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PITTMAN, ANDELL BRYMONTE v. the State of Texas

2026-09-17

Authorities cited

Opinion

majority opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-0894-23

ANDELL BRYMONTE PITTMAN, Appellant

v.

THE STATE OF TEXAS

ON THE STATE=S PETITION FOR DISCRETIONARY REVIEW

FROM THE FOURTH COURT OF APPEALS

BEXAR COUNTY

KEEL, J., delivered the opinion of the Court in which

RICHARDSON, NEWELL, WALKER, MCCLURE, and PARKER, JJ., joined, and

FINLEY, J., joined except for part II. NEWELL, J., filed a concurring opinion in which WALKER, J., joined. PARKER, J., filed a concurring opinion. SCHENCK, P.J., filed a dissenting opinion in which YEARY, J., joined.

OPINION

Does a trial court violate Article 42.03’s presence requirement by

pronouncing sentence via videoconference? See Tex. Code Crim. Proc. art. 42.03

§ 1(a). We assume without deciding that doing so is error but hold that any error

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here was harmless. Moreover, the court of appeals had jurisdiction to consider

the appeal, and so do we. We reverse the court of appeals’s judgment and

remand the case for further proceedings consistent with this opinion.

I. Overview

After a jury convicted Appellant of burglary, the trial court held a

punishment hearing via videoconference without objection to the electronic format.

The hearing included the direct and cross-examination of four witnesses and

arguments by counsel. At the hearing’s conclusion the trial court pronounced

Appellant’s sentence at 20 years in prison.

Appellant argued on appeal that the trial court erred to pronounce his

sentence via videoconference and not in his personal presence, citing Article 42.03

§1(a). Id. He did not complain about the hearing itself—only the

pronouncement. In a split decision, the appellate court held that the sentence

pronouncement in a videoconference violated Article 42.03 §1(a)’s presence

requirement, relying on two opinions from this Court and an arguably narrow

definition of “presence.” Pittman v. State, 683 S.W.3d 433, 436 (Tex. App.—San

Antonio 2023) (first citing Casias v. State, 503 S.W.2d 262, 265 (Tex. Crim. App.

1973); then citing Lira v. State, 666 S.W.3d 498, 518 (Tex. Crim. App. 2023); and

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then citing Presence, Black’s Law Dictionary (11th ed. 2019)).

The court of appeals also concluded that it lacked jurisdiction because

Appellant’s sentence was illegal for having been pronounced outside his personal

presence. Id. at 439. It abated the appeal for a new punishment hearing but

stayed the abatement after the State moved for rehearing and en banc

reconsideration. We then granted the State’s petition for discretionary review.

It asked, among other things, whether any error from the pronouncement in a

videoconference was harmless. 1 Because Article 42.03 §1(a) is unclear, we

assume without deciding that it requires a defendant’s personal presence, but we

find no harm from the assumed error because the purposes of sentence

1

We granted review of these issues presented in the State’s petition:

1. Since the appeal was abated, can this Court review the decision below, or is it effectively

prevented from ever reviewing the statutory issue?

a. Was any error jurisdictional requiring abatement?

b. 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?

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pronouncement were satisfied in the videoconference.

II. Article 42.03 §1(a) Unclear

Article 42.03 §1(a) says, “Except as provided in Article 42.14, sentence shall

be pronounced in the defendant’s presence.” Tex. Code Crim. Proc. art. 42.03

§1(a). Appellant’s offense—burglary of a habitation with intent to commit

assault—is not excepted from Article 42.03 §(1)(a)’s presence requirement. See

Tex. Code Crim. Proc. art. 42.14 (b)(2)(A), 42A.054(a)(12)(A). So, Appellant’s

sentence had to be pronounced in his “presence”—a term the statute does not

define and is subject to two interpretations: it either allows sentence

pronouncement via videoconference, or it requires a defendant’s personal presence

during pronouncement.

Viewed in isolation, Article 42.01 §1(a)’s presence requirement could be

interpreted as allowing presence via video conference.

First, ordinary definitions of “presence” encompass electronic presence.

See, e.g., presence definition, Merriam-Webster.com Dictionary,

https://www.merriam-webster.com/dictionary/presence (last visited July 24,

2026) (defining “presence” as the “fact or condition of being present” and

defining “present” as “being in view or at hand”). So do older definitions, even

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those published closer in time to Article 42.03’s predecessor statute. See, e.g.,

Presence definition, American Dictionary of the English Language (Noah Webster,

ed. 1828), https://1828wd.com/ (last visited July 24, 2026) (defining presence as,

“State of being in view; sight”); Presence and Present definitions, A Popular and

Complete English Dictionary 1016 (John Boag ed., 1848),

https://www.google.com/books/edition/A_Popular_and_Complete_English_Dic

tionar/pHsPAAAAYAAJ?hl=en&gbpv=0 (last visited July 24, 2026) (defining

presence as, “State of being in view; sight” and present as “opposed to absent.”).

Second, other statutes explicitly require “in person,” “personal,” and/or

“in open court” presence. E.g., Tex. Code Crim. Proc. art. 1.13(a) (requiring jury

waiver to be made “in person” and “in open court”; id. art. 1.15 (requiring jury

waiver “in open court in person” for felony cases); id. art. 33.03 (requiring

defendant in felony case to “be personally present at the trial” and “likewise [to]

be present” in misdemeanor cases punishable by incarceration). Indeed, even

Article 42.03 specifies “in person” presentation in another subsection not at issue

here. See id. art. 42.03 §1(b) (allowing a victim or his relative “to appear in

person” after sentence is pronounced to “present to the court and to the

defendant” a victim-impact statement). These ordinary definitions and their

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contrast with other statutes’ explicit personal-presence requirements suggest that

Article 42.03 §1(a) does not require the defendant’s personal presence for sentence

pronouncement.

But looking at a broader context, Article 42.03 §1(a)’s presence requirement

could be interpreted as foreclosing videoconference pronouncement because still

other statutes explicitly authorize videoconference appearance or presence,

suggesting that absent such authorization, “presence” must be in person. See,

e.g., Tex Code Crim. Proc. arts 15.03(c) and 15.17(a). These statutes demonstrate

the Legislature’s purposeful distinction between electronic and personal

appearance. See Lira, 666 S.W.3d at 513 n.73.

But Article 42.03 §1(a) neither explicitly requires personal presence nor

explicitly authorizes videoconference presence, one of only a few such statutes.

E.g., Tex. Code Crim. Proc. art. 16.08 (specifying for examining trials, “The

examination of each witness shall be in the presence of the accused.”); id. art. 28.01

§1 (authorizing a trial court to set pre-trial hearings and requiring that “[t]he

defendant must be present at the arraignment, and his presence is required during

any pre-trial proceeding.”).

Reading Article 42.03 §1(a) to require personal presence would add

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conspicuously missing language to it and render meaningless the explicit personalpresence requirements found in other statutes. Reading it to allow presence via

videoconference would have a similar effect—it would add an option that the

Legislature did not mention and render superfluous its explicit grant in other

statutes.

Either reading would violate rules of statutory construction. These rules

focus on the statute’s text and foreclose adding to or subtracting from it. See

Boykin v. State, 818 S.W.2d 782, 785-86 (Tex. Crim. App. 1991). We presume

that every word has been used for a purpose, and we give effect to each word,

phrase, clause and sentence if reasonably possible. Tates v. State, 721 S.W.3d 268,

273-74 (Tex. Crim. App. 2025). And we don’t consider a statute in isolation;

instead, we “look at other statutory provisions as well to harmonize provisions and

avoid conflicts.” Watkins v. State, 619 S.W.3d 265, 272 (Tex. Crim. App. 2021);

e.g., State v. Barber, 735 S.W.3d 41, 49 (Tex. Crim. App. 2026) (reasoning that use

of language in some arrest statutes but not others signaled legislative intent to add

meaning when it used the phrase). Based on these rules, Article 42.03 §1(a)’s

presence requirement is ambiguous.

Given an ambiguous statute, we would usually turn to extra-textual sources

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for guidance in construing a statute. See Tex. Gov’t Code § 311.023 (allowing

courts construing a statute to consider, among other things: the object sought to

be attained; circumstances under which the statute was enacted; legislative history;

common law or former statutory provisions, including laws on the same or similar

subjects; consequences of a particular construction; administrative construction of

the statute; and title, preamble, and emergency provision.) But these sources

provide no guidance here. Article 42.03 was amended in a sweeping bill granting

the courts of appeals jurisdiction in criminal cases. See Tex. Code Crim. Proc.

art. 42.03 (amended by Acts 1981, 67th Leg., ch. 291 (S.B. 265), § 113, effective

September 1, 1981). The legislative history reveals nothing about the legislature’s

intent in requiring the defendant’s “presence” during sentence pronouncement.

Accordingly, we assume without deciding that Article 42.03 §1(a) does not

allow a defendant’s presence by videoconference and that the trial court erred to

pronounce Appellant’s sentence in that electronic forum. The assumed error,

however, was harmless, because the electronic forum served the purposes of

sentence pronouncement in the defendant’s presence.

III. No Harm

Sentence pronouncement in the defendant’s presence via videoconference

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was harmless because it fulfilled the purposes of the presence requirement.

• It gave Appellant an opportunity to respond to the sentence, request

clarification of it, and ensure he would be credited for time served. See,

e.g., Ex parte Madding, 70 S.W.3d 131, 135 (Tex. Crim. App. 2002) (noting

that “the imposition of sentence is the crucial moment when all of the

parties are physically present . . . and able to hear and respond to the

imposition of sentence.”).

• It allowed the parties to know the sentence immediately without waiting

for a written judgment. See, e.g., Stokes v. State, 688 S.W.2d 539, 541

(Tex. Crim. App. 1985) (“With the pronouncement of a sentence the

court breathes life into the judgment. . . . The sentence comes into

existence on the day and at the time it is pronounced.”); Coffey v. State,

979 S.W.2d 326, 328 (Tex. Crim. App. 1998) (holding that oral

pronouncement controls over written memorialization of sentence).

• And it ensured that Appellant witnessed the start of the appellate clock.

See Coffey, 979 S.W.2d at 328 (noting that sentence pronouncement “is

the appealable event”).

So even if the trial court erred to pronounce sentence in a videoconference,

Appellant was not harmed.

IV. Two Jurisdiction Questions

We face two jurisdiction questions. One was raised by the court of appeals,

and the other by Appellant, but neither has merit.

First, the court of appeals decided that it had no jurisdiction because the

sentence was illegal for having been pronounced outside Appellant’s presence.

Pittman, 683 S.W.3d at 439. With “no proper sentence in the record,” it said it

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lacked jurisdiction. Id. (citing Lira, 666 S.W.3d at 519, and Casias, 503 S.W.2d at

265). Its reliance on Lira and Casias was misplaced because they were rooted in a

statute whose definition of sentence included the defendant’s presence—a

definition abandoned in 1981. See Tex. Code Crim. Proc. art. 42.02 (amended by

Acts 1981, 67th Leg., ch. 291 (S.B. 265), § 112, effective September 1, 1981).

“Sentence” now is defined as “that part of the judgment, or order revoking a

suspension of the imposition of a sentence, that orders that the punishment be

carried into execution in the manner prescribed by law.” Id. As we explained

after the court of appeals decided this case, a sentence is no longer rendered illegal

by lack of a defendant’s personal presence in the punishment phase. Tates, 721

S.W.3d at 281 (noting, “While proper pronouncement of sentence may be

jurisdictional for an appeal, neither Casias nor Lira mean that a violation of the

right to be personally present during the punishment phase of trial renders the

sentence illegal.”). Assuming that the pronouncement of sentence via

videoconference was not in Appellant’s “presence” under Article 42.03 §1(a), he

was still sentenced, and the court of appeals had jurisdiction over his appeal.

Appellant raises the second jurisdiction question. He argues that he failed

to invoke appellate jurisdiction because his timely notice of appeal bore the wrong

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cause number, and the amended notice with the correct cause number was filed too

late. See Tex. R. App. P. 26.2(a)(1) (imposing 30-day deadline for notice of

appeal). The State counters that the original notice was filed within 30 days, and

a defective notice may be amended. See Tex. R. App. P. 25.2(f) (allowing

amendment of notice in accord with Rule 37.1 or before appellant’s brief is filed);

Tex. R. App. P. 37.1 (allowing amendment after notice of defect). The State is

correct.

Our rules of appellate procedure are intended to prevent trivial mistakes

“from divesting appellate courts of the jurisdiction to consider” the merits of

criminal appeals. Few v. State, 230 S.W.3d 184, 187 (Tex. Crim. App. 2007).

The right to appeal “should not depend upon tracking through a trail of

technicalities.” Id. at 190.

In Few the defendant put the wrong cause number on his notice of appeal—

he referenced a dismissed case instead of the one under which he had been

convicted. Id. at 185. Still, his “notice was sufficient to show his desire to

appeal from the” judgment of conviction. Id. The record showed that “all

parties knew that [Few] timely expressed his desire to appeal his conviction[.]”

Id. at 190. The court of appeals erred to dismiss Few’s appeal “without first

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giving him a reasonable opportunity to correct the defect in his notice of appeal.”

Id. (citing Tex. R. App. P. 25.2(f), 37.1).

Appellant’s case is like Few’s—a mix-up of two cause numbers. Appellant

was charged with burglary in cause numbers 2016CR2517 and 2016CR2518

(hereafter “2517” and “2518”). Cause number 2517 was dismissed after the jury

found Appellant guilty in cause number 2518, and he was then sentenced in cause

number 2518. His attorney filed a timely notice of appeal and motion for new

trial, but they bore cause number 2517—the dismissed case. Even so, the notice

referenced the “judgment rendered against” Appellant, and the motion referenced

the sentencing in cause number 2518. The court of appeals apparently caught

onto the mistake because it ordered an amended notice of appeal “[i]f there is

another cause number associated with the judgment that Appellant is appealing[.]”

An amended notice was filed the next day under the correct cause number, 2518,

more than 30 days after sentence had been pronounced.

As in Few, Appellant’s desire to appeal his conviction was obvious from the

record. But in contrast with Few, the court of appeals here correctly allowed him

a reasonable opportunity to correct his notice. See Few, 230 S.W.3d at 190; Tex.

R. App. P. 25.2(f), 37.1. So the court of appeals was not divested of jurisdiction

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for a trivial mistake.

V. Response To The Dissent

The dissenting opinion argues that because Article 42.03’s predecessor

statute was enacted in the 19th century, its presence requirement necessarily meant

physical presence because the only option back then was absence. But Appellant

was not absent, and the law is not “trapped in amber.” United States v. Rahimi,

602 U.S. 680, 691-92 (2024). A defendant is not rendered absent from a

proceeding just because technology has outstripped an all-or-nothing

understanding of “presence.” Even the Sixth Amendment right to confront

witnesses is subject to new technology, and its violation is subject to a harm

analysis, to boot. See Maryland v. Craig, 497 U.S. 836, 860 (1990); Haggard v.

State, 612 S.W.3d 318, 325, 328 (Tex. Crim. App. 2020). And contrary to the

dissent’s pearl clutching, the harm analysis of a virtual proceeding is eminently

doable. E.g., Hughes v. State, 691 S.W.3d 504, 522-25 (Tex. Crim. App. 2024)

(concluding that the defendant suffered constitutional harm from a Zoom hearing

in which he was repeatedly muted by the trial court). Whatever definition of

“presence” prevails, Appellant was not absent when his sentence was pronounced,

and he could hear and respond to the imposition of his sentence in that moment.

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VI. Conclusion

If the trial court erred to pronounce sentence in a videoconference, the error

was harmless. Moreover, the court of appeals had jurisdiction of the appeal even

though Appellant’s sentence was not pronounced in his physical presence and even

though his original notice of appeal bore the wrong cause number. We reverse the

lower court’s judgment, vacate its abatement and remand order, and remand the

cause for further proceedings consistent with this opinion.

Delivered: September 17, 2026

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