*1 WHITHAM, Before THOMAS and McCRAW, Christopher JJ. Martin CUSTARD, Appellant, THOMAS, Justice.
v.
Christopher
Texas,
Martin Custard was convict-
Appellee.
The STATE of
by jury
aggravated
ed
assault. Based
No. 05-86-00242-CR.
upon the
jury,
recommendation of the
Texas,
Appeals
Court of
trial court assessed
at
ten
Dallas.
years
Depart-
confinement
the Texas
Corrections, probated
ment of
for
ten
12,
Nov.
1987.
$5,000
years, and a
fine. As a condition of
Rehearing Denied March
1988.
probation, the trial court sentenced Custard
thirty days
confinement in the Dallas
error,
County
points
appel-
Jail.
In two
(1)
lant contends
in-
that:
the evidence is
conviction;
(2)
support
sufficient to
in adding
thirty-
court erred
day jail sentence
as a condition of
disagree
consequently,
tion. We
af-
firm
judgment.
the trial court’s
SUFFICIENCY OF THE EVIDENCE
error,
In Custard’s first
alleges
evidence
insufficient to
prove
bodily injury
the serious
suf
McCormick,
complain
fered
Clifford
ant,
was caused
the beer
thrown
appellate
Custard. The standard for
sufficiency
review of the
of the evidence in
direct
both
and circumstantial evidence
whether,
viewing
cases is
after
the evi
light
dence in the
most favorable to the
verdict, any rational
trier of fact could
have found the essential elements of the
crime
a reasonable doubt. Jackson
307, 318-319,
Virginia, 443 U.S.
99
v.
S.Ct.
2781, 2788-2789,
(1979);
than Custard’s Custard further as- A CONDITION OF PROBATION serts that the testimony of the State’s wit- nesses establishes that as a result of ground Custard’s second of error *3 fight complains McCormick was dazed groggy and of the action of the trial court mug imposed before the was that thirty-day ever thrown. a in Custard sentence the Dallas upon County also relies the Jail as a testimony Petty proba of Dr. condition of tion. It is contended mug jury that if the that once a rec injury beer did cause the to probation ommends head, felony after a the left side the convic it did not shatter tion, the authority court has no require to as the State’s Finally, witnesses testified. probationer jail the to serve a sentence as a mug if the had shattered as the witnesses probation. condition of that indicated, Petty expressed Dr. that he expected would injuries have more serious 1, September Prior to Art. 42.12 point beneath the of the skull fracture. provided 3a in part: relevant § Custard maintains that merely the State probation If granted by is jury the proved his that act could have caused the court may impose only those conditions injury and that this is sup- insufficient to which are set in forth Section 6 hereof. port disagree. the verdict. We TEX.CRIM.PROC.CODE ANN. art. 42.12 complain (Vernon 1979). evidence established that 3a Legislature The 67th § ant was hit on the amended provide left side of his head with Article 42.12 3a to as § a mug by beer follows: thrown Custard. Custard admitted threw a (a) beer at felony Sec. 3a. When there is a con- Further, Petty McCormick. Dr. testified in any court of this State and the injuries that the on the left side of the head by jury assessed shall did constitute bodily injuries serious years, not exceed ten jury may rec- perfectly were being consistent probation period any with hit ommend for a glass with the mug. years term The evidence authorized for the offense support convicted, does not theory pos for which the other defendant was sibilities in injuries. years, caused the It but no event for more than ten was the province upon jury judge of the written sworn motion made there- credibility defendant, by of the filed before the weight given witnesses and the to be begins. jury trial When the recommends their testimony, and responsi it was their probation, may appli- fine it also assess a bility to resolve or reconcile conflicts in the the de- cable to the offense for which testimony. State, Banks v. 510 S.W.2d eligible fendant was convicted.... all (Tex.Crim.App.1974). It is irrele cases, probation granted by shall be vant whether we as a court believe the if in jury court recommends it their evidence or believe that the defense evi verdict, period recommended “outweighs” dence the State’s evidence. If jury. guilt there is evidence that establishes doubt, a reasonable and if the trier _If (b) probation granted 3a. evidence, Sec. of fact believes that we are not in case, in jury a misdemeanor position a judgment to reverse the on suffi only may impose court those conditions ciency grounds. of the evidence Combs v. 6a, are set out in or 6b which Section State, (Tex.Crim.App. impose any may thereof. The court one 1982). that, viewing We hold after or all of those conditions ... light evidence in the to the most favorable prosecution, (Vernon any rational trier of fact could TEX.CODE CRIM.PROC.ANN. have Supp.1987).1 found the essential elements of the subsequent statutory Supp.1987). 1. All references are (Vernon Texas Code of Criminal Procedure
^ argues change language in the second of error is overruled and the that the judgment Legislature’s of the trial court is affirmed. reflects the the amendment authority to intent to remove the court’s McCRAW, J., dissents. probation has sentence when McCRAW, Justice, dissenting. felony jury in been recommended majority’s holding I concur with the position hold this to be without case. We presented is sufficient to sus- evidence merit. However, I must dissent tain the verdict. First, import of the we consider holding that majority’s from the amend- change language in the and the discretionary authority require court has 3a(b) read article 42.12 to be ment. We § a condi- period confinement as limitation upon the trial court’s discretion tion of after proba- imposing terms and conditions of unconditional case has recommended tion in misdemeanor cases. We find no tion. upon discre- such limitation the trial court’s *4 punishment The defendant’s election of Thus, felony in case. the trial tion a the pursuant to article 37.07 of is allowed authority to set conditions of court’s Procedure: Code of Criminal felony expanded, tion in a case has been returned, (b) finding guilty of is a [I]f authority is limited in a misde- while such responsibility of it shall then be meanor case. applica- punishment judge assess Second, question of the we address the offense; however, provided, to the ble authority jail a sentence court’s (2) the defendant so ... ... where probation by has recommended when been writing commence- in before the elects felony jury Imprisonment a in case. as a dire examination of the ment of the voir probation provided of as in Arti- condition shall be as- panel, punishment jury 42.12, 6b(a) may imposed cle in a be § jury.... by sessed the same felony “probation” granted case after is as 87.- art. TEX.CODE CRIM.PROC.ANN. 42.12, 2(b). in that term is defined Article § 07(2)(b) (Vernon (emphasis add- Supp.1987) Shillings, Ex See Parte 641 S.W.2d ed).1 pun- timely requested that (Tex.Crim.App.1982). 540 jury. by the Section ishment be assessed having jurisdic- It is clear that the court stating that 37.07(2)(b)(2) mandatory in is of terms tion the case shall determine the in punishment shall jury determine See Art. probation. 42.- and conditions of long-standing There is instances. such 12, 6(a). case, judge In this has § court has no authori- precedent that “[t]he probation, as a condition assessed any term other judgment ty to enter period authority of detention under the by jury’s verdict.” specified than 42.12, 6b(a). provision pro- art. That § 233 parte King, 155 Tex.Cr.R. Ex
vides: (1950). The court cannot sub- S.W.2d 501 of the findings for those stitute its own having jurisdiction of the
When the court State, jury. Gordon defendant, grants probation case (Tex.Crim.App.1986). imposed in addition to the conditions un- article, the court der Section 6 of this 42.12, section 3a addresses Article probation may require as a condition limitations on the requisites and necessary period submit to a that the defendant code grant probation. This right to jury’s penal detention in a institution to serve sepa- into two subsections section is divided imprisonment not to exceed 30 term of misdemeanor treating felony rately days or one-third of the sentence which- convictions.
ever is lesser. con- 3a.(a) is a When there Sec. and the of this State any in court grants in the clearly This statute discretion by jury shall punishment assessed not to trial court to determine whether or may ree- jury years, the not exceed ten require period of confinement. Procedure. of Criminal subsequent statutory Texas Code 1. All references are to probation.... ommend eligible all
cases, probation granted by shall be
court, jury if the recommends it in their
verdict, period by recommended
the jury. 3a(a) Section mandates intervention,
limited trial court while in sec- 3a(b) granted
tion the trial court has been 42.12,
article section 6b detention discretion
when is a there misdemeanor conviction: 3a.(b)
Sec. Where is there a misde- any
meanor conviction in court of this
state assessed jury shall be imprisonment
or fine or by both such fine and
imprisonment, jury may recommend
probation.... granted by
If case, may impose
misdemeanor the court
only those conditions which are set out in 6a,
Section or 6b hereof one or all
of those conditions.... statutory Absent au-
thority, I hold would trial court
does not discretionary power have the additional conditions when a assesses convic- Therefore,
tion. I would reform the trial judgment, deleting
court’s the thirty-day
assessment of time affirm the con- jury punishment. WHEATFALL, Douglas Appellant,
Theo Texas, Appellee. STATE
Nos. C14-86-825-CR to C14-86-827-CR. Texas, Appeals
Court (14th Dist.).
Houston
Jan. 1988. Wicoff, Cunningham, Hous-
Bob David ton, appellant. for Houston, Taft, appellee. Timothy G.