Ex parte Hernandez

698 S.W.2d 670, 1985 Tex. Crim. App. LEXIS 1708

• Court: Court of Criminal Appeals of Texas
• Decided: October 16, 1985
• Docket: No. 69381
• Status: Published

Opinion

OPINION

PER CURIAM.

On November 29, 1983, applicant pled guilty to the offense of unlawful delivery of a controlled substance (penalty group I). The trial court assessed punishment at fifteen years confinement and a fine of $620.00. Some two months earlier, on September 14, 1983, this Court had held unconstitutional House Bill 730, which was passed by the Legislature in 1981 and purported to amend the Texas Controlled Substances Act, V.A.C.S., Art. 4476-15. Ex parte Crisp, 661 S.W.2d 944 (Tex.Cr.App.1983). Under that holding the Controlled Substances Act stood as though H.B. 730 had never been enacted. 661 S.W.2d at 948. Applicant herein was sentenced according to the provision of H.B. 730, however, which provided for a fine as well as a range of five to 99 years. The original Act had no provision for a fine. Under the original Act, in effect at the time of applicant’s sentencing, the verdict on punishment was unauthorized by law and was therefore void at its inception. Moya v. State, 681 S.W.2d 41, 42 (Tex.Cr.App.1984).

This Court is without authority to reform applicant’s sentence. The proper procedure is to remand for new sentencing. Releford v. State, 683 S.W.2d 385 (Tex.Cr.App.1984); Ex parte Spaulding, 687 S.W.2d 741 (Tex.Cr.App.1985). Because punishment was assessed by the court, we remand for a new punishment hearing only. Ocker v. State, 477 S.W.2d 288, 291 (Tex.Cr.App.1972).

The relief prayed for is granted. Applicant’s sentence is hereby vacated and applicant is ordered into the custody of the Aransas County Sheriff for a new punishment hearing and sentence. A copy of this opinion shall be forwarded to the Texas Department of Corrections.

It is so ordered.

TOM G. DAVIS, J., not participating.