      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-13-00594-CR
                                       NO. 03-13-00595-CR



                              Joseph Edward McKenzie, Appellant

                                                  v.

                                   The State of Texas, Appellee


   FROM THE DISTRICT COURT OF FAYETTE COUNTY, 155TH JUDICIAL DISTRICT
                        NOS. 2008R-073 & 2008R-074
          THE HONORABLE JEFF R. STEINHAUSER, JUDGE PRESIDING



                             MEMORANDUM OPINION


               In both of these cases, the trial court accepted appellant Joseph Edward McKenzie’s

guilty plea to the second degree felony offense of manufacture or delivery of a controlled substance,

deferred adjudication of guilt, and placed appellant on community supervision for ten years. See

Tex. Health & Safety Code § 481.112(c). The State subsequently filed motions to adjudicate

appellant guilty in both cases, and, after a combined hearing on the State’s motions, the trial court

adjudicated appellant guilty of the offenses and assessed appellant’s punishment in both cases at

confinement for twenty years to run concurrently.

               Appellant raises the same point of error in both cases. He asks this Court to modify

the judgments to reflect sentences of ten years’ confinement based on the double jeopardy clauses

of the United States and Texas Constitutions because the trial court orally sentenced him to
ten years’ confinement before re-sentencing him to a greater term of twenty years’ confinement.

See U.S. Const. amend. V; Tex. Const. art. I, § 14. Because we conclude that the trial court did not

subject appellant to double jeopardy when it reassessed appellant’s punishments during the

adjudication hearings, we affirm the judgments.1


                                         BACKGROUND

               The trial court heard the State’s motions to adjudicate in both cases at the same time.

Appellant, his counsel, and counsel for the State were present for the hearing. After hearing the

evidence and the parties’ arguments, the trial judge stated that he saw “nothing mitigating in this

file” and that he would sentence appellant to more time if he could and orally pronounced

punishment in both cases at ten years’ confinement to run concurrent. The trial judge then recessed

the hearing for the preparation of the judgments and advised the parties that he would “wait around

to sign [them].” The recess lasted approximately thirty minutes. Immediately after the hearing was

resumed, the trial judge pronounced punishment in both cases at twenty years’ confinement,

explaining his reasons for doing so as follows:


       It has come to my attention that I may have created some confusion by my
       statements and pronouncement of sentence earlier. Obviously, when I made the
       statements about if I could sentence the defendant to more, I would. I made that
       statement. I stand by that statement. I believe I said ten years rather than 20 years
       for the sentence. I believe in my mind, I was somehow recalling the ten-year
       probated sentence, and so my pronouncement of sentence is 20 years for each case
       rather than the ten years that perhaps I had stated earlier. But I think everyone could
       tell from my comments to the defendant, I was completely unhappy with the


       1
         Because the parties are familiar with the facts of these cases and their procedural history,
we do not recite them in this opinion except as necessary to advise the parties of the Court’s decision
and the basic reasons for it. See Tex. R. App. P. 47.1, 47.4.

                                                  2
       information shown in his history. So it was my intent all along to sentence the
       defendant to 20 years for each case to run concurrent. I apologize for the confusion
       that I may have created by that. As the attorneys were aware, I told them this
       morning, I was slightly under the weather today. And so I think that may have also
       contributed to why I said ten years rather than 20 years. Sorry. But that’s the
       judgment and sentence of the Court. Any questions?


In response to the judge’s question, the parties responded “No, Your Honor,” and the hearing was

concluded. The trial court signed written judgments in both cases on the same day as the hearing.

The written judgments reflect sentences of confinement for twenty years to run concurrently. These

appeals followed.

                                         DISCUSSION

               Appellant raises the same point of error in both cases. He contends that his right

against double jeopardy was violated “where [appellant] after being adjudicated guilty and orally

sentenced to 10 years in prison was subsequently returned to the courtroom and re-sentenced to a

greater term of 20 years.” See U.S. Const. amend. V; Tex. Const. art. I, § 14. Double jeopardy

protections, among others, forbid an increase in a defendant’s sentence once that sentence has been

served or executed. See Grant v. State, 247 S.W.3d 360, 370 (Tex. App.—Austin 2008, pet. ref’d)

(citing Ex parte Lange, 85 U.S. 163, 174 (1874); Turner v. State, 31 S.W.2d 809, 810 (Tex. Crim.

App. 1930)); see also Williams v. State, 170 S.W.2d 482, 486 (Tex. Crim. App. 1943) (recognizing

“when the accused has accepted the judgment and has performed a part thereof, or has suffered

some punishment as a result thereof, . . . the court is powerless to change the judgment in any

substantial respect”). According to appellant, the trial court was barred from imposing the greater




                                                3
sentences of twenty years’ confinement after the trial court orally pronounced his sentences at ten

years’ confinement and appellant “was removed from the courtroom to begin his sentence[s].”

                Our resolution of this appeal is controlled by State v. Aguilera, 165 S.W.3d 695

(Tex. Crim. App. 2005). In that case, the trial court initially sentenced the defendant to twenty-five

years’ confinement but modified the sentence to confinement for fifteen years “before it had

adjourned for the day.” Id. at 696, 698. The Court of Criminal Appeals upheld the modified

sentence, concluding 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,” assuming that the modification is done in the “presence of the

defendant, his attorney, and counsel for the state.” Id. at 698. “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.” See id. (noting that “[s]uch 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”).

                Based on our review of the record, we conclude that the trial court complied with

the Aguilera criteria as set forth above when it modified appellant’s punishment in both cases to

confinement for twenty years. Twenty years’ confinement for the second degree felony offense of

manufacture or delivery of a controlled substance is authorized by statute, see Tex. Health & Safety

Code § 481.112(c); Tex. Penal Code § 12.33 (setting punishment range for second degree felony);

appellant, his counsel, and the State’s counsel were present when the trial court pronounced the



                                                   4
modified sentences; and the trial court modified appellant’s sentences before adjourning for the day

on the same day that it assessed the initial sentences. See Aguilera, 165 S.W.3d at 698; see also

Richter v. State, No. 04-11-00438-CR, 2012 Tex. App. LEXIS 1992, at *4–5 (Tex. App.—San

Antonio Mar. 14, 2012, pet. ref’d) (mem. op., not designated for publication) (applying Aguilera

requirements and concluding that prohibition against double jeopardy was not violated when trial

court modified sentence upward).

               Relying on language in the first sentence of article 42.09, section 1 of the Code of

Criminal Procedure, appellant urges that the decision in Aguilera is “flawed” and that his sentences

began to run when the trial court orally pronounced the sentences of ten years’ confinement and he

“was removed from the courtroom to begin his sentence[s].” See Tex. Code Crim. Proc. art. 42.09,

§ 1 (stating that “a defendant shall be delivered to a jail or to the Texas Department of Criminal

Justice when his sentence is pronounced . . . by the court”). Appellant also distinguishes the facts

of Aguilera because the trial court’s subsequent sentence in that case was a reduction in

the defendant’s punishment unlike the situation here, “where the second sentence was

markedly higher.”

               The record, however, does not support appellant’s argument that he had already

begun to serve his sentences when the trial court pronounced the subsequent sentences. The record

shows that the trial court recessed the hearing for the preparation of the judgments around 2:30 p.m.

and advised the parties that he would “wait around to sign [them].” The recess lasted approximately

thirty minutes, and the trial court immediately pronounced the modified sentences after resuming

the hearing. See Ex parte Cruzata, 220 S.W.3d 518, 521 (Tex. Crim. App. 2007) (noting that



                                                 5
“implicit in the holding [of Aguilera] was that a defendant begins to serve his sentence at the

adjournment of court on the day that the sentence is assessed”). The Court of Criminal Appeals also

has declined to limit the trial court’s authority to modify a sentence to a reduced punishment when

the Aguilera criteria are met. See id. (concluding that reassessed punishment increasing sentence

was proper); see also Grant, 247 S.W.3d at 372–73 (discussing Ex parte Cruzata); Fuentes v. State,

No. 11-06-00331-CR, 2008 Tex. App. LEXIS 5107, at *7–8 (Tex. App.—Eastland July 10, 2008,

pet. ref’d) (mem. op., not designated for publication) (noting that “Aguilera decision permits a trial

court to alter or modify the sentence up or down if the defendant has not yet begun to serve the

original sentence”).

               Because we conclude that the trial court met the Aguilera criteria when it modified

appellant’s sentences, we overrule appellant’s point of error in both cases. See 165 S.W.3d at 698.


                                          CONCLUSION

               Having overruled appellant’s point of error in both cases, we affirm the judgments

adjudicating guilt.



                                               __________________________________________
                                               Melissa Goodwin, Justice

Before Chief Justice Rose, Justices Goodwin and Bourland

Affirmed

Filed: August 5, 2015

Do Not Publish



                                                  6
