GARY EUGENE HENKEL v. THE STATE OF TEXAS--Appeal from 398th District Court of Hidalgo County

NUMBER 13-03-112-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

GARY EUGENE HENKEL, Appellant,

v.

STATE OF TEXAS, Appellee.

On appeal from the 398th District Court

of Hidalgo County, Texas.

MEMORANDUM OPINION //

Before Chief Justice Valdez, and Justices Hinojosa, and Castillo

Memorandum Opinion by Justice Castillo

Appellant Gary Eugene Henkel appeals his conviction for indecency with a child. // We affirm in part and remand in part.

I. BACKGROUND

On February 7, 2001, the State of Texas charged Henkel with two counts of aggravated assault of a child and two counts of indecency with a child. Following Henkel's guilty plea on April 17, 2001, the trial court deferred adjudication on counts 3 and 4, the two indecency with a child counts, and left the remaining two counts unadjudicated. The trial court imposed a fine of $500 on count 3 and placed Henkel on community supervision for a term of ten years on both counts.

A. Terms and Conditions for Count 3

The terms and conditions of Henkel's community supervision for count 3 required that he: (1) avoid injurious or vicious habits (condition (B)); (2) work 240 hours at a community service project for an organization approved by the Judge and designated by the Hidalgo County Community Supervision and Corrections Department at the rate of eight (8) hours per week (condition (O)); (3) not go in, on, or within 500 feet of a premises where children commonly gather, including a school, day-care facility, playground, public or private youth center, public swimming pool, or video arcade facility (condition (Q)); (4) attend treatment or counseling sessions for sex offenders, report to the sex offender program supervision officer and comply with the treatment, and obey all rules and regulations of the program (condition (R)); and (5) pay a $5.00 supervision fee per month (condition (T)).

B. Terms and Conditions for Count 4

The terms and conditions of Henkel's community supervision for count 4 required that he: (1) avoid injurious or vicious habits (condition (B)); (2) participate in the Hidalgo County Education and Employment Program, submit to scholastic testing, academic/vocational counseling, and achieve an educational skill level equal to or greater than the average skill level of students who have completed the sixth grade in public schools and remain in the program until completed or further order of the court (condition (I)); (3) not go in, on, or within 500 feet of a premises where children commonly gather, including a school, day-care facility, playground, public or private youth center, public swimming pool, or video arcade facility (condition (K)); and (4) attend treatment or counseling sessions for sex offenders, report to the sex offender program supervision officer and comply with the treatment, and obey all rules and regulations of the program (condition (L)).

C. Motions to Adjudicate Guilt

On October 18, 2002, the State filed separate motions to adjudicate guilt as to count 3 and count 4. The State alleged that Henkel violated the terms and conditions of his community supervision for count 3 by: (1) not avoiding injurious or vicious habits; (2) being $150 in arrears in payment of the fine; (3) being $225 delinquent in the payment toward court appointed counsel fees; (4) being $117.25 delinquent toward payment of his court costs; (5) being $392 delinquent toward payment of the monthly fee; (6) not performing 240 hours community service; (7) going in, on, or within a premises where children commonly gather; (8) failing to attend the sex offender program and/or comply with the treatment and/or obey all rules and regulations; and (9) being $80 delinquent in paying the sex offender fee.

As to count 4, the State alleged that Henkel violated the terms and conditions of his community supervision by: (1) not avoiding injurious or vicious habits; (2) failing to attend and comply with the rules of the Education and Employment Program; (3) going in, on, or within 500 feet of a premises where children commonly gather; and (4) failing to attend the sex offender program.

D. The Testimony

Henkel's counsel announced ready. The trial court took judicial notice of the file and held an evidentiary hearing. The State's sole witness was Henkel's probation officer, Sarah Cervantes. Henkel testified in his own defense and called four witnesses, including his sister, Susan Post, his mother, Rosa Frost, his girlfriend, Mary Flores, and her mother, Rosario Flores.

Cervantes testified that Henkel tested positive for marihuana. He was assigned community service work and did not perform it. She made a home visit to his reported residence and told him he must move because the home was within 500 feet of a school playground. She testified that Henkel was assigned to a sex offender treatment program and missed several sessions. She was aware of Henkel's financial problems but he was able to and capable of working. Cervantes also testified that Henkel made efforts to keep his payments current but they were not enough.

Henkel admitted that he signed the form containing the terms and conditions of his community supervision. He admitted that the form contained the requirement that he perform eight hours of community service each week with a projected completion date of December 31, 2001. He admitted he did not comply. He believed the term "complete by" meant he could complete the hours by the date shown and not have a problem. Regarding the condition that he not reside within 500 feet of a premises where children gather, Henkel admitted that he was aware of the condition and that he lived close to a school and playground. He testified he moved into the residence because he was evicted from his former residence and had no place to live. He testified that he could have lived with his sister, but Cervantes did not approve. Henkel testified that he reported his change of address to the police and to Cervantes. Cervantes told him to move. Regarding the delinquency of his fees and fine, Henkel testified he explained to Cervantes that he had difficulty finding work because of the charged offenses and had problems finding transportation to work. At the time, he worked about thirty hours a week during the graveyard shift at a restaurant. He was saving money because his girlfriend was pregnant and he wanted to meet his financial obligations toward the child including finding a suitable place to live. He testified he made payments. He admitted he did not call Cervantes to tell her he could not pay but, when he reported in person, he did tell her the reasons he had not paid.

Henkel testified he also had problems with transportation to the sex offender classes. Post, his sister, testified that Henkel could have lived with her and that she lived near a school but far enough away to comply with his conditions. Post drove him to his sex offender classes and to meetings with his probation officer because he had problems with transportation. When he could not make it to his classes because of transportation problems, Henkel called his probation officer.

Frost, Henkel's mother, testified that she recently loaned him money to move out of his current residence. Rosario Flores testified she allowed Henkel, her daughter's boyfriend, to live in her home near a Catholic school after he was evicted. She provided transportation for Henkel to report to his probation officer and classes. His check stubs were at times $50 because of child support deductions. A probation officer came by to inspect the house. Mary Flores testified that she made Henkel's payments toward his fines and she went with him to his classes.

E. The Adjudication of Guilt and Assessment of Punishment

After hearing the evidence, the trial court adjudicated guilt. The trial court found Henkel violated the conditions B, O, Q, R, and T in count 3 and conditions B, I, K, and L in count 4. The following ensued:

THE COURT: Having made this [sic] findings on each count, the Court is going to sentence it's going to be the judgment of the Court you be confined in the Texas Department of Criminal Justice for a period of 20 years. The Court is going to have these sentences run concurrent. The Court is going to grant you time for time served. Any further evidence?

[PROSECUTOR]: No, Your Honor.

[PROBATION OFFICER]: No, Your Honor.

[DEFENSE COUNSEL]: Nothing further, Your Honor.

THE COURT: You may be excused. The Court is going to order the sheriff of Hidalgo County have and recover of you until they are able to escort you to the Texas Department of Corrections for a period of 20 years.

II. ISSUES

In his first issue, Henkel asserts we have jurisdiction even though he filed a general notice of appeal. In his second and third issues, he asserts he was denied effective assistance of counsel. In his fourth issue, he complains of the denial of his right to allocution. In his fifth and sixth issues, he complains of the variance between the trial court's oral findings of violations of his community supervision conditions and written findings in the judgment.

III. JURISDICTION

In his first issue, Henkel asserts that we have jurisdiction over his appeal even though he filed a general notice of appeal. The State concedes that this Court has jurisdiction to consider Henkel's challenges to the process by which he was sentenced after adjudication of his guilt in his second and third issues, but argues we have no jurisdiction over Henkel's fifth and sixth issues. Because the parties do not agree on the bases for our jurisdiction, we review the nature of the proceedings before us.

A. Adjudication of GuiltThere are two kinds of community supervision. Regular community supervision means placing a defendant under a continuum of programs and sanctions for a specified period after conviction and sentencing, during which period imposition of sentence is suspended in whole or in part. Deferred adjudication community supervision means placing a defendant under a continuum of programs and sanctions for a specified period without adjudication of guilt and, consequently, before sentencing. See Tex. Code Crim. Proc. Ann. art. 42.12, 2(2)(A) (Vernon Supp. 2004-05). Imposition and revocation of both regular and deferred adjudication community supervision proceed in the same way through imposition of terms and conditions, notice of revocation, and revocation hearing. Tex. Code Crim. Proc. Ann. art. 42.12, 3, 5(b), 21, 23 (Vernon Supp. 2004-05).

A defendant must appeal the trial court s imposition of deferred adjudication community supervision at the time it is ordered. Tex. Code Crim. Proc. Ann. art. 44.01(j) (Vernon Supp. 2004-05); Nix v. State, 65 S.W.3d 664, 667 (Tex. Crim. App. 2001) (en banc); Manuel v. State, 994 S.W.2d 658, 661-62 (Tex. Crim. App. 1999). The process for revoking deferred adjudication community supervision is the same as revocation proceedings in regular community supervision cases. See Tex. Code Crim. Proc. Ann. art. 42.12, 5(b), 21, 23(a) (Vernon Supp. 2004-05). However, the resemblance between deferred adjudication and regular community supervision revocation proceedings ends there. The distinction arises from the trial court s deferral of a finding of guilt when imposing deferred adjudication community supervision. See Tex. Code Crim. Proc. Ann. art. 42.12 5(b) (Vernon Supp. 2004-05). Appeal from the revocation of deferred adjudication community supervision is strictly limited by statute. Id.

B. The Adjudication Decision

The code of criminal procedure expressly denies a defendant the right to appeal a trial court s adjudication decision:

On violation of a condition of community supervision imposed under Subsection (a) of this section, the defendant may be arrested and detained as provided in Section 21 of this article. The defendant is entitled to a hearing limited to the determination by the court of whether it proceeds with an adjudication of guilt on the original charge. No appeal may be taken from this determination. After an adjudication of guilt, all proceedings, including assessment of punishment, pronouncement of sentence, granting of community supervision, and defendant's appeal continue as if the adjudication of guilt had not been deferred.

Id. (emphasis added). Thus, revocation of deferred adjudication community supervision involves a component that proceedings revoking regular community supervision do not: the adjudication decision. Issa v. State, 826 S.W.2d 159, 161 (Tex. Crim. App. 1992) (per curiam) (en banc). Section 5(b) of article 42.12 prohibits a defendant who has been adjudicated guilty of the original charge from raising on appeal contentions of error in the adjudication decision. Connolly v. State, 983 S.W.2d 738, 741 (Tex. Crim. App. 1999). The court of criminal appeals has made it clear, given the plain meaning of section 5(b) of article 42.12, that an appellant whose deferred adjudication probation has been revoked and who has been adjudicated guilty of the original charge may not raise on appeal contentions of error in the adjudication-of-guilt process. Id. Included within the term adjudication-of-guilt process are challenges to sufficiency of the notice contained in the terms and conditions of deferred adjudication probation, adequacy of the State s notice of violation, and sufficiency of the evidence to support the trial court s revocation decision. See id. (and cited cases). We do not dismiss for want of jurisdiction appeals to the trial court s adjudication determination. See Bayless v. State, 91 S.W.3d 801, 805-06 (Tex. 2002). Rather, pursuant to the prohibition in section 5(b) of article 42.12, we overrule any issue challenging the trial court s adjudication determination, just as we would any other issue that the appellant has procedurally waived. Tex. Code Crim. Proc. Ann. art. 42.12, 5(b) (Vernon Supp. 2004-05); see Allen v. State, 84 S.W.3d 413, 418 (Tex. App. Fort Worth 2002, no pet.) (Dauphinot, J., dissenting).

C. The Assessment of Punishment and Pronouncement of Sentence

Once the trial court adjudicates the guilt of a defendant on deferred adjudication community supervision, the assessment of punishment, pronouncement of sentence, and the defendant s appeal continue as if the adjudication of guilt had not been deferred. Tex. Code Crim. Proc. Ann. art. 42.12, 5(b) (Vernon Supp. 2004-05). Thus, a defendant may appeal from a judgment adjudicating guilt when the issues raised by the appeal relate not to the adjudication decision but to the punishment phase. See id; see also Kirtley v. State, 56 S.W.3d 48, 51-52 (Tex. Crim. App. 2001) (addressing claim of ineffective assistance of counsel at punishment phase following adjudication of guilt). We turn now to the issues raised in Henkel's appeal.

D. Our Jurisdiction

On December 23, 2002, Henkel filed timely notices of appeal that invoked our jurisdiction. The rules of appellate procedure governing how appeals proceed in criminal cases were amended effective January 1, 2003. This Court applies those amended rules of appellate procedure to all cases on appeal on the effective date of the amendments. Chavez v. State, 139 S.W.3d 43, 47 (Tex. App. Corpus Christi 2004, pet. granted) // . However, this is not a plea bargain case. Thus, the provisions of rule 25.2 do not apply. See Dears v. State, Nos. PD-1963-03, PD-1964-03, PD-1965-03, 2005 Tex. Crim. App. LEXIS 111, at *8 (Tex. Crim. App. Jan. 26, 2005). We agree with the State that we have jurisdiction to review issues unrelated to the adjudication of Henkel's guilt. Kirtley, 56 S.W.3d at 51-52.

Regarding Henkel's fifth and sixth issues complaining of a variance between the trial court's oral pronouncement of the sentence and the judgment, we are authorized to: (1) modify the trial court's judgment and affirm it as modified, see Tex. R. App. P. 43.2(b); or (2) remand for the trial court to make fact determinations as to whether the written memorialization reflects what actually occurred. See Smith v. State, 801 S.W.2d 629, 633 (Tex. App. Dallas 1991, pet. ref'd.) (remanding for trial judge to make fact determinations as to whether order reflected what actually occurred; acknowledging that although determining whether error is clerical or judicial is question of law, court of appeals does not make fact determinations). Thus, we conclude we also have jurisdiction over Henkel's appeal, including his fifth and sixth issues. We sustain Henkel's first issue.

IV. ALLOCUTION

In his fourth issue, Henkel asserts that the trial court denied his constitutional, statutory and common law rights of allocution. The State responds, generally, that the issue is inadequately briefed.

In modern legal usage, "allocution" refers to a trial judge's asking a criminal defendant to "speak in mitigation of the sentence to be imposed." Eisen v. State, 40 S.W.3d 628, 632 (Tex. App. Waco 2001, no pet.). The word has come to denote the accused person's speech in mitigation of the sentence, rather than the judge's address asking the accused to speak. Id. Texas has long had a procedural rule implementing allocution in article 42.07 of the code of criminal procedure. See id; Tex. Code Crim. Proc. Ann. art. 42.07 (Vernon Supp. 2004-05). The current version of article 42.07 requires that before pronouncing sentence, the defendant shall be asked whether he has anything to say as to why the sentence should not be pronounced against him. Tex. Code Crim. Proc. Ann. art. 42.07 (Vernon Supp. 2004-05); Eisen, 40 S.W.3d at 632. The rule is designed to allow the defendant to bring to the court's attention legal bars to the imposition of punishment that may not be of record, specifically including a pardon, incompetency, and mistaken identity. Eisen, 40 S.W.3d at 635; see also Tex. Code Crim. Proc. Ann. art. 42.07 (Vernon Supp. 2004-05).

Here, neither side presented any additional evidence on punishment. Henkel filed a motion for reconsideration requesting that the trial court reconsider the sentence because of mitigating circumstances. In the motion, Henkel asserted as mitigating circumstances that:

[T]he sentence imposed in his case would cause a substantial hardship on his family, given the fact that he is their sole financial provider and his wife just gave birth to their newborn child. The family does not have any other means of income or support, and a sentence of 20 years would clearly jeopardize the family's social and economic stability.

Henkel has cited no authority in support of his state constitutional claims or explained how that protection differs from that provided by the federal constitution. Appellant has therefore waived his state constitutional claim. Narvaiz v. State, 840 S.W.2d 415, 432 (Tex. Crim. App. 1992) (en banc); see also Lagrone v. State, 942 S.W.2d 602, 614 (Tex. Crim. App. 1997) (en banc). Further, Henkel made no objection to the trial court, either at the time of sentencing or in any post-trial motion, on any grounds regarding his sentence or his alleged right of allocution. Even constitutional claims can be waived by failure to object. Smith v. State, 721 S.W.2d 844, 855 (Tex. Crim. App. 1986). To preserve an error for appellate review, a party must present a timely objection to the trial court, state the specific grounds for the objection, and obtain a ruling. Tex. R. App. P. 33.1(a). An appellant may not complain of an allocution error if he has failed to object or otherwise raise error in the trial court. Eisen, 40 S.W.3d at 637. Henkel's motion for new trial did not raise his federal constitutional claims. We conclude that Henkel has forfeited his state and federal constitutional complaints.

Even assuming that Henkel preserved error, his plea in mitigation in his motion for new trial does not advance any of the legal bars to the imposition of punishment that may not be of record. Specifically, Henkel has not shown his sentence could not be pronounced because of a pardon, incompetency, and mistaken identity. See Tex. Code Crim. Proc. Ann. art. 42.07 (Vernon Supp. 2004-05). In a subpart of his fourth issue, Henkel complains he was denied a punishment hearing. When a trial court finds that an accused has committed a violation as alleged by the State and adjudicates a previously deferred finding of guilt, the court then must conduct a second phase of trial to determine punishment. Issa, 826 S.W.2d at 161. A defendant preserves error on the denial of a request for a separate punishment hearing by objecting at the time of the denial, or in the absence of an opportunity to object, by filing a motion for new trial. Id; see also Hardeman v. State, 1 S.W.3d 689, 690 (Tex. Crim. App. 1999); Pearson v. State, 994 S.W.2d 176, 179 (Tex. Crim. App. 1999) (en banc). Here, the trial court asked if there was additional evidence and Henkel's counsel responded that there was not. Henkel did not ask to present evidence on punishment, did not object to the trial court's failure to ask him to present evidence on punishment, and did not file a motion for new trial assigning this error. Accordingly, on appeal, Henkel has forfeited his right to complain of the trial court's failure to conduct a separate punishment hearing. We overrule Henkel's fourth issue.

V. EFFECTIVE ASSISTANCE OF COUNSEL

In his second issue, Henkel asserts that his trial counsel failed to call any available witnesses to testify during the penalty phase. In his third issue, Henkel asserts he was denied effective assistance of counsel when his trial counsel failed to preserve, and thus waived, his allocution complaint.

A claim of ineffective assistance of counsel must be firmly supported in the record. McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996) (en banc). Whendetermining the validity of a defendant's claim of ineffective assistance of counsel, we must be highly deferential to trial counsel and avoid the distorting effects of hindsight. Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984). We presume counsel's performance was the result of sound or reasonable trial strategy. Strickland v. Washington, 466 U.S. 668, 688 (1984) (en banc); Stafford v. State, 813 S.W.2d 503, 506 (Tex. Crim. App. 1991) (en banc). We will not base a finding of ineffectiveness on speculation. Gamble v. State, 916 S.W.2d 92, 93 (Tex. App. Houston [1st Dist.] 1996, no writ).

On this record, we conclude that Henkel has failed to establish that his trial counsel was ineffective. Without a record of trial counsel's overall performance and strategic decisions, we cannot determine if counsel's performance was objectively deficient or if it created an unnecessarily disadvantageous result. // See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994) (en banc). Henkel has not rebutted the presumption he was adequately represented. See id. We note that Henkel admitted to violating the terms and conditions of his community supervision. We overrule Henkel's second and third issues.

VI. JUDGMENT NUNC PRO TUNCIn his fifth and sixth issues, Henkel requests that we reform the trial court judgment to reflect the trial court's pronouncement of the terms and conditions violated because of variance between the pronouncement and the judgment. The State counters that the nunc pro tunc judgment as to count four has rendered moot Henkel's claims. The State concedes that the judgment as to count three contains more findings than the trial court pronounced.

Henkel filed a motion for order nunc pro tunc on count four and not on count three. The trial court entered a judgment nunc pro tunc on count four.

Clerical errors in both judgments and orders are subject to being corrected. English v. State, 592 S.W.2d 949, 955-56 (Tex. Crim. App.1980) (en banc); Smith, 801 S.W.2d at 633. An error is clerical in nature if it did not come about as the product of judicial reasoning. Alvarez v. State, 605 S.W.2d 615, 617 (Tex. Crim. App.1980). Whether an error is judicial or clerical in nature is a question of law. Id; Allen v. State, 20 S.W.3d 164, 165 (Tex. App. Texarkana 2000, no pet. h.). The purpose of a nunc pro tunc order is to reflect correctly the judgment or order actually rendered by the court, which for some reason was not entered of record at the proper time, and to reflect the truth of what actually occurred. Alvarez, 605 S.W.2d at 617; Smith, 801 S.W.2d at 633.

Several courts have found signed orders that conflicted with oral pronouncements to be clerical errors. English, 592 S.W.2d at 954-55 (trial court's mistakenly signing order form granting a new trial was clerical error; "[t]he signing of an order form is not all there is to granting a new trial"); Galvan v. State, 995 S.W.2d 764, 765 (Tex. App. San Antonio 1999, no pet.) (finding clerical error where court orally denied plea of double jeopardy, but signed a written order with the "granted" line checked-off, and "evidence in the record indicate[d] that the oral pronouncement was the correct manifestation of the court's intention"); Jiminez v. State, 953 S.W.2d 293, 295 (Tex. App. Austin 1997, pet. ref'd) (per curiam) (finding clerical error where "record clearly reflect[ed] that the district court overruled the motion to quash and that the written order granting the motion was mistakenly signed by the court"). Generally, those cases involved a nunc pro tunc order and a hearing in which the judge explained the circumstances making the judgment or order a clerical error. See English, 592 S.W.2d at 955 (hearing was held in which judge testified he signed order by mistake); Jiminez, 953 S.W.2d at 295 (record included nunc pro tunc order reciting that written order was signed inadvertently).

Here, the judgment nunc pro tunc on count four suggests the trial court did not intend to vary from its oral pronouncements but there has been no such determination at the trial level. In the corrected judgment, however, the conditions listed (1, 2, 3, and 4) do not comport with the trial court's pronouncement at trial (conditions B, I, K, and L). // Similarly, regarding count 3, the judgment reflects Henkel violated conditions 1 through 9, however, the trial court pronounced he violated conditions B, O, Q, R, and T. We sustain Henkel's fifth and sixth issues. We may remand this case to allow the trial court to make fact determinations as to whether the judgment reflected what actually occurred. See Smith, 801 S.W.2d at 633. If on remand the trial court finds that the entry of such order was clerical error, it could enter a nunc pro tunc order correcting the same. See id. However, we have the power to modify incorrect judgments when we have the necessary information to do so. See Tex. R. App. P. 43.2(b); see also Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993) (en banc); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App. Dallas 1991, writ. ref'd.). When there is a variation between the oral pronouncement of sentence and the written memorialization of the sentence, the oral pronouncement controls. Coffey v. State, 979 S.W.2d 326, 328 (Tex. Crim. App. 1998) (en banc). The necessary information is in the record before us. // The judgment does not show the grounds for adjudication as set out in the trial court's oral pronouncement at the hearing on both counts 3 and 4.

VII. CONCLUSION

We sustain Henkel's first issue. We have jurisdiction over Henkel's appeal. We overrule his second and third issues complaining of ineffective assistance of counsel. Having found Henkel forfeited his complaint, we overrule his fourth issue. We sustain Henkel's fifth and sixth issues and remand this cause to allow the trial court to correct the variance between the trial court's oral pronouncement and the judgments entered, if it finds clerical error. Accordingly, we affirm in part and remand in part.

ERRLINDA CASTILLO

Justice

Do not publish

Tex. R. App. P. 47.2(b)

Memorandum Opinion delivered and filed

this 14th day of April, 2005.