                             NUMBER 13-14-00129-CR

                            COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI – EDINBURG

RUDY SILLER,                                                                   Appellant,

                                                 v.


THE STATE OF TEXAS,                                                            Appellee.


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


                         MEMORANDUM OPINION
     Before Chief Justice Valdez and Justices Garza and Longoria
            Memorandum Opinion by Chief Justice Valdez

      A jury found appellant, Rudy Siller, guilty of one count of assault of a public servant,

a third-degree felony. However, because Siller had two prior felony convictions, the

offense was enhanced pursuant to the habitual felony offender statute to require a

punishment range of twenty-five to ninety-nine years. See TEX. PENAL CODE ANN. §§ 12.
42(d), 22.01(b)(1) (West, Westlaw through 2013 3d C.S.). The trial court sentenced Siller

to twenty-five years’ imprisonment. By one issue, Siller contends that his right to counsel

was violated because the record does not reflect whether his trial counsel was present at

resentencing. We affirm.

                                         I.         PERTINENT FACTS

       The jury found Siller guilty. However, Siller elected for the trial court to impose his

sentence.        At the punishment hearing, Siller pleaded “true” to two enhancement

paragraphs alleging that he had committed two prior felonies. The trial court found the

enhancement paragraphs “true” and assessed a punishment of fifteen years’

imprisonment. After a recess, the trial court brought Siller back to the courtroom and told

him that “both attorneys” had approached the trial court and informed it that in order to

sentence Siller to fifteen years, it had to find one of the enhancements “not true.” The

trial court stated that it could not do so and that it had found both of the previous felony

convictions to be “true.” The trial court then resentenced Siller to twenty-five years’

imprisonment. This appeal ensued.

                                              II.     DISCUSSION

       By his sole issue, Siller contends that his right to counsel was violated during the

punishment phase of his trial because the record does not show that his trial counsel was

present when the trial court resentenced him to twenty-five years’ confinement.1 The

State responds that the judgment recites that Siller appeared with trial counsel and that

due to the presumption of regularity of judgments of conviction, we should affirm absent

evidence showing that trial counsel was not present.


       1   In his brief, Siller states, “Frankly, it is unknown whether counsel was present at the resentencing.”


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        When she originally sentenced Siller to fifteen years, the judge found it true that

Siller had two prior felony convictions. When the judge had Siller brought back into the

courtroom, she said:

                 All right. If you will be seated. Mr. Siller, after you left, both attorneys
        approached me and that in order for me to sentence you to 15 years, I have
        to find that one of the enhancement offenses is not true. And unfortunately,
        I can’t find that it is not true. You’ve pled true to it, it is supported by the
        evidence, and the judgment, and I am going to, in effect, change the
        sentencing because I am—I can’t find that it’s not true, and so if there’s two
        prior felony convictions, I am limited and I am going to find that I have found
        you guilty of the offense of assault on a public servant. I’m going to find that
        it is true, the two prior felony convictions, and I’m going to sentence you to
        25 years in the Texas Department of Criminal Justice. I do not have a
        leeway. I would have to ignore and find something not true that is obviously
        true. So it is 25 years minimum in the Texas Department of Criminal
        Justice.[2]

        Here, the judge found the enhancements to be true and based on our review of

the record, had originally intended to sentence Siller as a habitual felony offender. See

TEX. PENAL CODE ANN. § 12. 42(d) (“[I]f it is shown on the trial of a felony offense . . . that

the defendant has previously been finally convicted of two felony offenses, and the

second previous felony conviction is for an offense that occurred subsequent to the first

previous conviction having become final, on conviction the defendant shall be punished




        2   As an initial matter, we note that the Texas Court of Criminal Appeals has held

        that a trial court . . . 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 Article 42.09, § 1, that a defendant’s sentence begins to run on the day that
        it is pronounced, 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.

State v. Aguilera, 165 S.W.3d 695, 698 (Tex. Crim. App. 2005). Thus, to the extent that Siller argues that
the trial court lacked authority to resentence him with counsel present, we reject that argument. See id.


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by imprisonment in the Texas Department of Criminal Justice for life, or for any term of

not more than 99 years or less than 25 years.”). Under the habitual felony offender

statute, the judge was not authorized to impose a sentence that was less than twenty-five

years. See id. The record reflects that the judge made a mistake in her initial sentence

of fifteen years, and after defense counsel and the prosecutor informed her of the mistake,

she quickly corrected it by imposing a proper sentence for a habitual felony offender.

After making the finding that Siller was a habitual felony offender, the trial court was not

authorized to impose a fifteen-year sentence. Thus, we overrule Siller’s issue to the

extent that he complains that we must reinstate the original fifteen-year sentence.

        Next, nothing in the record indicates that Siller’s trial counsel was not present when

the judge brought Siller back into the courtroom. In fact, the judge specifically stated that

she was resentencing Siller because his trial counsel and the prosecutor had informed

her that she had to make a finding that one of the enhancement paragraphs was not true

in order to sentence him to only fifteen years. Nothing in the record suggests that Siller’s

trial counsel left the courtroom after informing the judge of her error.3 Moreover, the

judgment recites that Siller appeared with his trial counsel. A presumption of regularity

created by recitals in the judgment are binding absent evidence in the record that error

occurred. Breazeale v. State, 683 S.W.2d 446, 450 (Tex. Crim. App. 1984); see also

Denby v. State, Nos. 14-97-01327-CR, 14-97-01328-CR, 1999 WL 627889, at *2 (Tex.



        3 The record shows that the trial court sentenced Siller to fifteen years and that the proceedings
were “recessed.” The court reporter documented that then, “Thereafter the Court brought the Defendant
back into the courtroom and the following occurred.” At this point, the trial court informed Siller that his trial
counsel had explained that the trial court had to find one of the enhancement paragraphs “not true” in order
to sentence Siller to only fifteen years. After the resentencing, the reporter’ record indicates that the
“proceedings adjourned.” Thus, there is nothing in the record showing that Siller’s trial counsel left the
courtroom.


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App.—Houston [14th Dist.] 1999, no pet.) (mem. op., not designated for publication)

(providing that the appellant’s claim that he was not represented by counsel at

resentencing was without merit because, among other things, the judgment recited that

the appellant appeared in person with his trial counsel). Here, even Siller acknowledges

that there is nothing in the record showing that his trial counsel was not present at the

resentencing. Thus, we conclude that the recital in the judgment that Siller appeared with

trial counsel created a presumption of regularity and that without any evidence showing

that Siller’s trial counsel left the courtroom before the resentencing, we must presume

that Siller’s trial counsel was present.4 We overrule Siller’s sole issue.

                                           III.     CONCLUSION

        We affirm the trial court’s judgment.

                                                           /s/ Rogelio Valdez
                                                           Rogelio Valdez
                                                           Chief Justice

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

Delivered and filed the
16th day of October, 2014.




        4 Although Siller filed a motion for new trial alleging ineffective assistance of his trial counsel for
reasons unrelated to resentencing, Siller did not complain in his motion that his counsel was not present
during the resentencing.


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