St. Mary's Law Journal


Post-sentence plenary power of a trial court is not statutorily defined in Texas criminal law, and its boundaries are not fully delineated. The Texas Court of Criminal Appeals recently added to the definition of plenary power in State v. Aguilera. The definition gives state trial courts the power to modify sentences if the modification is made the same day as the initial sentence before the court adjourns and if it is made in the presence of the defendant, his counsel, and counsel for the State. This holding lessens the sentencing pronouncement’s importance; potentially turning sentencing into a day-long affair. Additionally, the selection of the trial court’s adjournment as the point when sentence modification is cut off also suggests arbitrariness. Along with these problems come several potential consequences, including different sentencing opportunities. Those sentenced earlier in the day have a longer timeframe for potential modification. Similarly, allowing judicial modification post-sentencing allows the victim allocution statement to “affect the partiality” of the judge. The best solution to the potential problems not addressed by Aguilera was given in the dissenting opinion itself. Because a sentence begins to run from the moment of pronouncement, the trial court has no authority to make sua sponte modifications. This would preserve a judge’s plenary power to rule on motions for new trial and motions in arrest of judgment. The only authority which would be denied would be the ability to alter valid sentences after they are pronounced and before court adjournment. Treating sentence pronouncement as the starting point also eliminates the chance victim allocution will affect a judge’s decision to modify a sentence.


St. Mary's University School of Law