Billy Marshall Sherman v. the State of Texas ( 2021 )

Order filed October 21, 2021
In The
Eleventh Court of Appeals
__________
No. 11-19-00190-CR
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BILLY MARSHALL SHERMAN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 266th District Court
Erath County, Texas
Trial Court Cause No. CR15259
ORDER
The State charged Billy Marshall Sherman by indictment with one count of
online solicitation of a minor. See TEX. PENAL CODE ANN. § 33.021(a)(1), (a)(3),
(b)(2), (f) (West 2016). After Appellant waived his right to a jury trial, the trial court
found Appellant guilty and assessed his punishment at confinement for ten years in
the Institutional Division of the Texas Department of Criminal Justice. In a single
issue, Appellant contends that the trial court erred when it sentenced him in absentia.
We abate this appeal and remand the case to the trial court for Appellant to be
personally present for sentencing.
Background Facts
We note at the outset that the trial court sealed the reporter’s record in this
cause. Accordingly, we will only discuss its contents as it directly relates to this
appeal.
At the conclusion of the bench trial on guilt/innocence, the trial court
announced on the record in Appellant’s presence that the punishment hearing would
occur on May 28, 2019. Appellant did not personally appear at the subsequent
punishment hearing or sentencing.1 The trial court noted at the outset of the
punishment hearing that it had been advised by the bailiff that Appellant refused to
leave his jail cell to appear in court. Appellant’s trial counsel informed the trial court
that Appellant “knew the purpose of coming and he declined to come.”
The trial court granted Appellant’s counsel’s request for an additional
opportunity to speak with Appellant at the jail in order for counsel to try to convince
Appellant to appear in court for the remainder of trial. After a recess, counsel stated
that he spoke with Appellant again at the jail and that Appellant still declined to
appear. The trial court then asked the bailiff to testify about Appellant’s absence.
The bailiff testified that Appellant refused transport to the courthouse. Following
the presentation of evidence during the punishment phase, the trial court assessed
Appellant’s punishment and pronounced Appellant’s sentence in open court in
Appellant’s absence.
1
The court reporter filed a separate volume of the reporter’s record for sentencing. However, it
appears that sentencing occurred immediately after the punishment hearing.
2
Analysis
In a single issue, Appellant contends that the trial court erred in sentencing
him without his presence as required by Article 42.03 of the Code of Criminal
Procedure. TEX. CODE CRIM. PROC. ANN. art 42.03 (West Supp. 2020). Article
42.03, section 1(a) provides that “[e]xcept as provided in Article 42.14, sentence
shall be pronounced in the defendant’s presence.” There is no contention, and it
does not appear, that an exception in Article 42.14 exists in this case.
Appellant does not challenge his sentence—he only asks that we abate the
appeal so that he may be physically present for sentencing. With respect to the
alleged error that Appellant contends the trial court committed by sentencing him in
absentia, we note that it was an error that Appellant caused to occur by his refusal to
appear in court. As set forth below, however, there is an absolute requirement for a
defendant to be physically present for sentencing and the failure to do so has
jurisdictional ramifications.2 Accordingly, we abate this appeal and remand this
proceeding with instructions that sentencing shall only occur when Appellant is
physically present.
Courts have held that the defendant must be physically present for sentencing,
and the failure to do so deprives the appellate court of jurisdiction to consider the
appeal. See Willis v. State, 532 S.W.3d 461, 463 (Tex. App.—Texarkana 2017, no
pet.) (citing Thompson v. State, 108 S.W.3d 287, 293 (Tex. Crim. App. 2003));
2
We are mindful of the doctrine of invited error, which provides that a party cannot take advantage
of an error that it invited or caused, even if the error is fundamental. Woodall v. State, 336 S.W.3d 634,
644 (Tex. Crim. App. 2011) (citing Prystash v. State, 3 S.W.3d 522, 531 (Tex. Crim. App. 1999)). “In
other words, a party is estopped from seeking appellate relief based on error that it induced.” Id. “To hold
otherwise would be to permit him to take advantage of his own wrong.” Id. (quoting Prystash, 3 S.W.3d
at 531). Because of the absolute requirement for a defendant to be physically present for sentencing,
however, it appears that the invited error doctrine is inapplicable.
3
Meachum v. State, 273 S.W.3d 803, 804–06 (Tex. App.—Houston [14th Dist.] 2008,
no pet.) (same). However, the error can be remedied by abating the appeal and
remanding the case in order for the defendant to be physically present for sentencing.
Willis, 532 S.W.3d at 463; Meachum, 273 S.W.3d at 806. Appellant relies upon
these cases to assert that we should abate this appeal and remand the case to the trial
court so that he can be physically present for sentencing. Regrettably, we must
agree.3
This Court’s Ruling
Therefore, we abate this appeal and order the trial court to hold a new
sentencing hearing, within forty-five days of the date of this order, so that the
sentence previously assessed by the trial court may be pronounced in open court with
Appellant physically present in accordance with Article 42.03.
We further order the district clerk to create a supplemental clerk’s record
containing the trial court’s written judgment reflecting the date that the new sentence
was imposed as required by this order. We further order the court reporter for the
266th District Court to create a supplemental reporter’s record containing a
transcript of the new sentencing hearing and to file the supplemental reporter’s
record with this court within thirty days after the trial court files its written judgment.
Upon the filing of the supplemental clerk’s record and the supplemental
reporter’s record with this court, the appeal will be reinstated. This court will issue
3
There is no question that Appellant was aware of the date and time of the punishment hearing and
that his absence was voluntary. Furthermore, the record shows that the trial court and Appellant’s trial
counsel made every effort to procure Appellant’s presence at trial. The trial court even allowed Appellant’s
trial counsel an opportunity to go to the jail and attempt to convince Appellant to appear. However, unless
the exceptions set forth in Article 42.14 apply, the requirement for the defendant to be physically present
at sentencing is absolute—to the point that an unwilling defendant must be physically forced to appear at
sentencing in open court.
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further orders and instructions to the parties as necessary upon the receipt of the
record from the new sentencing hearing.
It is so ordered.
JOHN M. BAILEY
CHIEF JUSTICE
October 21, 2021
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
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