                              NUMBER 13-06-428-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG


THE STATE OF TEXAS,                                                          Appellant,

                                            v.

ABRAHAM CHAVEZ GUERRERO,                                                     Appellee.


   On appeal from the 117th District Court of Nueces County, Texas.


                                   OPINION

                 Before Justices Yañez, Rodriguez, and Vela
                          Opinion by Justice Yañez

       After a bench trial, a trial judge found Abraham Chavez Guerrero guilty of various

criminal offenses and pronounced punishment at five years’ imprisonment. Later that

same day, the trial judge changed her finding of guilt to not guilty and entered a judgment

of acquittal. The State appeals the trial court’s judgment, asserting that a judgment of

conviction must be entered because the trial judge lacked the power to change her own

reasoned finding of guilt to not guilty. We find that, under the factual circumstances
presented herein, the trial judge was free to change her finding. Because the State is

appealing from a valid judgment of acquittal, we further find that the State has no right to

appeal, and its appeal must be dismissed for want of jurisdiction.

                                                 I. Background

       On July 14, 2005, Guerrero was indicted on one count of attempted sexual assault

of a child1 and two counts of indecency with a child.2 Guerrero waived his right to a jury

trial and elected to have the court assess punishment. A bench trial commenced on July

10, 2006. The child in question, D.F., testified at trial. D.F., a sixteen-year-old female at

the time of the alleged assault, and the younger sister of Guerrero’s fiancee, testified that

Guerrero had made physical, unwanted sexual advances towards her as she laid in her

bedroom.           Guerrero, testifying in his defense, contested the truthfulness of D.F.’s

testimony. According to Guerrero, it was D.F. who made a sexual advance towards him;

he immediately rejected the advance and told D.F. that he would be telling her sister about

the incident, which D.F. protested because she feared her sister would be upset with her.

       After both the State and Guerrero gave their closing arguments, the trial judge

stated the following:

       You know, in all sexual assault cases, generally speaking, there’s only two
       people there. And it becomes a credibility issue between the victim and the
       alleged perpetrator. And so, you have to listen attentively and I had the
       advantage of hearing [D.F.] in the previous trial as well. You would have to
       come to the conclusion that this was a huge fabrication. And you would have
       to be unimpressed with the multiple details and the chronology of what
       occurred. And so, I’m going to find that, beyond a reasonable doubt, Mr.
       Guerrero, that you are guilty of attempted sexual assault of a child. And I’m


       1
       T    EX .   P EN AL C OD E A N N . §§ 15.01 (Vernon 2003), 22.01 (Vernon Supp. 2007).

       2
           Id. § 22.11 (Vernon 2003).

                                                         2
        also going to find that you are guilty of two counts of indecency with a child.

The trial judge then pronounced Guerrero’s punishment, stating:

        Having found you guilty of Count One, attempted sexual assault of a child,
        I’m going to sentence you to five years in the Texas Department of Criminal
        Justice. And having found you guilty of two counts of indecency with a child,
        I’m going to assess punishment at five years for each count. All of these will
        run concurrent. That is the order of the Court.

        After this pronouncement, Guerrero’s defense counsel left the courthouse, and the

State’s counsel informed the victim of the verdict and left the courtroom. Guerrero was

taken out of the courtroom and placed in the courthouse’s holding cell. Approximately

twenty minutes later, the trial judge called Guerrero and the State’s counsel back into the

courtroom. Attempts were made to get Guerrero’s defense counsel to return to the

courtroom, but his counsel could not be reached. As a result, a former district judge, who

was found in the courthouse, was brought into the courtroom to stand-in as Guerrero’s

defense counsel.3 The trial judge then stated the following on the record:

        All right. Mr. Guerrero, go ahead and stand. I try very hard to be
        comfortable with the rulings that I make. And after you left the courtroom it
        didn’t sit well with me. So, I am going to reverse my ruling. And I am going
        to find you not guilty on Counts One, Two, and Three. I find that I have a
        reasonable doubt. By preponderance of the evidence, if it was a civil case,
        I wouldn’t have a doubt. But I don’t think there’s sufficient evidence to
        overcome the doubt that I have with regards to perhaps the victim wanting
        to beat you to the punch on telling her sister over what transpired. So, that
        is the ruling. It is not guilty on Counts One, Two, and Three, Mr. Guerrero.

The State did not protest this finding at trial. The State filed its notice of appeal on July 17,

2006, and the court entered a judgment of acquittal two days later.

                       II. Properly Framing the Issue Before this Court


        3
          The aforem entioned inform ation within this paragraph is known to us through the State’s appellate
brief, which is supported by Guerrero’s brief.

                                                     3
           Article 42.01 of the code of criminal procedure states that a trial court’s judgment

should reflect “[t]he verdict or verdicts of the jury or the finding or findings of the court.”4

In a jury trial, “the written verdict provides the basis for reforming an erroneous recitation

in judgment and sentence. In a bench trial the statement by the judge in the record is the

only comparable source that may be consulted to learn the decision of the fact finder.”5

“A judgment or sentence may only be reformed ‘to cause those instruments to reflect the

true finding of the fact finder when such a finding is reflected in the verdict or, in a bench

trial, the pronouncement of the court’s finding.’”6

           The trial judge stated on the record that she found Guerrero guilty, and that he

would have to serve five years in prison. At that moment in time, those statements

constituted the court’s findings and, as such, dictated what the court’s entered judgment

must reflect. The trial judge, however, later retracted the court’s earlier findings by making

additional statements on the record, whereupon the judge found Guerrero not guilty. The

court then entered a judgment reflecting this later finding, as article 42.01 would seem to

require.

           But does article 42.01 demand that the entered judgment reflect the trial judge’s

finding of not guilty, rather than the judge’s previous finding of guilt? Perhaps the more

appropriate question is the following: When does a trial judge surrender his or her ability

to withdraw a finding of guilt? This latter question succinctly captures the State’s sole issue



           4
           T    EX .   C OD E C R IM . P R O C . A N N . art. 42.01, § 1 (Vernon 2006).

           5
               Milczanowski v. State, 645 S.W .2d 445, 447 (Tex. Crim . App. 1983).

           6
               McCullough v. State, 720 S.W .2d 89, 90 (Tex. Crim . App. 1983) (quoting Milczanowski, 645 S.W .2d
at 447).

                                                                    4
on appeal: “Whether a trial court has the authority to sua sponte set aside its finding of

guilty after a bench trial, pronouncement of sentence, and all parties left the courtroom.”7

                    III. The State’s Appeal is not Barred by Double Jeopardy

       “There is a good deal more to be said about the instant cause than that a judgment

of acquittal was entered by the trial judge before we can know for sure whether” the State’s

appeal raises a double jeopardy concern.8 This is because an accused will not be subject

to double jeopardy unless the accused was actually acquitted.9 In Ex parte George, the

court of criminal appeals stated that the word “acquittal” means “a finding of fact that the

accused is not guilty of the criminal offense with which he is charged. And not just any

finding of fact either. It is an official factfinding . . . .”10 Whether or not the judgment of

acquittal in this case was the product of an “official factfinding” is the very question this

Court has been asked to answer.

       If, as the State contends, the trial judge was bound by her original finding of guilt,

then article 42.01 prohibited her from entering a judgment of acquittal.11             Despite

Guerrero’s assertions to the contrary, any failure by the trial court to comply with article

42.01 would result in a void judgment. As explained by the court of criminal appeals:

       A trial court may have jurisdiction to act over a case, yet lack authority to act
       in a particular manner over that case. . . . Lack of authority to act in a
       particular manner may render the judgment either void or voidable


       7
           State’s Brief at 6.

       8
           Ex parte George, 913 S.W .2d 523, 526 (Tex. Crim . App. 1995).

       9
           Id.

       10
            Id. at 527 (em phasis added).

       11
            See T EX . C OD E C R IM . P R O C . A N N . art. 42.01 § 1(7).

                                                                5
        depending on the type of the error, however. Unauthorized acts (or errors)
        can be characterized as either “illegal” or “irregular.” “Illegal acts” are defined
        as “acts that are not authorized by law.” On the other hand, “irregular acts”
        are defined as “acts or practices that vary from the normal conduct of an
        action.” While a judgment is merely “voidable for irregularity,” it is “void for
        illegality.”12

If the law only recognizes the trial judge’s original finding of guilt, then the entry of a

judgment of acquittal was more than a variance from the normal conduct prescribed by

article 42.01. Moreover, the trial judge’s action would be outside the parameters of any

rule or procedure in place at that time. If so, the trial judge’s act of entering a judgment of

acquittal would be more than a mere violation of statutory procedure; the action would be

unauthorized by law and, as such, would be void.13

        The court of criminal appeals has stated that “‘[a] void judgment is a nullity from the

beginning, and is attended by none of the consequences of a valid judgment. It is entitled

to no respect whatsoever because it does not affect, impair, or create legal rights.’”14

Therefore, if Guerrero’s acquittal is the product of a void judgment, he cannot use it to

counter the State’s appeal on double jeopardy grounds.

        We further observe that the State’s appellate brief contains the following prayer:

“[T]he State respectfully requests that the original judgment and sentence of the trial court

be reinstated and the second verdict on guilt be treated as a nullity.”15 The State’s prayer



        12
            See Ex parte Seidel, 39 S.W .3d 221, 224-25 (Tex. Crim . App. 2001) (citations om itted) (em phasis
in original).

        13
             See id. 225.

        14
          Id. (quoting Ex parte Spaulding, 687 S.W .2d 741, 745 (Tex. Crim . App. 1985) (Teague, J.,
concurring)).

        15
             State’s Brief at 22 (em phasis added).

                                                      6
has left this Court with two choices: it may reverse and have the trial court essentially

reinstate its originally rendered judgment of conviction, thus obligating the court to enter

a judgment of conviction, or it may affirm. Neither choice raises a double jeopardy

concern.16 In fact, federal and state courts have continually held that the Double Jeopardy

Clause is not violated by an appeal that results in reinstatement of a judgment of

conviction.17

                      IV. The State’s Right to Appeal Under Article 44.01

        The State contends that it can appeal the trial court’s judgment of acquittal because

the judgment constitutes either the granting of a new trial, or a modified judgment.18

        We reject the State’s contention that it can appeal the trial court’s judgment because

it constitutes the granting of a motion for new trial. Though this Court and the court of

criminal appeals have liberally interpreted the provision, “grants a new trial,” so as to allow

the State to appeal various trial court decisions, this has always occurred when the




        16
           The United States Suprem e Court has held that the Double Jeopardy Clause bars a post-acquittal
appeal by the prosecution not only when it m ight result in a second trial, but also if reversal would translate
into further proceedings of som e sort, devoted to the resolution of factual issues going to the elem ents of the
offense charged. Smalis v. Pennsylvania, 476 U.S. 140, 145 (1986). None of these results would occur if
we granted the relief sought by the State. The State is not asking the Court to afford it a second opportunity
to retry Guerrero, nor is it asking the Court to reassess factual issues going to the elem ents of the offense
charged against Guerrero.

        17
          See, e.g., United States v. Aslam, 936 F.2d 751, 754 (2d Cir. 1991) (citing United States v. Martin
Linen Supply Co., 430 U.S. 564, 570 (1977); United States v. W ilson, 420 U.S. 332, 352-53 (1975)); United
States v.Forcellati, 610 F.2d 25, 30 (1st Cir. 1979); People v. Mink, 565 N.E.2d 975, 981-82 (Ill. 1990);
Commonwealth v. Rawles, 462 A.2d 619, 621 (Pa. 1983); State v. Savage, 933 S.W .2d 497, 500 (Tex. Crim .
App. 1996).

        18
           See id. art. 44.01(a)(2) (stating that the State is entitled to appeal an order of a court in a crim inal
case if the order arrests or m odifies a judgm ent).

                                                         7
defendant actually raised some sort of motion.19 In the case at hand, no motions were

raised by either party prior to the trial judge revising her findings and pronouncing Guerrero

not guilty. Moreover, the judgment of acquittal can hardly be construed as the functional

equivalent of the granting of a motion for new trial because the trial court did not previously

enter a judgment of conviction.

         We do believe, however, that—if the trial court was bound by its original finding of

guilt—then the State can appeal the trial court’s judgment of acquittal because it

constitutes a modified judgment. We arrive at this determination recognizing that the

record does not reflect that the trial court first entered a judgment of conviction before it

entered its judgment of acquittal. Nonetheless, there are cases in which appellate courts

have interpreted a judgment as being “modified” when it failed to reflect a jury’s verdict,

even though the trial court only entered one judgment, and that judgment was never

altered.20 If a judgment can be construed as modified when it departs from a verdict in a

        19
            See State v. Savage, 933 S.W .2d at 498-500 (perm itting State to appeal from defendant’s m otion
for judgm ent non obstante verdicto (JNOV) by construing it as the granting of a m otion for new trial, despite
the fact that JNOV constituted an acquittal); State v. Bates, 889 S.W .2d 306, 310 (Tex. Crim . App. 1994)
(perm itting State to appeal from defendant’s “Motion Regarding Conduct of Trial” by construing it as the
granting of a m otion for new trial); State v. Evans, 843 S.W .2d 576, 577-78 (Tex. Crim . App. 1992) (perm itting
State to appeal from defendant’s “Motion to W ithdraw Plea of Nolo Contendere” by construing it as the
granting of a m otion for new trial); State v. Garza, 774 S.W .2d 724, 726 (Tex. App.–Corpus Christi 1989, pet.
ref’d) (perm itting State to appeal from defendant’s m otion for m istrial by construing it as the granting of a
m otion for new trial).

         20
           In State v. Cook, a jury found Cook guilty of driving while intoxicated. No. 13-04-533-CR, 2006 Tex.
App. LEXIS 460, at *1 (Tex. App.–Corpus Christi Jan. 19, 2006, no pet.) (m em . op., not designated for
publication). The trial court, however, set aside the jury’s verdict by signing an “Order on Instructed Verdict
(J.N.O.V.),” and entered a judgm ent finding Cook guilty of public intoxication, instead. Id. This Court found
that the State had the right to appeal the trial court’s action because “the trial court’s order effectively modified
the jury verdict from guilty of driving while intoxicated (DW I) to not guilty of DW I.” Id. at *6 (em phasis added).

          In State v. Leroy, a jury found Leroy guilty of m isdem eanor assault, and assessed punishm ent at a
fine of “none” and a confinem ent period of “none.” No. 05-04-00260-CR, 2005 Tex. App. LEXIS 1294, at *2
(Tex. App.–Dallas Feb. 17, 2005, pet. ref’d) (not designated for publication). The trial court then signed a
judgm ent sentencing Leroy to one day’s confinem ent and a one dollar fine. Id. On appeal, the State asserted
that the trial court erred by accepting a jury verdict that constituted no punishm ent. Id. at *1. The State based

                                                         8
jury trial, then it can similarly be construed as modified when it purposely departs from a

finding in a bench trial.

                  V. Could the Trial Judge Abandon the Finding of Guilt?

        On appeal, Guerrero asserts that a trial court can change its finding of guilt to a

finding of not guilty, after the court pronounces punishment, but no later than the time the

court pronounces punishment and adjourns for that day. Accordingly, Guerrero asserts

that the trial judge could find him not guilty because she did so after punishment was

pronounced, but before the court had adjourned for the day.

        We have found no case law from this State explicitly supporting Guerrero’s position,

and attempts to find guidance from other states only reveals case law adverse to his

claim.21 In this case law, appellate courts have denied trial courts the authority to abandon

a finding of guilt because of double jeopardy and public policy concerns,22 as well as a

belief that a judge should not be able to abandon a pronounced finding any more than he


its right to appeal on the allegation that the trial court m odified a judgm ent. Id. at *4. The Dallas Court of
Appeals, in addressing the State’s right to appeal, stated: “To the extent the trial court rendered a judgm ent
when it accepted the jury’s verdict on punishm ent, we agree that the later, written judgment can be viewed
as modifying the initial rendition. Thus, we have jurisdiction to address the State’s com plaints involving the
final, written judgm ent.” Id. at *4-5 (em phasis added; citation om itted).

        21
            See State v. Johnson, No. S97-10-0692, 1998 Del. Super. LEXIS 129, at *5-7 (Del. Super. Ct. Apr.
7, 1998) (holding that trial court could find defendant guilty, and sua sponte reconsider and vacate the finding
before it pronounced punishm ent later that day); People v. Hutchinson, 569 N.W .2d 858, 859-60 (Mich. Ct.
App. 1997) (holding that trial court could not find defendant guilty, and sua sponte reconsider and reverse its
finding nine m onths later, even though it did so prior to pronouncing punishm ent); People v. Jones, 512
N.W .2d 26 (Mich. Ct. App. 1993) (holding that trial court could not find defendant guilty, and sua sponte
reconsider and reverse its finding eight days later, even though it did so prior to pronouncing punishm ent);
People v. Carter, 473 N.E.2d 6, 10-11 (N.Y. 1984) (holding that trial court could not find defendant guilty, and
reverse its finding in response to a JNOV m otion, even though the court reversed its finding prior to
pronouncing sentence); Commonwealth v. Stark, 584 A.2d 289, 291 (Pa. 1990) (holding that trial court could
not find defendant guilty, and sua sponte reconsider and reverse its finding before it pronounced punishm ent
later that day); Commonwealth v. Fitten, 657 A.2d 972, 973 (Pa. Super. Ct. 1990) (holding sam e).

        22
          See Hutchinson, 569 N.W .2d at 860 (expressing double jeopardy concern); Jones, 512 N.W .2d at
30 (expressing double jeopardy and public policy concerns).

                                                       9
or she can abandon a jury’s verdict.23               And while we have taken these cases into

consideration, this Court’s evaluation of the propriety of Guerrero’s position is ultimately

predicated upon various holdings from the court of criminal appeals.

       In Luna v. State, Luna appealed his conviction to this Court, arguing that “a jury

deliberating on punishment has the right to reconsider its determination of guilt after

hearing additional evidence during the punishment phase of the trial.”24 We rejected

Luna’s argument on the basis that jury trials are bifurcated, stating:

              In Texas, criminal trials are bifurcated into a guilt/innocence phase
       and a punishment phase. Article 37.07 authorizes the trial court to “first
       submit to the jury the issue of guilt or innocence of the defendant of the
       offense or offenses charged, without authorizing the jury to pass upon the
       punishment to be imposed.” If a finding of guilty is returned, a separate
       hearing is held at which evidence relevant to punishment may be introduced
       by the State and by the defendant. Punishment is then assessed by the trial
       court or, if the defendant has so elected, by the jury.

              The Legislature clearly intended “determination of guilt” and
       “assessment of punishment” to be two separate proceedings. It made no
       provision for a reconsideration of the decision on guilt, after the punishment
       phase has begun. Adopting [Luna’s] interpretation . . . would negate the
       system of bifurcation clearly intended by the Legislature, and would in effect
       transform the determination of guilt and punishment into a single
       proceeding.25

The court of criminal appeals has held, however, that the bifurcation statute applies only

to pleas of not guilty before a jury ; it has no application to a plea of not guilty before a trial

court.26 The court has thus held that a trial judge may continue to consider evidence on



       23
            See Carter, 473 N.E.2d at 11 & n.3.

       24
            Luna v. State, 70 S.W .3d 354, 356 (Tex. App.–Corpus Christi 2002, pet. ref’d).

       25
            Id. at 361-62 (citations om itted).

       26
            Barfield v. State, 63 S.W .3d 446, 449-50 (Tex. Crim . App. 2001).

                                                      10
the issue of guilt after it has pronounced its finding of guilt.27 This is because “the decision

of the [trial] court in a unitary trial is not fixed until it renders judgment on guilt and

punishment after all the evidence and arguments have been heard.”28

       If a trial court retains the power to consider new evidence in support of its previously

pronounced finding of guilt, then it must also retain the ability to reconsider evidence

admitted prior to the court’s pronouncement. Allowing a trial court to consider new

evidence and reconsider previously admitted evidence is a meaningless prerogative,

however, if the court has no authority to revisit its finding of guilt. Accordingly, the

prerogative to continue evaluating evidence of guilt, after a finding of guilt, must mean that

a trial court has the authority to second guess its finding, and revise it by a finding of not

guilty if the interests of justice so require.

       But can a trial court revise its finding of guilt after it has pronounced punishment?

Relying on the court of criminal appeals’ holding in State v. Aguilera,29 Guerrero answers

this question in the affirmative.           In Aguilera, the court held that once a trial court

pronounces punishment, the court “retains plenary power to modify its sentence if . . . 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.”30 Guerrero thus contends that a trial

court’s plenary power over its finding of guilt expires at the same time it loses its power to


       27
            See id. at 451; Jones v. State, 532 S.W .2d 596, 597 (Tex. Crim . App. 1976).

       28
            Barfield, 63 S.W .3d at 451.

       29
            Aguilera, 165 S.W .3d 695.

       30
            Id. at 698.

                                                     11
modify a sentence. We agree.

        A judgment in a bench trial cannot be fragmented (i.e., conviction and punishment

cannot exist independently of each other).31 Accordingly, a trial court’s plenary power to

change punishment constitutes the power to change the judgment in its entirety. As a

result, a court retains the authority to change its finding of guilt. Should a trial court elect

to change its finding of guilt, however, it must undoubtedly follow the same procedural

requirements articulated in Aguilera: the change must be “done in the presence of the

defendant, his attorney, and counsel for the State.”32 In Guerrero’s case, the trial court

sufficiently complied with these requirements.

                                                       VI. Conclusion

        Because the trial court changed its finding of guilt after pronouncing punishment,

but before the court had adjourned for the day, we find that the court’s judgment of

acquittal is valid, rather than void.33 Moreover, because the trial judge had the power to

change her reasoned finding of guilt to not guilty, we reject the State’s contention that the

trial court’s judgment of acquittal constitutes a modified judgment. As a result, we find that

the State has no right to appeal,34 and that its appeal must be dismissed for want of



        31
           Jones v. State, 797 S.W .2d 33, 34 (Tex. Crim . App. 1990) (Clinton, J., dissenting) (“W here the
issue of punishm ent is referred to the jury, its verdict is not com plete until the jury renders a verdict on guilt
and assesses punishm ent. So also a finding of guilt by the court in a bench trial without an assessm ent of
punishm ent is not a conviction.”) (citing Faurie v. State, 528 S.W .2d 263, 265 (Tex. Crim . App. 1975); W oods
v. State, 532 S.W .2d 608, 609, n.1 (Tex. Crim . App. 1976)).

        32
             Aguilera, 165 S.W .3d at 698.

        33
          It is im portant to note that the power to abandon a finding of guilt does not entail the power to
abandon a finding of not guilty, for the latter act is barred by double jeopardy. See Smalis, 476 U.S. at 145;
Kepner v. United States, 195 U.S. 100, 130 (1904).

        34
             See T EX . C OD E C R IM . P R O C . A N N . art. 44.01(a).

                                                                 12
jurisdiction.




                                                 LINDA REYNA YAÑEZ,
                                                 Justice




Concurring Opinion by Justice Vela.

Do not publish. TEX . R. APP. P. 47.2(b).

Opinion delivered and filed this
the 25th day of August, 2008.




                                            13
