Full Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. PD-0894-23 ANDELL BRYMONTE PITTMAN, Appellant v. THE STATE OF TEXAS ON STATE’S PETITION FOR DISCRETIONARY REVIEW FROM THE FOURTH COURT OF APPEALS BEXAR COUNTY SCHENCK, P.J., filed a dissenting opinion in which YEARY, J., joined. 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 PITTMAN DISSENTING–2 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 1–7 (error analysis); id. at 7–8 (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 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 (1993) (Souter, J., concurring) (suggesting that judicial refusal to entertain process complaints in trial of impeachments would have to yield in like circumstances). PITTMAN DISSENTING–3 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 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 2 (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 11 (“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 11; see also Concurring Op. at 2 (Parker, J., concurring). The majority relies on Chief Justice Roberts’ observation in United States v. Rahimi, 602 U.S. 680, 691 (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. PITTMAN DISSENTING–4 “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 (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 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 11 (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 3–4 (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). PITTMAN DISSENTING–5 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 7. 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 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 3 (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 11. 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). PITTMAN DISSENTING–6 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 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). PITTMAN DISSENTING–7 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 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 5 (citing Lira v. State, 666 S.W.3d 498, 513 n.73 (Tex. Crim. App. 2023) (emphasis added)). PITTMAN DISSENTING–8 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 7–8. 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- 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. PITTMAN DISSENTING–9 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, PITTMAN DISSENTING–10 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 PITTMAN DISSENTING–11 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 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”). PITTMAN DISSENTING–12 sentencing hearing. With these thoughts, I respectfully dissent. Filed: September 17, 2026 Publish