Ex Parte Mark Aubrey Rogers, Jr.
01-16-00583-CR
| Tex. App. | Apr 3, 2017Background
- Rogers was convicted by a jury of possession of less than two ounces of marijuana (Class B misdemeanor).
- The jury returned a verdict assessing a $0 fine and 0 days confinement; the trial court entered judgment accordingly.
- The State moved for a new punishment hearing, arguing the zero-zero verdict fell outside the statutory punishment scheme; the trial court granted a new punishment hearing.
- Rogers filed a writ of habeas corpus arguing the second punishment hearing would violate double jeopardy; the trial court denied relief after a non-evidentiary hearing.
- Rogers appealed the denial of habeas relief to the First Court of Appeals.
Issues
| Issue | Plaintiff's Argument (Rogers) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether a jury verdict imposing a $0 fine and 0 days confinement is within the statutory punishment range for a Class B misdemeanor | The statutory punishment lists only maximums, so a zero fine and zero confinement is within the range | A sentence of zero and zero imposes no punishment and therefore falls outside the statutorily required punishment of fine or confinement | The court held the zero/zero sentence is void because the statute requires punishment by a fine or confinement (Mizell controlling) |
| Whether granting a new punishment hearing after a void sentence violates double jeopardy | A new punishment proceeding would subject Rogers to double jeopardy | A void sentence imposes no punishment, so retrying punishment does not violate double jeopardy | The court held no double jeopardy violation; a void, non-punitive judgment does not bar correction or a new punishment hearing |
Key Cases Cited
- Mizell v. State, 119 S.W.3d 804 (Tex. Crim. App. 2003) (a zero fine and zero confinement is no punishment and falls outside the statutory range)
- Villareal v. State, 590 S.W.2d 938 (Tex. Crim. App. 1979) (sentence below statutory minimum is void)
- Ex parte Chappell, 959 S.W.2d 627 (Tex. Crim. App. 1998) (void sentence imposing no punishment does not implicate double jeopardy)
- Cooper v. State, 527 S.W.2d 898 (Tex. Crim. App. 1975) (void sentences below statutory minimum do not bar resentencing on double jeopardy grounds)
- Donnell v. State, 191 S.W.3d 864 (Tex. App.—Waco 2006) (no pet.) (reaffirming that void, non-punitive sentences do not trigger double jeopardy)