André Webb v. the State of Texas

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-22-00203-CR
André Webb, Appellant
v.
The State of Texas, Appellee
FROM THE 403RD DISTRICT COURT OF TRAVIS COUNTY
NO. D-1-DC-19-301919, THE HONORABLE BRENDA KENNEDY, JUDGE PRESIDING
ORDER AND MEMORANDUM OPINION
PER CURIAM
André Webb was charged with the felony offense of aggravated robbery, and the
indictment contained two enhancement paragraphs alleging that he had previously been
convicted of aggravated robbery and agravated robbery with a deadly weapon. See Tex. Penal
Code § 29.03. When Webb allegedly committed the offense, he was on parole for a prior
conviction for aggravated robbery with a deadly weapon. The jury found Webb guilty, and
Webb pleaded true to the two enhancement allegations. During the punishment phase, the jury
assesed his punishment at fifty years’ imprisonment. See id. §§ 12.42, 29.03. After the jury
foreperson read the jury’s assessed punishment, the trial court asked both sides if they wanted to
have the jury polled, explained that Webb’s punishment in the current case would begin once he
finished serving his sentence from the prior conviction, and stated that Webb was remanded to
the custody of the Travis County Sheriff’s Office. Although the trial court later entered a written
judgment of conviction sentencing Webb consistent with the jury’s verdicts, the trial court never
orally pronounced the sentence. After Webb appealed, the State filed a motion to abate the
appeal, and we will grant the State’s motion and remand for further proceedings.
Although a jury assesses a defendant’s sentence, the trial court imposes the
sentence. See Tex. Code Crim. Proc. arts. 37.01 (explaining that verdict is written declaration
by jury of its decision), 42.01, § 1 (stating that judgment is written declaration by trial court
showing conviction or acquittal of defendant and that sentence will be based on information in
judgment), 42.02 (noting that sentence is part of judgment ordering punishment to be carried
into execution). Additionally, with certain statutory exceptions, courts must orally pronounce
the sentence in the defendant’s presence. See id. arts. 42.03, § 1(a), .14; Taylor v. State,
131 S.W.3d 497, 500 (Tex. Crim. App. 2004); Ex parte Madding, 70 S.W.3d 131, 135
(Tex. Crim. App. 2002). The judgment, including the sentence assessed, is merely a written
manifestation of that oral pronouncement. See Tex. Code Crim. Proc. art. 42.01, § 1; Taylor,
131 S.W.3d at 500; Madding, 70 S.W.3d at 135.
“[I]t is the pronouncement of sentence that is the appealable event, and the written
sentence or order simply memorializes it and should comport therewith.” Coffey v. State,
979 S.W.2d 326, 328 (Tex. Crim. App. 1998). If no sentence was ever rendered, there is no
valid judgment. See Thompson v. State, 108 S.W.3d 287, 290 (Tex. Crim. App. 2003); see also
Ex parte Kopecky, 821 S.W.2d 957, 960 (Tex. Crim. App. 1992) (noting that “[p]unishment and
sentence are incorporated in the judgment” and that “‘sentence is a necessary component of a
“judgment of conviction”’” (quoting Ball v. United States, 470 U.S. 856, 862 (1985))). Without
a valid judgment, there is no “conviction” for a defendant to appeal. See Thompson, 108 S.W.3d
at 290.
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In this case, because the trial court failed to orally pronounce Webb’s sentence in
his presence, no valid judgment yet exists, and accordingly, we lack jurisdiction over his appeal.
See Keys v. State, 340 S.W.3d 526, 529 (Tex. App.—Texarkana 2011, no pet.) (concluding that
trial court’s failure to orally pronounce defendant’s sentence deprived court of appeals of
jurisdiction); Meachum v. State, 273 S.W.3d 803, 806 (Tex. App.—Houston [14th Dist.] 2008,
no pet.) (same); see also State v. Roberts, 940 S.W.2d 655, 657 (Tex. Crim. App. 1996)
(explaining that jurisdiction is threshold issue and may not be ignored), overruled on other
ground by State v. Medrano, 67 S.W.3d 892, 894 (Tex. Crim. App. 2002).
Atlhough this Court lacks jurisdiction over the appeal, that does not require us to
dismiss the appeal in these circumstances. The Rules of Appellate Procedure require that we not
dismiss an appeal if the trial court’s omission can be corrected. See Tex. R. App. P. 44.4. Here,
the trial court’s omission can be corrected by allowing the trial court to orally pronounce Webb’s
sentence with him present. Accordingly, we abate the appeal and remand the cause to the trial
court for the trial court to pronounce the jury’s sentence in open court with Webb present.
See id.; see also Keys, 340 S.W.3d at 529 (abating appeal and remanding cause to trial court
to orally pronounce sentence assessed by jury in defendant’s presence); Meachum, 273 S.W.3d
at 806 (same).
On remand, the trial court is directed to cause notice of a hearing to be given
and, thereafter, orally pronounce the sentence assessed by the jury in Webb’s presence. The new
sentencing hearing is to be held within 30 days of the date of this memorandum opinion. A
supplemental reporter’s record of the hearing shall be prepared and filed in the appellate record
in this case along with a supplemental clerk’s record containing the trial court’s new judgment of
conviction. These supplemental records are to be filed in this Court within 45 days of the date of
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this memorandum opinion. During the abatement, the applicable appellate deadlines will be
tolled. See Tex. R. App. P. 2. The appeal will be reinstated when the supplemental records are
filed. On reinstatement, the applicable appellate deadlines will continue to run from the day of
reinstatement.
It is so ordered on January 20, 2023.
Before Justices Baker, Kelly, and Smith
Abated and Remanded
Filed: January 20, 2023
Do Not Publish
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