

NO. 07-10-00408-CR; 07-10-00410-CR
 
IN THE COURT OF APPEALS
 
FOR THE
SEVENTH DISTRICT OF TEXAS
 
AT
AMARILLO
 
PANEL A
 

MAY
20, 2011
 

 
DERRICK LACY, APPELLANT
 
v.
 
THE STATE OF TEXAS, APPELLEE 

 

 
FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY;
 
NO. 1188762D, 1188765D; HONORABLE RUBEN GONZALEZ, JUDGE

 

 
Before CAMPBELL
and HANCOCK and PIRTLE, JJ.
 
ABATEMENT AND REMAND
            On
March 9, 2011, this Court received appellant’s motion to abate the appeals in
appellate cause numbers 07-10-00408-CR and 07-10-00410-CR to allow the trial
court to enter judgments nunc pro tunc.  In the motion, appellant contends that the
trial court orally sentenced appellant to confinement for two years in a state
jail facility, but erroneously entered judgment reflecting that appellant was
sentenced to two years confinement in the Institutional Division of the Texas
Department of Criminal Justice.  We now
abate cause numbers 07-10-00408-CR and 07-10-00410-CR and remand these causes
for further proceedings.
            The
trial court’s oral pronouncement of sentence as to the convictions in these
causes was:
And with regard to the State jail felony convictions, I hereby sentence
you to two years confinement in the Institutional Division of the Texas
Department of Criminal Justice State jail facility.
 
Thus, the trial court’s pronouncement
is ambiguous because it identifies the place of sentence in both the Institutional
Division and State Jail Facility.  As
such, the oral pronouncement specifies both a proper sentence (two years in a
state jail facility) and an improper sentence (two years in the Institutional
Division).  When an illegal oral sentence
is pronounced, but a valid sentence is included in the written judgment, the
valid sentence will be upheld.  See
Tufele v. State, 130 S.W.3d 267, 274 (Tex.App.—Houston [14th Dist.] 2004, no
pet.).  By analogy to Tufele,
when a trial court’s oral pronouncement ambiguously includes two mutually
exclusive components and one would make the sentence valid while the other
would be improper, we should uphold the portion of the pronouncement that will
make the sentence valid.  Thus, we construe
the trial court’s oral pronouncement to have sentenced appellant to two years incarceration in a state jail facility.  
We now abate the appeals in cause
numbers 07-10-00408-CR and 07-10-00410-CR, and remand these cases to the
district court to conduct a hearing to determine whether the judgments reflect
the sentences the trial court orally rendered. 
See Miller v. State, 2003 Tex.App.
LEXIS 3982, at *8-*9 (Tex.App.—Austin May 8, 2003)
(citing Rodriguez v. State, 42 S.W.3d 181, 186 (Tex.App.—Corpus
Christi 2001, no pet.).  If the trial court
finds that the entry of the judgments in these causes were the result of
clerical error, we direct the trial court to enter nunc
pro tunc judgments to reflect the proper sentence
orally pronounced.  
The trial court shall cause the
hearing to be transcribed.  In addition,
it shall cause to be developed a supplemental clerk’s record containing any nunc pro tunc judgments or other
orders entered by the trial court, and a supplemental reporter’s record
transcribing the evidence and arguments presented at the aforementioned
hearing, if any.  Additionally, the
district court shall then file the supplemental clerk’s and reporter’s records herein
ordered with the Clerk of this Court on or before June 20, 2011.  Should further time be needed by the trial
court to perform these tasks, then same must be requested before June 20, 2011.
It is so ordered.
                                                                                                Per
Curiam
 
Do not publish.  
 
 

