Opinion
10-22-00179-CR 10-22-00180-CR
03-30-2023
JOHN WAYNE WILLIAMS, SR., Appellant v. THE STATE OF TEXAS, Appellee
From the 82nd District Court Falls County, Texas Trial Court Nos. 10207 and 10206
Before Chief Justice Gray, Justice Johnson, and Justice Smith
ABATEMENT ORDER
PER CURIAM
Appellant was convicted of two offenses of aggravated sexual assault of a child. The jury assessed appellant's punishment at life in prison for each offense. At the close of the punishment hearing, the trial court read the verdicts aloud but did not formally sentence appellant in either case.
In one issue in each of his briefs on appeal, appellant asserts this Court has no jurisdiction over these appeals because the trial court failed to orally pronounce appellant's sentences in appellant's presence. However, appellant recommends that, because the trial court's failure can be remedied, this Court should abate the appeals and remand them to the trial court to allow the trial court to pronounce its sentences in open court with appellant present.
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 appellant that the trial court's error is remediable and determine that abatement is an alternative course of action rather than dismissing the appeals. 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, we ABATE these appeals and remand them to the trial court for further proceedings.
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 abatement procedure. See Hodge v. State, No. 10-19-0415-CR (Tex. App.-Waco, Nov. 19, 2020, order)(not designated for publication); Hendrix v. State, No. 10-19-00123-CR (Tex. App.-Waco, Oct. 23, 2019, order)(not designated for publication).
On remand, the trial court shall hold a hearing and, thereafter, pronounce its sentences in appellant's presence. The sentencing hearing shall be conducted within 35 days from the date of this Order. The court reporter's records of the sentencing hearing and a supplemental clerk's records containing the trial court's amended judgments shall be filed with this Court within 45 days from the date of this Order.
Appeals abated
Order issued and filed [RWR]