Angel Debottis v. the State of Texas

Affirmed and Majority and Dissenting Opinions filed February 15, 2024.

In The

Fourteenth Court of Appeals

NO. 14-22-00884-CR

ANGEL DEBOTTIS, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 412th District Court
Brazoria County, Texas
Trial Court Cause No. 92795-CR

DISSENTING OPINION

This court has the power to correct and reform the judgment of the court
below “to make the record speak the truth” when it has the necessary data and
information to do so. Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—Dallas
1991, pet. ref’d) (en banc) (Onion, J., retired presiding judge of Court of Criminal
Appeals, sitting by designation and writing en banc court’s opinion); see French v.
State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992) (adopting reasoning of
Asberry). In a criminal case, Texas Rule of Appellate Procedure 43.2(b) (court of
appeals may “modify the trial court’s judgment and affirm it as modified”) and its
predecessors function in part as a means for the appellate court to render judgment
nunc pro tunc when the written judgment does not reflect what occurred in open
court at trial. Tex. R. App. P. 43.2(b); see Asberry, 813 S.W.2d at 529 (“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.”). The authority of an appellate court to reform incorrect
judgments 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. Asberry, 813
S.W.2d at 529–30. “The appellate court may act sua sponte and may have the duty
to do so.” Id. at 530.

Here, the judgment rendered by the trial court does not accurately reflect
what happened in open court. The written judgment reflects that the jury assessed
punishment at imprisonment for fifteen years for each of two counts, to run
consecutively. In contrast, the trial court’s oral pronouncement of sentence
included punishment of a single sentence of fifteen years:

A jury of your peers has found you guilty and assessed your
punishment at 15 years confinement in the Texas Department of
Criminal Justice and I have granted the motion to cumulate or stack
those sentences.

We hold defendants in criminals appeals to a rigorous procedural standard in
preserving complaints for appellate review. A notable exception is making the
written judgment speak the truth of the sentence pronounced in open court. While I
agree that the trial court did grant the motion to stack, that by itself does not
support the creation of a sentence that clearly was not pronounced merely because
the assessed punishment appears the same.

Consider the following hypothetical involving two offences that are tried

2
together—the jury assesses one sentence at 10-years imprisonment and the other at
15-years imprisonment, the trial court grants the State’s motion to cumulate, but
the trial court only pronounces the sentence at punishment for ten-years
imprisonment and grants the State’s motion to cumulate. How would the majority
“fix” that on appeal? And in the current appeal, is the answer really the mere fact
that the jury assessed two identical punishments?

I would do equal right and apply the law on correcting and reforming the
judgment to speak the truth as to both the State and appellant. It is the State—not
this court—that bears the obligation to “fix” the trial court’s error of pronouncing
only one of the two sentences.

Because the majority improperly undertakes the State’s obligation, I
respectfully dissent.

/s/ Charles A. Spain
Justice

Panel consists of Justices Jewell, Spain, and Wilson (Jewell, J., majority).
Publish — Tex. R. App. P. 47.2(b).

3