McClinton, Harold, Jr.

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. 587-01 HAROLD MCCLINTON, JR., Appellant v. THE STATE OF TEXAS ON STATE'S PETITION FOR DISCRETIONARY REVIEW FROM THE FOURTEENTH COURT OF APPEALS HARRIS COUNTY Cochran, J., filed a concurring opinion. O P I N I O N This case is a mess. We granted the State's ground for review which reads, "Does a trial court have the power to reform a defendant's sentence after the defendant has already begun to serve the sentence?" In the abstract, that question is easily answered: Yes, a trial court has the power to reform a defendant's sentence after the defendant has already begun to serve the sentence if such a reformation is authorized by law. (1) But that abstract question is not really the issue in this case. The real issue is whether a trial court may, by means of a docket entry, reform or modify a sentence twenty days after the original sentence had been orally imposed in open court, and whether it may do so without any record request by the parties, without any record indication that the State was present to object, and without statutory authorization. But we do not get to that question because the appellant aptly argues that the court of appeals lacked jurisdiction to even consider this issue as the State failed to file a notice of appeal. The State certainly had a right to appeal the trial court's modification of the sentence under article 44.01(a)(2), (2) but it did not do so. In this Court, the State did not respond to this preliminary jurisdictional issue. Therein lies a problem. I. Appellant was arrested in 1997 during a drug raid. On August 19, 1998, a jury found him guilty of possession of cocaine. On that same day the trial court orally sentenced him in open court to twelve years imprisonment. Appellant filed a notice of appeal that same day and the trial court set an appeal bond in the amount of $30,000. Twenty days later, on September 8, 1998, the trial judge entered a written docket order which read: [I]t appearing to the Court that the ends of justice will best be served by a reformation of the judgment herein from 12 years in the Texas Department of Corrections to 10 years in the Texas Department of Corrections. There is no indication in the record that this docket entry was made in response to any motion filed by either appellant or the State. There is no indication in the record that this new or modified sentence was orally pronounced or that the State was given any opportunity to address the trial court's authority to enter such an order. Appellant raised three points of error in his direct appeal, each of which was rejected by the court of appeals. (3) The State did not file a notice of appeal or raise an official cross-point in its brief, but it did argue that the trial court's reformation of appellant's sentence from twelve years to ten years constituted an unauthorized grant of a new trial as to punishment only. It contended that the trial court lacked jurisdiction to reform its sentence within the plenary period and requested affirmative relief by reimposing the original sentence pronounced in open court. The Houston Court of Appeals noted the procedural problem of addressing the State's complaint which requested affirmative relief when it had "filed neither a notice of appeal nor raised a cross-point in this appeal." (4) Observing that another court of appeals had, under similar circumstances, addressed the State's complaint, the Houston Court of Appeals examined the State's contention that the trial court lacked jurisdiction to reform its sentence within the plenary period. (5) The court of appeals then concluded that "[w]hile this is not a settled area of the law, we agree with our sister court that 'a trial court has inherent power to vacate, modify or amend its own rulings.'" (6) It concluded, therefore, that the trial court merely amended a "ruling" within its plenary power and overruled the State's complaint. (7) We granted review to resolve this unsettled area of the law, but we cannot do so in this case. II. It is well established that a trial court's oral pronouncement of a sentence in open court is the sentence imposed. The written judgment or a docket entry is "merely the written declaration and embodiment of that oral pronouncement." (8) As we recently explained: The rationale for that rule is that the imposition of sentence is the crucial moment when all of the parties are physically present at the sentencing hearing and able to hear and respond to the imposition of sentence. Once he leaves the courtroom, the defendant begins serving the sentence imposed. (9) Thus, a trial court does not have the statutory authority to impose one sentence orally to the defendant and then, at some later date, enter a different, greater or lesser, sentence in his written judgment outside the defendant's or State's presence. (10) Such a system would create havoc: a trial judge could orally pronounce sentence in open court while the defendant and his family and friends, a possible victim and his family and friends, and the prosecutor are all present, then later modify, alter, or amend that sentence when no one else was present to object. A defendant who thought he was to serve a ten year sentence would eventually discover that, instead, his sentence has been modified to twelve years, or the State would eventually discover that the sentence of twelve years, made in open court, had now been modified to ten years. Such a system would be unfair to both parties and to society at large. Such a system would inject an intolerable level of uncertainty into the sentencing process and would prevent any sentence from becoming "final" until the trial court's plenary authority had expired. A trial court has the inherent authority to alter, modify, or vacate its rulings, but it does not have the inherent authority to alter, modify, or vacate a sentence imposed in open court without statutory authorization and without the presence of the parties. (11) III. Did that happen in this case? Who knows. The trial court's docket sheet reflects that appellant and his counsel appeared in court on September 8th, twenty days after sentence was orally imposed, and that the trial judge made a docket entry "reforming" appellant's sentence. (12) There is no reporter's record of proceedings from that date. If the State had been present and informed of the trial court's action, it could have objected on the record and filed a timely notice of appeal. If the State was not a participant in this September 8th proceeding, it would not have been aware of its right to object or appeal a modification of the sentence under article 44.01(a)(2). (13) Does the State forfeit its right to complain on appeal to a procedure that it was unaware of or to a proceeding in which it did not participate? That question, albeit interesting, is not before us given the nature of the State's petition for discretionary review and the decision of the court of appeals. The court of appeals did, rightly or wrongly, address the merits of the State's complaint despite the fact that the State did not file a timely notice of appeal under article 44.01(a)(2) nor even a cross-point concerning a ruling on a question of law under article 44.01(c). (14) Although I doubt that the "reformation" of a sentence via a docket entry is, in fact, a ruling on a question of law, the trial court's authority to make such a reformation certainly is a question of law. Like Judge Hervey, I believe that both trial and appellate courts may always take cognizance of an illegal or unauthorized sentence, with or without the prompting of the parties. (15) I also believe that our holding in Ex parte Madding is a two-way street. The sentence that is imposed in open court with both parties present controls over a written judgment that conflicts with that oral pronouncement. Regardless of whether, under certain circumstances, a trial court has the inherent authority to modify a sentence previously imposed, it does not have the inherent authority to modify, alter, or vacate a valid sentence orally imposed solely by means of a later written judgment or docket entry. Here, however, I doubt whether this Court has jurisdiction to consider the merits of the State's ground for review. Appellant argues that the court of appeals did not have jurisdiction to address the State's complaint about the trial court's "reformation" of the sentence because the State could have appealed had it so chosen. And it did not do so. Therefore, goes the argument, if the court of appeals did not have jurisdiction to address the State's complaint, we do not have jurisdiction to review the merits of the court of appeals' decision affirming the trial court's action. We do, I would imagine, have jurisdiction to decide whether the court of appeals had jurisdiction to entertain the State's complaint. But neither the State nor appellant has briefed this issue. A trial or appellate court may always notice and correct an illegal or unauthorized sentence if it otherwise has jurisdiction over the case. As we recently held in Mizell v. State, (16) "[t]here has never been anything in Texas law that prevented any court with jurisdiction over a criminal case from noticing and correcting an illegal sentence." (17) But, of course, neither the ten nor twelve year sentences assessed in this case are "illegal" or unauthorized by law. The State does not argue that the ten year sentence itself was illegal. Rather, the State's position is that the trial court simply did not have the power, jurisdiction, or authority to modify or change the original sentence because "McClinton had already accepted his August 19, 1998, sentence and suffered punishment under it before September 8, 1998." (18) Or, had he? That, too, is hard to tell from this record. The term "accepted his sentence" usually describes the situation in which a defendant does not file an appeal because he either expressly waives his right to appeal or fails to file notice of appeal within the statutory time frame. (19) Here, appellant did file his notice of appeal on the very day he was sentenced so it cannot be said that he "accepted" his sentence. Furthermore, I cannot tell from this record whether appellant actually began serving his sentence on August 19th, the date he was originally sentenced, because the trial judge set an appeal bond at the same time appellant filed his notice of appeal. (20) In sum, the record in this case is insufficient to address adequately either the preliminary jurisdictional question or the real issue in this case. Thus, although this is an unsettled area of the law which deserves clarification, I reluctantly concur in the court's dismissal of this petition for discretionary review as improvidently granted. Cochran, J. Filed: December 10, 2003. Publish 1. In some instances the trial court has express statutory authorization to modify a sentence which has been previously imposed. For example, under article 42.12, § 6, of the Code of Criminal Procedure the trial court has continuing jurisdiction in a felony case to modify or reform his original sentence of imprisonment and place a defendant on community supervision under certain specified circumstances. Clearly a trial court has plenary jurisdiction over a case for at least the first thirty days after sentencing because it has the authority to receive a motion for new trial (or motion in arrest of judgment) within that time period and to resolve the merits of that motion within 75 days after sentencing. See Tex. R. App. P. 21 & 22; see, e.g., State v. Bates, 889 S.W.2d 306, 309 (Tex. Crim. App. 1994). The question here is not whether the trial court had jurisdiction to perform any act, but rather whether he had legal authority to perform a certain act-to modify, reform, change, or assess a new sentence twenty days after the original sentence had been imposed. 2. Under article 44.01(a)(2) of the Code of Criminal Procedure, "[t]he state is entitled to appeal an order of a court in a criminal case if the order ... arrests or modifies a judgment." 3. McClinton v. State, 38 S.W.3d 747 (Tex. App.-Houston [14th Dist.] 2001). 4. 38 S.W.3d at 750. 5. Id. (citing State v. Clemmer, 999 S.W.2d 903, 905 (Tex. App.-Amarillo 1999, pet. ref'd). 6. Id. at 751 (citing Verdin v. State, 13 S.W.3d 121, 123 (Tex. App.-Tyler 2000, no pet.). 7. Id. 8. Ex parte Madding, 70 S.W.3d 131, 135 (Tex. Crim. App. 2002); Coffey v. State, 979 S.W.2d 326, 328 (Tex. Crim. App. 1998). 9. Ex parte Madding, 70 S.W.3d at 135. 10. Id. at 136. 11. See id. and n.3. 12. The numerous docket entries showing pretrial resets are rubber stamped and read "The Defendant ______ appeared in person with counsel ______" and those blanks are filled in with pen. The docket entries made during the trial and at the sentencing hearing on August 19 th are also rubber stamped and state that the defendant, his named counsel, and a named prosecutor were all present in court. On September 8th, the same rubber stamp used for pretrial resets was again used. There is no other indication that I can find in the record concerning the presence or participation of a prosecutor on September 8th. 13. The State, however, has never contended that it was not present and participating in the September 8 th proceeding. 14. See generally 43A George E. Dix & Robert O. Dawson, Texas Practice: Criminal Practice and Procedure § 43.243 at 544 (2d ed. 2001), in which Professors Dix and Dawson note that article 44.01(c) gives the State an extensive right to cross-appeal legal rulings, but that the court of appeals should normally address those cross-appeals only if the State is able to implement a decision in its favor, i.e., only if the defendant wins his appeal and a retrial, or some further proceedings in the trial court, is necessary. There are, according to Professors Dix and Dawson, some exceptions to that general rule, and occasionally the State "will be able to benefit from relief even if none is given to the defendant," because "a defendant has no right to even a wrongful trial court victory where that can be remedied without offending other important values." Id. at n.9. The State does not argue that this is one of those instances. 15. See infra, slip op. at 5 (Hervey, J., dissenting). 16. __ S.W.3d __, 2003 Tex. Crim. App. LEXIS 715 (Tex. Crim. App. 2003). 17. Id. at __, *5. 18. The State relies upon a long line of cases from this Court which has held that any attempt to reform or modify a defendant's sentence after he has suffered punishment under the sentence originally imposed is "null and void." See, e.g., Ex parte Reynolds, 462 S.W.2d 605, 608 (Tex. Crim. App. 1970) (holding that "it was beyond the power of the court ... to add a cumulation order onto the last sentence imposed after the petitioner had suffered punishment under the sentence originally imposed"); Ex parte Brown, 477 S.W.2d 552, 554 (Tex. Crim. App. 1972) (trial court's resentencing order making sentences cumulative entered after defendant had been imprisoned for two months was invalid; "[s]uch a belated attempt at altering the terms of a defendant's sentence [is] null and void of effect"); Blackwell v. State, 510 S.W.2d 952, 956 (Tex. Crim. App. 1974); Williams v. State, 170 S.W.2d 482, 486 (Tex. Crim. App. 1943); Powell v. State, 62 S.W.2d 712, 713 (Tex. Crim. App. 1933). These cases all deal with an increase in punishment, not a decrease. Should that same rule, originally based upon due process and double jeopardy considerations, apply equally to a downward modification of sentence? Or, as Judge Hervey suggests, should it be jettisoned entirely? See infra, slip op. at 9 (Hervey, J., dissenting). The questions of whether this is a rule without a current rationale and thus should be jettisoned or whether it is a "one-way street" prohibiting only an increase in punishment or a "two-way street" prohibiting any modification are not directly before us and have not been briefed by the parties. 19. See Ex parte Reynolds, 462 S.W.2d at 607, in which this Court stated: Article 42.09, V.A.C.C.P., provides that the sentence shall begin to run on the day the same is pronounced in cases where no appeal is taken. Petitioner claims he expressly inquired of the court as to its intentions, accepted the concurrent sentences, gave no notice of appeal and commenced the service of such sentences before the order of cumulation was entered. See also Tenon v. State, 563 S.W.2d 622, 623-24 (Tex. Crim. App. 1978) (defendant "waived filing notice of appeal and was ready to accept sentence"); Goss v. State, 161 Tex. Crim. 37, 39, 274 S.W.2d 697, 699 (1955) (noting that "[a]ppellant did not appeal his first conviction but accepted his sentence"). 20. A supplemental Clerk's Record contains a bondsman's affidavit of surrender which indicates that the appeal bond was executed on August 20, 1998, but that nine months after appellant filed his notice of appeal he was again in jail on a new felony drug charge and his bond in that case was $100,000. It would seem a rational inference that appellant may have spent one night in jail between his sentencing and the execution of the appeal bond, but this is far from clear. Furthermore, does serving one day of a twelve year sentence automatically and rigidly cut off a defendant's right to request modification or reformation of his sentence if such a modification were otherwise authorized by law?