OPINION
ONION, Presiding Judge.
This is an appeal from a conviction for the misdemeanor offense of driving a motor vehicle upon a public highway while intoxicated. The jury assessed punishment at three days in the county jail and at a fine of $100. The jury recommended that the jail time be probated. The court thus placed the appellant on misdemeanor probation for six months and ordered the fine paid by March 1, 1976 as a condition of probation.
The question that immediately arises is whether the jury is permitted to recommend misdemeanor probation as to the jail time but not as to the fine. The court’s charge at the penalty stage of the trial correctly instructed as to the penalty for driving while intoxicated, and did not authorize the jury to recommend probation as to one type of penalty and not the other, but the printed verdict form with appropri[622]*622ate blanks did appear to authorize the jury to recommend probation as to one type of penalty and not as to the other. The verdict returned was as follows:
“We, the Jury, having heretofore found the Defendant guilty of driving and operating a motor vehicle upon a public highway while under the influence of intoxicating liquor in the County of Scurry and State of Texas, as charged in the information, now assess his punishment for said offense at confinement in the county jail for three (31 davs and by a fine of $100.00. and we further find that the Defendant has not been under probation in the preceding five years, and we recommend to the court that the
Jail time
(You inserting ‘Jail time’ OR ‘Fine’ OR ‘Jail time and fine’)
assessed against the defendant in this case be probated.
“/s/ Leslie O. Albin
Foreman of the Jury”
Only recently we were confronted with the same question here and the same type of verdict form as used in the instant case in Taylor v. State, 549 S.W.2d 722 (Tex.Cr.App.1977). After reviewing Article 42.13, V.A.C.C.P., and prior decisions, the court wrote:
“In authorizing the jury to probate either the fine or the jail time and to exact from the appellant that portion of the penalty not probated, the court fell into error. Article 42.13, supra, does not contemplate such procedure. The jury may recommend probation or not, but if it recommends probation then the penalty assessed, whether fine, jail time or both a fine and jail time, must be probated. The statute expressly provides that where misdemeanor probation is granted no judgment is to be entered and the finding of guilt is not to become final except upon revocation. And this court has held that judgments and sentences entered in misdemeanor cases prior to revocation are nullities. Lee v. State, supra;1 Coby v. State, supra.2 The statute did not intend that a judgment and sentence disposing of a part of the penalty assessed be entered and the remaining penalty be probated. If this was not so then upon successful completion of probation the accusation, complaint, information or indictment would be dismissed and the finding of guilty may not be considered for any purpose except to determine his future eligibility for probation, see Section 7 of Article 42.13, supra, yet there would still be outstanding judgment and sentence as to part of the penalty assessed which was exacted from the defendant. This is not what Article 42.-13, supra, intended.”
The dissent would overrule Taylor and other recent cases interpreting Article 42.-13, supra, and would hold that where the court instructs a jury in a misdemeanor case it has the authority to order payment of all or part of any fine assessed by the jury as a condition of probation, the jury in its role of assessing punishment may probate any jail time assessed but not any part of the fine assessed. And this would be true even though the jury was impaneled for the very purpose of assessing the punishment and passing upon the issue of probation.3
Where would such a ruling as urged by the dissent lead us?
Under the circumstances of a case where only a fine is assessed and probation is recommended by the jury but the jury was instructed as to the court’s authority to require payment of all or a part of a fine, then the jury’s verdict may be altered and in effect set aside by the trial judge because the defendant could be required to pay all or a part of the fine imposed prior to the carrying out of the recommendation of the jury as to probation. The trial judge would [623]*623have the same power to alter the jury s verdict, to a lesser degree, where the fine is only a part of the punishment assessed.
If a jury concludes that a fine with a recommendation of probation is the appropriate punishment in a case, they may well assess jail time instead to prevent their recommendation of probation from being circumvented. This is so because if the full punishment assessed is a fine and that is exacted in full as a prerequisite to probation, is not the jury’s recommendation rendered meaningless? And under such circumstances, would not the subsequent requirement after paying the fine in full of being subject to the conditions of probation be a more severe penalty than that imposed by the jury? If, under these circumstances, probation is later revoked, what penalty would then be required of the defendant considering the provisions of Article 42.13, § 3(b), supra?
It should also be remembered that where probation is granted pursuant to Article 42.13, supra, no judgment is even entered. If an assessed fine or part thereof is collectable under the circumstances described, the punishment assessed, or a part thereof, is exacted without a judgment or sentence being entered and without the conviction being final. Cf. Article 42.15, V.A.C.C.P., as amended 1971.
Suppose the full fine, which is the only punishment, is exacted and the defendant is placed on probation and satisfactorily completes probation. What happens then? Is the fine collected without benefit of judgment or sentence remitted to the defendant?
Article 42.13, § 7, V.A.C.C.P., reads:
“(a) When the period and terms of a probation have been satisfactorily completed, the court shall, upon its own motion, discharge him from probation and enter an order in the minutes of the court setting aside the finding of guilty and dismissing the accusation or complaint and the information or indictment against the probationer.
“(b) After the case against the probationer is dismissed by the court, his finding of guilty may not be considered for any purpose except to determine his entitlement to a future probation under this Act, or any other probation Act.” (Emphasis supplied.)
Surely, in addition to all these problems, the Legislature did not intend to authorize a trial judge to circumvent and usurp a jury’s verdict at his own whim or to exact punishment before the conviction is final. This would be an absurdity.
The guarantee of the right to trial by jury contained in the Sixth Amendment, United States Constitution, is made applicable to the states by virtue of the Fourteenth Amendment. Duncan v. Louisiana,
Free access — add to your briefcase to read the full text and ask questions with AI
OPINION
ONION, Presiding Judge.
This is an appeal from a conviction for the misdemeanor offense of driving a motor vehicle upon a public highway while intoxicated. The jury assessed punishment at three days in the county jail and at a fine of $100. The jury recommended that the jail time be probated. The court thus placed the appellant on misdemeanor probation for six months and ordered the fine paid by March 1, 1976 as a condition of probation.
The question that immediately arises is whether the jury is permitted to recommend misdemeanor probation as to the jail time but not as to the fine. The court’s charge at the penalty stage of the trial correctly instructed as to the penalty for driving while intoxicated, and did not authorize the jury to recommend probation as to one type of penalty and not the other, but the printed verdict form with appropri[622]*622ate blanks did appear to authorize the jury to recommend probation as to one type of penalty and not as to the other. The verdict returned was as follows:
“We, the Jury, having heretofore found the Defendant guilty of driving and operating a motor vehicle upon a public highway while under the influence of intoxicating liquor in the County of Scurry and State of Texas, as charged in the information, now assess his punishment for said offense at confinement in the county jail for three (31 davs and by a fine of $100.00. and we further find that the Defendant has not been under probation in the preceding five years, and we recommend to the court that the
Jail time
(You inserting ‘Jail time’ OR ‘Fine’ OR ‘Jail time and fine’)
assessed against the defendant in this case be probated.
“/s/ Leslie O. Albin
Foreman of the Jury”
Only recently we were confronted with the same question here and the same type of verdict form as used in the instant case in Taylor v. State, 549 S.W.2d 722 (Tex.Cr.App.1977). After reviewing Article 42.13, V.A.C.C.P., and prior decisions, the court wrote:
“In authorizing the jury to probate either the fine or the jail time and to exact from the appellant that portion of the penalty not probated, the court fell into error. Article 42.13, supra, does not contemplate such procedure. The jury may recommend probation or not, but if it recommends probation then the penalty assessed, whether fine, jail time or both a fine and jail time, must be probated. The statute expressly provides that where misdemeanor probation is granted no judgment is to be entered and the finding of guilt is not to become final except upon revocation. And this court has held that judgments and sentences entered in misdemeanor cases prior to revocation are nullities. Lee v. State, supra;1 Coby v. State, supra.2 The statute did not intend that a judgment and sentence disposing of a part of the penalty assessed be entered and the remaining penalty be probated. If this was not so then upon successful completion of probation the accusation, complaint, information or indictment would be dismissed and the finding of guilty may not be considered for any purpose except to determine his future eligibility for probation, see Section 7 of Article 42.13, supra, yet there would still be outstanding judgment and sentence as to part of the penalty assessed which was exacted from the defendant. This is not what Article 42.-13, supra, intended.”
The dissent would overrule Taylor and other recent cases interpreting Article 42.-13, supra, and would hold that where the court instructs a jury in a misdemeanor case it has the authority to order payment of all or part of any fine assessed by the jury as a condition of probation, the jury in its role of assessing punishment may probate any jail time assessed but not any part of the fine assessed. And this would be true even though the jury was impaneled for the very purpose of assessing the punishment and passing upon the issue of probation.3
Where would such a ruling as urged by the dissent lead us?
Under the circumstances of a case where only a fine is assessed and probation is recommended by the jury but the jury was instructed as to the court’s authority to require payment of all or a part of a fine, then the jury’s verdict may be altered and in effect set aside by the trial judge because the defendant could be required to pay all or a part of the fine imposed prior to the carrying out of the recommendation of the jury as to probation. The trial judge would [623]*623have the same power to alter the jury s verdict, to a lesser degree, where the fine is only a part of the punishment assessed.
If a jury concludes that a fine with a recommendation of probation is the appropriate punishment in a case, they may well assess jail time instead to prevent their recommendation of probation from being circumvented. This is so because if the full punishment assessed is a fine and that is exacted in full as a prerequisite to probation, is not the jury’s recommendation rendered meaningless? And under such circumstances, would not the subsequent requirement after paying the fine in full of being subject to the conditions of probation be a more severe penalty than that imposed by the jury? If, under these circumstances, probation is later revoked, what penalty would then be required of the defendant considering the provisions of Article 42.13, § 3(b), supra?
It should also be remembered that where probation is granted pursuant to Article 42.13, supra, no judgment is even entered. If an assessed fine or part thereof is collectable under the circumstances described, the punishment assessed, or a part thereof, is exacted without a judgment or sentence being entered and without the conviction being final. Cf. Article 42.15, V.A.C.C.P., as amended 1971.
Suppose the full fine, which is the only punishment, is exacted and the defendant is placed on probation and satisfactorily completes probation. What happens then? Is the fine collected without benefit of judgment or sentence remitted to the defendant?
Article 42.13, § 7, V.A.C.C.P., reads:
“(a) When the period and terms of a probation have been satisfactorily completed, the court shall, upon its own motion, discharge him from probation and enter an order in the minutes of the court setting aside the finding of guilty and dismissing the accusation or complaint and the information or indictment against the probationer.
“(b) After the case against the probationer is dismissed by the court, his finding of guilty may not be considered for any purpose except to determine his entitlement to a future probation under this Act, or any other probation Act.” (Emphasis supplied.)
Surely, in addition to all these problems, the Legislature did not intend to authorize a trial judge to circumvent and usurp a jury’s verdict at his own whim or to exact punishment before the conviction is final. This would be an absurdity.
The guarantee of the right to trial by jury contained in the Sixth Amendment, United States Constitution, is made applicable to the states by virtue of the Fourteenth Amendment. Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968).
Article I, § 10 of the State Constitution, provides that in all criminal prosecutions the accused shall have a speedy public trial by an impartial jury. Since this constitutional provision applies to all criminal prosecutions, the defendant in a misdemeanor case has the same right of trial by jury as in felony cases. 35 Tex.Jur.2d, Jury, § 12, p. 49.
Article I, § 15 of the State Constitution, also provides:
“The right of trial by jury shall remain inviolate. The Legislature shall pass such laws as may be needed to regulate the same, and to maintain its purity and efficiency. . . . ”
In response thereto the Legislature has from time to time enacted laws pertaining to trial by jury. While the federal and state constitutional right to trial by jury does not include the right to have the jury assess punishment, the Texas Legislature, pursuant to Article I, § 15 of the State Constitution, has enacted Article 37.07, V.A. C.C.P., which authorizes a defendant to request a jury to pass on punishment and the issue of probation.
In the concurring opinion in Faugh v. State, 481 S.W.2d 412 (Tex.Cr.App.1972), it was written at p. 416:
“In 57 Tex.Jur.2d Trial § 393, p. 28, it is written:
[624]*624‘A jury in criminal proceedings must assess in their verdict the punishment intended to be imposed on the defendant, where it is not otherwise fixed by law. Under these circumstances assessment of punishment is exclusively within the province of the jury . . .’
“At least, prior to the enactment of Article 42.13, supra (the Misdemeanor Probation Law), it was fundamental that a trial judge did not have authority to receive a jury’s verdict and then refuse to abide by it. Hardy v. State, 159 Tex.Cr.R. 54, 261 S.W.2d 172 (Tex.Cr.App.1953), and cases there cited.
“In Champion v. State, 113 Tex.Cr.R. 172, 19 S.W.2d 63, 65 (Tex.Cr.App.1929), this court said:
‘. . . The proposition that the court cannot receive a verdict, discharge the jury, and thereafter change the verdict in any material part, has been often affirmed by this court, and is in accord with its uniform holdings.
[[Image here]]
“And similar to the instant case, it has been held that the trial court may not receive a verdict and give effect to part of it and ignore some other part and enter another and different judgment from that called for by the jury’s verdict. Combes v. State, 162 Tex.Cr.App. 482, 286 S.W.2d 949 (1956); King v. State, 135 Tex.Cr.R. 71, 117 S.W.2d 800 (Tex.Cr.App.1938). Nor may the court receive the verdict and go beyond it in enlarging the judgment thereon, since the judgment must follow the verdict. See, Cagle v. State, 147 Tex.Cr.R. 140, 179 S.W.2d 545 (Tex.Cr.App.1944). Also, Baker v. State, 70 Tex.Cr.R. 618, 158 S.W. 998 (Tex.Cr.App.1913); Luttrell v. State, 116 Tex.Cr.R. 277, 31 S.W.2d 818 (Tex.Cr.App.1930). The variance is material where it appears that the judgment imposes a more severe penalty than that assessed by the verdict. Rivers v. State, 10 Tex.App. 177 (Ct. of App. 1881).
“Castro v. State, 118 Tex.Cr.R. 53, 42 S.W.2d 779 (Tex.Cr.App.1931), held void the court’s action in disregarding (upon the State’s motion) the recommendation of the jury that the sentence be suspended. There the court held such action violates the
‘. . . fundamental principle that the judge presiding over a trial has no right and no power to change a verdict rendered by the jury unless with their consent and before their discharge. The right of the accused, under such circumstances, to have the judgment follow the verdict, if formal and agreeable to the issues submitted, is absolute. The impotency of the trial court or the judge presiding, at the instance of the state, to nullify a verdict, responsive to the evidence and issues, which accords the accused the suspended sentence is supported, it is thought, by the cases mentioned above and by the principles governing the decision of this court in the case of Snodgrass v. State, 67 Tex.Cr.R. 615, 150 S.W. 162, 41 L.R.A. (N.S.) 1144, in which the original suspended sentence law conferring upon the trial judge authority inconsistent with the finality of a verdict of the jury was denounced. . . . ’ 42 S.W.2d at 781.”
If Article 42.13, supra, can be interpreted as permitting the court to require the payment of all or a part of the fine assessed in order to obtain the benefit of the jury’s recommendation as to probation, then serious questions of due process and due course of the law of the land, Article I, § 19, Texas Constitution, are raised. The dissent’s argument is not persuasive.4
For the reasons stated in Taylor v. State, supra, the judgment is reversed and the cause is remanded.