James Covarrubia v. the State of Texas
09-19-00219-CR
| Tex. App. | Jul 14, 2021Background
- In 2010 Covarrubia was indicted for aggravated assault (cause no. 10-09032) and engaging in organized criminal activity (cause no. 10-09733); he pleaded guilty in Jan. 2011 and was placed on deferred-adjudication community supervision under plea agreements.
- The State moved to revoke in April 2011; at a May 2011 hearing the trial court found violations, pronounced findings of guilt, sentenced Covarrubia to 20 years in each case, and orally ordered the cause no. 10-09733 sentence to run consecutively to cause no. 10-09032, but the May 2011 written judgment for 10-09733 omitted a cumulation/order.
- In June 2011 the trial court orally said it would reinstate deferred adjudication, but never signed a written order within the statutory period required for motions for rehearing/new trial; docket entries reflected the court’s intent but no written order was entered.
- The State again moved to revoke; at a March 2012 hearing the trial court again found Covarrubia guilty and signed written judgments (the March 2012 judgments). Later the Court of Criminal Appeals granted Covarrubia leave to file out-of-time appeals (2019).
- This court held the June 2011 oral reinstatement was ineffective because no written order was entered within the time permitted; therefore the May 2011 judgments are the final judgments on appeal, the March 2012 judgments are void, Covarrubia’s challenges to sentence length based on alleged "shock probation" failed, and the court modified the written judgment for 10-09733 to reflect the oral consecutive (stacking) order and affirmed as modified.
Issues
| Issue | Plaintiff's Argument (Covarrubia) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Which written judgments are final and govern the appeal? | March 2012 judgments are final and should be reviewed. | June 2011 oral reinstatement was not effective without a written order; May 2011 judgments are final. | May 2011 judgments are final; June oral reinstatement was overruled by operation of law for lack of written order; March 2012 judgments are void. |
| Did the trial court place Covarrubia on "shock probation" in June 2011? | Yes; the June hearing placed him on shock probation, limiting later exposure. | No; the record contains no mention of "shock probation"—only reinstatement of deferred adjudication (and no written order). | No evidence of shock probation in the record; argument rejected. |
| Are the 20-year sentences illegal because shock probation had limited his exposure to 10 years? | After shock probation, trial court lacked authority to sentence >10 years. | There was no shock probation; sentencing authority was proper and sentences lawful. | Sentences lawful; argument fails because premise (shock probation) is unsupported. |
| Were the sentences properly stacked; should the written judgment be corrected? | Stacking in the March 2012 judgment is invalid because the May 2011 written judgment lacked a cumulation order. | Oral pronouncement at May 2011 hearing stacked the sentences; written judgment should be modified to reflect that. | Oral pronouncement controls; court sustained State’s cross-appeal and modified the written judgment to make 10-09733 consecutive to 10-09032 (sentence in 10-09733 to begin when 10-09032 ceases). |
Key Cases Cited
- State v. Davis, 349 S.W.3d 535 (Tex. Crim. App. 2011) (motion for reconsideration is functionally equivalent to a motion for new trial and requires a written order)
- State v. Garza, 931 S.W.2d 560 (Tex. Crim. App. 1996) (docket entries cannot substitute for a written order granting new trial/rehearing)
- Cobb v. Godfrey, 739 S.W.2d 47 (Tex. Crim. App. 1987) (once a motion for new trial is overruled by operation of law the trial court loses jurisdiction to act)
- Taylor v. State, 131 S.W.3d 497 (Tex. Crim. App. 2004) (oral pronouncement of sentence in defendant's presence controls over inconsistent written judgment)
- Ex parte Madding, 70 S.W.3d 131 (Tex. Crim. App. 2002) (trial court cannot orally pronounce one sentence in the defendant’s presence and then enter a different sentence outside the defendant’s presence)
- Bigley v. State, 865 S.W.2d 26 (Tex. Crim. App. 1993) (appellate courts may modify judgments to make the record speak the truth when the record supports the change)
- Pfeiffer v. State, 363 S.W.3d 594 (Tex. Crim. App. 2012) (prosecutor may raise certain sentencing errors in cross-appeal)