Billy Wayne Walls v. The State of Texas--Appeal from 102nd District Court of Red River County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-04-00009-CR

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BILLY WAYNE WALLS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 102nd Judicial District Court

Red River County, Texas

Trial Court No. 111-CR-00199

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Carter

MEMORANDUM OPINION

Pursuant to a negotiated plea agreement, Billy Wayne Walls pled guilty in May 2002 and was placed on deferred community supervision for burglary of a habitation. See Tex. Pen. Code Ann. 30.02(a)(1) (Vernon 2003). Four months later, the State filed a motion to adjudicate Walls' guilt. At the hearing on the motion, Walls pled "true" to violating his community supervision and admitted that he had been convicted in Oklahoma of a new criminal offense (unlawfully possessing a firearm while a felon). (The State also presented witness testimony that Walls committed kidnapping and rape in Oklahoma.) Based on Walls' plea and the evidence presented, the trial court found Walls violated the conditions of his community supervision, adjudicated his guilt, revoked the community supervision, and assessed Walls' punishment at life imprisonment. The trial court further ordered that Walls not begin serving his sentence until he had first served the Oklahoma sentence. See Tex. Code Crim. Proc. Ann. art. 42.08(a) (Vernon Supp. 2004).

On appeal to this Court, Walls raises several points of error: (1) whether his life sentence is excessive and disproportionate under Article I, Section 13 of the Texas Constitution, (2) whether the trial court's judgment is void because it fails to comply with the requirements of Article 42.01 of the Texas Code of Criminal Procedure, and (3) whether he received ineffective assistance of counsel at the adjudication hearing. We also address an issue concerning reformation of the judgment. We affirm.

I. The Sentence Is Not Disproportionate

In his first point of error, Walls contends the trial court's imposition of a life sentence, when "stacked" on his twenty-eight-year sentence for the Oklahoma charges, constitutes excessive and disproportionate punishment. He asserts that the trial court erred by considering extraneous offenses when determining his sentence.

The indictment charged Walls with burglary of a habitation with intent to commit theft. See Tex. Pen. Code Ann. 30.02(a)(1). That offense is generally a second degree felony, the punishment for which is between two and twenty years' imprisonment and a fine not to exceed $10,000.00. Tex. Pen. Code Ann. 12.33, 30.02(c)(2) (Vernon 2003). The indictment further alleged that Walls had previously and finally been convicted of two prior, sequential felonies.

If it is shown on the trial of a felony offense other than a state jail felony punishable under Section 12.35(a) that the defendant has previously been finally convicted of two felony offenses, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final, on conviction he shall be punished by imprisonment in the institutional division of the Texas Department of Criminal Justice for life, or for any term of not more than 99 years or less than 25 years.

Tex. Pen. Code Ann. 12.42(d) (Vernon Supp. 2004).

Our proportionality analysis under Article I, Section 13 of the Texas Constitution is guided by "(1) the gravity of the offense and the harshness of the penalty; (2) the sentences imposed on other criminals in the same jurisdiction; and (3) the sentences imposed for commission of the same crime in other jurisdictions." Alberto v. State, 100 S.W.3d 528, 530 (Tex. App. Texarkana 2003, no pet.) (referencing Solem v. Helm, 463 U.S. 277, 292 (1983); Simmons v. State, 944 S.W.2d 11, 15 (Tex. App. Tyler 1996, pet. ref'd)). "Only if we find that the sentence is grossly disproportionate to the offense will we then consider the remaining factors of the Solem test and compare the sentence received to sentences for similar crimes in the same jurisdiction and to sentences for the same crime in other jurisdictions." Alberto, 100 S.W.3d at 530 (citing McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir.1992)). Traditionally, as long as the punishment assessed is within the range prescribed by the Texas Legislature in a valid statute, the punishment is not excessive, cruel, or unusual. See, e.g., Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973); Samuel v. State, 477 S.W.2d 611, 614 (Tex. Crim. App. 1972).

First, Walls' sentence of imprisonment for life falls within the statutory range given the enhancement allegations applicable in this case. We must, therefore, presume the sentence was not excessive, cruel, or unusual. See Jordan, 495 S.W.2d at 952. Second, a trial court may permit both the State and the defendant to admit evidence about

any matter the court deems relevant to sentencing, including but not limited to the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried, and, notwithstanding Rules 404 and 405, Texas Rules of Evidence, any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act.

Tex. Code Crim. Proc. Ann. art. 37.07, 3(a)(1) (Vernon Supp. 2004) (emphasis added). The trial court did not err by considering as part of its sentencing decision evidence of any extraneous offenses which the court believed, beyond a reasonable doubt, were committed by Walls. //

Third, Walls did not present this issue to the trial court and, therefore, failed to preserve it for our review. See Tex. R. App. P. 33.1(a); Jackson v. State, 989 S.W.2d 842, 844 (Tex. App. Texarkana 1999, no pet.). However, even if Walls had preserved the issue for review, we find nothing in the record to compare the sentences imposed on persons in Texas with sentences imposed against defendants in other jurisdictions who committed a similar offense. Cf. Fluellen v. State, 71 S.W.3d 870, 873 (Tex. App. Texarkana 2002, pet. ref'd).

II. The Judgment is Not Void if it Fails to Include Findings about Punishment Enhancements

Walls next contends the trial court's judgment adjudicating his guilt does not meet the requirements of Article 42.01 of the Texas Code of Criminal Procedure because the judgment does not include a finding that Walls was an habitual offender. Tex. Code Crim. Proc. Ann. art. 42.01 (Vernon Supp. 2004). Walls asks us to void the trial court's judgment and sentence.

The indictment alleged Walls had twice previously and sequentially been convicted of a felony offense in Texas. See Tex. Pen. Code Ann. 12.42(d) (habitual offender punishment). If proven at trial, these convictions would raise the minimum sentence for Walls' current offense from two years up to twenty-five years, and elevate the maximum punishment from twenty years' imprisonment to incarceration for life. Id. Walls made a written judicial confession as part of his original negotiated plea agreement; in the confession, he admitted that the enhancement allegations in the indictment were true and correct. However, the trial court's judgment following adjudication of Walls' guilt contains no explicit finding regarding the punishment enhancement allegations. This failure, according to Walls, should prevent him from receiving a sentence under an elevated punishment range. Walls asks us to void the judgment and sentence // and cites Jones v. State, 560 S.W.2d 673 (Tex. Crim. App. [Panel Op.] 1978), and Porter v. State, 757 S.W.2d 889, 891 (Tex. App. Beaumont 1988, no pet.), in support of his position.

In Jones, 560 S.W.2d at 674, the trial court revoked the defendant's community supervision for aggravated robbery and assessed a ten-year sentence. The trial court's first "judgment," which recorded the order of community supervision, lacked the statutorily required recitation of the sentence. Id. The trial court's second "judgment," revoking the defendant's community supervision, lacked several different requirements of Article 42.01, yet it did recite the sentence assessed. Id. The Texas Court of Criminal Appeals held that the two documents, when construed together, met the requirements of Article 42.01 and therefore constituted a valid judgment. Id.

In Porter, 757 S.W.2d at 891, the defendant complained that evidence of a Florida conviction was insufficient because the "judgment" did not reflect Porter's plea to the charge, as required by Article 42.01. See Tex. Code Crim. Proc. Ann. art 42.01, 1(3). The Beaumont court held the "failure to adhere to the requirements of article 42.01 does not render a conviction void, but merely voidable." Porter, 757 S.W.2d at 891. The court then went on to hold that "[s]uch failures are subject to reformation on direct appeal, but are not subject to collateral attack." Id.

Neither Jones nor Porter provide guidance in the case now before us. Both are factually distinguishable. In Jones, the Texas Court of Criminal Appeals was able to cobble together a complete "judgment" using pieces from two relevant documents. In Walls' case, neither the judgment that originally granted community supervision nor the judgment adjudicating guilt contain an explicit finding by the trial court that both of the enhancement allegations were true. Similarly, Porter sought to collaterally attack the validity of an out-of-state judgment. In the case now before us, Walls stipulated to having been twice previously convicted of a felony, as part of his 2002 guilty plea.

"The Code lists twenty-six items the judgment should reflect," Speth v. State, 6 S.W.3d 530, 532 (Tex. Crim. App. 1999), including the title and cause number of the case, the names of the attorneys involved, whether the defendant was represented by counsel, whether the case was tried to a jury, the date of the offense(s) and the degree of the offense(s) for which the defendant was convicted, the term of sentence, the date the judgment is entered, the date sentenced is imposed, and whether the court made an affirmative finding that a deadly weapon was used during the commission of the offense. See Tex. Code Crim. Proc. Ann. art. 42.01, 1. Article 42.01 does not require that the judgment include specific findings regarding the punishment enhancement allegations in the indictment. See generally Tex. Code Crim. Proc. Ann. art 42.01, 1. Moreover, Walls' judicial confession provided sufficient evidence to support the trial court's decision to sentence Walls within the range provided under Article 12.42(d) of the Texas Penal Code. We overrule Walls' point of error.

III. We Lack Jurisdiction to Consider Whether Walls Received Ineffective Assistance of Counsel

In his final point of error, Walls contends he received ineffective assistance of counsel during the hearing on whether to proceed to an adjudication of guilt. Article 42.12, Section 5(b) of the Texas Code of Criminal Procedure prohibits Walls from raising this issue on direct appeal. See Tex. Code Crim. Proc. Ann. art. 42.12, 5(b) (Vernon Supp. 2004); Phynes v. State, 828 S.W.2d 1, 2 (Tex. Crim. App. 1992) (appellant may not challenge denial of access to attorney on direct appeal of trial court's decision to adjudicate guilt).

However, even if we had jurisdiction to consider Walls' claim of ineffective assistance, we cannot say the record supports a finding that his trial court's performance fell below an objective standard of reasonableness, or that, but for counsel's alleged errors, the outcome of the proceedings would have been different. Walls contends his trial counsel failed to call any witnesses to testify on his behalf and failed to cross-examine the State's witnesses. The record, however, suggests Walls told his trial counsel that there were no questions to ask of the State's witnesses during the revocation hearing. Walls has not directed our attention to any place in the record that would support a conclusion that, but for counsel's alleged failure to cross-examine the State's witnesses and call witnesses on Walls' behalf, the hearing's outcome would have been different. To the contrary, Walls pled "true" to committing a new felony in Oklahoma. Thus, even if we had jurisdiction to consider Walls' claim of ineffective assistance, Walls has not made the showing required by Strickland v. Washington, 466 U.S. 668 (1984), and Hernandez v. State, 726 S.W.2d 53 (Tex. Crim. App. 1986).

IV. The Judgment Must be Reformed to Reflect the Oral Pronouncement of Sentence

Finally, the State's brief on appeal addresses an issue not directly raised by Walls. At the sentencing hearing, the trial court made the following ruling:

The defendant is presently serving a term in the Oklahoma Department of Corrections out of the District Court of McCurtain County, in the State of Oklahoma, Cause No. CF2002-238. The date of this judgement appears to be--well, at least it was filed in the Clerk's office on January 21st, of 2003. The judgement on its face reflects that the Judge of the District Court there entered his order on January 17, 2003.

It will be the order of this Court that the life in prison term as imposed in each of these cases will not commence until such time that the defendant has concluded his twenty-eight year sentence as imposed by the State of Oklahoma. The State of Texas will lodge the appropriate documents, documentation, for at the conclusion of this term in the [S]tate of Oklahoma, where he will be transferred to the Texas Department of Criminal Justice where he will serve the rest of his life.

The trial court's written judgment, however, does not properly reflect its oral "stacking" order. The State asks us to reform the judgment to reflect the trial court's oral pronouncement.

"A defendant's sentence must be pronounced orally in his presence." Taylor v. State, 131 S.W.3d 497, 500 (Tex. Crim. App. 2004). "The judgment, including the sentence assessed, is just the written declaration and embodiment of that oral pronouncement." Id. "When there is a conflict between the oral pronouncement of sentence and the sentence in the written judgment, the oral pronouncement controls." Id.

"The recommended elements of a cumulation order are: 1) the 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." Edwards v. State, 106 S.W.3d 833, 845 (Tex. App. Dallas 2003, pet. ref'd) (referencing Stokes v. State, 688 S.W.2d 539, 540 (Tex. Crim. App. 1985)). In this case, the trial court's oral pronouncement lacks only the nature of the prior conviction. However, earlier, the trial court noted that Walls had pled "true" to having been convicted of "the offense of first degree robbery with a dangerous weapon" on January 17, 2003. Therefore, while the trial court did not neatly group all the elements of a proper cumulation order together, the record is clear that the trial court's description was substantially and sufficiently specific to give notice to both Walls and the Texas Department of Corrections which sentences in this case the trial court intended to be cumulated. // See Stokes, 668 S.W.3d at 540 (cumulation order sufficient to give defendant notice); Ex parte Lewis, 414 S.W.2d 682, 683 84 (Tex. Crim. App. 1967) (cumulation order sufficient to give defendant notice).

We have the authority to correct and reform the judgment of the court below when the record before us contains the necessary information to make such corrections. See, e.g., Yebio v. State, 87 S.W.3d 193, 196 (Tex. App. Texarkana 2002, pet. ref'd) (reforming judgment to reflect concurrent rather than cumulative sentences). The trial court's written judgment does not comport with its oral pronouncement. Reformation is required. Accordingly, we reform the trial court's judgment to include its oral cumulation order.

As reformed, the trial court's judgment is affirmed.

Jack Carter

Justice

Date Submitted: June 15, 2004

Date Decided: June 29, 2004

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