










IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. PD-0042-11


THE STATE OF TEXAS

v.


CALEB DAVIS, Appellee




ON STATE'S PETITION FOR DISCRETIONARY REVIEW
FROM THE FOURTH COURT OF APPEALS

BEXAR COUNTY



 Hervey, J., delivered the opinion for a unanimous Court.  Alcala, J., filed a
concurring opinion.

O P I N I O N

	Appellee pled guilty to burglary of a habitation with intent to commit aggravated
assault and was sentenced to 15 years in prison on September 14, 2009. (1)  Appellee
subsequently filed a Motion for Reconsideration or Reduction of Sentence.  On October
16, 2009, the trial court granted Appellee's motion, without a hearing, and reduced the
sentence to 12 years' confinement.  Three days later, the trial court signed a second
judgment reducing Appellee's punishment to 12 years' confinement.  There is no record
of an oral pronouncement of the modified sentence in the presence of all of the parties. 
	The State appealed, arguing in part that the trial court's second judgment was void
because the sentence was not pronounced in open court with the parties present.  The San
Antonio Court of Appeals disagreed.  State v. Davis, 335 S.W.3d 252 (Tex. App.--San
Antonio 2010).  The court primarily relied on our holding in Ex parte Madding "that the
absence of the defendant at the time the trial court modifies a sentence does not result in a
void judgment."  Id. at 254 (citing Ex parte Madding, 70 S.W.3d 131, 136 (Tex. Crim.
App. 2002)).  The court also pointed out that the State was not arguing "that its due
process rights were violated" by the modification procedure and that the State would not
have standing to assert a violation of Appellee's due process rights.  Id. at 253-55. 
Consequently, the court of appeals observed the plenary power of a trial court to modify
its sentence if such a motion is timely filed, and construing Appellee's motion for
reconsideration or reduction of sentence as a motion for new trial, it affirmed the trial
court's order reducing Appellee's sentence.
	Justice Hilbig dissented.  Id. at *7-10 (Hilbig, J., dissenting).  He agreed with the
majority that the trial judge had authority to set aside its original judgment.  Id. at *7. 
However, he believed that Appellee was not properly sentenced because the new sentence
was not pronounced in the presence of the defendant, his attorney, and the State.  Id. at
*9-10.  Thus, he asserted that "the case should be remanded to the trial court for the
proper imposition of sentence."  Id. at *10. 
	We granted the State's petition for discretionary review to determine whether the
court of appeals erred in holding that the trial court had authority to grant a motion for
reconsideration or reduction of sentence and modify the original sentence without a
hearing and outside the presence of the parties.  We agree with Justice Hilbig's
conclusion and will reverse the judgment of the court of appeals.
	A trial court retains plenary power to modify its sentence if a motion for new trial
is filed within 30 days of sentencing.  State v. Aguilera, 165 S.W.3d 695, 697-98 (Tex.
Crim. App. 2005) (citing Tex. R. App. P. 21.4).  The Texas Rules of Appellate Procedure
currently permit a trial court to grant a new trial ("the rehearing of a criminal action after
the trial court has, on the defendant's motion, set aside a finding or verdict of guilt") (2) or a
new trial on punishment ("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"). (3)  Rule 21.9 explains that "[g]ranting a
new trial restores the case to its position before the former trial, including, at any party's
option, arraignment or pretrial proceedings initiated by that party."  Tex. R. App. P.
21.9(b).  In contrast, "[g]ranting a new trial on punishment restores the case to its position
after the defendant was found guilty"; that is, it places the parties back in the position of
proceeding to sentencing.  Tex. R. App. P. 21.9(c).
	While we have previously held that a trial court may not grant a new trial solely on
the issue of punishment, the reasoning for that rule no longer stands, and a trial court may
indeed grant a new trial on punishment.  Previously, a reading of Texas Rule of Appellate
Procedure 21 (or its predecessors, Rules 31 and 32) in conjunction with Article 44.29(b)
of the Texas Code of Criminal Procedure made it clear that a trial court could not grant a
new trial solely on the issue of punishment.  State v. Hight, 907 S.W.2d 845, 846-47 (Tex.
Crim. App. 1995); State v. Bates, 889 S.W.2d 306, 310-11 (Tex. Crim. App. 1994).  At
that time, Rule 21 referred to "new trial" but omitted any mention to a "new trial on
punishment."  Further, Rule 21 explained that the effect of granting a new trial was to
"restore[] the case to its position before the former trial," which would not be consistent
with the consequences of granting a new trial on punishment.  Hight, 907 S.W.2d at 846;
Bates, 889 S.W.2d at 310.  Article 44.29(b) (4) permitted a new trial on punishment to be
granted, but the trial court was not among the courts listed which could do so.  Hight, 907
S.W.2d at 846; Bates, 889 S.W.2d at 310-11.
	Rule 21 was amended, effective January 1, 2007.  Among the amendments were
the introduction of a definition for "new trial on punishment," which specifically refers to
the action of the trial court and the requirement that, when an error affected only
punishment, trial courts are to grant a new trial on punishment only.  Tex. R. App. P.
21.1(b).  Although Article 44.29(b) still does not explicitly authorize trial courts to grant
new trials only as to punishment, it does not prohibit them from doing so.  Tex. Code
Crim. Proc. art. 44.29(b).  The statute speaks only to the authority of the appellate courts. 
See State v. Stewart, 282 S.W.3d 729, 740-41 (Tex. App.--Austin 2009, no pet.).  Article
44.29(b) does not limit the impact of Rule 21 here.  Thus, following the 2007
amendments, trial courts have the authority to grant a new trial on punishment.
	If a trial court's order is functionally indistinguishable from the granting of a
motion for new trial, a reviewing court can look past the label given to it and treat it as an
order granting the motion for new trial.  For example, in State v. Savage, 933 S.W.2d 497,
499 (Tex. Crim. App. 1996), we ruled that the trial court's order granting a motion for
judgment non obstante verdicto was functionally equivalent to the grant of a new trial for
insufficient evidence because it accomplished the same outcome; both essentially resulted
in an acquittal under the circumstances.  Similarly, in State v. Evans, 843 S.W.2d 576,
577-78 (Tex. Crim. App. 1992), we determined that an order granting a motion to
withdraw or reconsider the plea should more aptly have been called an order granting a
new trial because it returned the case to the posture it had been in before the plea was
accepted.
	In this case, although Appellee's motion was entitled "Motion for Reconsideration
or Reduction of Sentence," the order granting the motion is functionally indistinguishable
from the granting of a new trial on punishment.  The trial court's order reduced and
reformed Appellee's sentence to a term of twelve years but left Appellee's plea
unchanged.  A guilty plea results in "a 'unitary trial' to determine the remaining issue of
punishment."  Carroll v. State, 975 S.W.2d 630, 631 (Tex. Crim. App. 1998).  So by
granting Appellee's motion, the trial court placed the parties in the position of 
proceeding to sentencing, meaning the actual effect of the trial court's order granting
Appellee's motion was to grant a new trial on punishment.  See Tex. R. App. P. 21.9(c).
	Because Appellee's motion was timely filed (5) and the actual effect of the trial
court's order granting that motion was functionally equivalent to granting a new trial on
punishment, we agree with the court of appeals that the trial court had the authority to set
aside Appellee's original sentence and that the modified judgment of the trial court is not
void.  The problem, however, lies in the way that the modified judgment was rendered.  
	The Texas Code of Criminal Procedure provides that, in a felony case, the
sentence must be pronounced in the presence of the defendant.  Tex. Code Crim. Proc.
art. 42.03 § 1(a). (6)  Our caselaw has established that the State must also be present on such
an occasion.  In Madding, we held that "[w]hen the oral pronouncement of the sentence
and the written judgment vary, the oral pronouncement controls" because "the written
sentence or order simply memorializes" the oral pronouncement. (7) Madding, 70 S.W.3d at
135 (citing Coffey v. State, 979 S.W.2d 326, 328 (Tex. Crim. App. 1998)).  Importantly,
we explained that "[t]he rationale for this rule is that the imposition of sentence is the
crucial moment when all of the parties are physically present at the sentencing hearing
and able to hear and respond to the imposition of sentence."  Id. (emphasis added).  Later,
in State v. Aguilera, we again emphasized the importance of the parties' physical
presence--when a trial court modifies a sentence upon the timely filing of a motion for a
new trial, "re-sentencing must be done in the presence of the defendant, his attorney, and
counsel for the state."  Aguilera, 165 S.W.3d at 697-98.  
	In McClinton v. State, 121 S.W.3d 768 (Tex. Crim. App. 2003), the trial court
modified the defendant's sentence without any indication that either party filed a motion
for the modification and without the presence of the State.  We decided in that case that
our decision to grant review was improvident, so we did not reach the issue.  Id. at 768-69.  We agree, however, with the concurring opinion of Judge Cochran.  She stated, "A
trial court has the inherent authority to alter, modify, or vacate its rulings, but it does not
have the inherent authority to alter, modify, or vacate a sentence imposed in open court
without statutory authorization and without the presence of the parties."  Id. at 771
(Cochran, J., concurring) (emphasis added).  Judge Cochran explained, 
		[A] trial court does not have the statutory authority to impose one sentence
orally to the defendant and then, at some later date, enter a different, greater or
lesser, sentence in his written judgment outside the defendant's or State's presence.  
Such a system would create havoc: a trial judge could orally pronounce sentence in
open court while the defendant and his family and friends, a possible victim and
his family and friends, and the prosecutor are all present, then later modify, alter,
or amend that sentence when no one else was present to object. . . . Such a system
would be unfair to both parties and to society at large.  Such a system would inject
an intolerable level of uncertainty into the sentencing process and would prevent
any sentence from becoming "final" until the trial court's plenary authority had
expired. 

Id. at 770-71.
	We believe that the requirement of the State's presence is particularly evident
when viewed in the context of Texas Rule of Appellate Procedure 21.9, discussing the
consequences of granting a new trial.  That rule includes references to the "State" (8) and
"any party's" (9) and thereby signifies the importance of the State's participation in the re-sentencing process so that the State receives notice and has an appropriate opportunity to
respond.
	Here, there is nothing in the record to indicate that this new or modified sentence
was orally pronounced in the presence of all of the parties.  The record contains the initial
judgment, followed by a motion for reconsideration.  Attached to that motion are a
certificate of service, indicating notice to the State of the filing, as well as an order for a
setting.  An order for a setting typically indicates that a hearing on the motion is to be
held, but in this case, it was left completely blank.  Then, we find the order granting the
motion and the modified judgment.  While a modified judgment contains language
indicating the parties that appeared, it does not mention a hearing.  In fact, this modified
judgment appears to be an exact copy of the first judgment with the reduction in sentence
from 15 to 12 years; it even reflects the date of the original punishment hearing,
September 14, 2009.  The docket sheet does not reflect any hearing on Appellee's
motion. (10)
	Because the new or modified sentence was not orally pronounced, the trial court's
procedure for imposing that sentence was contrary to the Texas Code of Criminal
Procedure and our caselaw.  Without an oral pronouncement, the State was not physically
present at the sentencing and, thus, did not have the opportunity to hear or respond to the
imposition of the modified sentence.  Once the trial court granted Appellee's motion to
reconsider, it was then required to hold a new punishment hearing in open court in the
presence of the parties.  The court of appeals failed to address the fact that not only was
the State not present to address Appellee's motion, but there was no hearing held at all. 
As a result, the court of appeals erred in affirming the modified judgment of the trial
court.
	When an appellate court finds error that affects only the punishment phase of trial,
it may remand the case to the trial court for the proper assessment of punishment.  Tex.
Code Crim. Proc. art. 44.29(b).  "Once the guilty plea is entered, the procedure becomes
a 'unitary trial' to determine the remaining issue of punishment."  Carroll, 975 S.W.2d at
631.  The absence of an oral pronouncement of the modified sentence in the presence of
all parties affected only Appellee's punishment, so the appropriate remedy in this case is
to allow the plea of guilty to remain and to remand the case to the trial court for the
proper assessment of punishment. (11)
	Therefore, the judgment of the court of appeals is reversed, and we remand the
case to the trial court for reassessment of punishment consistent with this ruling.	
								Hervey, J.
Delivered: October 5, 2011
Publish
1. Appellee entered into a plea agreement with the State, which included a recommendation
that punishment be capped at a maximum of 18 years.
2. Tex. R. App. P. 21.1(a).  
3. Tex. R. App. P. 21.1(b). 
4. Article 44.29(b) read in pertinent part, "If the court of appeals or the Court of Criminal
Appeals awards a new trial to a defendant . . . only on the basis of an error or errors made in the
punishment stage of the trial, the cause shall stand as it would have stood in case the new trial
had been granted by the court below except that the court shall commence the new trial as if a
finding of guilt had been returned and proceed to the punishment stage of the trial under
Subsection (b), Section 2, Article 37.07 of this code."
5. The court of appeals explained that "the file stamp on the motion for reconsideration or
reduction of sentence contained in a supplemental clerk's record ordered by this court reflects
that the motion was filed on October 6, 2009, within thirty days of the date the original sentence
was imposed."  Davis, 335. S.W.3d at 253.
6. We note that there are limited circumstances in which the judgment and sentence of a
felony case may be rendered in the absence of the defendant.  Tex. Code Crim. Proc. art.
42.14(b). 
7. In Madding, we determined that a written judgment pronouncing consecutive sentences,
which followed 52 days after the oral judgment pronouncing concurrent sentences, violated the
defendant's due process rights.  Madding, 70 S.W.3d at 136-37.  We did not hold, however, that
the written judgment was void.  Id.
8. Tex. R. App. P. 21.9(c).
9. Tex. R. App. P. 21.9(b).
10. In his brief, Appellee appears to readily concede that there was not a hearing in the
presence of all parties.  In fact, his arguments focus on why a judgment is valid when not all the
parties are present for its pronouncement.
11. We note that the result of this case might be different if, instead of capping punishment
at a maximum of 18 years, Appellee's plea agreement with the State had provided that the
punishment was to be for 15 years.
