Bogany v. State

661 S.W.2d 957, 1983 Tex. Crim. App. LEXIS 1247

• Court: Court of Criminal Appeals of Texas
• Decided: November 23, 1983
• Docket: 317-83
• Status: Published

Opinions

ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

ODOM, Judge.

Appellant was convicted of aggravated robbery. On a finding of one prior conviction for enhancement, punishment was assessed at 60 years and a $10,000 fine. The Court of Appeals found this punishment verdict was unauthorized by law because under V.T.C.A., Penal Code Sec. 12.42(c), no fine was authorized. It then reformed the verdict under Art. 44.24(b), V.A.C.C.P., and overruled the ground of error. We granted the petition for review to consider appellant’s challenge to the Court of Appeals’ authority to reform the verdict.

Art. 44.24(b) provides:

“(b) The courts of appeals and the Court of Criminal Appeals may affirm the judgment of the court below, or may reverse and remand for a new trial, or may reverse and dismiss the case, or may reform and correct the judgment or may enter any other appropriate order, as the law and nature of the ease may require.” (Emphasis added.)

In Milczanowski v. State, 645 S.W.2d 445, 447 (Tex.Cr.App.1983), the Court held:

“... reformation of judgment and sentence may be done only to cause those instruments to reflect the true finding of the fact finder when such a finding is reflected in the verdict or, in a bench trial, the pronouncement of the court’s finding.” (Emphasis added.)

Elsewhere it has been held:

“Where the Court has the necessary data and evidence before it for reformation, the judgment may be reformed on appeal. Hancock v. State, 491 S.W.2d 139 [Tex.Cr.App.1973]; Vasquez v. State, 477 S.W.2d 629 [Tex.Cr.App.1972].” Brewer v. State, 572 S.W.2d 719, 723 (Tex.Cr.App.1978). (Emphasis added.)

The authority of a court on appeal to reform the judgment and sentence does not extend to the situation in this case. Here, the error was not that the judgment was contrary to the verdict. The error was a verdict unauthorized by law.

Reliance by the Court of Appeals on Daniels v. State, 521 S.W.2d 549 (Tex.Cr.App.1975), was misplaced. In that case the issue addressed was an improper charge on punishment. Here the issue is an unlawful verdict. The verdict in Daniels was not unauthorized.

In Smith v. State, 479 S.W.2d 680 (Tex.Cr.App.1972), the conviction was reversed because the punishment verdict returned by the jury was unauthorized by law. In ordering reversal the Court held:

“The verdict having been received by the court and entered of record, the court in its judgment and sentence was not entitled to change the verdict of the jury. The verdict having been void at its inception and the trial court not having the authority to change the same in doing so committed reversible error.”

See also Ex parte McIver, 586 S.W.2d 851 (Tex.Cr.App.1979).

The controlling law did not authorize the Court of Appeals to change the verdict rendered by the jury. The verdict was unauthorized by law and, under the cases cited, was “void at its inception.” The verdict must be set aside.

The judgments of the Court of Appeals, 646 S.W.2d 663, and the trial court are reversed and the cause is remanded.

ONION, P.J., concurs in the result.