Goodwin v. State

725 S.W.2d 314, 1986 Tex. App. LEXIS 9339

• Court: Court of Appeals of Texas
• Decided: December 31, 1986
• Docket: No. 13-86-323-CR
• Status: Published

Opinions

OPINION

NYE, Chief Justice.

In April 1984, appellant Goodwin was convicted of voluntary manslaughter. He elected to have the court set punishment. After finding that the two prior felony conviction allegations were true, the trial court assessed punishment at thirty years’ confinement and a $5,000.00 fine. This Court upheld the determination of appellant’s guilt in the first appeal of this case; however, we determined that Tex.Penal Code Ann. § 12.42(a), the habitual felony offender statute, did not authorize the imposition of a fine. Accordingly, we remanded the cause for proper assessment of punishment and pronouncement of sentence. Goodwin v. State, 694 S.W.2d 19, 31 (Tex.App.—Corpus Christi 1985, pet. ref’d). We now affirm the judgment of the trial court.

In three points of error, appellant complains of the thirty-year sentence imposed by the trial court. He argues that the maximum sentence for voluntary manslaughter is twenty years, and since the trial court did not hear evidence of appellant’s prior felonies at the hearing on remand, the thirty-year sentence cannot stand.

When a case is reversed because an unauthorized sentence has been imposed, and the trial court set the punishment, the reviewing court remands the case for a new punishment hearing. Hudgens v. State, 709 S.W.2d 648, 649 (Tex.Crim.App.1986); Marrero v. State, 500 S.W.2d 818, 820 (Tex.Crim.App.1973); Johnson v. State, 436 S.W.2d 906, 910 (Tex.Crim.App.1968); Houston v. State, 652 S.W.2d 472, 473 (Tex.App.— Corpus Christi 1983, no pet.). The trial court does not simply “assess” punishment as the State contends.

However, it was within the trial court’s power to judicially notice appellant’s prior convictions, which were proved during the first trial. Dunn v. State, 242 S.W. 1049, 1051 (Tex.Crim.App.1922); Miller v. State, 242 S.W. 1040, 1042-43 (Tex.Crim.App.1922); Cisneros v. State, 697 (Tex.App.—Corpus Christi 1985, no pet.); see Bradley v. State, 564 S.W.2d 727 (Tex.Crim.App.1978), opinion after abatement, 608 S.W.2d 652 (Tex.Crim.App.1980); Fleming v. State, 502 S.W.2d 822, 823 (Tex.Crim.App.1973); Horman v. State, 423 S.W.2d 317, 318 (Tex.Crim.App.1968). The statement of facts clearly demonstrates the trial court’s familiarity with its prior proceedings. It appears that the court took notice on its own will (sua sponte) of the former proceedings, despite appellant’s contention that it did not. Furthermore, the appellant did not contest the sufficiency of the evidence to prove his prior felony convictions on his first appeal in this case. He does not now contend that the “pen packets” were not sufficient proof of his convictions; he merely complains on appeal that the State did not formally introduce them into evidence.

Appellant’s grounds of error are overruled. The judgment of the trial court is AFFIRMED.

BENAVIDES, J., not participating.