Joey Dee Richter v. State ( 2012 )

MEMORANDUM OPINION
No. 04-11-00438-CR
Joey Dee RICHTER,
Appellant
v.
The STATE of Texas,
Appellee
From the 218th Judicial District Court, La Salle County, Texas
Trial Court No. 10-01-00006-CRL
Honorable Donna S. Rayes, Judge Presiding
Opinion by: Rebecca Simmons, Justice
Sitting: Rebecca Simmons, Justice
Steven C. Hilbig, Justice
Marialyn Barnard, Justice
Delivered and Filed: March 14, 2012
AFFIRMED
Appellant Joey Dee Richter pleaded guilty to second degree felony aggravated assault.
Richter now challenges the trial court’s authority to impose a sentence of twelve years
imprisonment. We affirm the trial court’s judgment.
BACKGROUND
Richter was charged with second degree felony aggravated assault, waived his right to a
jury trial, and, without the benefit of a plea bargain, pleaded guilty. At the conclusion of the
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sentencing hearing, the trial court sentenced Richter to ten years imprisonment and remanded
him to the custody of the sheriff. Before Richter left the courtroom, the State asked the court if it
made an affirmative finding on use of a deadly weapon, to which the court replied, “I’m
mak[ing] an affirmative finding that a deadly weapon was used in the commission of this
offense.” Following this statement, the reporter’s record reads “(Scuffle occurred).” The
appellate record does not indicate what the “scuffle” entailed or who was involved. The trial
judge then stated, “I am back on the record . . . . I hereby vacate my judgment [and] sentence
Mr. Richter to 12 years.”
On appeal, Richter contends the trial court’s sua sponte modification of his sentence
violated article 42.01 of the Texas Code of Criminal Procedure.
MODIFICATION OF RICHTER’S SENTENCE
A. Applicable Law
“A judgment is the written declaration of the court signed by the trial judge and entered
of record showing the conviction or acquittal of the defendant.” TEX. CODE CRIM. PROC. ANN.
art. 42.01(1) (West 2006); Lee v. State, 516 S.W.2d 151, 152 (Tex. Crim. App. 1974). “The
sentence served shall be based on the information contained in the judgment.” TEX. CODE CRIM.
PROC. ANN. art. 42.01(1); Scott v. State, 461 S.W.2d 619, 620 (Tex. Crim. App. 1971). A
defendant’s sentence commences on the day it is pronounced. TEX. CODE CRIM. PROC. ANN. art.
42.09(1); State v. Aguilera, 165 S.W.3d 695, 698 (Tex. Crim. App. 2005), superseded by rule on
other grounds, TEX. R. APP. P. 21.9, as recognized in Patterson v. State, 353 S.W.3d 203, 212
n.4 (Tex. App.—San Antonio 2011, pet. ref’d).
A trial court has plenary power to modify a defendant’s sentence if it (1) is made on the
same day as the original sentencing; (2) occurs before the court has adjourned for the day; (3) is
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made “in the presence of the defendant, his attorney, and counsel for the state”; and (4) “the
modified sentence is authorized by statute.” Aguilera, 165 S.W.3d at 698. The prohibition
against double jeopardy is not violated if these four requirements are met. See id. at 697–98 &
n.3 (“Aguilera’s subsequent fifteen-year sentence was within the same first-degree-felony range
of punishment as was his initial twenty-five-year sentence and was not an unconstitutional
modification of that initial sentence.”); id. at 700–03 (Cochran, J., concurring) (“[A] court has
power to revise, correct or vacate a sentence imposed during the term of the court in which the
conviction was had and before the original sentence has gone into operation or action is had
under it.” (quoting Powell v. State, 124 Tex. Crim. 513, 515, 63 S.W.2d 712, 713 (Tex. Crim.
App. 1933))); cf. Harris v. State, 153 S.W.3d 394, 396–97 & n.4 (Tex. Crim. App. 2005) (“[T]he
trial court could use its plenary power to modify the sentence only as much as the new sentence
would remain within the same statutory range of punishment.”).
B. Analysis
The modification of Richter’s sentence complied with Aguilera’s four requirements for a
trial court’s sua sponte modification of a sentence. See Aguilera, 165 S.W.3d at 698; see also Ex
parte Cruzata, 220 S.W.3d 518, 520 (Tex. Crim. App. 2007). First, the modification was made
on the same day. See Aguilera, 165 S.W.3d at 698. Second, it occurred moments after the
original assessment of ten years imprisonment and before the court adjourned for the day. See
id. (“[T]he trial court was acting within its authority when, only a few minutes after it had
initially sentenced appellee and before it had adjourned for the day, it modified appellee’s
sentence.”). Third, the modification was made in the presence of the defendant, his attorney, and
counsel for the State. See id. Finally, the modified sentence was authorized by section 12.33 of
the Texas Penal Code. See Aguilera, 165 S.W.3d at 698; id. at 697 & n.3 (citing Harris v. State,
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153 S.W.3d 394, 396 & n.4, 397–98 (Tex. Crim. App. 2005)); see also TEX. PENAL CODE ANN.
§ 12.33 (West 2003) (mandating punishment between two and twenty years for the conviction of
a second degree felony). While Aguilera addressed the downward modification of a sentence,
the general holding applies to upward modifications as well. See Aguilera, 165 S.W.3d at 698;
id. at 702 (Cochran, J., concurring) (“Although the Court does not expressly say so, the rule set
out in the majority opinion sets the finality of the sentencing process for both upward and
downward alterations.”); see also Ex parte Cruzata, 220 S.W.3d at 520–21 (denying habeas
relief where the trial court modified the petitioner’s sentence upward). Accordingly, the trial
court had plenary power to modify Richter’s sentence, and the prohibition against double
jeopardy was not violated. See Aguilera, 165 S.W.3d at 698; Harris, 153 S.W.3d at 396 & n.4,
397–98.
CONCLUSION
The trial court acted within its authority by modifying Richter’s sentence from ten to
twelve years imprisonment. Therefore, we affirm the trial court’s judgment.
Rebecca Simmons, Justice
DO NOT PUBLISH
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