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



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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



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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


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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).




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