McClinton v. State

• Decision Date: 10 December 2003
• Docket Number: No. 587-01.,587-01.
• Citation: 121 S.W.3d 768
• Parties: Harold McCLINTON, Jr., Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

121 S.W.3d 768

Harold McCLINTON, Jr., Appellant, v. The STATE of Texas.

No. 587-01.

Court of Criminal Appeals of Texas.

December 10, 2003.

Appeal from the 263rd District Court, Harris County; Tim Wallace, Judge.

R. Scott Shearer, Houston, for Appellant.

Betty Marshall, Assistant State's Attorney, Matthew Paul, State's Attorney, Austin, for State.

OPINION

The opinion was delivered PER CURIAM.

Appellant was convicted of possession of cocaine and sentenced to twelve years in prison. Twenty days after his conviction and sentencing, the trial judge modified McClinton's sentence to ten years in prison. The Court of Appeals affirmed.¹

We granted the State's petition for discretionary review to address whether a trial court has the power to reform a defendant's sentence after the defendant has already begun serving the sentence. We have determined that our decision to grant review was improvident. Therefore, the petition is dismissed.

COCHRAN, J., filed a concurring opinion.

HERVEY, J., filed a dissenting opinion in which JOHNSON, J., joined.

COCHRAN, J., concurring.

This case is a mess.

We granted the State's ground for review which reads, "Does a trial court have the power to reform a defendant's sentence after the defendant has already begun to serve the sentence?" In the abstract, that question is easily answered: Yes, a trial court has the power to reform a defendant's sentence after the defendant has already begun to serve the sentence if such a reformation is authorized by law.¹ But that abstract question is not really the issue in this case. The real issue is whether a trial court may, by means of a docket entry, reform or modify a sentence twenty days after the original sentence had been orally imposed in open court, and whether it may do so without any record request by the parties, without any record indication that the State was present to object, and without statutory authorization.

But we do not get to that question because the appellant aptly argues that the court of appeals lacked jurisdiction to even consider this issue as the State failed to file a notice of appeal. The State certainly had a right to appeal the trial court's modification of the sentence under article 44.01(a)(2),² but it did not do so. In this Court, the State did not respond to this preliminary jurisdictional issue. Therein lies a problem.

I.

Appellant was arrested in 1997 during a drug raid. On August 19, 1998, a jury found him guilty of possession of cocaine. On that same day the trial court orally sentenced him in open court to twelve years imprisonment. Appellant filed a notice of appeal that same day and the trial court set an appeal bond in the amount of $30,000. Twenty days later, on September 8, 1998, the trial judge entered a written docket order which read:

[I]t appearing to the Court that the ends of justice will best be served by a reformation of the judgment herein from 12 years in the Texas Department of Corrections to 10 years in the Texas Department of Corrections.

There is no indication in the record that this docket entry was made in response to any motion filed by either appellant or the State. There is no indication in the record that this new or modified sentence was orally pronounced or that the State was given any opportunity to address the trial court's authority to enter such an order.

Appellant raised three points of error in his direct appeal, each of which was rejected by the court of appeals.³ The State did not file a notice of appeal or raise an official cross-point in its brief, but it did argue that the trial court's reformation of appellant's sentence from twelve years to ten years constituted an unauthorized grant of a new trial as to punishment only. It contended that the trial court lacked jurisdiction to reform its sentence within the plenary period and requested affirmative relief by reimposing the original sentence pronounced in open court.

The Houston Court of Appeals noted the procedural problem of addressing the State's complaint which requested affirmative relief when it had "filed neither a notice of appeal nor raised a cross-point in this appeal."⁴ Observing that another court of appeals had, under similar circumstances, addressed the State's complaint, the Houston Court of Appeals examined the State's contention that the trial court lacked jurisdiction to reform its sentence within the plenary period.⁵ The court of appeals then concluded that "[w]hile this is not a settled area of the law, we agree with our sister court that `a trial court has inherent power to vacate, modify or amend its own rulings.'"⁶ It concluded, therefore, that the trial court merely amended a "ruling" within its plenary power and overruled the State's complaint.⁷

We granted review to resolve this unsettled area of the law, but we cannot do so in this case.

II.

It is well established that a trial court's oral pronouncement of a sentence in open court is the sentence imposed. The written judgment or a docket entry is "merely the written declaration and embodiment of that oral pronouncement."⁸ As we recently explained:

The rationale for that rule is that the imposition of sentence is the crucial moment when all of the parties are physically present at the sentencing hearing and able to hear and respond to the imposition of sentence. Once he leaves the courtroom, the defendant begins serving the sentence imposed.⁹

Thus, a trial court does not have the statutory authority to impose one sentence orally to the defendant and then, at some later date, enter a different, greater or lesser, sentence in his written judgment outside the defendant's or State's presence.¹⁰ Such a system would create havoc: a trial judge could orally pronounce sentence in open court while the defendant and his family and friends, a possible victim and his family and friends, and the prosecutor are all present, then later modify, alter, or amend that sentence when no one else was present to object. A defendant who thought he was to serve a ten year sentence would eventually discover that, instead, his sentence has been modified to twelve years, or the State would eventually discover that the sentence of twelve years, made in open court, had now been modified to ten years. Such a system would be unfair to both parties and to society at large. Such a system would inject an intolerable level of uncertainty into the sentencing process and would prevent any sentence from becoming "final" until the trial court's plenary authority had expired.

A trial court has the inherent authority to alter, modify, or vacate its rulings, but it does not have the inherent authority to alter, modify, or vacate a sentence imposed in open court without statutory authorization and without the presence of the parties.¹¹

III.

Did that happen in this case? Who knows. The trial court's docket sheet reflects that appellant and his counsel appeared in court on September 8th, twenty days after sentence was orally imposed, and that the trial judge made a docket entry "reforming" appellant's sentence.¹² There is no reporter's record of proceedings from that date. If the State had been present and informed of the trial court's action, it could have objected on the record and filed a timely notice of appeal. If the State was not a participant in this September 8th proceeding, it would not have been aware of its right to object or appeal a modification of the sentence under article 44.01(a)(2).¹³ Does the State forfeit its right to complain on appeal to a procedure that it was unaware of or to a proceeding in which it did not participate? That question, albeit interesting, is not before us given the nature of the State's petition for discretionary review and the decision of the court of appeals.

The court of appeals did, rightly or wrongly, address the merits of the State's complaint despite the fact that the State did not file a timely notice of appeal under article 44.01(a)(2) nor even a cross-point concerning a ruling on a question of law under article 44.01(c).¹⁴ Although I doubt that the "reformation" of a sentence via a docket entry is, in fact, a ruling on a question of law, the trial court's authority to make such a reformation certainly is a question of law.

Like Judge Hervey, I believe that both trial and appellate courts may always take cognizance of an illegal or unauthorized sentence, with or without the prompting of the parties.¹⁵ I also believe that our holding in Ex parte Madding is a two-way street. The sentence that is imposed in open court with both parties present controls over a written judgment that conflicts with that oral pronouncement. Regardless of whether, under certain circumstances, a trial court has the inherent authority to modify a sentence previously imposed, it does not have the inherent authority to modify, alter, or vacate a valid sentence orally imposed solely by means of a later written judgment or docket entry.

Here, however, I doubt whether this Court has jurisdiction to consider the merits of the State's ground for review. Appellant argues that the court of appeals did not have jurisdiction to address the State's complaint about the trial court's "reformation" of the sentence because the State could have appealed had it so chosen. And it did not do so. Therefore, goes the argument, if the court of appeals did not have jurisdiction to address the State's complaint, we do not have jurisdiction to review the merits of the court of appeals' decision affirming the trial court's action. We do, I would imagine, have jurisdiction to decide whether the court of appeals had jurisdiction to entertain the State's complaint. But neither the State nor appellant has briefed this issue.

A trial or appellate court may always notice and correct an illegal or unauthorized sentence if it otherwise has jurisdiction over the case. As we recently held in Mizell v. State,¹⁶ "[t]here has never been anything in Texas law that prevented...