Opinion
NO. 03-17-00788-CR NO. 03-17-00789-CR
05-08-2018
Trevor Carl Edic, Appellant v. The State of Texas, Appellee
FROM THE DISTRICT COURT OF COMAL COUNTY, 207TH JUDICIAL DISTRICT
NOS. CR2015-495 & CR2016-287 , THE HONORABLE R. BRUCE BOYER, JUDGE PRESIDING ORDER AND MEMORANDUM OPINION
PER CURIAM
After finding appellant Trevor Carl Edic guilty of aggravated assault and evading arrest with a vehicle, see Tex. Penal Code §§ 22.02(a)(2), 38.04(a), (b)(2)(A), a jury assessed appellant's punishment at confinement in the Texas Department of Criminal Justice for 13 years and two years, see id. §§12.33, 12.34. The trial court subsequently entered judgments of conviction sentencing appellant in accordance with the jury's verdicts. According to the record, however, the trial court never orally pronounced the sentences.
At the conclusion of the punishment phase of trial, the trial court read the jury's punishment verdicts in open court with appellant present but did not orally pronounce appellant guilty of the offenses or pronounce the sentences assessed by the jury. Instead, following the reading of the verdict, after both parties declined to have the jury polled, the trial court stated that "[t]hese verdicts then will be accepted and entered by the Court." The trial court then thanked the jurors for their service and released them from duty, and the jury left the courtroom. Next, the trial court remanded appellant to custody, stating, "Defendant is remanded to the sheriff's department for transfer to complete his sentence[s]." The record does not reflect that any further proceedings occurred in appellant's presence.
Courts are required to pronounce sentence orally in the defendant's presence. Tex. Code Crim. Proc. 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). The judgment, including the sentence assessed, is merely a written manifestation of that oral pronouncement. See Tex. Code Crim. Proc. art. 42.01, § 1; Taylor, 131 S.W.3d at 500; 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 rendered, 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.
While the jury assesses a defendant's sentence, the trial court imposes the sentence by orally pronouncing the sentence in the defendant's presence. See Tex. Code Crim. Proc. arts. 37.01 ("A 'verdict' is a written declaration by a jury of its decision of the issue submitted to it in the case."); 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."); 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."); 42.03, § 1(a) ( "[S]entence shall be pronounced in the defendant's presence.").
Because the trial court failed to orally pronounce appellant's sentences in his presence, we conclude that we lack jurisdiction over appellant's appeals. See Frias v. State, No. 03-12-00463-CR, 2014 WL 1362639, at *1 (Tex. App.—Austin Apr. 4, 2014, no pet.) (mem. op., not designated for publication) (determining that trial court's failure to orally pronounce appellant's sentence deprived court of appeals of jurisdiction); Keys v. State, 340 S.W.3d 526, 529 (Tex. App.—Texarkana 2011, no pet.) (same); 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); Meachum v. State, 273 S.W.3d 803, 806 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (same); see also State v. Roberts, 940 S.W.2d 655, 657 (Tex. Crim. App. 1996), overruled on other ground 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.)).
However, 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. See Tex. R. App. P. 44.4. Here, the trial court's failure to orally pronounce sentence can be corrected by the trial court orally pronouncing the sentences with appellant present. Accordingly, we abate these appeals and remand the causes to the trial court to allow the trial court to pronounce the jury's sentences in open court with appellant present. See Frias, 2014 WL 1362639, at *1-2 (abating appeal and remanding cause to trial court to orally pronounce sentence assessed by jury in appellant's presence); Keys, 340 S.W.3d at 529 (same); Staten, 2010 WL 2696153, at *2 (same); Meachum, 273 S.W.3d at 806 (same).
On remand, the trial court shall cause notice of a hearing to be given and, thereafter, orally pronounce the sentences assessed by the jury in appellant's presence. We order the trial court to conduct the sentencing hearing within 30 days of the date of this memorandum opinion. A reporter's record of the hearing shall be prepared and filed in the record of these appeals, together with a supplemental clerk's record containing the trial court's new judgments of conviction. These supplemental records are due to be filed in this Court within 45 days of the date of this memorandum opinion. The appeals will be reinstated when the supplemental records are filed. On reinstatement, this Court will consider the appeals based on the record and briefs already filed.
It is so ordered on this the 8th day of May, 2018. Before Chief Justice Rose, Justices Goodwin and Field Abated and Remanded Filed: May 8, 2018 Do Not Publish