State v. Aguilera

• Decision Date: 17 September 2003
• Docket Number: No. 08-01-00159-CR.,08-01-00159-CR.
• Parties: The STATE of Texas, Appellant, v. Angel AGUILERA, Appellee.
• Court: Texas Court of Appeals

130 S.W.3d 134

The STATE of Texas, Appellant, v. Angel AGUILERA, Appellee.

No. 08-01-00159-CR.

Court of Appeals of Texas, El Paso.

September 17, 2003.

Jaime E. Esparza, Dist. Atty., El Paso, for appellant.

Gonzalo Garcia, Joseph (Sib) Abraham, Law Office of Joseph (Sib) Abraham, El Paso, for Appellee.

Before Panel No. 2 RICHARD BARAJAS, C.J., McCLURE, and CHEW, JJ.

MEMORANDUM OPINION

RICHARD BARAJAS, Chief Justice.

This is an appeal by the State of Texas which complains that the trial court was without authority to reassess a defendant's sentence, the sentence being within the statutory range and the defendant has begun serving the sentence. Appellee, Angel Aguilera, plead guilty to the offense of aggravated sexual assault of a child and was sentenced by the trial court to twenty-five (25) years' incarceration in the Texas Department of Corrections. After an adjournment and an in-chambers meeting with counsel, the trial court called the case again and announced that it had reconsidered the original sentence and re-sentenced Appellee to fifteen (15) years' incarceration. Although the record includes bills of exceptions filed by both parties, the record of the proceedings fails to disclose any specific reason why the trial court reconsidered and reassessed the sentence earlier imposed. The State appeals on the ground that the re-sentencing of Appellee was illegal and void. We agree, and for the reasons stated, we reverse the judgment of the trial court.

I. FACTUAL SUMMARY

Appellee, Defendant below, pled guilty to three counts of aggravated sexual assault of a child and waived jury trial. The trial court entered a judgment of guilty for the offense. A week later, the trial court held a sentencing hearing. The following took place on the record during the course of the hearing:

THE COURT: Please be seated. We are back on the record, State of Texas versus Angel Aguilera. Let the record reflect that the attorneys and the Defendant are present in the courtroom. This truly is a very difficult, difficult position to put anyone in. Sitting here trying to be in judgment of an individual is very tough, sir. After pleading guilty to the Court and you waived your rights to a jury trial, sir, and after I accepted and— after you pled guilty and I accepted your guilty plea and found you guilty for the offense of aggravated sexual assault, three counts, sir, I hereby assess your punishment at 25 years, sir, in the Texas Department of Corrections, Institutional Division, sir. Is there any reason, Mr. Garcia, why punishment should not be pronounced—sentence should not be pronounced at this time, sir?

MR. GARCIA [Counsel for Appellant]: No, Your Honor.

THE COURT: Okay. Please stand, sir. Mr. Aguilera, upon having nothing to say and you having been found guilty of the offense of aggravated sexual assault, your punishment having been assessed at 25 years, sir, I hereby remand you to the care, custody and control of the sheriff's department so that they may deliver you to the director of the Texas Department of Corrections, Institutional Division, sir, where you will be confined for 25 years, sir. You are going to be— for a period of 25 years, sir. Under the rules and regulations governing the Institutional Division, your sentence is going to commence today, sir, and you will get credit for all time served. Anything further?

MS. HAMILTON [Counsel for the State]: Your Honor, at this time, I believe the victim would like to, off the record, make a victim impact statement.

THE COURT: Very well.

...

The victim-impact statement was made off the record immediately after sentencing. The record does not indicate whether Appellee was absent from the courtroom during the delivery of the victim-impact statement. Following the victim-impact statement the court recessed. Following the recess, the court reconvened and the following took place on the record:

THE COURT: Very well. Let the record reflect that we have had an in-chambers discussion amongst the attorneys regarding my reconsideration of the sentence, and I have informed counsel that I have reconsidered my sentence and intend to reduce it at this time down to 15 years. At this time, Ms. Hamilton, for the record, you wanted to state what?

MS. HAMILTON: Your Honor, for the record, the State would take the position before the Court that after having pronounced legal sentence of 25 years in this cause, after hearing evidence and testimony, that it would be an illegal sentence that the Court would impose— talking about the reduction and the 15 years—so the State objects to the illegal sentence that is about to be imposed on the Defendant.

THE COURT: Very well. It is the Court's position, though, however, that I do have plenary power and plenary jurisdiction for at least 30 days after the imposition of any sentence, whether it be civil or criminal. So based on that, I'll go ahead and note your objection; however, it is overruled. At this time, Mr. Aguilera, after pleading guilty to this Court and you waived your rights to a trial by jury, and, remember, I did accept your guilty plea and I found you guilty for the offense of aggravated sexual assault, three counts, I hereby reconsider and I reassess your punishment to 15 years, sir, in the Texas Department of Corrections, Institutional Division.

THE COURT: I want the record to reflect that this Court did reconsider its sentence, and I have set aside the previous sentence of 25 years.

What transpired during and after the victim-impact statement and prior to Appellee's re-sentencing is disputed between the State and the trial judge. There was a conference, off the record in the trial judge's chambers, and the record is silent as to what, if anything was said in court as to the precise reasons for the reconsideration of sentence. The State timely filed this appeal. Appellee filed a motion to dismiss this appeal for lack of jurisdiction, but this Court opted to carry the motion to dismiss with the case and address the issue with the rest of the issues on appeal.

II. DISCUSSION

The State's sole issue on review suggests that the trial court was without jurisdiction to revise and reassess Appellee's sentence of twenty-five (25) years' incarceration. Appellee counters by suggesting that this Court lacks appellate jurisdiction.

A. Jurisdiction

We first address Appellee's motion to dismiss for want of appellate jurisdiction. Appellee contends this case should be dismissed for lack of jurisdiction because his second sentence was not illegal. Appellee pled guilty to the offense of aggravated sexual assault of a child. The range of punishment for committing a first degree felony is a term of imprisonment of not less than five years and not more than ninety-nine years or life imprisonment. Tex. Pen.Code Ann. § 12.32 (Vernon 2003). Appellee asserts the trial court's reduction of his sentence from twenty-five (25) years to fifteen (15) years was not illegal since it was within the statutory sentencing range.

Contrary to Appellee, the State argues this Court has jurisdiction pursuant to Article 44.01(b) of the Code of Criminal Procedure. See Tex.Code Crim. Proc. Ann. art. 44.01(b) (Vernon Supp.2002). Under Article 44.01(b), the State is entitled to appeal a sentence on the ground that the sentence is illegal. Id. The State asserts the trial court's second sentence was illegal because the initial sentence of twenty-five (25) years' confinement was within the range of punishment, and the trial court lacked the authority to re-sentence Appellee.

In order for this Court to have jurisdiction under Article 44.01(b), it must be determined that the State is appealing Appellee's sentence and not something else. State v. Ross, 953 S.W.2d 748, 750 (Tex.Crim.App.1997); State v. Baize, 981 S.W.2d 204, 206 (Tex.Crim.App.1998). A "sentence" has been narrowly defined as "that part of the judgment order[ing] ... that the punishment be carried into execution in the manner prescribed by law." Tex.Code Crim. Proc. Ann. art. 42.02 (Vernon Supp.2003); Ross, 953 S.W.2d at 750; Baize, 981 S.W.2d at 206. A sentence includes the terms of the punishment, such as, how long the sentence will be and when the sentence will commence. Ross, 953 S.W.2d at 750. This Court will have jurisdiction if the State can show either the punishment itself or the order carrying the punishment into execution is illegal. Baize, 981 S.W.2d at 206.

However, this Court will lack appellate jurisdiction if the State's appeal is based upon a trial court action that affects the defendant's sentence. Ross, 953 S.W.2d at 750. In Ross, the State appealed defendant's sentence because the trial court failed to enter a deadly weapon finding in the judgment. Ross, 953 S.W.2d at 748. The State claimed the sentence was illegal because the omission of the deadly weapon finding should have been considered as part of the sentence. Id. The Court of Criminal Appeals held that although a deadly weapon finding may affect a sentence, it does not effectively become a sentence. Ross, 953 S.W.2d at 748 (citing Marshall v. State, 860 S.W.2d 142, 143 (Tex.App.-Dallas 1993, no pet.)). The Court also stated the deadly weapon finding or other factors, such as the type of offense committed or a jury verdict, may impact a defendant's sentence but they are not to be considered as part of the sentence. Ross, 953 S.W.2d at 750-51. Thus, the Court of Appeals did not have jurisdiction because the omission of the deadly weapon was not a sentence.

Furthermore, this Court will not have jurisdiction if the State's appeal is based on the procedure leading to the assessment of punishment rather than the sentence itself. Baize, 981 S.W.2d at 206. In Baize, the State appealed defendant's conviction using Article 44.01(b). Id. The State claimed the sentence imposed was illegal because the trial court allowed Appellee to untimely change his election for the jury to assess punishment. Id. The Court of Criminal Appeals held that...