ERIC SWARTZBAUGH v. THE STATE OF TEXAS--Appeal from 25th District Court of Gonzales County

   NUMBER 13-04-067-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

  CORPUS CHRISTI  B EDINBURG

ERIC SWARTZBAUGH, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 On appeal from the 25th District Court

of Gonzales County, Texas.

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

 Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

   Opinion by Chief Justice Valdez

The threshold issue in this case is whether a sentence announced by a trial judge may be modified and enhanced within the same day the first sentence was originally pronounced. We conclude that appellant had not begun serving his sentence at the time the trial judge modified its sentence, and therefore, the trial judge could properly modify and enhance the sentence on the same day it was originally pronounced, subject to the procedural safeguards implemented by the Texas Court of Criminal Appeals in the case of State v. Aguilera.[1]

I.

After a plea of Atrue@ to the State=s Motion for Adjudication, appellant, Eric Swartzbaugh, was convicted by the trial court of the felony offense of Injury to a Child.[2] Initially, the trial court orally assessed punishment at eight years= confinement in the Institutional Division of the Texas Department of Criminal Justice (TDCJ). The court then remanded appellant to the custody of the Sheriff of Gonzales County for safekeeping until appellant could be transported to the TDCJ to serve the remainder of his sentence. After appellant had been remanded to the custody of the sheriff, but before appellant left the courthouse, the trial court realized that he had made a written docket entry for ten years as the term for appellant=s sentence. Immediately thereafter, the trial judge recalled appellant and corrected the sentence to ten years= confinement.

Appellant now argues, in his first issue on appeal, once a defendant has been given a valid sentence, the trial court has no authority to subsequently change that sentence upwards. Additionally, appellant asserts in his second issue that the trial court=s imposition of a second sentence that was greater in length violated the double jeopardy clause of the Texas Constitution.[3]

II.

Ordinarily, as a prerequisite to presenting a complaint on appeal, the complaining party must preserve error. See Tex. R. App. P. 33.1. However, a double jeopardy claim may be raised for the first time on appeal or in a collateral attack when the undisputed facts show the double jeopardy violation is clearly apparent on the face of the record and when enforcement of usual rules of procedural default serves no legitimate state interests. Gonzalez v. State, 8 S.W.3d 640, 643 (Tex. Crim. App. 2000). This test is met when the charges Aare heard in front of the same judge and arise out of the same criminal transaction because the trial court is charged with constructive knowledge of the double jeopardy claim.@ Beltran v. State, 30 S.W.3d 532, 533 (Tex. App.BSan Antonio 2000, no pet.). We conclude that this is such a case.

  III.

Article 42.09, section 1, of the code of criminal procedure states that Athe defendant=s sentence begins to run on the day it is pronounced . . . .@ Tex. Code Crim. Proc. Ann. art. 42.09 '1 (Vernon 2003). The court of criminal appeals has held that a trial court does not have the power to alter or modify a defendant=s sentence once the defendant has begun serving his sentence. See Williams v. State, 170 S.W.2d 482, 486 (Tex. Crim. App. 1943) (when the accused has performed part of his sentence the Acourt is powerless to change the judgement in any substantial respect@);Powell v. State, 63 S.W.2d 712, 713 (Tex. Crim. App. 1933) (the trial court does not have power to stack sentences after appellant had served several months of sentence which had been ordered to run concurrently with another sentence). Therefore, we must ascertain whether appellant began serving his sentence; if he had, the trial court could not have changed and enhanced appellant=s sentence.

The court of criminal appeals decided recently the case of State v. Aguilera, No. PD-0024-04, 2005 Tex. Crim. App. LEXIS 957 (Tex. Crim. App. June 22, 2005) (designated for publication). In Aguilera, the trial court initially sentenced the defendant to twenty five years= incarceration. Id. at *1. Later that same day, after an off-the-record Avictim impact statement@ allocution, the trial court, over the State=s objection, reassessed the sentence to fifteen years=incarceration. Id. The court of criminal appeals upheld the trial court=s ruling and stated:

At a minimum, a trial court retains plenary power to modify its sentence if a motion for new trial or motion in arrest of judgment is filed within 30 days of sentencing. A trial court also retains plenary power to modify its sentence if the modification is made on the same day as the assessment of the initial sentence and before the court adjourns for the day. The re-sentencing must be done in the presence of the defendant, his attorney, and counsel for the State. Such modifications comport with the provisions of Article 42.09, section 1 [of the Texas Code of Criminal Procedure], that a defendant=s sentence begins to run on the day that it is pronounced, and the provisions of Article 42.03, section 1(a) [of the Texas Code of Criminal Procedure], that a felony sentence shall be pronounced in the defendant's presence. In such circumstances, a trial court has the authority to re-sentence a defendant after assessing an initial sentence if the modified sentence is authorized by statute.

Id. at *6-7 (citations omitted).

Thus, the court held that Athe trial court was acting within its authority when, only a few minutes after it had initially sentenced [the defendant] and before it had adjourned for the day, it modified [the defendant=s] sentence.@ Id. at *9. A trial court has inherent power to correct, modify, vacate, or amend its own rulings, so long as the court does not exceed a statutory time table. Id.; see Awadelkariem v. State, 974 S.W.2d 721, 728 (Tex. Crim. App. 1998) (upholding the trial court=s rescission of its own order granting appellant a new trial). Therefore, the provision in article 42.09, section 1 of the penal code, that a defendant=s sentence Abegins to run on the day it is pronounced@did not preclude the trial court from re-sentencing the defendant on the same day on which he was initially sentenced, so long as the re-sentencing is itself proper. Aguilera, 2005 Tex. Crim. App. LEXIS 957, at *4 n.1. Accordingly, the trial court does have plenary power to change the sentence subject to the enumerated procedural safeguards.

Case law clearly indicates that a trial court has some sort of plenary power to reform a defendant=s sentence. See Aguilera, 2005 Tex. Crim. App. LEXIS 957, at *6-7; Harris v. State, 153 S.W.3d 394, 396 n.4 (Tex. Crim. App. 2005) (noting that trial court could have properly used its plenary power to modify sentence if new sentence was within the same statutory range of punishment); State v. Bates, 889 S.W.2d 306, 309 (Tex. Crim. App. 1994); see also McClinton v. State, 121 S.W.3d 768, 771 (Tex. Crim. App. 2003) (Cochran, J., concurring). This plenary power lasts for at least the first thirty days after sentencing because the trial court has the authority to receive motions, such as a motion for new trial and a motion in arrest of judgment during this time. See Tex. R. App. P. 21 & 22; Aguilera, 2005 Tex. Crim. App. LEXIS 957, at *6-7.

  IV.

In his first issue, appellant argues that a judgment may be altered as long as it does not (1) affect the conviction or acquittal actually rendered by the trial court or jury, or (2) increase the sentence pronounced in open court. Appellant admits that the first criterion is inapplicable in the case at bar, but argues the latter prong prevents the trial court from raising or increasing the sentence after it has been pronounced in open court. Appellant relies in part on Ex parte Madding, 70 S.W.3d 131, 135-36 (Tex. Crim. App. 2002), in which the Texas Court of Criminal Appeals stated 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 [the defendant] leaves the courtroom, the defendant begins serving the sentence imposed.

. . .

To orally pronounce one sentence to a defendant=s face and then to sign a written judgment more than a month later, when the defendant is not present, that embodies an extravagantly different and more severe sentence than the oral sentence, violates any notion of constitutional due process and fair notice. A defendant has a due process legitimate expectation that the sentence he heard orally pronounced in the courtroom is the same sentence that he will be required to serve.

Id.

However, to the extent that Madding could be construed as holding that once the courtroom door closes upon the sentenced person=s back, that person has begun serving his sentence, Aguilera serves to clarify that construction. See Aguilera, 2005 Tex. Crim. App. LEXIS 957, at *7-9 (holding that Aa trial court has the authority to re-sentence a defendant after assessing an initial sentence if the modified sentence is authorized by statute@);see also id. at *15 (Cochran, J., concurring). Another important aspect of Madding was that the defendant was never brought back into open court, much less on the same day as the original sentence, before the written judgment was modified outside his presence and without his knowledge. Madding, 70 S.W.3d at 136. Therefore, to the extent that appellant relies upon Madding for the proposition that he began serving his sentence immediately after the trial court pronounced sentenced, appellant is now incorrect in light of Aguilera. Accordingly, appellant=s first issue is overruled.

  V.

By his second issue, appellant argues that the double jeopardy clauses[4] forbid any increase in a defendant=s sentence once that sentence has been Aexecuted.@ See Ex parte Lange, 85 U.S. 163, 174 (1874); see also United States v. DiFrancesco, 449 U.S. 117, 134 (1980) (commenting that Athe established practice in the federal courts [is] that the sentencing judge may recall the defendant and increase his sentence . . . so long as he has not begun to serve that sentence,@ but once sentence begins to run, double jeopardy forbids the imposition of increased sentence). In Lange, however, the United States Supreme Court specifically noted that the trial court did have constitutional authority to modify the sentence upwards so long as that sentence had not been Aexecuted.@ Lange, 85 U.S. at 174.

Moreover, we find Judge Cochran=s concurring opinion in Aguilera persuasive and on point with regard to this issue:

[a]lthough the Court does not expressly say so, the rule set out in the majority opinion sets the finality of the sentencing process for both upward and downward alterations. A good rule generally works both ways. If a trial judge has authority to decrease a sentence before the defendant begins to serve that sentence-as the majority correctly holds- then surely he has equal authority to increase it if double jeopardy is no bar. As noted [above] double jeopardy is no bar.

Aguilera, 2005 Tex. Crim. App. LEXIS 957, at *21 (Cochran, J., concurring). Therefore, appellant=s second issue on appeal is overruled.

  VI.

We conclude that a trial court has the power to reform a defendant=s sentence so long as this reformation is made in open court before the defendant, occurs within the trial court=s plenary power time-period, and results in a new sentence that conforms to statutory guidelines. This power includes the power to increase the sentence provided that the defendant has not begun to serve the sentence. In this case, appellant was still in the courthouse and had not begun serving his sentence when he was recalled and re-sentenced in open court. As appellant had not begun serving his sentence, the trial court had the authority to modify the sentence upwards. Thus, the modification did not infringe upon appellant=s right not to be subject to double jeopardy.

The judgment of the trial court is affirmed.

Rogelio Valdez,

Chief Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and filed

this 4th day of August, 2005.

[1] No. PD-0024-04, 2005 Tex. Crim. App. LEXIS 957, at *6-7 (Tex. Crim. App. June 22, 2005).

[2] Tex. Pen. Code Ann. ' 22.04(a) (3) (Vernon 2003).

[3] Article I, section 14 of the Texas Constitution provides: ANo person, for the same offense, shall be twice put in jeopardy of life or liberty, nor shall a person be again put upon trial for the same offense, after a verdict of not guilty in a court of competent jurisdiction.@ Tex. Const. art. 1 ' 14.

[4]The two double jeopardy provisions, article I, section 14 of the Texas Constitution, and the Fifth Amendment of the United States Constitution, are conceptually identical. Stephens v. State, 806 S.W.2d 812, 815 (Tex. Crim. App. 1990); Phillips v. State, 787 S.W.2d 391, 393 n. 2 (Tex. Crim. App. 1990). The Double jeopardy clause embodies three essential guarantees: (1) it protects against a successive prosecution for the same offense after acquittal; (2) it protects against a successive prosecution for the same offense after conviction; and (3) it protects against multiple punishments for the Asame offense.@ See Illinois v. Vitale, 447 U.S. 410, 415 (1980); Iglehart v. State, 837 S.W.2d 122, 126-27 (Tex. Crim. App. 1992). Thus, the Double jeopardy clause Aprohibits merely punishing twice, or attempting to punish criminally, for the same offense.@ Helvering v. Mitchell, 303 U.S. 391, 393 (1938). This appeal concerns the third of these double jeopardy protections, that is, whether appellant has received multiple punishments for the same offense.

The court of criminal appeals has held that the Texas Constitution=s double jeopardy protections were Aslightly more expansive@ than the federal constitution's double jeopardy protections when prosecutorial misconduct prompted a defendant to seek a mistrial. See Bauder v. State, 921 S.W.2d 696, 699 (Tex. Crim. App. 1996). However, the Bauder Court did not suggest that (1) the Texas Constitution provides greater protections to defendants urging double jeopardy for multiple punishments of the same offense, or (2) it intended to invalidate previous case law deciding jeopardy in multiple punishments. See Ex parte Gonzalez, 147 S.W.3d 474, 479-80 (Tex. App.BSan Antonio 2004, pet ref=d); Ex parte Pool, 71 S.W.3d 462, 466 (Tex. App.BTyler 2002, no pet.); Ex parte Arenivas, 6 S.W.3d 631, 633 (Tex. App.BEl Paso 1999, no pet); Ex parte Anthony, 931 S.W.2d 664, 667 (Tex. App.BDallas 1996, pet ref=d). Therefore, the Texas Constitution does not afford any different or greater protections than does the United States Constitution for cases regarding multiple punishments for the same offense. See Gonzalez, 147 S.W.3d at 479-80; Pool, 71 S.W.3d at 466; Arenivas, 6 S.W.3d at 633. Because article I, section 14 does not afford greater rights or protection than the Fifth Amendment, we address appellant=s contentions by relying primarily on authority interpreting the federal provision. Arenivas, 6 S.W.3d at 633, n.1; Washington v. State, 946 S.W.2d 912, 913-14 (Tex. App.BAustin 1997, pet. ref=d).