State v. Aguilera

• Decision Date: 22 June 2005
• Docket Number: No. PD-0024-04.,PD-0024-04.
• Parties: STATE of Texas v. Angel AGUILERA, Appellee.
• Court: Texas Supreme Court

Page 695

165 S.W.3d 695

STATE of Texas v. Angel AGUILERA, Appellee.

No. PD-0024-04.

Court of Criminal Appeals of Texas, En Banc.

June 22, 2005.

Eduardo N. Lerma, SR, El Paso, for Appellant.

John L. Davis, Asst. District Atty., El Paso, for State.

Before the court en banc.

OPINION

JOHNSON, J., delivered the opinion of the Court, joined by MEYERS, PRICE, HOLCOMB, and COCHRAN, JJ.

Appellee was charged by a single indictment with three counts of aggravated sexual assault. Appellee made an open plea of guilty before the trial court, and the trial court initially sentenced him to 25 years' incarceration in the institutional division of the Texas Department of Criminal Justice. On the same day, after an off-the-record "victim impact statement" allocution, the trial court held an in-chambers discussion with the attorneys regarding the court's reconsideration of the sentence. The trial court, over the state's objection, then reassessed appellee's sentence at 15 years' incarceration. The state appealed. The court of appeals sustained the state's sole issue, reversed the judgment of the trial court, and remanded the cause to the trial court for reinstatement of the sentence originally assessed and the corresponding judgment of conviction. State v. Aguilera, 130 S.W.3d 134 (Tex.App.-El Paso, 2003). Appellee petitioned for discretionary review.

We granted review of appellee's sole issue, which asserts that the court of appeals erred in holding that Texas trial courts do not have the inherent power to vacate, modify, or amend their sentences downward within the time of their plenary power. The state argues that, once a defendant has been given a valid sentence, the trial court has no authority to change that sentence.

Appellee suggests that a trial judge should have the ability, upon reflection, to reform a defendant's sentence downward when the interests of justice require it and complains that the court of appeals stated that the present case is different from McClinton v. State, 38 S.W.3d 747 (Tex.App.-Houston [14th Dist.] 2001, pet. dism'd, improvidently granted), yet failed to distinguish them. He cites Williams v. State, 145 Tex.Crim. 536, 170 S.W.2d 482, 486 (App.1943), for the principle that a trial court has full power and control of its judgments, orders, and decrees, and suggests that Powell v. State, 124 Tex.Crim. 513, 63 S.W.2d 712 (App.1933), and its progeny prohibit reforming a sentence upward, but do not prohibit reforming downward, as the trial court did in this case.

The state asserts that, once a valid sentence has been imposed, as it was here, the trial court has no authority to change that sentence. The state also argues that a trial court does not have plenary power to do something simply because there is no authority prohibiting such an action and that, because there is no express authority by statute or rule permitting the re-sentencing that occurred here, the trial court could not do so. The state further asserts that, even if there is plenary jurisdiction for a trial court to modify a previously imposed sentence, re-sentencing is statutorily prohibited by TEX.CODE CRIM. PROC. Art. 42.09, § 1, which provides that a defendant's sentence begins to run on the day that it is pronounced.¹ It further argues that permitting such a modification of a valid sentence could permit victim-impact statements to affect the fact finder at punishment in contravention of the Legislature's intent that such statements not affect the punishment.²

In Harris v. State, 153 S.W.3d 394 (Tex.Crim.App.2005), we recently held that: 1) a trial court improperly re-sentenced a defendant one day after having initially sentenced him to an authorized, valid sentence; 2) the original sentence imposed was legal and authorized; 3) the second attempt at sentencing violated the defendant's rights under the Double Jeopardy Clause; and 4) the second, twenty-five-year, sentence was an unauthorized and unconstitutional fifteen-year increase over the initial ten-year sentence. Id. at 397-98. While we noted that the trial court could have properly used its plenary power to modify the sentence if the new sentence was within the same statutory range of punishment,³ our decision was based on a constitutional violation, re-sentencing the defendant to a term of imprisonment that was outside of the statutory range of punishment rather than on a claim of plenary power to modify. Id. Harris is clearly different from the issue presented here, as the re-sentencing was done the next day and there can be no dispute that Harris had begun serving his sentence.

The procedural status of the case is relevant to our decision here. The appellee plead to the trial court without a plea bargain, thus the trial court's choice of sentence was limited only by the applicable statute. If appellee had plead pursuant to a plea bargain and the trial court had accepted the agreement, the sentence could not be changed without appellee's consent, as he would then be entitled to withdraw his plea. Absent a sentence not authorized by the applicable statute, a trial court may not alter a sentence assessed by a jury, but if the defendant elects sentencing by the judge after a jury trial, the situation is analogous to the open plea we are presented with here.

At a minimum, a trial court retains plenary power to modify its sentence if a motion for new trial⁴ or motion in arrest of judgment⁵ is filed within 30 days of sentencing.⁶ We hold that a trial court also retains plenary power to modify its sentence if, as in this case, the modification is made on the same day as the assessment of the initial sentence and before the court adjourns for the day.⁷ The re-sentencing must be done in the presence of the defendant, his attorney, and counsel for the state. Such modifications comport with the provisions of Article 42.09, § 1, that a defendant's sentence begins to run on the day that it is pronounced,⁸ and the provisions of TEX.CODE CRIM. PROC. Art. 42.03, § 1(a), that a felony sentence shall be pronounced in the defendant's presence. In such circumstances, a trial court has the authority to re-sentence a defendant after assessing an initial sentence if the modified sentence is authorized by statute.

In this case, the trial court was acting within its authority when, only a few minutes after it had initially sentenced appellee and before it had adjourned for the day, it modified appellee's sentence.⁹ Appellee's sole ground for review is sustained. The court of appeals is reversed, and the trial court's sentence of fifteen years' incarceration is reinstated.

WOMACK, J., filed a concurring opinion.

COCHRAN, J., filed a concurring opinion, in which PRICE, J., joined.

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

KELLER, P.J., and HERVEY, J., dissented.

WOMACK, J., concurring.

As the dissenting opinion says, the trial court erred. What should we do next?

"Except for certain federal constitutional error labeled by the United States Supreme Court as `structural,' no error, whether it relates to jurisdiction, voluntariness of a plea, or any other mandatory requirement, is categorically immune to a harmless error analysis."¹ The applicable standard for the analysis is that of Rule of Appellate Procedure 44.2(b): "Any [non-constitutional] error, defect, irregularity, or variance that does not affect substantial rights must be disregarded." A substantial right is affected when the error had a substantial and injurious effect or influence in determining a verdict.²

Without error, the trial court could have granted the appellant a new trial, received his plea of guilty, and assessed the same punishment. Therefore, it seems to me, the error did not affect a substantial right and must be disregarded.

I concur in the judgment of the Court.

COCHRAN, J., concurring, in which PRICE, J. joined.

I join the majority opinion. I write separately to emphasize several points: (1) the majority is not overruling Williams v. State¹ or Powell v. State;² (2) this is a "sauce for goose is sauce for gander" rule which protects both defendants and society-at-large from a trial judge's accidental misstatements or momentary mistakes; and (3) the State did not appeal the issue of whether the trial court's re-sentencing, if it was based upon a statutorily prohibited consideration of the victim impact statement, was illegal; therefore, we cannot address that issue.

A. The majority opinion clarifies, but does not overrule, Williams and Powell on the question of when a sentence commences.

In both Williams and Powell, this Court held that a trial court does not have the power to alter or modify a defendant's sentence once the defendant has begun to serve his sentence.³ Indeed, the Double Jeopardy Clause of the United States Constitution forbids any increase in a defendant's sentence once that sentence has been served or "executed."⁴ However, in Powell, this Court expressly stated:

It seems to be well established by the authorities in other states that a court has power to revise, correct or vacate a sentence imposed during the term of the court in which the conviction was had and before the original sentence has gone into operation or action is had under it.⁵

The issue in this case, then, is when does a sentence go into operation? Article 42.09, section 1, of the Code of Criminal Procedure states that "[t]he defendant's sentence begins to run on the day it is pronounced...." The State argues that, in fact, it begins to run "the moment that it is orally pronounced and that sentencing has concluded."⁶ This rule has the advantage of being a very bright line, but it fails in flexibility. Judges and parties occasionally make mistakes or misstatements in speaking. Such mistakes ought not be cast in stone.⁷ "The Constitution does not require that sentencing should be a game in which a wrong move by the judge means immunity for the prisoner."⁸ Similarly, the rule fails to allow...