









IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. PD-0024-04


THE STATE OF TEXAS

v.


ANGEL AGUILERA, Appellee




ON APPELLEE'S PETITION FOR DISCRETIONARY REVIEW
FROM THE EIGHTH COURT OF APPEALS

EL PASO COUNTY



 Keasler, J., filed this dissenting opinion in which Hervey, J., joined.

O P I N I O N


	The majority resolves the issue before us by relying on an opinion from this Court and
two Rules of Appellate Procedure, neither of which address this issue.  I would begin with
binding precedent from this Court and, following that precedent, I would conclude that the
trial judge lacked the power to change Aguilera's sentence.

Our Precedent

	 In Williams v. State, we recognized the general rule that a trial court has full power
over its orders during the term of court in which they are made and may correct or modify
them during that term. (1)  But an exception exists when the defendant has suffered some
punishment as a result of the order, in which case the trial court is powerless to change it. (2) 
We also stated in Powell v. State that, once the sentence has begun, the trial court is without
power to set it aside. (3) 
	As the Court of Appeals below noted, we have repeatedly rejected attempts by trial
judges to cumulate sentences after the first sentence has begun.  In Ex parte Brown, we
recognized that the defendant "had already suffered partial punishment under the [o]riginal
sentence" at the time the judge entered the cumulation order. (4)  We relied on Williams and
Powell to hold that the "belated attempt at altering the terms of . . . [the] defendant's
sentence" was "null and void of effect." (5)
	A defendant's sentence begins to run on the day it is pronounced. (6)  The State argues
that it is only logical that the sentence begin to run, not just on the day it is pronounced, but
at the moment that it is pronounced.  I agree.  Aguilera's 25-year sentence began running the
moment the trial judge pronounced it.  Since Aguilera had already started serving his
sentence, Williams and Powell mandate that the judge was without power to change it. 
	One judge on this Court has advocated overruling Williams and Powell. (7)  But the
Court has not done so, and the majority does not do so today.  As a result, we must follow
these holdings.
	Rather than look to Williams or Powell, the majority relies on our recent opinion in
Harris v. State (8) for the proposition that "the trial court could have properly used its plenary
power to modify the sentence if the new sentence was within the same statutory range of
punishment." (9)  In Harris, we held that a second attempt at sentencing which increased the
defendant's sentence violated the defendant's protection against double jeopardy. (10)  The
majority acknowledges that our decision in Harris was based on a constitutional violation,
not a claim of plenary power. (11)  As a result, it does not bear on this case.  Moreover, the
statement we made in Harris was unnecessary to the resolution of the opinion and therefore
dicta.  And we did not discuss Williams or Powell in Harris.   

Plenary Power

	We have recognized that trial courts do have "plenary power" to alter their orders. (12) 
What we have not resolved is what "plenary power" encompasses or how long it lasts. (13)  The
majority concludes that a "trial court retains plenary power to modify its sentence if a motion
for new trial or motion in arrest of judgment is filed within 30 days of sentencing." (14)  But
there is no support for this statement.  The Court cites only Rules 21.4 and 22.3 of the Rules
of Appellate Procedure.  These two rules discuss motions for new trial and motions in arrest
of judgment, but neither mentions anything about a trial judge's plenary power to modify a
sentence.
	In a footnote, the majority mentions concurring opinions from this Court which have
"touched upon" plenary power, (15) but it does not mention majority opinions from this Court
which discuss it.  In State v. Bates, we noted that former Appellate Rule 36 vested a court
"with the authority to correct mistakes or errors in a judgment or order after the expiration
of the court's plenary power, via entry of a judgment nunc pro tunc." (16)  This statement
implies that a judge has the power to alter a judgment without a nunc pro tunc judgment if
he or she does so during the period of plenary power.
	But in State ex rel. Cobb v. Godfrey, the judge contended that he could grant a motion
for new trial outside the 75-day time limit provided in the Rules because of his "plenary
power." (17)   We rejected this contention, explaining that former Rule 31(e) required that if a
motion for new trial was not ruled on within 75 days, it was overruled by operation of law. (18) 
Similarly, we held in Awadelkariem v. State that a judge may "freely rescind" its ruling on
a motion for new trial as long as he acts within the 75 day time limit provided by the Rules
of Appellate Procedure. (19) Cobb and Awadelkariem make clear that, to the extent that a judge
has plenary power over a proceeding, that power is limited by the Rules of Appellate
Procedure and by statute.  It seems obvious that "plenary power" would also be restricted by
this Court's precedent.
	In this case, the trial court may have had "plenary power" over the case at the time that
she changed Aguilera's sentence.  But Williams and Powell limit the extent to which the
judge could exercise that power.  Those cases hold that a judge cannot alter a sentence after
it has begun. 	
Procedural Status

	The majority finds that the "procedural status of the case is relevant" (20) to its decision,
explaining that this case involved an open plea.  I read Williams and Powell to apply to any
sentence, not just one that results from a particular type of plea.  Is the majority holding that
a judge has plenary power to change a sentence after an open plea is entered, but not in the
case of a trial or a plea bargain?  This seems contrary to its own rationale that plenary power
to change sentences is somehow based on motions for new trial and motions in arrest of
judgment, which can obviously be filed regardless of whether the case involves a guilty plea
or a trial.  I do not understand why Aguilera's open plea is relevant.
Courts of Appeals Opinions

	The majority mentions in a footnote three Courts of Appeals opinions, (21) but it fails to
mention that our lower appellate courts are split on this issue. (22)
	In Tooke v. State, (23) the trial court orally sentenced appellant to confinement in the
Texas Department of Corrections "for not less than 5 years nor more than 50 years."   After
the defendant accepted the sentence, the court re-sentenced him to confinement "for not less
than 15 years nor more than 50 years." (24)  Relying on Reynolds and Williams, the appellate
court found that the second sentence was null and void.  The court held that "[t]he original
sentence was a valid and proper sentence" and "[a]fter sentence was first imposed on
appellant, the trial court was without power to set aside that sentence and order a new
sentence." (25)
	Similarly, in State v. Dickerson, (26) the judge sentenced the defendant to two years in
prison.  The judge realized he had made a mistake, called the defendant back up to the bench,
and re-sentenced him to 25 years.  "Not even a minute elapsed" between pronouncement of
the two sentences. (27)  The judge granted the defendant's motion to return the sentence to two
years, and the State appealed, arguing that the court had the authority to change the sentence
after it had been pronounced. (28)  The court of appeals disagreed, relying on Tooke.  It held that
"the original sentence of two years was a valid and proper sentence," so the "'attempted
resentencing' . . . was null and void." (29)
	In contrast, the Fourteenth and Second Courts of Appeals have concluded that a trial
court does have the right to re-sentence a defendant in these circumstances. (30)  But none of
these cases addresses Williams or Powell.  The majority does not explain why it opts to side
with these holdings rather than Tooke and Dickerson, which follow Williams and Powell.  
Victim Impact Statement

	Finally, there is an additional problem with this case which warrants mentioning.  The
judge changed Aguilera's sentence after hearing the victim's statement.  This very Court of
Appeals has recognized that the "Legislature specifically enacted Article 42.03 to allow
victim statements only after sentencing in order to alleviate any risk that the statement would
affect the partiality of the fact finder at the punishment phase." (31)  Indeed, the original bill
permitted victim statements to be made before pronouncement of sentence. (32)  But during the
committee hearings, some members expressed concern that victim statements could influence
the judge and change the punishment. (33)  As a result,  the bill was amended to provide for
victim statements only after the court pronounces the sentence. (34)
	The trial judge filed a bill of exceptions stating that the sentence change was made
"after reconsideration of approximately 5 days of testimony," and "[n]othing occurring
during the victim allocution was considered by the court in making this decision."  This
statement defies credibility.  It is remarkably coincidental that the judge chose to reduce
Aguilera's sentence right after hearing the victim's statement.  I cannot condone this type of
behavior.  It seems an obvious attempt to circumvent Art. 42.03.
Conclusion

	If the majority wants to overrule Williams and Powell, it should do so.  If it believes
that Junious, Ware and McClinton are better reasoned that Tooke and Dickerson, it should
explain why.  If it believes that Appellate Rules 21.4 and 22.3 grant trial judges plenary
power to alter sentences, it should explain why.  Since the majority opinion does none of this,
I cannot join it.

DATE FILED:	June 22, 2005
PUBLISH
1.   170 S.W.2d 482, 486, 145 Tex. Crim. 536 (1943).
2.   Id. 
3.   63 S.W.2d 712, 713, 124 Tex. Crim. 513 (1933).
4.   Ex parte Brown, 477 S.W.2d 552, 554 (Tex. Crim. App. 1972).
5.   Id.  See also Ex parte Reynolds, 462 S.W.2d 605, 607 (Tex. Crim. App. 1970);
Blackwell v. State, 510 S.W.2d 952, 956 (Tex. Crim. App. 1974); Ex parte Voelkel, 517
S.W.2d 291 (Tex. Crim. App. 1975).
6.   Art. 42.09, § 1.
7.   McClinton v. State, 121 S.W.3d 768, 777 (Tex. Crim. App. 2003) (Hervey, J.,
dissenting).
8.   153 S.W.3d 394 (Tex. Crim. App. 2005).
9.   Ante, slip op. at 3.
10.   153 S.W.3d at 397-98.
11.   Ante, slip op. at 3.
12.   State v. Bates, 889 S.W.2d 306, 309 (Tex. Crim. App.1994).
13.   See Ex parte Donaldson, 86 S.W.3d 231, 234 (Tex. Crim. App. 2002) (Keasler, J.,
concurring).
14.   Ante, slip. op. at 4.
15.   Ante, slip op. at 4 n.7.
16.   889 S.W.2d at 309.
17.   739 S.W.2d 47, 48 (Tex. Crim. App. 1987).
18.   Id. at 48-49.
19.   974 S.W.2d 721, 728 (Tex. Crim. App. 1998).
20.   Ante, slip op. at 4.
21.   See Junious v. State, 120 S.W.3d 413 (Tex. App. - Houston [14th Dist.] 2003, pet.
ref'd); Ware v. State,   62 S.W.3d 344 (Tex. App. - Fort Worth 2001, pet. ref'd); McClinton
v. State, 38 S.W.3d 747 (Tex. App. - Houston [14th Dist.] 2001, pet. dism'd, improvidently
granted).
22.   Ante, slip op. at 4 n.7.
23.   642 S.W.2d 514 (Tex. App. - Houston [14th Dist.] 1982, no pet.).
24.   Id. at 516.
25.   Id.
26.   864 S.W.2d 761 (Tex. App. - Houston [1st Dist.] 1993, no pet.).
27.   Id. at 762.
28.   Id. at 763.
29.   Id. 
30.   See Junious, supra; Ware, supra; McClinton, supra.
31.   Garcia v. State, 16 S.W.3d 401, (Tex.App.-El Paso 2000, pet. ref'd). 
32.   Keith D. Nicholson, Would You Like More Salt With That Wound?  Post-Sentence
Victim Allocution in Texas, 26 St. Mary's L. J. 1103, 1114-1115 (1995).
33.   Id.
34.   Id.

