                                Fourth Court of Appeals
                                        San Antonio, Texas
                                   MEMORANDUM OPINION
                                            No. 04-11-00618-CR

                                            Paul J. LAMARRE,
                                                 Appellant

                                                       v.

                                           The STATE of Texas,
                                                 Appellee

                     From the 186th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2010CR5980
                           Honorable Maria Teresa Herr, Judge Presiding

Opinion by:      Marialyn Barnard, Justice

Sitting:         Catherine Stone, Chief Justice
                 Karen Angelini, Justice
                 Marialyn Barnard, Justice

Delivered and Filed: March 1, 2013

AFFIRMED AS MODIFIED

           A jury found appellant Paul J. Lamarre guilty on 22 counts of possession of child

pornography. The trial court sentenced appellant to ten years confinement on each count. 1 On

appeal, Lamarre complains the trial court erred in: (1) denying his motion to suppress; and (2)

admitting “extraneous victim impact testimony” from two witnesses during the punishment

phase of the trial. The State raises a single cross-point asking this court to reform the judgments



1
  The State has raised a cross-point regarding whether the sentences are to run consecutively or concurrently. We
shall address this issue below.
                                                                                04-11-00618-CR


because the written judgments do not conform with the trial court’s oral pronouncement of

sentence. We affirm the trial court’s judgments as modified.

                                            BACKGROUND

       In October 2007, Special Agent Carla Schreiber of the FBI Cyber-Crimes Unit in San

Antonio received information from the FBI in Newark, New Jersey about an email account

registered to Paul Lamarre of San Antonio, Texas. According to the FBI, Lamarre’s email

account contained seven or eight child pornography images.

       Based on the information she received from her counterparts in New Jersey, Special

Agent Schreiber attempted to locate Lamarre by enlisting the help of a local law enforcement

task force. The special agent was ultimately assisted by Bexar County Sheriff’s Deputy Shawn

Tobleman, who was assigned to the local task force known as the “Innocent Images Unit,” a unit

that works with the FBI Cyber-Crimes Unit. This unit investigates child pornography and crimes

against children on the Internet. Ultimately, it was discovered that Lamarre was living at the

home of Michael Zureich.

       The special agent went to Zureich’s home to speak to Lamarre, who denied any

knowledge of the email account. Special Agent Schreiber asked to search the computers in the

home. Lamarre consented to the search, but explained he did not have a computer and was using

one that belonged to Zureich. There was no child pornography found on the computer belonging

to Zureich. On July 1, 2009, after additional evidence regarding Lamarre failed to surface,

Special Agent Schreiber terminated her investigation. However, Deputy Tobleman continued to

monitor Lamarre and his whereabouts.

       On September 4, 2009, Juliette Sanders placed a call to the FBI complaint desk. Sanders

advised she was concerned about her roommate, who she identified as Lamarre.          Sanders

believed Lamarre was viewing child pornography on his computer. The agent–on–duty ran a
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background check on Lamarre and discovered an outstanding arrest warrant for a child support

issue. The agent informed the San Antonio Police Department, which sent a marked car to

Sanders’s residence. The San Antonio police arrested Lamarre based on the outstanding child

support warrant.

        Special Agent Schreiber and Deputy Tobleman learned about Sanders’s complaint. The

day Lamarre was arrested, Special Agent Schreiber and Deputy Tobleman interviewed Sanders

and her minor son at the Sanders home. Sanders told the investigators she believed Lamarre was

viewing child pornography on his computer. Sanders reported that on several occasions Lamarre

viewed a sexually explicit photo of her son’s girlfriend on her son’s cell phone. She also

informed the investigators that when she went to the community pool with Lamarre, he spent his

time looking at young girls, who appeared to be twelve-years-old and under. Sanders went on to

say that when she and Lamarre went to a friend’s party, Lamarre spent his time with the children

rather than the adults, carrying one of the little girls on his shoulder.

        Sanders’s son was fourteen-years-old when Lamarre moved in with them. The son told

Special Agent Schreiber that Lamarre showed him a pornographic video on Lamarre’s computer.

According to the son, the video depicted three adult men having sexual intercourse with an

underage girl. The son also told Special Agent Schreiber that Lamarre said they ought to get the

son’s fourteen–year–old girlfriend drunk and “tag team” her.

        Immediately after the interview, Deputy Tobleman began the process to obtain a search

warrant for Lamarre’s computer. However, before he obtained the search warrant, Deputy

Tobleman seized Lamarre’s computer “for safe keeping.” On September 17, 2009, Deputy

Tobleman prepared and filed the affidavit to obtain the search warrant, which was issued the

same day. Thereafter, Deputy Tobleman searched Lamarre’s hard drive and found twenty-two



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videos containing child pornography. Ultimately, Lamarre was charged with possession of child

pornography. After a jury trial, he was found guilty. Lamarre then perfected this appeal.

                                             ANALYSIS

       In his first point of error, Lamarre contends the trial court erred in denying his motion to

suppress. In his second and third points of error, Lamarre complains about the admission of

certain testimony during the punishment phase of the trial. The State raises a cross-point relating

to an alleged conflict between the trial court’s oral pronouncement of sentence and the written

judgments. We shall address each issue in turn.

                                       Motion to Suppress

       Lamarre argues the trial court erred in denying his motion to suppress because: (1) his

computer was seized without a warrant; and (2) the affidavit supporting the warrant “contained

statements that were deliberate falsehoods or made in reckless disregard of the truth.” We shall

discuss each complaint separately.

                                       Standard of Review

       We review a trial court’s ruling on a motion to suppress evidence for abuse of discretion

using a bifurcated standard. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010);

Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007). We give almost total deference

to a trial court’s determination of facts and review the trial court’s application of the law de

novo. Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002); Guzman v. State, 955

S.W.2d 85, 89 (Tex. Crim. App. 1997). A trial court’s application of the law to the facts is

affirmed if the ruling is “reasonably supported by the record and is correct on any theory of law

applicable to the case.” Valtierra, 310 S.W.3d at 447–48. Furthermore, when the trial court

does not issue findings of fact and none are requested, as in this case, we imply findings that

support the trial court’s ruling if the evidence, when viewed in the light most favorable to the
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ruling, supports those findings. Id; Montanez v. State, 195 S.W.3d 101, 106 (Tex. Crim. App.

2006). The trial court is the sole judge of the credibility of the witnesses and their testimony.

Maxwell, 73 S.W.3d at 281.

                               Warrantless Seizure of Computer

       Lamarre first contends the trial court erred in denying his motion to suppress because the

warrantless seizure of his computer on September 4, 2009, was unreasonable and violated his

rights under the Fourth Amendment. We disagree.

       When a police officer is in a place where he is lawfully entitled to be, he may seize,

without a warrant, anything he has probable cause to believe constitutes contraband. State v.

Dobbs, 323 S.W.3d 184, 187 (Tex. Crim. App. 2010) (citing Texas v. Brown, 460 U.S. 730, 738

(1983) (plurality opinion); Arizona v. Hicks, 480 U.S. 321, 326–27 (1987)). Probable cause

exists when reasonably trustworthy facts and circumstances within the knowledge of the officer

on the scene would lead a man of reasonable prudence to believe the item to be seized is

contraband. Parker v. State, 206 S.W.3d 593, 597 (Tex. Crim. App. 2006).

       In this case, when Deputy Tobleman questioned Sanders and her minor son at Sanders’s

home, Sanders told him she believed Lamarre was viewing child pornography on his computer.

The deputy specifically testified that Sanders “reported that there was child pornography on the

computer.” Sanders’s minor son also told the deputy that Lamarre showed him a pornographic

video on Lamarre’s computer. According to the son, the video depicted three adult men having

sexual intercourse with an underage girl. The deputy questioned the minor son, asking him if he

was sure the female on the video was under the age of eighteen, and the son stated he was sure.

       Deputy Tobleman testified Lamarre’s computer was “sitting on a table in the open area of

the living room.” The deputy also testified he knew Lamarre had been taken into police custody



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on a child support warrant, but did not know when Lamarre would get out of jail. The deputy

stated he seized the computer “for safe keeping.”

       Thus, Deputy Tobleman, who was legitimately in the Sanders home, had probable cause

to believe that Lamarre’s computer constituted contraband, given the statements by Sanders and

her minor son. It is not necessary that the item seized be instantly recognizable as contraband;

rather, the viewing officer merely needs probable cause to believe the item in plain view is

contraband before he seizes it. Dobbs, 323 S.W.3d at 188. “So long as the probable cause to

believe that items in plain view constitute contraband arises while the police are still lawfully on

the premises, and their ‘further investigation’ into the nature of those items does not entail an

additional and unjustified search of . . . or presence on . . . the premises, [there is] no basis to

declare a Fourth Amendment violation.” Id. at 189. Here, there was no additional search of the

premises, i.e., the Sanders home, and the subsequent search of the computer was conducted

pursuant to a warrant.

       The trial court was entitled to believe the deputy’s testimony about what Sanders and her

son told him. See Maxwell, 73 S.W.3d at 281. The court was also entitled to believe the

computer was in plain view in the living room. See id. Because the deputy was in a place where

he was legally entitled to be, and because the trial court could have determined the deputy had

probable cause to believe the computer, which was in plain view, was contraband, we hold the

trial court did not abuse its discretion in overruling the motion to suppress.

                                   Affidavit Supporting Warrant

       Lamarre next contends the trial court erred in denying his motion to suppress because

Deputy Tobleman’s affidavit, which supported the search warrant for the computer, contained

deliberate falsehoods or statements made in reckless disregard of the truth. Lamarre challenges

the following statements in the affidavit:
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        During the FBI investigation they identified the email address [ ]. The email
        address was identified on a seized computer in Newark, N.J. as the email address
        used to send email to the seized computer. A subject utilizing the email address
        engaged in the distribution of 7 images. These images are in violation of the
        Texas Penal code section 43.26, in that they display unclothed girls under the age
        of 17, and the children are performing oral sex on male subjects in the images.

        Lamarre contends this portion of the affidavit contains material misrepresentations of the

facts because the deputy failed to advise the court in the affidavit that the investigation that

uncovered this information occurred two years before; that during the investigation Lamarre’s

computer was scanned and no pornographic images were found and that the FBI had closed the

case.   Lamarre contends the omitted information amounted to misstatements of fact made

intentionally or with reckless disregard to the truth.

        Lamarre also contests the portion of the deputy’s affidavit, which states:

        [I]t is the belief of affiant that in the suspected place there will be found items
        constituting contraband, and the instruments in the commission of a crime under
        the Texas Penal Code, to wit: § 43.26. Possession of Promotion of Child
        Pornography; in violation of the laws of Texas. Such items will consist of the
        following:

        5. Computers . . . .

        6. Computers, personal computers, computer systems, central processing units,
        computer peripherals . . . .

        7. Electronic communications stored in computers . . .

        The affidavit concludes by requesting a search warrant that would authorize a search of

Sanders’s home “for said personal property and seizure of the same (including the computer

hardware housing it).” Lamarre contends the deputy failed to advise the court that the computer

had already been seized for “safe keeping” on September 4, 2009, thirteen days before the

affidavit was executed. Lamarre further contends the items listed in the warrant were not at the

location stated in the warrant and the deputy knew this because he has already seized the items


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“for safe keeping.” Given that the items had already been seized, and this was known to Deputy

Tobleman, Lamarre contends these statements were deliberate falsehoods or at a minimum, made

in reckless disregard of the truth.

        Lamarre argues that if these “falsehoods” or statements “made in reckless disregard of

the truth” are removed from the affidavit, the affidavit is insufficient to support a finding of

probable cause. Therefore, the trial court erred in denying his motion to suppress. Again, we

disagree.

        Under Franks v. Delaware, a defendant may challenge the truth of an affidavit used to

obtain a search warrant only if he “makes a substantial preliminary showing that a false

statement knowingly and intentionally, or with reckless disregard for the truth, was included by

the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding

of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s

request.” 438 U.S. 154, 155–56 (1978); see Harris v. State, 227 S.W.3d 83, 85 (Tex. Crim. App.

2007). “In the event that at that hearing the allegation of perjury or reckless disregard is

established by the defendant by a preponderance of the evidence, and, with the affidavit’s false

material set to one side, the affidavit’s remaining content is insufficient to establish probable

cause, the search warrant must be voided and the fruits of the search excluded to the same extent

as if probable cause was lacking on the face of the affidavit.” Franks, 438 U.S. at 156. The

Texas Court of Criminal Appeals made it clear that to be entitled to a Franks hearing a defendant

must:

        (1) allege deliberate falsehood or reckless disregard for the truth by the affiant,
            specifically pointing out the portion of the affidavit claimed to be false;

        (2) accompany these allegations with an offer of proof stating the supporting
            reasons; and


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       (3) show that when the portion of the affidavit alleged to be false is excised from
           the affidavit, the remaining content is insufficient to support issuance of the
           warrant.

Harris, 227 S.W.3d at 83 (citing Cates v. State, 120 S.W.3d 352, 356 (Tex. Crim. App. 2003),

(quoting Ramsey v. State, 579 S.W.2d 920, 922–23 (Tex. Crim. App. 1979)). In other words, an

attack on the truth of an affidavit supporting a search warrant “must be more than conclusory and

must be supported by more than a mere desire to cross-examine.” Harris, 227 S.W.3d at 85

(quoting Franks, 438 U.S. at 171). The Texas Court of Criminal Appeals has not recognized that

a Franks analysis pertains to omissions as well as false statements. See Brooks v. State, 642

S.W.2d 791, 796–97 (Tex. Crim. App. [Panel Op.] 1982). However, the Fifth Circuit, along with

other Texas appellate courts, has concluded that allegations of material omissions are to be

treated the same as claims of material misstatements. See United States v. Martin, 615 F.2d 318,

328 (5th Cir. 1980); Blake v. State, 125 S.W.3d 717, 724 (Tex. App.—Houston [1st Dist.] 2003,

no pet.); Heitman v. State, 789 S.W.2d 607, 610–11 (Tex. App.—Dallas 1990, pet. ref’d); Melton

v. State, 750 S.W.2d 281, 284 (Tex. App.—Houston [1st Dist.] 1988, no pet.). Accordingly, we

will apply the Franks analysis to Lamarre’s allegations.

       Apparently having determined that Lamarre made the initial showing required by Franks

and Harris, the trial court held a hearing on the motion to suppress during the trial, out of the

presence of the jury. During the hearing, Lamarre argued there was no probable cause to issue

the warrant based on the four corners of the affidavit. Lamarre’s trial counsel contended that

falsehoods and material misrepresentations of the facts were made concerning the initial email

that brought Lamarre to the attention of law enforcement. Specifically, the affidavit omitted the

information that the FBI’s investigation of the initial emails was conducted two years before the

affidavit was executed, that the FBI scan of the computer during the initial investigation found

no child pornography, and that the FBI had in fact closed its case. Deputy Tobleman also failed
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to state in the affidavit that the computer in question was already in police custody, having been

seized without a warrant “for safe keeping” thirteen days before the affidavit was completed and

the warrant was issued. Therefore, according to Lamarre, the warrant was based on false

statements or statements made in reckless disregard of facts known to Deputy Tobleman, the

affiant.

           The trial court, however, after listening to the evidence and the arguments of counsel,

determined that the omissions and statements complained of by Lamarre—the closed

investigation, the prior seizure of the computer—did not amount to deliberate misrepresentations

or statements made in reckless disregard for the truth. Moreover, the trial court determined that

even if the information concerning the initial investigation was removed, additional information

in the affidavit, specifically the information obtained from Sanders and her son, was sufficient to

establish probable cause for the warrant.

           Having reviewed the record, we hold the trial court did not abuse its discretion in finding

Lamarre failed to establish by a preponderance of the evidence that the deputy’s alleged

misstatements and omissions were intentional or made with reckless disregard. We further hold

that it was not an abuse of discretion for the court to determine the alleged misstatements and

omissions amounted to nothing more than negligence on the part of Deputy Tobleman.

“Allegations of negligence or innocent mistake are insufficient” to warrant striking portions of

an affidavit. Franks, 438 U.S. at 173. As recognized by the court of criminal appeals, “a

misstatement in an affidavit that is merely the result of simple negligence or inadvertence, as

opposed to reckless disregard for the truth,” will not render a warrant invalid.” Dancy v. State,

728 S.W.2d 772, 783 (Tex. Crim. App. 1987).

           We also hold the trial court did not err in determining that excluding the portions of the

affidavit complained of would not render the affidavit, when read as a whole, insufficient to
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establish probable cause.    Deputy Tobleman’s affidavit stated Lamarre rented a room in

Sanders’s home, and her minor child told authorities that Lamarre showed him a pornographic

video on Lamarre’s computer that contained “two guys, they were like swarming—swarming

around this girl and they were like man-handing her a little bit. And then they started like rough-

housing, and then they started having hard-core sex.” Sanders’s son went on to confirm the girl

in the video was a minor. The son further testified he was shown this video on Lamarre’s

computer while in the Sanders’s residence. Based on these statements, we conclude that after

drawing reasonable inferences and considering the totality of the circumstances, a magistrate

could have reasonably found the affidavit sufficient to establish probable cause to search the

computer. Accordingly, we hold the trial court did not err in finding the affidavit was sufficient

to establish probable cause even in the absence of the information complained of by Lamarre.

Therefore, we overrule Lamarre’s first point of error.

                                Testimony at Punishment Phase

        In his second and third points of error, Lamarre contends the trial court erred in

overruling his objections to certain testimony given by two witnesses during the punishment

phase of the trial. More specifically, he argues the trial court should not have admitted the

testimony of witnesses A.M. or M.C. because their testimony was “inadmissible extraneous

[offense] victim impact testimony.”

        A.M. and M.C. are Lamarre’s former step-daughters, who resided with Lamarre when he

married their mother. The State called A.M. and M.C. as witnesses during the punishment phase

of the trial. Both witnesses testified about sexual and physical abuse they allegedly suffered at

the hands of Lamarre during the time they resided with him and the impact the abuse had on

them.



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       After A.M. and A.C. testified without objection that Lamarre has sexually and physically

abused them, the State asked each woman how the abuse affected her life. A.M. stated, “It’s

pretty much ruined my life.” At that point, Lamarre objected, arguing the testimony was

inadmissible because it was “victim impact and that’s inappropriate prior to sentencing.” The

objection was overruled.     A.M. then stated she suffered from severe depression and panic

attacks, and was unable to maintain a stable relationship with a man.

       When A.C. testified, the State asked her the same question about the effect of Lamarre’s

abuse. Lamarre raised the same objection, which was overruled. A.C. then testified she has had

extensive counseling, suffers from severe anxiety and depression, and makes “bad choices as far

as men.”

                                        Standard of Review

       This court reviews a trial court’s evidentiary rulings under an abuse of discretion

standard. Hines v. State, 383 S.W.3d 615, 624 (Tex. App.—San Antonio 2012, pet. ref’d) (citing

Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim. App. 2012); Martinez v. State, 327 S.W.3d

727, 736 (Tex. Crim. App. 2010)). A trial court abuses its discretion only when its decision is

outside the zone of reasonable disagreement. Hines, 383 S.W.3d at 625 (citing Tienda, 358

S.W.3d at 638).

                                            Application

       During the punishment phase of a trial, “evidence may be offered . . . as to any matter the

court deems relevant.” TEX. CODE CRIM. PROC. art. 37.07 § 3(a)(1) (West Supp. 2012). Such

evidence may include extraneous offenses, even those that are unadjudicated. Id. Such evidence

is relevant, and therefore admissible, if it will assist the trier of fact in assessing an appropriate

sentence. Rogers v. State, 991 S.W.2d 263, 265 (Tex. Crim. App. 1999). Thus, the testimony of

A.M. and A.C. regarding Lamarre’s abuse was admissible during the punishment phase as
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extraneous offense evidence. See TEX. CODE CRIM. PROC. ANN. art. 37.07 § 3(a)(1). This is

uncontested by Lamarre.

       “‘Victim impact’ evidence is evidence of the effect of an offense on people other than the

victim.” Roberts v. State, 220 S.W.3d 521, 531 (Tex. Crim. App. 2007) (emphasis in original).

In Roberts, the court held that testimony during the punishment phase of the trial by a victim of

an extraneous robbery about the impact the robbery had on her was admissible. Id. The court

held her testimony was not inadmissible victim impact testimony because she was the victim of

the extraneous robbery. Id. (emphasis added).

       The Roberts holding is directly on point. Here, A.M. and A.C. were victims of prior

extraneous offenses committed by Lamarre.               During the punishment phase, these victims

testified about the impact the offenses had on their lives. Their testimony is not victim impact

evidence because they were the victims of the sexual and physical abuse. See id.

       Lamarre relies on two cases from the court of criminal appeals, Haley and Cantu. See

Haley v. State, 173 S.W.3d 510 (Tex. Crim. App. 2005); Cantu v. State, 939 S.W.2d 627 (Tex.

Crim. App. 1997). These cases are distinguishable. In the cases relied upon by Lamarre, the

court of criminal appeals held testimony from the mother of the murdered victim, who was not a

victim named in the indictment, was inadmissible. Haley, 173 S.W.3d at 518; Cantu, 939

S.W.2d at 637. The court of criminal appeals reasoned such victim impact testimony was

irrelevant, and therefore inadmissible.       Id.     In contrast, the evidence in Roberts, as here,

concerned extraneous offense evidence from the actual victim, and therefore the evidence was

not, by definition, victim impact evidence:

       The evidence presented here was evidence of the effect of a different offense on
       the victim (of the extraneous offense), and thus is distinguishable from the
       situation presented in Cantu. The evidence was admissible.



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Roberts, 220 S.W.3d at 531 (emphasis in the original). In sum, where the person testifying is

also a victim of the defendant, the evidence presented is not victim impact evidence, and

therefore not inadmissible under Cantu and Haley. See id.

       Because the testimony from A.M. and A.C. was not victim impact testimony—it was not

evidence of the effect of an offense on someone other than A.M. and A.C.—we hold the trial

court did not abuse its discretion in overruling Lamarre’s objections to the admission of the

testimony. Accordingly, we overrule points of error two and three.

                                        State’s Cross-Point

       In a single cross-point, the State contends we must reform the judgment to reflect that

Lamarre’s sentences are to run consecutively. We agree.

       The written judgments in each of appellant’s convictions state that “THIS SENTENCE

SHALL RUN CONCURRENTLY UNLESS OTHERWISE SPECIFIED.” However, when the

trial judge pronounced sentence in open court, it specifically stated, “I will assess the 10 years on

each count and stack them,” indicating the sentences were to run consecutively.

       The Texas Code of Criminal Procedure requires that in a felony case, the sentence must

be pronounced in the presence of the defendant. State v. Davis, 349 S.W.3d 535, 538 (Tex.

Crim. App. 2011) (citing TEX. CODE CRIM. PROC. ANN. art. 42.03 § 1(a) (West Supp. 2012)).

“When the oral pronouncement of the sentence and the written judgment vary, the oral

pronouncement controls” because “the written sentence or order simply memorializes” the oral

pronouncement. Davis, 349 S.W.3d at 538–39 (quoting Ex parte Madding, 70 S.W.3d 131, 135

(Tex. Crim. App. 2002)). The rationale for this rule is that “the imposition of sentence is the

crucial moment when all of the parties are physically present at the sentencing hearing and able

to hear and respond to the imposition of sentence.” Once he leaves the courtroom, the defendant

begins serving the sentence imposed. Madding, 70 S.W.3d at 135.
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       Here, it is undisputed that when it orally pronounced the sentence, the court ordered

Lamarre’s sentences to run consecutively, and it is this pronouncement that controls. See Davis,

349 S.W.3d at 538–38. Accordingly, we sustain the State’s cross-point and reform each of the

trial court’s judgments to indicate that the sentences are to run consecutively.

                                           CONCLUSION

       Based on the foregoing, we overrule Lamarre’s points of error and sustain the State’s

cross-point. We reform the trial court’s judgments to indicate that Lamarre’s sentences are to

run consecutively. As modified, we affirm the trial court’s judgments.


                                                   Marialyn Barnard, Justice

Do Not Publish




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