*1 ag pleaded guilty to in which defendant Texas, Appellant, The of STATE deadly weapon, with a
gravated assault be as ele could used that conduct same also serve basis for as ment of offense DAVIS, Appellee. Caleb State, Martinez finding); deadly weapon (Tex.App.-Fort Worth No. 04-09-00694-CR. ref'd) deadly (explaining that pet. Texas, Court of of generally “refer weapon finding statutes making no San Antonio. felony, exception a trial of a deadly the use felonies where of those 3, 2010. Nov. an el constitutes essential weapon finding offense”); see also Jones Review Granted Discretionary ement of the 14-03-00650-CR, 2005 WL No. Feb. (Tex.App.-Houston [14th at *10 — 11 ref'd) (not des March Dist.]
ignated op.) (holding mem. same pub.; as offense be used element of
conduct can a deadly weap basis for serve as also 42.12, under article section finding that to other
3g(a)(2) explaining hold unambiguous
wise “conflict with would 42.12, 3g(a)(2)”). section
language of article of these agree reasoning
We with supports conduct
courts. same can
an of an offense also serve element Here, weapon deadly finding. starting of fire that
appellant’s conduct supports bodily injury both
resulted first-degree
conviction for the offense deadly weapon
arson and the
finding. two appellant’s
We overrule issues.
Conclusion of the trial
We affirm
court.
posed original sentence. appeal The is premised on the State’s contention that the motion for reconsideration or reduction in sentence filed appellee, Davis, Caleb was untimely and cannot be construed aas motion for new trial or motion in arrest of judgment. Because we conclude that timely Davis’s motion for reconsideration is the of a motion for new we affirm the trial court’s judgment. pled Davis guilty to burglary with intent to aggravated commit assault. On 14, 2009, September the trial court im posed a sentence of years fifteen confine 6, 2009, ment. On October Davis a filed motion for reconsideration or reduction of sentence. On October the trial signed court an order granting Davis’s mo tion and reducing the sentence to twelve years confinement. The trial court signed a second imposing the twelve- Marshall, Cleophus Law, Attorney at year sentence on October 2009.1 Moore, Angela Defender, J. Chief Public “[A] retains plenary Antonio, TX,
San for Appellant. power modify its sentence if a motion Mary Welsh, Beth Assistant Criminal for new trial or motion in judg arrest of Antonio, TX, District Attorney, San ment is days filed within 30 of sentenc Appellee. ing.” 697-98 (Tex.Crim.App.2005). Although Sitting: STONE, CATHERINE Chief the State contends in its brief that Davis’s Justice, MARION, SANDEE BRYAN motion for reconsideration or reduction of Justice, HILBIG, STEVEN C. Justice.
sentence was untimely filed thirty-two days after the trial court imposed the orig OPINION sentence, inal the file stamp on the motion Opinion by: STONE, CATHERINE for reconsideration or reduction of sen Chief Justice. tence contained in a supplemental clerk’s The presented sole issue in this is record ordered this court reflects that whether the trial court erred in modifying 6, 2009, the motion was filed on October of conviction and sentence within thirty days of the original date the thirty-five days after the trial court im- footnote, imposed. was In a dissenting opinion 1. The asserts the cause 2. The seventy-five days trial court has to rule imposition should be remanded for the timely on a filed motion for new trial. Tex. sentence because no sentence has been im- 21.8(a). P. posed. ignores This assertion that the trial signed judgment court on October 19, 2009, imposing twelve-year contends motion can State also argues that Davis’s State also “void” because a motion for is liberally construed as not be open motion is sentence “was modified disagree. Davis’s new trial. We *3 statutory without authorization indistinguishable from a mo and was functionally trial; therefore, presence parties.” the the trial court and without tion for State, v. Davis’s The State cites 121 power modify to McClinton plenary retained 768, (Tex.Crim.App.2003), 771 as Savage, State v. 933 S.W.2d S.W.3d sentence. See 497, (holding majority re for its contention. (Tex.Crim.App.1996) 499 McClinton, however, in and the court dis past can look labels viewing court State’s for judgment petition non missed the discretion granting motion for order improvidently granted. as Id. equiva ary functional review obstante veredicto was citation, trial, From State’s it thereby of new allow at 768-69. the granting lent of Evans, relying Judge 843 the appeal); appears to v. State is ing State State 576, in concurring opinion 577-78 McClinton S.W.2d Cochran’s authority.3 made Despite motion to or reconsider as statements (holding withdraw opin concurring a in her plea aptly by Judge more have been called Cochran should however, McClinton, in the granting for new trial order ion Texas motion and has held that functionally indistinguishable was Court of Criminal motion at the granting thereby the absence of the defendant time from order a new does appeal); Boyd, State to trial court modifies a sentence not allowing 2006, 393, parte 400 in a void See Ex (Tex.App.-Dallas judgment. 202 S.W.3d result (Tex.Crim. 'd) 131, pet. (citing Madding, authorities al 70 S.W.3d 136 ref numerous reviewing past (holding judgment labels written modi lowing App.2002) courts to look to sentence the defendant’s allowing grant fying State order outside mistrial); pronouncement oral ing presence motion for Padilla cf. (Tex.1995) void, LaFrance, 454, not but reversible because 907 S.W.2d 458 was was was (holding right process motion for was defendant’s to due vio reconsideration lated); modify of a art. equivalent motion to Ann. Tex.Code Proc. Crim. 1(a) (Vernon 2009) 42.03, plena (requiring § sen judgment and extended Products, pronounced in ry Dayco Inc. v. Ebra tence to be defendant’s power); him, 80, brief, In its the State contends (Tex.App.-Tyler presence). 10 S.W.3d 83 pet.) (noting no for reconsid that the modification of the sentence made for new void. The State does not eration is to a motion trial); rights Park its were Corp. process IPM Products v. Motor assert due (Tex. Realty, procedure 960 882 violated way S.W.2d (same). modify judgment.4 Paso no used to Brown App.-El pet.) concurring statutory orally opinion, Judge authority or discretion to In her Cochran stated, pronounce one sentence in front of the defen- "a trial court not have the statu- does dant, authority impose but enter different sentence tory one sentence date, then, written outside the defendant’s to the defendant and at some later different, lesser, presence.” 70 at 136. greater sentence in enter or the defendant’s his written outside McClinton, issue, any process presence.” potential due or State's 121 S.W.3d 4. Pertinent J., (Cochran, Judge concurring). that Davis in his brief that his at 770 we note states parte Madding, contains a Cochran cites Ex 70 S.W.3d Motion Reconsideration certifi- service, reflecting (Tex.Crim.App.2002), support for of service thus as cate assertion; notice, however, signed Madding, parte to the The trial court her in Ex State. stated, modifying days ten the court “A does not have the order the sentence Background State, (Tex.App.- 163 S.W.3d ref'd) (due process com Dallas 6, 2009, On October thirty and within appellate court plaint properly before days of his sentencing, Caleb Davis sought in briefing); where issue not asserted modify year a fifteen imposed 7, 23 King (Tex.App. by the trial court. Davis filed a document ref'd) (due 2000, pet. Houston Dist.] [14th entitled “Motion Reconsideration or process complaint where brief con waived Reduction of Sentence.” Apparently with- only tained abstract assertion that due out conducting hearing, the trial court process argu were without rights violated granted the motion written order dated contention). analysis *4 ment or to 16, order, October In 2009. its the trial Moreover, the State would not have stand court and “reduced reformed” the sen- ing procedure to assert that the used tence to years prison. twelve Davis’s, the due process trial court violated rights. See Warfield gave proper State notice of 1998, (Tex.App.-San 272 Antonio and argues now the trial court was without ref'd) (noting general standing rule that a authority to the grant motion. The State litigant cannot base its own on the claim contends the trial court could alter the legal rights par another interests of it, began serving once Davis Cruzata, ty); Ex parte see also 220 S.W.3d relies on decided the cases before 2007 (habeas (Tex.Crim.App.2007) ap 520 the Appel amendments to Texas Rules of plicant’s complaint trial regarding court late Procedure that allow trial courts to increasing pronounc sentence after grant new punishment. motions for trial on ing cognizable lesser sentence not since See, e.g. S.W.3d nothing prevented applicant appeal from (trial court has ing asserting the it sentence and was im plenary power- modify to if sentence modi direct proper appeal). on Because Davis fication day made on same as assess filed a a motion for to ment of the initial sentence and before the new trial of his thirty days within sentenc court adjourns for the State day); ing, authority the trial court had the to Hight, 907 847 (Tex.Crim.App. S.W.2d sentence, modify Davis’s and the State’s 1995) (trial does authority court not havé contention that the trial court’s grant to punishment only). new trial as to parte is void overruled. Ex is See Mad Currently, permit judge our rules the trial ding, 70 at 136. grant trial punishment. a new on R.App. 21.1(b) (“New affirm on judgment. pun the trial P. trial
We court’s Tex. hearing pun ishment means a new Dissenting Opinion by: STEVEN C. stage ishment a criminal of action HILBIG, Justice. has, motion, on the defendant’s I Although agree the trial court had the set aside an punishment assessment of sentence, authority modify Appellee’s without verdict setting finding aside or of R.App. guilt.”); (listing this case be remanded to the trial P. should 21.3 Tex. sentencing proceedings. grounds Be- for which defendant must “[t]he so, majority opinion granted cause the fails to do I be trial a new or a new RApp. (“a 21.9(a) respectfully punishment.”); dissent. P. Tex. notice, ing 10-day period. after the State received and the State that objected requested hearing neither nor dur- pun only a trial on grant court must SANCHEZ, Appellant Ivan William that ground found a it has
ishment when punish of the assessment only affected ment.”) the State asserts Although Texas, Appellee. The STATE of liberal not be by Davis should
motion filed trial, it a motion for new ly construed as No. 04-09-00605-CR. judge, of trial appears the actions motion, Texas, an assess “set aside granting of San Antonio. Court setting aside punishment without ment of Nov. 2010. guilt.” See Tex. verdict of finding or 21.1(b). majori agree I P. with Discretionary Review Granted its reasoning conclusion ty’s March set aside judge authority had the original its the ma-
My arises because disagreement *5 of the
jority simply affirms motion as a court. If the is construed
trial punishment, trial on new merely parties
granting of it returns Davis has been found point where imposed. but sentence has been
guilty, no (“Granting P. 21.9
See Tex. case to its punishment restores the
trial on was found the defendant
position impose judge must still
guilty.”) The State, 108 Thompson
a sentence. (de- but felony charges two
fendant tried on only on one sentenced
count, reflecting thirty- written proper; counts not
year sentence on both judgment” on count
there was no “valid orally pronounced). never
where sentence felony pronounced
A must be defendant, attor- presence attorney State.
ney, Tex. 1(a) § Ann. art. 42.03
Code Crim. Proc.
(West 2010); 165 S.W.3d at sen- properly
Because Davis has been
tenced, not a there is valid case should be remanded
affirm. The proper imposition
the trial court for