Jose Antonio Fuentes v. State of Texas ( 2008 )

Opinion filed July 10, 2008

Opinion filed July 10, 2008

                                                                        In The

    Eleventh Court of Appeals

                                                                 ____________

                                                          No. 11-06-00331-CR

                                                     __________

                                JOSE ANTONIO FUENTES, Appellant

                                                             V.

                                        STATE OF TEXAS, Appellee

                                 On Appeal from the 104th District Court

                                                          Taylor County, Texas

                                                  Trial Court Cause No. 15867-B

                                             M E M O R A N D U M   O P I N I O N

Jose Antonio Fuentes was convicted of possession of more than four grams but less than 200 grams of methamphetamine with intent to deliver and was sentenced, after an open plea of guilty, to thirteen years confinement in the Texas Department of Criminal Justice, Institutional Division.  Five days after assessing that punishment, the trial court modified appellant=s sentence to ten years. The State filed a notice of appeal; however, the trial court rescinded the modified sentence and reinstated the original sentence.  The State then withdrew its appeal.  Appellant contends that the trial court erred in reinstating the original sentence.  We affirm.

Background Facts

On July 28, 2006, appellant entered an open plea of guilty to count one of the indictment in Cause No. 15867-B (possession of methamphetamine with intent to deliver) and to count one of the indictment in Cause No. 15897-B (possession of less than one gram of cocaine, a state jail felony).  The State then waived the remaining counts in both causes.  On November 2, 2006, the trial court assessed punishment in Cause No. 15867-B at thirteen years confinement and in Cause No. 15897-B at two years confinement in state jail.  The trial court orally announced that the two sentences would run consecutively; however, the written judgment signed by the court on November 2 in Cause No. 15867-B stated that the sentences were to run concurrently.

On November 7, the trial court held a hearing to correct the illegal sentence in Cause No. 15897-B.  The trial court had determined that this was appellant=s first state jail felony offense and, even though he was convicted on the same day of a first degree felony, that mandatory community supervision was required by statute.  The trial court reformed the sentence to two years, probated for two years.  At the hearing, without a motion for new trial by appellant, the trial court also stated that, Aafter continuing to reflect on the evidence and the PSI,@ the punishment in Cause No. 15867-B would be reduced to ten years.  On November 9, the trial court granted a new trial on its own motion.

The State filed a notice of appeal on the ground that the trial court=s resentencing order violated Tex. Code Crim. Proc. Ann. art. 42.09, ' 1 (Vernon Supp. 2007).  On November 15, the trial court in Cause No. 15867-B rescinded its November 9 order granting a new trial, vacated the ten-year sentence, and reinstated the thirteen-year sentence.  The trial court agreed with the State that it did not have the authority to revise the November 2 judgment in Cause No. 15867-B; therefore, the November 2 judgment was the final order of the court in that cause.  The trial court left in place the corrected sentence in Cause No. 15897-B and its revision that the sentences would be served concurrently.  The State withdrew its notice of appeal.  This appeal only concerns the thirteen-year sentence in Cause No. 15867-B.  There was no appeal in Cause No. 15897-B.

Analysis

Appellant agrees that the trial court did not have authority to grant a new trial on its own motion.  Zaragosa v. State, 588 S.W.2d 322 (Tex. Crim. App. 1979); Harris v. State, 958 S.W.2d 292 (Tex. App.CFort Worth 1997, pet. ref=d). In his first issue, however, appellant argues that the trial court had the authority to modify the initial sentence from thirteen years to ten years without a new trial.  In his second issue, appellant argues that the trial court erred by, in effect, granting its own motion for a new trial and increasing the reformed sentence back to the original sentence.  Appellant=s second issue is based on his premise that the trial court on November 7 could have modified the sentence to ten years without a new trial.  We disagree with appellant on both issues.

Appellant cites McClinton v. State, 38 S.W.3d 747 (Tex. App.CHouston [14th Dist.] 2001), pet. dism=d, improvidently granted, 121 S.W.3d 768 (Tex. Crim. App. 2003), as support for his position.  In McClinton, the court of appeals held that it was within the trial court=s plenary power to reduce a sentence from twelve years to ten years confinement twenty days after the initial sentence was announced.  McClinton, 38 S.W.3d at 751.  The Court of Criminal Appeals granted the State=s petition for discretionary review to address Awhether a trial court has the power to reform a defendant=s sentence after the defendant has already begun serving the sentence.@  However, the Court of Criminal Appeals subsequently determined that its decision to grant review was improvidently granted.  Appellant points to language in Judge Cochran=s concurring opinion to support his position that the trial court had the plenary authority to modify his initial sentence to ten years.

According to appellant, Judge Cochran emphasized that a trial court could not orally impose one sentence and then, at some later date, enter a greater or lesser sentence Ain his written judgment outside the defendant=s or State=s presence.@  Judge Cochran went on to say:

A trial court has the inherent authority to alter, modify, or vacate its rulings, but it does not have the inherent authority to alter, modify, or vacate a sentence imposed in open court without statutory authorization and without the presence of the parties.

McClinton, 121 S.W.3d at 771.  In view of Judge Cochran=s statements, appellant emphasizes that all parties were present at hearings concerning the two sentences; therefore, the trial court could have exercised its plenary power to reduce the thirteen-year sentence to ten years.

In addition to McClinton, appellant relies on State v. Aguilera, 165 S.W.3d 695 (Tex. Crim. App. 2005).  In Aguilera, the defendant made an open plea of guilty to the court and was initially sentenced to twenty-five years in prison.  On the same day, after an off-the-record victim impact statement was delivered in court, the trial court held an in-chambers conference with the attorneys to reconsider the sentence.  The trial court reassessed the defendant=s sentence at fifteen years.  The court of appeals reversed.  State v. Aguilera, 130 S.W.3d 134 (Tex. App.CEl Paso 2003), rev=d, 165 S.W.3d 695 (Tex. Crim. App. 2005).  The Court of Criminal Appeals granted the defendant=s petition for review on the sole issue of whether  the court of appeals had erred in holding that trial courts do not have the inherent power to vacate, modify, or amend their sentences downward within the time of their plenary power.  Aguilera, 165 S.W.3d at 696.  Reversing the court of appeals, the Court of Criminal Appeals held that the trial court was acting within its authority when it modified the defendant=s sentence downward.  Therefore, appellant asserts that Aguilera supports the conclusion that the trial court in this case had the authority to reduce the sentence from thirteen years to ten years on November 7.  We disagree.

 The Court of Criminal Appeals was very specific in its holding in Aguilera:

At a minimum, a trial court retains plenary power to modify its sentence if a motion for new trial or a motion in arrest of judgment is filed within 30 days of sentencing.  We hold that a trial court also 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.

The re-sentencing must be done in the presence of the defendant, his attorney, and counsel for the state.  Such 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 (emphasis added).

Aguilera, 165 S.W.3d at 697-98.  The court again emphasized that the trial court was acting within its authority when it acted Aonly a few minutes after it had initially sentenced [the defendant] and before it had adjourned for the day.@ Id. at 698.  Thus, a defendant=s sentence begins at the adjournment of court on the day that it is pronounced. The court specifically noted that, under its holding in Aguilera, the decision in McClinton was incorrect.  Id. at 698 n.7.

As Judge Cochran observed in her concurring opinion, the 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.  Aguilera, 165 S.W.3d at 702.  Judge Cochran noted that the majority in Aguilera did not overrule Williams v. State, 170 S.W.2d 482, 486 (Tex. Crim. App. 1943), or Powell v. State, 63 S.W.2d 712, 713 (Tex. Crim. App. 1933), where the court held that a trial court does not have the power to alter or modify a defendant=s sentence once the defendant has begun to serve his sentence.

In this case, the trial court did not attempt to modify the thirteen-year sentence until days after appellant had begun serving his sentence.  The trial court correctly determined that it did not have the authority on November 7 to reduce appellant=s sentence from thirteen years to ten years.  Appellant=s first two issues are overruled.

In his third issue, appellant contends that his sentence in Cause No. 15867-B was so tainted by the trial court=s errors that the case should be remanded for a new punishment hearing. Essentially, appellant argues that the trial court=s actions and confusion caused egregious harm to appellant.  Appellant points out that the trial court initially made a mistake in admonishing him on the punishment range in his state jail felony case.  The initial mistake in Cause No. 15897-B does not mean there was harm in this case.  The trial court corrected its mistake in the state jail felony case, and that correction benefitted appellant.  Appellant concedes that the trial court had the authority to correct the illegal state jail sentence. Ultimately, the trial court did not err in either case.  Appellant=s third issue is overruled.

This Court=s Ruling

The judgment of the trial court is affirmed.

TERRY McCALL

JUSTICE

July 10, 2008

Do not publish. See Tex. R. App. P. 47.2(b).

Panel consists of:  Wright, C.J.,

McCall, J., and Strange, J.