
                                          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  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]


      Accordingly, the judgment is affirmed.


                                        Per Curiam


      Do not publish.



-----------------------
      [1]We reject appellant’s suggestion that he must have been sentenced on April 8th 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).



