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
Pittman—Page 2
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
Pittman—Page 3
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?
Pittman—Page 4
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
Pittman—Page 6
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
Pittman—Page 7
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
Pittman—Page 8
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
Pittman—Page 10
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
Pittman—Page 12
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
Pittman—Page 13
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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