Opinion
NUMBER 13-16-00209-CR
05-26-2017
ALBERT VILLARREAL, Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the 28th District Court of Nueces County, Texas.
ORDER OF ABATEMENT
Before Justices Contreras, Benavides and Longoria
Memorandum Opinion by Justice Longoria
Appellant Albert Villarreal was convicted of capital murder, murder, and injury to a child, all first-degree felonies. See TEX. PENAL CODE ANN. §§ 19.02(b)(1), 19.03(a)(8), 22.04 (West, Westlaw through 2015 R.S.). Villarreal was found guilty on all three counts. The State elected to proceed only on the capital murder charge, and the trial court orally pronounced the mandatory sentence of life in prison without parole. However, no sentence was pronounced for the other two charges, the State never filed any motions to drop the other two charges, and the written judgment states that the punishment for those two charges were "abated pending appeal."
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.).
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).
In the present case, even though the trial court orally pronounced the sentence on the capital murder charge, no sentence was announced for the other two charges. The State's actions seem to indicate its intent to only proceed with the capital murder charge, but the written judgment itself implies that the State did not intend to drop the two other charges. Further, the State never filed any motions to drop the murder and injury to a child charges. If those two charges remain outstanding, it could affect our jurisdiction of this appeal. See Thompson, 108 S.W.3d at 290.
Therefore, we abate the appeal and remand to the trial court. On remand, the trial court and the State shall clarify whether the charges for murder and injury to a child were dismissed or whether those two charges remain outstanding. The trial court shall cause a reporter's record of the hearing 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 26th day of May, 2017.