Jamaal Clarence Staten v. The State of Texas--Appeal from Criminal District Court of Jefferson County
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In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-09-00490-CR
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JAMAAL CLARENCE STATEN, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the Criminal District Court
Jefferson County, Texas
Trial Cause No. 99797
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MEMORANDUM OPINION
Jamaal Clarence Staten appeals from the trial court’s revocation of his deferred
adjudication in a case in which Staten had originally been charged with possessing
marijuana. After revoking Staten’s community supervision, the trial court sentenced him
in absentia. We abate this appeal and remand it to the trial court to pronounce sentence in
Staten’s presence.
Background
After reaching a plea bargain agreement, Staten pled “no contest” to possession of
marijuana. After the trial court found the evidence sufficient to find Staten guilty, it
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deferred further proceedings, placed Staten on community supervision for two years, and
assessed a fine of $500.
Subsequently, the State filed a motion to revoke Staten’s unadjudicated
community supervision, alleging that Staten had violated a condition of his community
supervision by committing another offense.1 When the trial court conducted the
revocation hearing, Staten failed to appear. In Staten’s absence, the trial court conducted
the hearing, found that Staten had violated a condition of his community supervision,
found him guilty of possessing marijuana, and then proceeded to assess Staten’s
punishment at two years of confinement.
Staten contends in his first issue that the trial court violated his constitutional and
statutory rights to due process and fundamental fairness by proceeding in his absence to
revoke his community supervision. In his second issue, Staten contends that the evidence
was insufficient to revoke his community supervision and to adjudicate his guilt.
The State acknowledges that Staten was sentenced in absentia. However, the State
asserts that Staten “obstreperously refused to be present at the proceedings despite proper
notice[.]” The State concludes that because Staten “created his absence in court through
his own conduct[,]” he “should not be allowed to benefit thereby on appeal.”
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In appellate cause number 09-09-00491-CR, Staten appeals his conviction for
aggravated assault, which is the offense he is alleged to have committed that the State
used to prove that Staten violated a condition of his community supervision. We address
that appeal in a separate opinion. However, as the trial court heard the State’s motion to
revoke on the same day Staten’s aggravated assault trial ended, we took judicial notice of
the appellate record in cause number 09-09-00491-CR for purposes of this appeal. See
TEX. R. EVID. 201.
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Jurisdiction
Although neither party raises this issue on appeal, we must determine whether the
trial court’s pronouncement of Staten’s sentence without his presence deprives this Court
of jurisdiction. See State v. Roberts, 940 S.W.2d 655, 657 (Tex. Crim. App. 1996),
overruled on other ground by State v. Medrano, 67 S.W.3d 892, 894 (Tex. Crim. App.
2002) (holding that jurisdiction is fundamental and that each court may sua sponte
address the issue); see also TEX. CODE CRIM. PROC. ANN. art. 42.03 § 1(a) (Vernon Supp.
2009) (requiring that the trial court pronounce the defendant’s sentence in the presence of
the defendant).
Several courts have considered whether the defendant’s absence at his sentencing
hearing deprives an appellate court of jurisdiction to review the trial court’s sentence in
circumstances like those present here. In Meachum v. State, the Fourteenth Court of
Appeals discussed whether the defendant’s absence at his sentencing hearing deprived it
of jurisdiction over Meachum’s appeal. 273 S.W.3d 803 (Tex. App.–Houston [14th Dist.]
2008, no pet.). The Meachum Court first noted that “[a] criminal sentence is a
prerequisite to appellate jurisdiction.” Id. at 804 (citing Casias v. State, 503 S.W.2d 262,
265 (Tex. Crim. App. 1973)). The Meachum Court concluded that for an appellate court
to extend appellate jurisdiction over a criminal appeal, “the defendant must be sentenced
as defined under the Code of Criminal Procedure.” Id. Additionally, we note that the
Meachum Court considered whether the 1981 amendments to the Code of Criminal
Procedure, which moved the requirement of pronouncing sentence in the defendant’s
presence from article 42.02 to article 42.03, made the oral pronouncement of sentence in
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defendant’s absence non-jurisdictional error. Id. at 804-05; see also Act of June 1, 1981,
67th Leg., R.S., ch. 291, §§ 112, 113, 1981 Tex. Gen. Laws 761, 809. However, after
considering the argument that the error had not deprived it of jurisdiction, the Meachum
Court concluded that “we lack jurisdiction over appellant’s appeal based on the trial
court’s failure to pronounce the sentence in appellant’s presence.”
Meachum, 273
S.W.3d at 806.
In Casias, an opinion by the Court of Criminal Appeals decided prior to the 1981
amendments that were considered in Meachum, the Court likewise concluded that the
pronouncement of sentence in the defendant’s absence deprived the appellate court of
jurisdiction to review the defendant’s appeal. 503 S.W.2d at 264-65 (applying the
definition of “sentence” found in the then current article 42.02 of the Code of Criminal
Procedure, which required pronouncing the sentence in the presence of the defendant).
In previous opinions, this Court has concluded that the oral pronouncement of
sentence in the defendant’s presence is required in order to vest jurisdiction with us for
purposes of the defendant’s appeal. See Wagstaff v. State, No. 09-06-162-CR, 2007 Tex.
App. LEXIS 6464, at *7 (Tex. App.–Beaumont May 11, 2007, no pet.) (abating and
remanding case to trial court to allow for sentencing in the presence of the defendant
where an indeterminate sentence was given in open court). We conclude that we lack
jurisdiction over Staten’s appeal because the trial court failed to pronounce his sentence
in his presence.
In light of the jurisdictional hurdle created by the trial court’s failure to pronounce
Staten’s sentence in his presence, we now consider the proper disposition of Staten’s
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appeal. 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. Staten’s absence from the sentencing hearing can be corrected by the trial
court pronouncing its sentence with Staten present. Accordingly, we abate this appeal and
remand the cause to the trial court to allow the trial court to pronounce its sentence in
open court and with Staten present. See Meachum, 273 S.W.3d at 806 (discussing
abatement as a proper and efficient remedy) (citing TEX. R. APP. P. 44.4; Thompson v.
State, 108 S.W.3d 287, 290-91 (Tex. Crim. App. 2003)).
Conclusion
We abate the appeal and remand the cause to the trial court. Upon remand, the trial
court shall cause notice of a hearing to be given and, thereafter, pronounce the sentence
in Staten’s presence. A court reporter’s record of the sentencing shall be prepared and
filed in the record of this appeal, together with a supplemental clerk’s record containing
the trial court’s judgment. The appeal will be reinstated when the supplemental records
are filed. Upon reinstatement, this Court will consider the merits of the issues raised in
Staten’s brief.
APPEAL ABATED AND CAUSE REMANDED.
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HOLLIS HORTON
Justice
Submitted on June 16, 2010
Opinion Delivered July 7, 2010
Do Not Publish
Before McKeithen, C.J., Kreger and Horton, JJ.
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