Alan Dean Outfleet v. The State of Texas--Appeal from 198th Judicial District Court of Kerr County

MEMORANDUM OPINION
No. 04-06-00647-CR
Alan Dean OUTFLEET,
Appellant
v.
The State of TEXAS,
Appellee
From the 198th Judicial District Court, Kerr County, Texas
Trial Court No. B-05-252
Honorable Karl Prohl, Judge Presiding

Opinion by: Rebecca Simmons, Justice

 

Sitting: Catherine Stone, Justice

Phylis J. Speedlin, Justice

Rebecca Simmons, Justice

 

Delivered and Filed: September 12, 2007

 

AFFIRMED IN PART; REFORMED IN PART AND AFFIRMED AS REFORMED

Appellant Alan Dean Outfleet entered a plea of no contest to four counts of indeceny with a child by contact and was found guilty by the trial court. Outfleet was subsequently sentenced to twenty years confinement in the Institutional Division of the Texas Department of Criminal Justice on counts one and two and ten years confinement on counts three and four. The trial court further ordered counts one, two and three to run consecutively and that count four run concurrent to the first three counts. Outfleet appeals the trial court's written cumulation order and asserts a claim of ineffective assistance of counsel.

Factual Background

On July 7, 2006, Appellant Alan Outfleet entered a plea of no contest on four charges of indecency with a child. After finding Outfleet guilty on all counts, the trial court ordered a pre-sentence investigation (PSI) report and reset the matter for sentencing. On August 14, 2006, during the punishment phase of the trial, Outfleet's daughter, M.M.O., testified that Outfleet had continually engaged in sexual contact with her beginning when she was four or five years old. M.M.O. also testified that her sister, M.V.O., was abused during the same time period. The PSI report was admitted into evidence over defense counsel's objection to the hearsay statements contained within the report.

At the end of the hearing, the trial court orally pronounced Outfleet's sentence - that he be confined to the Institutional Division of the Department of Criminal Justice for a period of twenty years on counts one and two and for a period of ten years on counts three and four. The trial court further ordered that counts one, two and three run consecutively, while count four was to run concurrent with the first three counts. The following day, the trial court signed the judgment which contained a cumulation ("stacking") order which failed to stipulate the order in which the consecutive sentences for counts one, two and three were to be served. As such, a variance exists between the oral pronouncement of punishment and the written order.

On appeal, Outfleet requests this court reverse the judgment of the trial court and remand the matter for a new trial on punishment. In the alternative, Outfleet argues the judgment should be reformed to reflect concurrent, rather than consecutive sentences. Outfleet also asserts he received ineffective assistance of counsel. We modify the trial court's order to comply with the oral pronouncement of sentence and affirm the judgment as modified.

Valid Cumulation Order

Outfleet contends the trial court "failed to enter any type of valid cumulation order" containing the requisite specificity to adequately inform Outfleet and the Institutional Division of the Texas Department of Criminal Justice as to which sentence was to run first and when the next prison sentence was to commence.

A. Consecutive Sentences and Drafting the Judgment

"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." Tex. Code Crim. Proc. Ann. art. 42.08(a) (Vernon 2006). If multiple sentences are imposed, it is within the trial court's discretion to order those sentences served either consecutively or concurrently. Id. Once a court determines the sentences are to run consecutively, the court must orally pronounce the sentence in the defendant's presence to ensure that he is adequately apprised of his punishment and the "stacking" of sentences. Tex. Code Crim. Proc. Ann. art. 42.03 1(a) (Vernon 2003); Ex parte Madding, 70 S.W.3d 131, 136 (Tex. Crim. App. 2002). A trial court's pronouncement of sentence is oral, while the judgment, including the sentence assessed, is merely the written declaration of the pronouncement. Tex. Code Crim. Proc. Ann. art. 42.01 1 (Vernon 2005); Madding, 70 S.W.3d at 135.

Additionally, article 42.01 mandates that a written judgment pursuant to article 42.08 provide whether the defendant's sentence is to run cumulatively or consecutively with any other sentence imposed. Id. at 1(19); Tex. Code Crim. Proc. Ann. art. 42.08 (Vernon 2006). A valid cumulation order specifically describes the previous conviction(s) and the order in which the sentences are to be served. Ex parte San Migel, 973 S.W.2d 310, 311 (Tex. Crim. App. 1998). Thus, a trial court must first announce the cumulation order at the punishment hearing, in the presence of the defendant, so as to inform the defendant of his punishment and second, file a written cumulation order informing the penal institution of the order in which the sentences are to be served. See Madding, 70 S.W.3d at 135-36; Coffey v. State, 979 S.W.2d 326, 328 (Tex. Crim. App. 1998).

B. Specificity Requirements

The trial court in the instant case made both an oral pronouncement of the accumulation of sentences at the punishment hearing and included a written cumulation order in the judgment issued the following day. Outfleet argues the cumulation order contained in the oral pronouncement was invalid because it failed to contain the recommended elements for specificity and therefore failed to adequately apprise him of his punishment. See San Migel, 973 S.W.2d at 311.

It is well established that cumulation orders containing fewer than the recommended elements may be upheld. See Banks v. State, 708 S.W.2d 460, 461 (Tex. Crim. App. 1986). In the instant case, Outfleet was convicted of four separate counts of indecency with a child, all of which were included in the Kerr County cause number B-05-252 and tried together on July 7, 2006. Moreover, the same trial court assessed punishment on each count, in Outfleet's presence, and ordered that count two was to follow count one, count three was to follow counts one and two, and count four was to run concurrently with counts one, two and three. See Tex. Code. Crim. Proc. Ann. art. 42.03 1(a); Coffey, 979 S.W.2d at 328 (oral pronouncement controls over written judgment). Accordingly, the oral pronouncement was sufficient to notify Outfleet of the trial court's decision to cumulate the sentences for the first three counts of his conviction.

C. Interpreting the Language of the Oral Pronouncement

Outfleet further contends a plain reading of the oral pronouncement at the punishment proceeding indicates the trial court intended to have counts two and three served concurrently rather than consecutively. He argues that the trial court's ruling that count three was to run "consecutive to counts one and two" means count three is to be served "consecutive" to count one, but concurrent with count two. We disagree.

An examination of the record indicates the trial court's articulation of sentencing was not ambiguous, nor was it unclear with respect to the sentences running either concurrently or consecutively. Stokes v. State, 688 S.W.2d 539, 541-42 (Tex. Crim. App. 1985) (holding that an appellate court uses a common sense interpretation of the order, as well as reading the order "as a whole and the phraseology therein construed together"). Each count stipulates a confinement in terms of years, whether that sentence is concurrent or consecutive, and in which order consecutive sentences are to be served. Specifically, the trial court ordered that count three was consecutive to the sentences imposed on counts one and two. The trial court clearly intended the ten year sentence in count three to follow the forty year confinement imposed for counts one and two. This interpretation is further enforced by the sentencing language of count four wherein the trial court ordered count four to run concurrently with counts one, two and three.

Outfleet further contends the written cumulation order is void because it fails to stipulate which prison sentence would begin to run first, when that sentence would cease to operate, and when the next consecutive prison sentence would commence. We disagree.

The oral pronouncement contained sufficient information to allow the trial court's clerk to formulate the written order. In this case, there was a clerical error in that the written judgment did not reflect the oral pronouncement. "When there is a conflict between the oral pronouncement of sentence and the sentence in the written judgment, the oral pronouncement controls." Taylor v. State, 131 S.W.3d 497, 500 (Tex. Crim. App. 2004) (citing Thompson v. State, 108 S.W.3d 287, 290 (Tex. Crim. App. 2003)). Because the written sentence or order simply memorializes the oral pronouncement, only the oral pronouncement is appealable. Coffey, 979 S.W2d at 328. A common sense interpretation of the trial court's order provides that Outfleet was to serve his sentences consecutively: count two was to follow count one and count three to follow count two. Stokes, 688 S.W.2d at 541-42.

C. Modification of Judgment

When the oral pronouncement of punishment specifically describes the order in which consecutive sentences are to be served and provides sufficient evidence to modify the written judgment, an appellate court may reform the written order to reflect the record of the oral pronouncement at sentencing. Tex. R. App. P. 43.2(b). Because the oral pronouncement specifically provides the order in which Outfleet's sentences are to be served, the judgment should be modified to accurately reflect the punishment of consecutive sentences ordered by the trial court. See Banks, 708 S.W.2d at 462. See also Storr v. State, 126 S.W.3d 647, 654-55 (Tex. App.-- Houston [14th Dist.] 2004, pet. ref'd). We, therefore, modify the order of the trial court as follows:

1. On count one of the indictment, Outfleet is sentenced to confinement in the Institutional Division of the Texas Department of Criminal Justice for a period of twenty years;

 

2. On count two of the indictment, Outfleet is sentenced to confinement in the Institutional Division of the Texas Department of Criminal Justice for a period of twenty years; to run consecutive with count one;

 

3. On count three of the indictment, Outfleet is sentenced to confinement in the Institutional Division of the Texas Department of Criminal Justice for a period of ten years, to run consecutive with counts one and two;

 

4. On count four of the indictment, Outfleet is sentenced to confinement in the Institutional Division of the Texas Department of Criminal Justice for a period of ten years, to run concurrent with counts one, two and three of the indictment.

 

As modified, we affirm the order of the trial court.

Ineffective Assistance of Counsel

The Sixth and Fourteenth Amendments of the U.S. Constitution and Article I, Section 10 of the Texas Constitution guarantee the right to effective assistance of counsel at trial. U.S. Const. amends. VI, XIV; Tex. Const. art. I 10. On appeal, Outfleet asserts two instances of ineffective assistance of counsel: trial counsel failed to object to the lack of forty-eight hours' notice for the PSI report and trial counsel failed to object to a lack of notice of extraneous evidence.

A. Strickland

To prove ineffective assistance of counsel, Outfleet must demonstrate by a preponderance of the evidence that: (1) trial counsel's performance was deficient because it fell below an objective standard of reasonableness; and (2) there is a reasonable probability that but for counsel's deficiencies, the result of the proceeding would have been different. See Strickland v. Washington, 466 U.S. 668, 695 (1984); Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999) (applying the Strickland standards at noncapital sentencing proceedings).

We review the record in light of all the circumstances, but are highly deferential to trial counsel and presume counsel's actions fell within the range of reasonable and professional assistance. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). To defeat the presumption of reasonable assistance of counsel, the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813-14 (Tex. Crim. App. 1999) (reversing appellate court's finding of ineffective assistance of counsel because the record was insufficient to rebut the strong presumption of reasonable professional services). The fact that another attorney might have pursued a different course of action, or tried the case differently, does not establish ineffective assistance of counsel. Dickerson v. State, 87 S.W.3d 632, 637 (Tex. App.--San Antonio 2002, no pet.). Failure to satisfy either prong of Strickland will defeat a claim for ineffective assistance. Thompson, 9 S.W.3d at 813.

B. Forty-Eight Hour Notice Requirement for the PSI Report

Outfleet asserts the failure of counsel to object to the lack of forty-eight hours' notice for the PSI report constitutes ineffective assistance. Article 42.12, section 9(d) reads: "Unless waived by the defendant, at least 48 hours before sentencing a defendant, the judge shall permit the defendant or his counsel to read the presentence report." Tex. Code Crim. Pro. art. 42.12 9(d) (Vernon 2006). On appeal, Outfleet does not offer any evidence as to when he or trial counsel obtained the report. Without a developed record, we presume trial counsel had sufficient notice and any failure to object was part of a sound trial strategy. Thompson, 9 S.W.3d at 814. Importantly, however, the record clearly supports that trial counsel had knowledge of the PSI report and its contents, evidenced by his argument to the trial court: "There's a lot of hearsay in there, and some of those witnesses may not be here today." Additionally, trial counsel's reference to specific pages during his cross-examination of the report's author demonstrated his familiarity with the report. Because Outfleet failed to show either affirmative proof in the record that trial counsel's failure to object to a violation of article 42.19 was not a reasonable trial strategy or how an objection would affect the ultimate result of the proceeding, we overrule this issue on appeal.

C. Extraneous Act Evidence

Outfleet next complains of trial counsel's failure to object to lack of notice regarding his daughter M.M.O.'s extraneous act testimony. During the State's case, the following testimony was offered:

State: What was the first memory that you have of something like this happening to you?

 

M.M.O.: The first memory I have, I was four years old. . . .

 

The prosecutor interrupted M.M.O., specifically limiting her testimony to the acts currently on trial. After cross-examination, the trial court, sua sponte, asked the witness about the incident that occurred when she was four years old.

A trial court may consider extraneous act evidence in assessing punishment. See Tex. Code Crim. Proc. Ann. art 37.07 3(a)(1) (Vernon 2006). However, if properly requested, the defendant is entitled to notice of the State's intent to use such evidence. Henderson v. State, 29 S.W.3d 616, 624-25 (Tex. App.--Houston [1st Dist.] 2000, pet. ref'd). In this case, trial counsel made a proper request and the State responded by submitting a list of ninety-nine extraneous acts, but did not include the complained-of act. The State did, however, offer the same extraneous act evidence through the PSI report, which the trial court could properly consider in assessing punishment. Smith v. State, 227 S.W.3d 753, 763 (Tex. Crim. App. 2007) (concluding that a trial court could consider extraneous acts not proven beyond a reasonable doubt, if the PSI provided some basis from which the trial court could rationally infer that the defendant was responsible).

Outfleet fails to show trial counsel lacked a reasonable strategy in not objecting to the lack of notice regarding the PSI report or M.M.O.'s testimony of the extraneous act. The record lacks any evidence that trial counsel would have acted differently with advance notice. See Autry v. State, 27 S.W.3d 177, 182 (Tex. App.--San Antonio 2000, pet. ref'd). Moreover, Outfleet does not explain how this testimony, which was contained in the PSI, affected the outcome of this proceeding. Accordingly, we overrule Outfleet's second issue on appeal.Conclusion

Because the written judgment varied from the oral pronouncement of Outfleet's punishment, we reform the written judgment to reflect the oral pronouncement of judgment. In addition, Outfleet failed to meet his burden of proving ineffective assistance of counsel under either prong of Strickland. We therefore affirm the judgment of the trial court as modified.

 

Rebecca Simmons, Justice

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