Ex Parte Youngblood

698 S.W.2d 671, 1985 Tex. Crim. App. LEXIS 1709

• Court: Court of Criminal Appeals of Texas
• Decided: October 16, 1985
• Docket: 69471
• Status: Published

Opinions

OPINION

MILLER, Judge.

This is a post-conviction writ of habeas corpus brought pursuant to Art. 11.07, V.A.C.C.P. Applicant was indicted for the offense of aggravated sexual abuse, with a prior felony conviction alleged for enhancement. The jury found applicant guilty of aggravated sexual abuse and he pled “True” to the enhancement paragraph. Punishment was assessed by the jury at confinement for life in the Texas Department of Corrections and a $10,000 fine.

In his application for writ of habeas corpus, applicant contends that the jury’s assessment of a $10,000 fine is unauthorized by Y.T.C.A. Penal Code, § 12.42(c) and requests that the judgment and sentence be set aside and a new trial ordered, citing Bogany v. State, 661 S.W.2d 957 (Tex.Cr.App.1983).

Section 12.42(c), supra, provides:

“If it be shown on the trial of a first-degree felony that the defendant has been once before convicted of any felony, on conviction he shall be punished by confinement in the Texas Department of Corrections for life, or for any term of not more than 99 years or less than 15 years.”

No provision is made for assessment of a fine in addition to a term of imprisonment. Thus, the fine imposed in the case at bar was unauthorized by law.

Applicant relies on Bogany v. State, 661 S.W.2d 957 (Tex.Cr.App.1983) wherein we held that a judgment containing a punishment unauthorized by law was void since the court was without authority to correct the infirmity. On June 11, 1985, however, Senate Bill 1349, Acts 69th Leg., became effective. In Ex parte Johnson, 697 S.W.2d 605 (Tex.Cr.App.1985), we interpreted this amendment to provide a vehicle by which an improper verdict could be reformed, thus correcting the infirmity present in Bogany, supra. We also held that the amendment applies to pending and future actions. Ex parte Johnson, at 607-608.

In applying Ex parte Johnson, supra, to the case at bar, the assessment of $10,000.00 fine was unauthorized. Thus, we need not remand the case for a new trial; rather, we may reform the verdict and judgment and delete the improper fine.

Applicant’s request for relief is therefore denied. The judgment in Cause No. 7-81-102 of the 7th Judicial District Court of Smith County is reformed to delete the $10,000.00 fine. The Clerk of this Court shall mail a copy of this Order to the Texas Department of Corrections.

It is so ordered.

TOM G. DAVIS, J., not participating.