McClinton v. State

768 (Point 34) mitiga-

еnded discretion. The tion improperly definition limits con- McCLINTON, Jr., Appellant, Harold (Point 35) cept mitigation. of The death administered, penalty, presently as vio- v. Eighth

lates Amendment ban The STATE of Texas. against punishment. cruel and unusual No. 587-01. (Point 36) penalty, present- The death as administered, ly violates Texas Con- Appeals Court of Criminal of Texas. ban against stitution’s cruel or unusual punishment.82 10, Dec. rejected

We have addressed and all of before, challenges

these

given us no reason to revisit these deci- twenty-eight sions here.83 Points of error Shearer, Houston, R. for Appel- Scott through thirty-six are overruled. lant. affirm We Marshall, Betty Assistant State’s Attor- court. Paul, ney, Attorney, Matthew Aus- tin, for State. JOHNSON, J., concurring filed a

dissenting opinion. OPINION PRICE, JJ., MEYERS and concurrеd the result. delivered PER opinion was CURIAM.

JOHNSON, J., concurring and Appellant possession was convicted of dissenting. years cocaine and sentenced to twelve respectfully disposition dissent to the days after prison. Twenty his conviction points error through six nineteen for sentencing, judge modified my opinion the reasons stated in in Stan pris- sentence to ten McClinton’s (Tex. State, 177, v. 186-87 defer on. The affirmed.1 to the remainder of Crim.App.2001). As error, points judg I concur in the granted petition We the State’s for dis- ment of the Court. cretionary review to address whether a to reform a de-

trial court has the fendant’s sentence after the defendant has already begun serving the sеntence. We grant have determined that our decision 1680, ed, 1070, paraphrased appellant’s points 146 82. We have 529 U.S. 120 S.Ct. State, convey complaints, (2000); devel- the thrust of his as L.Ed.2d 487 McFarland v. 928 oped argument relating 482, 498-99, in the sections (Tex.Crim.App. S.W.2d 518-21 point Although point each of error. each denied, ‍‌‌‌​‌‌​‌‌‌‌​​‌‌‌​​‌‌​​​​‌‌​​​‌​‌​‌‌‌‌‌​‌‌‌​​​​​​‍1119, 1996), S.Ct. cert. 519 U.S. 117 argued separately, we find convenient State, (1997); 851 Lawton v. 136 L.Ed.2d group discussion of them here. (Tex.Crim.App.1995), 555-60 denied, S.Ct. rt. 519 U.S. ce Feldman, 757; Cannady 83. See S.W.3d at (1996). 136 L.Ed.2d (Tex.Crim.App.), denied, cert. 531 U.S. 121 S.Ct. 1. McClinton v. (2000); L.Ed.2d 80 Ladd v. (Tex.App.-Houston Dist.] [14th (Tex.Crim.App.1999), ni de cert. the failed Therefore, this issue as State the consider improvident. review was certainly appeal. The State file a notice dismissed. petition is court’s appeal the trial right had a COCHRAN, J., concurring a filed under article of the sentence modification opinion. 44.01(a)(2),2 so. In this but it did not do Court, to this respond the State HERVEY, J., dissenting opinion filed a Therein jurisdictional issue. preliminary JOHNSON, J., joined. in which problem. a lies COCHRAN, J., concurring. I. This case is mess. was arrested Appellant re- ground granted

We 19, 1998, jury drug raid. On reads, “Does a trial court view which of cocaine. guilty possession found him power to reform a defendant’s sen- orally day that the trial court On same already be- tence after the defendant has him in to twelve open sentenced In ab- to serve the sentence?” gun Appellant filed a no- years imprisоnment. stract, question easily answered: and the trial Yes, day tice of that same a trial court has the to reform in the amount of court set an bond a defendant’s sentence after the later, $80,000. Twenty days if already begun has to serve the sentence 8, 1998, judge entered a written law.1 such reformation is authorized really order which read: question But that abstract is not docket in this case. The real issue is wheth- issue that the ends appearing to [I]t may, by er a trial court means of a docket by a refor- justice will best be served entry, modify twenty reform a sentence or from 12 herein mation of days original after the sentence had been Department Texas of Cor- yеars court, orally imposed open and whether De- in the Texas rections to any request by do so without record partment of Corrections. parties, without record indication indication in the record There is no object, that the was present State response made in entry docket was statutory authorization. without filed either any motion in the record But we to that be- There is no indication get do State. sentence was that the this new or modified appellant aptly argues cause the jurisdiction orally or that the State pronounced court of lacked to even that motion with- ex- and to resolve the merits of In some instances the trial court has sentencing. Tex.R.App. days in 75 after press statutory modify a sen- authorization to Bates, 22; see, e.g., P. 21 & previously imposed. tence which has been (Tex.Crim.App.1994). The 42.12, example, § of the For under article the trial court question here is not whether trial court Code of Criminal Procedure the act, jurisdiction perform any rather but continuing jurisdiction felony in a case to perform legal authority to whether he had original sentence of im- or reform his reform, modify, change, as- certain act-to place prisonment and a defendant on commu- twenty days after sess a new sentence specified nity supervision under cir- certain original impоsed. sentence had been cumstances. 44.01(a)(2) Clearly plenary a trial court has of the Code 2. Under article Procedure, thirty days at least the first over a case for state is entitled "[t]he Criminal authority sentencing a criminal case after because it has the an order of a court in (or judg- or modifies new trial motion if the order ... arrests to receive motion for period judgment) that time ment.” arrest of within given any opportunity granted to address the trial We review to resolve this unset- law, authority enter such tled area of the an order. but we cannot do so this case.

Appellant points raised three of error appeal, reject- his direсt each of which was II. ed appeals.3 the court of The State did It is well trial court’s established that a file a notice of or raise an oral pronouncement open of a sentence brief, cross-point official in its but it did is imposed. sentence The writ- argue that the trial court’s reformation of “merely entry ten or a docket years sentence from twelve the written declaration and embodiment of ten constituted an unauthorized that oral pronouncement.”8 As we recent- grant of a new trial punishment only. as to ly explained: It contended that the trial court lacked The rationale for that is that the rule jurisdiction to reform its sentenсe within sentence crucial imposition of is the mo- the plenary period requested and affirma- parties physi- ment when all of the are tive relief reimposing original sen- cally present sentencing hearing at the pronounced tence open court. and able to hear respond The Houston of Appeals imposition noted the of sentence. he Once leaves courtroom, procedural problem addressing begins complaint serving imposed.9 State’s the sentence requested which affirma- tive relief when it had “filed neither a Thus, trial a court does not have the notice of nor cross-point raised statutory authority impоse one sentence this appeal.”4 Observing that another then, orally to the defendant and at some had, court of under similar circum- date, different, greater later enter a or stances, complaint, addressed the State’s lesser, sentence his written Houston Court of examined pres- outside defendant’s State’s the State’s contention that the trial court system ence.10 Such a would create havoc: lacked to reform its sentence judge orally pronounce could sen- plenary period.5 within the The court of in open tence court while the defendant appeals then “[w]hile concluded that this is friends, family possible and his vic- law, agree settled area of the we with friends, family tim and his and the our sister court ‘a trial court has prosecutor are all later present, then modi- vacate, inherent or amend alter, fy, or amend that no sentence when ”6 concluded, rulings.’ its own It there- object. one else A present defen- fore, merely that the trial court amended dant serve a ten thought who he was to “ruling” within plenary power its and over- year eventually sentence would discover that, instead, complaint.7 ruled modi- his sentence been (Tex. 3. McClinton v. 38 S.W.3d 747 7. Id. 2001). App.-Houston [14th Dist.] (Tex. parte Madding, 8. Ex S.W.3d

4. 38 S.W.3d at 750. Crim.App.2002); Coffey v. (Tex.Crim.App. Clemmer, (citing 5. Id. ‍‌‌‌​‌‌​‌‌‌‌​​‌‌‌​​‌‌​​​​‌‌​​​‌​‌​‌‌‌‌‌​‌‌‌​​​​​​‍State v. ref’d)). (Tex.App.-Amarillo pet. Exparte Madding, 9. 70 S.W.3d at 135. (citing Id. at 751 Verdin v. (Tex.App.-Tyler pet.)). Id. at 136. of the trial years, would and informed present fied to twelve or the State action, record objected on the could eventually discover the sentence If the timely appeal. court, and filed a years, made in had now open twelve Septem- participant was not years. system modified to ten been Such been not have proceeding, ber 8th would unfair to and to parties would be both appeal a right object its aware of society large. system Such a would under article sentence modification inject uncertainty an intolerable level 44.01(a)(2).13 Does forfeit the State sentencing process рre- would into complain procedure to a right “final” becoming vent from unaware a proceeding that it of or to was had authority until the trial court’s plenary ques- That participate? in which it expired. tion, us is not before interesting, albeit authority A trial court has the inherent for petition nature of given the the State’s alter, modify, rulings, or vacate but discretionary review and the decision authority have the does not inherent appeals. the court of alter, modify, imposed or vacate a sentence did, appeals or rightly The court of in open statutory court without authoriza- address the of the State’s wrongly, merits par- without the presenсe tion and despite that the complaint the fact State ties.11 timely a under did not file 44.01(a)(2) cross-point nor a III. article even ruling a of law concerning question on a happen Did that in this case? Who 44.01(c).14 I Although doubt under article knows. The trial sheet re- court’s docket via a that the “reformation” of a sentence ap- flects that his counsel and is, fact, in a entry ruling on docket 8th, twenty in court on peared September law, authority days after sentence orally imposed, was certainly is a to make such reformation trial judge and that made a docket law. question of entry “reforming” appellant’s sentence.12 no reporter’s proсeed- Judge There is record of I that both Hervey, Like believe take ings appellate may always from that date. If the had been trial and courts George generally 11. See id. and n. 3. O. 14. 43A E. Dix & Robert Dawson, and Texas Practice- Criminal Practice ed.2001), (2d § 43.243 at 544 Procedure pre- showing 12. The numerous docket entries that which Professors Dix and Dawson note stamped trial resets are rubber and read “The 44.01(c) gives extensive article the State an _ person appeared Defendant with cross-appeal rulings, that right legal but counsel_” and those blanks are filled appeals normally address the court should pen. in with docket entries made cross-appeals only if the State is able those hearing sentencing at the trial and i.e., favor, only implement if decision in its stamped are and 19th also rubber retrial, wins and a the defendant counsel, defendant, that state his named court, proceedings is further in the trial some prosecutor present all named were are, according necessary. to Profes- There 8th, September On the same rubber court. Dawson, exceptions to that sors Dix and some pretrial again stamp used. used resets rule, occasionally "will general the State other that I can find in There is no indication even if none is be able to benefit from relief partic- concerning presence the record defendant,” given “a defendant to the because prosecutor September ipation of a 8th. right wrongful trial court to even a has victory without where that can be remedied State, however, never contended Id. important 13. The has n. offending other values.” present participating argue that it was not this is one of State does not that 9. The proceeding. 8th those instances. cognizance illegal appeals’ of an or unauthorized the merits of the court review sentence, trial court’s action. prompting affirming with or without the of decision do, imagine, jurisdiction We I have that our would parties.15 also believe hold- to deсide whether the court of parte Madding two-way in Ex is a com- jurisdiction entertain street. imposed The sentence appel- plaint. But neither the State nor open parties present court with both con- lant has briefed this issue. a written trols over conflicts pronouncement. Regardless with oral may always appellate A trial or circumstances, whether, under certain or unautho illegal notice and correct an authority trial court has the inherent jurisdic rized if it otherwise previously imposed, a sentence recently held in tion over the As we case. authority does not the inherent State,16 has never been Mizell v. “[t]here alter, modify, or vaсate valid sentence anything prevented law that Texas orally imposed solely by means of a later over criminal case court with entry. written or docket correcting illegal an sentence.” noticing from But, course, neither the ten 17 of Here, however, I doubt whether this in this year nor twelve sentences assessed jurisdiction Court has to consider the mer- by law. “illegal” case are or unauthorized ground Ap- its of the State’s for review. pellant appeals that the court did argues of argue that the ten The State does not jurisdiction not have Rather, address the State’s illegal. year sentence itself was about trial court’s “reforma- complaint the trial court position the State’s is that the the jurisdiction, tion” of sentence because power, simply did not have it could have had so chosen. And appealed change origi- authority modify or or Therefore, it goes did not do so. had al- nal because “McClinton sentence 1998, if the sen- argument, ready August court of his accepted it jurisdiction under punishment have to address the State’s tence and suffered Or, had he? complaint, 1998.”18 we do before invalid; J, infra, op. (Hervey, "[s]uch at 775 dissent oned for two months See altering of a attempt the terms ing). belated at ef and void of defendant’s sentence null [is] fect”); S.W.2d Blackwell v. 510 Tex.Crim.App. 16. 119 2003 LEX- S.W.3d (Tex.Crim.App.1974); v. 956 Williams (Tex.Crim.App.2003). IS 715 145 Tex.Crim. (1943); Powell 17. Id. at 806. (Tex.Crim.App. upon long all deal with an increase 18. The State relies line of cases These cases punishment, any held that at not a decrease. Should from this Court which has rule, upon process due tempt modify originally a defendant’s sen same based to reform or considerations, apply punishment jeopardy under tence after he has suffered and double of sen- originally imposed equally to a modification is "null downward sentence Or, See, Hervey suggests, Reynolds, Judge should e.g., pane tence? as void." Ex infra, 1970) (hold entirely? at 777- jettisoned (Tex.Crim.App. it be J., questions dissenting). of (Hervey, beyond the of the court that "it was a current ratio- the last this is a rule without ... to add a cumulation order onto whether jettisoned whether be imposed petitioner had suf nale and thus should sentence after the only prohibiting an original "one-way it is a street” punishment under the sentence fered Brown, “two-way punishment street” ly imposed”); parte All increase in Ex (trial directly (Tex.Crim.App.1972) prohibiting are not court's modification by the making cumula before us and have not been briefed resentencing order sentences parties. impris entered after defendant had been tive HERVEY, J., too, dissenting which That, tell record. is hard to from this JOHNSON, J., joined. usually “accepted The term his sentence” in which a defen- describes situation I I would decide respectfully dissent. he appeal dant does not file an because that, jurisdiction, a trial plenary appeal down) his expressly right either waives may (up or a defen modify court appeal or fails file notice within the trial court has dant’s sentence that Here, imposed and that modifica previously this statutory appellant time frame.19 of law” “ruling is not a tion very day on the did file 44.01(c), of Article purposes Tex.Code. he was sentenced so cannot be said would, however, I also decide Furthermore, CRiM.PROc1 “accepted” he his sentence. that a so tell cannot from this record whether after a has filed party defendant’s sentence sеn- appellant actually began serving his appeal. a notice 19th, he was August tence date jury appellant A possessing convicted sentenced, originally because grams cocaine. between four and an time judge set bond the same 19, 1998, the trial court sen- On appellant his notice appeal.20 filed prison tenced twelve sum, In record this insuffi- case is agreement pursuant an between adequately pre- cient to address either the day prosecution appellant. That same liminary jurisdictional real question or the an in the the trial court set bond Thus, issue this is although case. $30,000, judg- signed amount of an unsettled area which de- law ment which rеflected clarification, serves in reluctantly concur “12 years Appellant also filed of TDC.” the court’s of petition dismissal this appeal day. day notice of that The next on discretionary review as improvidently was August appellant apparently granted. released on bond.2 parte Reynolds, appellant 19. See Ex that S.W.2d seem a rational inference jail in which stated: spent night this Court between one his sen- bond, tencing appeal execution of the 42.09, V.A.C.C.P.,provides Article that Furthermore, does but this is far clear. from begin day run sentence shall on the serving day year one a twelve sentence of pronounced ap- same is where no cases automatically rigidly cut off a defendant's peal express- is taken. Petitioner claims he request right modification or reformation intentions, ly inquired the court as of to its were of his sentence if such modification sentences, accepted gave the concurrent by law? otherwise authorized appeal notice of and commenced ser- vice of order of such sentences before the 44.01(c) appeal 1. entitles the state to Article was entered. cumulation ruling question of law "a on a if the 622, 623- See also Tenon v. judg- case and is convicted in the (defendant (Tex.Crim.App.1978) “waived ment.” filing appeal ready ac- notice of was sentence”); cept Goss 161 Tex.Crim. clearly record does not reflect whether 2. The 37, 39, (1955) (noting appellant August on was released bond on "[a]ppellant appeal did his first con- that con- supplemental 1998. The clerk’s record sentence”). accepted but his viction of document from tains an affidavit surrender supplemental May appellant's A Clerk’s bail bondsman dated Record contains 1999, surrendering appellant’s appearance bondsman's which indi- affidavit surrender that executed on bond that the affidavit states was executed cates bond was 20, 1998, August August The affidavit further states but that nine months after being appellant's appearance was appellant he was bond filed his jail appellant again felony drug charge was in the a new because surrendered $100,000. county jail charged delivering with a con- bond in that case was It would 8, 1998, September

On the trial court The the first time State claimed for discretionary petition its review modified its judgment 19th to re- modify appellant’s trial court could not appellant’s duce sentence from twelve to already be- because years.3 ‍‌‌‌​‌‌​‌‌‌‌​​‌‌‌​​‌‌​​​​‌‌​​​‌​‌​‌‌‌‌‌​‌‌‌​​​​​​‍ten The record is silent on the gun to serve his sentence.5 We exercised reason for except for a notation in the our address this discretionary authority to trial 8th modification clаim. stating justice order that “the ends of will

best be served a reformation of Appellant the trial court claims that ap 12 years herein from in the Tex- could to decrease pellant’s increase it. Department as sentence but not to Corrections to 10 claim Appellant jurisdictional also in the makes Department Texas of Corrections.” that the should not have Appeals Court of Appellant raised three of error in points challenge even to the addressed the State’s his direct of Appeals. appellant’s trial sen court’s modification See McClinton v. “appeal” in the tence because the State’s (Tex.App.-Houston [14th Dist.] not authorized Court of 2001). None of points challenged these any provision in Article 44.01. appellant’s court’s modification of jurisdictional respond does not to this sentence. The appellate State’s brief re claim address. See State v. which we must sponded points to these and also contained Roberts, (Tex.Cr.App. a section entitled “Modification Judg 1996) (issue is “fundamental ment and Sentence” which the State on oth ignored”), and cannot be overruled claimed that the trial court’s modification Medrano, grounds, er State v. sentence constituted a new 892, (Tex.Cr.App.2002). punishment as to the phase of the clear, Though appears wаs, therefore, trial and “void.”4 The position along all has been that State requested the Court of Appeals to appeal pursuant file an have to judgment by reform the trial court’s delet any provision present 44.01 to Article modifying the trial court’s order appel could the issue of whether the trial court lant’s sentence. The Court of modify because the appellant’s sentence

treated the Judgment “Modification of issue State could obtain review of this Sentence” section in the State’s brief as a appellate court has under the rule that “an 44.01(c) Appeal” “State’s under Article “make authority judgment” a reform decided that power the trial court “had the the truth when the mat speak record the to modify its sentence within the time of by any ter attention has been called to its McClinton, plenary its power.” State, 38 source.” 830 S.W.2d See French v. (court 607, S.W.3d at (Emphasis Original). ap 751. (Tex.Cr.App.1992) that, trolled substance offense. Neither of the 5. The when the trial State’s brief asserts appellant filed briefs here assert that was re- appellant’s court on 8th modified August leased on bond on sentence, August appellant already 19th had August punishment 19th suffered under the 44.01(a)(2), Tex.CodeCrim.Proc., 3. Article enti- already sentence because "had ac- tles the State to a trial court’s order cepted” August Statе his 19th sentence. The judgment." that "modifies a say exactly appellant "had al- does not how ready accepted” sentence. 19th Hight, 4. See State v. (trial (Tex.Cr.App.1995) grant court cannot trial). punishment phase new trial as to range punish statutory permissible motion to the peals properly granted State’s is, therefore, authorized law. ment and reform to include trial jury’s deadly weapon the affirmative find So, illegal, is it if sentence appellant’s State, Asberry v. ing); must no law authorized be because (en ref'd) (Tex.App.-Dallas pet. modify question upon The trial court to it. Tex.R.App.PROC. (court banc); ap 43.6 is, therefore, granted which we review any peals mаy appropriate make order discretionary on review properly presented that the law and the nature of the case since it is relevant whether rule, however, require). does not ap This Appeals on its own could addressed ply “speak here does appellant’s because record of whether modified issue clearly truthfully illegal It re an Mi truth.” sentence is sentence. See zell, at flects the trial The what court did. issue trial do

of whether the court could is The claims this Court’s deci- State subject to an Rule 43.6. application of sions in v. and Powell v. Williams State proposition generally for stand It has suggested been trial court cаnnot a defen- of appellant’s court’s modification sentence has dant’s once the defendant sentence 44.01(c), is, purposes ruling for of Article it. v. begun to serve See Williams question jurisdictional of law on a on Tex.Crim. But, point. sen- modifying (1943) (trial powerless change court tence, court ruling made respect” “in substantial 44.01(c) And, any question of law. Article pun- when accused “has suffered some literally provide does an thereof’); a result Powell ishment as even on jurisdictional the ab- point 513, 63 124 Tex.Crim. ruling sence of law.6 (1933). however, Powell, states the decided, recently We have ap under an rule to be:

plication of our “void” jurisprud sentence It establishеd seems to be well ence,7 appellate that an on its that a court authorities other states own, illegal “rectify notice an sentence and correct, revise, has vacate that error.” See Mizell v. the term of the imposed during sentence (Tex.Cr.App. 5.W.3d had court in which conviction was illegal sentence Mizell was because original before fell statutory permissible outside the un- gone operation action into was, therefore, range of punishment power and after the Regarding der such it. Mizell, by gone operation, law. at into unauthorized See sentence has sentence, however, in the notes in general rule is set forth Aрpellant’s falls within is, therefore, therefore, probation by or unnecessary It to decide unauthorized law overruled, sentence), case illegal part, whether the must file der was an appeal ruling Williams, of law (Tex.Cr. parte 656 Ex State, 44.01(c). Malley v. 9 under Article See (unauthorized App.2001) probation or by law 925, 2000) (Tex.App.-Beaumont 927 sentence); illegal der an but see For was not (holding the state file notice must 364, (Tex.Cr. tune 371 perfect under Article J., (criticiz (Campbell, dissenting) App.1988) 44.01(c)). analysis lack of and the Court’s occasional "void” before to that talismanic label resort 335, 7. See Heath v. 339 eventually "everything quakes and which (sentences (op. (Tex.Cr.App.1991) reh’g) earth”). tumbles to "void,” illegal law not authorized are ‍‌‌‌​‌‌​‌‌‌‌​​‌‌‌​​‌‌​​​​‌‌​​​‌​‌​‌‌‌‌‌​‌‌‌​​​​​​‍(Annotated) A.L.R. at page as fol- (emphasis supplied). Lange also decided lows: “It seems to be well established that the defendant had been “twice pun- that a trial court power is without to set ished for the same offense” in violation of aside a sentence after the defendant has jeopardy double principles. See Lange, thereunder, been committed impose 878; L.Ed. at Lange, but see 21 L.Ed. at a new or increasing different sentence (Clifford, (double J., 886-87 dissenting) punishment, even at the same term jeopardy clause enlarged “cannot now be at which original sentence was im- help predеtermined out a judi- unsound posed. A judgment which attempts to conclusion”); Busic, cial United States v. void, do so is original and the (3rd 639 F.2d 946 fns Cir. remains force.” Powell, See (emphasis Lange is factually different from this supplied).8 case and cases like Powell because the Williams primarily relied on this fully in Lange defendant served one Court’s decision in Turner v. 116 of the applica- sentences authorized (1930). Tex.Crim. 31 S.W.2d 809 Both Lange ble statute and also because Turner, Powell and as well as the ALR down) altering (up involve a defendant’s Powell, article9 referred to relied heavi- Busic, sentence. See 639 F.2d at 949. ly on the United Supreme States Court’s Powell, therefore, Cases rely like erred to dеcision in parte Lange, Ex 18 Wall. on Lange they adopted for the rule that (1874). 85 U.S. 21 L.Ed. 872 Lange, applied. Lange simply applica- therefore, appears to be genesis of the tion to cases like this. rule that applies State claims here. did, And even if it the United States In Lange, the trial court’s im- Supreme United States v. Di- posed on the defendant a im- sentence of recognized Lange Francesco never prisonment fine, year one and a but the stated the principle that a “trial court applicable statute only authorized one of not increase a sentence” the same these two punishments. Lange, See court session evеn “if the defendant has L.Ed. at 875-76. The paid begun service of his sentence.” See Unit- later, fíne. See id. Five days DiFrancesco, 117,101 ed States v. 449 U.S. court vacated original judgment (1980) S.Ct. 66 L.Ed.2d signed another order resentencing the de- Busic, (emphasis original); see also fendant to imprisonment year. for one (discussing F.2d at 949 the discredited See id. The Supreme Court decided that decision). Lange DiFrancesco confined fully when the defendant “had suffered Lange Lange’s “specific context” and one of the alternative punishments recognized also him, jeopardy prin- which alone double subjected the law ciples of the punish necessarily prohibit court to further do not a trial gone.” Lange, L.Ed. at 878-79 court increasing from a defendant’s sen- would, therefore, It that Powell’s appear punishment.” defendant "has suffered some Williams, literally rule See apply does not here since the 170 S.W.2d at 486. trial court modified its to decrease Powell, appellant's See 9. See Power sentence. to Set Aside Sentence of Commitment, at that Williams appear 713. It would also 44 A.L.R. 1203-1210 after (1926) (trial effectively "increasing punish- read the power the court without to set aside language ment” out of the Powell rule by a sentence after defendant has been commit- stating "change that the trial court impose cannot the ted thereunder and a new or different any respect” increasing punishment). substantial once the the

777 DiFrancesco, diminished, if maximum had 101 the 449 U.S. tence. (stating If L.Ed.2d at in the first instance? S.Ct. been reached holding susceptible is of Lange reconsidered, the “not de pronounced it to be application” limiting Lange and to general novo; power, it is within the same and context). specific its it. It is to increase or decrease exactly, to in which imagine times difficult Finally, the A.L.R. article cited Pow- (for despotic and might the that a trial court the rule thus become proposition ell sentence af- cannot increase defendant’s oppressive. most it) has to begun ter serve original) in italics in (Emphasis See id. holding that a contains collection cases added). (Emphasis in bold trial court can decrease a defendant’s sen- sup and Powell were Since Williams 44 A.L.R. 1210-11. This tence. See at under ported by Lange which has been article also contains a collection cases DiFrancesco, then and by mined Williams holding that a trial court cannot decrease be Awadel Powell should overruled. See (or increase) a defendant’s sentence be- (Tex. kariem v. power cause trial court’s to decrease a (one consideration in decid Cr.App.1998) defendant’s sentence would also include is when precedent whether overrule increase power potentially it which “con under consideration precedent be “despotic oppressive.” could most flicts a newer decision that is found with See id. reasoned”). soundly never Lange be more think, doubted, It cannot be that the cases, supported applied the rule these claimed, might practice although it be DiFrancesco, anyway. See 449 U.S. great judge, relief to mind ‍‌‌‌​‌‌​‌‌‌‌​​‌‌‌​​‌‌​​​​‌‌​​​‌​‌​‌‌‌‌‌​‌‌‌​​​​​​‍of Busic, 347; at L.Ed.2d S.Ct. great would to a extent be destructive that, at 949. I hold since 639 F.2d would objects one of of punishment, name- so, a ly, prohibits doing it from reformation the offender. Let statute down) it may be understood that he have may modify (up trial portion of any day his sentence remitted so originally imposed sentence that has judge, he will his occupy thoughts long falls within as the modified sentence with the expectation, daily hourly, range. statutory permissible and scheme and labor for the result. In this, there re- Notwithstanding all mind such state of reformation would jurisdictional that nei- another issue mains question. be out His term of ther which also must party raised but punishment always would be an uncer- involves the trial be addressed. That issue tainty fraught A practice him. with modify court’s scarcely such results could its ori- filed notice sentence after gin expe- amount of considerable recognized that trial appeal. We have convicts, dealing rience in with “to set powers change, have broad courts ought regarded argument to be as an judg- aside or otherwise control their altogether.... against its existence during jurisdiction. plenary ments” their difficulty There is still another in the See, Johnson, e.g., State way, and that is not removed (citing favor (Tex.Cr.App.1991) with assumption that would never occur. Eichelberger, Eichelberger v. found, might Bad or men weak be to set Awadelkariem, (Tex.1979); 398-99 made; presumption aside such a if J., (Meyers, concur- is, if re- a sentence be execution, why ring)). The considered under in this falls appellant’s be as well as case increased

those broad But powers. powers these

are limited party after a files

appeal. See I id. would decide that the appellant’s court could not modify

sentence after appellant filed his notice of

appeal. See id. This does mean

appellant’s “void,” modified sentence is

simply juris- means that the trial court lost

diction to appellant’s sentence once

appellant filed notice of appeal. would, therefore, reform the trial delete

modified I respectfully sentence. dissent.

Gary HAMPTON, Appellant, Texas, Appellee. STATE

No. 03-02-00470-CR. Texas,

Court of

Austin.

8,May

Discretionary Review Refused

Oct.

Case Details

Case Name: McClinton v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Dec 10, 2003

Citation: 121 S.W.3d 768

Docket Number: 587-01

Court Abbreviation: Tex. Crim. App.