Joseph Edward McKenzie v. State ( 2015 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-13-00594-CR
NO. 03-13-00595-CR
Joseph Edward McKenzie, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF FAYETTE COUNTY, 155TH JUDICIAL DISTRICT
NOS. 2008R-073 & 2008R-074
THE HONORABLE JEFF R. STEINHAUSER, JUDGE PRESIDING
MEMORANDUM OPINION
In both of these cases, the trial court accepted appellant Joseph Edward McKenzie’s
guilty plea to the second degree felony offense of manufacture or delivery of a controlled substance,
deferred adjudication of guilt, and placed appellant on community supervision for ten years. See
Tex. Health & Safety Code § 481.112(c). The State subsequently filed motions to adjudicate
appellant guilty in both cases, and, after a combined hearing on the State’s motions, the trial court
adjudicated appellant guilty of the offenses and assessed appellant’s punishment in both cases at
confinement for twenty years to run concurrently.
Appellant raises the same point of error in both cases. He asks this Court to modify
the judgments to reflect sentences of ten years’ confinement based on the double jeopardy clauses
of the United States and Texas Constitutions because the trial court orally sentenced him to
ten years’ confinement before re-sentencing him to a greater term of twenty years’ confinement.
See U.S. Const. amend. V; Tex. Const. art. I, § 14. Because we conclude that the trial court did not
subject appellant to double jeopardy when it reassessed appellant’s punishments during the
adjudication hearings, we affirm the judgments.1
BACKGROUND
The trial court heard the State’s motions to adjudicate in both cases at the same time.
Appellant, his counsel, and counsel for the State were present for the hearing. After hearing the
evidence and the parties’ arguments, the trial judge stated that he saw “nothing mitigating in this
file” and that he would sentence appellant to more time if he could and orally pronounced
punishment in both cases at ten years’ confinement to run concurrent. The trial judge then recessed
the hearing for the preparation of the judgments and advised the parties that he would “wait around
to sign [them].” The recess lasted approximately thirty minutes. Immediately after the hearing was
resumed, the trial judge pronounced punishment in both cases at twenty years’ confinement,
explaining his reasons for doing so as follows:
It has come to my attention that I may have created some confusion by my
statements and pronouncement of sentence earlier. Obviously, when I made the
statements about if I could sentence the defendant to more, I would. I made that
statement. I stand by that statement. I believe I said ten years rather than 20 years
for the sentence. I believe in my mind, I was somehow recalling the ten-year
probated sentence, and so my pronouncement of sentence is 20 years for each case
rather than the ten years that perhaps I had stated earlier. But I think everyone could
tell from my comments to the defendant, I was completely unhappy with the
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Because the parties are familiar with the facts of these cases and their procedural history,
we do not recite them in this opinion except as necessary to advise the parties of the Court’s decision
and the basic reasons for it. See Tex. R. App. P. 47.1, 47.4.
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information shown in his history. So it was my intent all along to sentence the
defendant to 20 years for each case to run concurrent. I apologize for the confusion
that I may have created by that. As the attorneys were aware, I told them this
morning, I was slightly under the weather today. And so I think that may have also
contributed to why I said ten years rather than 20 years. Sorry. But that’s the
judgment and sentence of the Court. Any questions?
In response to the judge’s question, the parties responded “No, Your Honor,” and the hearing was
concluded. The trial court signed written judgments in both cases on the same day as the hearing.
The written judgments reflect sentences of confinement for twenty years to run concurrently. These
appeals followed.
DISCUSSION
Appellant raises the same point of error in both cases. He contends that his right
against double jeopardy was violated “where [appellant] after being adjudicated guilty and orally
sentenced to 10 years in prison was subsequently returned to the courtroom and re-sentenced to a
greater term of 20 years.” See U.S. Const. amend. V; Tex. Const. art. I, § 14. Double jeopardy
protections, among others, forbid an increase in a defendant’s sentence once that sentence has been
served or executed. See Grant v. State, 247 S.W.3d 360, 370 (Tex. App.—Austin 2008, pet. ref’d)
(citing Ex parte Lange, 85 U.S. 163, 174 (1874); Turner v. State, 31 S.W.2d 809, 810 (Tex. Crim.
App. 1930)); see also Williams v. State, 170 S.W.2d 482, 486 (Tex. Crim. App. 1943) (recognizing
“when the accused has accepted the judgment and has performed a part thereof, or has suffered
some punishment as a result thereof, . . . the court is powerless to change the judgment in any
substantial respect”). According to appellant, the trial court was barred from imposing the greater
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sentences of twenty years’ confinement after the trial court orally pronounced his sentences at ten
years’ confinement and appellant “was removed from the courtroom to begin his sentence[s].”
Our resolution of this appeal is controlled by State v. Aguilera, 165 S.W.3d 695
(Tex. Crim. App. 2005). In that case, the trial court initially sentenced the defendant to twenty-five
years’ confinement but modified the sentence to confinement for fifteen years “before it had
adjourned for the day.” Id. at 696, 698. The Court of Criminal Appeals upheld the modified
sentence, concluding that “a trial court [ ] retains plenary power to modify its sentence if, as in this
case, the modification is made on the same day as the assessment of the initial sentence and before
the court adjourns for the day,” assuming that the modification is done in the “presence of the
defendant, his attorney, and counsel for the state.” Id. at 698. “In such circumstances, a trial court
has the authority to re-sentence a defendant after assessing an initial sentence if the modified
sentence is authorized by statute.” See id. (noting that “[s]uch modifications comport with the
provisions of Article 42.09, § 1, that a defendant’s sentence begins to run on the day that it is
pronounced, and the provisions of Tex. Code Crim. Proc. Art. 42.03, § 1(a), that a felony sentence
shall be pronounced in the defendant’s presence”).
Based on our review of the record, we conclude that the trial court complied with
the Aguilera criteria as set forth above when it modified appellant’s punishment in both cases to
confinement for twenty years. Twenty years’ confinement for the second degree felony offense of
manufacture or delivery of a controlled substance is authorized by statute, see Tex. Health & Safety
Code § 481.112(c); Tex. Penal Code § 12.33 (setting punishment range for second degree felony);
appellant, his counsel, and the State’s counsel were present when the trial court pronounced the
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modified sentences; and the trial court modified appellant’s sentences before adjourning for the day
on the same day that it assessed the initial sentences. See Aguilera, 165 S.W.3d at 698; see also
Richter v. State, No. 04-11-00438-CR, 2012 Tex. App. LEXIS 1992, at *4–5 (Tex. App.—San
Antonio Mar. 14, 2012, pet. ref’d) (mem. op., not designated for publication) (applying Aguilera
requirements and concluding that prohibition against double jeopardy was not violated when trial
court modified sentence upward).
Relying on language in the first sentence of article 42.09, section 1 of the Code of
Criminal Procedure, appellant urges that the decision in Aguilera is “flawed” and that his sentences
began to run when the trial court orally pronounced the sentences of ten years’ confinement and he
“was removed from the courtroom to begin his sentence[s].” See Tex. Code Crim. Proc. art. 42.09,
§ 1 (stating that “a defendant shall be delivered to a jail or to the Texas Department of Criminal
Justice when his sentence is pronounced . . . by the court”). Appellant also distinguishes the facts
of Aguilera because the trial court’s subsequent sentence in that case was a reduction in
the defendant’s punishment unlike the situation here, “where the second sentence was
markedly higher.”
The record, however, does not support appellant’s argument that he had already
begun to serve his sentences when the trial court pronounced the subsequent sentences. The record
shows that the trial court recessed the hearing for the preparation of the judgments around 2:30 p.m.
and advised the parties that he would “wait around to sign [them].” The recess lasted approximately
thirty minutes, and the trial court immediately pronounced the modified sentences after resuming
the hearing. See Ex parte Cruzata, 220 S.W.3d 518, 521 (Tex. Crim. App. 2007) (noting that
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“implicit in the holding [of Aguilera] was that a defendant begins to serve his sentence at the
adjournment of court on the day that the sentence is assessed”). The Court of Criminal Appeals also
has declined to limit the trial court’s authority to modify a sentence to a reduced punishment when
the Aguilera criteria are met. See id. (concluding that reassessed punishment increasing sentence
was proper); see also Grant, 247 S.W.3d at 372–73 (discussing Ex parte Cruzata); Fuentes v. State,
No. 11-06-00331-CR, 2008 Tex. App. LEXIS 5107, at *7–8 (Tex. App.—Eastland July 10, 2008,
pet. ref’d) (mem. op., not designated for publication) (noting that “Aguilera decision permits a trial
court to alter or modify the sentence up or down if the defendant has not yet begun to serve the
original sentence”).
Because we conclude that the trial court met the Aguilera criteria when it modified
appellant’s sentences, we overrule appellant’s point of error in both cases. See 165 S.W.3d at 698.
CONCLUSION
Having overruled appellant’s point of error in both cases, we affirm the judgments
adjudicating guilt.
__________________________________________
Melissa Goodwin, Justice
Before Chief Justice Rose, Justices Goodwin and Bourland
Affirmed
Filed: August 5, 2015
Do Not Publish
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