Opinion
No. 10-19-00415-CR
11-19-2020
MARQUISE DAVAR HODGE, Appellant v. THE STATE OF TEXAS, Appellee
From the 40th District Court Ellis County, Texas
Trial Court No. 44392CR
ABATEMENT ORDER
Appellant was convicted of burglary of habitation and sentenced to 25 years in prison. However, at the close of the punishment hearing, the trial court read the verdict aloud but did not formally sentence appellant. In his third issue in his brief on appeal, appellant asserts the appeal should be dismissed with instructions to the trial court to pronounce sentence in appellant's presence. In response, the State has filed a Motion to Abate, requesting an abatement of this appeal to the trial court for pronouncement of appellant's sentence.
It is the pronouncement of sentence that provides an appealable judgment. Thompson v. State, 108 S.W.3d 287, 290 (Tex. Crim. App. 2003). Without pronouncement of sentence, the appellate court lacks jurisdiction and dismissal of the appeal is certainly a proper remedy. See id. at 290-91; 292-93. But an appeal should not be dismissed if the dismissal is due to a failure to act by the trial court and that error can be corrected. See TEX. RULE APP. P. 44.4(a). Thus, a failure to pronounce sentence may be remedied by abating the case and remanding it back to the trial court, where the trial court may formally pronounce sentence and the appeal may be reinstated. See Keys v. State, 340 S.W.3d 526, 529 (Tex. App.—Texarkana 2011, no pet.); Meacham v. State, 273 S.W.3d 803, 806 (Tex. App.—Houston [14th Dist.] 2008, no pet.). See also Hendrix v. State, No. 10-19-00123-CR (Tex. App.—Waco, Oct. 23, 2019, order)(not designated for publication).
We agree with the State that the trial court's error is remediable and determine that abatement is an alternative course of action rather than dismissing the appeal. See Thompson v. State, 108 S.W.3d 287, 290-91 (Tex. Crim. App. 2003) ("It should be noted that we need not address the question of whether there is only one proper remedy for this situation; it is enough to determine whether the court of appeals chose a proper remedy.").
Accordingly, the State's Motion to Abate is granted.
This appeal is abated and the case is remanded to the trial court. On remand, the trial court shall hold a hearing and, thereafter, pronounce sentence in appellant's presence. The sentencing hearing shall be conducted within 35 days from the date of this Order. The court reporter's record of the sentencing hearing and a supplemental clerk's record containing the trial court's amended judgment shall be filed with this Court within 45 days of the date of this Order. If Covid-19 makes this deadline impracticable, appropriate motions requesting an extension of time or alternatives will be considered.
While an appellate purist would argue the Court has no jurisdiction to render any order, including an abatement order, once it has determined it has no jurisdiction, this Court has previously used this procedure. See Hendrix v. State, No. 10-19-00123-CR (Tex. App.—Waco, Oct. 23, 2019, order)(not designated for publication).
PER CURIAM Before Chief Justice Gray, Justice Davis, and Justice Neill
Motion granted
Appeal abated
Order issued and filed November 19, 2020
[RWR]