State v. Baize

981 S.W.2d 204, 1998 Tex. Crim. App. LEXIS 165, 1998 WL 847555

• Court: Court of Criminal Appeals of Texas
• Decided: December 9, 1998
• Docket: 926-97
• Status: Published

Opinions

OPINION

PER CURIAM.

Appellee was convicted by a jury of criminally negligent homicide, and the trial court assessed punishment at sixty days in jail and a $500 fine, both of which were probated. The State appealed pursuant to Article 44.01(b), V.A.C.C.P., claiming the sentence was illegal because the trial court allowed Appellee to untimely change his election for the jury to assess punishment over the State’s objection.¹ The Court of Appeals dismissed the appeal for lack of jurisdiction. State v. Baize, 947 S.W.2d 307 (Tex.App.—Amarillo 1997). We granted the State’s petition for discretionary review to determine the whether State may appeal the trial court’s assessment of punishment under these circumstances.

Article 44.01(b) provides, “The state is entitled to appeal a sentence in a ease on the ground that the sentence is illegal.” The Court of Appeals addressed the meaning of “illegal sentence,” applying a statutory construction analysis. See Boykin v. State, 818 S.W.2d 782 (Tex.Cr.App.1991). It determined that when the State was given the right to appeal in 1987, “illegal sentence” had acquired a technical or particular meaning— a sentence the trial court had no jurisdiction to levy or one which violates a fundamental constitutional right. Baize, 947 S.W.2d at 311.

At the time of its opinion, the Court of Appeals did not have the benefit of our decision in State v. Ross, 953 S.W.2d 748 (Tex.Cr.App.1997), in which we held that for purposes of Art. 44.01(b), “sentence” has the same meaning as in Article 42.02, V.A.C.C.P. The current version of Art. 42.02 provides, “The sentence is that part of the judgment, or order revoking a suspension of the imposition of a sentence, that orders that the punishment be carried into execution in the manner prescribed by law.” The State acknowledges this definition of “sentence,” and it contends that the plain meaning of “illegal” is “not according to or authorized by law.” From this it reasons that because the trial court’s assessment of punishment was not according to or authorized by Art. 37.07, § 2(b), an illegal sentence resulted.

The State’s analysis is flawed for two reasons. First, it attempts to define “illegal sentence” instead of “sentence”.² In Ross, we explained that when a court of appeals contemplates its jurisdiction under Art. 44.01(b), it must determine whether the State is appealing the sentence or whether it is appealing something other than the sentence. Id. at 750. We pointed out that Art. 44.01(b) allows the State to appeal “a sentence not when a sentence is illegal, but on the ground that it is illegal.” Ibid, (emphasis in original). Second, the State’s argument incorrectly substitutes “assessment of punishment” for “sentence.” Again, this is contrary to Ross, which held that “sentence” has a narrow meaning. Consistent with our holding in Ross, the meaning of sentence in Art. 44.01(b) is not the same as the act of assessing punishment.³

Although it could be argued that jurisdiction is vested by the State’s mere assertion that it is appealing the sentence, the Court of Appeals must determine whether it has jurisdiction. Therefore, the Court of Appeals may look behind the State’s facial allegation of what it is appealing to determine whether it is in fact “appealing a sentence and not something else.” Ross, 953 S.W.2d at 750. In the instant case, even if the trial court’s act of assessing punishment was not authorized, there is no showing that the punishment itself or the order carrying the punishment into execution was illegal. Thus, the State is not appealing the sentence, but the procedure leading to the assessment of punishment. The Court of Appeals does not have jurisdiction under these circumstances.

In addition to its argument that illegal assessment of punishment and illegal sentence are synonymous, the State also argues that this particular error in assessment of punishment renders the resulting sentence illegal. We need not address this claim because it deals with the merits of the appeal. The issue before us is jurisdictional — whether the State is appealing a sentence on the ground that it is illegal — not whether the sentence is illegal. Id. at 749-50.

The Court of Appeals did not have jurisdiction under Art. 44.01(b), because the State was not appealing the sentence on the grounds that it was illegal. Accordingly, the judgment of the Court of Appeals dismissing the appeal is affirmed.

McCORMICK, P. J. filed dissenting opinion in which MANSFIELD, J. and WOMACK, J. joined. KELLER, J. dissents.

1 . Article 37.07, § 2(b), V.A.C.C.P. provides that the trial court shall assess punishment unless the defendant elects in writing prior to the beginning of voir dire for the jury to assess punishment. However, "[i]f a finding of guilty is returned, the defendant may, with the consent of the attorney for the state, change his election of one who assesses the punishment.”

2 . The State’s focus on the meaning of "illegal sentence" instead of "sentence” is understandable, since the Court of Appeals took this approach in deciding the issue.

3 . The State submits that Art. 44.01 should be construed liberally in keeping with the legislature’s intent to grant the State extensive appellate rights. It argues the legislature intended that the State’s rights under Art. 37.07, § (2)(b) be realized. We addressed this concern in Ross, when we construed the meaning of “sentence”. Ross, 953 S.W.2d at 750-51. In the present situation, the State is not without a remedy, as it may enforce a ministerial duty through mandamus or prohibition. We appreciate the State’s complaint that mandamus is not a fail-safe means of correcting this type of error. As the State points out, the trial judge can prevent the prosecutor from seeking mandamus relief by refusing to grant a recess in the proceedings. However, the shortcomings of mandamus do not permit this Court to fashion another remedy for procedural violations when the legislature has not seen fit to do so. Furthermore, even if the Court of Appeals exercised its jurisdiction in this case and reversed and remanded for a new trial. Appellee could arguably elect for the trial court to assess punishment, regardless of the State’s consent. See Saldana v. State, 826 S.W.2d 948 (Tex.Cr.App.1992)(defendant is not bound by punishment election made at original trial when cause is reversed and remanded for new punishment hearing).