                                          OPINION

                                    No. 04-10-00513-CR

                               Austin George PATTERSON,
                                        Appellant

                                              v.

                                   The STATE of Texas,
                                         Appellee

                                    No. 04-10-00523-CR

                                   The STATE of Texas,
                                        Appellant

                                              v.

                               Austin George PATTERSON,
                                         Appellee

                                        No. 04-00572-CR

                                    Jordan MITCHELL,
                                         Appellant

                                              v.

                                   The STATE of Texas,
                                         Appellee

                 From the 226th Judicial District Court, Bexar County, Texas
                     Trial Court Nos. 2008CR4841B & 2008CR4841A
                          Honorable Sid L. Harle, Judge Presiding

Opinion by:   Karen Angelini, Justice
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Sitting:          Karen Angelini, Justice
                  Steven C. Hilbig, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: August 24, 2011

AFFIRMED AS MODIFIED

           These three consolidated appeals arise from judgments of conviction and sentences for

the offenses of cruelty to nonlivestock animals. Austin George Patterson and Jordan Mitchell

each pled guilty to three counts of cruelty to nonlivestock animals and were sentenced to three

years’ imprisonment. In their appeals from these convictions, Patterson and Mitchell

(“appellants”) argue the deadly weapon allegations in their indictments should have been set

aside by the trial court because they were facially invalid. In its appeal, the State argues the trial

court had no authority to modify Patterson’s sentence from eight years’ imprisonment to three

years’ imprisonment, even though it did so in open court with all parties present and while it still

had plenary power. We overrule all of the issues presented in these appeals, modify Patterson’s

judgments to show he pled guilty rather than nolo contendere, and affirm the judgments as

modified.

                                              BACKGROUND

           On September 16, 2007, a police officer found three dead cats on a road in Universal

City, Texas. The cats were gray in color, and appeared to have been tortured. Next to the dead

cats was a plastic tub containing a large kitchen knife, a rubber mallet, and a claw hammer.

Outside the tub was a box cutter. These tools appeared to have gray cat hair and blood on them.

A pair of scissors was also found at the scene. A police investigation led to Patterson’s and

Mitchell’s arrests.




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        Appellants were indicted separately for three counts of cruelty to nonlivestock animals;

however, the allegations in their indictments were the same. Two counts alleged appellants

intentionally and knowingly in a cruel manner killed a cat by cutting and stabbing the cat with a

knife, a box-cutter, and a sharp object unknown to the grand jurors; one count alleged appellants

intentionally and knowingly in a cruel manner killed a cat by striking the cat with a hammer, a

mallet, and an object unknown to the grand jurors. The indictments also alleged that during the

commission of the offenses, appellants used and exhibited deadly weapons, specifically, a knife,

a box-cutter, a hammer, a mallet, and other objects unknown to the grand jurors.

        Appellants filed pretrial motions to quash their indictments. 1 In these motions, appellants

argued, among other things, that the indictments’ deadly weapon allegations were inapplicable to

the offense of cruelty to nonlivestock animals. The trial court held hearings on appellants’

motions to quash, at which argument, but no evidence, was presented. Citing several sections of

the Texas Penal Code, appellants argued the deadly weapon allegations were inapplicable to the

offenses charged and, as a consequence, the deadly weapon allegations in the indictments were

facially invalid. The State opposed appellants’ proposed construction of the penal code, arguing

the deadly weapon allegations were indeed applicable to the offenses charged. The State also

contended the deadly weapon allegations were warranted based on the death of and serious

bodily injury to the cats. After considering the arguments presented, the trial court denied the

motions to quash.

        Appellants later pled guilty to the allegations in the indictments. Appellants had no

agreements with the State as to punishment. At the plea hearings, the trial court acknowledged

appellants retained the right to appeal rulings on any written motion made prior to the entry of

1
 Patterson’s motion was titled “Defendant’s Motion to Set Aside the Indictment,” and Mitchell’s motion was titled
“Motion to Quash Indictment.” We will refer to both motions as motions to quash the indictment.


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their pleas. Notwithstanding the arguments raised in their motions to quash, appellants pled

“true” to the deadly weapon allegations in their respective indictments.

        The trial court held a punishment hearing for Patterson and sentenced him to eight years’

imprisonment on each count of the indictment. These sentences were to run concurrently.

Thereafter, the trial court held a punishment hearing for Mitchell and sentenced him to three

years’ imprisonment on each count of the indictment. These sentences were to run concurrently.

The trial court then signed judgments of conviction, which include deadly weapon findings and,

because of the deadly weapon findings, the offenses were enhanced from state jail felonies to

third degree felonies.

        Before the trial court’s plenary power expired, Patterson filed a motion for

reconsideration, arguing the trial court should modify his sentences by placing him on deferred

adjudication. The trial court held a hearing on Patterson’s motion for reconsideration, explaining

that “there really [was] no legal procedure” “for this motion,” and it was “purely a discretionary

matter that the court has jurisdiction for 30 days.” After hearing argument from Patterson’s

counsel, the trial court stated,

        Mr. Patterson, I guess I have the benefit now of the sentencing on your co-
        [d]efendant, because reading the record, it appeared like you were the ringleader,
        you were the mastermind…

        But having heard from your co-[d]efendant, I really can’t distinguish from your
        conduct and his conduct as far as culpability. You both, in my opinion, are
        equally as culpable. He is no less and you are no more…

                                               ***

        But I think it’s appropriate, based upon what I heard in the co-[d]efendant’s
        [hearing], to punish you the same.

               So I’m going to assess a three-year term, just like I did with your co-
        [d]efendant.



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The trial court then signed new judgments, reflecting Patterson’s modified sentences. These

judgments of conviction include deadly weapon findings, and show the offenses to be third

degree felonies.

                              STATE’S PRELIMINARY ARGUMENTS

       On appeal, appellants argue the deadly weapon allegations in their indictments were not

applicable to the offenses charged, and therefore, the trial court erred in denying their motions to

quash these allegations. Before addressing the merits of this argument, the State argues appellate

review of this issue is precluded for two reasons. First, the State contends appellants may not

appeal the trial court’s rulings denying the motions to quash because the arguments presented in

these motions amounted to an impermissible pretrial testing of the State’s evidence. Second, the

State contends appellants are estopped from challenging the trial court’s denials of their motions

to quash because they induced the trial court to include the deadly weapon findings in their

judgments.

  A. Pretrial Testing of the Evidence

       “An indictment must be facially tested by itself under the law, as a pleading; it can

neither be supported nor defeated as such by what evidence is introduced on trial.” State v.

Rosenbaum, 910 S.W.2d 934, 948 (Tex. Crim. App. 1994) (opinion adopting dissent on

rehearing). According to the State, appellants’ arguments were not properly presented in a

motion to quash because they essentially sought to test the sufficiency of the evidence to support

the indictments. See Lawrence v. State, 240 S.W.3d 912, 916 (Tex. Crim. App. 2007)

(concluding the trial court’s refusal to grant a motion to quash was not error when motion

attacked the sufficiency of the State’s evidence to support the result element of the offense);

Woods v. State, 153 S.W.3d 413, 415 (Tex. Crim. App. 2005) (concluding the statutes



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authorizing pretrial proceedings do not contemplate a “mini-trial” on the sufficiency of the

evidence to support an element of the offense).

       In his motion to quash, Patterson alleged the deadly weapon allegations in the indictment

were not applicable to the offenses charged. Similarly, in his motion to quash, Mitchell argued

that under a “plain reading” of the Texas Penal Code, a deadly weapon must be “used toward”

another person, rather than an animal. The record further shows appellants adhered to these

statutory construction arguments at the hearing. Thus, appellants did not seek to test the evidence

to support the deadly weapon allegations in the trial court.

       On appeal, appellants reiterate their arguments that specific provisions of the penal code

precluded the State from alleging the use of a deadly weapon. However, Mitchell also makes a

number of arguments concerning the sufficiency of the evidence. For example, Mitchell argues,

“A deadly weapon finding is only supported by legally sufficient evidence if the State shows,

beyond a reasonable doubt, not only the nature of the instrument, but also that a human life was

actually placed in harm’s way. A theoretical risk of possible harm is not legally sufficient to

sustain a deadly weapon finding.” Mitchell further argues, “the State did not allege, nor did the

evidence show, that there was ever any person placed in danger of serious bodily injury or death

as a result of the use of a box cutter, knife, or mallet.” To the extent appellants ask us to evaluate

the sufficiency of the evidence to support the deadly weapon findings, we conclude appellants’

complaints are not reviewable in an appeal from a ruling on a motion to quash. Similarly, to the

extent appellants’ arguments require us to make assumptions about the facts surrounding the

commission of the offenses, we conclude appellant’s complaints are not reviewable in an appeal

from a ruling on a motion to quash. As a result, we refrain from addressing these arguments.




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         On the other hand, to the extent appellants ask us to review their facial, legal challenges

to the deadly weapon allegations in the indictments that are not dependent upon the facts

surrounding the offenses, we conclude appellants’ complaints are reviewable. See Rosenbaum,

910 S.W.2d at 948 (providing indictment may be facially tested under the law as a pleading);

Fullbright v. State, 818 S.W.2d 808, 809-10 (Tex. Crim. App. 1991) (concluding appellate court

erred by holding appellant could not challenge trial court’s failure to quash enhancement

paragraphs on appeal); cf. State v. Vasilas, 253 S.W.3d 268, 270-73 (Tex. Crim. App. 2008)

(reviewing trial court’s ruling on motion to quash based on statutory construction arguments).

    B. Estoppel

         A party may be estopped from asserting a claim on appeal that is inconsistent with that

party’s prior conduct. Arroyo v. State, 117 S.W.3d 795, 798 (Tex. Crim. App. 2003). The State

contends appellants are estopped from challenging the trial court’s denials of their motions to

quash because they led the trial court to believe there was an agreement that the deadly weapon

findings should be included in the judgments. In support of this argument, the State points to

parts of the record showing the appellants pled guilty and judicially confessed to the offenses

alleged in the indictments, including the deadly weapon paragraphs, without reservation. 2

         Nevertheless, a comprehensive review of the records leads us to conclude appellants’

claims on appeal are not inconsistent with their conduct in the trial court. At Patterson’s plea

hearing, the trial court informed Patterson, “[W]e did have a hearing on a pre[trial] issue, so any

written motions prior to the entry of the plea, you would also have the ability to appeal that.”


2
 In Patterson’s case, the State also asserts Patterson’s plea was the result of a plea bargain agreement. According to
the State, Patterson agreed to accept the deadly weapon findings in his judgments in exchange for the State’s
agreement to (1) waive a jury trial, (2) allow Patterson to enter an open plea, and (3) allow Patterson to request
deferred adjudication. In Mitchell’s case, the State also asserts there was an agreement that the enhancement
allegations were true, but no plea bargain agreement. The records before us do not affirmatively show the existence
of such agreements.


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Later, the trial court stated, “so you would have the opportunity to appeal the jurisdictional

defects, and, in addition, the specific ruling on that motion.” At Mitchell’s plea hearing, the trial

court initially advised Mitchell there was no appeal for him; however, Mitchell’s counsel

clarified that this was “[o]ther than the pretrial motion that we filed on the indictment.” In

response, the trial court confirmed Mitchell could appeal the ruling on the pretrial motion heard

prior to the entry of plea. The trial court later signed certifications stating the appellants’ cases

were not plea bargain cases and appellants had the right to appeal.

       Although appellants pled “true” to the deadly weapon findings in their indictments, they

did so only after their legal arguments about the deadly weapon allegations were rejected by the

trial court, and the trial court confirmed appellants would in fact have the right to appeal the

pretrial rulings. Moreover, by stipulating to the evidence and by pleading “true” to the deadly

weapon findings, Patterson and Mitchell did not indicate their intent to abandon their argument

about the legality of the deadly weapon findings. Taken as a whole, we cannot say appellants’

complaints on appeal are inconsistent with their positions in the trial court, or that the appellants

induced the actions of which they now complain. We, therefore, hold appellants are not estopped

from challenging the trial court’s rulings on their motions to quash.

                   APPLICATION OF THE DEADLY WEAPON ALLEGATIONS TO
                   THE OFFENSE OF CRUELTY TO A NONLIVESTOCK ANIMAL

       In their sole issue, appellants argue the deadly weapon allegations in their indictments

were not applicable to the offenses charged, and therefore, the trial judge should have quashed

these paragraphs of the indictments. Relying on sections 42.092(c) and 1.07 of the Texas Penal

Code, appellants argue the legislature never intended deadly weapon allegations to enhance the

offense of cruelty to nonlivestock animals. They assert because their offenses involved causing

serious bodily injury and death to cats, rather than persons, the deadly weapon allegations were


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wholly inapplicable. They also assert that allowing the State to allege a deadly weapon when the

act was committed against an animal is an expansive reading of the penal code, and that the

application of the deadly weapon enhancement to an offense which had an animal as its “victim”

is a “legal impossibility.”

        When reviewing a trial court’s decision on a motion to quash an indictment, we apply a

de novo standard of review. Lawrence, 240 S.W.3d at 915. The matters which can be reviewed

on a pretrial basis with respect to indictments are limited. Farrar v. State, 95 S.W.3d 648, 651

(Tex. App.—Eastland 2002, no pet.) (citing State v. Rosenbaum, 910 S.W.2d 934 (Tex. Crim.

App. 1995)). A trial court may not go behind the face of the indictment to make a pretrial

determination on the merits of the allegations made in the charging instrument. Rosenbaum, 910

S.W.2d at 948; id.

        We interpret a statute in accordance with the plain meaning of its language, unless the

language is ambiguous or the plain meaning leads to absurd results that the legislature could not

possibly have intended. Thompson v. State, 236 S.W.3d 787, 792 (Tex. Crim. App. 2007);

Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991). However, if the text of a statute is

ambiguous or the plain meaning leads to absurd consequences that the legislature could not have

possibly intended, we may resort to extratextual factors in interpreting a statute. Thompson, 236

S.W.3d at 792; see also TEX. GOV’T CODE ANN. § 311.023 (West 2005). The rule that a penal

statute is to be strictly construed does not apply to the construction of the provisions of the Texas

Penal Code. TEX. PENAL CODE ANN. § 1.05(a) (West 2011). Rather, the provisions of the Texas

Penal Code are to be construed according to the fair import of their terms, to promote justice, and

to effect the objectives of the code. Id.




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       Appellants were charged under section 42.092(b)(1) of the Texas Penal Code, which

makes it an offense to torture an animal or in a cruel manner kill or cause injury to an animal.

TEX. PENAL CODE ANN. § 42.092(b)(1) (West 2011). Under this statute, the term “animal” means

a domesticated living creature, including any stray or feral cat or dog, and a wild living creature

previously captured; it does not include an uncaptured wild living creature or a livestock animal.

Id. § 42.092(a)(1). An offense under section 42.092(b)(1) is a state jail felony, unless the person

has two previous convictions for animal cruelty. Id. § 42.092(c). When a person has two

previous convictions for animal cruelty, the offense is a third degree felony. Id.

       Here, because of the deadly weapon findings, the offenses were elevated from state jail

felonies to third degree felonies. See id. § 12.35(c)(1) (West 2011). The deadly weapon findings

also meant appellants were ineligible for community supervision. See TEX. CODE CRIM. PROC.

ANN. art. 42.12, § 3g(a)(2) (West Supp. 2010).

       Appellants first argue the deadly weapon allegations were inapplicable to their offenses

based on the definition of deadly weapon provided in section 1.07 of the penal code. Appellants’

argument is based on subsection 1.07(17)(B) which provides that “deadly weapon” means

“anything that in the manner of its use or intended use is capable of causing death or serious

bodily injury.” TEX. PENAL CODE ANN. § 1.07(17)(B). According to appellants, the “death” and

“serious bodily injury” referenced in subsection 1.07(17)(B) necessarily means death or serious

bodily injury to a person, not an animal. However, this argument is based on the assumption that

the deadly weapon allegations in this case involved death or serious bodily injury to animals,

rather than persons.

       As previously discussed, appellants were not entitled to a pretrial determination of the

facts surrounding the deadly weapon allegations. See Rosenbaum, 910 S.W.2d at 948 (holding a



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trial court cannot go behind the face of the indictment and make a pretrial determination

regarding the sufficiency of the evidence to support or defeat an element of the offense). Thus, at

the time the trial court considered appellants’ arguments and ruled on the motions to quash it did

not have any evidence before it establishing the facts surrounding the charged offenses. In other

words, at the time of the pretrial hearing, it was not clear whether the State intended to prove the

deadly weapon allegations by showing death or serious bodily injury as to a person or as to an

animal. On appeal, appellants cannot complain of an adverse ruling made by the trial court on a

matter the trial court was not permitted to consider. See Lawrence, 240 S.W.3d at 916 (stating

“this kind of argument cannot show the trial judge erred in denying a motion to quash an

indictment” when the argument implicitly disputed the jury’s fact findings); Farrar, 95 S.W.3d

at 651 (concluding denial of motion to quash based on limitations was not error when the

appellant was attacking the trial court’s pretrial determinations of the facts on appeal). We,

therefore, refrain from addressing appellants’ argument that section 1.07 precluded the deadly

weapon allegations in their indictments. See Rosenbaum, 910 S.W.2d at 948; Lawrence, 240

S.W.3d at 916; Farrar, 95 S.W.3d at 651.

       Next, appellants argue the deadly weapon allegations were inapplicable to their offenses

because section 42.092(c) provides the only way to enhance the animal cruelty offense.

Appellants cite no authority, other than section 42.092(c) itself, to support their argument that

this section was intended to be the exclusive means for enhancing this offense. See TEX. PENAL

CODE ANN. § 42.092(c). Although section 42.092(c) sets out one means by which the

punishment for cruelty to a nonlivestock animal may be enhanced to a third degree felony, it

does not state it is the only way to do so. We have found no additional authority to support the

conclusion that section 42.092(c) is the exclusive means for enhancing this offense. We,



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therefore, cannot conclude that section 42.092(c) precluded the deadly weapon allegations in

these cases.

        It is well-settled that all felonies are theoretically susceptible to an affirmative finding of

the use or exhibition of a deadly weapon. Patterson v. State, 769 S.W.2d 938, 940 (Tex. Crim.

App. 1989). In enacting section 42.092 of the penal code, the legislature protected specific

categories of animals, namely “domesticated living creature[s]” and “wild living creature[s]

previously captured.” TEX. PENAL CODE ANN. § 42.092(b),(c). Under section 42.092, only

specifically enumerated conduct rises to the level of a felony. Id. § 42.092(c). For example, the

offense is a felony only if it involves torture, killing, or causing serious bodily injury to an

animal; killing, administering poison to, or causing serious bodily injury to an animal; causing

one    animal     to   fight    another     animal;     or      using   a   live   animal     as   a    lure.   Id.

§ 42.092(b)(1),(2),(7),(8); (c). The offense may also rise to the level of a felony when other

conduct is committed and the actor is a repeat offender. Id. § 42.092(c).

        We conclude that section 42.092, when interpreted according to its plain meaning, did not

preclude the application of a deadly weapon enhancement to the charged offenses. We further

conclude section 42.092 is not ambiguous, and the plain meaning of the statute does not lead to

absurd results. Nothing before us warrants a departure from the general rule that all felonies are

theoretically susceptible of a deadly weapon finding. We, therefore, hold the trial court did not

err in denying the motions to quash. 3




3
 As previously stated, because of the procedural posture of this case, we do not reach the issue of whether a deadly
weapon enhancement may involve death or serious bodily injury to an animal rather than a person.

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                          MODIFICATION OF PATTERSON’S SENTENCE

       In three issues, the State challenges the trial court’s modification of Patterson’s sentences.

   A. First and Third Issues

       In its first issue, the State argues the trial court lacked authority to resentence Patterson

because Patterson failed to assert a legal ground for modification in his motion to reconsider.

Alternatively, in its third issue, the State argues that even if the trial court had the authority to

modify Patterson’s sentences, it could not have done so without first holding a new punishment

trial. The State further complains it was deprived of the opportunity to present evidence in a new

punishment trial.

       1. Waiver

       As a preliminary matter, we note these complaints were never presented to the trial court,

and therefore, have not been preserved for appellate review. See TEX. R. APP. P. 33.1(a). The

State asserts it did not waive these complaints because it was never given the opportunity to

present argument or evidence at the hearing. We disagree. During the hearing on the motion for

reconsideration, the trial court spent considerable time explaining the background of the case and

the nature of the hearing. The trial court then allowed Patterson’s counsel time to present

argument. There is nothing in the record indicating the State was precluded from presenting

argument or objecting or otherwise making its complaints known to the trial court.

       The record shows the State wholly failed to object during the hearing. It never objected to

the trial court’s modification of Patterson’s sentence on the basis that Patterson failed to assert a

legal ground for modification in his motion, nor did it object on the basis that a new punishment

hearing was required. Additionally, the State never requested the opportunity to present

additional evidence. We, therefore, hold the complaints now raised by the State have been



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waived. See id.; see also State v. Moore, 225 S.W.3d 556, 557 (Tex. Crim. App. 2007) (holding

trial court did not err in granting a late-filed amended motion for new trial when the State failed

to timely object to it); Vidaurri v. State, 49 S.W.3d 880, 885-86 (Tex. Crim. App. 2001) (holding

appellant waived his complaint on appeal by not objecting to the trial court’s failure to allow him

the opportunity to present punishment evidence). Accordingly, we overrule the State’s first and

third issues.

        2. Merits

        Even assuming these issues had been preserved for our review, the State would not

prevail on the merits. In its first issue, the State argues the trial court was not authorized to

modify Patterson’s sentences because Patterson’s motion advanced no legal ground for

modifying his sentences. The primary cases cited by the State are State v. Aguilera, 165 S.W.3d

695 (Tex. Crim. App. 2005), and State v. Davis, 335 S.W.3d 252 (Tex. App.—San Antonio

2010, pet. granted).

        In State v. Aguilera, the Texas Court of Criminal Appeals held the trial court acted within

its authority when, only a few minutes after it had initially sentenced the defendant and before it

had adjourned for the day, it modified the defendant’s sentence. 4 165 S.W.3d at 697-98. In

Aguilera, the Court of Criminal Appeals stated:

                At a minimum, a trial court retains plenary power to modify its sentence if
        a motion for new trial or motion in arrest of judgment is filed within 30 days of
        sentencing. We hold that a trial court also 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. The
        re-sentencing must be done in the presence of the defendant, his attorney, and
        counsel for the state.

Id. (citations omitted).

4
 We note State v. Aguilera, 165 S.W.3d 695 (Tex. Crim. App. 2005), was decided before the trial court had the
authority to grant a new trial as to punishment only. See TEX. R. APP. P. 21.9(a); TEX. GOV’T CODE ANN.
§ 22.108(a) (West 2004).

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       In deciding Davis, we relied on Aguilera, and held the trial court had the authority to

modify the defendant’s sentence when the defendant had filed a motion to reconsider his

sentence within thirty days of his initial sentencing. 335 S.W.3d at 255. In Davis, the defendant

filed a motion for reconsideration of his sentence twenty-two days after his original sentencing.

Id. at 253. The motion was granted thirty-two days after the original sentencing, apparently

without a hearing in open court. Id. We concluded the defendant’s motion to reconsider his

sentence was functionally indistinguishable from a motion for new trial, and therefore, the trial

court retained plenary power to modify the defendant’s sentence. Id. at 254. We further

concluded the judgment was not “void,” relying on authority stating the absence of the defendant

at the time a sentence is modified does not result in a void judgment. Id.

       The State argues we should not follow Aguilera because its statement that “a trial court

retains plenary power to modify its sentence if a motion for new trial or motion in arrest of

judgment is filed within 30 days of sentencing” was either dicta or was misdrafted by the Court

of Criminal Appeals. In making this argument, the State asserts Aguilera’s application is limited

to situations in which the defendant’s sentence is modified on the same day as his original

sentence was imposed. The State also argues we should not follow Davis because it relied on the

above-quoted statement from Aguilera.

       As an intermediate appellate court, we are bound to follow statements by the Court of

Criminal Appeals that constitute deliberate and unequivocal declarations of criminal law. Murray

v. State, 261 S.W.3d 255, 257 (Tex. App.—Houston [14th Dist.] 2008), aff’d, 302 S.W.3d 874

(Tex. Crim. App. 2009); see Thomas v. Meyer, 168 S.W.2d 681, 685 (Tex. Civ. App.—San

Antonio 1943, no writ) (distinguishing between judicial dicta and nonbinding obiter dicta). The

statement in question here, which precedes Aguilera’s express holding, is a deliberate and



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unequivocal statement of criminal law. 5 We, therefore, follow Aguilera. We also follow Davis,

which relies on Aguilera.

         Here, the record shows Patterson was initially sentenced on June 10, 2010. Nineteen days

after these sentences were imposed, on June 29, 2010, Patterson filed a motion to reconsider his

sentences. In this motion, Patterson argued the court should reconsider his eight-year prison

sentences and place him on deferred adjudication for a number of reasons, including his history

of mental illness, his admission of guilt, and the steps he had taken toward rehabilitation.

Patterson also argued his sentences should be modified because it was much harsher than the

sentence received by a well-known defendant in another highly publicized animal cruelty case,

Michael Vick. On July 9, 2010, less than thirty days after Patterson’s sentence was imposed, the

trial court held a hearing on his motion to reconsider.

         Based on this record, the trial court clearly had plenary power to modify Patterson’s

sentences. See Aguilera, 165 S.W.3d at 697-98; Davis, 335 S.W.3d at 253. And, as in Davis,

Patterson’s motion to reconsider was functionally indistinguishable from a motion for new trial. 6

See 335 S.W.3d at 253-54.

         The State further argues the trial court had no authority to modify Patterson’s sentences

based on the arguments presented in Patterson’s motion. However, Aguilera and Davis do not

stand for the proposition that the trial court’s authority to modify a sentence is determined by the

arguments presented in the defendant’s motion. And, another case relied on by the State, State v.

5
 Additionally, in Aguilera the Court of Criminal Appeals expressed its approval of other cases in which the
defendants were resentenced, although not on the same day as the original sentencing. 165 S.W.3d at 698 n.8 (citing
Junious v. State, 120 S.W.3d 413, 417 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d) (resentencing fifteen days
after original sentencing), and Ware v. State, 62 S.W.3d 344, 353-55 (Tex. App.—Fort Worth 2001, pet. ref’d)
(resentencing twelve days after original sentencing)).
6
 The record also contains a motion for new trial, which was filed on the same day the trial court resentenced
Patterson. This motion asks that a new trial be granted “in the interest of justice.” The parties have not addressed the
effect, if any, of the motion for new trial on the arguments presented.


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Herndon, is cited for a different proposition: that a trial court is not authorized to grant a motion

for new trial or a motion for arrest of judgment with “unfettered discretion;” it is only authorized

to grant such a motion on a ground provided for under the law. See 215 S.W.3d 901, 907 (Tex.

Crim. App. 2007).

       The State also directs our attention to State v. Stewart, a case in which the Austin Court

of Appeals upheld the granting of a motion for new trial based on sentencing. 282 S.W.3d 729,

738 (Tex. App.—Austin 2009, no pet.). In his motion for new trial, the defendant argued his

sentence was disproportionate compared to other defendants in the same situation, and his

sentence was not in conformity with the evidence presented at the punishment hearing. Id. at

733. In granting a new trial, the trial court explained it always considered a defendant’s prior

criminal history when determining the length of a sentence. Id. The trial court went on to state

that when originally sentencing the defendant it had relied on an incorrect assumption—that the

defendant’s sentence in a prior case was fifteen years. Id. The trial court explained that if it had

known the defendant’s sentence in the prior case was actually only seven years, it would have

sentenced him to only twenty years’ imprisonment, rather than the twenty-five years actually

assessed. Id. The State appealed the granting of a new trial, essentially arguing the trial court was

not legally authorized to grant a new trial. Id. at 734-38. The appellate court rejected these

arguments. Id.

       Here, the State attempts to distinguish Patterson’s case from Stewart arguing, “in contrast

to the facts in Stewart, neither the defendant’s pleading, nor the evidence at the hearing on the

defendant’s motion, nor the remarks of the trial court judge demonstrate a legal ground upon

which relief can be sustained.” We disagree.




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                                                        04-10-00513-CR; 04-10-00523-CR; 04-10-00572-CR


       Like the situation presented in Stewart, the record demonstrates a legal ground for

modifying Patterson’s sentence. Before the trial court modified Patterson’s sentence, Patterson’s

counsel articulated the arguments presented in Patterson’s motion to reconsider. Thereafter, the

trial court articulated its reasons for modifying Patterson’s sentence, explaining that when

Patterson was originally sentenced, the trial court was under the misimpression that Patterson

was more culpable than Mitchell. However, after considering the evidence presented at

Patterson’s hearing along with the evidence presented at Mitchell’s punishment hearing, the trial

court concluded Patterson and Mitchell were equally culpable. As a result, the trial court

explained it had reached the conclusion that Patterson deserved the same sentence as Mitchell.

       We are of the opinion the trial court had the authority to modify Patterson’s sentence. In

his motion, Patterson presented legal arguments for modifying his sentence. The trial court

apparently considered these arguments, then stated its own reasons for modifying Patterson’s

sentence. The trial court’s action was based on its own recollection of the evidence presented at

Patterson’s and Mitchell’s punishment hearings. Based on this record, we conclude the trial court

acted within its authority in modifying Patterson’s sentences. See Aguilera, 165 S.W.3d at 697-

98; Davis, 335 S.W.3d at 255; Stewart, 282 S.W.3d at 738.

       In its third issue, the State contends the trial court erred by not holding a new punishment

phase hearing and by not allowing it to present additional evidence. We disagree. We first note

the State presented several witnesses and numerous exhibits at Patterson’s initial punishment

hearing. After Patterson filed his motion to reconsider his sentences, the trial court held another

hearing. Both Patterson and the State appeared at the hearing. The trial court explained the

purpose of the hearing, and Patterson presented the arguments in his motion. Thereafter, the trial

court stated its reasons for modifying Patterson’s sentence, and made its ruling. Although the



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                                                          04-10-00513-CR; 04-10-00523-CR; 04-10-00572-CR


State did not present argument or evidence at this hearing, nothing in the record indicates the

State could not have done so. Simply put, the State never attempted to present evidence, nor did

it ask for the opportunity to do so. We, therefore, cannot say the trial court failed to hold a new

punishment hearing, nor can we say the State was not given the opportunity to present evidence.

We, therefore, overrule the State’s first and third issues.

   B. Second Issue

       In its second issue, the State argues the trial court’s action in modifying Patterson’s

sentence was unconstitutional because it resulted in a “commutation,” which is an action

reserved for the Governor of this State on recommendation of the Board of Pardons and Paroles.

See TEX. CONST. ANN. art. IV, § 11(b). The State cites two cases in support of this argument,

both of which are distinguishable from the case before us. See State ex rel. Smith v. Blackwell,

500 S.W.2d 97, 103 (Tex. Crim. App. 1973); State v. Flood, 814 S.W.2d 548, 550 (Tex. App—

Houston [1st Dist.] 1991, no pet.). Blackwell and Flood both involved challenges to statutes that

allowed defendants, who had been convicted of marijuana-related offenses and whose

convictions were final, to file petitions for resentencing in the trial court. The Court of Criminal

Appeals held such a statute was “clearly violative of the constitutional provision placing the

power of clemency in the hands of the Governor, acting upon recommendation of the Board of

Pardons and Paroles.” Blackwell, 500 S.W.2d at 103. Here, however, the trial court modified

Patterson’s sentences while it still had plenary power, and before his appeal was completed and

his convictions were final. We conclude the trial court’s action in no way affected the

Governor’s ability to commute or pardon Patterson’s sentences. We, therefore, overrule the

State’s second issue.




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                                                        04-10-00513-CR; 04-10-00523-CR; 04-10-00572-CR


                                REFORMATION OF JUDGMENTS

       Patterson’s judgments state that he pled nolo contendere to the offenses of cruelty to

nonlivestock animals. However, the reporter’s record shows Patterson pled guilty to the charged

offenses. The State asks us to reform the judgments to conform to the reporter’s record. We grant

the State’s request. We order the judgments modified to show Patterson pled guilty to the

offenses of cruelty to nonlivestock animals.

                                          CONCLUSION

       Patterson’s judgments of conviction are AFFIRMED AS MODIFIED. Mitchell’s

judgments of conviction are AFFIRMED.

                                                        Karen Angelini, Justice



PUBLISH




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