Ex Parte Johnson

Eddie James JOHNSON. No. 69480. Texas,

Court of Appeals Criminal

En Banc.

Oct. Johnson, pro

Eddie James se. Jr., Holmes, Atty. John B. Dist. and Kar- Key, Atty., Houston, rie Asst. Dist. Robert Huttash, Atty., Austin, State’s for the State.

OPINION MILLER, Judge. post-conviction

This is a writ of habeas corpus brought pursuant to Art. Applicant complains V.A.C.C.P. that his aggravated convictions for two robberies requests are void and a new trial. applicant record shows was in- dicted in Cause No. the 262nd County, District Court Harris for an aggravated robbery committed on Febru- ary 29, 1980. The indictment also con- paragraph alleging tained an enhancement applicant previously had convict- been ed felony robbery armed in Coahoma County, A Mississippi. second indictment against applicant was returned in Cause No. also in the 262nd District Court, applicant which charged with anoth- aggravated robbery April er committed on 22, 1980. The second indictment also con- paragraph an alleging tained enhancement prior Mississippi felony conviction. for Cause No. 314983 indi- applicant cates that guilty found aggravated robbery, and reflects that para- the State abandoned enhancement graph. years Depart- proper remedy in the Texas turn to the needed to cor- confinement Corrections, improper in

ment of and a fine rect Cause No. of $5,000.00. cases, prior jury returned a when judgment

The for Cause No. 314983 indi- law, by judgment verdict unauthorized jury applicant guilty cates that the found void, McIver, in Ex was rendered aggravated robbery, of and reflects that jury para- State abandoned the enhancement guilty felony pos found the defendant of graph. jury punishment assessed jury session of marihuana. The years Depart- confinement in the Texas stated: Corrections, ment of and a fine of punishment years assess his at 5 $5,000.00. “[We] in Department confinement the Texas of for Cause No. 314984 indi- hereby Corrections and further assess a jury applicant guilty cates found fine in the amount of 5.000 Dollars [sic] aggravated robbery, second and further we, jury, hereby do recommend allegation. found true the enhancement probated period that such fine for a years Punishment was at 50 con- assessed years.” Department finement the Texas of Cor- judge signed The district an instrument rections, $10,000.00. and a fine of part: which stated Applicant contends that as- is, therefore, “It Considered and Ad- sessment of total fines the amount of judged by Jury that the defendant $15,000.00 years in addition to terms of as punished by ... be confinement ... for a punishment by is unauthorized law and (5) years term of not more than five nor therefore the verdicts are void (2) years, less than and a fine in the two subsequent judgments and sentences based $5,000.00 amount of with recommenda- thereon are void. probated.” tion the fine be (Tex. In Bogany v. 661 S.W.2d 957 42.12, V.A.C.C.P., found that Art. did We Cr.App.1983), the defendant was convicted jury punish not authorize the to assess aggravated robbery. finding On ment of confinement without a recommen enhancement, prior pun one conviction for probation dation of and also fine with by ishment was assessed at 60 McIver, probation. recommendation of su $10,000.00 years and a fine. We held that pra at 854. We held that since the verdict Code, 12.42(c), pro Y.T.C.A. Penal law, penalties repeat vides the for and habitual inception, citing it was void at its Smith v. felony degree offenders of first convicted (Tex.Cr.App.1972). felonies, did not authorize a fine in addition Smith, the defendant was convicted punishment. to enhancement of See also possession dangerous drugs. The for Releford App.1984); guilty found the defendant and as- Diaz year jail fol- sessed at one (Tex.App. Since [1st] — Houston probation period. month lowed a twelve verdict was unauthorized the court The trial court struck the appeals was without to reform jury’s stating by a twelve “followed the verdict. We remanded the case for a probation period.” month held that the We new trial. inception since the verdict was void at its jail not authorize law did Applying Bogany to the instant by probation, time and further followed $10,000.00 case, the fine assessed in Cause held that the trial court did not have the No. 314984 not authorized was by deleting authority to the verdict paragraph Since the enhancement offending portion. Id. at 681. in Cause No. abandoned Last, permissible Spaulding fine assessed un $5000.00 Code, (Tex.Cr.App.1985), the defendant was 12.32. We now 741 der V.T.C.A. Penal aggravated convicted sexual and sentence were considered abuse. $10,000.00 assessed a fine in addi- way void there no to cure since years punishment. tion to a term of We infirmity. Spaulding, See found the verdict was unauthorized 387; Releford, supra at and Ramirez also void, citing law and therefore su- Bogany, pra. further We held that the Governor previous decided, cases were Since authority was remit without to or commute however, the has enacted a portion assessing the sentence the enlarges authority which the new law judgment fine the since was void at its to judgments, providing courts reform thus inception. Spaulding, at 743. way infirmity. a to cure the Bill Senate preceding cases all share a common 1349, Acts, Leg., 69th June effective premise premise and conclusion. The 37.10,V.A.C.C.P., by amended Article each case is that the ver- rendered a (b), adding paragraph provides: law, by dict that unauthorized the viz: punishment “If the assesses a punishment assessed not the within and in case the verdict assesses both punishments applicable the universe of to punishment by that is authorized law for offense. common conclusion reached punishment the offense and is not judgment upon was that the a based offense, by authorized for the the law verdict was void. court shall reform the verdict to show logic connecting premise punishment by authorized law and to conclusion specific involves the lack of a punishment by omit not authorized by vehicle improper which the verdict could If required law. the trial court is A permitted only reformed. court was a under reform verdict this subsection judgment given reform the in a case so so, appellate and fails to court do that it properly reflected the true verdict by reform provided shall by jury. supra reached Releford, this subsection.” 387, citing State, Milczanowski v. Thus, law, under the a is autho- new court (Tex.Cr.App.1983); Chudleigh S.W.2d 445 judgment rized to reform a verdict and State, (Tex.Cr.App.1976); 540 S.W.2d 314 containing punishment, an in- State, (Tex.Cr. Anderson v. 504 S.W.2d 507 firmity previously which would have ren- App.1974); State, Castaneda S.W.2d dered the verdict void. (Tex.Cr.App.1973); State, Batiste v. (Tex.Cr.App.1971); S.W.2d and Ce judgment Given the verdict and dargreen (Tex.Cr. S.W.2d 524 was, part, by case instant authorized Thus, App.1968). when a a rendered law, must determine whether Art. 37.- we only verdict unauthorized 10(b) applies to Cause No. 314984. course of action available was to remand

the case a Since the amendment does not Cooper for new trial.1 Cf. defining crimi (Tex.Cr.App.1975); 527 S.W.2d 898 constitute substantive law providing penalties, nal acts or for it is Saunders v. Thus, App.1974); procedural and Miller in nature. in the absence sense, express legislative this intent the con- Writing Bogany, Judge Legislature] give this for Court in has never seen fit to “[The this Court or appellate intermediate court Odom stated: authority State to assess controlling "The did authorize reduce Appeals Court of ren- non-capital felo- the conviction was ny.... dered The verdict was unautho- [T)he intermediate court incep- rized law and ‘void at ... was this Court without to either are tion.’ The verdict set must be aside.” pun- punishment, assess different reduce Id., at 959. assessed, or reform the ishment concurring Judge opinion Bogany, assessed." Teague stated: Id. trary,2 However, litigation the new law controls the entire conviction. applies pend its effective date and to both portion of the verdict and ing and future actions. See v.Wade truly portion void was that which in- cluded an unauthorized fine. The error in cases cited therein at 534. See also Patter might the verdict have been more accurate- (Tex.App.— son v. ly designated as a void partially Houston We must therefore [14th] any remedy from which this lacked Court Legislature’s follow the mandate and re other than reversal. Because this Court portion form that of the verdict unautho any authority separate lacked the void rized portion of the remaining verdict from the valid we were forced $10,000.00 Assessment of fine to “void” the entire verdict and against applicant in Cause No. 314984 was reversing the entire conviction. unauthorized. We therefore reform the judgment verdict and in that cause to de- context, opinion Spauld- improper $5,000.00 lete the fine. Since the ing noting was correct in that the verdict fine Cause No. 314983 was inception,” was “void at its at least as to authorized, applicant’s request for relief in portion of the verdict which contained that case is denied. The Clerk of this an unauthorized fine. Because we did not copy Court shall send a order this to the yet error, remedy Bogany have a we Department Texas of Corrections. had no choice but to “void” the remainder by reversing of the verdict the conviction. DAVIS, J., TOM participating. G. The regard- remedies available to a court CAMPBELL, Judge, concurring. ing partially void verdict differ from the remedies available an In order to entire verdict my opinion harmonize in Ex entirely is void. A is parte verdict which void at Spaulding, 687 S.W.2d 741 inception generally its results from a defec- App.1985),with majority today, this Court’s condition, jurisdiction, tive such as a lack of following I offer the observations. permeating creating the entire verdict and past This Court’s use of the term “void remedy a defect from which no ever could inception” at its to describe the status supplied by this Court other than rever- judgment, entire1 verdict and as we Charles, parte sal. Ex in Bogany did entirely has not ac- been also, Mclver, legislature, by granting curate. The this Court power (Tex.Cr.App.1979). By regulate the assessment of an charac- terizing judgment the entire unauthorized has not removed verdict and inception” power punishment. “void at from the to set Bogany-type situ- ations, implied portion we The authorized of the verdict is have that no cure for an retained, gratu- and the defendant has been sup- sentence could ever be itously arguably an lesser plied by an court other benefited sen- than re- might versal of the entire tence than otherwise been as- Spaulding, conviction. sessed. supra at 743. deliberating proper punish-

The voidness of the entire verdict and over case, supra in Bogany, at 958 and ment to be assessed in this depended upon given directly unavailability effectively greater range was any remedy legally at law other than reversal than should have been especially Leg., p. Sept. 2. We note the absence of lan- 66th ch. eff. directing guage apply that this amendment shall indicted, etc., begun, to cases tried or after a particular date. Cf. treatment of Art. emphasis supplied by author unless 1. All 32A.02, Leg., V.A.C.C.P.in both Acts 65th otherwise indicated. 1970., 1, 1978, July p. ch. eff. and in Acts Appeals, to the Criminal allowed. The had no Court of fine; therefore, 68,733. Only clude a our removal of the was filed as No. Cause one nothing fine away jury’s ground takes from the was which con- of error raised By sentence, reducing function. cerned of cer- the admission into evidence fine, through elimination of the this Court improper tain The assess- State’s exhibits. retained that of the verdict ment of mentioned. punishment was not properly which was returned The was conviction affirmed on November unpublished per opin- 1983 in an curiam comments, join opinion With these I ion which did not consider the assessment of the Court. punishment. prior This to the Bo- gany decision. ONION, Presiding Judge, dissenting. We that in now know situations such as question posed case is wheth- applicant’s appellate courts, prior at least er the Appeals may Court Criminal uti- to the 1985 amendment to Article

lize the 1985 amendment to Article reform jury’s could not verdict. V.A.C.C.P., post-conviction ain writ of ha- Bogany could Nor corpus proceedings beas under Article 11.- Governor, using powers 07, V.A.C.C.P., constitutional reform a of clemency, things right. make its inception. void from Spaulding, (Tex.Cr.App. majority says it can done. I do King’s All the men and all the agree. King’s put Humpty Dump horses could not applicant charged aggrava- ty together Carroll, again. Lewis “Alice in robbery ted in Cause No. the Wonderland.” 262nd District Court. In addition to the 1985, 3,May applicant post- On his filed proper range punishment for the first- corpus conviction writ habeas in the degree felony charged prior felony where a convicting 11.07, court. district See Article alleged Y.T.C.A., proved, been and Pe- sought V.A.C.C.P. He the relief same as Code, (1974), nal 12.42 the court in its § Bogany Spaulding company.1 and and jury charge jury authorized the to return a judge The convicting of the court entered $10,000.00. fine not to exceed jury recommending an order relief such be instruction improper. fine was It was denied in No. Cause 314984. The record not a punishment. valid Bogany v. was transmitted to this Court received and 661 S.W.2d 957 29, 1985, May 19, eight on On June jury 17, returned a on verdict June days after the the effective date of years’ imprisonment amendment Article Court or- this Department of Corrections and also corpus proceedings dered the habeas to be $10,000.00 assessed a fine. When the filed and submitted. accepted verdict and the dis- charged date, on the same response In to Boga- overreaction inception. void at ny by some, amended Arti- was subsequently entered had to 37.10, V.A.C.C.P., by cle adding subsection based on also void as (b), which reads: well as the sentence on judg- based “(b) If punishment assesses ment. See Article 42.01 and Y.A.C. a case in the verdict assesses both C.P., in appli- effect Thus time. punishment that is law for authorized cant’s conviction was void. the offense that is not

Appellant appealed offense, 1980 conviction authorized law for the aggravated robbery (Cause 314984) No. court shall reform show Refused). Discretionary 1. See v. 683 S.W.2d 385 Review See also Diaz Releford Carey (Tex. App.1984); (Tex.App. v. — Houston 1984); 1983); App. Worth [1st] Westerholt Henderson — Ft. (Tex.App. (Tex.App. [10th] 1984— [14th] — Houston — Waco forbidding and to the former is confined to authorized law laws, i.e., penal omit post not authorized ex facto retroactive required If the trial court is lays a on legislation, any but it also ban reform a verdict under this subsection prohibiting retroactive law. retroac so, and fails to do court laws, seeks to tive the Texas Constitution provided by shall reform the verdict as safeguard rights guaranteed by oth (Acts Leg., 69th subsection.” provisions er constitutional such as the p. effective June ch. S.B. impairment obligation of contracts 11, 1985.) process due clauses. law Mel Houston, linger City 68 T. apply Does this 1985 Act to the 1980 [Tex.] applied retroactively? verdict? Can S.W. question. That is the “A meant to act retroactive law is one such, things past. I, Constitution, on that are As pro- Article Texas away vides: statute is retroactive which takes impairs rights acquired under or vested low, attainder, post “No bill of ex facto laws, existing obligations, or creates new law, impairing retroactive duties, obligations contracts, imposes adopts a new shall be made.” new disability respect to transactions Interpretive Commentary In the to Arti- already past, considerations and which I, cle Sec. of the Texas Constitution rights accruing affects acts or before it (Vol. I, pp. Vernon’s Constitution into Gowdy, came force. Turbeville v. Texas, Annotated), of the State of it is (1925).” Civ.App., 272 S.W. [Tex.] written: law, post constitutionally “An ex facto Tex.Jur.2d, Statutes, 29, pp. 49- speaking, is one that makes an action 50, it is written: passage done before the distinguished prospective “A law is done, criminal, which was innocent when by the fact from one that is retroactive action, punishes De Cordova the latter affects acts or transac- Galveston, 4 T. [Tex.] it came into tions that occurred before crime, aggravates greater or makes it effect, rights or concerns that have al- committed, than it was when Holt v. prohib- ready The constitution accrued. State, (1847); 2 T. 363 [Tex.] making But its the of retroactive laws. changes and inflicts a provision the constitutional is construed greater punishment than the an- law merely forbidding as the enactment of committed, nexed to the crime when Holt any prejudicially law that will affect ex- State, supra; changes v. or which isting, arising out rights, vested whether evidence, rules of and receives less or tort, operation of a of contract or or the testimony, different than the law re- in such a manner as to have that law quired of at the time of the commission ordinarily effect. The is not inhibition the of- the offense order to convict procedural or remedial extended to a State, Although fender. Holt v. statute, act, or, fact, such as a curative ordinarily changing procedure are laws impair any act that does not disturb or inhibition, proce- not still if a within rights.” vested dural is retroactive and results pro- depriving the accused of substantial appears clear then the constitutional It tection, parte it is unconstitutional. Ex ordinarily apply pro- does not inhibition 68, 134 334 Roper, 61 Cr.R. S.W. or remedial statutes unless the cedural [Tex.] protec- deprived is dividual substantial tion, supra, rights or his parte Roper, goes further Ex

“The Texas Constitution impaired.2 Constitution for are than the United States Yost, (Tex. be said to be a retroactive "A statute cannot 2. In McCain v. 284 S.W.2d 900 1955), prohibited the Constitution unless it Supreme Court of Texas stated:

611 apart posed Entirely any rights. state Cass constitu to substantial v. impediment, retrospective Estate, (Tex. tional laws are 107 McFarland’s 564 S.W.2d regarded commonly with disfavor. Hutch 1978); Tex.Jur.2d, Civ.App Paso 53 . —El Slemons, ings 141 Tex. 174 S.W.2d Statutes, 28, p. 51. Statutes, Tex.Jur.2d, 487 53 p. recognized exceptions Since there are Generally ap statutes not to are matter, general statutory rule of the it plied retroactively. Abahosh, parte 561 remedial, procedural is and does not (Tex.Cr.App.1978); S.W.2d 204 Ri impair rights, Corporation vested Exxon (Tex.Cr. dyolph v. 545 S.W.2d 784 (Tex. Brecheen, S.W.2d 515 526 App.1977); Pesch v. 524 S.W.2d 299 1975); City Southwestern Bell Co. v. Tel. (Tex.Cr.App.1975). general presump (Tex.Civ. Kountze, tion is an act operate is intended to 1976), App. it is observed — Beaumont prospectively retroactively provided procedural unless otherwise such against doubt is to be resolved retroactive applies pending remedial to both application. Abell, ’ future operative actions and becomes on (Tex.1981); Gov. & Personnel Mutual legislation. effective date Wade Wear, (Tex. Ins. Co. S.W.2d Life (Tex.Cr.App.1978); 1952). applied A statute will not be retro spectively Granviel v. appears implica unless fair S.W.2d 107 tion language App.1976), from the used the entire cert. den. 431 U.S. S.Ct. act Legislature that it intent of the 250; 53 L.Ed.2d Wilson v. applicable past to make it to both and fu S.W.2d 532 See also Abell, ture actions. Ex (Tex. Patterson S.W.2d cases there cited. See also Fed-Mart App. 1982). [14th] — Houston Texas, Calvert, (Tex. Inc. v. majority views the 1985 amendment 1971); Civ.App. Harvey v. Den — Austin procedural Article 37.10 as a statute. It ton, 601 121 (Tex.Civ.App . —East appears also remedial. Story, See Pratt v. n.r.e.). land ref. Manifest intention 1975). (Tex.Civ.App —Tyler S.W.2d 325 . Legislature controlling circum Nevertheless, rules as to such statutes interpreting stance in having a statute as are generally the same. There is no dis retrospective prospective effect. pute against ap that the verdict returned City Euless, Deacon v. plicant in trial court Cause No. 314984 was (Tex.1966); Calvert, Sloan v. void ab initio and that his final conviction (Tex.Civ.App. — Austin void, although legal based thereon language in some of the cases are ly adjudicated prior to said statu not always regard proce consistent with tory Without amendment. said amendment dural and remedial matters. Some cases question there no would be what he but indicate, indicate the must would be entitled relief the same as by implication, least fair a that statute will Bogany, Spaulding company. and If the such, be retroactive for it to be even with applied retroactively, 1985 is amendment respect procedural Simpson matters. applicant entirely deprived will of that be Assoc., Employers Texas Ins. 519 S.W.2d relief. If applied retroactively, then what (Tex.Civ.App. 1975), 213 Worth — Ft. was a at in inception void verdict and cases there cited. Other cases cite the will a in by now become valid verdict general given rule that not statutes will be pursuant this Court’s action the amend retroactive effect in of clearly absence ex pressed post-conviction ment to 37.10 in legislative intent, Article a recog with a exception corpus proceedings nized where the statute habeas under Article deals procedural 11.07,V.A.C.C.P., with or op- pri- matters as by applicant remedial initiated existing application quired can be shown that the of the law under law.” away impair rights would take vested ac apply to the of the said If the is the majority effective date amend- determined to retroactively merely it is statute because ment. nature, procedural must, in then it in fair- is It clear that manifest intention of the bar, grips ness to the and bench come to Legislature controlling is the circumstance questions. with other It must be decided interpreting whether statute can be procedural whether such retro- statute has only applied retroactively prospectively. application post-conviction active habeas Euless, supra; City Deacon v. Sloan v. corpus proceedings pending as a or future Calvert, glance supra. Only the decide, despite action. It must the claimed amendment shows the procedural statute, nature of the it whether prospective tended for the statute to have deprives applicant protec- the of substantial application only. provides part: It tion, process due due of the course required “If the trial court is to reform Tex.Const.), (Article I, law of the land § a verdict under this subsection and fails right the by jury, constitutional of trial so, do the court shall reform generally Legislature may the whether val- provided by the verdict as this section.” idate void in such convictions a manner.3 stated, instant For I vigorously When case was the reasons dis- sent The accepted jury majority. and the to the action of the returned dis- applicant is to relief. charged, entitled this amendment or subsection was wording effect. of the amend- CLINTON, Judge, dissenting. legislative clearly ment indicates the intent by the act utilized appel- was to be an regard- Finding prior that our decisions late court where the trial court was ing jury an unauthorized verdict “share “required to reform a under conclusion,” premise common the ma- subsection” and failed to do so. The jority logic connecting believes that “[t]he being amendment not in effect premise conclusion involves application no applicant’s cause or to im- specific by lack of vehicle which the action of on application Slip this Court proper verdict could reformed.” post-conviction Opinion, corpus. p. majority writ of habeas is 3. mistaken. guarantee right by jury to trial of a in the different that called for Amendment, Constitution, Sixth States United is verdict. Combes Tex.Cr.R. applicable King made to the States the Fourteenth Louisiana, (1938). Amendment. Duncan v. 391 U.S. Tex.Cr.R. 88 S.Ct. 20 L.Ed.2d 491 Arti- Castro v. 118 Tex.Cr.R. I, (1931), provides 10§ cle of the Constitution void the trial court’s action in Texas held prosecution motion) disregarding (upon an accused in a criminal shall the State’s rec- speedy impartial public jury. jury an trial ommendation of the that the sentence I, suspended. Article 15 of the said State Constitution this Court held the There action provides right of trial shall the trial court violated inviolate. Article judge remain See also V.A.C. principle "... fundamental that the C.P.; Tex.Jur.2d, 9, p. Jury, § 45. When the presiding right a trial has no no over is to assess under Article power a verdict rendered V.A.C.C.P., assess must in their verdict their before unless consent and imposed accused, intended to be where it rights discharge. The their circumstances, is otherwise fixed Under these judg- under such to have the circumstances assessment is ex- agree- ment follow if formal absolute_” clusively province within submitted, able to the issues Tex.Jur.2d, Trial, 393, p. 28. (Tex.Cr.App. Smith v. own, 1972), its of the court on struck a judge that a It been fundamental trial by authority Since not have the to receive a does punishment, by verdict assessed an Hardy and then refuse to abide it. State, inception and (Tex.Cr.App.1953), the verdict was held void at its nor change had no any part, that the trial court in material Cham- 63, deleting State, by offending portion. pion (Tex.Cr.App. 19 S.W.2d 65 State, 1929), give part nor effect to of the verdict and also McIver v. App.1979). ignore part some enter another other

613 right by jury to trial from the The constitutional for the rule flows The real reason includes, among prerequisites, other character and immutable constitutional “will a take an oath that each jurors must by jury trial in a criminal principles of according render true verdict I, 15, Constitu- action. Article 10 §§ ...,” Article V.A.C. and evidence Texas; see, e.g., of Free- tion of the State C.P.5, by has been held all and “[i]t 265, State, 143 186 man v. Tex.Cr.R. sitting judgment, [jurors] courts ... Bond, (1945);1 114 683 Moreau v. S.W.2d unsworn, jury,” and do not constitute a (1925);2 468, Tex. 271 S.W. 379 jury is a by an unsworn that “a conviction 328, Quintanilla, 207 151 Tex.Cr.R. State, 87 Tex.Cr.R. nullity,” Crisp v. mere (1947, 1948).3 (1920).6 137, 1104, That 1106 220 S.W. guarantees right of the of an The dual requisite laid down because the ultimate is I, by jury trial in Article 10 accused to §§ jury in this plain duty of a function of the State of and 15 of the Constitution been, first, always practically State together. construed Dab Texas must be and the “speak the truth between the State State, 21, 124 ney v. Tex.Cr.R. ‘guilty’ or ‘not by defendant their verdict of (1933); Holland, 451 91 Tex.Cr.R. the offenses of which guilty’ of one of 339, 654, (1922); 238 655 Moore v. S.W. and, may secondly, “to he be convicted” 634, State, 117, 2 Tex.App. 22 S.W. 635 punishment if the same is not assess the (1886). Though the authorizes the latter absolutely fixed law.” Buster v. pass regulate laws “to (1875). 315, By cur- 42 Tex. 318-319 our same, purity and to maintain its and effi definition, “A is a statutory rent ‘verdict’ ciency,” it is the clause axiomatic deci- declaration written permit right,” “does not reduction to it in the of the issue submitted sion 15, or, Interpretive Commentary to And, § case.” Article Y.A.C.C.P. Bishop, stated Mr. “the substance of it punishment is referred the issue of impaired,” Bishop, cannot be Criminal com- jury, to the “the verdict shall (3rd.Ed.) 893, quoted approv Procedure jury has rendered a verdict plete until the ingly State, supra, guilt Moore v. 2 S.W. at or innocence of the de- on both the punishment, amount of 636.4 fendant and the requirement right jurors. 1. "The of trial one the sacred Such is the Texas, rights every which our courts should accord Art. V. 13. Clark v. Constitution crime, person charged independent of his Tex.Cr.App., Tex.Cr.R. 278] [161 guilt guaran- or innocence. Our Constitution 162 Tex. S.W.2d Houston v. 819 [1955].” every person charged tees to with crime a fair 551, 643, Cr.R. trial, impartial right with the to submit the U.S. 76 S.Ct. rt. denied 351 ce 100 L.Ed. 1492 jury, matter of to a even when he (1956), rehearing denied 352 pleads guilty to the unless and until offense ... So, 1 L.Ed.2d 72 U.S. 77 S.Ct. Id,, waived in accordance with law.” legislative provision example, for a S.W.2d at 684. I, "violates Article Section six in a district court is, therefore, "invalid.” Iordan v. 15” and 2. "Those nature, rights, fundamental their Crudgington, S.W.2d 646- 149 Tex. guaranteed by which have been Rights the Bill of dissenting opinion of Smed see also subject judicial cannot discre- Griffin, J., J., ley, 231 S.W.2d at and of legal tion. Judicial discretion is a discretion at 654. legal S.W.2d personal discretion and not a discretion—a be exercised in accordance with the Constitu- Id., S.W.2d 5. All and the laws of the land.” tion throughout emphasis unless other- is mine at 379-380. indicated. wise 3. “The record before this court shows affirma- finding Crisp of the Court in 6. The tively by recitals in the that no Hewey 87 Tex.Cr.R. jury, but was was assessed (1920), actual- that the oath 220 S.W. Judge. Such a in this fixed the ... help you ly God" [me] taken must include “so Id., of case is void.” character Craig was overruled 4. “It is also the well settled law of this state jury composed in district court means

614 jury guilty.” finds the accepted by the defendant came to the views Court. 3(c). State, Article 106, Misdemeanor cases See Pritchard 117 Tex.Cr.R. v. jurisdiction justice (1931); within the of and munic- 717 also 35 S.W.2d see Castro v. aside, ipal applies 53, State, Tex.Cr.R., courts “Article 37.07 118 express (1931). all criminal cases Today, though ... with the a trial may court 2(b)] exception as informal, to who is to assess cause be corrected contra an [§ illegal in cases under Article or dictory otherwise ac State, supra,” 304, 37.10, V.A.C.C.P., 598 Eads v. S.W.2d 308 cordance with Article (Tex.Cr.App.1980) (emphasis original McIver, 851, 854 opinion). App.1979), it is still true that “the court cannot substitute for the A trial court “cannot render a verdict or verdict,” State, Eads v. 307. thereof,” any part State, Harrison 162 v. especially That 301, compel admonishment is (1955). Tex.Cr.R. ling “where the defect insufficiency or Judge Woodley When wrote he the verdict relates to the assessment of echoing dissenting what Judge W.L. David- id., punishment,” State, at 306. Horn v. repetitive way son had in his insisted 22, 145, 117 Tex.Cr.R. 146-147 State, the law in v. Bessett 78 Tex.Cr.R. (1931). not, majority It is 110, (1915), as the would 180 S.W. 249 viz: it, specific “the lack of a vehicle “An illegal paradox. verdict is If il- a improper the which could be re legal, it is not to be received or enforced. * * * precludes formed” which a court from re judge cannot render a ver- forming Rather, problem the verdict. the dict, it, except as the neither appel is that the trial court nor an jury it. returns He must take the either capable determining late court is, verdict as send the back to * * * finding confidence “the true [jury agree in accordance with law. punishm fact finder” on the matter of as] judge juror, is not render cannot Thus, ent.8 an unauthorized verdict is it, any part felony case, in a inception,” held to be “void at the nor can he substitute his for Releford State, 683 386 (Tex.Cr.App. v. power verdict of He has the 1984); State, Bogany v. proper cause a correct and verdict to 959 because in that returned, and, if such verdict is not way may right to trial with “a rendered, they can till he retire the true verdict” remain inviolate. agree on such verdict. He cannot substi- however, tute judgment, his an incor- deference, respectfully With I dissent. illegal rect or verdict.” TEAGUE, Judge, dissenting.

Id., course, 180 S.W. at 250-251. Of as a general proposition, true, Judge points Davidson was Judge It is Miller out in then,7 correct majority opinion context stated authors for he State, Slaughter Supreme pointed v. The 24 Tex. 413-416 8. As the Court out more than (1859); State, (1874); State, years ago v. Alston 39 41 Tex. one hundred in Buster v. The 319; State, May Tex.App. (Ct.App.1879); v. 6 supra, at 191 State, Tex.App. (Ct.App.1879); Jones 7 v. 103 support judgment, “To the court must be State, Gage Tex.App. (Ct.App.1880); 9 ‘guilty’ able see returned State, Wooldridge Tex.App. 454-462 jury, requires that it authorizes State, (Ct.App.1883); Tex.App. Walker v. penalty assessment of a affixed or that (Ct.App.1883); Taylor Tex.App. penalty assessed is warranted law. (Ct.App.1883); Tex.App. Robinson v. also And are not mistaken in (Ct.App.1887); 4 S.W. 904 Guest v. have, degree they of the offense Tex.App. (Ct.App.1888); S.W. 242 Rocha fact, guilty, imposed found the defendant 38 Tex.Cr.R. 41 S.W. 611 penalty not affixed to it How can Jones v. 54 Tex.Cr.R. S.W. 761 this, court the verdict know unless finds (1908); Murphree offense, 55 Tex.Cr.R. degree, penal- or its as well as the S.W. ty?" Court, However, concurring opinion attempted in I I my that that sentence. in filed in Bogany v. 661 S.W.2d 957 opinion point to the other out members (Tex.Cr.App.1983),I opined: Legisla- Court, “[The among things, of this other that give has never seen fit to this Court ture] there was a distinction between a void any appellate intermediate court of this judgment judgment. I and a voidable stat- authority State to assess that, facts, barring any ed “... other that reduce assessed did in this cause which Governor was non-capital conviction was for a ...,” dealing, valid act because he was felony.” opined, dictum, I also by way of but, instead, judgment, with a void that that could “[because] [in case] dealing judgment. My with a voidable fine, not assess a in addition the time however, opinion, very was not a convinc- assessed, incep- its verdict was void at the one; ing it received one vote—mine. (My emphasis). tion.” however, Judge Campbell, in parte Ex However, the main in Bogany issue Spaulding, supra, made no bones about State, supra, was not whether the had what he stated or what he intended to state returned an unauthorized concern- Court, “Bogany for this when it came to ing punishment, but, instead, was whether Judge Campbell, unequivocally, error.” appeals authority the court of had the and ifs, ands, buts, and any express- without jurisdiction to reform on direct review the ly “Bogany held for the Court that error” judgment cause, by of conviction in that judgment totally rendered a of conviction deleting therefrom the fine had been void, absolutely you if void ab initio assessed This Court held that please, relegating thus equiva- such to be reversed; it did not have such authority and tree, lent to a dead limb on a with such making thus the above-underscored dictum. being being chopped vulnerable to off at thereafter, Soon I discovered that I had time, or, any put legalese language, it in opined too much in opinion that I filed nullity beginning, is a Bogany supra. “[I]t may treated as such without further When the opportunity presented first it proceedings nullity judicially self, I attempted clarify my dictum. J., Teague, Concurring declared.” and Dis- (Tex. Spaulding, 687 S.W.2d 741 senting Opinion in parte Spaulding, Cr.App.1985), I did so filing a concur ring dissenting opinion. wrote, I because I believed that the future the quoting After from Black’s Law Dictio- Legislature of this State would enact a new (Fourth nary Ed. West Publish- giving trial courts of this Co.), ing Judge Campbell reempha- then State the to reform verdicts or holding: sized the Court’s “Void is further judgments, where the nothing defined in Black’s as was not authorized which it did cure,” (My emphasis), implicitly can recent, during the regular but last session applied such definition to the Legislature, pres because I am not that cause. cient, but did so I because believed that it Furthermore, but order to make sure necessary clarify the above under nobody misunderstood what he was portion scored opinion I had saying, or what he intended to state for the in Bogany, supra. filed In Ex Court, Judge Campbell further stated: Spaulding, agreed, I for the rea void, being “Such and sentence therein, sons stated the result that the any subsequent the error is incurable and majority opinion by Judge Camp authored attempt remitting (reforming, bell had reached. I did so because the stance) the fine of a sentence void pow had Governor violated the division of (My emphasis.) Unquestion- is also void.” man ers that the Constitution of Texas ably, Judge Campbell did not mince dates. He was thus without lawful author ity subject, to order a remission of the defendant’s words about made clear to holding

all what this compelled Judge Court was when it am to echo Onion’s excla- error,” “Bogany came to namely, that if mation. there “Bogany error” in the verdict of For the reasons that I stated in the con- jury, such rendered the conviction void curring opinion I dissenting that filed ab initio. parte supra, Spaulding, Ex now that I pause point only Judge out that given Court, has this dissented, opinion, White without in Ex others, among authority to reform an parte Clinton, Spaulding, Judge I am unable facial- joined by Presiding Onion, Judge filed a ly any judgment state that of conviction concurring opinion, opining that need “we occurring the effective date of that after [today] not strain distinguish judg- legislation judice is coram non or brutum ments in those cases from the one here fulmen, being only rather than a voidable calling the former ‘voidable’and the latter judgment, subject only to direct attack on ” pointed ‘void.’ I in my opinion out that appeal. instance, “In this I believe that it is neces- However, light Judge but of what However, sary Judge that we so strain.” stated, Clinton has it should be incumbent Clinton, did, Judge Campbell like also did upon so, this why Court to discuss that is matter, not mince words about rather than to hide behind the time-worn told us what the “true” rule was: “The it, expression though that I “even said true rule Texas is that an court I say, is not what intended to I because ‘may not reduce the ” say following.”1 meant to And, jury.’ may right, he not- withstanding opinion only that his received light what this Court stated Presiding

two votes: his Judge On- parte Spaulding, supra, if for no other ion’s. face, reason than for this Court to I save Miller, only apply legislation

Judge pro- would the new majority author of the opinion, effective, spective who did not write in from the date it became supra, Spaulding, implicitly majority declares for and not make it retroactive as the today the Court though that even does. I to such dissent action ma- express unequiv- Court made the above jority. ocal statements in Ex Spaulding, I also dissent because the failure of is not what the Court majority opinion in its discuss actually state, Court, meant to but the Judge issue that Clinton raises in the con- stead, actually intended to state the follow- filed, curring opinion namely, he has sense, ing: “In this an unauthorized [when no court power has verdict is returned accepted “monkey” punish- with a verdict on by the judge], trial and sen- ment. tence way ... void since there no [are] [is] general, I adopt because cannot what infirmity,” to cure the and reasons that stated, majority respectfully I must recently legislation

because of the enacted dissent. “Bogany error” can cured now be refor- Facially, mation. this sounds all well and

good. However, problem that is the majority opinion; facial; it is depth complete analysis.

lacks

Presiding Judge Onion of this Court is utter, prone

often when he reads some-

thing legal in law that to him is without

foundation: “Color Me Amazed.” After written,

reading Judge I what Miller has Wonderland,

1. Cf. Alice’sAdventures in Lew- is Carroll.

Case Details

Case Name: Ex Parte Johnson

Court Name: Court of Criminal Appeals of Texas

Date Published: Oct 9, 1985

Citation: 697 S.W.2d 605

Docket Number: 69480

Court Abbreviation: Tex. Crim. App.