Opinion
No. 04-16-00646-CR
01-25-2017
Kerry GITTENS, Appellant v. The STATE of Texas, Appellee
MEMORANDUM OPINION
From the 226th Judicial District Court, Bexar County, Texas
Trial Court No. 2015CR11181
Honorable Dick Alcala, Judge Presiding PER CURIAM Sitting: Sandee Bryan Marion, Chief Justice Luz Elena D. Chapa, Justice Irene Rios, Justice DISMISSED FOR LACK OF JURISDICTION
Appellant, Kerry Gittens, was free on bond during the trial of this case. After a recess during the guilt-innocence phase of the trial, Gittens removed his ankle monitor and failed to return to court. The trial court proceeded in Gittens's absence, and the jury found Gittens guilty of murder. The trial court entered a written judgment sentencing Gittens to fifty years in prison. However, because Gittens was a fugitive, the sentence was not pronounced in his presence.
The State has filed a motion to dismiss this appeal for lack of jurisdiction. The motion is supported by the affidavit of a certified peace officer and investigator in the Bexar County Criminal District Attorney's Office. The affidavit states that Gittens has not been apprehended and remains a fugitive.
In criminal cases, "it is the pronouncement of sentence that is the appealable event. . . ." Ex parte Madding, 70 S.W.3d 131, 135 (Tex. Crim. App. 2002); Coffey v. State, 979 S.W.2d 326, 328 (Tex. Crim. App. 1998); see also Thompson v. State, 108 S.W.3d 287, 291-92 (Tex. Crim. App. 2003). In felony cases, the trial court must orally pronounce the sentence in the defendant's presence. See TEX. CODE CRIM. PROC. ANN. art. 42.03(a) (West Supp. 2016); Madding, 70 S.W.3d at 135. If sentence is not orally pronounced in the defendant's presence, there is no valid judgment and nothing for him to appeal. See Thompson, 108 S.W.3d at 290. When the sentence is not pronounced in the defendant's presence, this court does not have jurisdiction over an appeal. See id. at 291; Keys v. State, 340 S.W.3d 526, 528-29 (Tex. App.—Texarkana 2011, pet. ref'd); Meachum v. State, 273 S.W.3d 803, 805-08 (Tex. App.—Houston [14th Dist.] 2008, no pet.).
A jury found Gittens guilty of murder. But because Gittens was not present when the trial court pronounced sentence, there is no valid appealable judgment. The trial court retains jurisdiction over the case and may orally pronounce an appropriate sentence in defendant's presence and enter it in a written judgment when Gittens is reapprehended. See Thompson, 108 S.W.3d at 291 n. 18. We grant the State's motion and dismiss this appeal for lack of jurisdiction.
PER CURIAM Do not publish