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In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-18-00333-CR

NO. 09-18-00334-CR

NO. 09-18-00335-CR

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DOUGLAS MICHAEL MITCHELL II, Appellant

V.

THE STATE OF TEXAS, Appellee

__________________________________________________________________

On Appeal from the 359th District Court

Montgomery County, Texas

Trial Cause Nos. 16-07-07650-CR, 16-07-07903-CR, 16-07-07920-CR

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MEMORANDUM OPINION

Douglas Michael Mitchell II appeals the trial court’s judgments stacking his 

sentences following convictions by a jury on three separate counts of indecency with 

a child by contact, a second-degree felony. See Tex. Penal Code Ann. § 21.11(a)(1).

Mitchell elected to have the jury assess punishment. The jury assessed punishment 

of incarceration in the Institutional Division of the Texas Department of Criminal 
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Justice for three years in trial cause number 16-07-07650, ten years in trial cause 

number 16-07-07903, and four years in trial cause number 16-07-07920. In a single 

issue on appeal, Mitchell complains that the judgments stacking the sentences were 

inconsistent with the trial court’s oral pronouncement. We affirm the trial court’s 

judgments.

Background

A Montgomery County grand jury indicted Mitchell for three separate counts 

of indecency with a child by contact. Prior to trial, the State filed a motion to 

cumulate the sentences. Before orally pronouncing the sentences, the trial court held 

a brief hearing on the State’s motion to cumulate and granted the State’s motion

thereafter. Following its oral pronouncement, the trial court entered judgments 

reflecting that the sentences would run consecutively.1

Mitchell argues on appeal that the trial court did not exercise its discretion to 

stack the sentences when the trial judge orally pronounced each sentence, and 

specifically points to the trial court’s statement that each sentence should 

 1 The original judgments noted that the sentences were to run consecutively. 

However, the original judgments noted “see below” for additional information 

pertaining to the consecutive sentences, but none of the original judgments contained 

the language specifying the sequence in which the sentences were to run. Thereafter, 

the trial court entered a judgment nunc pro tunc in each trial cause, which included 

the language specifying the sequence in which the sentences would run. 
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“commence this day[.]” Our review of the record reveals that during the hearing on 

the State’s motion to cumulate the sentences, held immediately before the trial 

court’s oral pronouncement, the trial court explained that 

[h]aving heard the argument of counsel and having considered all of the 

evidence in both phases of these cases, I do find that the sentences of 

three, four, and ten years should be served cumulatively; that they 

should be stacked and not served concurrently. And that will be the 

order of this Court.

Following a brief recess after the trial court’s ruling on the motion to 

cumulate, the trial court proceeded to orally pronounce Mitchell’s sentence. The trial 

court pronounced the sentence for each cause number, stating after each one that the 

sentence would “commence this day[;]” however, after going through each sentence 

individually, the court orally pronounced that the “sentences shall run cumulatively 

and shall be stacked.” 

Analysis

The trial court has the discretion to cumulate sentences. See Tex. Code Crim. 

Proc. Ann. art. 42.08. In all felony cases, the “sentence shall be pronounced in the 

defendant’s presence.” Id. art. 42.03, § 1(a). If a “defendant is convicted of more 

than one offense in the same proceeding, the court must pronounce whether the 

sentences will run concurrently or consecutively.” Aguilar v. State, 202 S.W.3d 840, 

842 (Tex. App.—Waco 2006, pet. ref’d) (citing Tex. Code Crim. Proc. Ann. art. 
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42.08; Ex parte Madding, 70 S.W.3d 131, 136 (Tex. Crim. App. 2002); Nicholas v. 

State, 56 S.W.3d 760, 767 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d)). A 

trial court’s written judgment only memorializes the oral pronouncement. Id.; 

Madding, 70 S.W.3d at 135.

If there is a variation between the written judgment and the oral 

pronouncement of sentence, then the oral pronouncement controls. Coffey v. State, 

979 S.W.2d 326, 328 (Tex. Crim. App. 1998); see also Taylor v. State, 131 S.W.3d 

497, 500 (Tex. Crim. App. 2004). The Waco Court of Appeals explained in Aguilar

that not every “variation” invokes the rule pronounced in Coffey. See Aguilar, 202 

S.W.3d at 843. Rather, it noted that “if there is a conflicting variation, the oral 

pronouncement will control.” See id. (emphasis added); see also Taylor; 131 S.W.3d 

at 500 (“When there is a conflict between the oral pronouncement of sentence and 

the sentence in the written judgment, the oral pronouncement controls.”) (emphasis 

added).

Mitchell contends the trial court’s oral pronouncement did not indicate his 

sentences should run consecutively, and therefore, the written judgments should be 

reformed to reflect that the sentences run concurrently. Mitchell specifically argues 

that despite the trial court’s granting of the State’s motion to cumulate, “it still failed 

to exercise its discretion to stack sentences during the official oral pronouncement 
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of sentence in each cause.” Mitchell points to the fact that the trial court ordered that 

the sentences in each cause “commence this day” and interprets that to mean the 

sentences are to run together. We disagree.

Although the trial court’s statement that each sentence would “commence this 

day” may have created ambiguity, we do not view this as being a conflict between 

the written judgments and the oral pronouncement. See Aguilar, 202 S.W.3d at 843. 

We read the jury’s punishment verdict, the court’s pronouncement, and the written 

judgment together to resolve any ambiguity. See id. The jury assessed punishment 

within the statutory range of three years, ten years, and four years on each cause 

respectively. Prior to its oral pronouncement, the trial court granted the State’s 

motion to cumulate. The trial court’s oral pronouncement was consistent with such 

ruling as it accurately reflected the term of each punishment the jury assigned and 

explained that the sentences would be stacked. Each original written judgment 

likewise noted that the sentence would run consecutively. 

The judgments nunc pro tunc also indicated the sentences would run 

consecutively and addressed a clerical error failing to specify the sequential order in 

which the sentences would run. See Alvarez v. State, 605 S.W.2d 615, 617 (Tex. 

Crim. App. 1980) (“The purpose of a nunc pro tunc order is to correctly reflect from 

the records of the court a judgment actually made by it, but which for some reason 
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was not entered of record at the proper time.”). The judgments nunc pro tunc added 

specificity by stating that the sentence in cause number 16-07-07650 would run first, 

followed by the sentence in cause number 16-07-07903, which would then be 

followed by the sentence in cause number 16-07-07920. See Strahan v. State, 306 

S.W.3d 342, 353 (Tex. App.—Forth Worth 2010, pet. ref’d) (“Because a trial court 

may correct a cumulation order nunc pro tunc to add descriptive details, we conclude 

that the judgments nunc pro tunc were the proper vehicle for the trial court to 

accomplish what it set out to do in its oral pronouncement.”) (citation omitted). 

Accordingly, the judgments nunc pro tunc are not void.

Based on the foregoing, Mitchell’s assertion that the trial court impermissibly 

stacked his sentences is unsupported by the record in this case. We determine the 

record clearly establishes that the trial court granted the State’s motion to cumulate, 

then subsequently pronounced the sentences “would be stacked” and would “run 

cumulatively.” Considering the jury’s verdict, the entirety of the oral 

pronouncement, and the written judgments together, we determine there is no 

conflicting variation between the oral pronouncement and the written judgments. 

See Aguilar, 202 S.W.3d at 843. The judgments nunc pro tunc were consistent with 

the trial court’s oral pronouncement and permissibly added descriptive details. See 

Strahan, 306 S.W.3d at 353. We overrule Mitchell’s sole issue on appeal.
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Conclusion

Having determined no impermissible conflict in the trial court’s oral 

pronouncement and written judgments existed, the trial court properly cumulated 

Mitchell’s sentences. We affirm the trial court’s judgments.

AFFIRMED.

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CHARLES KREGER

Justice

Submitted on November 20, 2019

Opinion Delivered December 18, 2019

Do Not Publish

Before McKeithen, C.J., Kreger and Johnson, JJ.