PITTMAN v. STATE (2026)

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 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 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 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 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_Dictionar/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 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 conspicuously missing language to it and render meaningless the explicit personal-presence 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 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 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 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 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 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 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, 144 S.Ct. 1889, 219 L.Ed.2d 351 (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, 110 S.Ct. 3157, 111 L.Ed.2d 666 (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.

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.

I join the Court's opinion. I write separately to add two observations. First, I am not entirely sold on the ambiguity of the word “presence” in Article 42.03 of the Code of Criminal Procedure. Definitions of “presence” dating back to the 1800's are well and good, but the elephant in the room is that videoconferencing didn't exactly exist in the 1800's so there was no reason to use the phrase “in person” when defining “presence.” And though the technology existed in 1981, if the movie at Disney's Sci-Fi Dine-In hasn't lied to me ¹ , it seems more likely that the idea of “telepresence” as part of the criminal justice system didn't become a thing until around 1997 when the Legislature enacted a statute to take advantage of the technology. In my mind, the legislatures use of “presence” in the statute more likely suggested an exclusion of pronouncing sentence by séance than anticipating sentencing via videoconference.² Presiding Judge Schenck makes a good point that we look at how the word would have been understood at the time it was used by the legislature, not what it might mean now.³ Nevertheless, I understand why the Court points to the arguments and counterarguments regarding the meaning of the word “presence” as it is explaining its justification for assuming statutory error. It makes sense and is necessary. I join the Court's opinion because it does not purport to decide the meaning of “presence” in Article 42.03 and instead assumes the statute was violated. I only felt the need to write separately so that I might suggest that practitioners not read into the Court's back-and-forth analysis to suggest one interpretation of the word should be given more credit than another.

Second, I would note that the variables at play in sentence pronouncement are nowhere near as numerous as they would be in the actual sentencing phase of the case. At the pronouncement of sentence, a defendant only has three reasons for preventing the pronouncement of sentence: 1) he's been pardoned; 2) he's incompetent; or 3) he wants to claim they charged the wrong guy.⁴ Nothing in the record in this case would support any of those claims, had Pittman made them. So, I do not see how making a defendant assert one or more of those claims via video chat would have a substantial or injurious effect on his statutory right to have his sentence pronounced in his presence.⁵ I agree with the Court that there is no harm from the assumed violation in this case because the purposes of sentence pronouncement were served, but I also believe Appellant cannot show harm because nothing in the record supports a claim that pronouncing sentence via video prevented him from asserting one of the three permissible objections to the pronouncement of sentence.

With these thoughts, I join the Court's opinion.

CONCURRING OPINION

The dissent complains that an outcome-determinative test for harm is inappropriate in this case. I agree, but the Court's opinion does not engage in an outcome-determinative analysis. Ford v. State explained that, for some non-evidentiary statutory violations, the proper focus is on whether the “statute's purpose was thwarted by the error.”¹ In Ford, the trial court erroneously refused to grant the defendant's request for a jury shuffle.² The Court concluded that a “focus on the outcome of a case” was “not quite apt in the context of a case in which the jury itself is the object of the error.”³ So the Court needed to consider the right protected by the statute.⁴ In the present case, the Court focuses on what the statute is designed to protect and determines that the videoconferenced sentencing “served the purposes of sentence pronouncement in the defendant's presence.”

The dissent next contends that the Court rewrites the statute because no defendant would ever be able to prove harm in a situation like this. But harm is a distinct issue from error. Finding a statutory violation harmless does not mean that the Court is rewriting the statute. That is true even if the violation of a particular statute is routinely harmless. In Ford, the Court determined that the purpose of the jury shuffle was to ensure “that the members of the venire are listed in random order.”⁵ The Court found that other rules and statutes already required the venire to be listed in a random order, so “a trial judge's failure to order a shuffle does not, by itself, indicate a nonrandom listing of the venire.”⁶ The Court further explained that nothing in the record showed (1) that the statutes requiring random selection and ordering of the venire at the outset were disregarded, (2) that the panel was reordered after being assembled, or (3) that the process of assembling a jury panel was subverted in some fashion to achieve a nonrandom listing of the venire.⁷ Consequently, the Court found the error to be harmless.⁸ And given Ford’s holding and reasoning, a violation of the jury-shuffle statute would ordinarily be harmless, but harm could be shown in an unusual case, if non-randomness were improperly injected into the assembling of the venire.⁹

If a jury-shuffle error can be routinely harmless in nearly every situation in which it could come into play, then it is not a stretch to suggest that a sentence-pronouncement error could be routinely harmless in the videoconferencing situation. If anything, the Court's holding in the present case—applying only in the videoconferencing scenario—leaves open many more situations in which harm could be shown than for the jury-shuffle violation in Ford. A defendant could be entirely absent or present only by some means less than videoconferencing, such as via audio-only technology.

With these comments, I join the Court's opinion.

DISSENTING OPINION

I disagree with the majority. I write separately to explain why. While the bulk of the majority opinion addresses error in the context of the meaning of the statutory text, it immediately renders all of that discussion dicta and, more importantly, the entire statute meaningless by finding this (and presumably every error) in failing to pronounce sentence in the defendant's “presence” harmless so long as teleconferencing is used. See Maj. Op. at –––– – –––– (error analysis); id. at –––– – –––– (harm analysis).

The entire point and sole purpose of the statute is grounded in maintaining the perceived structural legitimacy of the process. When the legislature enacts a statute forbidding courts from literally “phoning in” the result, it means what it says no different than it would by forbidding a trial to take place in a parking lot. Whether departures from any of these requirements can ever be proven to change the result is inherently unknowable. The right to have one's fate adjudicated in a forum and by a process that reflects the solemnity of the event is substantial on its own and without regard to its effect on the result.¹

DISCUSSION

A. Error

The majority appears to accept that the statute as written did not contemplate or countenance a pronouncement of sentences by telephone, facsimile, mail, or other means of remote communication. See United States v. Bethea, 888 F.3d 864, 867 (7th Cir. 2018) (collecting cases requiring a defendant to be present during sentencing based on Rule 43 of the Federal Rules of Criminal Procedure). Whether any of the various current forms of “virtual” engagement offer an acceptable alternative to the face-to-face requirement is a question only this Court speaks to, but we are obliged to accept that the legislature was aware of the availability of remote means of communication when it continued to require that pronouncement occur in the defendant's “presence,” and we are not free to rewrite the statute ² when we decide that the chosen form of face-to-face interaction is no longer needed.³ Any other treatment of the question ignores the “fundamental canon of statutory construction that words generally should be interpreted as taking their ordinary ․ meaning ․ at the time” of the enactment. New Prime Inc. v. Oliveira, 586 U.S. 105, 113, 139 S.Ct. 532, 202 L.Ed.2d 536 (2019) (citation modified); Antonin Scalia & Bryan Garner, Reading Law: The Interpretation of Legal Texts 79–92 (2012) (the “Fixed Canon Doctrine” interprets the text within the context of its meaning at the time of enactment).⁴ Resort to evolving technical options of remote means of communication requires rejection of the settled legislative text and ushers us into the lane of “purposivism” even if the end result is marketed as a product of harmlessness.⁵ This would be an awkward encroachment on the legislative prerogative in any circumstance, but it is surely at its most acute, where, as here, the legislature is aware of like options (i.e., teleconferencing).

The majority claims the word “presence” is ambiguous because the statute is silent about videoconferencing and because dictionary definitions don't wholly preclude the possibility that a person appearing via videoconference could be considered to have been in the court's presence.⁶ Maj. Op. at ––––. Of course the statute is silent about videoconferencing. This requirement of presence was contained in the Old Codes of 1856 enacted by the Sixth Legislature about 170 years ago.⁷ This is well before videoconferencing (or telephones) existed. (It was only eleven years after Texas was admitted into the Union.) The prevailing forms of communication at the time were writing and telegraph. Alexander Graham Bell did not patent the telephone until 1876, twenty years later.⁸ The first rudimentary video conferencing was introduced about thirty-four years ago in 1992—116 years after the telephone was patented. And, of course, means of audio and video conferencing were well known and available when the legislature last embraced the requirement of “presence.”⁹

The better reading of the statute when not divorced from the context of its enactment is that the Sixth Legislature cannot have envisioned that its, at-least 170-year-old presence requirement, would apply to videoconferencing because no such technology existed. The only conferencing back then was the old face-to-face kind, and it was far more burdensome to command in an era before automobiles and public highways. Nevertheless, then, as now the legislature required the defendant's presence.

Supporting this conclusion is that the legislature has had every opportunity to amend the statute (around seventeen sessions by my count) to clarify that “presence” by videoconference (or telephone) is sufficient when the defendant's sentence is pronounced, but it has not.¹⁰ As it stands, the original (and continuing) choice to use the word “presence” is significant and hardly aids the resort to the majority's declaration of harmlessness to declare, contrary to the text, that videoconferencing serves the “purpose” of requiring a defendant's presence.

Just as in 1856, presence means in person. The only thing that has changed is plain language compared to now and then. The Court is mistaken for projecting contemporary notions of linguistics onto a 170-year-old statute. Certainly, the legislature did not intend to include videoconference in its definition of presence; it didn't even define the word, probably because its meaning was so obvious. It used the word “presence” because there was nothing else except—not present. The trial court erred when it pronounced sentence without the defendant being physically present or in the absence of a proper waiver. Now, I turn to harm.¹¹

B. Harm

The majority's harm analysis, although the basis for its opinion, is the shortest section in its decision. Id. at –––– – ––––. Synthesizing our precedent, the majority concludes that Appellant was not harmed for three reasons: (1) he had “an opportunity to respond to the sentence, request clarification of it, and ensure he would be credited for time served,” (2) the parties knew “the sentence immediately without waiting for a written judgment,” and (3) “Appellant witnessed the start of the appellate clock.” Id. At the outset, these would all be fine rationales for abandoning the requirement of “presence” in pursuit of these purposes were we vested with the legislative authority. As we are not, whether they can be offered as a harmlessness-based substitute for a court's evasion of the most basic process-driven structural requirement remains to be debated. I believe the majority's effort to achieve this result through our past precedents fails as well.

For the first harmless-error factor, the majority cites Ex parte Madding, 70 S.W.3d 131, 135 (Tex. Crim. App. 2002), but we said in Madding—as the majority confusingly quotes—“the imposition of sentence is the crucial moment when all of the parties are physically present ․” Id. (emphasis added). Madding supports my position, not the majority's. Id. Next, it cites Stokes v. State, 688 S.W.2d 539, 541 (Tex. Crim. App. 1985) and Coffey v. State, 979 S.W.2d 326, 328 (Tex. Crim. App. 1998). Neither case supports its assertions. They merely hold that oral pronouncement controls over the written judgment, which is well-settled law, and that the appealable event is the pronouncement of the defendant's sentence, none of which affects whether a defendant was harmed when he was not allowed to appear in person. To the extent they lend anything to our decision here, they support the importance this Court has placed on being sentenced in person.

Even if this kind of process error can be assessed for harm, which I reject in this setting, the harmless-error dog summoned by the majority doesn't hunt. Indeed, it is telling about the substantive alternation that is at work here that no defendant will ever be able to prove harm in a situation like this, so courts may pronounce sentence via videoconference or even during a hearing in virtual reality, regardless of it being error. Indeed, according to the majority's reasoning, the same lack of harm could have been urged throughout the period covered by the enactment and, at least, Mr. Bell's invention.

There is something vitally important about how a person is sentenced within the system adjudicating him that is far more important than the individual or the details of any single case. The event is the culmination of the process and important to the community's understanding of it. Permitting the system to elect its own path to more practical, volume-based, assembly-line alternative advances efficiency but does little to impress on those in the room the significance of the event. And regardless of its place in public appreciation or deterrence, from the perspective of the individual there is something valuable about being there, seeing the judge, and hearing him or her pronounce a sentence in person that videoconferencing and virtual reality can't replace. I believe the legislature's choice makes sense for all of these reasons, though it should be enough that it is its choice, not ours.

Finally, I will note that this is not the first time we have addressed videoconferencing and someone appearing in person, although it dealt with an adverse witness and the Confrontation Clause.¹² See Haggard v. State, 612 S.W.3d 318, 326 (Tex. Crim. App. 2020) (“We are not aware of a reported decision ․ in which the number of televisions projecting the witness's visage or the size of the televisions control a Confrontation Clause inquiry.”). We have said that not being there is different. So did our legislature in this statute.

C. Jurisdiction

The court of appeals said that it lacked jurisdiction because the sentence was illegal since Pittman was not physically present at the pronouncement of sentencing. In my view, the court of appeals was at least in the correct lane when contemplating jurisdiction and the illegal-sentence issue. I agree that the physical presence requirement could be seen as a jurisdictional defect. Ultimately, I would find either conclusion preferable to the wholesale rejection of the legislative text.

CONCLUSION

Because the trial court abused its discretion, and the defendant was harmed by the error, I would reverse the judgment of conviction and remand for a new sentencing hearing. With these thoughts, I respectfully dissent.

FOOTNOTES

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?

1.   I apologize that I am at a loss on how to find a proper Bluebook citation to the movie playing at a theme park restaurant. But the Sci-Fi Dine-In is located in Hollywood Studios at Walt Disney World in Florida if you ever want to check it out. Pretty decent burger. See https://disneyworld.disney.go.com/dining/hollywood-studios/sci-fi-dine-in-theater/?CMP=OKC-90002114_GM_WDW_dining_scifidineintheaterrestaurant_NA (last visited September 3, 2026).

2.   Indeed, it is at least arguable that in 1981, the legislature removed the presence requirement from the definition of “sentence” in Art. 42.02 to cut off claims that sentencing in absentia rendered a sentence illegal, but it kept the presence requirement in Art. 42.03 to preserve a requirement that the defendant be personally present at the pronouncement of sentence. See Casias v. State, 503 S.W.2d 262, 265 (Tex. Crim. App. 1973) (no presence meant “no sentence at all” under the old definition); Tates v. State, 721 S.W.3d 268, 280–81 & nn.71–75 (Tex. Crim. App. 2025) (explaining that the analysis in Casias was tied to the definition of sentence in effect at the time to hold that a lack of personal presence did not render a sentence illegal); compare Acts 1981, 67th Leg., R.S., ch. 291, § 112, 1981 Tex. Gen. Laws 761, 809 (taking presence out of the definition), with id. § 113, at 809 (keeping it in the pronouncement requirement); see also Keys v. State, 340 S.W.3d 526, 528 (Tex. App.—Texarkana 2011, no pet.) (describing the legislative changes as “mov[ing]” the presence requirement to Article 42.03); cf. Ex parte Madding, 70 S.W.3d 131, 135 (Tex. Crim. App. 2002) (describing sentencing as the moment when everyone is “physically present” and able to hear and respond). But your mileage may vary.

3.   Dissenting opinion at –––– (citing Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 78–92 (2012) (noting that text should be interpreted within the context of its meaning at the time it is enacted)).

4.   Tex. Code Crim. Proc. Ann. art. 42.07. All three of these claims seem to anticipate evidentiary support, so I could see how a defendant might be harmed by having his sentence pronounced virtually if the technology interfered with his ability to build a record. I do not mean to suggest that this is the only way a violation of the statute could be harmful. Rather I point it out as an example of a scenario in which harm could be assessed. This would seem to cut against any argument that the error in this case should be regarded as structural. See e.g., Weaver v. Massachusetts, 582 U.S. 286, 295, 137 S.Ct. 1899, 198 L.Ed.2d 420 (2017) (noting that some errors are deemed structural and therefore immune from a harm analysis because the effects of the error are deemed too hard to measure).

5.   Tex. R. App. P. 44.2(b) (“Other errors. Any other error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.”); see, e.g., Stredic v. State, 663 S.W.3d 646, 655–56 (Tex. Crim. App. 2022) (explaining that a statutory violation that does not have a substantial and injurious effect must be disregarded under Rule 44.2(b)).

1.   73 S.W.3d 923, 926 (Tex. Crim. App. 2002).

2.   Id. at 924.

3.   Id. at 926.

4.   Id.

5.   Id.

6.   Id.

7.   Id.

8.   Id.

9.   A recent example of the injection of non-randomness into venires has been discovered, though we found no constitutional violation, and the defendant raising the claim failed to avail himself of the jury-shuffle remedy. See In re Stepherson, 693 S.W.3d 364, 384-85 (Tex. Crim. App. 2024).

1.   If a jury announced (or admitted) that it arrived at a verdict by a tossed coin in a case involving strong evidence of guilt, that would not likely affect the outcome, but it would still require a new trial. Michael Tackeff, Justice by Lot: the Taboo of Chance Verdicts in America, 16 St. Thomas L.J. 209, 243–45 (2020) (cataloging treatment of so-called “full chance” verdicts); see also Nixon v. United States, 506 U.S. 224, 253, 113 S.Ct. 732, 122 L.Ed.2d 1 (1993) (Souter, J., concurring) (suggesting that judicial refusal to entertain process complaints in trial of impeachments would have to yield in like circumstances).

2.   I agree with Judge Parker that “[f]inding a statutory violation harmless does not mean that the Court is rewriting the statute.” Concurring Op. at –––– (Parker, J., concurring). However, my argument is that the majority rewrites the statute when it says that “presence” is satisfied by videoconferencing. See Maj. Op. at –––– (“Appellant was not absent when his sentence was pronounced ․”).

3.   Apparently rejecting this Court's established use of the Fixed Meaning Canon of statutory construction, the majority seems to veer off into some kind of “living text” theory of statutory interpretation. See Maj. Op. at ––––; see also Concurring Op. at –––– (Parker, J., concurring). The majority relies on Chief Justice Roberts’ observation in United States v. Rahimi, 602 U.S. 680, 691, 144 S.Ct. 1889, 219 L.Ed.2d 351 (2024), that the Second Amendment is not “trapped in amber.” A constitutional right meant to operate prospectively and in perpetuity is surely intended to have its operation thusly respected. It's quite another matter to take a statute directing a court to adhere to a particular form of proceeding to invite judicial revision of the English language. “Presence” means presence, here and elsewhere. And, in 1856, as now.

4.   As Justice Scalia and Professor Garner have noted, doing so could twist the meaning of a law in perverse ways. Scalia & Garner, Reading Law at 72; see also Cadena Comercial USA Corp. v. Texas Alcoholic Beverage Comm'n, 518 S.W.3d 318, 354 (Tex. 2017) (Willet, J., dissenting) (“When a statute is silent [as to the meaning of a term], judges often seek guidance in reputable dictionary definitions, particularly legal dictionaries from the enacting era, since semantic usage and nuances can shift over time.”); Ex parte Tutt Real Estate, LLC, 334 So.3d 1249, 1253–54 (Ala. 2021) (“Because ‘[w]ords change meaning over time, and often in unpredictable ways,’ it is important to give words in statutes the meaning they had when they were adopted to avoid changing what the law is.”) (Mitchell, J., concurring) (emphasis added) (citing Scalia & Garner, Reading Law at 78).

5.   The majority rebuffs my suggestion to at least consider revisiting how we assess harm because harm assessments are obviously “do able” in this context. See Maj. Op. at –––– (accusing the dissent of pearl clutching). But the majority's explanation is off the mark because it fails to recognize my more fundamental concern: videoconferencing might not satisfy the “presence” requirement in the statute. Further, no one to my knowledge has argued a harm analysis can never be done under the current standard, but everyone seems to agree that such an error will invariably be harmless except in the most egregious circumstances. See Concurring Op. at –––– – –––– (Parker, J., concurring) (suggesting that the right-to-be-present for pronouncement is most likely harmless in “nearly every situation ․” similar to jury-shuffle errors).

6.   Even deciding that the statute is ambiguous is a blow to defendants’ rights because it tacitly accepts the implication that the legislature might have been referring to videoconferencing when it wrote “presence.” The next game we will have to play is whack-a-mole, deciding which forms of videoconference are sufficient. What next, will we be reviewing the quality of the call? Maybe we can give it a star rating. I'm sure the company would appreciate the feedback, although the defendants about to be told they will spend the rest of their lives in prison not so much.I hope Judge Newell is correct that the majority's opinion stands only for that Pittman was not harmed and that the majority's lengthy defense of presence by videoconference is merely dicta, but the majority apparently doesn't agree. Concurring Op. at –––– (Newell, J., concurring). The majority at first claims the statute is ambiguous but later states: “Appellant was not absent when his sentence was pronounced ․” Maj. Op. at ––––.

7.   Tex. Code Crim. Proc. art. 682 (1856). Article 682 stated that “[i]f a new trial is not granted, nor the judgment arrested, the judgment of the Court, in cases of felony, shall be entered, and sentence pronounced in presence of the defendant, at any time after the expiration of the time allowed for making the motion for a new trial, or the motion in arrest of judgment.” Id. The statute at issue here—Section 1(a) of Article 42.03—states that “[e]xcept as provided in Article 42.14, sentence shall be pronounced in the defendant's presence.” Id. art. 42.03, § 1(a) (2026) (emphasis added).

8.   I have found no reported case in which this Court held that appearance by telephone was sufficient to satisfy the in-person requirement.

9.   See also Fed. R. Crim. Pro. 43 (stating when a defendant's presence generally is required at sentencing). Rule 43 was amended in 2011, and the Committee in its note to the amendment reiterated its concerns “expressed in the 2002 Committee Notes to Rules 5 and 10, when those rules were amended to permit video teleconferencing. The Committee recognized the intangible benefits and impact of requiring a defendant to appear before a federal judicial officer in a federal courtroom, and what is lost when virtual presence is substituted for actual presence.” Id. R. 43 (notes of the Federal Rules Advisory Committee to the 2011 amendments); see also United States v. Bethea, 888 F.3d 864 (7th Cir. 2018) (interpreting Rule 43 as mandating physical presence of the defendant prior to enactment of the CARES Act).

10.   The majority conveniently makes my point for me when it concedes that the legislature has demonstrated a “purposeful distinction between electronic and personal appearance” by including videoconferencing in some statutes and not others—like this one. Maj. Op. at –––– (citing Lira v. State, 666 S.W.3d 498, 513 n.73 (Tex. Crim. App. 2023) (emphasis added)).

11.   Just a few months ago, this Court decided State v. Barber, 735 S.W.3d 41, 49 (Tex. Crim. App. 2026), which dealt with warrantless arrests. In it, the Court held that the word “presence” means in person. Id. (“Whatever else the ‘presence or view’ language [in Article 14.03(d)] might mean, it plainly appears to exclude an officer who did not perceive the offense through one of his five senses and did not arrive at the scene until after the offense was complete and no longer being committed.”). I doubt the Barber majority would have concluded that the “presence” requirement would have been met if the peace officer viewed commission of the offense through videoconferencing.

12.   The majority cites Haggard for the proposition that the Confrontation Clause has been applied to new technology, and it of course has, but the standard and the rule remain the same and exempt from the reach of judicial amendment. See Haggard v. State, 612 S.W.3d 318, 326 (Tex. Crim. App. 2020) (approvingly quoting Justice Scalia's statement that, while “[v]irtual confrontation might be sufficient to protect virtual constitutional rights; I doubt whether it is sufficient to protect real ones”).

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.