Andell Brymonte Pittman v. the State of Texas

Fourth Court of Appeals
San Antonio, Texas
OPINION
No. 04-21-00376-CR
Andell Brymonte PITTMAN,
Appellant
v.
The STATE of Texas,
Appellee
From the 290th Judicial District Court, Bexar County, Texas
Trial Court No. 2016CR2518
Honorable Raymond Angelini, Judge Presiding 1
Opinion by: Luz Elena D. Chapa, Justice
Dissenting Opinion by: Lori I. Valenzuela, Justice
Sitting: Patricia O. Alvarez, Justice
Luz Elena D. Chapa, Justice
Lori I. Valenzuela, Justice
Delivered and Filed: August 9, 2023
ABATED AND REMANDED
Appellant Andell Pittman appeals his judgment of conviction for burglary of a habitation
with intent to commit assault. He argues (1) his sentencing via videoconference violated his right
to be physically present for sentencing; (2) he was subject to double jeopardy for multiple
punishments for the same offense; and (3) the trial court failed to accord him all the time credit he
was owed based on time served. Because Pittman was sentenced via videoconference and did not
1
Sitting by assignment.
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affirmatively waive his right to be present, the sentence in the record is improper, and the appeal
is abated and the cause is remanded for a new sentencing hearing.
BACKGROUND
Pittman was indicted for two counts of burglary of a habitation with intent to commit
assault in 2016. The State dropped the second count, and a jury found him guilty in 2021. During
the sentencing hearing, Pittman appeared remotely via videoconference, and the trial court
sentenced him via videoconference to twenty years’ imprisonment with credit for time served. This
appeal followed.
THE RIGHT TO BE PRESENT AT SENTENCING
Pittman argues his sentencing via videoconference is defective because it violates article
42.03 § 1(a) of the Code of Criminal Procedure and it violates his constitutional right to be
physically present for sentencing. In response, the State argues Pittman was present for his
sentencing in “every real sense.”
A. Standard of Review
We construe the meaning of article 42.03 § 1(a) de novo. See Lira v. State, 666 S.W.3d
498, 506 (Tex. Crim. App. 2023). “When we interpret statutes, we seek to effectuate the collective
intent or purpose of the legislators who enacted the legislation.” Id. at 505. “In so doing, we
necessarily focus our attention on the plain text of the statutes and attempt to discern the fair,
objective meaning of the text at the time of its enactment.” Id. “Our duty is to try to interpret the
work of our legislature as best we can to fully effectuate the goals they set out.” Id. “In interpreting
the text of statutes, we presume that every word has been used for a purpose and that each word,
phrase, clause, and sentence should be given effect if reasonably possible.” Id. “We do not focus
solely upon a discrete provision; we look at other statutory provisions as well to harmonize
provisions and avoid conflicts.” Id. “Accordingly, time-honored canons of interpretation, both
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semantic and contextual, can aid interpretation, provided the canons esteem textual interpretation.”
Id. at 505-06.
B. Statutory Provisions Addressing the Sentence and the Defendant’s Presence
Article 42.03 § 1(a) of the Code of Criminal Procedure states: “Except as provided in
Article 42.14, [the] sentence shall be pronounced in the defendant’s presence.” TEX. CODE CRIM.
PROC. art. 42.03, § 1 (a). In order to construe the meaning of § 1(a) of article 42.03, we must
determine the purpose of the article 42.14 exception, whether there is a statutory definition for
“sentence,” and what is meant by “the defendant’s presence.” Article 42.14(b) provides: “[T]he
judgment and sentence may be rendered in the absence of the defendant” in a felony case “only
if”:
(1) the defendant is confined in a penal institution;
(2) the defendant is not charged with a felony offense: (A) that is listed in Article
42A.054(a); or (B) for which it is alleged that: (i) a deadly weapon was used or
exhibited during the commission of the offense or during immediate flight from the
commission of the offense; and (ii) the defendant used or exhibited the deadly
weapon or was a party to the offense and knew that a deadly weapon would be used
or exhibited;
(3) the defendant in writing before the appropriate court having jurisdiction in the
county in which the penal institution is located: (A) waives the right to be present
at the rendering of the judgment and sentence or to have counsel present;
(B) affirms that the defendant does not have anything to say as to why the sentence
should not be pronounced and that there is no reason to prevent the sentence under
Article 42.07; (C) states that the defendant has entered into a written plea agreement
with the attorney representing the state in the prosecution of the case; and
(D) requests the court to pronounce sentence in the case in accordance with the plea
agreement;
(4) the defendant and the attorney representing the state in the prosecution of the
case have entered into a written plea agreement that is made a part of the record in
the case; and
(5) sentence is pronounced in accordance with the plea agreement.
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Id. art. 42.14(b) (emphasis added). Article 42.02 of the Code of Criminal Procedure defines the
sentence as “that part of the judgment, . . . that orders that the punishment be carried into execution
in the manner prescribed by law.” Id. art. 42.02.
Chapter 42 does not define “the defendant’s presence” in article 42.03 § 1(a). However,
similar statutory provisions regarding sentencing have been interpreted by the Court of Criminal
Appeals to mean physical presence. See Casias v. State, 503 S.W.2d 262, 265 (Tex. Crim. App.
1973) (interpreting predecessor statute providing sentence to be “made in the presence of the
defendant” to conclude there was “no sentence at all” because defendant was absent during oral
pronouncement of sentence); see, e.g., Lira, 666 S.W.3d at 518 (stating same, citing Casias); see
also Presence, BLACK’S LAW DICTIONARY (11th ed. 2019) available at Westlaw (defining
presence as “The quality, state, or condition of being in a particular time and place, particularly
with reference to some act that was done then and there” and “[c]lose physical proximity coupled
with awareness”).
The Court of Criminal Appeals recently addressed substituting a defendant’s physical
presence in favor of the defendant appearing virtually via videoconference in Lira v. State. In Lira,
the defendants’ plea hearings were conducted by videoconference without the defendants’ express
consent. 666 S.W.3d at 503. The defendants appealed and “argued that their statutory right to enter
a guilty plea in person in open court was a substantive right” and therefore not subject to the
provision in the Texas Supreme Court’s emergency orders permitting “the modification or
suspension of deadlines and procedures.” Id. The court of appeals agreed with the defendants. Id.
The court then granted review to determine whether the “Texas Supreme Court’s ‘Seventeenth
Emergency Order Regarding the COVID-19 State of Disaster’ authorize[d] a trial court to conduct
a plea proceeding via videoconference despite the lack of a defendant’s written consent.” Id. at
502-03.
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The court answered the question in the negative, explaining “emergency orders modifying
deadlines and procedures could not be used to suspend a party’s substantive rights,” and the right
to enter a guilty plea in person was a substantive right. Id. at 502-03. The statutes at issue, articles
1.15 and 27.13 of the Code of Criminal Procedure, provide a defendant with the right to enter a
plea “in person.” Id. at 512. Article 27.19 of the Code of Criminal Procedure established “only two
methods” of waiving this right: (1) following the procedures in article 27.18 for videoconference,
including written consent filed by the defendant and his attorney; and (2) “a plea in absentia
precipitated by a defendant’s written waiver of his rights after sufficient notice of those rights.” Id.
at 515. The Lira court also identified a series of statutes providing for appearances via electronic
means suggesting the use of “in person” in articles 1.15 and 27.13 was purposeful and courts were
not permitted to “overlook the legislature’s obvious textual determinations.” Id. at 513 (citing TEX.
CODE CRIM. PROC. arts. 15.03(c), 15.17(a), 17.292(j), 43.03(f), 45.0201, 45.046(c), and 63.004(b)
as examples of provisions providing for appearances via electronic means).
In support of its reasoning, the court traced the substantive statutory right to enter a plea in
person to the U.S. Constitution:
The United States Supreme Court has recognized that the right to be present in the
courtroom at every stage of trial is guaranteed by the Confrontation Clause of the
Sixth Amendment. It is also based in the Due Process Clauses of the Fifth and
Fourteenth Amendments and applies at any stage of the criminal proceeding that is
critical to its outcome, if the defendant’s presence would contribute to the fairness
of the procedure.
Id. at 511 (footnotes and internal quotation marks omitted); see also TEX. CODE CRIM. PROC. art.
33.03 (“In all prosecution for felonies, the defendant must be personally present at the trial, and he
must likewise be present in all cases of misdemeanor when the punishment or any part thereof is
imprisonment in jail; provided however, that in all cases, when the defendant voluntarily absents
himself after pleading to the indictment or information, or after the jury has been selected when
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trial is before a jury, the trial may proceed to its conclusion.”). The plea proceeding, according to
the Court of Criminal Appeals, was likewise “a stage at which a defendant’s presence is critical to
the outcome,” and specifically implicated additional constitutional rights including “the privilege
against compulsory self-incrimination guaranteed by the Fifth Amendment,” “the right to trial by
jury,” and “the right to confront one’s accusers.” Lira, 666 S.W.3d at 511 (quoting Boykin v.
Alabama, 395 U.S. 238 (1969)). The court elaborated on the right of confrontation’s scope,
explaining a defendant “threatened with loss of liberty be physically present at all phases of
proceedings against him, absent a waiver of that right through defendant’s own conduct. Physical
presence is personal to the accused and cannot be disregarded or ignored by the courts without
affirmative action or assent by the accused.” Id. at 511-12 (quoting Miller v. State, 692 S.W.2d 88,
91 (Tex. Crim. App. 1985)) (internal quotation marks omitted).
The court also identified the case as “similar to” circumstances where the Court of Criminal
Appeals has “held that the lack of a defendant’s presence [for sentencing] affected a court’s
jurisdiction and authority,” citing Casias v. State. Id. at 518. In Casias, the Lira court explained:
the statutory definition of a sentence included a requirement that it be made in the
presence of the defendant. We then went on to hold that, even if a defendant had
waived his right to be present at sentencing, a sentence rendered outside of the
defendant’s presence was no sentence at all. Because [p]ronouncement of sentence
is jurisdictional for an appeal to this court, we held that the lack of a proper sentence
required the appeal to be dismissed. Here, the governing statute similarly requires
a defendant’s presence (either in person or through Article 27.19) as a condition to
the proper waiver [of] his right to trial by jury.
Id. (alteration in original) (quoting Casias, 503 S.W.2d at 263, 265) (footnotes and internal
quotation marks omitted).
Here, the statutory definition of sentence no longer includes the physical presence of the
defendant. Nevertheless, the governing statutory scheme for felony sentencing establishes a
defendant’s absence for sentencing is only permitted by compliance with the provisions of article
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42.14(b) of the Code of Criminal Procedure. And as Lira observed, the legislature has not hesitated
to specify when criminal proceedings were permitted to proceed via electronic means. See id. at
513 & n.73 (citing TEX. CODE CRIM. PROC. arts. 15.03(c), 15.17(a), 17.292(j), 43.03(f), 45.0201,
45.046(c), and 63.004(b) as examples of provisions providing for appearances via electronic
means).
To summarize the governing statutory context surrounding Pittman’s sentencing via
videoconference, the sentence is the part of the judgment that orders the punishment, and the trial
court shall pronounce it with the defendant physically present. TEX. CODE CRIM. PROC. arts. 42.02,
42.03. The trial court may render the sentence in the defendant’s absence in felony cases only if
the defendant: (1) is confined; (2) has not been charged with certain enumerated felonies identified
in article 42A.054(a); (3) writes to the trial court in compliance with article 42.14(b)(3) including
by expressly waiving “the right to be present at the rendering of the judgment and sentence or to
have counsel present”; and (4) the trial court pronounces a sentence in accordance with a plea
agreement entered into by the defendant. Id. art. 42.14(b). In other words, unless a defendant in a
felony case complies with the requirements of article 42.14(b) of the Code of Criminal Procedure,
the trial court must render the judgment and sentence with the defendant physically present in the
courtroom. See id. 42.02, 42.03, 42.14(b); Lira, 666 S.W.3d at 518; Casias, 503 S.W.2d at 265.
Applying this legal framework, the State concedes Pittman was not physically present for
sentencing. The State nevertheless contends Pittman did not object to being sentenced via
videoconference, and therefore, he waived the issue. The State does not cite a single case
supporting this position. See TEX. R. APP. P. 38.2(a)(1); see also Lira, 666 S.W.3d at 518. Even if
it had, under this statutory framework, we cannot conclude Pittman waived his statutory right to
his physical presence during sentencing. We recognize neither Pittman nor his counsel objected to
sentencing via videoconference. However, Article 42.03 § 1(a) of the Code of Criminal Procedure
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establishes the only exception to pronouncing the sentence in a felony case without the defendant
physically present is under article 42.14(b). See TEX. CODE CRIM. PROC. arts. 42.03 § 1(a), 42.14.
In other words, “[t]he legislature created an entire statutory scheme to accommodate a defendant
who desired to [be absent during his sentencing].” Lira, 666 S.W.3d at 515. Applying the
provisions of 42.14(b), Pittman did not write to the trial court expressly waiving the right to his
physical presence at the rendering of the judgment and sentence. See TEX. CODE CRIM. PROC. art.
42.14(b). Nor did he enter into a plea agreement. See id. We therefore cannot conclude, under this
statutory framework, that Pittman at any time waived his statutory right to his physical presence
at sentencing.
The State further contends that even if he had objected, the trial court was entitled to
sentence him via videoconference pursuant to the Supreme Court’s 40th emergency order
regarding COVID-19, which permitted the trial court to suspend or modify any procedure imposed
by statute. However, the Court of Criminal Appeals explicitly rejected this contention in Lira,
explaining “emergency orders modifying deadlines and procedures could not be used to suspend
a party’s substantive rights or a procedure that involves a trial court’s authority,” and the right to
enter a guilty plea in person was one such substantive right. 666 S.W.3d at 503. Based on the Court
of Criminal Appeals’ reasoning in Lira, the right to one’s physical presence for sentencing is a
substantive statutory right not subject to suspension or modification via the Supreme Court’s
emergency orders. See id. at 509 (“As we noted in [In re State ex rel. Ogg, 618 S.W.3d 361 (Tex.
Crim. App. 2021)], it would be patently absurd to regard a generically framed order authorizing
the modification of statutory deadlines and procedures as conferring upon a trial court the power
to abrogate a defendant’s statutory right to a jury trial at punishment. It is equally absurd to regard
the same Emergency Order at issue in Ogg as conferring upon a trial court the power to abrogate
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a defendant’s statutory right to be personally present in open court to enter his plea.” (footnote
omitted)).
Because Pittman did not affirmatively waive his right to be physically present, and because
no state emergency orders permitted the trial court to abrogate Pittman’s right to his presence,
there is no proper sentence in the record, and this court therefore lacks jurisdiction. See id. at 519;
Casias, 503 S.W.3d at 265. 2
C. Proper Remedy
Because there is no proper sentence in the record, we must determine the appropriate
remedy. Rule 44.4 of the Texas Rules of Appellate Procedure provides “[a] court of appeals must
not . . . dismiss an appeal if: (1) the trial court’s erroneous action . . . prevents the proper
presentation of a case to the court of appeals; and (2) the trial court can correct its action.” TEX. R.
APP. P. 44.4(a). Subsection (b) of Rule 44.4 provides “[i]f the circumstances described in (a) exist,
the court of appeals must direct the trial court to correct the error. The court of appeals will then
proceed as if the erroneous action . . . had not occurred.” Id. 44.4(b). In Meachum v. State, the
Fourteenth Court of Appeals applied Rule 44.4 when it determined it lacked jurisdiction because
the defendant was sentenced in absentia. 273 S.W.3d 803, 806 (Tex. App.—Houston [14th Dist.]
2008, no pet.) (order). Rather than dismiss the case, the Meachum court abated and remanded the
case to the trial court for a new sentencing hearing. Id.; see, e.g., Keys, 340 S.W.3d at 529 (same,
citing Meachum). 3
2
See Lira, 666 S.W.3d at 518 (rejecting state’s contention harmless error analysis applied). But see id. at 525 (Keller,
J., dissenting) (“Even if constitutional error had occurred, only a very limited class of constitutional errors have been
labeled by the Supreme Court as “structural,” and the right to presence during plea or trial proceedings is not one of
those.” (footnote omitted)).
3
Cf. San Nicolas v. State, No. 04-18-00537-CR, 2018 WL 6793272, at *1 (Tex. App.—San Antonio Dec. 27, 2018)
(acknowledging Keys and Meachum applying rule 44.4 but reasoning case at bar was rare and more akin to Cook v.
State, No. 06-14-00005-CR, 2014 WL 12740149, at *2 (Tex. App.—Texarkana Apr. 3, 2014, no pet.) (mem. op., not
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Here, abating and remanding the case to the trial court is a “proper and more efficient
remedy,” and Rule 44.4 provides the procedural vehicle for the trial court to correct its action. See
TEX. R. APP. P. 44.4; Keys, 340 S.W.3d at 529; Meachum, 273 S.W.3d at 806.
CONCLUSION
We abate the appeal and remand the cause to the trial court. On remand, the trial court shall
hold a new sentencing hearing in Pittman’s physical presence.
Luz Elena D. Chapa, Justice
PUBLISH
designated for publication) because appellant had fled, remained at-large, and it was unclear if he would ever be
resentenced).
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