Opinion
No. 06-11-00266-CR
06-20-2012
MICHAEL PAUL JAMES, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 71st Judicial District Court
Harrison County, Texas
Trial Court No. 11-0105X
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION
Michael Paul James was convicted of burglary of a building pursuant to his open plea of guilty. The trial court pronounced a sentence of "18 months in a state jail facility" with "credit for all back-time that you have in this matter." James' counsel left the courtroom after this sentence was pronounced. Nevertheless, a discussion occurred "off the record," the court reporter noted that James was "speaking over the Judge," and the court changed the sentence to "two years in a state jail facility." The judgment recites that James was sentenced to twenty-four months in state jail. James argues that the trial court erred in "increasing the sentence previously assessed in the absence of defense counsel and in the probable absence, if not within hearing of, the defendant." The State confirms that "after his counsel had left the courtroom, the trial court had [James] brought back before the bench and changed his sentence."
A criminal defendant's right to counsel is guaranteed by both the federal and state constitutions. U.S. CONST. amend. VI; TEX. CONST. art. I, § 10. The attachment of the constitutional right to counsel occurs at all critical stages of prosecution. Wesbrook v. State, 29 S.W.3d 103, 117 (Tex. Crim. App. 2000). "Whether a particular part of the trial process is a 'critical stage' is determined not by whether the defendant suffered prejudice by the absence of effective assistance of counsel during that part of the proceedings, but rather, whether critical rights of a defendant can be lost at the stage in question." Medley v. State, 47 S.W.3d 17, 22 (Tex. App.—Amarillo 2000, pet. ref'd). "[S]entencing is a critical stage of the criminal proceeding." Gardner v. Florida, 430 U.S. 349, 358 (1977). The State, properly fulfilling its duty of candor, concedes error and cites to State v. Davis, which noted that "re-sentencing must be done in the presence of the defendant, his attorney, and counsel for the state." 349 S.W.3d 535, 539 (Tex. 2011) (quoting State v. Aguilera, 165 S.W.3d 695, 697-98 (Tex. Crim. App. 2005)).
TEX. RULES PROF'L CONDUCT R. 3.03(a)(4), reprinted in TEX. GOV'T CODE ANN. tit. 2, subtit. G, app. A (West 2005).
In United States v. Cronic, the Supreme Court recited that complete denial of counsel at a critical stage is presumptively harmful. 466 U.S. 648, 659 (1984). Likewise, the Texas Court of Criminal Appeals has held that such denial is a structural defect, not subject to a harm analysis. Williams v. State, 252 S. W. 3d 353, 357 (Tex. Crim. App. 2008).
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All parties agree that a new punishment hearing is merited. We affirm the judgment of conviction, but reverse and remand the cause for a new trial on punishment only pursuant to TEX. CODE CRIM. PROC. ANN. art 44.29(b) (West Supp. 2011).
Jack Carter
Justice
Do Not Publish