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Date: 03-14-2019

Case Style:

Dominique Sheppard v. The State of Texas

Case Number: 02-18-00187-CR

Judge: Bonnie Sudderth

Court: Court of Appeals Second Appellate District of Texas at Fort Worth

Plaintiff's Attorney: Steven W. Conder
Joseph W. Spence

Defendant's Attorney: Aaron C. 'Clay' Graham

Description:





Appellant Dominique Sheppard was indicted on two counts of assault-family
violence with a previous assault-family violence conviction. See Tex. Penal Code Ann.
§ 22.01. Sheppard pleaded not guilty to count one, which alleged that he had impeded
the complainant’s normal breath or blood circulation by applying pressure to her
throat or neck. He pleaded guilty to count two, which alleged that he had caused
bodily injury to the complainant by “squeezing her with his hand, or by pushing her
into or against a wall with his hand.” The jury acquitted Sheppard of count one and
found him guilty of count two,1 but the judgment on count two reflects “assault
family member impede breath/circula/prev conv,” i.e., the offense alleged in count
one, while the judgment of acquittal on count one reflects “assault family/household
member with previous conviction,” i.e., the offense alleged in count two.
In two points, Sheppard appeals his conviction on count two, arguing that the
jury fee assessed under code of criminal procedure article 102.004(a) is facially
unconstitutional as a violation of the state constitution’s separation-of-powers clause
and that the trial court’s judgment incorrectly states the offense of which he was
convicted.
The State acknowledges—and the record reflects—that the written judgment
“inverts the[] two charges,” and it asks us to modify the judgment to reflect
1The trial court assessed Sheppard’s punishment for his conviction on count two at six years’ confinement.
3
Sheppard’s actual conviction. See Taylor v. State, 131 S.W.3d 497, 500 (Tex. Crim. App.
2004) (“When there is a conflict between the oral pronouncement of sentence and the
sentence in the written judgment, the oral pronouncement controls.”); see also Burt v.
State, 445 S.W.3d 752, 757 (Tex. Crim. App. 2014) (reciting that a trial judge has
neither the statutory authority nor the discretion to orally pronounce one sentence in
front of the defendant but then to enter a different written judgment outside the
defendant’s presence). Accordingly, we sustain Sheppard’s second point and modify
the judgment to reflect Sheppard’s actual conviction.
With regard to Sheppard’s first point, we recently held in Alvarez v. State, No.
02-18-00193-CR, 2019 WL 983750, at *4–5 (Tex. App.—Fort Worth Feb. 28, 2019,
no pet. h.), that article 102.004(a) is not facially unconstitutional as violating the
separation-of-powers clause of the Texas constitution.

Outcome: Accordingly, we decline his invitation to reconsider that ruling, overrule his first point, and affirm the trial court’s judgment as modified.

Plaintiff's Experts:

Defendant's Experts:

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