*1
discretionary
petition for
re-
ed the State’s
the
of the Court
view and reversed
prove
suffices to
an indict-
What evidence
State,
Appeals. Rankin v.
jury chose to believe the State’s confession, judicial either
the defendant’s every that met
version constituted evidence out in the indict
element of the offense set charge.
ment and prosecutor
I would hold that the did jury closing argument by inviting
err Texas, Appellant, and the defen- to consider both State’s STATE evidence, to convict versions of the dant’s under either. Coya ROSS, Appellee. Johawn for en grant the State’s motion would opinion on hearing, panel’s set aside the
bane No. 0982-96. judg- trial court’s rehearing, and affirm the ment. Texas, Appeals of Court of Criminal En Banc. HEDGES, JJ.,
MIRABAL, WILSON, and join in the dissent. Sept. BAIRD, Judge, dissenting, on Denial of Appellants’ Rehearing. Motion for possession jury appellant guilty of
A found cocaine, substance, namely
of a controlled grams. Appellant pled
weighing than 28 less counts,
true to two enhancement twenty-five years’ punishment at
assessed Appeals re The Court of
confinement.
versed. Rankin 1994). grant- We
(Tex.App.-Houston [1st] *2 Korioth, Attorney, District
Sue Assistant Paul, Austin, Dallas, Atty., Matthew State’s for State. en banc.
Before PETITION FOR OPINION ON STATE’S DISCRETIONARY REVIEW MEYERS, Judge. involuntary appellee guilty
A found a sentence of six- manslaughter and assessed years appealed, teen confinement. The State illegal sentence was because contending the deadly weapon the trial court did not enter a Fifth Court of The parties Appeals requested that both submit its briefs so that it could determine whether jurisdiction was invoked under Tex.Code 44.01(b), CRiM.PROC.Ann. art. which allows ground “on the that the illegal.” argued sentence is The State weapon finding ought be consid- 44.01(b) part of art. ered the sentence under and that the trial court’s failure to include error, finding in ease was a clerical rendering illegal. the sentence For his thus part, appellee legality focused on the Referencing sentence. those cases that set properly out when the court can enter deadly weapon finding into the appellee argued that the trial court could not have entered such this case and doing not err in not so. sen- thus did tence, by appellee’s therefore reckoning, was jurisdiction illegal such that was invoked 44.01(b). appeals, art. The court under State, citing Marshall v. (Tex.App.—Dallas pet.), no dismissed jurisdiction. for want of We granted discretionary review determine appeals whether the court of erred its determination. outset, emphasize, at the that the
We
legality
of the sentence
this case is
appeals
before us. The court of
did not
they
address that issue and
were correct to
plain language
not do so. As the
of art.
44.01(b)
clear, jurisdiction
makes
under that
hinge
legality
statute does not
on the
Instead,
ap
sentence.
and as the court of
44.01(b)
Dallas,
assessed,
Johnson,
juris
appel-
peals properly
Karo
William
appeals
lant.
diction turns on whether the State
fact,
all,
technicality.
only applies
sentence as mere
sentence. After
before us
quite
central to the issue
sentences:
seems
plain language
of art.
today since
appeal a
is entitled to
sentence
[S]tate
appeal sen-
only allows the State to
ground
in a case on the
Boykin v.
KELLER,
note:
Judge, concurs with
44.01(b).
particularly,
More
dure Article
appeal the
Court,
I am does the statute allow
join
judgment
I
of the
but
an affirmative
trial court’s failure to make
majority that relief would
not as sure as the
deadly
use of a
finding
on the defendant’s
forthcoming
on the facts
via mandamus
be
weapon?.
holds that
is a
The Court
It is true that when there
this case.
words,
is,
(when
mandatory duty),
questionable
in
It
in this case whether there
other
is
comply
finding.
is consid-
jury-made
When
court to
affirmative
then
failure of the
was
finding,
entry
reasoning
jury-made
judicial
is a
affirmative
its
since no
there
ered a clerical error
optional upon
judgment
the trial
required:
into the
is not
is
42.12,
3f(a)(2),
stated,
court:
previously
As
Article
judge
clearly
enter in
mandates that the trial
finding under this subdivi-
an affirmative
On
weapon
judgment
finding that a
sion,
finding
court shall enter the
in
during the commission
used or exhibited
was
the court.
offense,
makes a
of fact
of an
once
trier
42.12,
3(g)(2)
Crim. Proc. Ann. Tex.Code
per
In the
proper
Polk.
,
affirmative
added).
(emphasis
The failure of a trial court
case,
undoubtedly
present
of fact
the trier
mandatory
something
has been
do
is
finding.
Once
such an affirmative
made
opposed to
error of
a clerical error as
an
deemed
judge
been made the trial
determination had
Poe,
judicial reasoning.
parte
Ex
by making proper
required
to reflect this
was
(Tex.Crim.App.1988). Judge Womack
judge
entjy
judgment.
retained
in
The trial
statement,
disagreement with this
voices his
,Consequently,
to do otherwise.
no discretion
authority to correct an error
“that a court has
judge
an
to do so was not
failure of
pro
was the violation of
nunc
tunc if the error
reasoning
error
judicial
rather an
but
error
pro
mandatory duty”
says
“nunc
and
he believes
a clerical nature.
to clerical
should be limited
tunc corrections
Id.
say that Poe should be
But he doesn't
errors.”
faulty
reasoning
in
is
overruled or show how its
construction,
Judge Womack's
6.' Under
mandatory duty
equating
with a
violation of a
remedy
would be an
"adequate
at law”
State's
explicitly
held
clerical error.
In Poe this
appeal, thereby foreclosing mandamus relief.
a matter
no discretion on
that when a court has
may
stage produces
“sentencing
a new
because such
affirmative ment
part
stage.”
Procedure Article
of the sentence.
Code of Criminal
44.29(b).
statutes,
In these
which are in the
Statutory language should be construed
chapter
same
as the article we are constru-
according
usage,
according
to common
“punishment,” not a
ing, “sentence” means
meanings.1
a com-
technical
“Sentence” has
judgment.
part of the
meaning
particular
mon
and technical or
meanings.
meaning
“punish-
pronouncing
Its common
in a mis-
“Before
sentence”
may
particular
“judge
ment.”2
of its technical or
demeanor ease the
consider al-
One
42.02,
meanings
sentencing”
remanding
comes from Article
ternative
the de-
part
facility.
defines “sentence” as a
fendant
to a treatment
Code of
meaning
The Court holds that this technical
Article 42.023. This is
Criminal Procedure
from
in
Article 42.02 should be used
constru-
not a reference to the
44.01(b).
ing
technically
Article
believe
the com- which is
defined Article 42.02.
meaning
mon
should be
“sentence”
used.
These statutes demonstrate that the term
It is a mistake to think that
the technical
“sentence”
the Code of Criminal Proce-
meaning
always
of “sentence” in
according
Article 42.02 is
dure cannot
be construed
always appropriate to other statutes.
In the
to the technical definition in Article 42.02. It
Code of Criminal Procedure
given meaning
sometimes must be
its
com-
has
meaning,
usage: punishment,
sometimes
the common
and mon
in the broad sense.
meaning.
sometimes a technical
considering
usage
After
the common
example,
statute,
meaning
For
Code of
Criminal Procedure
technical
of a term a
we
2(a)
says
Article
that in
according
the trial of
construe a statute
to the ob-
capital felony
sepa
ject
case there shall
“a
sought
to be attained. Code Construc-
sentencing
Act,
rate
proceeding” in which evi
tion
Texas Government Code
*6
311.023(1).
may
presented
any
§
dence
be
as to
matter
that the court deems relevant to “sentence.”
thoroughly
This Court has
considered
There “sentence” cannot mean a
of the
Moreno,
object of Article 44.01 in
v.
807
State
judgment;
“punishment.”
Living
means
(Tex.Cr.App.1991).
S.W.2d 327
There the
(Tex.Cr.App.1976),
ston v.
542
n. 4
S.W.2d
661
(a)(1)
Court construed Section
of Article
denied,
t.
431
97
U.S.
cer
44.01,
says
may appeal
an
which
State
(1977).
S.Ct.
When error affects for the statute to been more trial, stage capital spoken “setting have in terms of aside” a instrument, charging reformed. Code of Criminal Procedure Arti- which is the nomencla- Procedure, “sentencing” stage may cle 44.251. Or a new ture of our Code Criminal recognized be held before a new if the “sentence” is that Article 44.01 Court borrowed capital liberally counterparts, set aside or invalidated case in from its federal which a defendant to was “sentenced death.” U.S.C. 3731 and Federal Rule of Criminal 44.29(e). 12(a), Code of Criminal Procedure Article which use the term Procedure “dis- case, Moreno, non-capital punish- error at the miss.” at 329 n. State Act, otherwise, 1. Code Construction Tex. Gov’t Code definition or shall be con- islative accordingly. 311.011: strued (a) phrases Words and shall be read in context 2. defined as "the "Sentence” is according grammar and construed to the rules of person convicted in usage. awarded law court to and common trial_” (b) phrases acquired a criminal American Dictio- Words and that have Oxford (1980). particular by leg- nary meaning, or technical whether taking “in- a re- recognized that Article 44.01 was follows that the Government’s We respondent’s sentence does not appellate pow- to extend to the view of tended jeopardy principles itself offend double ers akin to those that United States deprive gov- just might re- Congress had to the federal because its success extended case,” spondent at benefit of a more lenient ernment in a criminal id. power appeal to whenever the sentence.... included permit. Af- Id. at 332. Constitution would focus, thus, jeopardy B. The double examining practice, the federal held ter we appeal but the relief that is not on the on (a)(1) to that Section authorized the State our task is to determine requested, and any concerning appeal from order sentence, pro- a criminal once whether or information whenever the indictment nounced, accorded constitutional is to be prosecution effectively terminates the order finality conelusiveness similar to defendant, though even favor of the jury’s acquit- which attaches to a verdict technically not a “dismissal.” order was history neither the tal. We conclude that Ibid. practices, pertinent nor the sentencing Court, nor consider- rulings of this even that, Remembering as we held support jeopardy policy ations of double give to Article 44.01 was intended equation.... such an powers full whenever the to Constitu- permit, and federal law is a tion would in the sen- This Court’s decisions C. 44.01, we guide to the construction of Article tencing clearly establish that a area interpretations of the Con- must consider qualities not have the sentence does corresponding and the federal stat- stitution finality that attend an ac- constitutional utes. quittal. ... jeopardy Supreme of the United D. The considerations
In-1980 double acquittal after an do up reprosecution took the issue of whether authoriz that bar States prohibit a sentence of a sentence.... ing the Government review Jeopardy violated the Double Clause Jeopardy does E. The Double Clause Fifth Amendment of the Constitution. Unit right provide the defendant with DiFrancesco, ed States v. U.S. in time what any specific know at moment (1980). right S.Ct. L.Ed.2d punishment will turn the exact limit of his for certain review sentences out to be.... *7 in two offenses had been enacted identical 132-37, 101 Id. at S.Ct. at 434-37. recognized statutes.3 “Aca between highlights “All this the distinction commentary professional on the demic and Double acquittals [T]he and sentences.... 4, 101 Id. at 121 n. general issue is divided.” require that a Jeopardy Clause does five at 429 n. 4. The Court identified S.Ct. finality that given degree a of sentence be pertinent to the wheth propositions 137, Id. at 101 prevents its later increase.” review,of vio appellate er a sentence would that the Gov- held S.Ct. at 438. The Court prohibition against late the constitutional vio- appeal a sentence did not ernment’s multiple trials: multiple prohibition the constitutional late Jeopardy A The Double Clause trials. complete appeal by a barrier to “(W)here increase of a also held that the ease. The Court prosecution in a criminal not consti on review did appeal presents no threat of Government 138-40, 101 Id. at Jeop- multiple punishment. prosecutions, the Double tute successive pro none of the Therefore S.Ct. at 438-39. ardy is not offended.” United Clause Co., Jeopardy were Clause tections of the Double Supply Linen v. Martin States 1354, appeal of a sen 1349, [564], denied the Government’s at 569-570 S.Ct. [97 U.S. (1977).... this it tence. From 642] 51 L.Ed.2d 1970, 1970, Drug and Control Act of Abuse Prevention Organized Act of Act of
3. Crime Control II, 91-513, 27, 1970, 15, 1970, 9M52, X, 1001(a), Tide P.L. Act of October Oct. P.L. Tide 1984). 409(h), 1984); (repealed Comprehensive (repealed 84 Stat. Stat. With the constitutional issue settled Article should be Con construed to passed gress Sentencing power Reform Act of give appeal illegal to State 1983,4 gave every Government punishments. right appeal criminal case a to a “sentence” my respectful I also want to record dis- imposed that “was in violation of law.” 18 statement, agreement with the Court’s ante 3742(b)(1). This U.S.C. statute authorizes authority at n. that a court has to correct appeal the Government to the trial court’s pro if an error nunc tunc the error was the apply mandatory punishment failure to stat mandatory duty. violation believe that See, e.g., utes. United States v. Investment pro nunc tunc corrections should be limited Inc., (5th
Enterprises, 10 F.3d Cir. to clerical errors. 1993) (denial personam of motion for in for feiture); Anderson, United States v. McCORMICK, J., joins. (1st Cir.1990) (failure apply F.2d 335 to Act). Armed Career Criminal light previous our holding DiFrancesco,
the constitutional doctrine of similarity
and the of our statute the corre- statute,
sponding federal I believe that “sen-
tence” in punishment Article means
in the broadest sense. The statute should be permit construed to appeal the State to ille- Mercado, C & V CLUB and Valentin V. punishments gal distinguished as from ac- Individually Agent and as for C & quittals. give This power, would it the full Club, Petitioners, V permitted by Constitution, sentence. I would also hold that entry, court’s entry, or failure to make an Calletano GONZALEZ and Elsa an affirmative the defendant Gonzalez, Respondents.
used or weapon part exhibited is a No. 13N95-364-CV. appealed by the State without violating Jeop- the Double Texas, Court of ardy Clause. Corpus Christi. By construing according to one May 1997. meaning, technical the Court authorizes the particular defect Rehearing Overruled Oct. of a distinguishes It a sen- parts tence from other rather acquittal.
than from an This does not accom-
plish legislative objective recog- that we
nized Moreno.
Not does this prevent construction
full review of issues
when a imposed, sentence of confinement is impossible
it also will make for the judgments granting community most
supervision because there is no Article 44.02
“sentence” in (Only most of such cases. in a probation” judgment
“shock is there a sen-
tence, suspended.) the execution of which is
This cannot have been what the statute was
intended to do. 12, 1984, 98-473, II, II,
4. Act of Oct. P.L. Title ch. 98 Stat.