NO. 74,035





Holcomb, J., filed a dissenting opinion in which Price, J., joined.


The facts in this case are not complicated. On August 22, 1996, a Nueces County grand jury indicted applicant for felony deadly conduct. See Tex. Pen. Code 22.05(b)(2). On December 10, 1996, applicant pled guilty and elected to have a jury assess his punishment. See Tex. Code Crim. Proc. art. 37.07, 2(b)(2). The jury assessed applicant's punishment at imprisonment for ten years and a "$0" fine. In addition, the jury recommended that applicant be placed on community supervision. On the same day, the trial court entered a sentence of imprisonment for ten years and a fine of $10,000. The court then suspended the imposition of the sentence and placed applicant on community supervision for a period of ten years. The court admonished applicant of his right to appeal and released him to community supervision. Later that day, applicant's trial counsel informed him that the fine imposed by the judge may have been "illegal" and that he may want to appeal the sentence. Applicant did not appeal.

On December 28, 1998, the State filed a motion to revoke applicant's community supervision. On February 12, 1999, the trial court held a hearing to consider the motion to revoke. Applicant, represented by appointed counsel, pled true to most of the allegations in the motion. After hearing the evidence, the court found that applicant had committed the violations alleged in the motion to revoke. The court then revoked applicant's community supervision and imposed the original sentence as modified by the trial court.

On August 4, 2000, applicant filed an application for a writ of habeas corpus in the trial court. Applicant argued, inter alia, that since he elected to have the jury assess punishment and the jury imposed no fine, the trial court could not lawfully impose a fine as part of the sentence. Applicant further argued that the portion of the resulting sentence that imposed the illegal fine was "void." Today, the majority concludes that (1) applicant's judgment may have been inaccurate "but it is neither 'void' nor 'illegal'" and therefore is not cognizable on habeas corpus and (2) even if his complaint is cognizable, "he waived error." Because I cannot agree with either of those conclusions, I respectfully dissent.

First of all, in Texas, a defendant has a statutory right to have the jury assess punishment. Tex. Code Crim. Proc. art. 37.07, 2(b)(2); Washington v. State, 677 S.W.2d 524, 527 (Tex.Crim.App. 1984), overruled on other grounds, Bell v. State, 994 S.W.2d 173 (Tex.Crim.App. 1999). If a jury assesses a punishment authorized by the law, the trial court has no power to change that punishment. Smith v. State, 479 S.W.2d 680, 681 (Tex.Crim.App. 1972); Castro v. State, 118 Tex.Crim.53, 42 S.W.2d 779 (1931). The judge's role in such an instance is merely to incorporate the punishment assessed by the jury into the final judgment. (1)

Here, the jury assessed punishment at imprisonment for ten years and no fine. The trial court had a ministerial duty to enter a judgment of punishment exactly as that prescribed by the jury verdict. The trial court, therefore, was without authority to add a fine to the punishment assessed by the jury. Because the trial court was without authority, the resulting fine was illegal. See Black's Law Dictionary 747 (6th edition 1990) ("illegal" is defined as "against or not authorized by the law").

Furthermore, this is not the type of error that can be waived. We have long held that an illegal sentence can always be collaterally attacked. See Ex parte Seidel, 39 S.W.3d 221, 225 at n.4 (Tex.Crim.App. 2001) ("[T]his Court has long held that a sentence is void when the punishment is unauthorized."); Ex parte Beck, 922 S.W.2d 181 (Tex.Crim.App. 1996) (even where "no direct appeal was taken from the conviction," habeas corpus relief available to correct illegal sentences); Heath v. State, 817 S.W.2d 335, 336 (Tex.Crim.App. 1991) (opinion on original submission) ("a defect which renders a sentence void may be raised at any time"); Ex parte McIver, 586 S.W.2d 851 (Tex.Crim.App. 1979)(habeas corpus relief available to a person in custody under a sentence which is void because the punishment is unauthorized). Moreover, in McCain v. State, No.1727-00, __ S.W.3d __ (Tex.Crim.App.-Dec.9, 2002) (Holcomb. J., dissenting), I explained:

[A]s a matter of policy we have tried, in our approach to habeas corpus cognizability, to strike a reasonable balance between a convicted person's interest in the vindication of his legal rights and the State's interest in the finality of convictions. Thus, in a long line of cases, most notably Heath and Seidel, we have held that some defects, even though they are "just" statutory defects, are so egregious that they are cognizable on habeas corpus. See Heath, 817 S.W.2d at 336; Seidel, 39 S.W.3d 221 at 225; Ex parte McIver, 586 S.W.2d 851 (Tex.Crim.App. 1979). In Heath, we characterized these defects as rendering the conviction "void." 817 S.W.2d at 336. However, we could have properly characterized as "fundamental" errors those "unauthorized sentences" and "statutory defects" which render a sentence void. No matter what we choose to call these "errors," the underlying purpose is the same: to balance a convicted person's interest in the vindication of his legal rights and the State's interest in the finality of convictions.

The State's interest in finality is not implicated in this case. Applicant does not complain that he is entitled to a new trial or a new sentencing hearing. He merely asks that we recognize his fundamental legal right to have the jury assess punishment and reform the judgment to reflect the punishment actually assessed by the jury.

Relief could easily be granted in this case by simply deleting the illegal fine. In refusing to

grant relief, the majority continues to disregard both our precedents (2) and the dictates of the Legislature. (3) Thus, Mr. Pena will end up being liable for a $10,000 fine that the jury did not assess. This is unjust.



1. A "judgment" is the "written declaration of the court signed by the trial judge and entered of record showing the conviction or acquittal of the defendant." Tex. Code Crim. Proc. art. 42.01, 1. The judgment includes the sentence. Id. "The sentence is that part of the judgment ... that orders that the punishment be carried into execution in the manner prescribed by law." Tex. Code Crim. Proc. art. 42.02. We have interpreted Article 42.02 to mean that "a sentence is nothing more than the portion of the judgment setting out the terms of the punishment." State v. Ross, 953 S.W.2d 748, 750 (Tex.Crim.App. 1997). Thus, if a defendant elects jury sentencing, and the jury returns a verdict authorized by law, the judge's only task is to incorporate the punishment assessed by the jury into the judgment. There is no room for discretion. The trial court cannot, for example, increase or decrease the years of imprisonment, nor can it increase or decrease the amount of any fine assessed by the jury.

2. See, e.g., McCain v. State, No.1727-00, __ S.W.3d __ (Tex.Crim.App.-Dec.9, 2002).

3. See, e.g., Id.; Ex parte Graves, No. 73,927, __ S.W.3d __ (Tex.Crim.App.- Jan.2, 2002).