Andell Brymonte Pittman v. the State of Texas

Opinion

Fourth Court of Appeals San Antonio, Texas DISSENTING OPINION No. 04-21-00376-CR

Andell Brymonte PITTMAN, Appellant

v.

The STATE of Texas, Appellee

From the 290th Judicial District Court, Bexar County, Texas Trial Court No. 2016CR2518 Honorable Raymond Angelini, Judge Presiding

OPINION DISSENTING TO DENIAL OF EN BANC CONSIDERATION

Dissenting Opinion by: Liza A. Rodriguez, Justice, joined by Lori I. Valenzuela, Justice

Sitting en banc: Rebeca C. Martinez, Chief Justice 1 Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice Irene Rios, Justice Beth Watkins, Justice Liza A. Rodriguez, Justice Lori I. Valenzuela, Justice

Delivered and Filed: November 22, 2023

I respectfully dissent from the order denying en banc consideration and write separately to

explain my reasons for doing so. Texas Rule of Appellate Procedure 41.2(c) provides that en banc

consideration “should not be ordered unless necessary to secure or maintain uniformity of the

1 Not participating Dissenting Opinion 04-21-00376-CR

court’s decision or unless extraordinary circumstances require en banc consideration.” TEX. R.

APP. P. 41.2(c). This appeal presents the novel issue of whether a defendant’s statutory right to be

present when his sentence is pronounced is violated when he is sentenced via videoconference and

is not physically present in the courtroom. See TEX. CODE CRIM. PROC. art. 42.03 § 1(a). Further,

as the appellant in this appeal did not object at the time of his sentencing hearing to the proceedings

being conducted via videoconference, another novel issue is presented: whether a violation of his

statutory right was waived by his failure to object. See Proenza v. State, 541 S.W.3d 786, 792

(Tex. Crim. App. 2017) (discussing the type of Marin rights that can be waived and the kind that

can be brought for the first time on appeal). Unlike the majority, I do not believe the court of

criminal appeals in Lira v. State, 666 S.W.3d 498 (Tex. Crim. App. 2023), specifically addressed

either novel issue presented in this appeal. And, as criminal hearings being held by

videoconference have increased substantially recently, I believe these novel issues will be

presented to this court in the future. Therefore, I believe that this appeal falls within the

extraordinary circumstances allowed by Rule 41.2(c) and that the novel issues presented in this

appeal would benefit from consideration by the entire court. For these reasons, I respectfully

dissent to the denial of en banc consideration.

Liza A. Rodriguez, Justice

PUBLISH

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