Opinion
NO. 01-19-00026-CR
11-21-2019
DAVID JOHN DIAZ, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 427th District Court Travis County, Texas
Trial Court Case No. D-1-DC-17-900125
MEMORANDUM ORDER
After finding appellant David John Diaz guilty of murder, a Travis County jury assessed his punishment at life in prison. The trial court entered a judgment sentencing appellant to life in prison. According to the record, however, the trial court never orally pronounced the sentence.
Jurisdiction
In his brief's first point of error, appellant argues that the trial court failed to formally sentence him and that this Court should abate the appeal and remand to the trial court to properly sentence appellant. Likewise, on October 28, 2019, the State filed a motion to abate the appeal because the trial court did not formally sentence appellant
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. Oral pronouncement of the sentence in the presence of the defendant is necessary because "the imposition of sentence is the crucial moment when all of the parties are physically present at the sentencing hearing and able to hear and respond to the imposition of sentence." 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.
We conclude that we lack jurisdiction over appellant's appeal because the trial court failed to orally pronounce his sentence in his presence. 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. The trial court's failure to orally pronounce sentence can be corrected by the trial court's orally pronouncing sentence with appellant present. Accordingly, we grant the State's motion to abate and we abate this appeal and remand the cause to the trial court to allow the trial court to pronounce its sentence in open court with appellant present. See Keys v. State, 340 S.W.3d 526, 529 (Tex. App.—Texarkana 2011, no pet.) (abating appeal to allow trial court to orally pronounce sentence); Staten v. State, No. 09-09-00490-CR, 2010 WL 2696153, at *2 (Tex. App.—Beaumont July 7, 2010, no pet.) (abating appeal and remanding to trial court to pronounce sentence in appellant's presence); Meachum v. State, 273 S.W.3d 803, 806 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (concluding abatement was proper and efficient remedy when trial court failed to pronounce sentence in appellant's presence).
Conclusion
We abate and remand the cause to the trial court. On remand, the trial court shall cause notice of a hearing to be given and, thereafter, orally pronounce the sentence assessed by the jury in appellant's presence. We order the trial court to conduct the sentencing hearing within 30 days of this memorandum order. A supplemental reporter's record of the hearing shall be prepared and filed in the record of this appeal, together with a supplemental clerk's record containing the trial court's new judgment. These records are due to be filed in this Court within 45 days of the date of this memorandum order. The appeal will be reinstated when the supplemental records are filed herein.
PER CURIAM Panel consists of Chief Justice Radack and Justices Landau and Hightower.