Opinion
05-23-00296-CR
07-28-2023
CHRISTOPHER UNDERHILL BROWN, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court No. 5 Dallas County, Texas Trial Court Cause No. MB21-42125-F
ORDER
ROBERT D. BURNS, III CHIEF JUSTICE
The trial court did not pronounce sentence in appellant's presence. The record shows that the trial court received the jury's verdict assessing appellant's punishment at a fine of $500 and confinement in the county jail for three days. The court released the jury and discussed with counsel the amount of appellant's back time. The trial court then dismissed the parties and the proceedings concluded.
A trial court must pronounce a defendant's sentence orally in the defendant's presence. Tex. Code Crim. Proc. Ann. art. 42.03, § 1(a); Taylor v. State, 131 S.W.3d 497, 500 (Tex. Crim. App. 2004); Ex parte Madding, 70 S.W.3d 131, 135 (Tex. Crim. App. 2002)). If sentence is not orally pronounced, the trial court's written judgment is invalid and without a valid written judgment there is no conviction to appeal. Garcia v. State, No. 07-18-00388-CR, 2019 WL 4399480, at *1 (Tex. App.-Amarillo Sept. 13, 2019, no pet.). Hence, an appellate court lacks jurisdiction even though a notice of appeal is filed. Id.
In the present matter, because sentence was not orally pronounced in appellant's presence, we lack jurisdiction over appellant's appeal. Keys v. State, 340 S.W.3d 526, 529 (Tex. App.-Texarkana 2011, no pet.). However, the problem is remediable without dismissal. We may abate the appeal and remand the cause to the trial court to pronounce sentence in open court in the defendant's presence. See Tex. R. App. P. 44.4(b); Meachum v. State, 273 S.W.3d 803, 806 (Tex. App.-Houston [14th Dist.] 2008, no pet.)
Accordingly, we ORDER the trial court to hold a hearing within THIRTY DAYS of the date of this order and pronounce sentence in appellant's presence. A supplemental reporter's record of the sentencing hearing shall be prepared and filed with this Court within FORTY-FIVE DAYS of the date of this order. The trial court shall sign an amended judgment, and the county criminal courts clerk shall file with this Court a supplemental clerk's record containing the amended judgment within FORTY-FIVE DAYS of the date of this order.
Appellant's brief on the merits is due THIRTY DAYS after the supplemental clerk's and reporter's records are filed.
We DIRECT the Clerk to send copies of this order to the Honorable Lisa Green, Presiding Judge, County Criminal Court No. 5, Dallas County; Sherry Rust, Official Court Reporter for County Criminal Court No. 5; John Warren, Clerk of the County Criminal Courts of Dallas County, Texas; and counsel for all parties.
This appeal is ABATED to allow the trial court to comply with the above order. This appeal will be reinstated when the supplemental reporter's and clerk's records are filed or at such time as the Court deems proper.