                                                                                                 ACCEPTED
                                                                                             04-14-00887-CR
                                                                                 FOURTH COURT OF APPEALS
                                                                                      SAN ANTONIO, TEXAS
                                                                                        7/31/2015 2:14:52 PM
                                                                                              KEITH HOTTLE
                                                                                                      CLERK



                                 NO. 04-14-00887-CR

RICKY ALLENWENTZEL CALBAT                   §      IN THE FOURTH COURT
                                            §
VS.                                         §      OF APPEALS
                                            §
STATE OF TEXAS                              §      SAN ANTONIO, TEXAS

            APPELLANT’S RESPONSE TO THE STATE’S MOTION TO ABATE

TO THE HONORABLE JUSTICES OF SAID COURT:

       Now comes Ricky Allenwentzel Calbat, Appellant in the above styled and

numbered cause, and files this Response to the State’s Motion to Abate, and in support

thereof shows the following:

                                      Background

       1.      On July 17, 2015, the Court ordered Appellant to file a response to the

State’s Motion to Abate by July 31, 2015, stating whether or not one of the exceptions

listed in Article 42.14 of the Code of Criminal Procedure applies which would excuse the

trial court’s pronouncement of sentence in Appellant’s absence.          The Court also

ordered that if Appellant believes that none of the exceptions apply, then Appellant shall

provide briefing on the issue of whether the appeal should be abated or dismissed for

want of jurisdiction.

   Pronouncement of sentence in the defendant’s presence is a prerequisite to
                           appellate jurisdiction

       2.      A “sentence” is defined as “that part of the judgment, or order revoking a

suspension of the imposition of a sentence, that orders that the punishment be carried

into execution in the manner prescribed by law.” Tex. Code Crim. Proc. art. 42.02.

Article 42.03 of the Code of Criminal Procedure requires that sentence be pronounced



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in the defendant’s presence except as provided by Article 42.14 of the Code of Criminal

Procedure. Tex. Code Crim. Proc. art. 42.03(1)(a).

       3.       A criminal sentence is a prerequisite to appellate jurisdiction. Meachum

v. State, 273 S.W.3d 803, 805 (Tex. App.—Houston [14th Dist.] 2008, no pet.). The

Court of Criminal Appeals has held that failure to pronounce sentence in a defendant’s

presence is a jurisdictional defect on appeal. Thompson v. State, 108 S.W.3d 287, 293

(Tex. Crim. App. 2003).

       None of the exceptions listed in Article 42.14 apply in Appellant’s case

       4.       Section 42.14 of the Code of Criminal Procedure contains exceptions to

the general rule that a trial court must pronounce sentence in the defendant’s presence.

Tex. Code Crim. Proc. art. 42.14(a)&(b). These exceptions can be divided into two

general categories: 1. misdemeanor cases; and, 2. felony cases where the defendant is

confined in a penal institution coupled with other specific conditions that must be met.

Tex. Code Crim. Proc. art. 42.14(a)&(b). None of the exceptions in Article 42.14 apply

to Appellant’s case. The trial court was required to pronounce sentence in Appellant’s

presence. Therefore, the question becomes whether the appeal should be abated to

correct the jurisdictional defect or whether the appeal should be dismissed for want of

jurisdiction.

   Pursuant to Rule 44.4 of the Rules of Appellate Procedure, the appropriate
 remedy is to abate the appeal for the trial court to properly pronounce sentence
                             in Appellant’s presence

       5.       Appellant submits that the opinion in Meachum v. State issued by the

Fourteenth Court of Appeals provides guidance in Appellant’s case.         Meachum v.

State, 273 S.W.3d 803 (Tex. App.—Houston [14th Dist.] 2008, no pet.).            In the



                                            2
Meachum case, the defendant entered a plea bargain with the State after he was

charged with the felony offense of aggregate theft.       Meachum, 273 S.W.3d at 803.

The defendant failed to appear for his punishment hearing and the defendant was

sentenced in absentia.     Id.   The State challenged the appellate court’s jurisdiction

based upon the trial court’s failure to properly sentence the defendant and suggested

that the proper remedy was dismissal of the appeal.          Id at 803; Id. at 806.   The

Meachum court, after analyzing the applicable case law and statutory authority, held

that the proper, and more efficient, remedy was to abate the appeal. Id. at 806. The

Meachum court noted that Rule 44.4 of the Rules of Appellate Procedure prohibits an

appellate court from dismissing an appeal if the trial court’s erroneous action or failure

to act prevents the proper presentation of the case, and the trial court can correct its

action or failure to act. Id. at 806; Tex. R. App. Proc. 44.4.

       6.     The Meachum court reconciled its decision with the Court of Criminal

Appeals’ Thompson opinion (which upheld the dismissal of an appeal for want of

jurisdiction) by pointing out that the Court of Criminal Appeals noted that “we need not

address the question of whether there is only one proper remedy for this situation; it is

enough to determine that the court of appeals chose a proper remedy.” Meachum, 273

S.W.3d at 806 (emphasis in original).        In addition, the Meachum court also cited

multiple intermediate court opinions holding that abatement, not dismissal, is the proper

remedy under TRAP 44.4 where an appellate court lacked jurisdiction due to the trial

court’s failure to pronounce the sentence in the defendant’s presence. Id. 806.

                                       Conclusion

       7.     The appropriate remedy for the trial court’s failure to pronounce sentence



                                             3
in Appellant’s presence is to abate this appeal and remand the cause to the trial court

for proper sentencing.

      WHEREFORE, PREMISES CONSIDERED, Appellant prays that this Court abate

this appeal and remand the cause to the trial court for proper sentencing in accordance

with Article 42.03 of the Code of Criminal Procedure, and for such other and further

relief as the Court may deem appropriate.

                                        Respectfully submitted,

                                        M. Patrick Maguire, P.C.
                                        Attorney and Counselor
                                        945 Barnett Street
                                        Kerrville, TX 78028
                                        Tel: (830) 895-2590
                                        Fax: (830) 895-2592



                                        By: /s/ M. Patrick Maguire
                                           M. Patrick Maguire
                                           State Bar No. 24002515
                                           Attorney for Ricky Allenwentzel Calbat




                             CERTIFICATE OF SERVICE

      This is to certify that on July 31, 2015, a true and correct copy of the Appellant’s

Response to the State’s Motion to Abate was served on the attorney for the State, Hon.

Scott Monroe, 402 Clearwater Paseo, Kerrville, Texas 78028, by facsimile transmission

to (830) 315-2461



                                         /s/ M. Patrick Maguire
                                        M. Patrick Maguire

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