                                 MEMORANDUM OPINION
                                        No. 04-11-00438-CR

                                        Joey Dee RICHTER,
                                              Appellant

                                                  v.

                                       The STATE of Texas,
                                             Appellee

                    From the 218th Judicial District Court, La Salle County, Texas
                                 Trial Court No. 10-01-00006-CRL
                            Honorable Donna S. Rayes, Judge Presiding

Opinion by:       Rebecca Simmons, Justice

Sitting:          Rebecca Simmons, Justice
                  Steven C. Hilbig, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: March 14, 2012

AFFIRMED

           Appellant Joey Dee Richter pleaded guilty to second degree felony aggravated assault.

Richter now challenges the trial court’s authority to impose a sentence of twelve years

imprisonment. We affirm the trial court’s judgment.

                                           BACKGROUND

           Richter was charged with second degree felony aggravated assault, waived his right to a

jury trial, and, without the benefit of a plea bargain, pleaded guilty. At the conclusion of the
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sentencing hearing, the trial court sentenced Richter to ten years imprisonment and remanded

him to the custody of the sheriff. Before Richter left the courtroom, the State asked the court if it

made an affirmative finding on use of a deadly weapon, to which the court replied, “I’m

mak[ing] an affirmative finding that a deadly weapon was used in the commission of this

offense.”   Following this statement, the reporter’s record reads “(Scuffle occurred).”         The

appellate record does not indicate what the “scuffle” entailed or who was involved. The trial

judge then stated, “I am back on the record . . . . I hereby vacate my judgment [and] sentence

Mr. Richter to 12 years.”

       On appeal, Richter contends the trial court’s sua sponte modification of his sentence

violated article 42.01 of the Texas Code of Criminal Procedure.

                            MODIFICATION OF RICHTER’S SENTENCE

A. Applicable Law

       “A judgment is the written declaration of the court signed by the trial judge and entered

of record showing the conviction or acquittal of the defendant.” TEX. CODE CRIM. PROC. ANN.

art. 42.01(1) (West 2006); Lee v. State, 516 S.W.2d 151, 152 (Tex. Crim. App. 1974). “The

sentence served shall be based on the information contained in the judgment.” TEX. CODE CRIM.

PROC. ANN. art. 42.01(1); Scott v. State, 461 S.W.2d 619, 620 (Tex. Crim. App. 1971). A

defendant’s sentence commences on the day it is pronounced. TEX. CODE CRIM. PROC. ANN. art.

42.09(1); State v. Aguilera, 165 S.W.3d 695, 698 (Tex. Crim. App. 2005), superseded by rule on

other grounds, TEX. R. APP. P. 21.9, as recognized in Patterson v. State, 353 S.W.3d 203, 212

n.4 (Tex. App.—San Antonio 2011, pet. ref’d).

       A trial court has plenary power to modify a defendant’s sentence if it (1) is made on the

same day as the original sentencing; (2) occurs before the court has adjourned for the day; (3) is



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made “in the presence of the defendant, his attorney, and counsel for the state”; and (4) “the

modified sentence is authorized by statute.” Aguilera, 165 S.W.3d at 698. The prohibition

against double jeopardy is not violated if these four requirements are met. See id. at 697–98 &

n.3 (“Aguilera’s subsequent fifteen-year sentence was within the same first-degree-felony range

of punishment as was his initial twenty-five-year sentence and was not an unconstitutional

modification of that initial sentence.”); id. at 700–03 (Cochran, J., concurring) (“[A] court has

power to revise, correct or vacate a sentence imposed during the term of the court in which the

conviction was had and before the original sentence has gone into operation or action is had

under it.” (quoting Powell v. State, 124 Tex. Crim. 513, 515, 63 S.W.2d 712, 713 (Tex. Crim.

App. 1933))); cf. Harris v. State, 153 S.W.3d 394, 396–97 & n.4 (Tex. Crim. App. 2005) (“[T]he

trial court could use its plenary power to modify the sentence only as much as the new sentence

would remain within the same statutory range of punishment.”).

B. Analysis

       The modification of Richter’s sentence complied with Aguilera’s four requirements for a

trial court’s sua sponte modification of a sentence. See Aguilera, 165 S.W.3d at 698; see also Ex

parte Cruzata, 220 S.W.3d 518, 520 (Tex. Crim. App. 2007). First, the modification was made

on the same day. See Aguilera, 165 S.W.3d at 698. Second, it occurred moments after the

original assessment of ten years imprisonment and before the court adjourned for the day. See

id. (“[T]he trial court was acting within its authority when, only a few minutes after it had

initially sentenced appellee and before it had adjourned for the day, it modified appellee’s

sentence.”). Third, the modification was made in the presence of the defendant, his attorney, and

counsel for the State. See id. Finally, the modified sentence was authorized by section 12.33 of

the Texas Penal Code. See Aguilera, 165 S.W.3d at 698; id. at 697 & n.3 (citing Harris v. State,



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153 S.W.3d 394, 396 & n.4, 397–98 (Tex. Crim. App. 2005)); see also TEX. PENAL CODE ANN.

§ 12.33 (West 2003) (mandating punishment between two and twenty years for the conviction of

a second degree felony). While Aguilera addressed the downward modification of a sentence,

the general holding applies to upward modifications as well. See Aguilera, 165 S.W.3d at 698;

id. at 702 (Cochran, J., concurring) (“Although the Court does not expressly say so, the rule set

out in the majority opinion sets the finality of the sentencing process for both upward and

downward alterations.”); see also Ex parte Cruzata, 220 S.W.3d at 520–21 (denying habeas

relief where the trial court modified the petitioner’s sentence upward). Accordingly, the trial

court had plenary power to modify Richter’s sentence, and the prohibition against double

jeopardy was not violated. See Aguilera, 165 S.W.3d at 698; Harris, 153 S.W.3d at 396 & n.4,

397–98.

                                         CONCLUSION

       The trial court acted within its authority by modifying Richter’s sentence from ten to

twelve years imprisonment. Therefore, we affirm the trial court’s judgment.


                                                Rebecca Simmons, Justice

DO NOT PUBLISH




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