

DISSENTING OPINION
 
No. 04-09-00694-CR
 
The STATE of
Texas,
Appellant
 
v.
 
Caleb DAVIS,
Appellee
 
From the 399th
Judicial District Court, Bexar County, Texas
Trial Court No. 2008-CR-8943
Honorable Juanita A.
Vasquez-Gardner, Judge Presiding
 
Opinion by:   Catherine Stone, Chief Justice
Dissenting Opinion by: Steven C. Hilbig, Justice
 
Sitting:          Catherine Stone,
Chief Justice
                     Sandee
Bryan Marion, Justice
                     Steven
C. Hilbig, Justice
 
Delivered and
Filed:  November 3, 2010
 
Although I agree the
trial court had the authority to modify Appellee’s sentence, this case should
be remanded to the trial court for sentencing proceedings.  Because the
majority opinion fails to do so, I respectfully dissent.
Background
           On October 6, 2009, and within thirty
days of his sentencing, Caleb Davis sought to modify a fifteen year sentence
imposed by the trial court.  Davis filed a document entitled “Motion for
Reconsideration or Reduction of Sentence.”  Apparently without conducting a
hearing, the trial court granted the motion by written order dated October 16,
2009.  In its order, the trial court “reduced and reformed” the sentence to
twelve years in prison.
           The State gave proper notice of appeal
and now argues the trial court was without authority to grant the motion.  The
State contends the trial court could not alter the sentence once Davis began
serving it, and relies on cases decided before the 2007 amendments to the Texas
Rules of Appellate Procedure that allow trial courts to grant motions for new
trial on punishment.  See, e.g. State v. Aguilera, 165 S.W. 3d 695, 698
(Tex. Crim. App. 2005) (trial court has plenary power to modify sentence if
modification made on the same day as assessment of the initial sentence and
before the court adjourns for the day); State v. Hight, 907 S.W.2d 845,
847 (Tex. Crim. App. 1995) (trial court does not have authority to grant new
trial as to punishment only).  Currently, our rules permit the trial judge to
grant a new trial on punishment.  See Tex
R. App. P. 21.1 (b) (“New trial on punishment means a new hearing of the
punishment stage of a criminal action after the trial court has, on the
defendant’s motion, set aside an assessment of punishment without setting aside
a finding or verdict of guilt.”); Tex R.
App. P. 21.3 (listing the grounds for which “[t]he defendant must be
granted a new trial, or a new trial on punishment.”); Tex R. App. P. 21.9 (a) (“a court must grant only a new trial
on punishment when it has found a ground that affected only the assessment of
punishment.”)  Although the State asserts the motion filed by Davis should not
be liberally construed as a motion for new trial, it appears the actions of the
trial judge, by granting the motion, “set aside an assessment of punishment
without setting aside a finding or verdict of guilt.” See Tex R. App. P. 21.1(b).  I agree with
the majority’s reasoning and its conclusion that the trial judge had the
authority to set aside its original sentence.
           My disagreement arises because the
majority simply affirms the judgment of the trial court.  If the motion is
construed as a motion for new trial on punishment, the granting of it merely
returns the parties to the point where Davis has been found guilty, but no sentence
has been imposed.  See Tex R.
App. P. 21.9 (“Granting a new trial on punishment restores the case to
its position after the defendant was found guilty.”)  The trial judge must
still impose a sentence. See Thompson v. State, 108 S.W.3d 287, 290
(Tex. Crim. App. 2003) (defendant tried on two felony charges but trial court
orally sentenced only on one count, written judgment reflecting thirty-year
sentence on both counts not proper; there was no “valid judgment” on count
where sentence never orally pronounced).  A felony sentence must be pronounced
in the presence of 
the defendant, his attorney, and the attorney for the State.  Tex. Code
Crim. Proc. Ann. art.
42.03 § 1(a) (West 2010); Aguilera, 165 S.W.3d at 698.  Because Davis
has not been properly sentenced, there is not a valid judgment to affirm.  The
case should be remanded to the trial court for the proper imposition of
sentence.       
 
Steven C. Hilbig, Justice
 
 
 
 
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