                                     In The
                                Court of Appeals
                       Seventh District of Texas at Amarillo

                                    No. 07-16-00450-CV


                        IN RE WILLIE RODRIGUEZ, JR., RELATOR

        OPINION ON ORIGINAL PROCEEDING FOR WRIT OF MANDAMUS

                                      January 17, 2017

                             MEMORANDUM OPINION
                     Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

       Willie Rodriguez, Jr., acting pro se, filed a petition for writ of mandamus

requesting this Court to order the Honorable Jim Bob Darnell, Judge of the 140th District

Court of Lubbock County, to vacate his “March 2, 2006 order declaring sentence[s] run

‘consecutively (stack) in this case.’” The relief requested is somewhat unclear. We

read it as a request to direct the trial judge to modify the way the two sentences were to

be served by Rodriguez. He seems to suggest that in pronouncing the sentences, the

trial court declared that they should run concurrently but in memorializing them via

judgment it ordered them to run consecutively. And, because the oral pronouncement

of sentence supersedes the sentence memorialized in the judgment, the judgments at

issue should be corrected to illustrate that the sentences are to run concurrently. We

deny the petition.
        It is true that the sentence contained in the judgment must reflect that orally

pronounced in open court. If there should be a conflict between the two, then the oral

pronouncement controls. Burt v. State, 445 S.W.3d 752, 757 (Tex. Crim. App. 2014).

        The limited record before us illustrates that after the jury's verdicts as to

punishment were read, the State moved the trial court to "stack" or run the two

sentences consecutively.           The trial court took the motion under advisement after

releasing the jury. A day later, it reconvened for sentencing and granted the State's

motion before sentence was pronounced. Then, sentence was orally pronounced, at

which point the trial court ordered ". . . that the sentences run consecutively in this

case." Such was then reflected in the written judgments.1 There is no conflict between

the oral pronouncement of the sentences and the sentences appearing in the

judgments.2

        The petition for writ of mandamus is denied.


                                                                   Brian Quinn
                                                                   Chief Justice



        1
          Section 3.03(b)(2)(A) of the Texas Penal Code specifically authorizes a trial court to order
sentences to run concurrently or consecutively when the accused is found guilty of more than one specific
type of offense, including indecency with a child, that was committed against a victim younger than 17
years of age at the time of the commission of the offense. TEX. PENAL CODE ANN. § 3.03(b)(2)(A) (West
Supp. 2016); Gonzalez v. State, No. 13-10-00308-CR, 2011 Tex. App. LEXIS 8733, at *23-24 (Tex.
App.—Corpus Christi-Edinburg Nov. 3, 2011, no pet.) (mem. op., not designated for publication).
Rodriguez does not dispute that he was convicted of two counts of indecency with a child who was under
the age of 17 arising out of the same criminal episode. See TEX. PENAL CODE ANN. § 3.03(b)(2)(A).
        2
           To the extent Rodriguez could be contending that the oral pronouncements and written
judgments somehow deviated from the jury’s verdict to have the sentences run concurrently, the record
does not reflect that the jury so declared. Nor was it within its authority to so declare. Statute rests that
discretion to order sentences to run either consecutively or concurrently in the trial court. TEX. CODE
CRIM. PROC. ANN. art. 42.08(a) (West Supp. 2016) (stating “. . . in the discretion of the court, the
judgment in the second and subsequent convictions may either be that the sentence imposed or
suspended shall begin when the judgment and the sentence imposed or suspended in the preceding
conviction has ceased to operate, or that the sentence imposed or suspended shall run concurrently with
the other case or cases, and sentence and execution shall be accordingly. . . .”).

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