IN THE

TENTH COURT OF APPEALS

No. 10-08-00026-CR

No. 10-08-00058-CR

No. 10-09-00156-CR

BRIAN LANCASTER,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 272nd District Court

Brazos County, Texas

Trial Court Nos. 07-01490-CRF-272, 

07-01489-CRF-272, and 07-01491-CRF-272

O P I N I O N

Brian Lancaster pleaded guilty in the underlying cases to criminal solicitation of 

a minor, indecency with a child by exposure, and five counts of indecency with a child 

by contact.1 In a separate trial, “not guilty” pleas were entered on Lancaster’s behalf to 

two counts of promotion of child pornography.2

 

1 Lancaster pleaded guilty to the following: (1) trial court cause no. 07-01490-CRF-272 (appellate 

cause no. 10-08-00026-CR)—2 counts of indecency by contact; (2) trial court cause no. 07-01489-CRF-272 
Lancaster v. State Page 2

On the charges to which Lancaster pleaded guilty, the jury found him guilty as 

instructed by the court and assessed his punishment at ten years’ imprisonment on the 

criminal solicitation and indecency by exposure charges and twenty years’ 

imprisonment on the indecency by contact charges. In the other trial, the jury convicted 

Lancaster of both counts of promotion of child pornography and assessed his 

punishment at twenty years’ imprisonment for each count.

3 The juries in both trials 

assessed a $10,000 fine for each of the nine convictions.

Lancaster contends in what amounts to seven points4 that:

(1) his convictions for four of the five indecency by contact charges and for both 

promotion of child pornography charges violate his double jeopardy rights;

(2) prosecution on these same four indecency by contact charges and for both 

promotion of child pornography charges was improper because the conduct 

relied on to prove these charges was subsumed by the conduct relied on to prove 

the other charge of indecency by contact;

 

(appellate cause no. 10-08-00058-CR)—1 count of criminal solicitation and 3 counts of indecency by 

contact; and (3) trial court cause no. 07-01491-CRF-272 (appellate cause no. 10-09-00156-CR)—1 count of 

indecency by exposure.

2 Lancaster was charged in trial court cause no. 07-01490-CRF-272 (counts 1 & 4) (appellate cause 

no. 10-08-00026-CR) with 2 counts of promotion of child pornography. These charges were severed from 

the 2 counts of indecency by contact referenced in note 1 and tried together with 100 counts of possession 

of child pornography which we address in a separate opinion being issued on the same date as this 

opinion in appellate cause nos. 10-08-00025-CR, 10-08-00027-CR, 10-08-00028-CR, 10-08-00029-CR, and 10-

08-00030-CR.

3 Lancaster filed 2 separate briefs in appellate cause no. 10-08-00026-CR. One addresses his 

convictions under counts 2 and 3 for indecency by contact, to which he pleaded guilty, and the other 

addresses his convictions under counts 1 and 4 for promotion of child pornography, for which he was 

separately tried.

4 The seven points we have identified assimilate the points raised in Lancaster’s briefs. We will 

address the points as we have renumbered them here. As we address each point, we will indicate how 

Lancaster has numbered the point in his briefs (e.g., point one in cause no. 10-08-00058-CR).
Lancaster v. State Page 3

(3) prosecution for criminal solicitation was improper because the conduct relied on 

to prove this charge was subsumed by the conduct relied on to prove indecency 

by exposure;

(4) the court abused its discretion by overruling his objection that the prosecutor’s 

argument during the punishment phase struck at Lancaster over the shoulders of 

defense counsel;

(5) his right to due process was violated by the court’s entry of judgments nunc pro 

tunc;

(6) the court erred by altering his sentences after he had commenced serving them; 

and:

(7) the court abused its discretion by refusing to permit him to ask during voir dire 

whether the jurors could be fair and impartial in a hypothetical case involving 

sexual molestation of children.

We will affirm.

Double Jeopardy

Lancaster contends in his first point5 that his conviction and punishment for all 

but one count of indecency with a child by contact and his conviction and punishment 

for both counts of promotion of child pornography violate the prohibition against 

double jeopardy.

Specifically, he argues that, because of his conviction and punishment for 

indecency by contact under count 2 of trial court cause no. 07-01489-CRF-272 (appellate 

cause no. 10-08-00058-CR), his convictions and punishment for the other two counts of 

indecency by contact in the same case and his convictions and punishment for two 

counts of indecency by contact in trial court cause no. 07-01490-CRF-272 (appellate 

 

5 Lancaster’s first point as renumbered consists of: (1) the first point in his brief in cause no. 10-08-

00026-CR challenging the indecency by contact convictions; (2) the second point in his other brief in cause 

no. 10-08-00026-CR challenging the promotion of child pornography convictions; and (3) the first point in 

his brief in cause no. 10-08-00058-CR.
Lancaster v. State Page 4

cause no. 10-08-00026-CR) and for two counts of promotion of child pornography in the 

same case are all jeopardy-barred. He avers that this is a multiple-punishments claim.

Before we reach the jeopardy issue however, we note that Lancaster did not raise 

this objection at trial. Nevertheless, he will be excused from the ordinary rules of 

procedural default “when the undisputed facts show the double jeopardy violation is 

clearly apparent on the face of the record and when enforcement of usual rules of 

procedural default serves no legitimate state interests.” Gonzalez v. State, 8 S.W.3d 640, 

643 (Tex. Crim. App. 2000); Hanson v. State, 180 S.W.3d 726, 732 (Tex. App.—Waco 2005, 

no pet.).

Here, because we have a complete record, “it can be determined from 

undisputed facts clearly apparent on the face of the record” whether there has been a 

jeopardy violation. Hanson, 180 S.W.3d at 732 (citing Murray v. State, 24 S.W.3d 881, 889

(Tex. App.—Waco 2000, pet. ref’d)).

There are three distinct types of double jeopardy claims: (1) a 

second prosecution for the same offense after acquittal; (2) a second 

prosecution for the same offense after conviction; and (3) multiple 

punishments for the same offense. A multiple punishments claim can 

arise in two contexts:

(1) the lesser-included offense context, in which the same conduct is 

punished twice; once for the basic conduct, and a second time for that 

same conduct plus more (for example, attempted assault of Y and 

assault of Y; assault of X and aggravated assault of X); and

(2) punishing the same criminal act twice under two distinct 

statutes when the legislature intended the conduct to be punished only 

once (for example, causing a single death by committing both 

intoxication manslaughter and involuntary manslaughter).

Langs v. State, 183 S.W.3d 680, 685 (Tex. Crim. App. 2006) (footnotes omitted).
Lancaster v. State Page 5

Lancaster’s multiple punishments claim arises under the second alternative, 

namely, being punished more than once for the same criminal act when the legislature 

intended the conduct to be punished only once. If, however, the evidence establishes 

the commission of “distinct and separate offenses,” then there is no violation of the 

Double Jeopardy Clause prohibition of multiple punishments. See id. at 688; Martinez v. 

State, 212 S.W.3d 411, 422 (Tex. App.—Austin 2006, no pet.); Hanson, 180 S.W.3d at 732-

33.

Counts 2 and 4 of the indictment in trial court cause no. 07-01489-CRF-272

alleged that Lancaster engaged in sexual contact with K.M by touching her genitals and 

breast. Count 3 of this indictment alleges that he engaged in sexual contact with K.M. 

by touching her breast.

Counts 2 and 3 of the indictment in trial court cause no. 07-01490-CRF-272 

alleged that he engaged in sexual contact with K.M. by touching her genitals. Counts 1 

and 4 of this indictment allege that he engaged in the promotion of child pornography 

by manufacturing visual material that visually depicted a child engaging in sexual 

conduct, “to-wit: actual or simulated lewd exhibition of the genitals.”6

State’s Exhibit No. 130 is a DVD which depicts eleven separate instances of 

sexual contact. Lancaster suggests that, because these instances all occurred during a 

 

6 Both indictments alleged that these offenses were committed “on or about December 31, 2006.” 

However, the State is not bound by the date alleged in the indictment so long as the evidence establishes 

that the offense was committed before the presentment of the indictment but within the limitations 

period. Sledge v. State, 953 S.W.2d 253, 255-56 (Tex. Crim. App. 1997); Lane v. State, 174 S.W.3d 376, 386 

n.12 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d).
Lancaster v. State Page 6

relatively brief period of time7 when K.M’s mother left K.M and her sister in Lancaster’s 

care while she went Christmas shopping with Lancaster’s former wife, the conduct 

depicted should be treated as a single instance of sexual contact. However, a defendant 

may be prosecuted for each discrete sex crime committed against a child during the 

same criminal episode “because each act is a separate violation of the child.” Hanson, 

180 S.W.3d at 733 (quoting Lopez v. State, 108 S.W.3d 293, 300 n.28 (Tex. Crim. App. 

2003)).

The second segment in the DVD depicts Lancaster touching K.M.’s genitals and 

breast while seated in a recliner. The fifth segment depicts him doing the same thing in 

a bath tub. The fourth segment depicts him sitting in the recliner reaching under her 

shirt to touch her breast. Thus, these three segments depict separate instances of 

conduct when Lancaster committed indecency by contact as alleged in the indictment in 

trial court cause no. 07-01489-CRF-272.

The third and sixth segments of this DVD depict two other instances when 

Lancaster touched K.M.’s genitals. Thus, these segments depict separate instances of 

conduct when Lancaster committed indecency by contact as alleged in the indictment in 

trial court cause no. 07-01490-CRF-272.

The seventh and eighth segments of the DVD depict separate instances8 when 

Lancaster uncovered K.M.’s genitals and made a close-up recording of her genitals. 

 

7 There is no testimony in the record regarding how long the shopping trip lasted. K. M.’s mother 

testified that they met Lancaster and the children at a restaurant for dinner that evening.

8 We need not determine whether a defendant may be prosecuted both for indecency by contact 

and promotion of child pornography for a single video recording depicting the defendant engaging in 
Lancaster v. State Page 7

Thus, these segments depict separate instances of conduct when Lancaster committed 

promotion of child pornography as alleged in the indictment in trial court cause no. 07-

01490-CRF-272.

State’s Exhibit No. 130 depicts at least seven separate incidents when Lancaster 

engaged in the conduct alleged in the indictments. Because the evidence establishes the 

commission of “distinct and separate offenses,” there is no violation of the Double 

Jeopardy Clause prohibition of multiple punishments. See Langs, 183 S.W.3d at 688; 

Martinez, 212 S.W.3d at 422; Hanson, 180 S.W.3d at 732-33; Murray, 24 S.W.3d at 889. 

Accordingly, we overrule Lancaster’s first point.

Conduct Subsumed

Lancaster contends in his second point9 that the judgments of conviction for all 

but one count of indecency with a child by contact and for both counts of promotion of 

child pornography should be vacated because the conduct relied on to prove the 

challenged offenses was subsumed by the conduct relied on to prove indecency by 

contact under count 2 of trial court cause no. 07-01489-CRF-272 (appellate cause no. 10-

08-00058-CR). He similarly claims in his third point10 that the judgment of conviction 

for criminal solicitation should be vacated because the conduct relied on to prove this 

 

sexual contact with a child because the record in this case contains video recordings of multiple instances 

of sexual contact.

9 Lancaster’s second point as renumbered consists of: (1) the second point in his brief in cause no. 

10-08-00026-CR challenging the indecency by contact convictions; (2) the third point in his other brief in 

cause no. 10-08-00026-CR challenging the promotion of child pornography convictions; and (3) the second 

point in his brief in cause no. 10-08-00058-CR.

10 This is the third point in Lancaster’s brief in cause no. 10-08-00058-CR.
Lancaster v. State Page 8

offense was subsumed by the conduct relied on to prove indecency by exposure under 

trial court cause no. 07-01491-CRF-272 (appellate cause no. 10-09-00156-CR).

Lancaster places primary reliance on Patterson v. State, 152 S.W.3d 88 (Tex. Crim. 

App. 2004). There the Court of Criminal Appeals explained that, although the 

Legislature has authorized multiple punishments for the repeated commission of such 

crimes against a child during a single criminal episode, “there is nothing in the 

language [of the pertinent statutes] to suggest that it intended to authorize ‘stop-action’ 

prosecution.” Id. at 92.

Just as a conviction for a completed offense bars prosecution for an 

attempt to commit the same offense, a conviction for an offense set out in 

§ 3.03 bars conviction for conduct that, on the facts of the case, is 

demonstrably part of the commission of the greater offense. For example, 

indecency by genital exposure of oneself in the course of manual 

penetration of another are separate offenses, while penile contact with 

mouth, genitals, or anus in the course of penile penetration will be 

subsumed.

Id.

As we have explained, however, if the evidence shows the commission of distinct 

offenses based on different (albeit similar) conduct, then the conduct which serves as 

the basis for one of the offenses necessarily cannot be subsumed in the conduct which 

serves as the basis for commission of the other(s). See Hanson, 180 S.W.3d at 732-33.

In addressing Lancaster’s first point, we explained how State’s Exhibit No. 130 

depicts the commission of factually distinct offenses which provide a separate 

evidentiary basis for each of the convictions he challenged in his first point and again 

challenges in his second point. Because this evidence establishes the commission of at 
Lancaster v. State Page 9

least seven “distinct and separate offenses,” his prosecution for the challenged 

convictions is not barred under the principles enunciated in Patterson. Id. Thus, we 

overrule Lancaster’s second point.

In his third point, Lancaster similarly contends that the conduct relied on to 

prove criminal solicitation is barred under Patterson because it is subsumed within the 

conduct relied on to prove indecency by exposure.

The indictment count for criminal solicitation alleges that Lancaster, with intent 

that sexual performance by a child be committed, induced K.C. to allow him to 

photograph her vagina. The indictment for indecency by exposure (the sole count in 

that case) alleges that he exposed his genitals to K.C. with the requisite intent.

In Patterson, the Court cited as an example of an offense which is not subsumed 

indecency by genital exposure committed in the course of aggravated sexual assault by 

manual penetration. See Patterson, 152 S.W.3d at 92. In the same manner, we hold that a 

person soliciting a child to permit him to photograph her vagina is not subsumed 

within the act of the person exposing his genitals to the child, even if done at the same 

time. Id.; Hanson, 180 S.W.3d at 732-33. Thus, we overrule Lancaster’s third point.

Voir Dire

Lancaster contends in his seventh point11 that the court abused its discretion by 

refusing to permit him to ask during voir dire whether the jurors could be fair and 

impartial in a hypothetical case involving sexual molestation of children. We address 

 

11 This is the first point in Lancaster’s brief in cause no. 10-08-00026-CR challenging the promotion 

of child pornography convictions.
Lancaster v. State Page 10

this issue in the other opinion we have issued today in appellate cause nos. 10-08-00025-

CR, 10-08-00027-CR, 10-08-00028-CR, 10-08-00029-CR, and 10-08-00030-CR. We hold 

that the court abused its discretion by refusing to permit him to ask the question but 

this error, beyond a reasonable doubt, did not contribute to his conviction. See Lancaster 

v. State, No. 10-08-00025-CR, slip op. at 4-6 (Tex. App.—Waco May 26, 2009, no pet. h.). 

Thus, we overrule Lancaster’s seventh point.

Improper Argument

Lancaster contends in his fourth point12 that the court abused its discretion by 

overruling his objection that the prosecutor’s argument during the punishment phase 

struck at him over the shoulders of defense counsel.

There are four categories of permissible jury argument: (1) summation of the 

evidence; (2) reasonable deduction from the evidence; (3) an answer to the argument of 

opposing counsel; or (4) a plea for law enforcement. Gallo v. State, 239 S.W.3d 757, 767

(Tex. Crim. App. 2007). The State may not strike at a defendant over the shoulders of 

defense counsel or accuse counsel of bad faith or insincerity during argument. See id.; 

Harris v. State, 122 S.W.3d 871, 886 (Tex. App.—Fort Worth 2003, pet. ref’d).

During closing, defense counsel discussed the impact of Lancaster’s convictions 

on his family, career and personal life. Counsel urged the jury to show mercy in 

assessing punishment. In rebuttal, the State reminded the jury that Lancaster’s actions 

 

12 Lancaster’s fourth point as renumbered consists of: (1) the third point in his brief in cause no. 10-

08-00026-CR challenging the indecency by contact convictions; (2) the fourth point in his brief in cause no. 

10-08-00058-CR; and (3) the first point in his brief in cause no. 10-09-00156-CR.
Lancaster v. State Page 11

had impacted the lives of several children and their families. After addressing this for a 

few moments, the State talked further about Lancaster.

STATE: Now, I want to talk about the defendant, too; but I also want to 

make sure we understand the context in which we are talking 

about the defendant. Mr. Banks said a very important thing. He 

said, “You know, the first time that I went up to the jail, I expected 

to meet a pervert, to hate him, to be angry; but when I met him, 

oh, he was a nice guy, good at his job, salvageable. There’s 

something good about him.”

You heard from their own witness, Charlie Russ, about the 

concept of grooming. That is the stock and trade of the child 

molester, of the pedophile. It is—and listen very carefully, 

because you are being victimized in exactly the same way—gain 

your trust and violate it. Gain your trust and then violate it. And 

that’s what they are trying to do to you. That’s what this defense 

is about. They are grooming the jury to try and have you think 

about anything other than the victims in this case—

DEFENSE: Judge, I object. That is striking at the defendant over the 

remarks of counsel.

The State responded that the argument was invited. The court overruled the objection.

We assume without deciding that the argument was improper. See Mosley v. 

State, 983 S.W.2d 249, 258 (Tex. Crim. App. 1998) (“The comments in the present case 

are milder, merely indicating that the defense attorneys would attempt to use argument 

to divert the jury’s attention or obscure the issues.”); Graves v. State, 176 S.W.3d 422, 430

(Tex. App.—Houston [1st Dist.] 2004, no pet.); Brantley v. State, 48 S.W.3d 318, 330 (Tex. 

App.—Waco 2001, pet. ref’d); but cf. Pope v. State, 161 S.W.3d 114, 126-27 (Tex. App.—

Fort Worth 2004) (finding similar remarks “were not suggestive of bad faith or 

insincerity on the part of opposing counsel, but were responsive to arguments of the 

defense and therefore not improper”), aff’d, 207 S.W.3d 352 (Tex. Crim. App. 2006).
Lancaster v. State Page 12

To determine whether this error requires reversal, we consider: (1) the severity of 

the misconduct; (2) the measures adopted to cure the misconduct; and, (3) the certainty 

of the punishment assessed absent the misconduct. See Archie v. State, 221 S.W.3d 695, 

700 (Tex. Crim. App. 2007); Martinez v. State, 17 S.W.3d 677, 692-93 (Tex. Crim. App. 

2000); Searcy v. State, 231 S.W.3d 539, 548 (Tex. App.—Texarkana 2007, pet. ref’d).

The challenged argument was at worst mildly inappropriate, so the first factor 

does not weigh heavily in Lancaster’s favor. See Mosley, 983 S.W.2d at 260; Graves, 176

S.W.3d at 430; Brantley, 48 S.W.3d at 331. The second factor does not come into play 

because the court merely overruled Lancaster’s objection, so this factor weighs in his 

favor. See Brantley, 48 S.W.3d at 331. Regarding the third factor, the jury assessed the 

maximum punishment for each count. However, Lancaster pleaded guilty to each 

count, and the State presented overwhelming evidence of his guilt in addition to 

extraneous-offense evidence revealing his guilt of numerous similar offenses for which 

he was not indicted. Thus, the third factor weighs heavily in favor of the State because 

“it is likely that the same punishment would have been assessed regardless of the 

improper [argument].” Archie, 221 S.W.3d at 700 (quoting Archie v. State, 181 S.W.3d 

428, 432 (Tex. App.—Waco 2005)); see Martinez, 17 S.W.3d at 693; Mosley, 983 S.W.2d at 

260; Searcy, 231 S.W.3d at 550.

Given the mildness of the challenged argument and the overwhelming evidence 

supporting the punishment assessed, we hold that any error was harmless. See

Martinez, 17 S.W.3d at 694; Mosley, 983 S.W.2d at 260; Searcy, 231 S.W.3d at 550. 

Accordingly, we overrule Lancaster’s fourth point.
Lancaster v. State Page 13

Judgments Nunc Pro Tunc

Lancaster contends in his fifth point13 that his right to due process was violated 

by the court’s entry of judgments nunc pro tunc without notice or an opportunity to be 

heard. He claims in his sixth point14 that the court’s entry of the judgments nunc pro 

tunc constitutes the erroneous alteration of his sentences after he had commenced 

serving them. We address these in reverse order.

At issue are Lancaster’s sentences for five counts of indecency by contact, a single 

count of indecency by exposure, and a single count of criminal solicitation. The court 

ordered that Lancaster’s sentences for indecency by exposure, criminal solicitation, and 

one count of indecency by contact run concurrently beginning with the date of 

imposition of sentence, November 19, 2007. The sentences for the other four counts of 

indecency by contact were to run consecutively thereafter.

The court signed the judgments on November 28. These judgments recited the 

concurrent and consecutive sentences by specifying the cause numbers and counts 

which were to run concurrently or consecutively. For example, the judgment in trial 

court cause no. 07-01491-CRF-272 provided in pertinent part:

The Court ORDERS that the sentence in this conviction shall run 

concurrently with the following judgments and sentences: Brazos County 

cause number 07-01489-CRF-272 (Count One), with the date of sentence 

imposed being November 19, 2007; and Brazos County cause number 07-

 

13 Lancaster’s fifth point as renumbered consists of: (1) the fourth point in his brief in cause no. 10-

08-00026-CR challenging the indecency by contact convictions; (2) the fifth point in his brief in cause no. 

10-08-00058-CR; and (3) the second point in his brief in cause no. 10-09-00156-CR.

14 Lancaster’s sixth point as renumbered consists of: (1) the fifth point in his brief in cause no. 10-08-

00026-CR challenging the indecency by contact convictions; and (2) the sixth point in his brief in cause no. 

10-08-00058-CR.
Lancaster v. State Page 14

01489-CRF-272 (Count Two), with the date of sentence imposed being 

November 19, 2007.

On January 2, 2008, the court signed judgments nunc pro tunc for each count, 

specifying the offense of conviction for each cause number recited in the 

concurrent/consecutive sentencing paragraph. For example, the judgment nunc pro 

tunc in trial court cause no. 07-01491-CRF-272 provided in pertinent part:

The Court ORDERS that the sentence in this conviction shall run 

concurrently with the following judgments and sentences: Brazos County 

cause number 07-01489-CRF-272 (Count One), for the offense of Criminal 

Solicitaion [sic] of a Minor and with the date of sentence imposed being 

November 19, 2007; and Brazos County cause number 07-01489-CRF-272 

(Count Two), for the offense of Indecency with a Child by Sexual Contact 

and with the date of sentence imposed being November 19, 2007.

Lancaster’s sixth point depends on his underlying contention that the cumulation 

orders in the original judgments signed in November 2007 were ineffective. As the 

argument goes, because the cumulation orders were ineffective, his sentences ran 

concurrently, and the trial court had no authority to correct the ineffective cumulation 

orders after he began serving his sentences. However, we reject the underlying 

premise.

The Court of Criminal Appeals has identified five recommended elements for a 

cumulation order: (1) the cause number of the prior conviction; (2) the name of the trial 

court where the prior conviction was taken; (3) the date of the prior conviction; (4) the 

term of years of the prior conviction; and (5) the nature of the prior conviction. Williams 

v. State, 675 S.W.2d 754, 763-64 (Tex. Crim. App. 1984); Strahan v. State, 306 S.W.3d 342, 

352 (Tex. App.—Fort Worth 2010, pet. filed). The purpose of these elements is to enable 
Lancaster v. State Page 15

prison authorities to know how long to detain the inmate. Williams, 675 S.W.2d at 764; 

Strahan, 306 S.W.3d at 351-52.

The elements are not mandatory so long as the judgment is “’substantially and 

sufficiently specific,’ . . . to give notice both to the defendant and to the Department of 

Corrections exactly which sentences the instant sentence is cumulated with.” Williams, 

675 S.W.2d at 764 (quoting Ex parte Lewis, 414 S.W.2d 682, 683 (Tex. Crim. App. 1967)); 

accord Strahan, 306 S.W.3d at 351-52. In fact, “a cumulation order which refers only to a 

prior cause number is sufficient if the order is entered in the same court as the sentence 

to which it is made cumulative.” Williams, 675 S.W.2d at 764; see Greer v. State, No. 03-

07-00447-CR, 2008 WL 2938795, at *2 (Tex. App.—Austin July 31, 2008, pet. ref’d) (not 

designated for publication); Holder v. State, No. 11-01-00363-CR, 2002 WL 32344923, at *1

(Tex. App.—Eastland Oct. 10, 2002, no pet.) (per curiam) (not designated for 

publication).

Here, the cumulation orders in the November 2007 judgments contained 

essentially two of the five recommended elements: (1) the cause number of the prior 

conviction; and (2) the date of the prior conviction. Although the cumulation orders do 

recite the county of the prior conviction, they do not name the particular district court15

where the prior conviction was obtained. However, because all of Lancaster’s 

convictions were obtained in the 272nd District Court of Brazos County, the recitation 

of the cause numbers of the prior convictions is all that was required to make the 

cumulation orders sufficiently specific. Id. Therefore, because the original cumulation 

 

15 Brazos County has three district courts.
Lancaster v. State Page 16

orders were sufficiently specific, the trial court’s decision to add more specificity by 

judgments nunc pro tunc after Lancaster began serving his sentences did not constitute 

an alteration of the sentences. Thus, we overrule Lancaster’s sixth point.

Lancaster contends in his fifth point that his right to due process was violated by 

the court’s entry of the judgments nunc pro tunc without notice or an opportunity to be 

heard. We addressed a similar contention in Popp v. State, No. 10-03-00263-CR, 2004 WL 

2306635 (Tex. App.—Waco Oct. 13, 2004, pet. ref’d) (not designated for publication).

The purpose of a nunc pro tunc order is to have the court records correctly 

reflect a judgment actually rendered by the trial court. See Jones v. State, 

795 S.W.2d 199, 202 (Tex. Crim. App. 1990); McGinnis v. State, 664 S.W.2d 

769, 770 (Tex. App.—Amarillo 1983, pet. ref’d). The Court of Criminal 

Appeals has said, that before any unfavorable nunc pro tunc orders are 

entered, the person convicted should be given an opportunity to be 

present for the hearing and represented by counsel, in order to accord him

due process of law. Shaw v. State, 539 S.W.2d 887, 890 (Tex. Crim. App.

1976). But more recently, the Court has said that if the trial court properly

changed the order, remanding for a hearing would be a “useless task.” 

Homan v. Hughes, 708 S.W.2d 449, 454-455 (Tex. Crim. App. 1986).

Id., 2004 WL 2306635, at *1.

Sending these appeals back to the trial court for a hearing would be a “useless 

task.” See Homan, 708 S.W.2d at 454-55; Popp, 2004 WL 2306635, at *2. Thus, we 

overrule Lancaster’s fifth point.

We affirm the judgments.

FELIPE REYNA

Justice
Lancaster v. State Page 17

Before Chief Justice Gray,

Justice Reyna, and

Justice Davis

(Chief Justice Gray concurs in the Court’s judgment to the extent it affirms the 

trial court’s judgment. A separate opinion will not issue.)

Affirmed

Opinion delivered and filed May 26, 2010

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