Opinion
05-23-01254-CR
05-07-2024
ALLIEU BAYOH, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 296th Judicial District Court Collin County, Texas Trial Court Cause No. 296-80770-2022.
ORDER
AMANDA L. REICHEK JUSTICE
The reporter's record filed March 26, 2024, does not show the trial court orally pronounced the sentence in appellant's presence.
The record shows the trial court received the jury's verdict, read the verdict in open court, thanked the jurors for their service, and released the jury. The trial court then said, "We can go off the record." The reporter's record does not show that the trial court pronounced sentence in appellant's presence.
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. Thompson v. State, 108 S.W.3d 287, 290 (Tex. Crim. App. 2003). In that situation, the court of appeals lacks jurisdiction even though a notice of appeal has been filed. Keys v. State, 340 S.W.3d 526, 529 (Tex. App.- Texarkana 2011, no pet.).
In the present matter, because sentence was not orally pronounced in appellant's presence, we lack jurisdiction over appellant's appeal. Id. 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); Keys, 340 S.W.3d at 529; 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 showing the date of sentencing, and the district 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.
The State's brief is due THIRTY DAYS after the amended judgment and supplemental reporter's record are filed with this Court.
We DIRECT the Clerk to send copies of this order to the Honorable John Roach, Presiding Judge, 296th Judicial District Court; Honorable Paul Banner, Assigned Judge, 296th Judicial District Court; Michael Gould, Collin County District Clerk; Jan Dugger, Official Court Reporter, 296th District Court; Destiny Moses, Official Court Reporter, 416th District Court; and counsel for all parties.
We ABATE this appeal for the trial court to comply with this order. The appeal shall be reinstated when the Court receives the trial court's amended judgment and the supplemental reporter's record or at such other time as the Court deems appropriate.