Opinion
NUMBER 13-14-00675-CR
12-07-2016
EDGAR GARCES DIAZ, Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the 357th District Court of Cameron County, Texas.
ORDER
Before Justices Rodriguez, Benavides, and Perkes
OrderPer Curiam
Appellant Edgar Garces Diaz appeals his convictions for capital murder and aggravated assault. See TEX. PENAL CODE ANN. §§ 19.03, 22.02 (West, Westlaw through 2015 R.S.). The jury found appellant guilty of both offenses. Upon hearing the jury's verdict on the capital murder offense, appellant had a violent outburst resulting in his removal from the courtroom. In appellant's absence, the trial court thereafter orally pronounced sentences of life imprisonment without parole for capital murder and twenty years' imprisonment for aggravated assault, to be served concurrently in the Texas Department of Criminal Justice's Institutional Division. We abate this appeal and remand to the trial court.
The sentence of life imprisonment without parole is a mandatory sentence for capital murder offenses when the State does not seek the death penalty. See TEX. PENAL CODE ANN. § 12.31(a)(2) (West, Westlaw through 2015 R.S.).
By four issues, appellant argues: (1) the trial court erred in denying appellant's motion to suppress his custodial statements; (2) the evidence was legally insufficient to establish the offense of capital murder; (3) the trial court erred in not giving the jury a "benefit of the doubt" instruction; and (4) the trial court erred in sentencing appellant in absentia.
I. JURISDICTION
Although neither party raises the issue of jurisdiction on appeal, we must determine whether the trial court's failure to pronounce appellant's sentence in his presence deprives this Court of jurisdiction. See State v. Roberts, 940 S.W.2d 655, 657 (Tex. Crim. App. 1996), overruled on other grounds by State v. Medrano, 67 S.W.3d 892, 894 (Tex. Crim. App. 2002) ("A threshold issue in any case is whether the court has the jurisdiction to resolve the pending controversy. This issue of jurisdiction is fundamental and cannot be ignored." (Internal citations omitted.)).
Courts are required to pronounce sentence orally in the defendant's presence. TEX. CODE CRIM. PROC. ANN. art. 42.03, § 1(a) (West, Westlaw through 2015 R.S.); 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). The judgment, including the sentence assessed, is merely a written manifestation of that oral pronouncement. See TEX. CODE CRIM. PROC. ANN. art. 42.01, § 1 (West, Westlaw through 2015 R.S.); Taylor, 131 S.W.3d at 500; Madding, 70 S.W.3d at 135. Oral pronouncement of the sentence in the presence of the defendant is necessary because "the imposition of sentence is the crucial moment when all of the parties are physically present at the sentencing hearing and able to hear and respond to the imposition of sentence." Madding, 70 S.W.3d at 135. "[I]t is the pronouncement of sentence that is the appealable event, and the written sentence or order simply memorializes it and should comport therewith." Coffey v. State, 979 S.W.2d 326, 328 (Tex. Crim. App. 1998). If no sentence was ever pronounced, there is no valid judgment.See Thompson v. State, 108 S.W.3d 287, 290 (Tex. Crim. App. 2003); see also Ex parte Kopecky, 821 S.W.2d 957, 960 (Tex. Crim. App. 1992) ("Punishment and sentence are incorporated in the judgment. . . . '[S]entence is a necessary component of a judgment of conviction.'" (Quoting Ball v. United States, 470 U.S. 856, 862 (1985).)). When no sentence is orally pronounced, a written judgment is not valid, and without a valid written judgment, there is no "conviction" for appellant to appeal. See Thompson, 108 S.W.3d at 290.
It is important to note the distinction between assessing punishment and pronouncing sentence. While the trial court or jury assesses a defendant's sentence, it is the trial court that imposes the sentence by orally pronouncing the sentence in the defendant's presence. See TEX. CODE CRIM. PROC. ANN. art. 37.01 (West, Westlaw through 2015 R.S.) ("A 'verdict' is a written declaration by a jury of its decision of the issue submitted to it in the case."); art. 42.01, § 1 ("A judgment is the written declaration of the court signed by the trial judge and entered of record showing the conviction or acquittal of the defendant. The sentence served shall be based on the information contained in the judgment."); art. 42.02 ("The sentence is that part of the judgment . . . that orders that the punishment be carried into execution in the manner prescribed by law."); art. 42.03, § 1(a) ("[S]entence shall be pronounced in the defendant's presence."). --------
After reviewing the record, we conclude that we lack jurisdiction over appellant's appeal because the trial court failed to orally pronounce appellant's sentence in his presence. The Rules of Appellate Procedure, however, require that we not dismiss an appeal if the trial court's erroneous action or failure to act can be corrected by the trial court. See TEX. R. APP. P. 44.4. In that regard, we are permitted to abate the appeal to allow the trial court to pronounce its sentence in open court with appellant present. See Keys v. State, 340 S.W.3d 526, 529 (Tex. App.—Texarkana 2011, no pet.) (abating appeal to allow trial court to orally pronounce sentence); Meachum v. State, 273 S.W.3d 803, 806 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (concluding abatement was proper and efficient remedy when trial court failed to pronounce sentence in appellant's presence); see also Frias v. State, No. 03-12-00463-CR, 2014 WL 1362639, at *1 (Tex. App.—Austin Apr. 4, 2014, no pet.) (mem. op.) (abating appeal and remanding to trial court to pronounce sentence in defendant's presence); Staten v. State, No. 09-09-00490-CR, 2010 WL 2696153, at *2 (Tex. App.—Beaumont July 7, 2010, no pet.) (mem. op., not designated for publication) (same).
II. CONCLUSION
We ABATE this appeal and REMAND the cause to the trial court. On remand, the trial court shall cause notice of a hearing to be given and thereafter orally pronounce the sentence assessed by the trial court in appellant's presence. We order the trial court to conduct the sentencing hearing within thirty days of this order. A reporter's record of the hearing shall be prepared and filed in the record of this appeal, together with a supplemental clerk's record containing the trial court's new judgment. These records are due to be filed in this Court within forty-five days of the date of this order. The appeal will be reinstated when the supplemental records are filed herein. On reinstatement, this Court will consider the merits of the appeal based on the record and briefs already filed.
It is so ORDERED.
PER CURIAM Do not publish.
TEX. R. APP. P. 47.2(b). Delivered and filed the 7th day of December, 2016.