      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-12-00463-CR



                                  Javiele Jason Frias, Appellant

                                                  v.

                                   The State of Texas, Appellee


    FROM THE DISTRICT COURT OF TRAVIS COUNTY, 403RD JUDICIAL DISTRICT
    NO. D-1-DC-11-205934, THE HONORABLE BRENDA KENNEDY, JUDGE PRESIDING



                             MEMORANDUM OPINION


PER CURIAM

               After finding appellant Javiele Jason Frias guilty of burglary of a habitation, a Travis

County jury assessed his punishment at 75 years’ imprisonment and a $10,000 fine. The trial court

entered a judgment sentencing appellant to serve 75 years in the Texas Department of Criminal

Justice and imposing a $10,000 fine. According to the record, however, the trial court never orally

pronounced the sentence.1




       1
            At the conclusion of the punishment phase of trial, the trial court read the jury’s
punishment verdict in open court with appellant present but did not orally pronounce appellant guilty
of burglary of a habitation or pronounce the sentence assessed by the jury. Instead, after reading the
verdict, the trial court asked the parties if they wanted the jury polled. Both sides declined, and the
trial court then stated, “At this time I’m going to ask that the deputies come forward to fingerprint
the defendant. And at this time I will remand you to the custody of the Travis County sheriff’s
department for execution of sentence.” The record does not reflect that any further proceedings
occurred in appellant’s presence.
                                            Jurisdiction

               Although neither party raises this issue on appeal, we must determine whether the trial

court’s failure to orally pronounce appellant’s sentence deprives this Court of jurisdiction. See State

v. Roberts, 940 S.W.2d 655, 657 (Tex. Crim. App. 1996), overruled on other ground by State

v. Medrano, 67 S.W.3d 892, 894 (Tex. Crim. App. 2002) (“A threshold issue in any case is whether

the court has the jurisdiction to resolve the pending controversy. This issue of jurisdiction is

fundamental and cannot be ignored.” (Internal citations omitted.)).

               Courts are required to pronounce sentence orally in the defendant’s presence. Tex.

Code Crim. Proc. art. 42.03, § 1(a); Taylor v. State, 131 S.W.3d 497, 500 (Tex. Crim. App. 2004);

Ex parte Madding, 70 S.W.3d 131, 135 (Tex. Crim. App. 2002). The judgment, including the

sentence assessed, is merely a written manifestation of that oral pronouncement. See Tex. Code

Crim. Proc. art. 42.01, § 1; Taylor, 131 S.W.3d at 500; Madding, 70 S.W.3d at 135. Oral

pronouncement of the sentence in the presence of the defendant is necessary because “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.” Madding, 70 S.W.3d at 135.

“[I]t is the pronouncement of sentence that is the appealable event, and the written sentence or order

simply memorializes it and should comport therewith.” Coffey v. State, 979 S.W.2d 326, 328 (Tex.

Crim. App. 1998). If no sentence was ever rendered, there is no valid judgment.2 See Thompson v.


       2
          While the jury assesses a defendant’s sentence, the trial court imposes the sentence by
orally pronouncing the sentence in the defendant’s presence. See Tex. Code Crim. Proc. arts. 37.01
(“A ‘verdict’ is a written declaration by a jury of its decision of the issue submitted to it in the
case.”); 42.01, §1 (“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. The sentence served shall

                                                  2
State, 108 S.W.3d 287, 290 (Tex. Crim. App. 2003); see also Ex parte Kopecky, 821 S.W.2d 957,

960 (Tex. Crim. App. 1992) (“Punishment and sentence are incorporated in the judgment. . . .

‘[S]entence is a necessary component of a “judgment of conviction.”’” (Quoting Ball v. United

States, 470 U.S. 856, 862 (1985).)). When no sentence is orally pronounced, a written judgment is

not valid, and without a valid written judgment, there is no “conviction” for appellant to appeal. See

Thompson, 108 S.W.3d at 290.

               We conclude that we lack jurisdiction over appellant’s appeal because the trial court

failed to orally pronounce his sentence in his presence. However, the Rules of Appellate Procedure

require that we not dismiss an appeal if the trial court’s erroneous action or failure to act can be

corrected by the trial court. See Tex. R. App. P. 44.4. The trial court’s failure to orally pronounce

sentence can be corrected by the trial court’s orally pronouncing sentence with appellant present.

Accordingly, we abate this appeal and remand the cause to the trial court to allow the trial court to

pronounce its sentence in open court with appellant present. See Keys v. State, 340 S.W.3d 526, 529

(Tex. App.—Texarkana 2011, no pet.) (abating appeal to allow trial court to orally pronounce

sentence); Staten v. State, No. 09-09-00490-CR, 2010 WL 2696153, at *2 (Tex. App.—Beaumont

July 7, 2010, no pet.) (abating appeal and remanding to trial court to pronounce sentence in

appellant’s presence); Meachum v. State, 273 S.W.3d 803, 806 (Tex. App.—Houston [14th Dist.]

2008, no pet.) (concluding abatement was proper and efficient remedy when trial court failed to

pronounce sentence in appellant’s presence).



be based on the information contained in the judgment.”); 42.02 (“The sentence is that part of the
judgment . . . that orders that the punishment be carried into execution in the manner prescribed by
law.”); 42.03, §1(a) (“[S]entence shall be pronounced in the defendant’s presence.”).

                                                  3
                                             Conclusion

               We abate this appeal and remand the cause to the trial court. On remand, the trial

court shall cause notice of a hearing to be given and, thereafter, orally pronounce the sentence

assessed by the jury in appellant’s presence. We order the trial court to conduct the sentencing

hearing within 30 days of this memorandum opinion. A reporter’s record of the hearing shall be

prepared and filed in the record of this appeal, together with a supplemental clerk’s record containing

the trial court’s new judgment. These records are due to be filed in this Court within 45 days of the

date of this memorandum opinion. The appeal will be reinstated when the supplemental records are

filed herein. On reinstatement, this Court will consider the merits of the appeal based on the record

and briefs already filed.



Before Chief Justice Jones, Justices Goodwin and Field

Abated and Remanded

Filed: April 4, 2014

Do Not Publish




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