                                  In The
                             Court of Appeals
                    Seventh District of Texas at Amarillo
                            ________________________

                                No. 07-17-00421-CR
                                No. 07-17-00428-CR
                                No. 07-17-00429-CR
                                No. 07-17-00430-CR
                            ________________________


                      JIMMIE KYLE ANDERSON, APPELLANT

                                          V.

                         THE STATE OF TEXAS, APPELLEE



                         On Appeal from the 46th District Court
                                Hardeman County, Texas
                Trial Court No. 4360; Honorable Dan Mike Bird, Presiding


                                    March 22, 2019

                           MEMORANDUM OPINION
                   Before QUINN, C.J., and PIRTLE and PARKER, JJ.


      Following open pleas of guilty to three counts of indecency with a child by sexual

contact and one count of aggravated sexual assault of a child, Appellant, Jimmie Kyle

Anderson, was convicted on all counts.     After electing to have the jury assess his
punishment, he was sentenced to fifteen years for each count of indecency with a child

by sexual contact1 and ninety-nine years for aggravated sexual assault of a child.2


        By a sole issue, Appellant maintains the trial court committed reversible error by

ordering his sentences to run consecutively in violation of the Eighth Amendment to the

United States Constitution. We affirm.


        PROCEDURAL FUBAR3

        As a preliminary matter, it is essential that we untangle the confusion created by

the trial court’s unexplained renumbering of the offenses—not once, but three times—

and its errors in the drafting of the final written judgments, making this case an excellent

example of why separate charges should be brought as separate indictments, resulting

in separate judgments. As originally indicted, Appellant was charged with five offenses.

Counts I and II charged Appellant with aggravated sexual assault of Jane Doe and Sara

Doe, respectively, and the remaining three counts charged him with indecency with a

child by sexual contact with Jane Doe, Sara Doe, and Mary Doe, respectively. Count II

was subsequently dismissed. When the case was presented to the jury and sentence

was pronounced in open court, Count I remained the aggravated sexual assault charge

as to Jane Doe; the dismissed Count II became the indecency with a child by sexual

contact charge as to Jane Doe (formerly Count III); Count III became the indecency with



        1 TEX. PENAL CODE ANN. § 21.11(a)(1) (West Supp. 2018). An offense under this section is a felony
of the second degree.

        2 TEX. PENAL CODE ANN. § 22.021(a)(2)(B) (West Supp. 2018). An offense under this section is a

felony of the first degree.

        3  Fubar: [fo͞oˌbär] adj.; A military acronym indicating that something is out of working order;
seriously, perhaps irreparably damaged. Oxford English Dictionary (third ed.). Oxford University Pres.
2005.

                                                   2
a child by sexual contact as to Sara Doe (formerly Count IV); Count IV became the

indecency with a child by sexual contact as to Mary Doe (formerly Count V); and Count

V disappeared. When the written judgments were finally prepared, Count I somehow

became the indecency with a child by sexual contact as to Jane Doe; Count II became

the indecency with a child by sexual contact as to Sara Doe; Count III became the

indecency with a child by sexual contact as to Mary Doe; and Count IV became the

aggravated sexual assault charge. This means that at four different stages (indictment,

jury charge, pronouncement of sentence, and execution of written judgments), the trial

court referred to the various charges using three different “count” numbering systems.

This confusion should have been avoided and it could have been by simply using a

separate indictment as to each offense.


       And, if that wasn’t confusing enough, contrary to the trial court’s oral

pronouncement of sentences, the trial court’s written judgments incorrectly ordered that

Appellant’s sentences for indecency with a child be served consecutively to one another,

but not consecutively to the aggravated sexual assault sentence. Finally, as drafted, the

written judgments as to Counts I and II create an impossible sentence because they

provide that the sentence for that particular offense “shall begin” when the sentence for

that same offense has “terminated,” creating an incongruous circuity.


       A chart of the four convictions, arranged by the count number used in the final

written judgments, is as follows:




                                           3
 COUNT PER               CHARGE               PENAL CODE          SENTENCE PER            SENTENCE PER
 JUDGMENT                                                           JUDGMENT                  ORAL
                                                                                         PRONOUNCEMENT4

 Count I           Indecency with a child   TEX. PENAL CODE      Fifteen years           Fifteen years
                     by sexual contact      ANN. § 21.11(a)(1)
                        (Jane Doe)          (West Supp. 2018)    Consecutive to          Consecutive to Count I
                                                                 Counts I, II, and III

 Count II          Indecency with a child   TEX. PENAL CODE      Fifteen years           Fifteen years
                     by sexual contact      ANN. § 21.11(a)(1)
                        (Sara Doe)          (West Supp. 2018)    Consecutive to          Consecutive to Counts
                                                                 Counts I and II         I and II

 Count III         Indecency with a child   TEX. PENAL CODE      Fifteen years           Fifteen years
                     by sexual contact      ANN. § 21.11(a)(1)
                        (Mary Doe)          (West Supp. 2018)    Consecutive to          Consecutive to Counts
                                                                 Count I                 I, II, and III

 Count IV           Aggravated sexual       TEX. PENAL CODE      Ninety-nine years       Ninety-nine years
                     assault of a child     ANN. §
                                            22.021(a)(2)(B)      Concurrent
                                            (West Supp. 2018)




Because an understanding of the proper judgment is critical to our analysis, we will first

address the reformation of the judgments to reflect the sentences as pronounced in open

court.


           REFORMATION OF THE JUDGMENTS

           As we have indicated above, in its submission of the case to the jury, the trial court

renumbered the “counts,” with Counts I, II, and III becoming the indecency with a child by

sexual contact offenses and Count IV becoming the aggravated sexual assault offense.

Because the trial court used a different numbering system when it pronounced each

sentence, it is necessary to reform the judgments to conform to the sentence pronounced.




           This is particularly confusing because, at the time of the trial court’s oral pronouncement, it was
           4

referring to Count I as Count II, Count II as Count III, and Count III as Count IV, and Count IV as Count I.
                                                        4
       This court has the power to reform the judgment of the court below to make the

record speak the truth when we have the necessary information to do so. TEX. R. APP. P.

43.2(b). Ramirez v. State, 336 S.W.3d 846, 852 (Tex. App.—Amarillo 2011, pet. ref'd)

(citing Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993)). Appellate courts

have the power to reform whatever the trial court could have corrected by a judgment

nunc pro tunc where the evidence necessary to correct the judgment appears in the

record. Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet. ref'd). The

power to reform a judgment is “not dependent upon the request of any party, nor does it

turn on the question of whether a party has or has not objected in the trial court.” Id. at

529-30.


       It is well-settled that when there is a conflict between the oral pronouncement of

sentence in open court and the sentence set out in the written judgment, the oral

pronouncement controls. Burt v. State, 445 S.W.3d 752, 757 (Tex. Crim. App. 2014);

Taylor v. State, 108 S.W.3d 497, 500 (Tex. Crim. App. 2004); Thompson v. State, 108

S.W.3d 287, 290 (Tex. Crim. App. 2003). The solution in such a situation is to reform the

written judgment to conform to the trial court’s oral pronouncement. Id.


       Here, the record reflects that, immediately following the assessment of the ninety-

nine year sentence with respect to the aggravated sexual assault charge, the trial court

said nothing with respect to whether that sentence would be served concurrently or

consecutively. Because the trial court did not otherwise provide, this sentence must be

served concurrent to any other sentence. In that regard, the written judgment as to Count

IV is correct.




                                            5
       Immediately following the assessment of the fifteen-year sentence with respect to

the indecency with a child by sexual contact as to Jane Doe, the trial court stated, “[t]hat

sentence would begin from when the sentence on Count I was terminated.” Because, at

that point, Count I was the aggravated sexual assault charge, the trial court effectively

ordered that the sentence could not begin until that sentence (now Count IV) was

completed. In order to correct this error, we reform the judgment in Count I (indecency

with a child by sexual contact) to reflect: “This sentence shall begin when the judgment

and sentence in Cause No. 4360 (Count IV) has ceased to operate.”


       Immediately following the assessment of the fifteen-year sentence with respect to

the indecency with a child by sexual contact as to Sara Doe, the trial court stated, “[t]hat

sentence will begin . . . when the sentences on Count I and II are terminated.” Because,

at that point, Count I was the aggravated sexual assault charge and Count II was the

indecency with a child by sexual contact as to Jane Doe, the trial court effectively ordered

that the sentence could not begin until the sentences (now Counts I and IV) were

completed. In order to correct this error, we reform the judgment in Count II (indecency

with a child by sexual contact) to reflect: “This sentence shall begin when the judgment

and sentence in Cause No. 4360 (Count I) and Cause No. 4360 (Count IV) have ceased

to operate.”


       Immediately following the assessment of the fifteen-year sentence with respect to

the indecency with a child by sexual contact as to Mary Doe, the trial court stated, “[t]his

sentence . . . will begin when the sentences on Count I, II and III are terminated.”

Because, at that point, Count I was the aggravated sexual assault charge, Count II was

the indecency with a child by sexual contact as to Jane Doe, and Count III was the

                                             6
indecency with a child by sexual contact as to Sara Doe, the trial court effectively ordered

that the sentence could not begin until the sentences (now Counts I, II, and IV) were

completed. In order to correct this error, we reform the judgment in Count III (indecency

with a child by sexual contact) to reflect: “This sentence shall begin when the judgment

and sentence in Cause No. 4360 (Count I), Cause No. 4360 (Count II) and Cause No.

4360 (Count IV) have ceased to operate.”


       BACKGROUND

       After Appellant pleaded guilty to four counts of the indictment, a jury heard

punishment evidence. Appellant’s ex-wife testified that she and Appellant met online in

2007 and they married in 2008. In 2013, they became foster parents and over time, they

fostered twenty-five children. In 2017, they had six children in the home ranging in age

from four months to ten years.


       In May 2017, Appellant’s wife went into a bedroom to check on some of the children

and discovered one of the girls had her pants unzipped. When questioned about it, the

five-year-old child responded that she and two other children were playing a game

Appellant played with them.5 She described the game as one where “daddy puts that

thing in our butts.” When questioned further, she indicated the “thing” she was referring

to was Appellant’s penis. More questioning by Appellant’s wife led one of the girls to say

that Appellant sometimes puts his “body part” in her mouth causing her to choke.




       5   Two of the girls were five years old and one was three.
                                                      7
       Appellant’s wife told the children they were going for a drive so they could be out

of the house when Appellant arrived home. She took them to the foster care agency in

Wichita Falls and the police were called. An investigation ensued.


       Texas Ranger Rickey Brown was asked to assist in the investigation. He assisted

Appellant’s wife in making a voluntary phone call to Appellant to confront him about the

allegations. The call was recorded. After his initial denials, Appellant admitted abusing

the girls and expressed remorse. At a later date, he agreed to waive his rights and be

interviewed by Ranger Brown. Speaking candidly and remorsefully, Appellant described

what he did to the girls. The audio recordings of Appellant’s phone call with his wife and

of his interview with Ranger Brown were played for the jury.


       During the punishment hearing, three former foster children who stayed with

Appellant and his wife in 2014, also testified. These three children were sisters, and at

the time of the punishment hearing, they were eleven, twelve, and thirteen years of age.

Each of them testified they were sexually assaulted by Appellant. One of the sisters

testified that he “raped” her “[e]very day for, like, a week or more.” Another sister testified

he “bribed us with money . . . if we did what he wanted . . . .” The third sister testified that

Appellant made her do uncomfortable things when his wife was not around such as “drink

his sperm and basically have sex with him.” According to them Appellant threatened to

kill them if they told anyone of the abuse.


       During his case-in-chief, Appellant presented the testimony of his sister, his father

and mother, and a former co-worker. They testified to his favorable character traits, his

childhood activities, and his dependability as an employee.



                                               8
        By his sole issue, he asserts his consecutive sentences constitute cruel and

unusual punishment in violation of the Eighth Amendment to the United States

Constitution. For the reasons discussed below, we disagree.


        APPLICABLE LAW

        The Eighth Amendment prohibits excessive bail or fines as well as cruel and

unusual punishment. U.S. CONST. amend. VIII. This provision is applicable to the states

through the Fourteenth Amendment. Furman v. Georgia, 408 U.S. 238, 239 92 S. Ct.

2726, 33 L. Ed. 2d 346 (1972).


        A complaint that punishment is cruel and unusual must be preserved for review.

Sharp v. State, No. 07-17-00128-CR, 2017 Tex. App. LEXIS 11295, at *2 (Tex. App.—

Amarillo Dec. 5, 2017, no pet.) (mem. op., not designated for publication). Constitutional

rights, including the right to be free from cruel and unusual punishment, may be waived

by failure to object. See Castaneda v. State, 135 S.W.3d 719, 723 (Tex. Crim. App.

2003). To avoid procedural default on appeal on a punishment issue, a defendant must

complain of the sentence by objection during trial or, if there was no opportunity to object,

in a motion for new trial. See TEX. R. APP. P. 33.1(a)(1). See also Hardeman v. State, 1

S.W.3d 689, 690 (Tex. Crim. App. 1999); Issa v. State, 826 S.W.2d 159, 161 (Tex. Crim.

App. 1992). The requirement that an objection be raised in the trial court assumes that

the defendant had the opportunity to raise it there. Hardeman, 1 S.W.3d at 690.6



         6 The sentences imposed were within the applicable range of punishment for the offenses, and

Texas courts have traditionally held that, so long as the punishment imposed is within the range prescribed
by the Legislature in a valid statute, that punishment is not excessive, cruel, or unusual. See Stacks v.
State, No. 07-15-00336-CR, 2017 Tex. App. LEXIS 7690, at *15 (Tex. App.—Amarillo Aug. 14, 2017, pet.
ref’d) (mem. op., not designated for publication). See, e.g., Darden v. State, 430 S.W.2d 494, 496 (Tex.
Crim. App. 1968). See also Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984); Rodriguez v.
State, 917 S.W.2d 90, 92 (Tex. App.—Amarillo 1996, pet. ref'd).
                                                    9
       ANALYSIS

       Appellant complains that the trial court erred in “stacking of the four sentences in

which the first sentence of 99 years Appellant [is] not eligible for parole.” As we have

noted above, as reformed to conform to the trial court’s oral pronouncement of sentence,

this is, in effect, what the trial court ordered with respect to Appellant’s four sentences.

During the sentencing phase of the underlying case, after the jury returned its punishment

verdict, the trial court inquired, for each separate count, if there was any legal reason why

sentence should not be pronounced to which defense counsel replied “[n]o” each time.

As such, during pronouncement of sentence, Appellant was given an opportunity to

complain about the alleged “cruel and unusual” nature of his punishment, including the

cumulative nature of his sentences, but he did not. Neither did he raise it in a motion for

new trial. Accordingly, Appellant has failed to preserve error by failing to object at his

earliest opportunity. Appellant’s sole issue is overruled.


       CONCLUSION

       The trial court is ordered to execute a corrected judgment nunc pro tunc as to

Counts I, II, and III and to provide a copy of those corrected judgments to the Texas

Department of Criminal Justice. As reformed, the trial court’s judgments are affirmed.




                                                         Patrick A. Pirtle
                                                              Justice
Do not publish.




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