                        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
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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.




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