                                  NO. 07-09-00211-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL A

                                     MAY 26, 2010


                        CHRISTOPHER NELSON, APPELLANT

                                            v.

                          THE STATE OF TEXAS, APPELLEE


          FROM THE 84TH DISTRICT COURT OF HUTCHINSON COUNTY;

                 NO. 9894; HONORABLE WILLIAM D. SMITH, JUDGE


Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                               MEMORANDUM OPINION

      Appellant Christopher Nelson appeals from his conviction of two counts of sexual

assault of a child and the resulting sentences of two years of imprisonment for each

count. Through two issues, appellant contends the trial court erred when it pronounced

sentence only on one conviction while contemporaneously ordering the sentences to

run consecutively. We affirm the judgment of the trial court.


                                      Background


      Via a February 2007 indictment, appellant was charged with two separate counts

of sexual assault on a child under the age of 17. A jury convicted appellant as charged
in the indictment and assessed punishment against him at two years of imprisonment

for each count. Beginning its oral pronouncement of the sentences, the trial court said:


              This case was tried heretofore before a jury beginning on the 15th
      day of July, 2009. Mr. Nelson, you came before this Court and a jury and
      entered a plea of not guilty to the offense of Sexual Assault as set out in
      Count No. 1 and No. 2 of the indictment. The evidence was submitted
      and the jury was charged by this Court. And the jury returned a verdict of
      guilty to the offense of Sexual Assault under Count 1 of the indictment,
      and also a verdict of guilty to the offense of Sexual Assault under Count 2
      of the indictment.
              The jury did assess your punishment in regard to Count No. 1 at
      two years confinement in the Texas Department of Criminal Justice,
      Institutional Division and a $10,000.00 fine.
              Furthermore, the jury did assess your punishment at a term of
      confinement of two years in the Texas Department of Criminal Justice,
      Institutional Division, and a fine of $10,000.00 concerning punishment in
      regard to Count No. 2. It’s the judgment of this Court you are guilty of
      both counts, and that your punishment in regard to both counts should be
      in accordance with the jury’s verdict.
                    ***
              All right. Then the Court finding nothing in bar why sentence of the
      law should not be pronounced against you, Christopher Nelson, who has
      been found to have been guilty of the offense Sexual Assault in Count 1 of
      the indictment; and also the offense of Sexual Assault under Count 2 in
      the indictment, the Court at this time does sentence you to serve two
      years confinement in the Texas Department of Criminal Justice,
      Institutional Division, and a fine of $10,000.00 under the provisions of the
      law in regard to both cases.
             The Court will order that the service of these sentences run
      consecutively. The Court will also give you time credit against the service
      in each sentence in regard to the time you spent in jail prior here to [sic].


      The written judgment states appellant’s punishment to be: “Defendant’s

CONFINEMENT in the Institutional Division of the Texas Department of Criminal Justice

for a period of TWO (2) YEARS and a FINE in the amount of $10,000.00 is assessed

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against the Defendant in two counts and confinement in both counts shall run

consecutive to each other.”


                                        Analysis


      Article 42.03, section 1(a) of the Code of Criminal Procedure provides that

"sentence shall be pronounced in the defendant's presence." Tex. Code Crim. Proc.

Ann. art. 42.03, § 1(a) (Vernon 2009). Article 42.08 of the Code of Criminal Procedure

grants the trial court authority to order sentences to run consecutively or concurrently.

See Tex. Code Crim. Proc. Ann. art. 42.08 (Vernon 2009).1 Penal Code § 3.03 provides

that when, as here, an accused is found guilty of more than one offense arising out of

the same criminal episode prosecuted in a single criminal action, “a sentence for each

offense for which he has been found guilty shall be pronounced.” Tex. Penal Code Ann.

§ 3.03(a) (Vernon 2009).


      At issue here is whether the sentence pronounced at trial was a separate

pronouncement of sentence for each offense of which appellant was convicted or

whether, as appellant contends, only a single pronouncement.


      We consider the entirety of the trial court’s oral pronouncement in determining

whether a separate pronouncement for each offense was pronounced.             See, e.g.,

Aguilar v. State, 202 S.W.3d 840, 843 (Tex.App.—Waco 2006, pet. ref’d) (the jury's

punishment verdict, the court's pronouncement, and the written judgment should be

read together in an effort to resolve any ambiguity in the sentences).    Here, the jury


      1
        Appellant’s offenses were violations of Penal Code section 22.011. Tex. Penal
Code Ann. § 22.011(a)(2)(A) (Vernon 2009).  
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convicted appellant of two counts of sexual assault of a child and assessed punishment

for each of the two counts pleaded in the indictment. And, while it might be the best

practice for a trial court in such situations explicitly to address each count separately

every time they are mentioned during its pronouncement, reading the entirety of the trial

court’s pronouncement here, it is clear to us the trial court addressed each count

separately and separately assessed punishment for each count.


      We overrule appellant’s first issue. Our conclusion the trial court pronounced

sentence separately for each offense makes unnecessary our consideration of

appellant’s second issue, which he presented in the alternative. See Tex. R. App. P.

47.1. Accordingly, we affirm the judgment of the trial court.




                                                                James T. Campbell
                                                                     Justice


Do not publish.




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