                                      In The

                               Court of Appeals

                    Ninth District of Texas at Beaumont

                              __________________

                              NO. 09-18-00333-CR
                              NO. 09-18-00334-CR
                              NO. 09-18-00335-CR
                              __________________

              DOUGLAS MICHAEL MITCHELL II, Appellant

                                        V.

                  THE STATE OF TEXAS, Appellee
__________________________________________________________________

                 On Appeal from the 359th District Court
                        Montgomery County, Texas
    Trial Cause Nos. 16-07-07650-CR, 16-07-07903-CR, 16-07-07920-CR
__________________________________________________________________

                          MEMORANDUM OPINION

      Douglas Michael Mitchell II appeals the trial court’s judgments stacking his

sentences following convictions by a jury on three separate counts of indecency with

a child by contact, a second-degree felony. See Tex. Penal Code Ann. § 21.11(a)(1).

Mitchell elected to have the jury assess punishment. The jury assessed punishment

of incarceration in the Institutional Division of the Texas Department of Criminal


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Justice for three years in trial cause number 16-07-07650, ten years in trial cause

number 16-07-07903, and four years in trial cause number 16-07-07920. In a single

issue on appeal, Mitchell complains that the judgments stacking the sentences were

inconsistent with the trial court’s oral pronouncement. We affirm the trial court’s

judgments.

                                    Background

      A Montgomery County grand jury indicted Mitchell for three separate counts

of indecency with a child by contact. Prior to trial, the State filed a motion to

cumulate the sentences. Before orally pronouncing the sentences, the trial court held

a brief hearing on the State’s motion to cumulate and granted the State’s motion

thereafter. Following its oral pronouncement, the trial court entered judgments

reflecting that the sentences would run consecutively. 1

      Mitchell argues on appeal that the trial court did not exercise its discretion to

stack the sentences when the trial judge orally pronounced each sentence, and

specifically points to the trial court’s statement that each sentence should



      1
         The original judgments noted that the sentences were to run consecutively.
However, the original judgments noted “see below” for additional information
pertaining to the consecutive sentences, but none of the original judgments contained
the language specifying the sequence in which the sentences were to run. Thereafter,
the trial court entered a judgment nunc pro tunc in each trial cause, which included
the language specifying the sequence in which the sentences would run.
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“commence this day[.]” Our review of the record reveals that during the hearing on

the State’s motion to cumulate the sentences, held immediately before the trial

court’s oral pronouncement, the trial court explained that

      [h]aving heard the argument of counsel and having considered all of the
      evidence in both phases of these cases, I do find that the sentences of
      three, four, and ten years should be served cumulatively; that they
      should be stacked and not served concurrently. And that will be the
      order of this Court.

      Following a brief recess after the trial court’s ruling on the motion to

cumulate, the trial court proceeded to orally pronounce Mitchell’s sentence. The trial

court pronounced the sentence for each cause number, stating after each one that the

sentence would “commence this day[;]” however, after going through each sentence

individually, the court orally pronounced that the “sentences shall run cumulatively

and shall be stacked.”

                                      Analysis

      The trial court has the discretion to cumulate sentences. See Tex. Code Crim.

Proc. Ann. art. 42.08. In all felony cases, the “sentence shall be pronounced in the

defendant’s presence.” Id. art. 42.03, § 1(a). If a “defendant is convicted of more

than one offense in the same proceeding, the court must pronounce whether the

sentences will run concurrently or consecutively.” Aguilar v. State, 202 S.W.3d 840,

842 (Tex. App.—Waco 2006, pet. ref’d) (citing Tex. Code Crim. Proc. Ann. art.

                                          3
42.08; Ex parte Madding, 70 S.W.3d 131, 136 (Tex. Crim. App. 2002); Nicholas v.

State, 56 S.W.3d 760, 767 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d)). A

trial court’s written judgment only memorializes the oral pronouncement. Id.;

Madding, 70 S.W.3d at 135.

      If there is a variation between the written judgment and the oral

pronouncement of sentence, then the oral pronouncement controls. Coffey v. State,

979 S.W.2d 326, 328 (Tex. Crim. App. 1998); see also Taylor v. State, 131 S.W.3d

497, 500 (Tex. Crim. App. 2004). The Waco Court of Appeals explained in Aguilar

that not every “variation” invokes the rule pronounced in Coffey. See Aguilar, 202

S.W.3d at 843. Rather, it noted that “if there is a conflicting variation, the oral

pronouncement will control.” See id. (emphasis added); see also Taylor; 131 S.W.3d

at 500 (“When there is a conflict between the oral pronouncement of sentence and

the sentence in the written judgment, the oral pronouncement controls.”) (emphasis

added).

      Mitchell contends the trial court’s oral pronouncement did not indicate his

sentences should run consecutively, and therefore, the written judgments should be

reformed to reflect that the sentences run concurrently. Mitchell specifically argues

that despite the trial court’s granting of the State’s motion to cumulate, “it still failed

to exercise its discretion to stack sentences during the official oral pronouncement

                                            4
of sentence in each cause.” Mitchell points to the fact that the trial court ordered that

the sentences in each cause “commence this day” and interprets that to mean the

sentences are to run together. We disagree.

      Although the trial court’s statement that each sentence would “commence this

day” may have created ambiguity, we do not view this as being a conflict between

the written judgments and the oral pronouncement. See Aguilar, 202 S.W.3d at 843.

We read the jury’s punishment verdict, the court’s pronouncement, and the written

judgment together to resolve any ambiguity. See id. The jury assessed punishment

within the statutory range of three years, ten years, and four years on each cause

respectively. Prior to its oral pronouncement, the trial court granted the State’s

motion to cumulate. The trial court’s oral pronouncement was consistent with such

ruling as it accurately reflected the term of each punishment the jury assigned and

explained that the sentences would be stacked. Each original written judgment

likewise noted that the sentence would run consecutively.

      The judgments nunc pro tunc also indicated the sentences would run

consecutively and addressed a clerical error failing to specify the sequential order in

which the sentences would run. See Alvarez v. State, 605 S.W.2d 615, 617 (Tex.

Crim. App. 1980) (“The purpose of a nunc pro tunc order is to correctly reflect from

the records of the court a judgment actually made by it, but which for some reason

                                           5
was not entered of record at the proper time.”). The judgments nunc pro tunc added

specificity by stating that the sentence in cause number 16-07-07650 would run first,

followed by the sentence in cause number 16-07-07903, which would then be

followed by the sentence in cause number 16-07-07920. See Strahan v. State, 306

S.W.3d 342, 353 (Tex. App.—Forth Worth 2010, pet. ref’d) (“Because a trial court

may correct a cumulation order nunc pro tunc to add descriptive details, we conclude

that the judgments nunc pro tunc were the proper vehicle for the trial court to

accomplish what it set out to do in its oral pronouncement.”) (citation omitted).

Accordingly, the judgments nunc pro tunc are not void.

      Based on the foregoing, Mitchell’s assertion that the trial court impermissibly

stacked his sentences is unsupported by the record in this case. We determine the

record clearly establishes that the trial court granted the State’s motion to cumulate,

then subsequently pronounced the sentences “would be stacked” and would “run

cumulatively.” Considering the jury’s verdict, the entirety of the oral

pronouncement, and the written judgments together, we determine there is no

conflicting variation between the oral pronouncement and the written judgments.

See Aguilar, 202 S.W.3d at 843. The judgments nunc pro tunc were consistent with

the trial court’s oral pronouncement and permissibly added descriptive details. See

Strahan, 306 S.W.3d at 353. We overrule Mitchell’s sole issue on appeal.

                                          6
                                    Conclusion

      Having determined no impermissible conflict in the trial court’s oral

pronouncement and written judgments existed, the trial court properly cumulated

Mitchell’s sentences. We affirm the trial court’s judgments.

      AFFIRMED.



                                                   _________________________
                                                        CHARLES KREGER
                                                             Justice

Submitted on November 20, 2019
Opinion Delivered December 18, 2019
Do Not Publish

Before McKeithen, C.J., Kreger and Johnson, JJ.




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