Appeal from the 427th District Court Travis County, Texas
Trial Court Case No. D-1-DC-17-900125
consists of Chief Justice Radack and Justices Landau and
finding appellant David John Diaz guilty of murder, a Travis
County jury assessed his punishment at life in prison. The
trial court entered a judgment sentencing appellant to life
in prison. According to the record, however, the trial court
never orally pronounced the sentence.
brief's first point of error, appellant argues that the
trial court failed to formally sentence him and that this
Court should abate the appeal and remand to the trial court
to properly sentence appellant. Likewise, on October 28,
2019, the State filed a motion to abate the appeal because
the trial court did not formally sentence appellant
are required to pronounce sentence orally in the
defendant's presence. Tex. Code Crim. Proc. art. 42.03,
§ 1(a); Taylor v. State, 131 S.W.3d 497, 500
(Tex. Crim. App. 2004); Ex parte Madding, 70 S.W.3d
131, 135 (Tex. Crim. App. 2002). The judgment, including the
sentence assessed, is merely a written manifestation of that
oral pronouncement. See Tex. Code Crim. Proc. art.
42.01, § 1; Taylor, 131 S.W.3d at 500;
Madding, 70 S.W.3d at 135. Oral pronouncement of the
sentence in the presence of the defendant is necessary
because "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." Madding, 70 S.W.3d at
135. "[I]t is the pronouncement of sentence that is the
appealable event, and the written sentence or order simply
memorializes it and should comport therewith."
Coffey v. State, 979 S.W.2d 326, 328 (Tex. Crim.
App. 1998). If no sentence was ever rendered, there is no
valid judgment. See Thompson v. State, 108 S.W.3d
287, 290 (Tex. Crim. App. 2003); see also Ex parte
Kopecky, 821 S.W.2d 957, 960 (Tex. Crim. App. 1992)
("Punishment and sentence are incorporated in the
judgment. . . . '[S]entence is a necessary component of a
"judgment of conviction."'" (quoting
Ball v. United States, 470 U.S. 856, 862 (1985))).
When no sentence is orally pronounced, a written judgment is
not valid, and without a valid written judgment, there is no
"conviction" for appellant to appeal. See
Thompson, 108 S.W.3d at 290.
conclude that we lack jurisdiction over appellant's
appeal because the trial court failed to orally pronounce his
sentence in his presence. However, the Rules of Appellate
Procedure require that we not dismiss an appeal if the trial
court's erroneous action or failure to act can be
corrected by the trial court. See Tex. R. App. P.
44.4. The trial court's failure to orally pronounce
sentence can be corrected by the trial court's orally
pronouncing sentence with appellant present. Accordingly, we
grant the State's motion to abate and we abate this
appeal and remand the cause to the trial court to allow the
trial court to pronounce its sentence in open court with
appellant present. See Keys v. State, 340 S.W.3d
526, 529 (Tex. App.-Texarkana 2011, no pet.) (abating appeal
to allow trial court to orally pronounce sentence);
Staten v. State, No. 09-09-00490-CR, 2010 WL
2696153, at *2 (Tex. App.- Beaumont July 7, 2010, no pet.)
(abating appeal and remanding to trial court to pronounce
sentence in appellant's presence); Meachum v.
State, 273 S.W.3d 803, 806 (Tex. App.-Houston [14th
Dist.] 2008, no pet.) (concluding abatement was proper and
efficient remedy when trial court failed to pronounce
sentence in appellant's presence).
abate and remand the cause to the trial court. On remand, the
trial court shall cause notice of a hearing to be given and,
thereafter, orally pronounce the sentence assessed by the
jury in appellant's presence. We order the trial court to
conduct the sentencing hearing within 30 days of this
memorandum order. A supplemental reporter's record of the
hearing shall be prepared and filed in the record of this
appeal, together with a supplemental clerk's record
containing the trial court's new judgment. These records
are due to ...