Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS: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. HOLDING:The court of appeals is reversed, and the trial court’s sentence of 15 years’ incarceration is reinstated. The appellee pleaded 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 pleaded 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 presented here. At a minimum, a trial court retains plenary power to modify its sentence if a motion for new trial or motion in arrest of judgment is filed within 30 days of sentencing. The court holds 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. 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 Texas Code of Criminal Procedure Article 42.09 1 that a defendant’s sentence begins to run on the day that it is pronounced and the provisions of 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, the court concludes. Appellee’s sole ground for review is sustained. OPINION:Johnson, J.; Meyers, Price, Holcomb and Cochran, JJ., joined. Keller, P.J., and Hervey, J., dissented. CONCURRENCE:Womack, J., filed a concurring opinion. “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.” CONCURRENCE:Cochran, J., filed a concurring opinion, in which Price, J., joined. “Because the State did not bring a point of error to the court of appeals addressing the purported illegal basis for the re-sentencing, we cannot address that question ourselves nor remand to the court of appeals to address an issue that was never directly presented to it.” DISSENT:Keasler, J., filed a dissenting opinion, in which Hervey, J., joined. “If the majority wants to overrule Williams and Powell, it should do so. If it believes that Junious, Ware and McClinton are better reasoned that Tooke and Dickerson, it should explain why. If it believes that Appellate Rules 21.4 and 22.3 grant trial judges plenary power to alter sentences, it should explain why. Since the majority opinion does none of this, I cannot join it.”

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 1 article* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.