### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-12-00463- CR

Javiele Jason F rias, Appellan t

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 403 RD JUDICI AL DISTRICT NO. D-1 -DC- 11- 2059 34, TH E H ONO RAB LE B RENDA KENNEDY , JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

P ER CURIAM

After finding appellant J aviele J ason Fr ias g uilty of burg lary of a habitation, a Travis County jury assessed his punishment at 75 y ear s’ imprisonment and a $10,000 fine. The trial court
enter ed a judgme nt sentenc ing appellant to serve 75 y ear s in the Texas Depa rtment of C riminal J ustice and imposing a $10,000 fine. Acc ording to the rec ord, howeve r, the trial court never orally
pronounce d the sentenc e. 1

At the conclusion of the punishment phase of trial, the trial court rea d the jury ’s 1 punishment verdic t in open court with appellant prese nt but did not orally pronounce appellant g uilty of burg lary of a habitation or pronounce the sentenc e assessed by the jury

. I nstead, afte r rea ding the verdic t, the trial court asked the parties if they wanted the jury polled. Both sides declined, and the trial court then stated, “At this time I ’m g oing to a sk that the deputies come forwa rd to fing erpr int the d ef en d an t

. And at this time I will rema nd y ou to the custody of the Travis County sheriff ’s depar tment for execution of sentenc e.” The rec ord does not ref lect that any further proce eding s occur red in a ppellant’s pre sence .Jurisdi ction Although neither party raise s th is is s u e o n a p p e a l, w e must deter

mine whether the trial court’s failure to orally pronounce appellant’ s sentenc e deprive s this Court of jurisdiction. See State

v. R o berts , 940 S.W .2d 655, 657 (Tex. Crim. App. 1996), overruled on other ground b y S t a t e

v. Medrano , 67 S.W .3d 892, 894 (Tex. Crim. App. 2002) (“A threshold issue in any case is whether the cou rt h as the jurisdiction to resolve the pending controve rsy . This issue of jurisdiction is fundame ntal and ca

nnot be ig nored.” (I nterna l citations omit ted.)). Courts a re require d to pr onounce sentenc e orally in the defe ndant’s prese nce. Tex. Code Crim. Proc. art. 42.03, § 1(a) ; Taylor v. State , 131 S.W .3d 497, 500 (Tex. Crim. App. 2004);
Ex parte Ma d

d i ng , 70 S.W .3d 131, 135 (Tex. Crim. App. 2002). The judgme nt, including the
senten ce as s es s ed, is mere ly a written manifestation of that oral pronounce ment. See Tex. Code Crim. Proc. art. 42.01, § 1; Taylor , 131 S.W .3d at 500; Madding , 70 S.W .3d at 135

. Ora l
pronounce ment of the sentenc e in the prese nce of the defe ndant is nece ssary beca use “the imposit ion of sent ence is the cruc ial moment when all of the parties are phy sically prese nt at the sentenc ing hear ing and able to he ar and respond to the imposit ion of sentenc e.” Madding , 70 S.W .3d at 135. “[I ]t is the pronounce ment of sentenc e that is the appea lable event, and the written sentenc e or order simply memorializes it and should comport there with.” Coffey v. State , 979 S.W .2d 326, 328 (Tex. Crim. App. 1998). I f no sentenc e was ever rende red, there is no valid judgme nt. See Thompson v. 2

W h i l e t he jury assesses a defe ndant’s sentenc e, the trial court imposes the sentenc e b y 2 orally pronouncing the sentenc e in the defe ndant’s prese nce. See Tex. Code Crim. Proc. arts. 37.01 (“A ‘ver dict’ is a written decla ration by a jury of its decision of the issue submitt ed to it in the case .”); 42.01, §1 (“A judgme nt is the written decla ration of the court signe d by the trial judge and enter ed of rec ord showing t he conviction or acquittal of t he defenda nt. The sentence s erve d shall 2State , 108 S.W .3d 287, 290 (Tex. Crim. App. 2003); see also Ex parte Kopeck y , 821 S.W .2d 957, 960 (Tex. Crim. App. 1992 ) (“ P u n i s h ment and sentenc e are incorporated in the judgme nt.

. . . ‘[S] entenc e is a nece ssary component of a “judg ment of con v i ction.”’” (Quoting Ball v. United States , 470 U.S. 856, 862 (1985).) ). When no sentenc e is orally pronounce d, a written judgme nt is
not valid, and without a valid written judgme nt, there is no “convic tion” for appellant to appea l. See Thompson , 108 S.W .3d at 290.

We conclude that we lack jurisdiction over appellant’ s appea l beca use the trial court failed to orally pronounce his sentenc e in his prese nce. Howeve r, the Rules of Appellate Procedur e require that we not dismiss an app eal if the trial court’s err oneous action or failure to act can be

corr ecte d by the trial court. See Tex. R. App. P. 44.4. The trial court’s failure to orally pronounce
sentenc e can be corr ecte d by the t rial court’s orally pronouncing sentenc e with appellant present. Acc ording ly , we abate this a ppeal and rema

nd the cause to the trial court to a llow the trial court to
pronounce its sentenc e in open court with appellant prese nt. See Keys v. State , 340 S.W .3d 526, 529 (Tex. App.—Texarkana 2011, no pet.) (aba ting appea l to allow trial court to orally pronounce
sentenc e); Staten v. State , No. 09-09-00490- CR, 2010 WL 2696153, at *2 (Tex. App.—B eaumont J uly 7, 2010, no p et

. ) (aba ting appea l and rema nding to trial court to pronounce sentenc e in appellant’ s prese nce) ; Meac hum v. State , 273 S.W .3d 803, 806 (Tex. App.—Houston [14t h Dist.] 2008, no pet.) (conc luding abate ment was p roper and eff icient reme dy when trial court failed to
pronounce sentenc e in appe llant’s prese nce)

.

be based on the i nformation contained i n the judg ment.”); 42.02 (“ The sentence is that part of the judgme nt

. . . that order s that the punishment be car ried into execution in the manner presc ribed by law.”) ; 42.03, §1(a) ( “[S] entenc e shall be pr onounced in the de fenda nt’s prese nce.” ). 3Conclusion We abate this appea l an d re m and the cause to the trial court. On rema nd, the trial

co u rt shall cause notice of a hear ing to be g iven and, there afte r, orally pronounce the senten ce assessed by the jur y i n appellant’ s prese nce. We order the trial court to conduct the sentenc ing hear ing within 3 0 day s of this memorandum opinion. A repor ter’s rec ord of the hear ing shall be
prepa red and filed in the rec ord of this appea l, toge ther with a supplemental cler k’s rec ord containing the trial court’s new judgme nt. These rec ords are due to be filed in this Court within 45 day s of the date of this memorandum opinion. The appea l will be reinstated when the supplemental rec ords are filed here in. On reinstateme nt, this Court will consider the merits of the appea l based on the rec ord and brie fs alre ady

filed.

Be fore Chief J ustice Jones, J ustices Goodwin and F ield Abated a nd Remanded Filed: Apr il 4, 2014 Do Not Publish

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