          IN THE COURT OF CRIMINAL APPEALS
                      OF TEXAS
                                      NO. PD-0042-11


                                 THE STATE OF TEXAS

                                              v.

                                 CALEB DAVIS, Appellee

         ON THE STATE’S PETITION FOR DISCRETIONARY REVIEW
                 FROM THE FOURTH COURT OF APPEALS
                           BEXAR COUNTY



       A LCALA, J., filed a concurring opinion.

                                CONCURRING OPINION

       I join the majority opinion because I agree that any re-sentencing must be done in the

presence of appellee Caleb Davis, his attorney, and counsel for the State, and this record does

not show that this occurred. I write separately, however, to address my concern that the

majority opinion may be interpreted too broadly in its assessment of what constitutes a

hearing in this context and what can overcome the presumption that the recitations in a

judgment are correct.
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       The majority opinion states, “While a modified judgment contains language indicating

the parties that appeared, it does not mention a hearing.” The language in this judgment,

however, does recite that the cause was called for trial, that the State appeared through her

district attorney, and that the defendant and his attorney were present. This judgment should

not be condemned for failing to recite that a hearing occurred. Regardless, the issue in this

appeal is the presence of the attorneys at appellant’s re-sentencing.

       The State’s complaint in this petition for discretionary review is not that the defendant

was sentenced in a procedure that was not a hearing. Rather, the ground for review asks

“[w]hether the appellate court erred in holding that the trial court had authority to grant a

motion for reconsideration of sentence and modify the original sentence outside the presence

of the defendant and the State.” The pertinent question, therefore, is whether the defendant

and the attorneys for the State were present when the defendant was re-sentenced. To answer

this question, we must first look to the oral pronouncements made in court. See Ex parte

Madding, 70 S.W.3d 131, 135 (Tex. Crim. App. 2002) (“When the oral pronouncement of

sentence and the written judgment vary, the oral pronouncement controls.”). Here, we do not

have a record that shows any oral pronouncement by the court.

       Similarly, where the parties have waived the right to having a court reporter record

a plea hearing, there will not be any record of the court’s oral pronouncements, and the

sentence will be reflected only in the written judgment. Although the record before us fails

to show that the parties waived a court reporter, the failure to record the plea hearing is not
                                                                                       Davis - 3

the subject of the State’s petition, which asks only whether the defendant and the State were

present at the re-sentencing hearing.

       Although it is true that the trial court’s oral pronouncements as shown in the reporter’s

record will control over the written judgment when they are in conflict, there is no conflict

when the trial court’s written judgment is the only available record of the proceedings, as is

the case here. Our law provides that we presume the accuracy of the written judgment. See

Martin v. State, 463 S.W.2d 449, 451 (Tex. Crim. App. 1971) (observing that appellant was

unable to overcome “presumption of the regularity and accuracy of court records”). Here,

the presumption is overcome by the face of the judgment. The written judgment shows that

the “Date Judgment Entered” was September 14, 2009, which would mean that the judgment

was entered before sentence was imposed on October 19, 2009. The significance of this

discrepancy is that if the judgment was prepared and entered on September 14, 2009, then

the recitations contained within the judgment would be true as of that date, but not

necessarily at any later date. Thus, the September 14, 2009, recitation that the attorneys for

the State and appellant made appearances would be true as of that date but would not

necessarily be applicable to any later date, including the date the defendant was sentenced.

Relying on the recitations stated in the judgment, as we normally do, leads to the conclusion

that it is unclear whether any attorney was present when the defendant was re-sentenced

because the judgment is silent on that matter.

       In addition to examining the judgment, we must also review the entire record to
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determine the events that transpired at the re-sentencing. See Hill v. State, 633 S.W.2d 520,

522 (Tex. Crim. App 1981) (using trial transcript to determine that counsel was not present

when both docket sheet and sentencing record were silent on issue). Here, nothing in the

appellate record shows that any attorney was present when the defendant was re-sentenced.

Concerning the re-sentencing, the record does not contain any reporter’s record, any waiver

of record for that event, any docket entry, any written judgment reflecting the events that

occurred at the re-sentencing, or anything else to show the presence of the defendant or any

attorney.

       Because the appellate record, when viewed in its entirety, fails to show that any

attorney was present when the defendant was sentenced, I concur in the judgment to remand

this case.

                                                         Alcala, J.




Filed: October 5, 2011
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