Opinion
No. 13-06-428-CR
Opinion delivered and filed August 25, 2008. DO NOT PUBLISH. Tex. R. App. P. 47.2(b).
On appeal from the 117th District Court of Nueces County, Texas.
Before Justices YAÑEZ, RODRIGUEZ, and VELA. Opinion by Justice YAÑEZ.
OPINION
After a bench trial, a trial judge found Abraham Chavez Guerrero guilty of various criminal offenses and pronounced punishment at five years' imprisonment. Later that same day, the trial judge changed her finding of guilt to not guilty and entered a judgment of acquittal. The State appeals the trial court's judgment, asserting that a judgment of conviction must be entered because the trial judge lacked the power to change her own reasoned finding of guilt to not guilty. We find that, under the factual circumstances presented herein, the trial judge was free to change her finding. Because the State is appealing from a valid judgment of acquittal, we further find that the State has no right to appeal, and its appeal must be dismissed for want of jurisdiction.
I. Background
On July 14, 2005, Guerrero was indicted on one count of attempted sexual assault of a child and two counts of indecency with a child. Guerrero waived his right to a jury trial and elected to have the court assess punishment. A bench trial commenced on July 10, 2006. The child in question, D.F., testified at trial. D.F., a sixteen-year-old female at the time of the alleged assault, and the younger sister of Guerrero's fiancee, testified that Guerrero had made physical, unwanted sexual advances towards her as she laid in her bedroom. Guerrero, testifying in his defense, contested the truthfulness of D.F.'s testimony. According to Guerrero, it was D.F. who made a sexual advance towards him; he immediately rejected the advance and told D.F. that he would be telling her sister about the incident, which D.F. protested because she feared her sister would be upset with her. After both the State and Guerrero gave their closing arguments, the trial judge stated the following:You know, in all sexual assault cases, generally speaking, there's only two people there. And it becomes a credibility issue between the victim and the alleged perpetrator. And so, you have to listen attentively and I had the advantage of hearing [D.F.] in the previous trial as well. You would have to come to the conclusion that this was a huge fabrication. And you would have to be unimpressed with the multiple details and the chronology of what occurred. And so, I'm going to find that, beyond a reasonable doubt, Mr. Guerrero, that you are guilty of attempted sexual assault of a child. And I'm also going to find that you are guilty of two counts of indecency with a child.The trial judge then pronounced Guerrero's punishment, stating:
Having found you guilty of Count One, attempted sexual assault of a child, I'm going to sentence you to five years in the Texas Department of Criminal Justice. And having found you guilty of two counts of indecency with a child, I'm going to assess punishment at five years for each count. All of these will run concurrent. That is the order of the Court.After this pronouncement, Guerrero's defense counsel left the courthouse, and the State's counsel informed the victim of the verdict and left the courtroom. Guerrero was taken out of the courtroom and placed in the courthouse's holding cell. Approximately twenty minutes later, the trial judge called Guerrero and the State's counsel back into the courtroom. Attempts were made to get Guerrero's defense counsel to return to the courtroom, but his counsel could not be reached. As a result, a former district judge, who was found in the courthouse, was brought into the courtroom to stand-in as Guerrero's defense counsel. The trial judge then stated the following on the record:
All right. Mr. Guerrero, go ahead and stand. I try very hard to be comfortable with the rulings that I make. And after you left the courtroom it didn't sit well with me. So, I am going to reverse my ruling. And I am going to find you not guilty on Counts One, Two, and Three. I find that I have a reasonable doubt. By preponderance of the evidence, if it was a civil case, I wouldn't have a doubt. But I don't think there's sufficient evidence to overcome the doubt that I have with regards to perhaps the victim wanting to beat you to the punch on telling her sister over what transpired. So, that is the ruling. It is not guilty on Counts One, Two, and Three, Mr. Guerrero.The State did not protest this finding at trial. The State filed its notice of appeal on July 17, 2006, and the court entered a judgment of acquittal two days later.
II. Properly Framing the Issue Before this Court
Article 42.01 of the code of criminal procedure states that a trial court's judgment should reflect "[t]he verdict or verdicts of the jury or the finding or findings of the court." In a jury trial, "the written verdict provides the basis for reforming an erroneous recitation in judgment and sentence. In a bench trial the statement by the judge in the record is the only comparable source that may be consulted to learn the decision of the fact finder." "A judgment or sentence may only be reformed `to cause those instruments to reflect the true finding of the fact finder when such a finding is reflected in the verdict or, in a bench trial, the pronouncement of the court's finding.'" The trial judge stated on the record that she found Guerrero guilty, and that he would have to serve five years in prison. At that moment in time, those statements constituted the court's findings and, as such, dictated what the court's entered judgment must reflect. The trial judge, however, later retracted the court's earlier findings by making additional statements on the record, whereupon the judge found Guerrero not guilty. The court then entered a judgment reflecting this later finding, as article 42.01 would seem to require. But does article 42.01 demand that the entered judgment reflect the trial judge's finding of not guilty, rather than the judge's previous finding of guilt? Perhaps the more appropriate question is the following: When does a trial judge surrender his or her ability to withdraw a finding of guilt? This latter question succinctly captures the State's sole issue on appeal: "Whether a trial court has the authority to sua sponte set aside its finding of guilty after a bench trial, pronouncement of sentence, and all parties left the courtroom."III. The State's Appeal is not Barred by Double Jeopardy
"There is a good deal more to be said about the instant cause than that a judgment of acquittal was entered by the trial judge before we can know for sure whether" the State's appeal raises a double jeopardy concern. This is because an accused will not be subject to double jeopardy unless the accused was actually acquitted. In Ex parte George, the court of criminal appeals stated that the word "acquittal" means "a finding of fact that the accused is not guilty of the criminal offense with which he is charged. And not just any finding of fact either. It is an official factfinding. . . ." Whether or not the judgment of acquittal in this case was the product of an "official factfinding" is the very question this Court has been asked to answer. If, as the State contends, the trial judge was bound by her original finding of guilt, then article 42.01 prohibited her from entering a judgment of acquittal. Despite Guerrero's assertions to the contrary, any failure by the trial court to comply with article 42.01 would result in a void judgment. As explained by the court of criminal appeals: A trial court may have jurisdiction to act over a case, yet lack authority to act in a particular manner over that case. . . . Lack of authority to act in a particular manner may render the judgment either void or voidable depending on the type of the error, however. Unauthorized acts (or errors) can be characterized as either "illegal" or "irregular." "Illegal acts" are defined as "acts that are not authorized by law." On the other hand, "irregular acts" are defined as "acts or practices that vary from the normal conduct of an action." While a judgment is merely "voidable for irregularity," it is "void for illegality."If the law only recognizes the trial judge's original finding of guilt, then the entry of a judgment of acquittal was more than a variance from the normal conduct prescribed by article 42.01. Moreover, the trial judge's action would be outside the parameters of any rule or procedure in place at that time. If so, the trial judge's act of entering a judgment of acquittal would be more than a mere violation of statutory procedure; the action would be unauthorized by law and, as such, would be void.
See id. 225.
IV. The State's Right to Appeal Under Article 44.01
The State contends that it can appeal the trial court's judgment of acquittal because the judgment constitutes either the granting of a new trial, or a modified judgment. We reject the State's contention that it can appeal the trial court's judgment because it constitutes the granting of a motion for new trial. Though this Court and the court of criminal appeals have liberally interpreted the provision, "grants a new trial," so as to allow the State to appeal various trial court decisions, this has always occurred when the defendant actually raised some sort of motion. In the case at hand, no motions were raised by either party prior to the trial judge revising her findings and pronouncing Guerrero not guilty. Moreover, the judgment of acquittal can hardly be construed as the functional equivalent of the granting of a motion for new trial because the trial court did not previously enter a judgment of conviction. We do believe, however, that — if the trial court was bound by its original finding of guilt — then the State can appeal the trial court's judgment of acquittal because it constitutes a modified judgment. We arrive at this determination recognizing that the record does not reflect that the trial court first entered a judgment of conviction before it entered its judgment of acquittal. Nonetheless, there are cases in which appellate courts have interpreted a judgment as being "modified" when it failed to reflect a jury's verdict, even though the trial court only entered one judgment, and that judgment was never altered. If a judgment can be construed as modified when it departs from a verdict in a jury trial, then it can similarly be construed as modified when it purposely departs from a finding in a bench trial.V. Could the Trial Judge Abandon the Finding of Guilt?
On appeal, Guerrero asserts that a trial court can change its finding of guilt to a finding of not guilty, after the court pronounces punishment, but no later than the time the court pronounces punishment and adjourns for that day. Accordingly, Guerrero asserts that the trial judge could find him not guilty because she did so after punishment was pronounced, but before the court had adjourned for the day. We have found no case law from this State explicitly supporting Guerrero's position, and attempts to find guidance from other states only reveals case law adverse to his claim. In this case law, appellate courts have denied trial courts the authority to abandon a finding of guilt because of double jeopardy and public policy concerns, as well as a belief that a judge should not be able to abandon a pronounced finding any more than he or she can abandon a jury's verdict. And while we have taken these cases into consideration, this Court's evaluation of the propriety of Guerrero's position is ultimately predicated upon various holdings from the court of criminal appeals. In Luna v. State, Luna appealed his conviction to this Court, arguing that "a jury deliberating on punishment has the right to reconsider its determination of guilt after hearing additional evidence during the punishment phase of the trial." We rejected Luna's argument on the basis that jury trials are bifurcated, stating: In Texas, criminal trials are bifurcated into a guilt/innocence phase and a punishment phase. Article 37.07 authorizes the trial court to "first submit to the jury the issue of guilt or innocence of the defendant of the offense or offenses charged, without authorizing the jury to pass upon the punishment to be imposed." If a finding of guilty is returned, a separate hearing is held at which evidence relevant to punishment may be introduced by the State and by the defendant. Punishment is then assessed by the trial court or, if the defendant has so elected, by the jury. The Legislature clearly intended "determination of guilt" and "assessment of punishment" to be two separate proceedings. It made no provision for a reconsideration of the decision on guilt, after the punishment phase has begun. Adopting [Luna's] interpretation . . . would negate the system of bifurcation clearly intended by the Legislature, and would in effect transform the determination of guilt and punishment into a single proceeding.The court of criminal appeals has held, however, that the bifurcation statute applies only to pleas of not guilty before a jury; it has no application to a plea of not guilty before a trial court. The court has thus held that a trial judge may continue to consider evidence on the issue of guilt after it has pronounced its finding of guilt. This is because "the decision of the [trial] court in a unitary trial is not fixed until it renders judgment on guilt and punishment after all the evidence and arguments have been heard."
Barfield v. State, 63 S.W.3d 446, 449-50 (Tex.Crim.App. 2001).
See id. at 451; Jones v. State, 532 S.W.2d 596, 597 (Tex.Crim.App. 1976).
Barfield, 63 S.W.3d at 451.
VI. Conclusion
Because the trial court changed its finding of guilt after pronouncing punishment, but before the court had adjourned for the day, we find that the court's judgment of acquittal is valid, rather than void. Moreover, because the trial judge had the power to change her reasoned finding of guilt to not guilty, we reject the State's contention that the trial court's judgment of acquittal constitutes a modified judgment. As a result, we find that the State has no right to appeal, and that its appeal must be dismissed for want of jurisdiction.CONCURRING OPINION
I concur with the majority's finding that the State has no right to appeal and with their decision to dismiss the appeal for want of jurisdiction. I write separately to address the reasoning that I believe supports the result. Article 44.01(a) of the Texas Code of Criminal Procedure provides, in relevant part:(a) The state is entitled to appeal an order of a court in a criminal case if the order:
(1) dismisses an indictment, information or complaint or any portion of an indictment, information or complaint;
(2) arrests or modifies a judgment;
(3) grants a new trial;
(4) sustains a claim of former jeopardy; or
(5) grants a motion to suppress evidence, a confession, or an admission, if jeopardy has not attached in the case and if the prosecuting attorney certifies to the trial court that the appeal is not taken for the purpose of delay and that the evidence, confession, or admission is of substantial importance in the case;
* * * *Tex. Code Crim. Proc. Ann. art. 44.01(a) (Vernon Supp. 2008). The State may also appeal a sentence on the ground that it is illegal and may appeal a ruling on a question of law if the defendant is convicted and appeals the judgment. See id. at art. 44.01(b), (c). However, the State's right to appeal does not exist when double jeopardy prohibits further prosecution following acquittal. State v. Moreno, 807 S.W.2d 327, 332 n. 6 (Tex.Crim.App. 1991). Accordingly, if the order that the trial court enters in a case constitutes an acquittal, even if it is erroneous, then the State may not appeal it. State v. Stanley, 201 S.W.3d 754, 759 (Tex.Crim.App. 2006). Thus, in order to decide whether this case is properly before this Court, we must determine whether further prosecution of Guerrero is barred regardless of any irregularity in the proceedings below. Both the United States and Texas Constitutions provide that no person may be twice put in jeopardy for the same offense. U.S. Const. amends. V, XIV; Tex. Const. art. I, § 10. Our state constitution further provides that no person may be put to trial for the same offense after a verdict of not guilty in a court of competent jurisdiction. Tex. Const. art. I, § 10. Finally, the code of criminal procedure provides that an acquittal of the defendant prohibits a second trial for the same offense, however irregular the proceedings may have been. Tex. Code Crim. Proc. Ann. art. 1.11 (Vernon 2005). Before a defendant can be placed in double jeopardy, he or she must have been put in jeopardy before, that is, jeopardy must have attached at an earlier proceeding. In Texas, "jeopardy attaches [at a bench trial] when both sides have announced ready and the defendant has pled to the charging instrument." State v. Torres, 805 S.W.2d 418, 421 (Tex.Crim.App. 1991). Here, both sides were ready to try the case to the bench, and Guerrero pleaded not guilty to the three offenses. Accordingly, jeopardy attached at the proceeding below in the cause now before this Court. Thus, the question becomes whether Guerrero was acquitted or found not guilty within the meaning of article 1.11 of the Texas Code of Criminal Procedure and the second clause of article I, section 10 of the Texas Constitution. An acquittal means a finding of fact that the accused is not guilty of the criminal offense with which he or she is charged "made in the context of an adversary proceeding, by an individual or group of individuals with the legal authority to decide the question of guilt or innocence." Ex parte George, 913 S.W.2d 523, 527 (Tex.Crim.App. 1995). Here, the record shows the trial court, after hearing the evidence, found Guerrero guilty of the three offenses. Shortly after sentencing him, the trial court, sua sponte, reconsidered its ruling and found him "not guilty" of the three offenses. Therefore, because the trial court, in the context of an adversary proceeding, found Guerrero not guilty of the offenses with which he was charged, he was put in jeopardy for the charged offenses. See Tex. Const. art. I, § 10; Tex. Code Crim. Proc. Ann. art. 1.11 (Vernon 2005). The State asserts this Court has jurisdiction over this case pursuant to article 44.01(a)(2) of the Texas Code of Criminal Procedure. Id. art. 44.01(a)(2). In Gutierrez, the court of criminal appeals concluded that "[a]rticle 44.01(a)(2) provides that the State may appeal a trial court's order if the `order modifies a judgment.' We decide that this provision clearly allows the State to appeal from such an order that reduces a defendant's sentence, and that is signed after the trial court's plenary jurisdiction has expired." State v. Gutierrez, 129 S.W.3d 113, 114 (Tex.Crim.App. 2004). However, the present case does not involve an order modifying a judgment nor does it involve a reduction of Guerrero's sentence. Rather, the trial court entered a judgment of acquittal. A judgment of acquittal is not a ground upon which the State may appeal. See Tex. Code Crim. Proc. Ann. art. 44.01(a) (Vernon Supp. 2008); State v. Taylor 886 S.W.2d 262, 265-66 (Tex.Crim.App. 1994) (stating that article 44.01(a)(1) does not embrace either an order of "acquittal" or an order dismissing a "prosecution" based upon insufficient evidence); Moreno, 807 S.W.2d at 332 n. 6 (stating that it is well settled that a verdict of acquittal cannot be reviewed regardless of how egregiously wrong the verdict may be); see also Stanley, 201 S.W.3d at 759 (if trial court's order constituted an acquittal, even if erroneously, then State may not appeal it). In the alternative, the State argues that by setting aside its finding of guilt, the trial court granted a new trial sua sponte. I disagree. The court of criminal appeals held in Zaragosa that a trial court does not have the authority to grant a new trial unless the defendant requests one. Zaragosa v. State, 588 S.W.2d 322, 326-27 (Tex.Crim.App. 1979). While those portions of the code of criminal procedure that were discussed in Zaragosa have been replaced by the Texas Rules of Appellate Procedure, the rule appears to be the same. See State v. Aguilera, 165 S.W.3d 695, 698 n. 9 (Tex.Crim.App. 2005) ("[A] trial court does not have authority to grant a new trial on its own motion; there must be a timely motion for such by the defendant."); Harris v. State, 958 S.W.2d 292, 293 (Tex.App.-Fort Worth 1997, pet. ref'd) ("A motion for new trial in a criminal case may only be granted upon timely motion of the defendant."). In this case, because Guerrero did not request a new trial, the trial court could not have granted a new trial on its own motion. See id. With these comments, I concur in the result.