Scott v. State

988 S.W.2d 947, 1999 Tex. App. LEXIS 2140, 1999 WL 164151

• Court: Court of Appeals of Texas
• Decided: March 25, 1999
• Docket: 01-98-00441-CR
• Status: Published

Opinions

OPINION

MURRY B. COHEN, Justice.

Appellant pled guilty, without an agreed sentence, to possession with intent to deliver at least 400 grams of cocaine, and the trial judge assessed punishment at 15 years imprisonment. We vacate the part of the judgment assessing punishment and remand for a new punishment hearing.

In one point of error, appellant contends a new punishment hearing is required because the trial judge did not assess the fine mandated by Tex. Health & Safety Code Ann. § 481.112(f) (Vernon Supp.1999).¹ We agree.

The trial judge erred by not assessing the fine. Tex. Health & Safety Code Ann. § 481.112(f); Reed v. State, 795 S.W.2d 19, 19-20 (Tex.App.—Houston [1st Dist.] 1990, no pet.). We cannot reform the judgment by adding punishment of any amount, as the State suggests. Reed, 795 S.W.2d 2d at 20; Land v. State, 890 S.W.2d 229, 234 (Tex.App.—Beaumont 1994, no pet.). Nor has appellant waived his complaint by not raising it below. See Heath v. State, 817 S.W.2d 335, 336 (Tex.Crim.App.1991). A void sentence cannot be waived. Ex Parte Sims, 868 S.W.2d 803, 804 (Tex.Crim.App.1993). Thus, the sole remedy is a new punishment hearing. Reed, 795 S.W.2d at 20; accord Young v. State, 922 S.W.2d 676, 678 (Tex.App.—Beaumont 1996, pet. ref'd).

We regret that we must order this remedy. The error of not imposing a fine obviously benefitted appellant. Generally, we will reverse only when harmful error occurred. TexR.App. P. 44. We believe we have no choice, however. The Court of Criminal Appeals has repeatedly held that a sentence outside the statutory limits is absolutely void and that we have no authority to reform a sentence even by reducing it. Ex Parte Sims, 868 S.W.2d at 804; Heath, 817 S.W.2d at 336; Bogany v. State, 661 S.W.2d 957, 958-59 (Tex.Crim.App.1983). Although the legislature changed the rule in Bogany by enacting Tex.Code of Crim. P. Ann. art. 37.10 (Vernon Supp.1999), that statute does not apply here because it allows courts to “omit” punishment, not to add it.

We sustain the point of error, reverse the part of the judgment assessing punishment, and remand for a new punishment hearing.

En banc consideration was requested.

A majority of the justices of the Court voted to overrule the request for en banc consideration.

Justice TAFT dissenting from the overruling of the request for en banc consideration.

1 . “An offense under this Subsection (a) is punishable by imprisonment ... and a fine not to exceed $250,000....” Tex. Health & Safety Code Ann. § 481.112(f) (Vernon Supp.1999).