explaining that a trial court retains plenary power to modify a defendant’s sentence if the defendant timely files a new-trial motion or a motion in arrest of judgment or if the modification (1) is made on the same day as the original sentencing; (2) occurs before the court has adjourned for the day; (3) is made “in the presence of the defendant, his attorney, and counsel for the state”; and (4) “the modified sentence is authorized by statute”
How later courts described this case
- explaining that a trial court retains plenary power to modify a defendant’s sentence if the defendant timely files a new-trial motion or a motion in arrest of judgment or if the modification (1) is made on the same day as the original sentencing; (2) occurs before the court has adjourned for the day; (3) is made “in the presence of the defendant, his attorney, and counsel for the state”; and (4) “the modified sentence is authorized by statute”
- stating that a trial judge's decision to resentence a defendant would be "illegal" if it "was based upon a statutorily prohibited consideration of the victim impact sentence," but noting the Court could not address that question because it was not presented in the State's appeal
- holding that trial court "was acting within its authority when, only a few minutes after it had initially sentenced appellee and before it had adjourned for the day, it modified appellee's sentence"
- noting that, “[a]t a minimum, a trial court retains plenary power to modify its sentence if a motion for new trial or. motion in arrest of judgment is filed within 30 days of sentencing,” and holding that a trial court also retains .plenary power to modify its sentence in :open court before adjournment on the same day the .original sentence is imposed
Written by the judges who cited it.
The opinion
WOMACK, J.,
concurring.
As the dissenting opinion says, the trial court erred. What should we do next?
“Except for certain federal constitutional error labeled by the United States Supreme Court as ‘structural,’ no error, whether it relates to jurisdiction, voluntariness of a plea, or any other mandatory requirement, is categorically immune to a harmless error analysis.” 1 The applicable standard for the analysis is that of Rule of Appellate Procedure 44.2(b): “Any [non-constitutional] error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.” A substantial right is affected when the error had a substantial and injurious effect or influence in determining a verdict. 2
Without error, the trial court could have granted the appellant a new trial, received his plea of guilty, and assessed the same punishment. Therefore, it seems to me, the error did not affect a substantial right and must be disregarded.
I concur in the judgment of the Court.
. Cain v. State, 947 S.W.2d 262, 264 (Tex.Cr.App.1997).
. See, e.g., King v. State, 953 S.W.2d 266, 271 (Tex.Cr.App.1997).