      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-12-00753-CR



                                Johnny Angel Ybarra, Appellant

                                                  v.

                                   The State of Texas, Appellee


     FROM THE DISTRICT COURT OF BURNET COUNTY, 33RD JUDICIAL DISTRICT
         NO. 40271, HONORABLE GUILFORD L. JONES III, JUDGE PRESIDING



                             MEMORANDUM OPINION


               A jury convicted appellant Johnny Angel Ybarra of the offense of escape. See

Tex. Penal Code § 38.06. Punishment was assessed at life imprisonment, and the district court

ordered that the sentence be served consecutively following three previously assessed life sentences

that Ybarra had received for prior convictions. In a single issue on appeal, Ybarra asserts that the

district court’s order cumulating his sentences is void. We will affirm the district court’s judgment.


                                         BACKGROUND

               The jury heard evidence tending to show that, on or about March 1, 2012, Ybarra

had escaped from the Burnet County Jail while awaiting transport to prison.              Ybarra was

apprehended later that same day and was subsequently indicted for, tried, and found guilty of the

offense of escape. At the punishment hearing, Ybarra pleaded true to two enhancement paragraphs

in the indictment alleging that Ybarra had previously been convicted of the felony offenses of sexual

assault and kidnapping, elevating Ybarra’s punishment status to that of a habitual offender. See id.
§ 12.42. Additionally, Ybarra stipulated at the punishment hearing that he was the same person who

was named in a judgment of conviction for the felony offense of burglary of a habitation with intent

to commit sexual assault, and another judgment of conviction for the felony offense of assault family

violence. Earlier, at the beginning of trial, Ybarra had also stipulated that he was the same person

who was named in another judgment of conviction for the felony offense of burglary of a habitation

with intent to commit sexual assault. In all three convictions to which Ybarra had stipulated, he had

received life sentences.

               The State filed a motion to cumulate the sentence assessed against Ybarra in the

escape case with the sentences that had been assessed against Ybarra in the three prior cases to which

Ybarra had stipulated. Following argument, the district court stated the following on the record:


       The Court can come to no conclusion but that you are not capable at this time in the
       community, or any time soon, of being rehabilitated. . . . It’s clear that imprisonment
       so far has been a deterrent to you, but it is possible that in addition to protecting the
       public, a sentence at this time should also serve as a deterrent hopefully to at least
       one other person who might be headed the direction that you have headed. Frankly
       this Court is not at all convinced that sentences deter other people very much, but
       the theory is it does sometimes and I’m hoping that it will. That demands a message
       to be sent to other criminals and other wannabe criminals, and that demands a
       strong and consecutive sentence. I therefore sentence you to confinement in the
       Texas Department of Criminal Justice institutional Division for life and the sentences
       will be stacked.


The district court subsequently entered a written order cumulating Ybarra’s sentences and identifying

the specific sentences that were being cumulated. This appeal followed.


                                            ANALYSIS

               In his sole issue on appeal, Ybarra asserts that the district court failed to orally

pronounce the judgment and sentence in each cause that was being cumulated, as required by statute.

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See Tex. Code Crim. Proc. art. 42.08(a) (“When the same defendant has been convicted in two or

more cases, judgment and sentence shall be pronounced in each case in the same manner as if there

had been but one conviction.”). Therefore, according to Ybarra, the cumulation order is void, despite

the fact that the written order specifically identifies the sentences that are being cumulated. See

Coffey v. State, 979 S.W.2d 326, 328 (Tex. Crim. App. 1998) (holding that “when there is a variation

between the oral pronouncement of sentence and the written memorialization of the sentence, the

oral pronouncement controls”); Ex parte Vasquez, 712 S.W.2d 754, 755 (Tex. Crim. App. 1986)

(holding that entering written cumulation order which had not been orally pronounced to defendant

at sentencing hearing rendered judgment “void”).

               Trial courts are given, by statute, discretion to cumulate a defendant’s sentences. See

Ex parte Davis, 506 S.W.2d 882, 883 (Tex. Crim. App. 1974) (citing Tex. Code Crim. Proc.

art. 42.08). However, when choosing to exercise that discretion, trial courts must ensure that

their cumulation orders are sufficiently specific. Stokes v. State, 688 S.W.2d 539, 540 (Tex. Crim.

App. 1985). In order to satisfy the specificity requirement, the Texas Court of Criminal Appeals has

“recommended” that a cumulation order contain the following elements: (1) the trial court cause

number of the prior conviction; (2) the correct name of the court where the prior conviction was

taken; (3) the date of the prior conviction; (4) the term of years of the prior conviction; and (5) the

nature of the prior conviction. Ward v. State, 523 S.W.2d 681, 682 (Tex. Crim. App. 1975). These

recommendations are not mandatory, however, and cumulation orders that do not contain all of

the recommended elements have been upheld on appeal. See, e.g., Williams v. State, 675 S.W.2d

754, 764 (Tex. Crim. App. 1984); Ward, 523 S.W.2d at 682-83; Davis, 506 S.W.2d at 884; Phillips

v. State, 488 S.W.2d 97, 100 (Tex. Crim. App. 1972). The rule is that “a cumulation order will be


                                                  3
upheld so long as the trial court’s description of prior convictions is ‘substantially and sufficiently

specific’ to give notice both to the defendant and to the Department of Corrections exactly which

sentences the instant sentence is cumulated with.” Williams, 675 S.W.2d at 764 (quoting Ex parte

Lewis, 414 S.W.2d 682, 683 (Tex. Crim. App. 1967)).

                In this case, the district court’s written cumulation order contained the trial court

cause numbers of the prior convictions (trial court cause numbers 39598, 39599, and 39600),

the correct name of the court where the prior convictions were taken (the 33rd District Court of

Burnet County, Texas), the date of the prior convictions (February 14, 2012), the term of years of

the prior convictions (life), and the nature of the prior convictions (two convictions for the offense

of burglary of a habitation with intent to commit sexual assault and one conviction for assault family

violence). Thus, the written cumulation order contained all five of the recommended elements of

specificity, and we conclude that the order was “‘substantially and sufficiently specific’ to give

notice both to the defendant and to the Department of Corrections exactly which sentences the

instant sentence is cumulated with.” Id.

                Ybarra nevertheless asserts that the cumulation order is void because these specific

elements were not orally pronounced during sentencing, thus creating what Ybarra characterizes as

a “variance” between the oral pronouncement of sentence and the written cumulation order. We

disagree with this characterization. It is true that when there is a variation, i.e., a conflict, between

the oral pronouncement of sentence and the written memorialization of that sentence, the

oral pronouncement controls. Coffey, 979 S.W.2d at 328; see also Taylor v. State, 131 S.W.3d 497,

500 (Tex. Crim. App. 2004). Here, however, there is no conflict between the oral pronouncement

of sentence and the written cumulation order. Both the oral pronouncement of sentence and the


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written cumulation order specify that Ybarra’s sentence for the escape conviction is to be

served consecutively following his other sentences. Cf. Ex parte Madden, 70 S.W.3d 131, 136-37

(Tex. Crim. App. 2002) (finding written cumulation order conflicted with oral pronouncement

which specified that sentences would be served concurrently). The written order in this case

merely contains specific information about those other sentences that was not included in the

oral pronouncement. And, based on our review of the record before us, it is clear that this specific

information was already known to Ybarra at the time his sentence was orally pronounced. The cause

numbers and date of the other convictions were contained in the State’s motion to cumulate, a copy

of which was provided to Ybarra; copies of the judgments of conviction that formed the basis for

the cumulation order were admitted into evidence during trial; and Ybarra stipulated during trial that

he was the same person named in those judgments of conviction, all three of which were dated less

than a year prior to Ybarra’s escape conviction. Nor is there any indication in the record that Ybarra

was confused during the punishment hearing as to which sentences the district court was referring

to in its oral pronouncement. Thus, in this case, “the context of the oral pronouncement makes clear

that all understood the pronouncement to be what was ultimately incorporated into the written

order.” Hill v. State, 213 S.W.3d 533, 536-37 (Tex. App.—Texarkana 2007, no pet.); see Aguilar

v. State, 202 S.W.3d 840, 843 (Tex. App.—Waco 2006, pet. ref’d) (finding that trial court’s

omission, during its oral pronouncement of sentence, of express reference to count of indictment that

formed basis for court’s cumulation order rendered pronouncement ambiguous but did not “create

a conflict sufficient to invoke the rule of Coffey and its progeny”).1 We overrule Ybarra’s sole issue.


       1
         See also Morris v. State, Nos. 07-12-00408-CR, 07-12-00409-CR, & 07-12-00410-CR,
2013 Tex. App. LEXIS 4782, at *3 (Tex. App.—Amarillo Apr. 16, 2013, pet. ref’d) (mem. op.,
not designated for publication) (stating that “the context of the court’s utterances should be

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                                         CONCLUSION

               We affirm the judgment of the district court.



                                              __________________________________________

                                              Bob Pemberton, Justice

Before Justices Puryear, Pemberton and Rose

Affirmed

Filed: July 24, 2013

Do Not Publish




considered” in determining meaning of court’s pronouncement and that “[i]f there is ambiguity in
the pronouncement of sentence, the verdict, oral pronouncement, and written judgment should be
read together to resolve the ambiguity”); Smith v. State, Nos. 05-10-00988-CR & 05-10-00989-CR,
2012 Tex. App. LEXIS 1254, at *13-15 (Tex. App.—Dallas Feb. 16, 2012, no pet.) (not designated
for publication) (concluding that there was no fatal variance between oral pronouncement of sentence
and written cumulation order where, “considering the entire hearing,” it was “clear that all parties
understood” the sentence to which trial court was referring in its oral pronouncement, despite
trial court not specifically identifying sentence); Harris v. State, No. 01-08-00261-CR, 2009 Tex.
App. LEXIS 9586, at *42 (Tex. App.—Houston [1st Dist.] Dec. 17, 2009, pet. ref’d) (mem. op.,
not designated for publication) (concluding that “the context of the entire proceeding before the
trial court made clear the identity of the prior sentence onto which the court stacked the new
sentence”).

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