Levy v. State
818 S.W.2d 801
Tex. Crim. App.
1991
Check Treatment

Jorge Luis LEVY, Appellant, v. The STATE of Texas, Appellee.

No. 270-91.

Court of Criminal Appeals of Texas, En Banc.

Oct. 30, 1991.

801 S.W.2d 801

tor‘s truncated comment, we hold that the objectionable portion of the prosecutor‘s statement (“See any remorse in this courtroom other than comes from the-“) does not meet the

criteria outlined above. In other words, the statement would not necessarily and naturally be understood by the jury to refer to Appellant‘s failure to testify; nor is there a necessary implication that the statement referred to Appellant‘s failure to testify. Consequently we find the prosecutor‘s comment does not give rise to reversible error.11

Moreover, even assuming, arguendo, that the State‘s argument alluded to Appellant‘s failure to testify, we hold that on the facts of this case any error caused thereby was cured by the trial judge‘s instruction to the jury to disregard any comments regarding Appellant‘s in-court demeanor. Our decision is harmonious with the general rule providing that harm caused by an improper remark during argument can be cured by an appropriate instruction to disregard, unless the remark is so inflammatory that its prejudicial effect cannot be effectively removed.

, cert. denied,
;
. After a careful review of the record, as well as our analysis of the ambiguous nature of the prosecutor‘s comment, we hold that this comment was not so objectionable that it could not be cured by an instruction to the jury to disregard. Point nine is overruled.

The judgment of the trial court is AFFIRMED.

Bruce Anton, Dallas, for appellant.

Jerry Cobb, Former Dist. Atty. and Gwinda Burns, Asst. Dist. Atty., Denton, Robert Huttash, State‘s Atty., Austin, for the State.

OPINION ON APPELLANT‘S PETITION FOR DISCRETIONARY REVIEW

BAIRD, Judge.

Jorge Luis Levy, appellant, pled guilty to the offense of aggravated sexual assault, without the benefit of a plea bargain agreement with the State. The trial court found appellant guilty, assessed punishment at six years confinement, and suspended imposition of the sentence, placing appellant on probation for six years. The State later moved to revoke the probated sentence. The trial court granted the State‘s motion, revoked the probation, and sentenced appellant to six years confinement. The Court of Appeals affirmed the judgment of the trial court in an unpublished opinion.

. We will reverse.

I.

The Court of Appeals stated appellant‘s contention on direct appeal as follows: “In a single point of error, [appellant] urges that the trial court erred in revoking his probation because he should never have been granted probation for his aggravated sexual assault conviction.” Slip op. at 1. The Court of Appeals overruled appellant‘s point of error by holding that appellant could not make such an argument on appeal after accepting the leniency of the trial court without objection, relying on its opinion in

, and affirmed the judgment of the trial court. Slip op. at 2.

A defendant convicted of aggravated sexual assault is not eligible for court-ordered probation. Tex.Code Crim. Proc.Ann. art. 42.12, § 3g(a)(1)(C). Sentences not authorized by law are void. See

(opinion on original submission) and
(opinion on motion for rehearing). See also,
. A defect which renders a sentence void may be raised at any time.
,
,
. Therefore, the Court of Appeals erred by holding appellant could not raise the issue on appeal.

II.

Having determined that the issue could be raised on direct appeal, we must determine what action is appropriate when a defendant, ineligible for court-ordered probation, receives such a probated sentence without a plea bargain agreement with the State.

Appellant‘s original sentence of court-ordered probation was not authorized by law, and therefore was void. However, appellant‘s plea of guilty was voluntary. The void sentence did not in any way in-duce appellant to plead guilty. Finally, appellant‘s plea of guilty was not induced by a plea bargain agreement. Contrast,

(defendant plead guilty pursuant to a plea bargain agreement).

When an appellate court finds error at the punishment stage of the trial, the case may be remanded to the trial court for the proper assessment of punishment. Tex.Code Crim.Proc. art. 44.29(b);

;
.

In cases where a defendant enters a plea of guilty or nolo contendere without the benefit of a plea bargain agreement with the State and the trial judge assesses a punishment not authorized by law, the appropriate remedy is to allow the finding of guilt to remain and to remand the case to the trial court for the proper assessment of punishment.

Therefore, we summarily grant appellant‘s petition for discretionary review, reverse the judgment of the Court of Appeals, and remand this cause to the trial court for reassessment of punishment.

WHITE, J., concurs in the result.

MILLER, J., concurs with the following note: While I concur in the result reached in the majority opinion, the reasoning behind the majority‘s finding is flawed. See my dissent in

.

McCORMICK, P.J., dissents.

Notes

11
In reaching this conclusion, we distinguish this Court‘s opinion in
(holding that a lengthy and relentless diatribe directed at defendant‘s in-court demeanor during final argument improperly focused on the defendant‘s neutral nontestimonial demeanor and thereby created an unreasonable inference of guilt). In Good, the prosecutor‘s invective was a manifestly unjust appeal to the jury to convict the defendant based on his irrelevant nontestimonial appearance and was clearly outside the scope of appropriate final argument. By contrast, in the case-at-bar, the complained-of statement was short, unfinished, and ambiguous.