Opinion
09-23-00407-CR
12-13-2024
DARRELL LEE BELKEN, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 260th District Court Orange County, Texas Trial Cause No. D220312-R
Before Johnson, Wright and Chamber, JJ.
MEMORANDUM OPINION AND ORDER
PER CURIAM
A grand jury indicted Appellant Darrell Lee Belken for possession of a controlled substance, namely methamphetamine, in an amount of four grams or more but less than 200 grams. The State alleged two previous felony convictions as enhancements. Belken pleaded not guilty, but a jury found him guilty as charged in the indictment. After a hearing on punishment, the jury found the two alleged enhancements true and assessed punishment at 25 years of confinement. At the conclusion of the punishment phase, the trial court read the jury's punishment verdict in open court with Belken present, but it did not orally pronounce the sentence.
On appeal, Belken challenges his conviction in ten issues, and the last two issues concern the trial court's failure to orally pronounce his sentence:
Belkin's other issues challenge the sufficiency of the evidence to support his conviction and the admission and exclusion of certain evidence.
Issue No. Nine: The trial court failed to orally pronounce sentence in accordance with the mandatory requirement of Article 42.03 of the Texas Code of Criminal Procedure.
Issue No. Ten: This Court of Appeals is without jurisdiction to address the significant issues on appeal because of the failure of the trial court to pronounce sentence herein requiring an abatement and remand for proper sentencing.
We limit this opinion to these two issues because they are jurisdictional challenges.
After the hearing on punishment, the trial court read the jury's verdict as follows:
Verdict reads as follows: We, the jury, having found the defendant, Darrell Lee Belken, guilty of possession of a controlled substance, as alleged in the indictment - - [] find that both of the accusations of prior convictions to be true. We assess his punishment at confinement in the Texas Department of Criminal Justice Division [sic] for a term of 25 years. In addition, we assess a fine of zero.
The State agrees that the trial court did not orally pronounce Belken's sentence, and it asks this Court to remand the case so that the trial court may orally pronounce the sentence in accordance with the jury's verdict.
With certain statutory exceptions that do not apply here, a defendant's sentence must be pronounced orally in his presence. Taylor v. State, 131 S.W.3d 497, 500 (Tex. Crim. App. 2004) (citing Tex. Code Crim. Proc. Ann. art. 42.03, § 1(a); Ex parte Madding, 70 S.W.3d 131, 135 (Tex. Crim. App. 2002)). The judgment, including the sentence assessed, is a written manifestation of the oral pronouncement. See Tex. Code Crim. Proc. Ann. art. 42.01, § 1; Taylor, 131 S.W.3d at 500; Ex parte Madding, 70 S.W.3d at 135. If no sentence was ever rendered, there is no valid judgment. See 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." Id. This Court has previously concluded that the oral pronouncement of sentence in the defendant's presence is required to vest this Court with jurisdiction over the defendant's appeal. Staten v. State, No. 09-09-00490-CR, 2010 Tex.App. LEXIS 5344, at *5 (Tex. App.—Beaumont July 7, 2010, no pet.) (mem. op., not designated for publication) (citing Wagstaff v. State, No. 09-06-162-CR, 2007 Tex.App. LEXIS 6464, at *7 (Tex. App.—Beaumont May 11, 2007, no pet.) (mem. op., not designated for publication)).
This Court lacks jurisdiction to consider the merits of Belken's appeal for lack of a valid written judgment. See Thompson, 108 S.W.3d at 290; Staten, 2010 Tex.App. LEXIS 5344, at *5. However, we do not dismiss an appeal if the trial court's omission can be corrected. See Tex.R.App.P. 44.4; Henery v. State, 364 S.W.3d 915, 916, 919 (Tex. Crim. App. 2012) (where trial court's oral pronouncement conflicted with its written order and the case could not properly be presented to the court of appeals, abatement and remand to the trial court was proper remedy); Taylor v. State, 247 S.W.3d 223, 223-24 (Tex. Crim. App. 2008) (where there was a conflict in the record on whether the trial court intended to grant a motion for new trial or an appeal, abatement was proper under Rule 44.4 to determine which action the trial court intended); Staten, 2010 Tex.App. LEXIS 5344, at *6 ("The Rules of Appellate Procedure 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.") (citing Tex.R.App.P. 44.4.). Here, the trial court's omission can be corrected by allowing the trial court to pronounce Belken's sentence orally with Belken present. See Staten, 2010 Tex.App. LEXIS 5344, at *6; see also Bradshaw v. State, Nos. 03-24-00091-CR, 03-24-00092-CR, &03-24-00093-CR, 2024 Tex.App. LEXIS 5129, at **3-4 (Tex. App.— Austin Jan. 19, 2024, no pet.) (mem. op., not designated for publication) (citing Webb v. State, No. 03-22-00203-CR, 2023 Tex.App. LEXIS 366, at **3-4 (Tex. App.—Austin Jan. 20, 2023, no pet.) (per curiam) (mem. op., not designated for publication)); Pittman v. State, 683 S.W.3d 433, 439 (Tex. App.—San Antonio 2023, no pet.); Keys v. State, 340 S.W.3d 526, 529 (Tex. App.—Texarkana 2011, no pet.).
We abate this appeal and remand the cause to the trial court to allow it to pronounce the jury's sentence in open court with Belken present. See Staten, 2010 Tex.App. LEXIS 5344, at *6; see also Bradshaw, 2024 Tex.App. LEXIS 5129, at *4; Webb, 2023 Tex.App. LEXIS 366, at *4; Pittman, 683 S.W.3d at 439; Keys, 340 S.W.3d at 529. A new sentencing hearing shall be held within 30 days of the date of this memorandum opinion. A supplemental reporter's record of the hearing shall be prepared and filed in the appellate record in this case along with a supplemental clerk's record containing the trial court's new judgment of conviction. These supplemental records are to be filed in this Court within 45 days of the date of this memorandum opinion. During the abatement, the applicable appellate deadlines will be tolled. See Tex.R.App.P. 2; Bradshaw, 2024 Tex.App. LEXIS 5129, at *4. The appeal will be reinstated when the supplemental records are filed.
APPEAL ABATED AND CAUSE REMANDED.
ORDER ENTERED December 13, 2024.