                                  NO. 07-11-0276-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL C

                                  NOVEMBER 2, 2012


                              CHRISTOPHER ALDRIDGE,

                                                                  Appellant
                                            v.

                                THE STATE OF TEXAS,

                                                                  Appellee
                          _____________________________

             FROM THE 21st DISTRICT COURT OF BASTROP COUNTY;

             NO. 10,874; HON. CHRISTOPHER D. DUGGAN, PRESIDING


                                Memorandum Opinion


Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

      Christopher Aldridge appeals from a judgment revoking his community

supervision and sentencing him to five years imprisonment.         Upon concluding that

appellant had violated one or more conditions of his probation, the trial court scheduled

sentencing for April 8, 2011, and on that date stated, in open court, it would reduce the

prison term from ten years to three. This led to appellant asking if he could start his

probation over and conversing with the court about those matters.              After that

conversation, the trial court said, in open court: “. . . What I’m going to do is postpone
formal sentencing because we’re going to have to figure out how much, exactly, time

you have. So I am not going to put you in custody right now.” (Emphasis added). On

May 6, 2011, another hearing was held on the issue of punishment. Therein, the trial

court stated that though it had yet to formally sentence appellant, it would grant its own

motion for new trial to reconsider punishment.        Appellant’s objection to that was

overruled. Thereafter, the State proffered the evidence it had presented during the April

8 hearing while appellant did likewise (though he excluded his own testimony from the

proffer). The court then sentenced appellant to five years imprisonment. Appellant

appealed. We affirm.

      The two issues raised by appellant have a common foundation. It concerns

whether the trial court actually pronounuced its sentence on April 8. If it did, then the

court allegedly 1) erred by granting, sua sponte, a new trial solely on punishment, and

2) violated appellant’s double jeopardy rights. Both issues are overruled.

      While the trial court disclosed that it was going to sentence appellant to a three-

year term of imprisonment at the April 8 hearing, it expressly postponed “formal

sentencing” until a later date. This situation likens to that in Riles v. State, 216 S.W.3d

836 (Tex. App.–Houston [1st Dist.] 2006, no pet.). There, the trial court announced that

it “sentences you [appellant] to five years in TDC.” Id. at 837. After that, the appellant

requested permission to surrender himself the next day.           The court agreed but

responded, “If you don’t show up I haven’t finalized this five years yet and I’m going to

double it.” Id. Needless to say, the appellant did not show up the next day, and the trial

court increased his punishment. In assessing whether double jeopardy restrictions had

been transgressed, the appellate court first noted that a trial court has the power to

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modify its sentence as long as it is done on the same day as the assessment of the

initial sentence and before it adjourns. Id. at 838, quoting State v. Aguilera, 165 S.W.3d

695, 698 (Tex. Crim. App. 2005).             Then, it concluded that if the trial court initially

pronounced sentence, its ensuing comment about the sentence not yet being finalized

had the effect of vacating or setting aside the pronouncement; so, Riles had yet to begin

serving a sentence for purposes of double jeopardy. Id. at 839. We see logic in its

conclusion. The entirety of the hearing should be considered in assessing what was

done at the hearing, not simply excerpts taken out of context.

        It may be that the trial court evinced its intent to merely assess a three-year term

of imprisonment at the hearing. However, it clearly told everyone present that “formal

sentencing” would not occur until a later date. One cannot reasonably infer from the

totality of these circumstances that sentence had actually been pronounced on April 8.

And, even if it was, the trial court had the authority to modify or vacate the

pronouncement on the same day. See Riles v. State, supra. So, while the trial court

may have said it was granting a new trial, it was simply continuing the prior proceeding.

And, that means there was no prior pronouncement of sentence for purposes of double

jeopardy; that is, appellant’s sentence was not increased after he was already

sentenced. 1




        1                                                                                th
         We reject appellant’s suggestion that he must have been sentenced on April 8 since he was
arrested on May 4, 2011, and began serving time for which he received credit. Appellant was arrested on
that date because his bond had been increased. His bond had been increased because he allegedly
committed another offense. Furthermore, the trial court is required to give appellant credit for the days
during which he was incarcerated. See TEX. CODE CRIM. PROC. ANN. art. 42.03 § 2(a)(1) (West Supp.
2012).

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Accordingly, the judgment is affirmed.



                                         Per Curiam


Do not publish.




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