Appeals, the
     reporter reviewed her notes, corrected the transcript and submitted the
     corrected copy to the Court of Appeals.”

      In short, the trial court resolved the dispute over the accuracy of the record,

concluded that the reporter’s record reflecting the oral pronouncement of a five-

day sentence of confinement was inaccurate and caused to be filed a supplemental


                                          5
record reflecting that the actual oral pronouncement of sentence was confinement

for one year with credit for five days. See TEX. R. APP. P. 34.6(e)(2) (“the trial

court must . . . settle the dispute”). We give almost total deference to a trial

court’s rendition of the historical facts. Ross v. State, 32 S.W.3d 853, 856 (Tex.

Crim. App. 2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)

(en banc); Stafford v. State, 63 S.W.3d 502, 511 (Tex. App.—Texarkana 2001, pet.

ref’d) (trial court’s procedure to correct record complied with appellate rules

allowing correction of record before and after it was filed with appellate court

where single mistake was corrected in record). Accordingly, the conflict between

the oral pronouncement and the written judgment as to the length of confinement

no longer exists, and no reformation of the length of sentence of confinement is

necessary.

      We overrule Weldon’s sole issue.

                                   Conclusion

      We affirm the judgment of the trial court.



                                             Rebeca Huddle
                                             Justice

Panel consists of Justices Massengale, Brown, and Huddle.
Do Not Publish — TEX. R. APP. P. 47.2(b).




                                         6
