Ricky Allenwentzel Calbat v. State ( 2015 )

ACCEPTED
04-14-00887-CR
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
7/31/2015 2:14:52 PM
KEITH HOTTLE
CLERK
NO. 04-14-00887-CR
RICKY ALLENWENTZEL CALBAT § IN THE FOURTH COURT
§
VS. § OF APPEALS
§
STATE OF TEXAS § SAN ANTONIO, TEXAS
APPELLANT’S RESPONSE TO THE STATE’S MOTION TO ABATE
TO THE HONORABLE JUSTICES OF SAID COURT:
Now comes Ricky Allenwentzel Calbat, Appellant in the above styled and
numbered cause, and files this Response to the State’s Motion to Abate, and in support
thereof shows the following:
Background
1. On July 17, 2015, the Court ordered Appellant to file a response to the
State’s Motion to Abate by July 31, 2015, stating whether or not one of the exceptions
listed in Article 42.14 of the Code of Criminal Procedure applies which would excuse the
trial court’s pronouncement of sentence in Appellant’s absence. The Court also
ordered that if Appellant believes that none of the exceptions apply, then Appellant shall
provide briefing on the issue of whether the appeal should be abated or dismissed for
want of jurisdiction.
Pronouncement of sentence in the defendant’s presence is a prerequisite to
appellate jurisdiction
2. A “sentence” is defined as “that part of the judgment, or order revoking a
suspension of the imposition of a sentence, that orders that the punishment be carried
into execution in the manner prescribed by law.” Tex. Code Crim. Proc. art. 42.02.
Article 42.03 of the Code of Criminal Procedure requires that sentence be pronounced
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in the defendant’s presence except as provided by Article 42.14 of the Code of Criminal
Procedure. Tex. Code Crim. Proc. art. 42.03(1)(a).
3. A criminal sentence is a prerequisite to appellate jurisdiction. Meachum
v. State, 273 S.W.3d 803, 805 (Tex. App.—Houston [14th Dist.] 2008, no pet.). The
Court of Criminal Appeals has held that failure to pronounce sentence in a defendant’s
presence is a jurisdictional defect on appeal. Thompson v. State, 108 S.W.3d 287, 293
(Tex. Crim. App. 2003).
None of the exceptions listed in Article 42.14 apply in Appellant’s case
4. Section 42.14 of the Code of Criminal Procedure contains exceptions to
the general rule that a trial court must pronounce sentence in the defendant’s presence.
Tex. Code Crim. Proc. art. 42.14(a)&(b). These exceptions can be divided into two
general categories: 1. misdemeanor cases; and, 2. felony cases where the defendant is
confined in a penal institution coupled with other specific conditions that must be met.
Tex. Code Crim. Proc. art. 42.14(a)&(b). None of the exceptions in Article 42.14 apply
to Appellant’s case. The trial court was required to pronounce sentence in Appellant’s
presence. Therefore, the question becomes whether the appeal should be abated to
correct the jurisdictional defect or whether the appeal should be dismissed for want of
jurisdiction.
Pursuant to Rule 44.4 of the Rules of Appellate Procedure, the appropriate
remedy is to abate the appeal for the trial court to properly pronounce sentence
in Appellant’s presence
5. Appellant submits that the opinion in Meachum v. State issued by the
Fourteenth Court of Appeals provides guidance in Appellant’s case. Meachum v.
State, 273 S.W.3d 803 (Tex. App.—Houston [14th Dist.] 2008, no pet.). In the
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Meachum case, the defendant entered a plea bargain with the State after he was
charged with the felony offense of aggregate theft. Meachum, 273 S.W.3d at 803.
The defendant failed to appear for his punishment hearing and the defendant was
sentenced in absentia. Id. The State challenged the appellate court’s jurisdiction
based upon the trial court’s failure to properly sentence the defendant and suggested
that the proper remedy was dismissal of the appeal. Id at 803; Id. at 806. The
Meachum court, after analyzing the applicable case law and statutory authority, held
that the proper, and more efficient, remedy was to abate the appeal. Id. at 806. The
Meachum court noted that Rule 44.4 of the Rules of Appellate Procedure prohibits an
appellate court from dismissing an appeal if the trial court’s erroneous action or failure
to act prevents the proper presentation of the case, and the trial court can correct its
action or failure to act. Id. at 806; Tex. R. App. Proc. 44.4.
6. The Meachum court reconciled its decision with the Court of Criminal
Appeals’ Thompson opinion (which upheld the dismissal of an appeal for want of
jurisdiction) by pointing out that the Court of Criminal Appeals noted that “we need not
address the question of whether there is only one proper remedy for this situation; it is
enough to determine that the court of appeals chose a proper remedy.” Meachum, 273
S.W.3d at 806 (emphasis in original). In addition, the Meachum court also cited
multiple intermediate court opinions holding that abatement, not dismissal, is the proper
remedy under TRAP 44.4 where an appellate court lacked jurisdiction due to the trial
court’s failure to pronounce the sentence in the defendant’s presence. Id. 806.
Conclusion
7. The appropriate remedy for the trial court’s failure to pronounce sentence
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in Appellant’s presence is to abate this appeal and remand the cause to the trial court
for proper sentencing.
WHEREFORE, PREMISES CONSIDERED, Appellant prays that this Court abate
this appeal and remand the cause to the trial court for proper sentencing in accordance
with Article 42.03 of the Code of Criminal Procedure, and for such other and further
relief as the Court may deem appropriate.
Respectfully submitted,
M. Patrick Maguire, P.C.
Attorney and Counselor
945 Barnett Street
Kerrville, TX 78028
Tel: (830) 895-2590
Fax: (830) 895-2592
By: /s/ M. Patrick Maguire
M. Patrick Maguire
State Bar No. 24002515
Attorney for Ricky Allenwentzel Calbat
CERTIFICATE OF SERVICE
This is to certify that on July 31, 2015, a true and correct copy of the Appellant’s
Response to the State’s Motion to Abate was served on the attorney for the State, Hon.
Scott Monroe, 402 Clearwater Paseo, Kerrville, Texas 78028, by facsimile transmission
to (830) 315-2461
/s/ M. Patrick Maguire
M. Patrick Maguire
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