Pittman, Andell Brymonte

9/24/2025

PD-0894-23

  1. “Since the appeal was abated, can this Court review the decision below, or is it effectively prevented from ever reviewing the statutory issue?

    Was any error jurisdictional requiring abatement? 

    If abatement was required, was the decision interlocutory? 

  2. Under Article 42.03 of the Code of Criminal Procedure, does “presence” mean physical presence in the courtroom or is videoconference allowed?
  3. Assuming error, is a defendant harmed simply because he heard his sentence over videoconference rather than in person?
  4. Assuming harmful error, is an entirely new sentencing hearing required when Article 42.03 only instructs that the sentence be pronounced in the defendant’s presence?”

After a jury found Pittman guilty, the trial court (per his election) sentenced him via video conference. On appeal, he argued that this procedure violated his statutory right under Tex. Code Crim. Proc. art. 42.03, which requires that sentence be pronounced in the defendant’s presence. 

 

A majority of the court of appeals agreed with Pittman. In doing so, the court relied on Lira v. State, which held that, in the absence of a defendant’s written consent, physical presence is required to enter a plea.  666 S.W.3d 498, 506 (Tex. Crim. App. 2023).  Next, the court considered the remedy.  Because Pittman was not properly sentenced, the court abated and remanded for sentencing.  In the court’s view, it lacked jurisdiction over the appeal; therefore, it invoked Tex. R. App. P. 44.4(b), which authorizes an appellate court to direct the trial court to correct an error so that the appeal can proceed as if the error had not occurred.

 

Justice Valenzuela dissented, distinguishing Lira on the ground that it involved a guilty plea. She noted that the sentencing statutes require the defendant’s “presence” but do not specify “personally present,” “in person,” or “in open court.” In her view, this language was satisfied here and the trial court retained jurisdiction. Pittman participated via videoconference, was represented by counsel who cross-examined witnesses, and was given the opportunity to explain why sentence should not be pronounced.

 

The State first challenges the appellate court’s decision to abate and remand. It argues that abatement would be proper only if the trial court had failed to pronounce any sentence. Because the court did pronounce Pittman’s sentence, the State contends the issue does not create a jurisdictional defect and that the proper remedy was to reverse and remand for resentencing in Pittman’s presence. The State further objects to abatement because it forecloses the State’s ability to seek review.

 

On the merits, the State adopts Justice Valenzuela’s interpretation of the sentencing statutes and maintains that videoconferencing does not infringe any constitutional rights. If a constitutional right were at risk, the State argues, the defendant could object and request an in-person hearing and then object again if the request is denied.  The State also faults the court for failing to conduct a harm analysis, asserting that any error was statutory—not structural, constitutional error. Finally, it contends that the requirement of pronouncement in the defendant’s presence pertains only to the announcement of sentence, not to the punishment hearing itself, and therefore a remand for a new sentencing hearing goes beyond the scope of any error; Pittman is entitled only to a formal pronouncement in his physical presence.