      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-14-00562-CR



                                Reginald Allen Mason, Appellant

                                                  v.

                                   The State of Texas, Appellee


     FROM THE DISTRICT COURT OF COMAL COUNTY, 433RD JUDICIAL DISTRICT
          NO. CR2014-012, HONORABLE DIB WALDRIP, JUDGE PRESIDING



                             MEMORANDUM OPINION


               A jury found Reginald Allen Mason guilty of sexual assault of a child and indecency

with a child. The trial court assessed sentences of 16 years and 15 months1 for the assault conviction

and 5 years and 7 months for the indecency conviction. Mason does not challenge the finding of

his guilt or the sentences themselves, but contends that the court erred by ordering that these

terms be served consecutively to each other. We will modify the judgments and affirm them as

modified.

               Trial courts may order that sentences run consecutively by using language that is

sufficiently specific to explain how long prison authorities should detain the prisoner under the

sentence. Stokes v. State, 688 S.W.2d 539, 540 (Tex. Crim. App. 1985); Ex parte Davis, 506 S.W.2d



       1
        The trial court said that it used these numbers deliberately for their correlation to
numbers significant to this case and appellant. The sentence could also be expressed as 17 years
and 3 months.
882, 883 (Tex. Crim. App. 1974); see also Tex. Code Crim. Proc. art. 42.08(a). The Texas Court

of Criminal Appeals has recommended that cumulation orders contain several 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). Orders need not contain all of these elements to be upheld. Id. Like all

judgments, the sentence should be sufficient on its face without need for resort to evidence regarding

its meaning. See Ex parte Lewis, 414 S.W.2d 682, 683 (Tex. Crim. App. 1967). If a written

cumulation order differs from the orally pronounced order and the trial court’s oral pronouncement

of sentence conforms with the law and makes clear the court’s intent, we can reform the cumulation

order on appeal. See Sullivan v. State, 387 S.W.3d 649, 652 (Tex. Crim. App. 2013).

               Appellant was tried on five charges, acquitted on Counts I-III, and convicted

on Counts IV and V. There is a separate written judgment for each count even though they were

tried under the same cause number. For Count IV, the court assessed a sentence of 16 years and

15 months in prison. For Count V, the court assessed a sentence of five years and seven months.

Underneath the prison term in both judgments, the judgment states “This sentence shall run

consecutively.” The stacking language does not contain any of the information suggested in Ward.

See 523 S.W.2d at 682. Appellant contends that these judgments do not sufficiently inform prison

officials how to implement the cumulation. We agree, but we also note that the cumulation portion

of the written judgment differs from the orally pronounced sentence.




                                                  2
               When pronouncing sentence in open court, the trial court stated the following:


       THE COURT: With all of that in mind, I’m going to sentence you in
       Count I—because the last time you messed with her she was 16—to 16 years and
       15 months relative to the age of your daughter. I don’t care how the judgment
       actually reads, but the point is, it’s been said 16 years and 15 months. That would
       equate to 17 years and three months. I don’t—but I’m telling you, that’s how I’m
       calculating it: 16 years for [your victim] and 15 months for the age so that you’ll
       remember each and every one of those last months on that sentence. Do you
       understand?

       THE DEFENDANT: Yes, sir.

       THE COURT: That’s the point of it being worded that way. And as to Count II—
       which will be stacked on Count I to run consecutive—five years for the age of [your
       son] because you’re doing it to—you’re affecting him, too.

       THE DEFENDANT: I understand, Your Honor. I know.

       THE COURT: And seven months for the age of your youngest child. I want the
       sentence to mean something to you. That’s why I’ve picked those numbers in
       addition to what I think is, based upon the evidence, a sentence that is substantiated
       by the evidence in this case. It’s not just some pie-in-the-sky pick a number.
       Because if, in fact, you have changed, then maybe this will, in fact, mean something
       to you. But if you haven’t, it doesn’t matter what the number is. It’s not going to
       affect you. So the sentence needs to be something that is sufficient that would protect
       society for a substantial period of time.


Appellant contends that these sentences cannot validly cumulate because the trial court refers

to “Count I” and “Count II” on which he was acquitted. However, the court was at punishment

considering only two offenses and had earlier in the punishment hearing referred to the convictions

for Count IV and V. Given the nature of the charges and the idiosyncratic sentences imposed, it is

clear that “Count I” of the oral pronouncement corresponds with the written judgment for the

original Count IV (16 years and 15 months) and “Count II” of the oral pronouncement corresponds

with the written judgment for the original Count V. Based on the court’s oral pronouncement that

                                                 3
“Count II—which will be stacked on Count I to run consecutive,” the written judgments should be

modified to reflect that the sentence for Count V will be served consecutively to the sentence served

for Count IV.

                We modify the judgments in this cause by striking the sentence from both judgments

that reads, “This sentence shall run consecutively.” Modeling on the language used by the

Texas Court of Criminal Appeals in Ward, 523 S.W.2d at 682, we substitute the following language:


       The sentence imposed in cause number CR2014-012 as to Count IV for sexual
       assault of a child (16 years and 15 months) shall begin immediately. The sentence
       imposed in CR2014-012 as to Count V for indecency with a child by contact (five
       years and seven months) shall commence when the judgment imposed in cause
       number CR2014-012 as to Count IV has ceased to operate. Both sentences were
       announced in open court by the 433rd District Court on September 4, 2014, and
       memorialized in judgments signed on September 10, 2014.


We affirm the judgments as modified.




                                              Jeff Rose, Chief Justice

Before Chief Justice Rose, Justices Goodwin and Field

Modified and, as Modified, Affirmed

Filed: June 21, 2016

Do Not Publish




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