Mark Suniga v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: August 14, 2025
• Docket: 03-25-00081-CR
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-25-00081-CR

Mark Suniga, Appellant

v.

The State of Texas, Appellee

FROM THE 453RD DISTRICT COURT OF HAYS COUNTY NO. CR-22-4369-C, THE HONORABLE SHERRI TIBBE, JUDGE PRESIDING

ORDER AND MEMORANDUM OPINION

PER CURIAM

Mark Suniga was charged with indecency with a child by contact. See Tex. Penal

Code § 21.11. At the end of the guilt-innocence phase, the jury found Suniga guilty of the

charged offense. During the punishment hearing, the jury assessed his punishment at ten years’

imprisonment. See id. §§ 12.33, 21.11(d). After the trial court read the jury’s verdict, it

informed the jury that their service was concluded and released the jury. Although the trial court

later entered a written judgment of conviction sentencing Suniga consistent with the jury’s

verdicts, the trial court never formally orally pronounced the sentence. After Suniga appealed,

Suniga and the State both filed briefs suggesting that the case should be remanded to the trial

court to allow the trial court to orally pronounce its sentence. We agree. Although a jury assesses a defendant’s sentence, the trial court imposes the

sentence. See Tex. Code Crim. Proc. arts. 37.01 (explaining that verdict is written declaration

by jury of its decision), 42.01, § 1 (stating that judgment is written declaration by trial court

showing conviction or acquittal of defendant and that sentence will be based on information in

judgment), .02 (noting that sentence is part of judgment ordering punishment to be carried into

execution). Additionally, with certain statutory exceptions, courts must orally pronounce the

sentence in the defendant’s presence. See id. arts. 42.03, § 1(a), .14; Taylor v. State, 131 S.W.3d

497, 500 (Tex. Crim. App. 2004); Ex parte Madding, 70 S.W.3d 131, 135 (Tex. Crim. App.

2002); see also Tex. Code Crim. Proc. art. 37.04 (noting that jury verdict may be “read aloud by

the judge, the foreman, or the clerk”); Ette v. State, 559 S.W.3d 511, 513 (Tex. Crim. App. 2018)

(distinguishing between trial court’s reading of jury’s verdict and its later oral pronouncement of

judgment). The judgment, including the sentence assessed, is merely a written manifestation of

that oral pronouncement. See Tex. Code Crim. Proc. art. 42.01, § 1; Taylor, 131 S.W.3d at 500;

Madding, 70 S.W.3d at 135.

“[I]t is the pronouncement of sentence that is the appealable event, and the

written sentence or order simply memorializes it and should comport therewith.” Coffey v. State,

979 S.W.2d 326, 328 (Tex. Crim. App. 1998). If no sentence was ever rendered, there is no

valid judgment. See Thompson v. State, 108 S.W.3d 287, 290 (Tex. Crim. App. 2003); see also

Ex parte Kopecky, 821 S.W.2d 957, 960 (Tex. Crim. App. 1992) (noting that “[p]unishment and

sentence are incorporated in the judgment” and that “‘sentence is a necessary component of a

“judgment of conviction”’” (quoting Ball v. United States, 470 U.S. 856, 862 (1985))). Without

a valid judgment, there is no “conviction” for a defendant to appeal. See Thompson, 108 S.W.3d

at 290.

2 In this case, because the trial court failed to orally pronounce Suniga’s sentence in

his presence, no valid judgment yet exists, and accordingly, we lack jurisdiction over his appeal.

See Keys v. State, 340 S.W.3d 526, 529 (Tex. App.—Texarkana 2011, no pet.) (concluding that

trial court’s failure to orally pronounce defendant’s sentence deprived court of appeals of

jurisdiction); Meachum v. State, 273 S.W.3d 803, 806 (Tex. App.—Houston [14th Dist.] 2008,

no pet.) (same); see also State v. Roberts, 940 S.W.2d 655, 657 (Tex. Crim. App. 1996)

(explaining that jurisdiction is threshold issue and may not be ignored), overruled on other

ground by State v. Medrano, 67 S.W.3d 892, 894 (Tex. Crim. App. 2002).

Atlhough this Court lacks jurisdiction over the appeal, that does not require us to

dismiss the appeal in these circumstances. The Rules of Appellate Procedure require that we

not dismiss an appeal if the trial court’s omission can be corrected. See Tex. R. App. P. 44.4.

Here, the trial court’s omission can be corrected by allowing the trial court to orally pronounce

Suniga’s sentence with him present. Accordingly, we abate the appeal and remand the cause to

the trial court for the trial court to orally pronounce the jury’s sentence in open court with Suniga

present. See id.; see also Keys, 340 S.W.3d at 529 (abating appeal and remanding cause to

trial court to orally pronounce sentence assessed by jury in defendant’s presence); Meachum,

273 S.W.3d at 806 (same).

On remand, the trial court is directed to cause notice of a hearing to be given and,

thereafter, formally orally pronounce the sentence assessed by the jury in Suniga’s presence.

The new sentencing hearing is to be held within 30 days of the date of this memorandum

opinion. A supplemental reporter’s record of the hearing shall be prepared and filed in the

appellate record in this case along with a supplemental clerk’s record containing the trial court’s

new judgment of conviction. These supplemental records are to be filed in this Court within 45

3 days of the date of this memorandum opinion. The appeal will be reinstated when the

supplemental records are filed. Suniga will have thirty days from reinstatement to file a

supplemental appellant’s brief, and the State will have thirty days from the date Suniga files his

supplemental brief, if any, to file a supplemental appellee’s brief.

It is ordered on August 14, 2025.

Before Chief Justice Byrne, Justices Crump and Ellis

Abated and Remanded

Filed: August 14, 2025

Do Not Publish