Opinion
NUMBER 13-15-00470-CRNUMBER 13-15-00471-CR
07-29-2016
SAMMY VALDEZ, APPELLANT, v. THE STATE OF TEXAS, APPELLEE.
On appeal from the 221st District Court of Montgomery County, Texas.
ORDER OF ABATEMENT
Before Chief Justice Valdez, Justices Garza and Longoria
OrderPer Curiam
This case is before this Court on transfer from the Ninth Court of Appeals in Beaumont pursuant to a docket-equalization order issued by the Supreme Court of Texas. See TEX. GOV'T CODE ANN. § 73.001 (West, Westlaw through 2015 R.S.).
Appellant Sammy Valdez has appealed his conviction by a jury for two counts of aggravated robbery. See TEX. PENAL CODE ANN. § 29.03(a)(2) (West, Westlaw through 2015 R.S.). The jury assessed punishment at life imprisonment on both counts pursuant to the habitual-offender statute. See id. § 12.42(c)(1) (West, Westlaw through 2015 R.S.). According to the record, however, the trial court never orally pronounced the jury's sentence.
The record reveals that the trial judge read out the jury's verdict on punishment in open court but did not orally pronounce the sentence. Instead, the judge polled the jury at appellant's request, thanked the jury for their service, and recessed the trial. A docket sheet entry dated the next day reflects that the trial court entered a written judgment on both counts, but not that the court pronounced the jury's sentence with the defendant present.
The Texas Code of Criminal Procedure requires courts to orally pronounce sentence in the defendant's presence. TEX. CODE CRIM. PROC. ANN. art. 42.03, § 1(a) (West, Westlaw through 2015 R.S.); see Taylor v. State, 131 S.W.3d 497, 500 (Tex. Crim. App. 2004). "A trial court's pronouncement of sentence is oral, while the judgment, including the sentence assessed, is merely the written declaration and embodiment of that oral pronouncement." Ex parte Madding, 70 S.W.3d 131, 135 (Tex. Crim. App. 2002); see TEX. CODE CRIM. PROC. ANN. art. 42.01, § 1 (West, Westlaw through 2015 R.S.). The rationale behind this rule is that the imposition of sentence is the "crucial moment" when all parties are physically present in the courtroom and are able to hear and respond to the sentence. Ex parte Madding, 70 S.W.3d at 135.
In a criminal case, "it is the pronouncement of sentence that is the appealable event, and the written sentence or order simply memorializes it and should comport therewith." Id. (quoting Coffey v. State, 979 S.W.2d 326, 328 (Tex. Crim. App. 1998)). If the trial court does not orally pronounce sentence, the written judgment is invalid. Thompson v. State, 108 S.W.3d 287, 290 (Tex. Crim. App. 2003). "Without a valid written judgment, there is no 'conviction' for appellant to appeal," and the appellate court lacks jurisdiction to address the appellant's issues. Id.; see Meachum v. State, 273 S.W.3d 803, 806 (Tex. App.—Houston [14th Dist.] 2008, order).
We conclude that we lack jurisdiction over appellant's appeal because the trial court did not orally pronounce the jury's sentence in his presence. See Thompson, 108 S.W.3d at 290; Meachum, 273 S.W.3d at 806; see also Staten v. State, No. 09-09-00490-CR, 2010 WL 2696153, at *2 (Tex. App.—Beaumont July 7, 2010, order). We will not dismiss this case because we may not dismiss an appeal if the trial court can correct its erroneous action or failure to act that prevents the proper presentation of the case to the appellate court. TEX. R. APP. P. 44.4(a). In that situation, we must instruct the trial court to correct the error and then proceed as if the error never occurred. Id. R. 44.4(b). The trial court's failure to orally pronounce sentence can be corrected by pronouncing sentence with appellant present. See Meachum, 273 S.W.3d at 806 (abating appeal for trial court to orally pronounce sentence with the appellant present); Keys v. State, 340 S.W.3d 526, 529 (Tex. App.—Texarkana 2011, order) (abating for the same reason); see also Staten, 2010 WL 2696153, at *2 (same). Guided by the forgoing precedents, we will abate this appeal and remand the case to the trial court to allow it to pronounce appellant's sentence in open court with him present.
We abate the appeal and remand to the trial court. On remand, the trial court shall pronounce the sentence assessed by the jury in open court during a hearing in which all parties are present. The trial court shall cause a reporter's record of the sentencing to be prepared and filed with this Court within thirty days of the date of this order. The case shall be reinstated upon further order of this Court.
We respectfully request the trial court to notify this Court before the expiration of the thirty-day period if it needs more time. --------
It is so ORDERED
PER CURIAM Delivered and filed the 29th day of July, 2016.