Billy Marshall Sherman v. the State of Texas

Opinion

Opinion filed July 21, 2022

In The

Eleventh Court of Appeals

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No. 11-19-00190-CR

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BILLY MARSHALL SHERMAN, Appellant V.

THE STATE OF TEXAS, Appellee

On Appeal from the 266th District Court Erath County, Texas

Trial Court Cause No. CR15259

MEMORANDUM OPINION

The State charged Appellant by indictment with one count of online solicitation of a minor. See TEX. PENAL CODE ANN. § 33.021(a)(1), (a)(3), (b)(2), (f) (West Supp. 2021). The trial court found Appellant guilty and assessed his punishment at confinement for ten years in the Institutional Division of the Texas Department of Criminal Justice. Appellant brought a single issue on appeal, contending that the trial court erred when it sentenced him in absentia. We agreed with Appellant’s contention.

On October 21, 2021, we entered an order abating this appeal wherein we ordered the trial court to hold a new sentencing hearing with Appellant present. The trial court complied with our order by conducting a new sentencing hearing on November 16, 2021, with Appellant physically present. The trial court assessed the same sentence at the new sentencing hearing—confinement for ten years in the Institutional Division of the Texas Department of Criminal Justice.

Upon the filing of a supplemental clerk’s record and supplemental reporter’s record, we reinstated this appeal. Appellant has neither filed a supplemental brief nor sought permission to do so. Accordingly, the only issue presented by Appellant is the complaint that he was sentenced in absentia. In light of the trial court’s compliance with our abatement order, Appellant has now been sentenced while being physically present. Therefore, we overrule his sole issue because it is now moot. See Diaz v. State, No. 13-14-00675-CR, 2017 WL 4987665, at *10 (Tex. App.—Corpus Christi–Edinburg Nov. 2, 2017, pet. ref’d) (mem. op., not designated for publication).

This Court’s Ruling

We affirm the judgment of the trial court.

JOHN M. BAILEY CHIEF JUSTICE

July 21, 2022 Do not publish. See TEX. R. APP. P. 47.2(b). Panel consists of: Bailey, C.J., Trotter, J., and Williams, J.