Lead Opinion
A jury found Appellant Eddie Offiong Ette guilty of the first-degree offense of misapplying more than $200,000 of fiduciary property. See
I. Background Facts
Appellant does not contest the sufficiency of the evidence. The evidence showed that complainant Nosa Evbuomwan and his wife, Ann, paid Appellant, who operated an insurance agency, $350,000 to procure two performance bonds. Appellant sent Nosa invoices showing that the gross premium for the two bonds was $379,000, that he applied a "discount" of $31,000 to the larger bond, and that his fee for each bond was $1,000. The Evbuomwans paid the $350,000, but Appellant failed to procure the two performance bonds. Instead of then returning the premiums, he claimed that the entire $350,000 was his fee and spent the money.
II. Discussion
A. The Trial Court Did Not Abuse Its Discretion or Violate Appellant's Rights to Confrontation and to Present a Defense by Limiting His Cross-Examination of Nosa.
In Appellant's first point, he contends that the trial court violated his right to confrontation and to present a defense when it limited the scope of his cross-examination of Nosa. We disagree.
1. Standard of Review
We review a trial court's ruling on the admissibility of evidence under an abuse-of-discretion standard. Johnson v. State (Johnson I) ,
2. Right of Confrontation
The Sixth Amendment's Confrontation Clause states that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." U.S. Const. Amend. VI. The Confrontation Clause's primary purpose is to secure for the defendant the opportunity to cross-examine adverse witnesses because that is "the principal means by which the believability of a witness and the truth of his testimony are tested." Johnson I ,
As the Texas Court of Criminal Appeals has held, the Sixth Amendment right to cross-examine witnesses allows a party to attack the general credibility of those witnesses "or to show their possible bias, self-interest, or motives in testifying." Hammer v. State ,
It is not within a trial court's discretion to prohibit a defendant from engaging in otherwise appropriate cross-examination designed to show a witness's bias.
If a complainant's credibility is central to the State's case, Texas law also favors admitting evidence that is relevant to the complainant's bias, interest, or motive to testify in a particular way.
*787But "the right to cross-examine is not unqualified." Id. at 909. A trial court may restrict "the scope and extent of cross-examination so long as those" restrictions do not chip away at "the Confrontation Clause's guarantee of an opportunity for effective cross-examination." Id. (internal quotation marks omitted) (quoting Johnson II ,
3. Right to Present a Defense
The Supreme Court has recognized that under the United States Constitution, whether through "the Due Process Clause of the Fourteenth Amendment or the Compulsory Process or Confrontation Clauses of the Sixth Amendment," a defendant in a criminal case is entitled to "a meaningful opportunity to present a complete defense." Holmes v. State ,
4. Analysis
a. Relevant Facts
Nosa and Ann bought a piece of property and had it platted into three lots. They wanted to build two commercial buildings, one at 1940 Enchanted Way and the other at 1900 Enchanted Way in Grapevine, Texas. Ann met with Appellant because the couple needed a performance bond for the construction of each building.
The dispute leading to Appellant's indictment was whether his fee for the two bonds was $2,000 or $350,000. The jury heard testimony that bond fees must be disclosed in writing. Appellant testified at trial and admitted that the paperwork-written invoices that he generated-showed that his total fee was only $2,000.
b. The Excluded Evidence
Appellant sought to impeach Nosa by demonstrating that he had made contradictory claims about whether a $900,000 debt on the third lot-1920 Enchanted Way-had been paid. Before the jury, Nosa testified that he had repaid the indebtedness, but the debt was also listed in a bankruptcy petition. Outside the jury's presence, the following occurred:
[DEFENSE COUNSEL]: Well, I mean, it-[the $900,000] was listed in a bankruptcy petition, which is kind of not the same as being paid back.
THE COURT: I don't know if it was paid back or not. It could have been paid-still just because it was listed in a bankruptcy petition doesn't mean necessarily that it was not paid back but go ahead, what's the-what's the relevance here[?] ... I take it you want to introduce the bankruptcy petition[,] correct[?]
[DEFENSE COUNSEL]: Well, I, you know, yeah, of course, I would like to do that but I think that I at least get to impeach him with it.
THE COURT: So you're offering it for impeachment value or are you offering it for-*788[DEFENSE COUNSEL]: For impeachment, Your Honor.
[PROSECUTOR]: Your Honor, we would object that it would be improper impeachment items and it is not relevant. The reason, it would be improper impeachment is, since the bankruptcy was discharged, that's not evidence the loan was not paid back, that is evidence of nothing. We already know there is $900,000 indebtedness. This proves it was-it adds nothing to the argument, nothing to the case. If he says he paid the money back, that's the relevant question, not, well, didn't you still owe it in 2009.
THE COURT: Why don't you develop it a little more on cross outside the presence of the jury, [counsel]?
....
VOIR DIRE EXAMINATION
BY [DEFENSE COUNSEL]:
Q. About June 1st of 2009, did Agape World Group Incorporated[2 ] file a petition in bankruptcy?
A. I don't remember the date but yes....
....
Q. And in this petition, were there listed certain creditors? Yes?
A. Yes.
Q. .... Surely, you knew that this bankruptcy was being filed, right?
A. Yes.
Q. And then listed in Schedule A under Real Property, there is 1920 Enchanted Way, $1.5 million which you presumed was the value?
A. Yes.
Q. And the amount of secured claim was $900,000, isn't that true?
A. Yes.
Q. And, in fact, 19-1920 Enchanted Way, as of June 1st of 2009, did you-all still own 1920 Enchanted Way?
....
A. Yes.
Q. And so you listed that as an asset, and you listed the amount of secured claim as $900,000?
A. Correct.
Q. And so take us through how you paid it back. Did this get discharged in bankruptcy or did that-that get bought out of bankruptcy?
A. The bankruptcy was withdrawn.
THE COURT: Hang on. We are far afield as to what-no we are not going to go down this road because whether or not [Nosa] paid back the [$]900,000 is irrelevant as to whether or not [Appellant] took $300,000 of their money. I don't understand why-why we're going down this road. Why are we going down this road?
[DEFENSE COUNSEL]: Your Honor, he opened the door to every bit of this.
THE COURT: How?
[DEFENSE COUNSEL]: I'd have to have you read back the last hundred questions and answers both on Direct and on Cross.
THE COURT: Well, you're the one that started down this road of how much debt they had, so what-whether or not it was discharged from bankruptcy, whether or not it was paid back is-has nothing to do with this indictment, so why are we going into it?
[DEFENSE COUNSEL]: It's a matter of credibility, Your Honor.
THE COURT: No.
*789[DEFENSE COUNSEL]: He opened the door to it.
THE COURT: No, we're not doing that.
[DEFENSE COUNSEL]: I'm [questioning] him about bias and prejudice.
THE COURT: We are going to land this thing today one way or another. Bring the jury back in.
[DEFENSE COUNSEL]: It's also questioning about motive, Your Honor.
THE COURT: No. You haven't established that either.
Bring them back in.
Defense counsel then resumed his cross-examination in the jury's presence.
c. The Excluded Evidence Is Not Relevant.
Appellant claims in his brief that the excluded evidence concerns "one of the subject properties." In fact, the evidence concerns the third lot from the original undivided piece of land the Evbuomwans bought. Ann testified about the third lot, located at 1920 Enchanted Way, but that lot was self-financed by the couple; it had nothing to do with the bonds they sought from Appellant.
d. The Excluded Evidence Has No Bearing on Appellant's Guilt.
At trial, Appellant cross-examined both Nosa and Ann extensively, and his cross-examination delved into the integrity of their business practices. In his closing argument of the guilt phase, Appellant argued that those business practices were highly suspect and that the Evbuomwans' testimony could not be believed.
Even if Appellant was correct in that assessment, though, the case did not turn on the couple's credibility-it turned on the paperwork. Appellant's own invoices provided that $348,000 of the $350,000 was to be used toward the two performance bonds' premiums and only $2,000 of the $350,000 was apportioned to pay his fees.
e. The Trial Court's Exclusion of the Evidence Did Not Violate Appellant's Constitutional Rights.
We hold that the trial court did not violate Appellant's rights of confrontation and to present a defense by refusing to let him cross-examine Nosa about possible misrepresentations concerning another property unrelated to the bonds and unrelated to the documents prepared by Appellant regarding his fees for those bonds. See Johnson I ,
We overrule Appellant's first point.
B. We Reconcile the Jury Verdict on Punishment, the Oral Pronouncement, and the Judgment to Uphold the Fine.
In Appellant's second point, he contends that because the trial court did not orally pronounce the $10,000 fine during sentencing, the fine must be deleted from the judgment. We disagree.
1. Courts Uphold the Lawful Fine Imposed by the Jury When the Trial Judge Inadvertently Omits It from the Oral Pronouncement.
When the trial judge's oral pronouncement of the punishment assessed by the jury inadvertently omits the lawful fine *790determined by the jury, we harmonize the record before us-the jury verdict, the trial court's pronouncement, and the written judgment-to protect the valid jury verdict. See Hawkins v. State , No. 02-15-00338-CR,
2. The Sentencing Facts Here Are Substantially the Same as Kimble's Facts.
Appellant elected to be punished by the jury. The jury assessed his punishment at ten years' confinement and a fine of $10,000, well within the range of punishment for a first-degree felony. See
THE COURT: Note from the jury: "We have reached a decision." Signed by the foreman of the jury.
Both sides ready to bring the jury in, receive and accept the verdict?
....
THE COURT: Mr. Foreperson, we received a note. "The jury has ... reached a verdict." Have you reached a verdict on punishment?
FOREMAN: Yes, we have.
THE COURT: Is it a unanimous verdict?
FOREMAN: Yes, it is.
THE COURT: Hand the verdict to the bailiff, please.
Verdict form: We, the jury, having found [Appellant] guilty of the offense of misapplication of fiduciary property as charged in the indictment, assess his punishment at confinement in the Correctional Institutions Division of the Texas Department of Criminal Justice for 10 years and we do recommend that the imposition of his sentence be suspended and that he be placed on community supervision. In addition thereto, we, the jury, assess a fine of $10,000 and we do not recommend that such fine be suspended. Signed by the foreman of this jury.
After offering the parties a chance to poll the jury, which they declined, the trial court asked Appellant to rise and stated:
The jury ... having assessed your punishment at 10 years' confinement in the penitentiary and having recommended that your sentence be suspended, your sentence is hereby suspended and you will be placed on community supervision for a period of 10 years.
The trial judge omitted any mention of the lawful fine assessed by the jury from his repeated report of the jury verdict, though he had just read the entire verdict aloud and accepted it, and then he also omitted any mention of a fine from his pronouncement. He did not pronounce the $10,000 fine that the jury had assessed and he had accepted and recited to the jury; he did not pronounce a different fine; he did not pronounce a "zero" fine; and he did not *791refuse to pronounce a fine. His pronouncement, taken alone, does not reveal any clear intent regarding the fine.
Unlike the oral pronouncement, the written judgment matches the lawful jury verdict, and the bill of cost also reflects the $10,000 fine due.
These facts alone create a potential ambiguity in the sentence and justify resolving the case in favor of the jury verdict. See, e.g. , Kimble ,
3. Appellant and the Trial Judge Signed Written Conditions of Community Supervision Requiring Appellant to Pay the $10,000 Fine.
The record here, however, offers even more compelling evidence of not only the trial court's intent to follow the law and therefore to impose the lawful fine determined by the jury but also the satisfaction of Appellant's rights to notice and due process. Immediately following the oral pronouncement, the trial court stated,
Terms and conditions of your supervision are set out in the Court's documents, which I will give you in a few minutes, and you are ordered by the Court to follow each and every one of those conditions. If you violate any one of the terms and conditions, your probation may be revoked and you have to serve a term of incarceration.
....
Do you understand your sentence, [Appellant]?
THE [APPELLANT]: Yes, Your Honor.
....
THE COURT: [Appellant], please stay around long enough to be admonished by the court officer as to your probation conditions.
[Emphasis added.]
The written conditions of community supervision referred to in the trial court's colloquy with Appellant include payment of the fine as a condition of community supervision. Those conditions were signed by both the trial judge and Appellant on the same day as sentencing, and, taking the trial judge at his word, within minutes of the pronouncement. Thus, before he left the courtroom the day he was sentenced, Appellant had received notice from both the jury and the trial judge that he was required to pay the $10,000 fine.
4. We Uphold the Jury Verdict.
The context of the oral pronouncement in this case makes clear that Appellant, the State, and the trial judge understood the sentence to be what appeared in both the verdict and the judgment-ten years' confinement (with the trial court accepting the jury's probation recommendation) and a $10,000 fine. See
C. We Correct a Clerical Error in the Trial Court's Judgment.
The trial court's judgment recites that Appellant was found guilty of "MISAPPLICATION OF FIDUCIARY PROPERTY-OVER $200,000." As Appellant points out in his brief, under the section entitled "Statute for Offense," the judgment incorrectly refers to "32.43(c)(7) PC."
*792The correct statutory provision is section 32.45(b) - (c)(7) as it existed at the time of the offense. See
Appellate courts may modify incorrect judgments to make the record "speak the truth" when they have the necessary data and information to do so. Edwards v. State ,
III. Conclusion
Having overruled Appellant's two points, we affirm the trial court's judgment as modified.
KERR, J., filed a dissenting opinion.
In 2015, the legislature amended section 32.45(c)(7) ; the amount necessary for classifying the offense as a felony of the first degree was changed from "$200,000 or more" to "$300,000 or more." See Act of June 19, 1993, 73rd Leg., R.S., ch. 900, § 1.01, sec. 32.45(c)(7),
Agape World Group was a real-estate-investment company that the Evbuomwans owned.
Dissenting Opinion
Because the majority continues what I believe has become an ill-advised reliance on finding "ambiguity" when an oral sentencing conflicts outright with a verdict and judgment, I dissent from its disposition of Ette's second point.
If the trial court meant to include the fine at sentencing but simply forgot, it might in theory be a good idea to enforce the $10,000 fine at issue-found in the jury's verdict, in the judgment, and among the conditions of Ette's probation but not in the oral pronouncement of sentence-but forgetfulness is a mistake, not an ambiguity. Really, we cannot know if the fine's omission was inadvertent at all; the court might have wrongly thought that a fine need not be pronounced during sentencing because every other part of the record included the fine. That is a different sort of mistake, but it too is no ambiguity.
I would sustain Ette's appellate point arguing that because the trial court did not pronounce the $10,000 fine during sentencing as the law requires, Ette has no fine to pay.
Reading the verdict and the sentence
During the trial's punishment phase, the court read the verdict aloud-including the fine-and then pronounced Ette's sentence-without the fine:
THE COURT: Mr. Foreperson, we received a note. "The jury has ... reached a verdict." Have you reached a verdict on punishment?
FOREMAN: Yes, we have.
THE COURT: Is it a unanimous verdict?
FOREMAN: Yes, it is.
THE COURT: Hand the verdict to the bailiff, please.
Verdict form: We, the jury, having found the defendant, Eddie Offiong Ette, guilty of the offense of misapplication of fiduciary property as charged in the indictment, assess his punishment at confinement in the Correctional Institutions Division of the Texas Department *793of Criminal Justice for 10 years and we do recommend that the imposition of his sentence be suspended and that he be placed on community supervision. In addition thereto, we, the jury, assess a fine of $10,000 and we do not recommend that such fine be suspended. Signed by the foreman of this jury.
Does either side wish the jury to be polled?
[PROSECUTOR]: No, Your Honor.
[DEFENSE COUNSEL]: No, Your Honor.
THE COURT: Defendant please rise.
In Cause No. 1363508D; State of Texas versus Eddie Offiong Ette. The jury, having found you guilty upon your plea of not guilty to the offense of misapplication of fiduciary property, and having assessed your punishment at 10 years' confinement in the penitentiary, and having recommended that your sentence be suspended, your sentence is hereby suspended and you will be placed on community supervision for a period of 10 years.
Terms and conditions of your supervision are set out in the Court's documents, which I will give you in a few minutes, and you are ordered by the Court to follow each and every one of those conditions. If you violate any one of the terms and conditions, your probation may be revoked and you have to serve a term of incarceration.
In addition to that, the Court will impose restitution in the amount of $350,000 as a condition of your probation.
Do you understand your sentence, Mr. Ette?
THE DEFENDANT: Yes, Your Honor.
The trial court's later-entered judgment tracked the jury verdict-but not the oral pronouncement of sentence-by including the $10,000 fine.
Mismatch between oral sentencing and the verdict and written judgment: ambiguity versus conflict
When a trial court orally pronounces a sentence that does not match the verdict or the judgment, is that an ambiguity or a conflict? The answer matters, because if a pronouncement is ambiguous, an appellate court may look beyond the pronouncement itself and harmonize it with both the verdict and the later-entered judgment. Aguilar v. State ,
Two seemingly irreconcilable principles are at work here.
The first is that a defendant's sentence "must be pronounced orally in his presence." Taylor v. State ,
*794The competing principle is that if the oral sentencing itself is truly ambiguous, as opposed to explicitly conflicting with the verdict or judgment, "the jury's punishment verdict, the court's pronouncement, and the written judgment should all be read together in an effort to resolve the ambiguity." Aguilar ,
Discussion
Although Ette's sentencing conflicted with both the verdict and the judgment, nothing about the trial court's oral pronouncement of sentence was ambiguous in and of itself. Each of these three components-verdict, judgment, and sentencing-plays a distinct legal role; none is to be ignored or given short shrift.
The verdict : Under article 37.01 of the code of criminal procedure, a "verdict" is "a written declaration by a jury of its decision of the issue submitted to it." Tex. Code Crim. Proc. Ann. art. 37.01 (West 2006). We have that here: the jury assessed Ette's punishment at ten years' confinement, sentence suspended, and a $10,000 fine, not suspended.
Article 37.04 requires a verdict to be "read aloud by the judge," and if it is "in proper form and no juror dissents therefrom, and neither party requests a poll of the jury, the verdict shall be entered upon the minutes of the court."
The judgment : Later code provisions deal with the trial court's entry of judgment:
Sec. 1. A judgment is the written declaration of the court signed by the trial judge and entered of record showing the conviction or acquittal of the defendant. The sentence served shall be based on the information contained in the judgment. The judgment shall reflect:
...
7. The verdict or verdicts of the jury or the finding or findings of the court;
8. In the event of a conviction that the defendant is adjudged guilty of the offense as found by the verdict of the jury or the finding of the court, and that the defendant be punished in accordance with the jury's verdict or the court's finding as to the proper punishment;
....
Caselaw reinforces the idea, inherent in the quoted provisions, that a trial court may not alter a valid jury verdict on punishment: a court has "no power to change a jury verdict unless it is with the jury's consent and before they have dispersed." Ex parte McIver ,
Oral pronouncement of sentence : Between the trial court's receiving the verdict and entering judgment, an intermediate step occurs-the oral sentencing. "The sentence is that part of the judgment ... that orders that the punishment be carried into execution in the manner prescribed by law." Tex. Code Crim. Proc. Ann. art. 42.02 (West 2006). The pronouncement of sentence is also the appealable event; the written judgment simply memorializes and should comport with it. See Coffey v. State ,
With some inapplicable exceptions, article 42.03 provides that "sentence shall be pronounced in the defendant's presence." Tex. Code Crim. Proc. Ann. art. 42.03, § 1(a). For good reason, fines (along with any other punishments) must be orally pronounced in the defendant's presence. Armstrong v. State ,
Broader principles are also at stake. For a trial court to orally pronounce one sentence to a defendant's face and then, outside the defendant's presence, sign a written judgment embodying a different and more severe sentence violates constitutional due process and fair notice. See Ex parte Madding ,
This is not to say that ambiguities cannot and do not arise. Aguilar , the case that began the "sentencing ambiguity" line of decisions, presented a clear instance of just such a problem. There, when pronouncing sentence on six counts on which the jury had assessed punishment, the trial court pronounced one sentence without specifically tying it to its associated count-that is, by neglecting to utter the simple phrase "count four."
*796Aguilar ,
Another case of ambiguous sentencing is Hernandez , in which the trial court left out the jury-assessed fine. But unlike Ette's case, the prosecutor in Hernandez immediately prompted, "Judge, did you read his fine as well?" and the judge responded, "I did, $5,000."
The same can broadly be said about our decision in Hawkins , where the defendant's own disruptive conduct during sentencing rattled the trial court and led it to omit the fine. Hawkins ,
This court has faced the omitted-fine issue but one other time in a jury trial, although without the State's having jumped in to clarify the trial court's omission as in Hernandez , and without invited error as in Hawkins . In Kimble , we held that the sentence was ambiguous precisely-and only-because it failed to include the fine that was otherwise assessed, and we resolved what we labeled an "ambiguity" in favor of the sentence's including the fine.
This label and its import are where I part ways with the Kimble panel and with the majority here.
When the sentence omits a fine, there is neither a fine nor an ambiguity within the sentencing process about the fine's presence *797or absence. When, though, as in Aguilar , Hernandez , and Hawkins , something about the sentencing process itself suggests an ambiguity for varying reasons, I agree that courts may look outside the pronouncement of sentence for resolution-but it is improper to do so in order to create ambiguity in the first place. Aguilar itself, upon which all the other cases rely, did not go that far.
Put differently, when the sentence fails to include a fine assessed by the jury, the sentence is inconsistent with the jury's verdict, but it is not for that reason ambiguous. Again, of course, a trial court may not vary the sentence from the verdict. See McIver ,
It's true that the written judgment in Ette's case comports with the verdict, as it must. See Tex. Code Crim. Proc. art. 42.01, § 1(7), (8). Yet the judgment must also match the oral pronouncement of sentence, and if the two conflict, the court of criminal appeals has established that the oral pronouncement wins. See Taylor ,
In the nonjury context, we routinely reform judgments to delete fines that were not orally pronounced at sentencing but that appeared in the judgment. E.g. , Bone v. State , No. 02-15-00452-CR,
In sum, whether the trial court here omitted the $10,000 fine at sentencing accidentally or under a mistaken belief that fines do not have to be orally pronounced-and I stress that we have no idea why the fine was left out-neither situation created an ambiguity in sentencing. The State could easily have sought immediate clarification; had it done so, the due-process concerns expressed in Madding would have been satisfied and, as in Hernandez , we could have properly construed the entirety of the sentencing proceedings to support the fine.
But under these facts, I cannot go along with mislabeling Ette's sentencing as ambiguous.
*798I would sustain his second point and delete the $10,000 fine, and because the majority does not, I respectfully dissent.
The trial judge's entire pronouncement of sentence was as follows:
Aurelio Hernandez Aguilar, the jury having found you guilty, the Court finds you guilty and assesses your punishment therefor at confinement in the Institutional Division of the Texas Department of Criminal Justice on Count 1 for a term of 45 years. Count 2, you are sentenced to a period of 10 years in the Institutional Division of the Texas Department of Corrections [sic]. Count 3, it's the sentence of the Court that you be confined in the Institutional Division of the Texas Department of Criminal Justice for a period of 10 years. It is also the sentence of the Court, the jury having found you guilty and assessed your punishment, sentences you to confinement in the Institutional Division of the Texas Department of Criminal Justice for a period of 10 years. Count 5, the jury having found you guilty and assess[ed] your punishment in the Institutional Division of the Texas Department of Criminal Justice for a period of 10 years, sentences you to a period of 10 years. Count 6, the jury having found you guilty and assessed your punishment on Count 6 at confinement in the Institutional Division of the Texas Department of Criminal Justice for a term of 15 years, the Court sentences you to a term of 15 years.
I'm going to grant the State's motion to have the sentences run consecutively. In other words, they will be accumulating, and they will be stacked to the extent permissible by law.
In the civil context, this court has recently reiterated the standard test for ambiguity when it comes to such things as contracts: "If the contracts are so worded that they can be given a certain or definite legal meaning or interpretation, then they are not ambiguous, and the court will construe them as a matter of law.... Ambiguity does not arise simply because the parties advance conflicting interpretations of the contract; .... We are not permitted to rewrite an agreement to mean something it did not." Rubinstein v. Lucchese, Inc. ,
Because Kimble is an unpublished opinion, it has no precedential value. See Tex. R. App. P. 47.7(a). Two of our sister courts, relying on Aguilar , have also applied the ambiguity construct to a flat-out omission, but because I find Aguilar distinguishable, I respectfully disagree with those courts. Cazares v. State , No. 05-15-00231-CR,
I am not persuaded by the majority's citation to Milczanowski v. State ,