                                  COURT OF APPEALS FOR THE
                             FIRST DISTRICT OF TEXAS AT HOUSTON

                                      ORDER OF ABATEMENT

Appellate case name:       Laconte Troy Weldon v. The State of Texas

Appellate case number:     01-13-00113-CR

Trial court case number: 1779615

Trial court:               County Criminal Court at Law Number 7 of Harris County


       The appellant argues that because there is a conflict between the written judgment and
orally pronounced sentence of confinement, the oral pronouncement controls. The written
judgment reflects a sentence of one year’s confinement, a fine of $500.00, and court costs in the
amount of $412.00. The reporter’s record reflects that the trial court orally pronounced a
sentence of five days’ confinement and court costs in the amount of $500.00, and did not assess a
fine.
       The State correctly notes that because of the nature of the charge, a Class A misdemeanor
DWI, five days’ confinement is an illegal sentence. See State v. Cooley, 401 S.W.3d 748, 751
(Tex. App.—Houston [14th Dist.] 2013, no pet.) (Class A misdemeanor DWI requires
confinement “for at least 30 days and not more than one year.”); Mizell v. State, 119 S.W.3d 804,
805 (Tex. Crim. App. 2003) (sentences below the statutory minimum are illegal and void).
        The State also contests the accuracy of the reporter’s record. The State, citing Rule
34.6(e)(3) of the Rules of Appellate Procedure, contends that we should remand for the trial
court to determine whether the portion of the reporter’s record reflecting the oral pronouncement
is inaccurate. See TEX. R. APP. P. 34.6(e)(3) (“If the dispute arises after the reporter’s record has
been filed in the appellate court, that court may submit the dispute to the trial court for
resolution.”).
         We abate this appeal, remove it from this Court’s active docket, and direct the trial court
to conduct a hearing to settle the dispute concerning whether the reporter’s record accurately
reflects the court’s oral pronouncement. See TEX. R. APP. P. 34.6(e)(2) (requiring the trial court
to settle a dispute concerning inaccuracies in the reporter’s record when parties cannot agree on
whether or how to correct); id. 34.6(e)(3) (allowing appellate court, if dispute arises regarding
accuracy after filing of reporter’s record in appellate court, to submit dispute to trial court for
resolution). A representative of the Harris County District Attorney’s Office and Appellant’s
counsel shall be present. Appellant shall also be present for the hearing, either in person, or by
closed video teleconference. 1
         The only issue before the trial court is whether the court reporter inaccurately recorded
the trial court’s oral pronouncement of sentence. If the trial court determines that the reporter’s
record is inaccurate, it should ensure that the reporter’s record is made to conform to what
occurred in the trial court. See TEX. R. APP. P. 34.6(e)(2) (“If the court finds any inaccuracy, it
must order the court reporter to conform the reporter’s record (including text and any exhibits) to
what occurred in the trial court, and to file certified corrections in the appellate court.”). If the
record, however, is found to be an accurate transcription of occurred at trial, the trial court shall
so state either on the record at the hearing or in a written finding.
        We direct that the reporter’s record of the hearing and the supplemental clerk’s record be
certified and sent to our Clerk for filing in this proceeding within 30 days of the date of this
order. The appeal is abated, treated as a closed case, and removed from this Court’s active
docket. The appeal will be reinstated on this Court’s active docket when the supplemental
clerk’s record and reporter’s record containing the transcript of the hearing is filed in this Court.
The court coordinator of the trial court shall set a hearing date and notify the parties of
such date.




       It is so ORDERED.

Judge’s signature: _/s/ Rebeca Huddle_____________________________
                   Acting individually


Date: May 29, 2014




1      Any such teleconference must use a closed-circuit video teleconferencing system that
       provides for a simultaneous compressed full motion video and interactive communication
       of image and sound between the trial court, appellant, and any attorneys representing the
       State or appellant. On request, appellant and his counsel shall be able to communicate
       privately without being recorded or heard by the trial court or the attorney representing
       the State.
