In The Court of Appeals Seventh District of Texas at Amarillo No. 07-23-00340-CR

ROLANDO D. BECKS, APPELLANT V. THE STATE OF TEXAS, APPELLEE On Appeal from the 443rd District Court Ellis County, Texas1 Trial Court No. 46772CR, Honorable Cynthia Ermatinger, Presiding July 24, 2024 MEMORANDUM OPINION Before QUINN, C.J., and PARKER and YARBROUGH, JJ.

A jury convicted Appellant, Rolando D. Becks, of sexual assault,2 a second-degree felony, and assessed twenty years’ imprisonment for the offense. In its written judgment, the trial court ordered that the sentence run consecutively with another sentence.3 Appellant filed this appeal contending that the cumulation order was not pronounced in

2 See TEX. PENAL CODE ANN. § 22.011(a)(1).

Appellant filed his notice of appeal on September 14, 2023. The clerk’s record was filed in this Court on December 8, 2023, and the reporter’s record was filed on January 5, 2024. Thus, the trial court’s July 1, 2024 judgment nunc pro tunc was entered after the record had been filed in this Court and while Appellant’s appeal was pending.

At that time, the trial court lacked jurisdiction to enter the judgment nunc pro tunc. See TEX. R. APP. P. 23.1 (trial court has authority to correct clerical mistakes or errors in judgment through entry of nunc pro tunc so long as defendant has not appealed); TEX. R. APP. P. 25.2(g) (except as provided otherwise by law, once appellate record is filed in court of appeals, proceedings in trial court are suspended); see also Harrison v. State, No. 06-11-00175-CR, 2012 Tex. App. LEXIS, at *8 (Tex. App.—Texarkana May 18, 2012, pet. ref’d) (trial court may not render judgment nunc pro tunc after appellate record is filed in court of appeals) (citing TEX. R. APP. P. 25.2(g); Green v. State, 906 S.W.2d 937, 939 (Tex. Crim. App. 1995)).

However, this Court can modify the trial court’s judgment. TEX. R. APP. P. 43.2(b).

“The Texas Rules of Appellate Procedure give us authority to reform judgments and correct typographical errors to make the record speak the truth.” Torres v. State, No. 07-

13-00179-CR, 2014 Tex. App. LEXIS 2664, at *4–5 (Tex. App.—Amarillo Mar. 7, 2014, no pet.) (mem. op., not designated for publication) (citing TEX. R. APP. P. 43.2 and French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992) (en banc)). An appellate court may reform a judgment that has errors in sentencing if the trial court improperly stacked the sentences. Morris v. State, 301 S.W.3d 281, 295 (Tex. Crim. App. 2009).

The record clearly shows that the written judgment includes a cumulation order which had not been orally pronounced to Appellant at sentencing. If a trial judge chooses to “stack” a defendant’s sentences so that they run consecutively, she “must make such an order at the time and place that sentence is orally pronounced.” Ex parte Madding, 70 S.W.3d 131, 136 (Tex. Crim. App. 2002). Moreover, oral pronouncements generally control when they conflict with the written judgment. Ette v. State, 559 S.W.3d 511, 516– (Tex. Crim. App. 2018).

Because the July 1 judgment nunc pro tunc is void, and because the trial court erred in entering a judgment stating Appellant’s sentence was to run consecutively with another, we sustain Appellant’s first issue on appeal. Given our resolution of Appellant’s first issue, we need not consider his second issue. TEX. R. APP. P. 47.1.

We modify the judgment of the trial court to delete the cumulation order and to reflect that the sentence in this case shall run concurrently with the sentence in Cause No. 46643CR. As modified, we affirm the judgment of the trial court.

Judy C. Parker Justice Do not publish.