NO. 07-11-0276-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
NOVEMBER 2, 2012
CHRISTOPHER ALDRIDGE,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_____________________________
FROM THE 21st DISTRICT COURT OF BASTROP COUNTY;
NO. 10,874; HON. CHRISTOPHER D. DUGGAN, PRESIDING
Memorandum Opinion
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
Christopher Aldridge appeals from a judgment revoking his community
supervision and sentencing him to five years imprisonment. Upon concluding that
appellant had violated one or more conditions of his probation, the trial court scheduled
sentencing for April 8, 2011, and on that date stated, in open court, it would reduce the
prison term from ten years to three. This led to appellant asking if he could start his
probation over and conversing with the court about those matters. After that
conversation, the trial court said, in open court: “. . . What I’m going to do is postpone
formal sentencing because we’re going to have to figure out how much, exactly, time
you have. So I am not going to put you in custody right now.” (Emphasis added). On
May 6, 2011, another hearing was held on the issue of punishment. Therein, the trial
court stated that though it had yet to formally sentence appellant, it would grant its own
motion for new trial to reconsider punishment. Appellant’s objection to that was
overruled. Thereafter, the State proffered the evidence it had presented during the April
8 hearing while appellant did likewise (though he excluded his own testimony from the
proffer). The court then sentenced appellant to five years imprisonment. Appellant
appealed. We affirm.
The two issues raised by appellant have a common foundation. It concerns
whether the trial court actually pronounuced its sentence on April 8. If it did, then the
court allegedly 1) erred by granting, sua sponte, a new trial solely on punishment, and
2) violated appellant’s double jeopardy rights. Both issues are overruled.
While the trial court disclosed that it was going to sentence appellant to a three-
year term of imprisonment at the April 8 hearing, it expressly postponed “formal
sentencing” until a later date. This situation likens to that in Riles v. State, 216 S.W.3d
836 (Tex. App.–Houston [1st Dist.] 2006, no pet.). There, the trial court announced that
it “sentences you [appellant] to five years in TDC.” Id. at 837. After that, the appellant
requested permission to surrender himself the next day. The court agreed but
responded, “If you don’t show up I haven’t finalized this five years yet and I’m going to
double it.” Id. Needless to say, the appellant did not show up the next day, and the trial
court increased his punishment. In assessing whether double jeopardy restrictions had
been transgressed, the appellate court first noted that a trial court has the power to
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modify its sentence as long as it is done on the same day as the assessment of the
initial sentence and before it adjourns. Id. at 838, quoting State v. Aguilera, 165 S.W.3d
695, 698 (Tex. Crim. App. 2005). Then, it concluded that if the trial court initially
pronounced sentence, its ensuing comment about the sentence not yet being finalized
had the effect of vacating or setting aside the pronouncement; so, Riles had yet to begin
serving a sentence for purposes of double jeopardy. Id. at 839. We see logic in its
conclusion. The entirety of the hearing should be considered in assessing what was
done at the hearing, not simply excerpts taken out of context.
It may be that the trial court evinced its intent to merely assess a three-year term
of imprisonment at the hearing. However, it clearly told everyone present that “formal
sentencing” would not occur until a later date. One cannot reasonably infer from the
totality of these circumstances that sentence had actually been pronounced on April 8.
And, even if it was, the trial court had the authority to modify or vacate the
pronouncement on the same day. See Riles v. State, supra. So, while the trial court
may have said it was granting a new trial, it was simply continuing the prior proceeding.
And, that means there was no prior pronouncement of sentence for purposes of double
jeopardy; that is, appellant’s sentence was not increased after he was already
sentenced. 1
1 th
We reject appellant’s suggestion that he must have been sentenced on April 8 since he was
arrested on May 4, 2011, and began serving time for which he received credit. Appellant was arrested on
that date because his bond had been increased. His bond had been increased because he allegedly
committed another offense. Furthermore, the trial court is required to give appellant credit for the days
during which he was incarcerated. See TEX. CODE CRIM. PROC. ANN. art. 42.03 § 2(a)(1) (West Supp.
2012).
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Accordingly, the judgment is affirmed.
Per Curiam
Do not publish.
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