In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________
No. 07-13-00128-CR
No. 07-13-00380-CR
________________________
DAVID WAYNE KERR, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 181st District Court
Randall County, Texas
Trial Court No. 21,768-B; Honorable John B. Board, Presiding
November 25, 2014
MEMORANDUM OPINION
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
On January 19, 2012, pursuant to a single, two-count indictment in cause
number 21,768-B, the trial court entered two separate orders placing Appellant, David
Wayne Kerr, on eight years deferred adjudication community supervision for the offense
of aggravated sexual assault.1 A year later, by a single motion designating the original
1
TEX. PENAL CODE ANN. § 22.021 (West Supp. 2014). Count I alleged digital penetration,
whereas Count II alleged penile penetration. The indictment alleged an offense punishable in a manner
cause number, but not differentiating as to Count I or Count II, the State moved to
proceed with adjudication and revoke community supervision alleging eight violations of
the terms and conditions thereof. Following an agreed-to, non-bifurcated hearing on the
State’s motion, the trial court found Appellant had violated the terms and conditions of
his community supervision and without specifying a count or counts, globally
pronounced a seventy-five year sentence. The trial court then entered two separate
judgments adjudicating Appellant’s guilt as to each count, both assessing a seventy-five
year sentence.
By a single amended notice of appeal, Appellant indicated his wish to appeal “the
judgment or other appealable order in this cause . . . .” The appeal was originally
assigned cause number 07-13-00128-CR. By a single issue, Appellant alleged the two
separate judgments were void due to violations of due process and equal protection of
law. In response, the State moved to abate this appeal and remand the matter to the
trial court for further proceedings. The State’s motion was denied and the two separate
judgments were assigned separate appellate cause numbers: 07-13-00128-CR for
Count I and 07-13-00380-CR for Count II. As to each count, we now reverse and
remand.
described by Subsection (f)(1) (minimum term of imprisonment of 25 years).
Pursuant to a plea bargain, the indictment was amended to allege an offense punishable in a
manner described by Subsection (e) (minimum term of imprisonment of 5 years). A judge may place a
defendant on deferred adjudication for an offense punishable in a manner described by Subsection (e),
only if the judge makes a finding in open court that placing the defendant on community supervision is in
the best interest of the victim.
2
BACKGROUND
At the commencement of the hearing on the State’s motion to proceed, 2 the trial
court called “Cause Number 21,768-B.” Counts I and II were not separately called.
Defense counsel announced Appellant was proceeding without a plea bargain. The trial
court then asked for a plea in each of the eight allegations alleged by the State and
Appellant entered six pleas of true and two pleas of not true. Evidence was then
presented in support of the State’s allegations.
After both sides rested and delivered closing arguments, the trial court
announced the following:
I do accept [Appellant’s] pleas of true to allegations 2, 3, 4, 6, 7, and 8. I
do find the evidence is sufficient to sustain a finding of true to those
allegations. I do also find that the evidence is sufficient to sustain a
finding of true to allegations 1 and 5, and I also find those allegations to be
true.
I will take judicial notice of the allegations contained in the indictment to
which [Appellant] did plead guilty in front of Judge Anderson on January
19, 2012, and sentence him to 75 years . . . .3
The trial court did not announce an adjudication of guilt on either count nor did it specify
to which count the sentence applied.
2
Although there were separate orders of deferred adjudication specifying individual count
numbers, the State’s motion to “revoke” did not make reference to which order the allegations applied.
3
It should be noted that although the “Felony Plea Memorandum” filed in conjunction with
Appellant’s original plea indicated the agreement was to enter a plea to an “amended indictment” for an
offense punishable pursuant to Subsection (e) (See fn. 1), the original indictment was not altered and no
amended indictment appears of record. Because the judge who originally heard Appellant’s plea was not
the same judge presiding at the adjudication hearing, we are unable to determine with certainty just what
allegations the judge presumed he was taking judicial notice of.
3
Appellant filed a single brief bearing appellate cause number 07-13-00128-CR.
By his sole issue, he contends the trial court abused its discretion by issuing two written
judgments specifying two sentences on a two-count indictment when the trial court
pronounced a “global sentence” in a non-bifurcated hearing without specifying to which
count or counts the seventy-five year sentence applied. In response, the State filed a
Motion to Abate and Remand urging the trial court’s error could be corrected by
remanding the cause for imposition of sentences on both counts. See TEX. R. APP. P.
44.4. The motion was denied, and this Court sua sponte severed the appeal into two
separate appeals, one as to each judgment. The judgment on Count II was assigned
appellate cause number 07-13-00380-CR. See Kerr v. State, No. 07-13-00128-CR,
2013 Tex. App. LEXIS 14084, at *2 (Tex. App.—Amarillo Nov. 13, 2013, order).
The State then filed two separate briefs in response to Appellant’s arguments. In
cause number 07-13-00128-CR, the appeal from Count I, the State maintains this
Court’s severance of the two judgments makes the judgment on Count I “definite, free of
error and correct in all things.” In cause number 07-13-00380-CR, the appeal from
Count II, the State argues this Court is without jurisdiction to entertain the appeal
because sentence was not pronounced in Appellant’s presence and requests
abatement for a new sentencing hearing.
STANDARD OF REVIEW—DECISION TO ADJUDICATE
An appeal from a trial court's order adjudicating guilt is reviewed in the same
manner as a revocation hearing. See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5(b)
(West Supp. 2014). When reviewing an order revoking community supervision imposed
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under an order of deferred adjudication, the sole question before this Court is whether
the trial court abused its discretion. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim.
App. 2006); Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984); Jackson v.
State, 645 S.W.2d 303, 305 (Tex. Crim. App. 1983).
ANALYSIS
Section 3.03 of the Texas Penal Code provides that when the accused is found
guilty of more than one offense arising out of the same criminal episode prosecuted in a
single criminal action, a sentence for each offense shall be pronounced. TEX. PENAL
CODE ANN. § 3.03 (West 2011). Article 42.03, section 1(a) of the Texas Code of
Criminal Procedure provides that sentence shall be pronounced in the defendant’s
presence. The pronouncement of sentence is the appealable event whereas the written
judgment simply memorializes the oral sentence and should comport with its terms.
Coffey v. State, 979 S.W.2d 326, 328 (Tex. Crim. App. 1998).
Appellant argues the trial court’s failure to orally pronounce on which count or
counts he was being sentenced renders the judgments vague and void. He requests
both judgments be reversed and remanded to the trial court for a new hearing. We
agree.
Relying on Robinson v. State, 553 S.W.2d 371, 372 (Tex. Crim. App. 1977),
Murray v. State, 108 S.W.3d 703, 706 (Tex. App.—Dallas 2010, pet ref’d), and Harmon
v. State, 889 S.W.2d 521, 523 (Tex. App.—Houston [14th Dist.] 1994, pet. ref’d), the
State defends the sentence on Count I by arguing the “carving doctrine.” The doctrine
“allows a prosecutor to carve as large an offense out of a single transaction as he can,
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yet he must cut only once.” Ex parte Cantrell, 580 S.W.2d 369, 370 n.1 (Tex. Crim.
App. [Panel Op.] 1979); Owens v. State, 851 S.W.2d 398, 400 (Tex. App.—Fort Worth
1993, no pet.). In instances where two convictions occurred at the same time based on
the same evidence and the carving doctrine renders one invalid, the conviction with the
lower numbered indictment is the presumptively valid one. Robinson, 553 S.W.2d at
372. The carving doctrine, however, was abandoned in 1982 in Ex parte Williams, No.
03-02-00171-CR, 634 S.W.2d 815, 822 (Tex. Crim. App. 1982) (opinion on reh’g). See
Murphy v. State, 2002 Tex. App. LEXIS 7551, at *7-8 (Tex. App.—Austin Oct. 24, 2002,
pet. denied) (mem. op., not designated for publication).
The State acknowledges the record does not support a pronouncement of
sentence in Appellant’s presence as to Count II and argues this Court has no
jurisdiction over that judgment. The State requests either dismissal of the judgment in
Count II or abatement of the appeal and a remand to the trial court for a sentencing
hearing in Count II. Because the carving doctrine has long since been abandoned, we
disagree with the State’s analysis of these appeals.
Appellant directs us to White v. State, 543 S.W.2d 130, 131-32 (Tex. Crim. App.
1976), in which the appellant was convicted of aggravated robbery pursuant to a three-
count indictment and sentenced to twenty years confinement. The first count alleged
the offense occurred on or about July 17, 1975. The second and third counts alleged
those offenses occurred on or about July 19, 1975. The record contained a single
judgment referring only to a single conviction with a finding that the offense occurred on
July 17, 1975. On appeal, counsel filed a brief pursuant to Anders v. California, 386
U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1973), determining the appeal was frivolous.
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In its independent review of the record, the Court determined the appeal was without
merit as to one conviction and there was no jurisdiction to review the other two
convictions, if any. White, 543 S.W.2d at 131. The Court determined the inclusion in
the judgment that the offense occurred on July 17, 1975, led to the conclusion that the
conviction was based on the first count of the indictment. Id. at 132. The Court
concluded that until the record reflected proper sentences on counts two and three,
there was no jurisdiction over those counts. Id.
Appellant distinguishes White and points out that in the instant appeals, we are
unable to identify through a review of the record a connection to either of the two
counts. Both counts contain the same date of offense—on or about August 23, 2005,
and both counts involve the same victim. Neither can we identify a specific count on
which sentence was pronounced. Not only does the record before us lack specificity on
which count Appellant was sentenced, the record also lacks specificity on the trial
court’s adjudication of guilt as to either Count I or Count II.
In Thompson v. State, 108 S.W.3d 287 (Tex. Crim. App. 2003), the defendant
was charged in a single indictment with one count of sexual assault of a child and one
count of indecency with a child. The trial court did not pronounce sentence on the count
for indecency with a child and entered one judgment reflecting a thirty year sentence on
both counts. When no sentence is pronounced, there is no valid judgment or conviction
from which to appeal. Id. at 290. The Court of Criminal Appeals determined the
appellate court properly dismissed the appeal of the count for indecency for lack of
jurisdiction. Id. at 289.
7
We distinguish Thompson and White under the unique facts of the case before
us. The pronouncement of sentence is the appealable event. Coffey, 979 S.W.2d at
328. In the underlying proceedings, the trial court pronounced a seventy-five year
sentence, reflected in two judgments, and Appellant perfected an appeal from that
event. The distinguishing factor in this case is the inability to determine to which count
the sentence applies. We will not presume nor speculate that the trial court intended to
pronounce sentence on a particular count and we cannot simply make that decision for
the trial court. Consequently, disposition of these appeals requires reversal of both
judgments and a remand for further proceedings. Appellant’s issue is sustained.
CONCLUSION
The trial court’s judgments are reversed and the cause is remanded for a new
hearing on the State’s motion to proceed with adjudication.
Patrick A. Pirtle
Justice
Do not publish.
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