*1 to do so in the 1974). The court’s failure case was reversible error.
present
The is reversed and remanded.
ODOM,J., dissents. FRANKLIN, Appellant,
E. L. Texas, Appellee. STATE
No. 53310
Court of Appeals Criminal
En Banc. 20,
Dec. 1978. Angelo, Gray, appellant. Melvin San for Rehearing En Banc Denied Feb. Killam, Jr., George County Atty., Sny- R. der, for the State.
OPINION ONION, Presiding Judge. appeal
This is an from a conviction for driving the misdemeanor offense of a motor while upon public highway vehicle intoxi- punishment at cated. The days county three in the and at a fine of that the $100. placed The court thus time be appellant on misdemeanor for paid by six months and ordered the fine 1976 as a condition of March immediately arises permitted to recom- whether the mend misdemeanor time but not as to the fine. The court’s charge stage of the trial penalty at the correctly penalty instructed as to the intoxicated, not au- did thorize the other, one not the type printed appropri- but the verdict form with *2 entered in appear jury prior did to authorize the misdemeanor cases to ate blanks to probation type as one of State, revocation are nullities. Lee v. other. Coby State, not as to the The ver- v. penalty supra.2 and supra;1 The stat- was as follows: dict returned ute did intend that judgment not a “We, disposing part penal- heretofore sentence of a Jury, having found oper- ty of be guilty remaining assessed entered Defendant public a upon high- motor vehicle ating penalty probated. a be If this was not so under the of influence intoxi- way then completion proba- successful of County in of liquor Scurry cating accusation, tion the complaint, informa- in charged the infor- of State tion or indictment would be dismissed mation, now assess his for finding of guilty may not be at in the county said offense confinement any except considered for purpose to de- (31 jail three davs and a fine of for eligibility termine his future for $100.00. find and we further that tion, 42.13, see 7 of supra, Article has not been Defendant yet there would still outstanding judg- be years, in five and we rec- preceding ment and sentence as to of part pen- to the court that ommend alty which assessed was exacted from the Jail time This defendant. is not what Article 42.- (You inserting ‘Jail time’ OR ‘Fine’ OR supra, intended.” fine’) ‘Jail time Taylor dissent would overrule against in other cases recent interpreting 42.- probated. case be 13, supra, and would hold that where the “/s/ Leslie O. Albin a jury instructs in a misdemeanor Jury” Foreman of the case it has the authority payment to order Only recently we confronted with were of all part of fine assessed the same type the same here and jury as a of condition the instant form as used in case of verdict assessing punishment its role of may pro- State, (Tex.Cr. Taylor S.W.2d any jail bate any part time assessed but not reviewing App.1977). After of the fine assessed. And this would be decisions, prior the court true though even the jury impaneled was wrote: for the very purpose assessing the pun- to authorizing ei- “In passing upon ishment and issue pro- fine or the and to exact ther the time bation.3 portion appellant from the Where would such a ruling urged by court fell penalty probated, into the dissent lead us? does supra, error. Article not con- Under the circumstances a case where procedure. jury may such
template only a fine is assessed and is not, probation or but if it recommend but was then the instructed as authority court’s fine, assessed, whether or both a require payment of all or time, part fine and may then the verdict be altered and provides that expressly The statute in effect set judge aside the trial because granted where misdemeanor the defendant could be required pay all is to be entered and the no part or a imposed prior of the fine guilt is not to become final finding carrying And this court out of recommendation of upon revocation. except judge and sentences as to judgments would has held recognizes (Tex.Cr.App. 3.The dissent there were 1. no Lee v. authority 1974). instructions as to the court’s but instant would hold failure to (Tex.Cr.App. Coby 518 S.W.2d instruct harmless error. 1975). ing guilty alter the s power have the same not be considered degree, verdict, to a where the fine is lesser any purpose except to determine en- only a assessed. titlement to a future under this Act, (Em- other Act.” If concludes that fine with a phasis supplied.) appro- recommendation *3 may well priate punishment they a Surely, in to problems, addition all these prevent instead their assess to the Legislature did not to intend authorize being recommendation trial judge a to a usurp circumvent is so full circumvented. This because if the jury’s verdict at his own whim or to exact is punishment assessed a fine and that is punishment before the conviction is final. a prerequisite proba- in full as to exacted This absurdity. would be an tion, jury’s not the ren- is recommendation guarantee right of the to trial meaningless? under cir- dered And such by jury Amendment, contained in the Sixth cumstances, would not re- subsequent Constitution, United States is made applica quirement paying after the fine in full of to ble by states virtue of the Four subject being to the conditions of Louisiana, teenth Amendment. Duncan imposed be a more severe than that 145, 1444, U.S. 88 S.Ct. 20 L.Ed.2d If, circumstances, by jury? under these (1968). revoked, probation is later what penalty I, Article State Constitu § required would then be of the defendant tion, provides that in all prosecu criminal considering 42.13, of Article tions the accused have speedy public shall 3(b), supra? § by impartial trial jury. an this con Since It should also be remembered that where provision applies stitutional to all criminal granted pursuant is to Article prosecutions, the a misde judgment no is even entered. meanor case has right the same by trial If an or part assessed fine thereof is collect- Tex.Jur.2d, as in cases. 35 described, able circumstances Jury, 12, p. 49. § punishment assessed, part thereof, or a is I, Constitution, Article § exacted without State sentence provides: also being entered and without the conviction being 42.15, V.A.C.C.P., final. Cf. Article right “The by jury trial shall remain as amended 1971. The Legislature inviolate. pass shall laws as regulate needed to Suppose the full which is only same, and maintain its purity and effi- punishment, is exacted and the defendant is ” . ciency. . placed on com- satisfactorily pletes probation. happens What then? Is response In Legislature thereto the the fine collected judg- without benefit of has from pertain time to time enacted laws ment or sentence remitted to the ing defend- jury. While the federal and ant? state right constitutional to trial by right does not include to have the 42.13, reads: § punishment, Legislature, assess the Texas “(a) period When the terms I, pursuant to Article § State have com- satisfactorily Constitution, has enacted Article V.A. shall,
pleted, the
its
mo-
own
C.C.P., which authorizes a
to re
tion, discharge
him from
punishment
quest
pass
an
enter
order in the minutes of the court
issue of probation.
setting aside
finding
guilty
dismissing
opinion
Faugh
In the
complaint
concurring
the accusation or
(Tex.Cr.App.1972),
information or
it
indictment
“(b) 393, 28, against p. After the case “In Trial is 57 Tex.Jur.2d § court, tioner dismissed find- written: “Castro v. 118 Tex.Cr.R. proceedings
‘A in criminal (Tex.Cr.App.1931),held void verdict the S.W.2d 779 in their assess disregarding (upon on the defend- action in imposed court’s intended to motion) the recommendation ant, not otherwise fixed where it is State’s suspend- circumstances as- that the sentence be these law. Under exclusively held such action ed. There the court sessment . .’ province of within the violates the principle ‘. . fundamental least, prior “At to the enactment of over a trial has no judge presiding (the supra Misdemeanor change a right power and no verdict Law), Probation it was fundamental that rendered unless with their a trial judge did not have authority discharge. their consent and before receive a verdict and then refuse to *4 accused, the under such right of by State, abide it. Hardy v. 159 Tex. circumstances, judgment have the 54, Cr.R. 261 172 (Tex.Cr.App. S.W.2d verdict, agree- the if formal and follow 1953),and cases there cited. submitted, able to the issues is abso- Champion State, “In v. 113 Tex.Cr.R. the impotency lute. The trial court 172, 63, 19 S.W.2d 65 (Tex.Cr.App.1929), presiding, at the instance judge or the this court said: state, verdict, nullify a re- ‘. proposition . The the issues, sponsive to the evidence and verdict, court cannot receive a dis- suspend- which accords the accused the charge jury, the change and thereafter supported, thought, it is ed sentence part, verdict in material has by by the cases mentioned above and court, been often affirmed this principles governing decision of is in accord with holdings. its uniform Snodgrass this court in the case of v. 615, 162, State, 150 67 Tex.Cr.R. S.W. 1144, (N.S.) orig- 41 in which the L.R.A. instant it has “And similar to the conferring law suspended inal sentence not held that the trial been authority incon- part judge effect to the trial give verdict and receive a part finality of a verdict of ignore some other sistent with it and ’ judgment and different was denounced. . 42 enter another jury’s verdict. that called at 781.” S.W.2d 482, 286 State, Tex.Cr.App. v. 162 Combes interpreted If Article can be State, (1956); King v. 135 949 S.W.2d require pay- permitting as the court to (Tex.Cr. 71, 800 117 Tex.Cr.R. ment of all or a of the fine assessed in receive may the court Nor App.1938). the jury’s order to obtain the benefit of enlarging init go beyond verdict and probation, as to then seri- recommendation thereon, judg since judgment process and due course questions ous of due See, Cagle the verdict. ment must follow I, 19, land, Texas of the law of § 140, State, Tex.Cr.R. 179 S.W.2d 147 Constitution, raised. The dissent’s ar- are Also, Baker v. (Tex.Cr.App.1944). persuasive.4 gument is not 618, State, 158 S.W. 70 Tex.Cr.R. State, Taylor the reasons stated For Luttrell v. (Tex.Cr.App.1913); supra, judgment is reversed and (Tex.Cr. 31 S.W.2d Tex.Cr.R. cause is remanded. variance is material App.1930). im appears that the where DALLY, concurring. Judge, than a more severe poses dissenting opinions majority Both the Rivers v. verdict. manner with 1881). attempt to deal in an indirect (Ct. App. Tex.App. dealing 42.13, V.A.C.C.P., both statute with and misde- is not and has never 4. Article procedure Hopefully rules and where the some- meanor cases drafted statute. a well possible. Legislature can be as similar day will see fit to have one that the trial court Art. Sec. cannot override the satisfactorily recon- jury’s of which cannot recommendation in any way, such as ciled.1 assessing a fine as a condition If this is not what the legislature intended, 3(b) that if a recom- provides Sec. it can make its intention clear in its next grant mends court must session. probation; yet the same sentence provides that a defendant must first meet I concur in the result reached by the 3(a)(4) requirements of Sec. majority. justice the ends of court believe society interest of and of the defend-
best DAVIS, JJ., ROBERTS and W. C. join in by granting ant will be served the defend- opinion. permits ant This the court to DOUGLAS, Judge, dissenting. override the recommendation to presented is whether the grant probation any case in which the jury is permitted to recommend misde- the best interest society court feels meanor type to one of penalty grant- defendant will not be served and not as to the other under Article Also, it ing probation. appears that even V.A.C.C.P. when a fine, the recommendation is binding penalty stage At the of the trial the court *5 3(a)(3) permits the court because Sec. correctly instructed the on the penalty court to override a recommendation to applicable driving while intoxicated and probate the fine. on the law of misdemeanor probation. The verdict form submitted to the
It legislature is obvious to me that verdict are as follows: by intended that a court be bound a jury’s “We, grant recommendation to pro- Jury, misdemeanor having heretofore found bation and intended that the jury could guilty Defendant of driving oper- and probation recommend of either a fine or ating a motor vehicle upon public a high- Therefore, imprisonment, or both. since way while under the influence of intoxi- conflict, provisions of the statute are in cating liquor in the County of Scurry and by I would reconcile that conflict holding charged State as in the infor- require- mation, if a defendant satisfies the now punishment assess his 3(aXl) (2), ments of Sec. and and the jury said offense at confinement in the county (3) days hearing defendant’s case recommends for three by and a fine of $100.00 probation, grant probation the court must and we further find that the De- V.A.C.C.P., 3(a) (b), “(4) Sec. and Art. reads the court believes that the ends of justice society as follows: and the best interests of by granting of the defendants will be served him “(a) guilty A defendant who has been found probation. per- of a misdemeanor wherein the maximum “(b) require- If a defendant satisfies all the by missible confinement in 3(a)(1), (2), (3) (4) ments of Section by $200.00 in a fine excess of or both Article, jury hearing his case imprisonment may granted such fine and verdict, recommends in its probation if: grant probation. court must the defendant “(1) applied he written motion under may grant The court the defendant trial; the court for before oath to regardless of the recommendation of the “(2) granted probation he has not been nor defendant, prior or the conviction of the ex- any been under under this Act or cept for a like offense within the last five years; provided preceding other Act in the however, years. may, The court extend the may grant probation regard- that the court probationary any period length term of the defendant, prior probation less of the exceeding of time not the maximum time of except for a like offense within the last 5 confinement allowed the law. In the event years; is revoked in accordance with “(3) paid all costs of his trial and so he has Section the of the court shall not imposed the court di- much of fine as prescribe any penalty in excess of that im- rects; and posed by jury.” granting Except provided in it. has not in fendant section, we recom- (d) preceding years, five Subsection of this Jail Time supervision to the court that tioner is under the mend inserting time’ OR ‘Fine’ OR (You ‘Jail granting him against fine’) ‘Jail “(b) period and terms in this case be designed prevent shall be recidivism O. Albin /s/ Leslie pro- promote rehabilitation of Jury” Foreman include, bationer. terms but to, requirement limited are not 3a, probationer: amended, dealing felony probation, with provides in part: U [*] [*] [*] . When the “. “(8) pay his if the court so orders appli- a fine also assess and, assessed, if one be in one or sever- which the defend- the offense for cable sums, in al and make restitution ”. convicted. . was ant determine sum that the court shall provision is contained No to exceed Thousand Dollars One misdemeanor governs which ($1,000): (Emphasis Sup- part: provides, This article plied). 3(a) A who has been “Sec. Heretofore our interpretation these guilty of a misdemeanor wherein found relation permissible maximum presented in the instant case has been byor a fine in confinement in byis little value confusing somewhat and of by both such fine $200.00 excess trial courts. Johnson v. granted pro- imprisonment may be involved (Tex.Cr.App.1971), if: bation misdemeanor conviction for applies motion un- “(1) written in that case was in- intoxicated. *6 probation for court der oath the they that either probate structed could the trial; before jail time or the the court autho- fine. But probation “(2) granted has he not been completing rized them in the verdict form under this probation nor been under probation instructions in the preceding the any other Act in Act and receiving for “Jail time Fine.” After court provided may that the years; jury charge the the sent the court a note in prior the regardless of probation grant inquired: pro- which it “If the sentence is defendant, except for of the probated?” bated is the fine The also court years; last 5 the like offense within responded by back to referring them the his costs of trial “(3) paid has all he charge. imposed as the any much fine and so of jury The then the assessed at directs; and court jail six months in fine $300 the ends of court that “(4) the believes probated. that both of society interests justice and the best probated jail court term but ordered be served by will of the defendant pay defendant the fine. probation. him granting all the re- satisfies “(b) a defendant If we appeal, On held that when court (2), (3) 3(a)(1), of quirements Section accepted upon the verdict and acted Article, jury (4) of have terms. We should followed its rea- his recommends hearing case jury kept soned that “should not be in verdict, grant the court its more than our decisions now any the dark probation. . . require should add [W]e by instructing them
more blindfolds
with
grant probation
proba-
charges
that
can
5(a)
period
terms of
“Sec.
assessing
part
the court
of the
for
tion shall
determined
part
paid
that
of their verdict will not
fine when
all costs of his trial
so
any
and much of
omitted).”
(footnote
be followed
imposed
fine
court directs. Section
at 941.
3(a)(3),supra.
The court
order that all
or part of such a fine be
paid
a condition
We
not hold in Johnson
the trial
did
probation.
of
5(b)(8),supra.
require payment of a fine
court cannot
probation.
when the
recommends
imposes
pro-
statute
conditions
point
That
turned on the
that the court
case
5(b).
bation set forth in Section
It follows
effect,
estopped, in
failing
will be
that where
court
instructs the
follow
recommendation of
authority
require
his
all
payment of
they are misled
court
tion where
into
any
condition,
as a probationary
fine
fine
believing
assessed
them they are
authorized to
time
probated.
will be
but
binding
is not
on
Faugh
(Tex.
In
recommend as
ommends then fine, sessed, jail time or both whether ” time, must be
fine and
at 724.
549 S.W.2d
RUSH, Appellant,
John Edward
Taylor, Oliva v.
500 S.W.2d
v.
State, Shappley
(Tex.Cr.App.1973);
Batten
Texas,
(Tex.Cr.App.1974),
Appellee.
S.W.2d 766
The STATE of
(Tex.Cr.App.1977),
Applying court’s instructions Dec. authority reference no contain How- payment fine assessed. order an
ever, failing give error in these cir- was harmless under
instruction This Court should hold
cumstances. not jury did recommend
since the or- could have the $100 paid as a condition of it to be
dered 42.13, Sec- any event. See Article
tion in 5(b)(8), supra. 3(a)(3) and
tions always have jury verdict does Under cases. followed *8 3, V.A.C.C.P., jury denies if a judge may grant
probation, a the verdict
He not bound follow cases, fine when bound is not
the verdict is silent was appellant reflects
The record at on
placed February notice he filed a written
which time fine be court ordered that the
appeal. The