Felmon Lakeith Laury v. State of Texas

Opinion

Order filed August 25, 2011

                                                                       In The

  Eleventh Court of Appeals

                                                                   __________

                                                         No. 11-10-00317-CR

                            FELMON LAKEITH LAURY, Appellant

                                                             V.

                                      STATE OF TEXAS, Appellee

                                   On Appeal from the 82nd District Court

                                                        Robertson County, Texas

                                             Trial Court Cause No. 08-03-18,448CR

                                                                     O R D E R

Felmon Lakeith Laury appeals from the granting of the State’s Second Amended Motion to Revoke Probated Sentence after the trial court sentenced him to ten years deferred adjudication for the offense of aggravated assault with a deadly weapon.  After hearing evidence, the trial court delayed sentencing and entered a written judgment sentencing Laury to twenty years in the Texas Department of Criminal Justice, Institutional Division.  There is no record that Laury was sentenced in open court.

Because Laury was not present when the trial court pronounced his sentence, this court is without jurisdiction to hear this appeal.  Keys v. State, 340 S.W.3d 526 (Tex. App.—Texarkana 2011, order); Meachum v. State, 273 S.W.3d 803, 806 (Tex. App.—Houston [14th Dist.] 2008, order).  Rather than dismissal, a proper and more efficient remedy is abatement.  Keys, 340 S.W.3d at 529; Meachum, 273 S.W.3d at 806.

Accordingly, we abate this appeal and remand this cause to the trial court.  On remand, the trial court shall give notice of a hearing to be held and then pronounce sentence in Laury’s presence.  The sentencing hearing is to be held within thirty days of this order.  A supplemental reporter’s record of the sentencing shall be prepared and filed in the record of this appeal, together with a supplemental clerk’s record containing the trial court’s judgment.  These records are due to be filed in this court within forty-five days of the date of this order.

The appeal will be reinstated when the supplemental records are filed with this court.  On reinstatement, this court will determine any issues that are before the court on this appeal.

                                                                                    PER CURIAM

August 25, 2011

Do not publish.  See Tex. R. App. P. 47.2(b).

Panel consists of:  Wright, C.J.,

McCall, J., and Hill, J.[1]

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[1]John G. Hill, Former Justice, Court of Appeals, 2nd District of Texas at Fort Worth, sitting by assignment.