Opinion
14-22-00778-CR
07-02-2024
DOMINIQUE SHACKELFORD, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the County Court at Law No. 4 and Probate Court Brazoria County, Texas Trial Court Cause No. 248498
Panel consists of Justices Bourliot, Zimmerer, and Spain.
ABATEMENT ORDER
PER CURIAM
After pleading true to one previous conviction for operating a motor vehicle while intoxicated (DWI), a jury found appellant Dominque Shackelford guilty of a second DWI, which is a Class A misdemeanor with a minimum confinement of 30 days. See Tex. Penal Code Ann. §§ 49.04, .09(a). The jury assessed punishment at confinement in jail for 225 days and $0 fine. See Tex. Penal Code Ann. § 12.21 (Class A misdemeanor punishment). In pronouncing sentence, the trial court stated, "I am going to sentence you to serve 225 days in the Brazoria County jail . . . ." The trial court did not include a fine in the pronouncement of sentence, and the court previously announced the jury's assessment, "We further assess a fine of blank dollars, being not more than $4,000." But the judgment contains the following: "It is therefore ORDERED, ADJUDGED, and DECREED by the Court that the State of Texas do have and recover of the Defendant, the sum of $0.00 dollars, the fine assessed, $100.00 the State assessed fine(s), and all costs of court, for all of which execution may issue, and that he be imprisoned in the County Jail of Brazoria County, Texas, for a period of 225 days." The "State assessed" $100.00 fine is set by law in the Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. art. 102.0185(a).
The written verdict on punishment signed by the foreperson of the jury is," We further assess a fine of $ 0 , being not more than $4,000.00.
The plain language of article 102.0185(a) mandates a fine of $100 on conviction of an offense under Penal Code chapter 49: "In addition to the reimbursement fee imposed by Article 102.018, a person convicted of an offense under Chapter 49, Penal Code, except for sections 49.02 and 49.031 of that code, shall pay a fine of $100 on conviction of the offense." Id. Because appellant's oral pronouncement of sentence did not include the $100 mandatory fine, the sentence is void for being outside the statutory range of punishment. See Blue v. State, 591 S.W.3d 255, 260 (Tex. App.-Houston [14th Dist.] 2019, no pet.) (concluding judgment was void because trial court did not orally pronounce mandatory fine at sentencing).
Additionally, "[f]ines are punitive, and . . . intended to be part of the convicted defendant's sentence[.]" Armstrong v. State, 340 S.W.3d 759, 767 (Tex. Crim. App. 2011). Thus, not only is the judgment void, but we also lack subject-matter jurisdiction because the $100 mandatory fine is part of appellant's sentence and yet was not orally pronounced in his presence. See Meachum v. State, 273 S.W.3d 803, 806 (Tex. App.-Houston [14th Dist.] 2008, order) (concluding court of appeals lacks jurisdiction when trial court does not orally pronounce sentence in defendant's presence in open court), appeal dism'd, No. 14-07-00811-CR (Dec. 30, 3008, no pet.); see also Arreaga v. State, Nos. 14-22-00281-CR, 14-22-00282-CR & 14-22-00283-CR, 2024 WL 1925495, at *1, n.2 (Tex. App.-Houston [14th Dist.] May 2, 2024, no pet. h.) (mem. op., not designated for publication) (following Meacham by abating three related criminal appeals for defendant to be sentenced in open court).
We therefore abate the appeal and remand the cause to the trial court. See Tex. R. App. P. 44.4 (stating "if . . . the trial court can correct its action or failure to act[,]" the court of appeals must direct the trial court to correct the error). We order the trial court to give notice of a sentencing hearing, pronounce the sentence in appellant's presence in open court, and sign revised judgments. The sentencing hearing is to be conducted by July 28, 2024. We further order the trial-court reporter and clerk to prepare, certify, and file with the clerk of this court (1) a reporter's record of the sentencing hearing and (2) a supplemental clerk's record containing the trial court's revised judgment. These records are due no later than August 12, 2024.
This appeal is abated and treated as a closed case. This appeal will be reinstated on this court's active docket without further order of this court when both the supplemental reporter's and clerk's records are filed with the clerk of this court. This court will also consider an appropriate motion to reinstate the appeal filed by either party, or this court may sua sponte reinstate the appeal.