*1 egregious more than those found Webb Texas, 351, U.S. S.Ct. (1972). There,
L.Ed.2d 330 the facts re-
flected that the defendant called a witness testify. presence Outside of the judge the trial admonished the wit- required testify,
ness that he was not testified, if he lied under oath when he personally
the court would his case see that grand
went to the jury, that he could be perjury, that in that event he probably
would have to serve more time presently serving,
than he was and such against him
would be held when he was parole.
considered for The witness then testify
declined and was excused. The
Supreme Court judge found that the trial
committed federal constitutional reversible
error.
Finding that the of this facts case cannot distinguished Texas, from su- Webb
pra, compelled respectfully am dissent. RELEFORD, Appellant,
Samuel James
Court of Criminal Glass, Houston, Gregory
James pellant. Holmes, Jr., Atty., B. Dist. Winston Cochran, Holleman,
E. Jr. and John Asst. Houston, Huttash, Attys., Dist. Robert Austin, Atty., State’s for the State. *2 386 require jury separately find the FOR that the
OPINION ON STATE’S PETITION
taking to
been without the effective
have
DISCRETIONARY REVIEW
of the owner.”
consent
Woods
ONION, Presiding Judge.
The
for
a
653
at 5.
rationale
such
ag-
This
is from a conviction for
Judge
in
holding is found
Clinton’s dissent
Punishment,
gravated robbery.
enhanced
in
opinion Hill,
adopted
we
ing
in
which
by allegation
proof
prior felony,
of
and
a
Woods, wherein he writes:
a life
and a
was assessed at
sentence
progeny
“Evans and its
should
$5,000.00 fine.
overruled,
owner’s
even if ‘without the
appeal,
Appeals
Court of
On
the Houston
effective consent' is somehow a ‘sub-ele-
Supreme
unpub-
in an
Judicial
robbery,
[1st
District]
ment’ of
because we failed
reversed and remanded
lished
requiring jury to find that
perceive that
a
alia,
holding,
pellant’s conviction
inter
intentionally
appellant ‘then
there
and
charge
fundamental er-
jury
placed
the
contained
knowingly
and
threatened or
granted
bodily
the State’s Petition for
ror. We
in
of imminent
[complainant]
fear
Discretionary
determine the cor-
injury
Review to
or
a factual find-
death’ rendered
portion
the decision
ing
rectness of that
of
to her lack of effective consent imma-
below.
terial.”
therefore,
We,
the State's conten-
sustain
charges appellant
The indictment
aggravated robbery
the
of
offense
committing theft.”
“while in the course of
though,
totally
does not
dis-
ruling,
That
facts,
In
the
the court
applying the law to
a prob-
pose of this case. There remains
and use the
did not
the indictment
track
by law.
jury
lem of a
verdict unauthorized
committing theft”
term “in the course of
penalty
charge at
The court’s
the
component
set out the
attempted
if it
the
stage of the trial authorized
by alleging
of
the
parts of the offense
theft
con
previously
appellant
found
had been
charge
elements thereof.
alleged,
punishment
to assess
as
victed
appel
to find that
require
failed to
fifteen
years
a
not less than
“for
term of
property
attempted to take the
lant took or
by
ninety-nine years or
more than
years or
consent of the owner.
without the effective
life,
for
and in addition
confinement
therefore,
Appeals,
of
held the
The Court
thereto,
may
not
you
assess a fine
fundamentally
charge
defective for failure
$10,000.00.”
supplied.)
(Emphasis
exceed
all
elements of
to set out
the essential
by the court as-
accepted
The verdict
theft,
con
“without the effective
to-wit:
Department
in the
imprisonment
life
sessed
support
In
of their
of
sent
the owner.”
$5,000.00.
and a fine of
of Corrections
holding,
relied on two
the Court
§
(Penal-
Code,
12.42(c)
V.T.C.A., Penal
by this Court with identical
opinions
earlier
Repeat
Felony Of-
and Habitual
ties for
880
606 S.W.2d
situations. Evans
fenders), provides:
Hill v.
of a first
also,
“(c) If
shown on trial
it be
(Tex.Cr.App.1982). See
has
defendant
(Tex.Cr.
degree felony that
State,
which authorizes a fine $10,000.00. Nevertheless, not to exceed § § 12.42(c) 12.32, controls over and the *3 punishment assessed the legal exceeds State,
maximum. Bogany See (Tex.Cr.App.1983). S.W.2d 957 Court Criminal suggests The State this Court should reform the sentence instead re- However, versing remanding. as we opined State, in Bogany supra, we are authority
without on to reform such judgment and sentence. error was
in accepting a verdict which was not autho- law,
rized and not a situation
judgment contrary to was verdict. latter, authority this Court has to re- judgment
form and correct a to reflect the finding finder,
true fact not in See, 44.24(b),
the former. Article Y.A.C.
C.P.; Milczanowski v. (Tex.Cr.App.1983). authority
Because there was no for the fine, to assess a in addition to the time
assessed, the verdict
void
incep-
at the
Villarreal
Houston [1st Dist.]—
We conclude the of Appeals Court inwas reversing
error in ground this cause as to
of error one. judg- because the inception
ment void at its was due to the punishment assessed,
excessive arewe con- judgment
strained reverse the of the
trial court and remand the cause to that
court, thus in affirming judg- effect Appeals.
ment of the Court of
MeCORMICK,Judge, concurring and dis-
senting.
Although agree the majority as to ground error, disposition of the first
I must dissent to the for the rea reversal my dissenting
sons set forth in
Bogany S.W.2d 957 JJ., CAMPBELL, join
W.C. DAVIS opinion.
in this