author: COCHRAN, J.,

text:
    Dennis Joe PHARRIS, Appellant, v. The STATE of Texas.
    No. AP-75,122.
    Court of Criminal Appeals of Texas.
    June 22, 2005.

      Dick Deguerin, Houston, for Appellant.
    Carol M. Cameron, Asst. District Attorney, Houston, Matthew Paul, State’s Atty., Austin, for State.
   OPINION

COCHRAN, J.,

delivered the opinion for a unanimous Court.

Appellant, Dennis Joe Pharris, has appealed the trial court’s denial of bail from the third in a series of indictments and complaints filed against him by the consumer fraud division of the Harris County District Attorney’s Office between June of 2004 and April of 2005. Mr. Pharris alleges that “[t]he prosecutor’s transparent attempt to serially charge Pharris and indefinitely imprison him violates the spirit of Article I, Section 11a [of the Texas Constitution], which is strictly construed in favor of bail.” Appellant originally requested that this Court reverse the trial court’s order denying bail and set reasonable bond. The State argues that this appeal is moot because the trial court was required by law to set bail after sixty days and it has done so. Although the “no-bond” order in Cause Number 1016730 is now moot, it is abundantly apparent from the record before us that the State intends to file additional charges against Mr. Pharris and may seek additional “no bond” orders. Therefore, we will address the merits of the issue presented under the “capable of repetition but evading review” exception to the mootness doctrine.

I.

On June 17, 2004, the State indicted Mr. Pharris for the felony offense of forgery of a United States government instrument (Cause No. 991356). Bond was originally set at $10,000 and later increased to $100,000. Mr. Phams made bail and was released on June 27, 2004.

The State filed its second criminal complaint against Mr. Pharris on December 15, 2004, for engaging in organized criminal activity (Cause No. 0101543). In that complaint, the State alleged that on “various dates between November 1, 2004 and November 30, 2004” he participated in a combination consisting of himself, Miriam Pharris, Cindy Pharris, Chisholm McDonald, and/or Juan Ballivian, to commit theft of more than $200,000 from Hibernia Bank or its employees, Peter Baldassaro, Jr., and Curtis Ward. This complaint contained an enhancement paragraph alleging that Pharris had been convicted in 1993 of wire fraud in a Texas federal district court. After a heating on December 21, 2004, the trial court denied bail in this second case because the State had alleged that this offense was committed while Pharris was on bond for the first case, the forgery charge.

At this December 21st heating, Jack Kuo, an assistant vice-president of Southwestern National Bank, testified that Mr. Pharris became a customer of his bank in July 2004. Pharris said that he came from a wealthy family, and that his parents owned a lot of real estate near Austin and had put their assets in trust. Pharris said that the trust owned NG Holdings with a net worth of $30 million. Mr. Phar-ris provided a supporting financial statement, and he told Mr. Kuo that he wanted the bank to refinance some loans he had with another bank; he wasn’t getting good service from them and he needed faster credit. Mr. Kuo agreed to give Pharris a $750,000 line of credit which Pharris drew down within two to three weeks. Some of the family trust depository checks bounced. At one point, the bank was down about $120,000. The bank stopped loaning Pharris money on December 3, 2004, and Pharris then cleared all of the overdrafts. He has kept up with the payments on his line of credit, but Mr. Kuo sent out an acceleration letter saying that Pharris was in default because he had not provided all of the necessary financial reports. According to Mr. Kuo, the bank was “not out any money at this point in connection with doing business with Dennis Pharris.”

Curtis Ward, one of the complainants in the second case, testified that he is the Vice-President of business banking for Hibernia National Bank in Katy. He met Mr. Pharris and a business associate for lunch in early November. Pharris told him that he was a trustee of the JLP Trust, a family trust supposedly worth $28-30 million, and of NG Holdings, a company with real estate, trucking, and convenience store interests. Pharris wanted to have a business relationship with the bank. He opened several depository accounts. Mr. Ward gave Pharris a “substantial loan” of $1.8 million on a new home and gave him an unsecured line of credit for $100,000. The bank normally waits until deposits are cleared before giving credit on them, but Mr. Ward really wanted Pharris’s business and thought the bank “was going to make money off of him.” Mr. Ward made a business decision to issue Pharris cashier’s checks before the bank collected the funds from the depository checks. Pharris drew down $85,000 of the $100,00 line of credit. A few days later, Mr. Ward shut down the line of credit because all of Pharris’s depository checks were dishonored and returned as NSF (not sufficient funds). At the time of the hearing, Mr. Ward’s bank was in “an overdraft situation” of more than a million dollars.

Shiela Patterson, the branch manager at Hibernia, testified that Mr. Pharris became a bank customer around November 10, 2004. Mr. Ward called her and said that Pharris was a “trustee over a huge trust and we’re going to be making a lot of money with him or doing a lot of transactions with him and please give him special consideration.” According to Mr. Ward, Pharris was “a big fish.” Ms. Patterson said that she would not have given Mr. Pharris a million dollars of the bank’s money if she had known that his depository checks would be dishonored.

Randy Williams, a bankruptcy lawyer for Thompson & Knight, testified that many of Mr. Pharris’s companies were presently in bankruptcy. He thinks that the JLP Trust has outstanding obligations to banks of $10-15 million, and more is owed to trade creditors. None of that debt, however, accrued between June 27, 2004 (the date Mr. Pharris was released on bail in the first case) and December 15, 2004.

Finally, Rachel Hygh, a student intern in the consumer fraud division of the D.A.’s Office, testified that she participated in the execution of a search warrant at Mr. Pharris’s office on December 15, 2004. She testified that some unnegotiated checks on an NG Holdings account were seized. They were machine-printed checks, not printed on stock from a bank. They appeared to have a facsimile signature.

Neither the State nor the defense summed up the evidence or discussed its significance. Based solely upon this evidence, the trial judge denied bail on the second (Hibernia Bank) charge. Because Article I, § 11a of the Texas Constitution requires that a “no bond” order automatically expires after sixty days and the trial court must then set reasonable bail, the trial court set bail of $100,000 in this second case on February 14, 2005.

Later that same afternoon, but before Mr. Pharris could make bail, the State filed its third charge against Mr. Pharris, resulting in the present case (Cause No. 1016730). This time the State alleged what it called the crime of engaging in organized criminal activity to commit theft from Bank One on “various dates between September 15, 2004 and October 6, 2004.” That is, the third charge was alleged to have been committed before the second charge but after the first charge. The State once again requested a “no bond” order, so another “no bond” hearing was held on February 18, 2005.

At this hearing, the trial judge expressed his concern that Mr. Pharris had not been released on bail for the second charge, and thus could not have committed this third offense while on bail for the second offense: “being in jail with a new charging instrument filed ... is not sufficient ... that’s not going to work.” The trial judge expressed concern that he did not have jurisdiction to deny Mr. Pharris bail on the third charge. Nonetheless, the trial court allowed the State to present its evidence to establish “a substantial showing” of Mr. Pharris’s guilt of the third charge.

The only witness who testified at this hearing was Bill Stokes, “a relationship manager” with Bank One, who works with small-business owners. He met Mr. Phar-ris in September 2004 at “a filling station combination restaurant.” Mr. Pharris told him that he was the trastee of a large trust worth “multi-millions of dollars.” Pharris indicated that he controlled the assets and wanted to open several accounts with Bank One. His financial statements indicated that he had $26 million in equity and millions in liquid assets that could be put in Mr. Stokes’s bank. Mr. Stokes was interested in acquiring that account. Pharris wanted to establish a line of credit for $1.5 million for a home loan and he needed immediate credit. Mr. Stokes called Southwest Bank and “they reported that [Pharris] had a $750,000 line of credit with that bank and that he was a customer in good standing.” That was one of the reasons why Mr. Stokes immediately approved the loan. Pharris asked if he could get instant credit, Mr. Stokes said “Yes,” he approved the checks, “and it was that simple. Not complicated.” He did not intend to charge interest on the instant credit; “[i]t was an accommodation to the customer.”

Mr. Stokes started having problems 'almost immediately as the checks Pharris had deposited started to bounce. Within five to six days, Pharris’s account was overdrawn by $885,000. Pharris told Mr. Stokes that the other bank had made a mistake and that Mr. Stokes should resubmit the checks. They bounced a second time. He met with Pharris many times, but “[i]n every case he made promises that he never fulfilled.” If he had known the checks would bounce, Mr. Stokes would not have given Pharris instant credit. Mr. Stokes “got his tail chewed out” because he approved the instant credit. Pharris did deposit over a million dollars at Bank One, but the net eharge-backs were $884,000.

Based upon this evidence, the trial judge once again denied bail. The defense attorney argued, “It should be obvious to the court what’s happening here is the prosecution is trying to serially file the cases in order to prevent bail. And that defeats the purpose [for which] Article One, Section 11(a) was written.” The State responded, “We keep filing cases on Mi’. Pharris because he was very active before and after he was on bond in Cause No. 0991356. The evidence we offered previously at the first no-bond hearing in 1010543 showed that Mr. Pharris had acquired in the previous two years, 10 to 15 million dollars from banks, some locally, some across the state of Texas by fraud.” The defense attorney remarked that “There’s no evidence of that in this record, Judge.” The prosecutor then stated the following:

And Judge, yes, there are going to be more charges. It’s taking a long time to get all these records. There are many, many other institutions involved. We’re acquiring the records just as fast as we can. It’s very difficult to investigate a case like this after you arrest Mr. Phar-ris on December 15th, but .that’s what we’re trying to do and it’s not our fault that Mr. Pharris has defrauded so many people of so much money in so many places. And I just want to point out to the Court the record as it now stands shows that Mr. Pharris is in control of valuable family assets of more than 30 million dollars.... The evidence is also that Mr. Pharris has obtained more, probably approaching 15 million dollars from financial institutions in the instant matter and the previous matter and other matters over the last couple of years. And the evidence is that Mr. Pharris, if I recall correctly, we introduced at the last bond hearing evidence that he takes eight and 9,000 dollar charter jet flights wherever he would like. I would ask the Court to maintain his bond at no bond. We’ll file those other cases as soon as we can get them together. There are going to be many. It is going to be a lot.... The rule of thumb in Harris County, Texas, that the District Attorneys operate under, per the Judges, is twice the amount of the fraud. Well, the evidence here is that Mr. Pharris has got probably 45 million dollars in assets and has stolen more than probably 15 million dollars.

The defense attorney responded, “This is a charade. They’re trying to deny him bail. They’re trying to deny him bail simply because they think he’s a thief and that’s not what the Constitution says.” On February 21, 2005, the trial court signed the order to hold Mr. Pharris at “no bond” for another sixty days. Pharris filed a notice of appeal that day.

There was a final hearing on March 1, 2005, during which Mr. Pharris’s attorney stated that he was ready to try the first case, the forgery case, which was the predicate offense for obtaining the “no bond” in this, the third case. The State declined to go forward on that case. “So what we have here is a situation in where the State is seeking to hold Mr. Pharris without bond where the predicate offense, the offense for which he was on bond when the new offense was allegedly committed, the State has no intention of trying.”

The prosecutor responded that

Mr. Pharris is a convicted felon. He has done federal and state time.... [The original forgery charge] may be part and parcel of a very large fraud Mr. Pharris has committed against financial institutions across Texas and in Harris County, Texas over the last couple of years and will probably be better prosecuted, a better theory for the State would.be in a larger comprehensive felony theft or engaging in organized criminal activity to commit theft indictment which I hope to file in the next several weeks to a month or so.... I’m not saying the case is not prosecutable. I’m just saying I don’t think it’s the best possible theory. I think we’re doing a lot of other work and are looking to file a very large case in the near future that might include the allegations we filed in 1010543, 1016730.... They’re all going to involve Mr. Pharris furnishing fictitious financial statements showing himself and his family in a large family trust to be worth many, many millions of dollars. It’s going to be our contention that those are all false, They’re all going to be interrelated.

The trial judge then stated,

So whether the case is set for trial or not, whether it’s ever reached or not, whether it’s dismissed ultimately, as far as the Court’s decision to hold Mr. Phar-ris without bond, it has no part in that decision. So the fact — however you all interpret this, you guys and gals at the Court of Criminal Appeals, if in fact ultimately Mr. Turbeville dismisses the case, if he doesn’t wish to go forward on prosecuting the case, that is not part of my decision in deciding to hold the defendant without bond. So that fact, however you interpret it, did not play a part in my decision.

In its brief to this Court, the State’s only argument is that the appeal in this, the Bank One case, is moot because the sixty-day “no bond” period automatically expired and the trial judge subsequently set a bond of $500,000 on April 14, 2005. The present case remains unindicted.

On May 26, 2005, Mr. Phams’s attorney filed a Motion to Supplement Record with Recent Events in which he states that, as of April 14, 2005, Mr. Pharris had a total bail of $700,000. The motion also states that a fourth charge, alleging felony theft occurring between July 6 and October 19, 2004, was filed against Mr. Pharris on April 15, 2005, the day after the most recent “no bond” order expired. A file-stamped copy of that charging document is attached to the motion. The State requested yet another “no bond” order. The motion states that the trial court denied that request and set bail on the most recent case at $100,000, bringing the current total bail to $800,000.

II.

The first question that we must address is whether the present appeal has become moot because the “no bond” order in this particular cause number has expired and the trial court set bail at $500,000 on April 14, 2005. A case that is moot is normally not justiciable. One exception to that general rule is when a claim is “capable of repetition, yet evading review.” The United States Supreme Court has said that “the ‘capable of repetition but evading review* doctrine [is] limited to the situation where two elements combine: (1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again.” We have adopted and applied this doctrine ourselves, as has the Texas Supreme Court.

Under the Texas Constitution, a “no bond” order filed in a non-capital felony case committed while the defendant is on bail for a prior felony for which he has been indicted is automatically set aside after sixty days unless the defendant requests a continuance. Sixty days is normally too short a time period in which to fully and fairly litigate a “no bond” order even though that “appeal shall be given preference by the Court of Criminal Appeals.” The clock begins ticking from the date of the hearing, and keeps ticking during the filing of the clerk’s and reporter’s records and the briefs by both the State and defendant, the submission of the case to this Court, and issuance of an opinion by the Court. Through no fault of the defendant, the “no bond” order in this case expired more than a month before the case was formally submitted to this Court. The delay cannot be attributed to Mr. Pharris. This case meets the first prong of the exception.

This case also meets the second prong of the exception because the prosecutor stated on the record during the most recent “no bond” hearing that “there are going to be more charges,” and “[wje’ll file those other cases as soon as we can get them together. There are going to be many. It is going to be a lot.” Given the documented history thus far, there is a reasonable expectation that the State will continue to file additional charges against Mr. Pharris and continue to request “no bond” orders.

We therefore conclude that we have jurisdiction to address the merits of this appeal under the “capable of repetition, yet evading review” exception to the mootness doctrine.

III.

Article I, section 11 of the Texas Constitution provides, in part, that “All prisoners shall be bailable by sufficient sureties unless for capital offenses, when the proof is evident.” The power to deny bail cannot and “will not be used as an instrument of oppression.” The Interpretative Commentary to this constitutional provision explains that

Bail functions as a complement to the Anglo-American presumption of innocence by permitting a person charged with a criminal offense to regain his liberty with some assurance of his presence at trial, by requiring him to give security, subject to forfeiture, if he fails to appear and answer before the proper court on the accusation brought against him.

Although pretrial bad may be denied in some non-capital cases for a short period of time, a stratagem of serial charging at sixty-day intervals may not be used as a subterfuge to imprison a citizen who, though accused of crime, is still presumed innocent under the law. As this Court has previously noted, the “exceptions to the constitutional right to bail [contain] the seeds of preventive detention urged by many to be abhorrent to the American system of justice.” It is for this reason that the provisions contained in Article I, Section 11a of the Texas Bill of Rights “contain strict limitations and other safeguards” to ensure that bail is not used as an instrument of oppression.

As this Court carefully set out in Neuenschwander v. State, before a person accused of a non-capital felony committed while on bail for a prior felony for which he has been indicted, the following sequence of events must occur:

“1. A defendant must be indicted for a felony and be out of jail on bond;
2. A defendant must be then accused of committing, while on that bond, a felony less than capital in this state;
3. A defendant must be arrested on the accusation in 2;
4. A district judge must hold a hearing wherein the state must show substantial evidence of the defendant’s guilt for the felony in 2 and the district judge must enter an order denying bond, all within seven days of the defendant’s arrest in 2.”

When denial of bail under this constitutional provision is challenged, the State bears the burden of affirmatively showing compliance with the limits and safeguards of Section 11a. Furthermore, we are required to interpret Section 11a as favoring a defendant’s access to bail, and we strictly construe all of its provisions in favor of bail.

In this case, a time line helps set the events in perspective.

• June 17, 2004 — State indicts Pharris for forgery in Cause No. 991856. Bail set at $100,000;
• June 27, 2004 — Pharris makes bail and is released;
• July 6-October 19, 2004 — Pharris allegedly engages in theft from Southwestern Bank;
• September 15-October 6, 2004 — Phar-ris allegedly engages in organized criminal activity by committing theft from Bank One;
• November 1-November 30, 2004— Pharris allegedly engages in organized criminal activity by committing theft from Hibernia Bank;
• December 15, 2004 — State charges Pharris for Hibernia Bank transactions (Cause No. 1010543) and requests “no bond” order;
• December 21, 2004 — “No bond” hearing on Hibernia Bank charge; Pharris ordered to be held without bond for sixty days;
• February 14, 2005 — Hibernia Bank “no bond” order expires; trial court sets bond of $100,000;
• February 14, 2005 — State charges Pharris for Bank One transactions (Cause No. 1016730) and requests “no bond” order;
• February 18, 2005 — -“No bond” hearing on Bank One charge;
• February 21, 2005 — Trial court signs “no bond” order on Bank One charge; Pharris files notice of appeal;
• March 1, 2005- — -Pharris announces “ready for trial” on forgery indictment filed June 17, 2004; State suggests that it will never try forgery indictment;
• April 14, 2005 — Bank One “no bond” order expires; trial court sets bond of $500,000;
• April 15, 2005 — State charges Pharris with theft from Southwestern Bank, and requests “no bond” order;
• April 20, 2005 — Trial court denies “no bond” order; sets bail at $100,000;
• May 19, 2005 — Pharris still in jail.

Section 11a explicitly states that an order denying bail must be issued “within seven calendar days subsequent to the time of the incarceration of the accused.” In Neuenschwander, we equated the constitutional term “incarceration” with “arrest.” Mr. Pharris was most recently “incarcerated” on December 15, 2004. He has been “incarcerated” ever since. Strictly construing Section 11a, as we must, we hold that only a “no bond” order entered within seven days of that date — the actual arrest date — is valid under the Texas Constitution. Mr. Pharris is not “incarcerated” or “arrested” every time the State files a new charge against him and brings him from the jail into the courtroom for another “no bond” hearing. Of course, if Mr. Pharris had been released from jail on bond on February 14, 2005, and he then committed a new felony offense, the State could re-incarcerate him and use the June 17, 2004, indictment as a trigger to a new “no bond” order signed within seven days of this subsequent incarceration. At that point, Pharris would still be “on bond” for the forgery indictment (as well as for the new charges), but to trigger the “no bond” provision of the constitution, the most recent offense must be committed after the most recent bonding out of jail. To allow otherwise would defeat the presumption in favor of bail and the constitutional preference for bail. The trial judge was correct when he orally expressed his original skepticism of this procedure; he erred in signing a “no bond” order in the Bank One criminal complaint.

Mr. Pharris argues that “[t]his Court should not let the State’s conduct in the above eases to go unnoticed or unaddressed. On the record presented and the information provided here, this court should sanction the State’s conduct by ordering that bail in the case on appeal [Cause No. 1016730, the Bank One complaint] should be reduced to $100,000.” A reduction of bail or an increase of bail is not an instrument to be used to “sanction” either the accused or the State. Bail is intended to ensure a defendant’s presence at trial and to ensure the community and victim’s safety during the pendency of proceedings. And that is a matter for the trial court’s exercise of a conscientious discretion, which will be guided by the legal principles that we have discussed. Mr. Pharris’s appropriate recourse is to address his request to the trial court, retaining his right to an expedited review by this court if that should be necessary.

We therefore deny appellant any additional relief and remand the case to the trial court for further proceedings.

      . Although seemingly inapplicable to the Hibernia Bank charge that was the subject of the December "no bond” hearing, Mr. Kuo's testimony is relevant to the fourth theft charge filed against Mr. Pharris on April 15, 2005.

      . This indictment appears to charge a simple theft because it does not allege any criminal combination under Tex Penal Code § 71.02(a).

      . At the risk of boring the patient reader, we have taken great pains to set out all of the evidence from both "no bond” hearings in this opinion.

      . This Court has been unable to find any testimony concerning any plane flights by Mr. Pharris in the record.

      . Also attached to this motion is a letter dated April 14, 2005, that appears to be written on official Harris County District Attorney stationary, is purportedly signed by Russel Turbeville, Assistant District Attorney, and is addressed “To Harris Area Bondmen [sic]” This letter reads:
      I am currently prosecuting Mr. Pharris in the above causes. His bonds in 1010543 and 1016730 of $100,000 and $500,000 are currently unmade. The criminal allegations against Mr. Pharris concern his presenting alleged false financial statements and pledging the assets of a purported large family trust originating in Hillsboro, Hill County Texas. Further, that his mother, Miriam Pharris, of Hillsboro also guarantees many of the loan obligations.
      While I don't want to interfere with Mr. Pharris [sic] right to make any legitimate bond, I would request that you contact me before taking any purported valuable bond collateral. There are several pending bankruptcy actions concerning several of Mr. Pharris [sic] purported companies. Further Hill County deed records reflect more than $5,000,000.00 in recent abstracted judgments against the family ranch or farm which appears to be many fold the actual value of the property.
      Thank you in advance for your cooperation. This letter, however, does not appear to come from the official court records in this case; it is not certified by the clerk of the court; and the motion itself does not contain a sworn affidavit attesting to the authenticity or provenance of the letter. Therefore, we will not consider documents that are attached to un-sworn motions filed directly in this Court for the truth of the matter asserted. See Jack v. State, 149 S.W.3d 119, 121 (Tex.Crim.App.2004).

      . See Criner v. State, 878 S.W.2d 162, 163-64 (Tex.Crim.App.1994) (appeal of trial court’s order denying pretrial bail moot after sixty days); see also Duncan v. Evans, 653 S.W.2d 38, 41 (Tex.Crim.App.1990) (Onion, P.J., dissenting) (noting that when order that is subject of appeal "has been vacated ... the question presented is moot. There is not presently a justiciable controversy. Normally when the question becomes moot the case is dismissed”).

      . Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975); see also Murphy v. Hunt, 455 U.S. 478, 482, 102 S.Ct. 1181, 71 L.Ed.2d 353 (1982).

      . See Ex parte Nelson, 815 S.W.2d 737, 739 (Tex.Crim.App.1991) (setting out the "capable of repetition, yet evading review” exception to the mootness doctrine and applying it to parolee’s habeas corpus allegation concerning sufficiency of basis for detention pending decision to revoke parole).

      . See Williams v. Huff, 52 S.W.3d 171, 185 (Tex.2001) (concluding that inmates’ claim that challenged constitutionality of religious-education program at county jail did not meet the "capable of repetition, yet evading review” exception to the mootness doctrine because inmates did not meet the capable-of-repetition element, as it was speculative as to whether and when they would be charged with a jail-time crime).

      . Tex. Const, art. I, § 11a(a).

      . Id.; see Criner, 878 S.W.2d at 164 (noting, but declining to address, defendant’s contention that this Court’s "docket is such that every appeal from' an order denying bail will be moot before the appeal can be resolved”).

      . Mr. Pharris filed written notice of an expedited direct appeal in the trial court on February 21, 2005, the same day that the trial court signed the "no bond” order. Although his brief was not due until April 29, 2005, Mr. Pharris filed his appellate brief on March 28, 2005. He also filed a motion requesting that his appeal be accelerated, but this Court denied that motion on April 12, 2005, two days before the "no bond” order expired. The State’s brief was not due until April 30, 2005, and it was filed on April 29, 2005, at which time the "no bond” order had already expired. The case was not formally submitted to this Court until May 25, 2005.

      . See Securities & Exchange Comm’n v. Sloan, 436 U.S. 103, 108-09, 98 S.Ct. 1702, 56 L.Ed.2d 148 (1978) (case not moot when SEC filed a series of trade suspension orders, each of which lasted less than 20 days, and there was a reasonable expectation that stockholder would be subject to recurring injuries by SEC continuing to file further summary suspension orders).

      . Tex. Const, art. I, § 11.

      . Taylor v. State, 667 S.W.2d 149, 151 (Tex.Crim.App.1984).

      . Tex. Const, art. I, § 11, Interpretive Commentary. See also George E. Dix & Robert O. Dawson, Texas Practice: Criminal Practice and Procedure § 16.01 (2d Ed.2001) (noting that "basic notions of fairness are compromised by the imposition of what might be viewed as punishment upon those defendants [who are ultimately found guilty] before full and fair inquiry is made into whether they can be proved guilty”).

      . Taylor, 667 S.W.2d at 152.

      . Id.

      . Id. at 151. Other statutory provisions allow a trial court to impose reasonable conditions of bail, both to ensure a defendant's appearance for trial and to protect the safety of the community. See, e.g., Tex.Code Crim. Proc. arts. 17.40 (magistrate may impose any reasonable condition of bond related “to the safety of the community”); 17.43(a) (reasonable conditions may include home curfew and electronic monitoring); 17.44(a)(1) (reasonable conditions may include home confinement and electronic monitoring).

      . 784 S.W.2d 418 (Tex.Crim.App.1990).

      . Neuenschwander, 784 S.W.2d at 420.

      . Id.

      . Westbrook v. State, 753 S.W.2d 158, 159 (Tex.Crim.App.1988) (stating that section 11a “will be strictly construed in favor of bail”).

      . Tex Const, art. I, § 11a.

      . Neuenschwander, 784 S.W.2d at 420.


source: Caselaw Access Project

author: PRICE, J.,

license: Public Domain

text:
    Walter HAMPTON, Jr., Appellant, v. The STATE of Texas.
    No. PD-0179-04.
    Court of Criminal Appeals of Texas.
    June 22, 2005.

      Shawna L. Reagin, Houston, for Appellant.
    Bridget Holloway, Asst. District Atty., Houston, Matthew Paul, State’s Atty., Austin, for State.
   OPINION

PRICE, J.,

delivered the opinion for a unanimous Court.

The appellant was charged with aggravated sexual assault. At the end of the guilt phase of the trial, the trial court submitted within the jury charge a lesser-included offense instruction for sexual assault. The jury acquitted the appellant of aggravated sexual assault, but found him guilty of sexual assault. On prior review, we held that the submission of the lesser-included offense of sexual assault was improper because it was not supported by the evidence. One remand, the Court of Appeals held that the remedy for this error is a retrial for the lesser offense. We granted review. We conclude that the Court of Appeals was correct in remanding the case because re-litigating sexual assault is not jeopardy barred in this case.

I. Facts and Procedural History

The appellant was charged with aggravated sexual assault. The evidence admitted during the trial shows that the complaint resided with the appellant. The • complainant stated that she had consensual sex on one occasion with the appellant while they were living together. On the night of the offense, the complainant testified, the appellant suddenly attacked her while they were watching television together. He held a knife to her neck while hitting and slapping her. He repeatedly assaulted her sexually, and she did not resist to protect herself from further harm. The complainant reported the incident, and two police officers went to the complainant’s residence in response to the call. The two officers spoke to both the appellant and complainant. They also completed a cursory search of the apartment, but were not able to locate the knife.

During trial, the State requested submission of the lesser-included offense instruction on sexual assault, over the appellant’s objection. The jury convicted him of sexual assault. The trial court sentenced the appellant to forty years’ imprisonment based on the appellant’s plea of true to two felony enhancement allegations. The Court of Appeals affirmed, holding that the record contained “some evidence of sexual assault being committed without a knife. Therefore, the jury could have rationally found that the appellant sexually assaulted the complainant, while finding that he did not use a knife in the assault.”

We granted the appellant’s petition for discretionary review. We reversed the Court of Appeals’s judgment and held that the instruction on the lesser-included offense was not warranted by the evidence, and that the trial court erred in submitting such an instruction. We remanded the case to the Court of Appeals for a harm analysis.

The Court of Appeals held that the appellant had been harmed because the appellant was found guilty of the lesser offense. It reversed the judgment of the trial court and remanded the case for a new trial on the offense of sexual assault. The Court went on to hold that the appropriate remedy for the error was a new trial on the charge of sexual assault.

II. Parties’ Arguments

The appellant claims that acquittal of aggravated sexual assault combined with our determination that he was improperly charged with the lesser-included offense instruction for sexual assault means that he cannot be retried for sexual assault. He claims that to do otherwise would violate the constitutional protection against double jeopardy. The appellant did not raise the argument of insufficiency of evidence as a separate point of error. Instead, the appellant claims that it was an integral part of his argument against the charge on the lesser-included offense and the remedy.

The State argues that, assuming the defendant may bring forward an argument of insufficiency of evidence at this time, there is a significant difference between finding trial error and a determining that the evidence is insufficient to support the conviction. It argues that this is merely charge error. The State reasons that we had held that the court should not have submitted the lesser-included offense instruction to the jury because there was no evidence that would permit a rational jury to find the appellant guilty of the lesser offense, but not guilty of the greater offense. That is different, it argues, from concluding that the evidence was legally insufficient to support conviction for sexual assault. Therefore, the State asserts that the appropriate remedy is to remand the case for retrial on sexual assault.

III. Law and Analysis

The test for giving an instruction on a lesser-included offense is quite different from the test for legal sufficiency of evidence to support a conviction for crime. In deciding whether evidence is legally sufficient, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” The test used to determine whether a jury-charge instruction on a lesser-included offense can be given has two prongs: (1) the lesser-included offense must be included within the proof necessary to establish the offense charged; and (2) some evidence must exist in the record that would permit a rational jury to find the appellant guilty of the lesser offense, but not guilty of the greater offense. This two-prong test applies regardless of whether the instruction is requested by the State or by the defendant.

Applying the Rousseau test to the facts of this case, we held that the second prong of the test was not met, and therefore the trial court erred in submitting the lesser-included offense instruction to the jury. In this case, the complainant testified that there was evidence of the knife, but the police were not able to find it. Although we determined that the trial court erred in including the instruction on a lesser-included offense, this does not mean that the evidence was insufficient to convict the appellant of sexual assault.

In fact, the record demonstrates that the evidence was legally sufficient to support conviction for sexual assault. The victim testified that the appellant repeatedly sexually assaulted her, and threatened her with a knife. A later medical evaluation of the victim showed fresh bruising on her neck, three separate tears to the anus, and petechial hemorrhages in the cervix and vaginal area that were consistent with non-consensual sex, prolonged sex, or rough consensual sex. It would produce an absurd result to acquit the appellant of sexual assault for insufficiency of the evidence when the evidence presented at trial on the appellant’s assault of the victim would clearly support conviction of sexual assault.

In the case before us, we held that the trial court erred by authorizing the jury to convict the appellant of the lesser-included offense of sexual assault because the second prong of the test for lesser included offenses was not satisfied. We have not held, and the record does not support the conclusion, that the evidence was insufficient to support a conviction for sexual assault.

We hold that the appropriate remedy in this case is a retrial for sexual assault, not because the evidence was legally insufficient to have proved aggravated sexual assault, but because the jury’s verdict that the appellant was guilty of the lesser-included offense of sexual assault operates as an acquittal of the greater offense of aggravated sexual assault to which jeopardy had attached. This prevents a retrial for the greater offense, but not for the lesser offense.

III. Conclusion

The Court of Appeals did not err in concluding that the appropriate remedy is to remand for a new trial. The judgment of the Court of Appeals is affirmed.

      . Hampton v. State, 66 S.W.3d 430 (Tex.App.-Houston [1st Dist.] 2001).

      . Hampton v. State, 109 S.W.3d 437 (Tex.Crim.App.2003).

      . Hampton v. State, No. 01-00-00798-CR, 2003 WL 22413968, 2003 Tex.App. LEXIS 9067 (Houston [1st Dist.], delivered Oct. 23, 2003) (not designated for publication).

      . Griffin v. State, 614 S.W.2d 155, 159 (Tex.Cr.App.1981) (quoting and adopting the due-process standard of Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).

      . Rousseau v. State, 855 S.W.2d 666, 672 (Tex.Crim.App.1993).

      . Arevalo v. State, 943 S.W.2d 887, 890 (Tex.Crim.App.1997).

      . See Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957).

      . See Price v. Georgia, 398 U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970).


author: JOHNSON, J., WOMACK, J., COCHRAN, J., KEASLER, J.,

text:
    STATE of Texas v. Angel AGUILERA, Appellee.
    No. PD-0024-04.
    Court of Criminal Appeals of Texas, En Banc.
    June 22, 2005.

      Eduardo N. Lerma, SR, El Paso, for Appellant.
    John L. Davis, Asst. District Atty., El Paso, for State.
   OPINION

JOHNSON, J.,

delivered the opinion of the Court,

joined by MEYERS, PRICE, HOLCOMB, and COCHRAN, JJ.

Appellee was charged by a single indictment with three counts of aggravated sexual assault. Appellee made an open plea of guilty before the trial court, and the trial court initially sentenced him to 25 years’ incarceration in the institutional division of the Texas Department of Criminal Justice. On the same day, after an off-the-record “victim impact statement” allo-cution, the trial court held an in-chambers discussion with the attorneys regarding the court’s reconsideration of the sentence. The trial court, over the state’s objection, then reassessed appellee’s sentence at 15 years’ incarceration. The state appealed. The court of appeals sustained the state’s sole issue, reversed the judgment of the trial court, and remanded the cause to the trial court for reinstatement of the sentence originally assessed and the corresponding judgment of conviction. State v. Aguilera, 130 S.W.3d 134 (Tex.App.-El Paso, 2003). Appellee petitioned for discretionary review.

We granted review of appellee’s sole issue, which asserts that the court of appeals erred in holding that Texas trial courts do not have the inherent power to vacate, modify, or amend their sentences downward within the time of their plenary power. The state argues that, once a defendant has been given a valid sentence, the trial court has no authority to change that sentence.

Appellee suggests that a trial judge should have the ability, upon reflection, to reform a defendant’s sentence downward when the interests of justice require it and complains that the court of appeals stated that the present case is different from McClinton v. State, 38 S.W.3d 747 (Tex.App.-Houston [14th Dist.] 2001, pet. dism’d, improvidently granted), yet failed to distinguish them. He cites Williams v. State, 145 Tex.Crim. 536, 170 S.W.2d 482, 486 (App.1943), for the principle that a trial court has full power and control of its judgments, orders, and decrees, and suggests that Powell v. State, 124 Tex.Crim. 513, 63 S.W.2d 712 (App.1933), and its progeny prohibit reforming a sentence upward, but do not prohibit reforming downward, as the trial court did in this case.

The state asserts that, once a valid sentence has been imposed, as it was here, the trial court has no authority to change that sentence. The state also argues that a trial court does not have plenary power to do something simply because there is no authority prohibiting such an action and that, because there is no express authority by statute or rule permitting the re-sentencing that occurred here, the trial court could not do so. The state further asserts that, even if there is plenary jurisdiction for a trial court to modify a previously imposed sentence, re-sentencing is statutorily prohibited by Tex.Code Ckim. PROC. Art. 42.09, § 1, which provides that a defendant’s sentence begins to run on the day that it is pronounced. It further argues that permitting such a modification of a valid sentence could permit victim-impact statements to affect the fact finder at punishment in contravention of the Legislature’s intent that such statements not affect the punishment.

In Harris v. State, 153 S.W.3d 394 (Tex.Crim.App.2005), we recently held that: 1) a trial court improperly re-sentenced a defendant one day after having initially sentenced him to an authorized, valid sentence; 2) the original sentence imposed was legal and authorized; 3) the second attempt at sentencing violated the defendant’s rights under the Double Jeopardy Clause; and 4) the second, twenty-five-year, sentence was an unauthorized and unconstitutional fifteen-year increase over the initial ten-year sentence. Id. at 397-98. While we noted that the trial court could have properly used its plenary power to modify the sentence if the new sentence was within the same statutory range of punishment, our decision was based on a constitutional violation, re-sentencing the defendant to a term of imprisonment that was outside of the statutory range of punishment rather than on a claim of plenary power to modify. Id. Harris is clearly different from the issue presented here, as the re-sentencing was done the next day and there can be no dispute that Harris had begun serving his sentence.

The procedural status of the case is relevant to our decision here. The appel-lee plead to the trial court without a plea bargain, thus the trial court’s choice of sentence was limited only by the applicable statute. If appellee had plead pursuant to a plea bargain and the trial court had accepted the agreement, the sentence could not be changed without appellee’s consent, as he would then be entitled to withdraw his plea. Absent a sentence not authorized by the applicable statute, a trial court may not alter a sentence assessed by a jury, but if the defendant elects sentencing by the judge after a jury trial, the situation is analogous to the open plea we are presented with here.

At 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. We hold that a trial court also retains plenary power to modify its sentence if, as in this case, the modification is made on the same day as the assessment of the initial sentence and before the court adjourns for the day. The re-sentencing must be done in the presence of the defendant, his attorney, and counsel for the state. Such modifications comport with the provisions of Article 42.09, § 1, that a defendant’s sentence begins to run on the day that it is pronounced, and the provisions of Tex.Code CRiM. Peoc. Art. 42.03, § 1(a), that a felony sentence shall be pronounced in the defendant’s presence. In such circumstances, a trial court has the authority to re-sentence a defendant after assessing an initial sentence if the modified sentence is authorized by statute.

In this case, the 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. Appellee’s sole ground for review is sustained. The court of appeals is reversed, and the trial court’s sentence of fifteen years’ incarceration is reinstated.

WOMACK, J., filed a concurring opinion.

COCHRAN, J., filed a concurring opinion, in which PRICE, J., joined.

KEASLER, J., filed a dissenting opinion in which HERVEY, J., joined.

KELLER, P.J., and HERVEY, J., dissented.

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.” 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.

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.

COCHRAN, J.,

concurring, in which PRICE, J. joined.

I join the majority opinion. I write separately to emphasize several points: (1) the majority is not overruling Williams v. State or Powell v. State; (2) this is a “sauce for goose is sauce for gander” rule which protects both defendants and society-at-large from a trial judge’s accidental misstatements or momentary mistakes; and (3) the State did not appeal the issue of whether the trial court’s re-sentencing, if it was based upon a statutorily prohibited consideration of the victim impact statement, was illegal; therefore, we cannot address that issue.

A. The majority opinion clarifies, but does not overrule, Williams and Powell on the question of when a sentence commences.

In both Williams and Powell, this Court held that a trial court does not have the power to alter or modify a defendant’s sentence once the defendant has begun to serve his sentence. Indeed, the Double Jeopardy Clause of the United States Constitution forbids any increase in a defendant’s sentence once that sentence has been served or “executed.” However, in Powell, this Court expressly stated:

It seems to be well established by the authorities in other states that a court has power to revise, correct or vacate a sentence imposed during the term of the court in which the conviction was had and before the original sentence has gone into operation or action is had under it.

The issue in this case, then, is when does a sentence go into operation? Article 42.09, section 1, of the Code of Criminal Procedure states that “[t]he defendant’s sentence begins to run on the day it is pronounced....” The State argues that, in fact, it begins to run “the moment that it is orally pronounced and that sentencing has concluded. This rule has the advantage of being a very bright line, but it fails in flexibility. Judges and parties occasionally make mistakes or misstatements in speaking. Such mistakes ought not be cast in stone. “The Constitution does not require that sentencing should be a game in which a wrong move by the judge means immunity for the prisoner.” Similarly, the rule fails to allow for a sudden change of heart if made swiftly enough.

Both federal and state jurisdictions, recognizing the inequitable harshness of such an inflexible rule, have held that a trial court may modify or alter its sentence — up or down — with “reasonable promptness” as long as the defendant has not actually begun to serve his sentence. The virtue of the majority’s default rule — a defendant’s sentence begins at the adjournment of court on the day that it is pronounced — avoids the ticklish technicalities of deciding whether the defendant may be returned to the bench after the trial court has orally remanded him to the custody of the sheriff, returned him from a hold-over cell or the elevator, and so forth. Of course, if the evidence affirmatively and clearly shows that the defendant had begun serving his sentence before adjournment of court on the day of sentencing, then the trial court cannot modify or alter his original sentence under Williams or Powell,

B. The Court’s rule permits a trial judge to alter or modify his sentence either up or down if the defendant has not yet begun to serve the original sentence.

Although the Court does not expressly say so, the rule set out in the majority opinion sets the finality of the sentencing process for both upward and downward alterations. A good rule generally works both ways. If a trial judge has authority to decrease a sentence before the defendant begins to serve that sentence — as the majority correctly holds — then surely he has equal authority to increase it if double jeopardy is no bar. As noted in the cases cited in Part A, double jeopardy is no bar.

The majority holds that “a trial court also retains plenary power to modify its sentence if, as in this case, the modification is made on the same day as the assessment of the initial sentence and before the court adjourns for the day.” That is, the trial court may modify its sentence either up or down on the day of sentencing as long as the defendant has not yet begun to serve his sentence.

C. The State did not appeal the propriety of a trial court altering its sentence after hearing the victim’s statement.

The trial judge changed her sentence from twenty-five years to fifteen years after hearing the victim’s statement about the crime. I certainly agree with the dissent that this is “an additional problem with this case which warrants mentioning.” It deserves nothing more than a mere mention, however, because the State did not appeal on this basis. The State raised a single point of error in the court of appeals:

A trial court has no authority to “resen-tence” a defendant when the first sentence is within the statutory range and the defendant has begun serving the sentence, and any purported resentence is void and appealable by the State as being a sentence that is illegal. When the trial court here sentenced Aguilera to a valid sentence within the statutory range of punishment of 25 years’ confinement and remanded him to custody, but within minutes, with the only intervening court event being the victim’s post-sentencing statement, resenteneed Aguilera to a lower punishment of 15 years’ confinement, wasn’t such purported resentencing void and appealable by the State as being a sentence that was illegal?

Because the State did not bring a point of error to the court of appeals addressing the purported illegal basis for the re-sentencing, we cannot address that question ourselves nor remand to the court of appeals to address an issue that was never directly presented to it.

With these comments, I join the majority opinion.

KEASLER, J.,

dissenting, in which HERVEY, J., joined.

The majority resolves the issue before us by relying on an opinion from this Court and two Rules of Appellate Procedure, neither of which address this issue. I would begin with binding precedent from this Court and, following that precedent, I would conclude that the trial judge lacked the power to change Aguilera’s sentence.

Our Precedent

In Williams v. State, we recognized the general rule that a trial court has full power over its orders during the term of court in which they are made and may correct or modify them during that term. But an exception exists when the defendant has suffered some punishment as a result of the order, in which case the trial court is powerless to change it. We also stated in Powell v. State that, once the sentence has begun, the trial court is without power to set it aside.

As the Court of Appeals below noted, we have repeatedly rejected attempts by trial judges to cumulate sentences after the first sentence has begun. In Ex parte Brown, we recognized that the defendant “had already suffered partial punishment under the [original sentence” at the time the judge entered the cumulation order. We relied on Williams and Powell to hold that the “belated attempt at altering the terms of ... [the] defendant’s sentence” was “null and void of effect.”

A defendant’s sentence begins to run on the day it is pronounced. The State argues that it is only logical that the sentence begin to run, not just on the day it is pronounced, but at the moment that it is pronounced. I agree. Aguilera’s 25-year sentence began running the moment the trial judge pronounced it. Since Aguilera had already started serving his sentence, Williams and Powell mandate that the judge was without power to change it.

One judge on this Court has advocated overruling Williams and Powell. But the Court has not done so, and the majority does not do so today. As a result, we must follow these holdings.

Rather than look to Williams or Powell, the majority relies on our recent opinion in Harris v. State for the proposition that “the trial court could have properly used its plenary power to modify the sentence if the new sentence was within the same statutory range of punishment.” In Harris, we held that a second attempt at sentencing which increased the defendant’s sentence violated the defendant’s protection against double jeopardy. The majority acknowledges that our decision in Harris was based on a constitutional violation, not a claim of plenary power. As a result, it does not bear on this case. Moreover, the statement we made in Harris was unnecessary to the resolution of the opinion and therefore dicta. And we did not discuss Williams or Powell in Harris.

Plenary Power

We have recognized that trial courts do have “plenary power” to alter their orders. What we have not resolved is what “plenary power” encompasses or how long it lasts. The majority concludes that 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.” But there is no support for this statement. The Court cites only Rules 21.4 and 22.3 of the Rules of Appellate Procedure. These two rules discuss motions for new trial and motions in arrest of judgment, but neither mentions anything about a trial judge’s plenary power to modify a sentence.

In a footnote, the majority mentions concurring opinions from this Court which have “touched upon” plenary power, but it does not mention majority opinions from this Court which discuss it. In State v. Bates, we noted that former Appellate Rule 36 vested a court “with the authority to correct mistakes or errors in a judgment or order after the expiration of the court’s plenary power, via entry of a judgment nunc pro tunc.” This statement implies that a judge has the power to alter a judgment without a nunc pro tunc judgment if he or she does so during the period of plenary power.

But in State ex rel. Cobb v. Godfrey, the judge contended that he could grant a motion for new trial outside the 75-day time limit provided in the Rules because of his “plenary power.” We rejected this contention, explaining that former Rule 31(e) required that if a motion for new trial was not ruled on within 75 days, it was overruled by operation of law. Similarly, we held in Awadelkariem v. State that a judge may “freely rescind” its ruling on a motion for new trial as long as he acts within the 75 day time limit provided by the Rules of Appellate Procedure. Cobb and Awadelkariem make clear that, to the extent that a judge has plenary power over a proceeding, that power is limited by the Rules of Appellate Procedure and by statute. It seems obvious that “plenary power” would also be restricted by this Court’s precedent.

In this case, the trial court may have had “plenary power” over the case at the time that she changed Aguilera’s sentence. But Williams and Powell limit the extent to which the judge could exercise that power. Those cases hold that a judge cannot alter a sentence after it has begun.

Procedural Status

The majority finds that the “procedural status of the case is relevant” to its decision, explaining that this case involved an open plea. I read Williams and Powell to apply to any sentence, not just one that results from a particular type of plea. Is the majority holding that a judge has plenary power to change a sentence after an open plea is entered, but not in the case of a trial or a plea bargain? This seems contrary to its own rationale that plenary power to change sentences is somehow based on motions for new trial and motions in arrest of judgment, which can obviously be filed regardless of whether the case involves a guilty plea or a trial. I do not understand why Aguilera’s open plea is relevant.

Courts of Appeals Opinions

The majority mentions in a footnote three Courts of Appeals opinions, but it fails to mention that our lower appellate courts are split on this issue.

In Tooke v. State, the trial court orally sentenced appellant to confinement in the Texas Department of Corrections “for not less than 5 years nor more than 50 years.” After the defendant accepted the sentence, the court re-sentenced him to confinement “for not less than 15 years nor more than 50 years.” Relying on Reynolds and Williams, the appellate court found that the second sentence was null and void. The court held that “[t]he original sentence was a valid and proper sentence” and “[a]fter sentence was first imposed on appellant, the trial court was without power to set aside that sentence and order a new sentence.”

Similarly, in State v. Dickerson, the judge sentenced the defendant to two years in prison. The judge realized he had made a mistake, called the defendant back up to the bench, and re-sentenced him to 25 years. “Not even a minute elapsed” between pronouncement of the two sentences. The judge granted the defendant’s motion to return the sentence to two years, and the State appealed, arguing that the court had the authority to change the sentence after it had been pronounced. The court of appeals disagreed, relying on Todke. It held that “the original sentence of two years was a valid and proper sentence,” so the “ ‘attempted resentencing’ ... was null and void.”

In contrast, the Fourteenth and Second Courts of Appeals have concluded that a trial court does have the right to re-sentence a defendant in these circumstances. But none of these cases addresses Williams or Powell. The majority does not explain why it opts to side with these holdings rather than Tooke and Dickerson, which follow Williams and Powell.

Victim Impact Statement

Finally, there is an additional problem with this case which warrants mentioning. The judge changed Aguilera’s sentence after hearing the victim’s statement. This very Court of Appeals has recognized that the “Legislature specifically enacted Article 42.03 to allow victim statements only after sentencing in order to alleviate any risk that the statement would affect the partiality of the fact finder at the punishment phase.” Indeed, the original bill permitted victim statements to be made before pronouncement of sentence. But during the committee hearings, some members expressed concern that victim statements could influence the judge and change the punishment. As a result, the bill was amended to provide for victim statements only after the court pronounces the sentence.

The trial judge filed a bill of exceptions stating that the sentence change was made “after reconsideration of approximately 5 days of testimony,” and “[njothing occurring during the victim allocution was considered by the court in making this decision.” This statement defies credibility. It is remarkably coincidental that the judge chose to reduce Aguilera’s sentence right after hearing the victim’s statement. I cannot condone this type of behavior. It seems an obvious attempt to circumvent Art. 42.03.

Conclusion

If the majority wants to overrule Williams and Powell, it should do so. If it believes that Junious, Ware and McClin-ton are better reasoned that Tooke and Dickerson, it should explain why. If it believes that Appellate Rules 21.4 and 22.3 grant trial judges plenary power to alter sentences, it should explain why. Since the majority opinion does none of this, I cannot join it.

      . The provision in Article 42.09, § 1, that a defendant's sentence “begins to run on the day it is pronounced" did not preclude the trial court from re-sentencing appellee on the same day on which he was initially sentenced.

      . The state did not assert, in its sole issue in the court of appeals, that the modification was based on an improper consideration of the victim-impact statement. Neither did it raise the issue in a cross-petition to appellee’s petition for discretionary review. We therefore do not address the question of whether the trial court modified the sentence on an improper basis.

      . Id. at 396, n. 4. In the instant cause, Aguil-era’s subsequent fifteen-year sentence was within the same first-degree-felony range of punishment as was his initial twenty-five-year sentence and was not an unconstitutional modification of that initial sentence. In addition, the modification made in Harris required the trial court to make an additional finding at the time of re-sentencing: the enhancement allegations were true. In this case, the trial court altered only its determination of what term of years constituted the appropriate sentence.

      . Tex. Rule of App. Proc. 21.4.

      . Tex. Rule of App. Proc. 22.3.

      . We note that we have held that a plea of guilty to the court results in a unitary trial. Caroll v. State, 975 S.W.2d 630, 631 (Tex.Crim.App.1998). We have also held that a trial court cannot grant a new trial as to only the punishment phase of a trial. State v. Hight, 907 S.W.2d 845, 847 (Tex.Crim.App.1995). However, a trial court may properly entertain a motion for new trial, grant it, rehear the defendant’s plea, and re-sentence him, and it does not thereby violate the prohibition against a grant by a trial court of a new trial as to punishment only.

      . Concurring opinions from this Court have touched on the subject of plenary power. See. e.g., Awadelkariem v. State, 974 S.W.2d 721, 728-29 (Tex.Crim.App.1998)(Meyers, J., concurring)("a court has inherent power to correct, modify, vacate, or amend its own rulings” and, as long as it does not, by its ruling, divest itself of jurisdiction or exceed a statutory time limit, it can simply change its mind on a ruling. "The ability to do so is a necessary function of an efficient judiciary.” Id. at 729.); McClinton, 121 S.W.3d at 769, n. 1 (Cochran, J., concurring)("Clearly a trial court has plenary jurisdiction over a case for at least the first thirty days after sentencing because it has the authority to receive a motion for new trial (or motion in arrest of judgment) within that time period and to resolve the merits of that motion within 75 days after sentencing.”).
      At least two courts of appeals have held that a trial court has the right to re-sentence a defendant within 30 days. Junious v. State, 120 S.W.3d 413, 417 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd)(trial court had inherent power within the time of its plenary jurisdiction to alter the defendant's sentence (motion for new trial timely filed; 25 years reduced to 10 years pursuant to plea bargain 15 days after original adjudication and sentencing)); Ware v. State, 62 S.W.3d 344, 353-55 (Tex.App.-Fort Worth 2001, pet. ref'd)(motion for new trial timely filed; a trial court in criminal cases possesses inherent power to correct, modify, vacate, or amend its own rulings (erroneously entered illegal sentence of 75 years reduced to legal sentence of 10 years by nunc pro, tunc order 12 days after original sentencing)); McClinton, 38 S.W.3d at 747, 750-51 (Tex.App.-Houston [14th Dist.] 2001, pet. dism'd)(trial court's re-sentencing merely amended its ruling within its plenary power (12 years reduced to 10 years 20 days after original sentencing)). Under our holding today, only the decision in McClinton is incorrect.

      . TDCJ calculates the beginning of a sentence by date. Exactly when on a given day the sentencing occurred does not affect the calculation. A sentence pronounced at 10:00 a.m. has exactly the same sentencing date as a sentence pronounced at 4:30 p.m. It is thus meaningless to say that a defendant began serving his sentence at 9:30 a.m.; he began serving it on the day, not at the time, of sentencing.

      . We observe that a trial court has discretion to grant a motion for new trial in the interest of justice even though that basis is not specifically enumerated in the rules of appellate procedure. State v. Gonzalez, 855 S.W.2d 692, 694 (Tex.Crim.App.1993). However, a trial court does not have authority to grant a new trial on its own motion; there must be a timely motion for such by the defendant. Zaragosa v. State, 588 S.W.2d 322 (Tex.Crim.App.1979); Harris v. State, 958 S.W.2d 292 (Tex.App.-Fort Worth 1997, pet. ref'd).

      . 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).

      . 145 Tex.Crim. 536, 542, 170 S.W.2d 482, 486 (1943) (“when the accused has accepted the judgment and has performed a part thereof, or has suffered some punishment as a result thereof, in which event the court is powerless to change the judgment in any substantial respect”).

      . 124 Tex.Crim. 513, 515-16, 63 S.W.2d 712, 713 (1933) (trial court does not have power to stack sentences after appellant had served several months of sentence which had been ordered to run concurrently with another sentence).

        .Williams, 145 Tex.Crim. at 542, 170 S.W.2d at 486; Powell, 124 Tex.Crim. at 515-16, 63 S.W.2d at 713; see also Ex parte Reynolds, 462 S.W.2d 605, 608 (Tex.Crim.App.1970) (holding that "it was beyond the power of the court ... to add a cumulation order onto the last sentence imposed after the petitioner had suffered punishment under the sentence originally imposed”); Ex parte Brown, 477 S.W.2d 552, 554 (Tex.Crim.App.1972) (trial court’s re-sentencing order making sentences cumulative entered after defendant had been imprisoned for two months was invalid; "[s]uch a belated attempt at altering the terms of a defendant's sentence [is] null and void of effect"); Blackwell v. State, 510 S.W.2d 952, 956 (Tex.Crim.App.1974).

      . Ex parte Lange, 18 Wall. 163, 175-6, 85 U.S. 163, 174, 21 L.Ed. 872 (1873) (double jeopardy protects against any increase in punishment for the same crime once the defendant has served his sentence or a portion thereof or other-wise suffered punishment; when statute set punishment at either a fine or imprisonment and defendant had already paid fine, trial court was without power to modify, five days later, original sentence of both a fine and imprisonment to delete the fine and require the imprisonment). In Lange, the Supreme Court expressly noted that the trial court did have constitutional authority to modify or alter the sentence upwards as long as that sentence had not yet been "executed.” Id. at 174, 85 U.S. 163. See also Ex Parte Barley, 842 S.W.2d 694, 695 (Tex.Crim.App.1992) (a cumulation order entered after a defendant has commenced serving his sentence violates double jeopardy provisions); see generally, Lee R. Russ, Power of State Court, During Same Term, to Increase Severity of Lawful Sentence-Modem Status, 26 A.L.R.4th 905 at [3] (1983 & 2005 Supp.) ("Russ”).

      . 124 Tex.Crim. at 515, 63 S.W.2d at 713.

      . The State relies, in part, on Ex parte Madding, 70 S.W.3d 131, 135 (Tex.Crim.App.2002), in which this Court stated that
      the imposition of sentence is the crucial moment when all of the parties are physically present at the sentencing hearing and able to hear and respond to the imposition of sentence. Once he leaves the courtroom, tíre defendant begins serving the sentence imposed.

        Id. An important aspect in Madding, however, was that the defendant was never brought back into open court, much less on the same day as the original sentencing, before the written judgment was modified outside his presence and without his knowledge. Id. at 136 ("Once applicant was removed from the courtroom and began serving his sentence, it was too late to cumulate the sentence just imposed with an earlier one. A trial court does not have the statutory authority or discretion to orally pronounce one sentence in front of the defendant, but enter a different sentence in his written judgment, outside the defendant’s presence”). To the extent that Madding could be construed as suggesting that the second the courtroom door closes upon the sentenced person’s back, that person has begun serving his sentence, and that sentence is forever cast in stone regardless of how speedily the defendant is returned to open court, the majority’s opinion today clarifies Madding.

        .See Rowley v. Welch, 72 App. D.C. 351, 114 F.2d 499 (1940). In rejecting the argument that the Double Jeopardy Clause prohibits any correction, alteration, or change once the words pronouncing sentence have fallen from a judge’s lips, the court of appeals stated:
      If the mere oral pronouncement of the words of sentence is a final and irrevocable judgment taking unalterable effect instantaneously, by that act the prisoner is placed in danger of execution of the sentence and therefore in jeopardy. But this assumes that the oral utterance is final and unalterable, that it exhausts the court’s power over its act of judgment. That certainly is not true, so far as some kinds of change are concerned. The oral utterance is an act of judgment, but it is not an entirely unalterable one. Other events, as for example entry of the order of commitment, are required to give it absolute finality. Until they occur, the court retains jurisdiction and power, within recognized limits which need not be specified here, to make corrections, perhaps even other changes, which may be required by a right administration of justice. Entirely apart from specific constitutional limitations, therefore, there is nothing in the nature of mere oral pronouncement of sentence, judgmental in character though that act may be, which gives it absolutely unalterable quality.
      ... Appellant’s view, carried to its logical extreme, would prevent a correction of mere inadvertence at any time after it occurs, even in the next breath. So construed, the Amendment would embalm into constitutional right an act of pure inadvertence, although every consideration of justice and its proper administration requires that this most solemn judicial step be taken with no taint of accident or inattention, but with the utmost deliberation and presence of mind. Courts, being human, cannot avoid occasional lapses characteristic of humanity, nor can the Constitution prevent them. It can only guard against their consequences. But it would not do so by perpetuating or making them inescapable.

        Id. at 503 (footnote omitted).

      . Bozza v. United States, 330 U.S. 160, 166-167, 67 S.Ct. 645, 91 L.Ed. 818 (1947) (holding that five-hour interim between first and second sentencing did not violate double jeopardy although defendant was taken first to the U.S. Marshal’s office and then to a local federal detention jail awaiting transportation to the penitentiary where he was finally to be confined; trial judge had forgotten to impose mandatory fine); compare State v. Dickerson, 864 S.W.2d 761, 763 (Tex.App.-Houston [1st Dist.] 1993, no pet.) (holding that trial court did not have authority to correct mistake in failing to sentence defendant as habitual offender when less than a minute elapsed from time of imposing first sentence of two years to imposing intended sentence of twenty-five years even though it was clear that the "trial court meant to find the enhancement paragraphs true”); Tooke v. State, 642 S.W.2d 514, 518 (Tex.App.-Houston [14th Dist.] 1982, no pet.) (trial court, which immediately realized that it had mistakenly omitted consideration of enhancement paragraph in pronouncing sentence, could not correct mistake and re-sentence defendant in same proceeding). Of course, neither Dickerson nor Tooke survive the majority’s holding today.

      . See Russ, 26 A.L.R.4th 905 at [4]; see also United States v. DiFrancesco, 449 U.S. 117, 134, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980) (noting that "the established practice in the federal courts [is] that the sentencing judge may recall the defendant and increase his sentence, at least (and we venture no comment as to this limitation) so long as he has not begun to serve that sentence”); United States v. DiLorenzo, 429 F.2d 216, 221 (2d Cir.1970) (because defendant was free on bail at the trial and had not yet commenced to serve his sentence, trial judge had the power to promptly recall him and impose a corrected sentence "a few hours later”); Green v. United States, 363 A.2d 979, 980 (Dist.Col.App.1976) (no double jeopardy violation when judge "misspoke” in originally sentencing defendant to a term of 3 to 6 years, and there was a delay of less than one hour before orally re-sentencing defendant to sentence of 3 to 9 years when defendant was still in courthouse); Thomas v. United States, 388 A.2d 1231, 1232-33 (Dist.Col.App.1978) (7 hour delay between imposition of original sentence and increased sentence was reasonably prompt when defendant had spent interval in detention cell awaiting transfer to jail; trial court explained that he wanted to correct a sentence he never intended to impose).

      . Maher v. State, 991 P.2d 1248, 1250-51 (Wyo.1999) (although trial judge had completed sentencing and ordered defendant remanded to custody of sheriff, defendant had not left courtroom; trial judge could reconvene court 25 minutes later, recall defendant to bench, and cumulate sentences); Vincent v. United States, 337 F.2d 891, 893-894 (8th Cir.1964) (defendant had not yet begun serving his sentence when he had not left courtroom although he was told to report to the marshal; trial court had authority to re-sentence him).

      . See Oxman v. United States, 148 F.2d 750, 752-53 (8th Cir.1945) (defendant was sentenced to six years’ imprisonment and taken to marshal’s office in the same building while co-defendants were being sentenced; more than an hour later, the trial court ordered the defendant returned to the courtroom and re-sentenced him; permissible because it was done prior to cpmmencement of service of sentence).

      . See Rowley, 114 F.2d at 501 (defendant had not begun to serve his sentence when he had been removed from courtroom, led through vestibule, and was recalled from elevator).

      . For example, if the defendant was sentenced to pay a fine and he did so before the end of the day. See Ex parte Lange, 18 Wall, at 176, 21 L.Ed. 872.

      . Under the Supreme Court's reasoning in DiFrancesco, 133-39, it appears that the Double Jeopardy Clause might not necessarily bar an upward modification of a sentence under certain circumstances even though the defendant had begun serving it. 449 U.S. at 133-39, 101 S.Ct. 426; see United States v. Lundien, 769 F.2d 981, 985-87 (4th Cir.1985) (analyzing DiFrancesco and reasoning that double jeopardy did not bar resentencing even after a defendant had begun serving his sentence, but concluding that due process concerns should be balanced in each case in determining whether defendant’s sentence can be increased once he has begun to serve it); United States v. Busic, 639 F.2d 940, 949-50 (3d Cir.1981) (stating that, under DiFran-cesco, trial judge could alter sentence upward on remand from appeal when original sentence on multiple counts was incorrect); compare United States v. Henry, 709 F.2d 298, 309-10 (5th Cir.1983) (noting that the scope of the holding in DiFrancesco "remains uncertain,” and declining to reach the constitutional question).

      . See, e.g., DiFrancesco, supra; DiLorenzo, supra; Green, supra; Thomas, supra; Rowley, supra.

      . Infra, op. at 706 (Keasler, J., dissenting).

      . The State did argue, in the court of appeals, that one rationale supporting its argument that the sentence was final and unalterable at the moment the trial judge orally spoke the words, was to avoid the situation in which a trial court could pronounce sentence, hear a victim impact statement, and then alter its sentence (either up or down) based upon that statutorily-prohibited consideration. See Tex.Code Crim. Proc. art. 42.03(b)(3) (victim impact statement must be made "after sentence is pronounced”).

      . 170 S.W.2d 482, 486, 145 Tex.Crim. 536 (1943).

      . Id.

      . 63 S.W.2d 712, 713, 124 Tex.Crim. 513 (1933).

      . Ex parte Brown, 477 S.W.2d 552, 554 (Tex.Crim.App.1972).

      . Id. See also Ex parte Reynolds, 462 S.W.2d 605, 607 (Tex.Crim.App.1970); Blackwell v. State, 510 S.W.2d 952, 956 (Tex.Crim.App.1974); Ex parte Voelkel, 517 S.W.2d 291 (Tex.Crim.App.1975).

      . Art. 42.09, § 1.

      . McClinton v. State, 121 S.W.3d 768, 777 (Tex.Crim.App.2003) (Hervey, J., dissenting).

      . 153 S.W.3d 394 (Tex.Crim.App.2005).

      . Ante, op. at 697.

      . 153 S.W.3d at 397-98.

      . Ante, op. at 697.

      . State v. Bates, 889 S.W.2d 306, 309 (Tex.Crim.App.1994).

      . See Ex parte Donaldson, 86 S.W.3d 231, 234 (Tex.Crim.App.2002) (Keasler, J., concurring).

      . Ante, op. at 697-98.

      . Ante, op. at 698 n. 7.

      . 889 S.W.2d at 309.

      . 739 S.W.2d 47, 48 (Tex.Crim.App.1987).

      . Id. at 48-49.

      . 974 S.W.2d 721, 728 (Tex.Crim.App.1998).

      . Ante, op. at 697.

      . See Junious v. State, 120 S.W.3d 413 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd); Ware v. State, 62 S.W.3d 344 (Tex.App.-Fort Worth 2001, pet. ref’d); McClinton v. State, 38 S.W.3d 747 (Tex.App.-Houston [14th Dist.] 2001, pet. dism’d, improvidently granted).

      . Ante, op. at 698 n. 7.

      . 642 S.W.2d 514 (Tex.App.-Houston [14th Dist.] 1982, no pet.).

      . Id. at 516.

      . Id.

      . 864 S.W.2d 761 (Tex.App.-Houston [1st Dist.] 1993, no pet.).

      . Id. at 762.

      . Id. at 763.

      . Id.

      . See Junious, supra; Ware, supra; McClinton, supra.

      . Garcia v. State, 16 S.W.3d 401, (Tex.App.-E1 Paso 2000, pet. ref'd).

      . Keith D. Nicholson, Would You Like More Salt With That Wound? Post-Sentence Victim Allocution in Texas, 26 St. Mary’s L.J. 1103, 1114-1115 (1995).

      . Id.

      . Id.