Faugh v. State

481 S.W.2d 412, 1972 Tex. Crim. App. LEXIS 1924

• Court: Court of Criminal Appeals of Texas
• Decided: June 14, 1972
• Docket: 45210
• Status: Published

Opinions

OPINION

ROBERTS, Judge.

This is an appeal from a conviction for unlawful possession of a dangerous drug. Appellant entered a plea of guilty before a jury, which found her guilty, assessed her punishment at a fine of $1250, and recommended probation. The court ordered that appellant pay $500 of the fine as a condition of probation, and probated $750 of the fine.

Appellant raises two grounds of error. In both grounds she contends that the trial court erred in ordering that a portion of the fine be paid. In support of her contention, appellant cites our holding in the recent case of Johnson v. State, 473 S.W. 2d 939 (Tex.Cr.App.1971).

We feel that Johnson v. State, supra, is controlling. While the verdict form in Johnson v. State, supra, differed somewhat from the one in the instant case, the point of decision in that case was that when the jury has recommended probation of a fine, as was done in the present case, the court may not require that it be paid.

The order should be reformed to show that the entire fine of $1250 is probated to conform to the verdict. As reformed, the order granting probation is affirmed. If the fine has actually been paid, it is ordered that it be remitted to appellant.

We also note, ex mero motu, that the judgment in this case erroneously recites that appellant plead not guilty. The docket sheet, charge to the jury, and stipulated statement of facts all recite that appellant entered a plea of guilty.

Where this Court has the necessary data before it for reformation, the judgment may be reformed on appeal, e. g., Johnson v. State, 478 S.W.2d 442 (Tex.Cr.App., delivered March 8, 1972); Vasquez v. State, 477 S.W.2d 629 (Tex.Cr.App., delivered February 16, 1972); Golden v. State, 434 S.W.2d 870 (Tex.Cr.App.1968). Therefore, the judgment is reformed to reflect that appellant entered a plea of guilty.

As reformed, the judgment is affirmed.