April Michelle Floyd v. State ( 2021 )

Order entered April 9, 2021
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-01143-CR
APRIL MICHELLE FLOYD, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Court at Law No. 1
Rockwall County, Texas
Trial Court Cause No. CR18-0971
ORDER
Before Chief Justice Burns and Justices Myers and Nowell
Before the Court is appellant’s March 22, 2021 motion to abate the appeal
for a punishment hearing. A review of the record shows that appellant was charged
with driving while intoxicated. On August 16, 2019, following a trial before the
court, the trial court found appellant guilty and assessed punishment at “21 months
community supervision” and a $500 fine. The written judgment, however, states
the trial court assessed punishment at sixty days in the Rockwall County Jail and a
fine of $500, probated for twenty-one months. Thus, the written judgment does not
reflect the sentence that was pronounced in open court.
When a variation exists between the oral pronouncement of the sentence and
the written memorialization of the sentence, the oral pronouncement controls. See
Thompson v. State, 108 S.W.3d 287, 290 (Tex. Crim. App. 2003); Coffey v. State,
979 S.W.2d 326, 328 (Tex. Crim. App. 1998); see also McCoy v. State, 81 S.W.3d
917, 919 (Tex. App.—Dallas 2002, pet. ref’d). This Court may modify the trial
court’s judgment to make the record speak the truth if it has the necessary data and
information to do so. TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27–
28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—
Dallas 1991, pet. ref’d).
In this case, however, the oral pronouncement does not include a proper
sentence; it only includes community supervision which is a “suspension of the
sentence.” Speth v. State, 6 S.W.3d 530, 532 (Tex. Crim. App. 1999). For this
reason, we cannot reform the judgment. And following the Court of Criminal
Appeals decision in Thompson, we conclude that we lack jurisdiction over
appellant’s appeal based on the trial court’s failure to pronounce a sentence in
appellant’s presence. Thompson, 108 S.W.3d at 292. Nevertheless, appellant asks
the Court to abate the appeal and order the trial court to properly sentence
appellant. The State has not responded to appellant’s motion.
The rules of appellate procedure prohibit 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. See TEX. R. APP. P.
44.4. When faced with a similar situation, our sister court abated for the trial court
to remedy the situation. See Meachum v. State, 273 S.W.3d 803, 806 (Tex. App.—
Houston [14th Dist.] 2008, no pet.) (concluding that although court of appeals
lacked jurisdiction due to trial court’s failure to sentence defendant in open court,
abatement and not dismissal, was proper remedy under appellate rule 44.4); see
also Thompson, 108 S.W.3d at 290‒91 (“[W]e need not address the question of
whether there is only one proper remedy for this situation; it is enough to
determine whether the court of appeals chose a proper remedy.”). And we have
previously abated for the trial court to sentence a defendant in open court. See
Salinas v. State, 05-13-01665-CR, 2015 WL 4600734, at *5 (Tex. App.—Dallas
2015, no pet.) (mem. op., not designated for publication) (appeals abated and
remanded for trial court to sentence appellant in his presence) and Munoz v. State,
05-13-00914-CR, 2014 WL 7399331, at *2‒3 (Tex. App.—Dallas 2014, no pet.)
(not designated for publication) (abating cases when trial court did not orally
pronounce sentence in either case). After considering these cases and the posture of
this appeal, we conclude that the proper and more efficient remedy in this case is
abatement. See TEX. R. APP. P. 44.4(b).
We ORDER the trial court to cause notice of a hearing to be given and,
thereafter, pronounce sentence in appellant’s presence within THIRTY DAYS of
the date of this order. We ORDER the reporter’s record of the sentencing and
supplemental clerk’s record containing the trial court’s judgment be prepared and
filed with this Court within FORTY DAYS of the date of this order.
We DIRECT the Clerk to send copies of this order to the Honorable Brian
Williams, Presiding Judge, County Court at Law No. 1; Debbie Hamon, official
court reporter, County Court at Law No. 1; Jennifer Fogg, Rockwall County Clerk;
and counsel for all parties.
We DEFER ruling on appellant’s motion for an extension of time to file her
brief until the supplemental records are filed.
We ABATE this appeal for the trial court to comply with this Court’s order.
The appeal shall be reinstated when the supplemental records are filed or the Court
determines it is appropriate to do so.
/s/ ROBERT D. BURNS, III
CHIEF JUSTICE