Bogany v. State

TEAGUE, Judge,

concurring.

Over 11 years ago, this Court decided Ocker v. State, 477 S.W.2d 288 (Tex.Cr.App.1972), wherein Judge Truman Roberts, the author of the opinion on Appellant’s Motion for Rehearing, expressly pointed out the following: “This Court has long held that it may not reduce the punishment assessed by the jury.” (Citations omitted). Since that date, many decisions have been written on that subject by members of this Court, with all repeating the same words that Judge Roberts stated in Ocker . The Legislature has had occasion to meet several times since Ocker was decided. However, it has never seen fit to give this Court or any intermediate appellate court of this State authority to assess punishment or reduce punishment assessed by a jury where the conviction was for a non-capital felony. The Legislature, however, has seen fit to grant this Court authority to reform a sentence of death, but only in the instance where the evidence is found to be insufficient to support an affirmative answer to an issue submitted to the jury under Art. 37.071(b), V.A.C.C.P. In that event, this Court has authority to reduce a sentence of death to life imprisonment. See Art. 44.251, V.A.C.C.P.

In this instance, the jury was granted permission by the trial court to assess a punishment which included a fine. This was impermissible under the provisions of the law that controlled this cause. Because the jury could not assess a fine, in addition to the time assessed, its verdict was void at the inception. Villarreal v. State, 590 S.W.2d 938 (Tex.Cr.App.1979); Ex parte McIver, 586 S.W.2d 851 (Tex.Cr.App.1979); Smith v. State, 479 S.W.2d 680 (Tex.Cr.App.1972).

Appellant’s indictment not only informed him of what he was accused of committing, which was the first degree felony offense of aggravated robbery, but it also informed him of the possible punishment that could be assessed if he was found guilty. Pursuant to V.T.C.A., Penal Code, Section 12.-42(c), the State chose to indict appellant as a repeat offender. Ordinarily, when the State acts in that fashion, the punishment is increased from that which is available for the unenhanced offender. However, for reasons known only to those members of the Legislature who voted in 1979 to amend the provisions of V.T.C.A., Penal Code, Sec. 12.32, to permit the assessment of both time and a fine for the commission of a first degree felony offense, it failed to amend Y.T.C.A., Penal Code, Sec. 12.42(c), which provides the range of punishment for one who has previously been convicted of a felony offense and thereafter commits a first degree felony offense. Sec. 12.42(c), as worded at the time the jury assessed appellant’s punishment, did not provide for the assessment of a fine. Therefore, the jury erroneously assessed as part of appellant’s punishment a fine. This it could not do, and the intermediate appellate court and this Court are without authority to either assess a different punishment, reduce the punishment assessed, or reform the punishment assessed.

There is yet another reason this cause must be reversed. The error in the jury’s *960 verdict actually occurred because the trial court’s charge was fundamentally erroneous. See Taylor v. State, 549 S.W.2d 722 (Tex.Cr.App.1977). Fundamental error in the court’s charge may be raised for the first time on appeal. It can never be harmless error. Ex parte McIver, supra; Taylor, supra; Smith, supra; Batten v. State, 549 S.W.2d 718 (Tex.Cr.App.1977); Ex parte Brown, 575 S.W.2d 517 (Tex.Cr.App.1979); Coby v. State, 518 S.W.2d 829 (Tex.Cr.App.1975).

The majority of the Court of Appeals erroneously reformed appellant’s punishment. It was without authority to do that. This Court correctly reverses its judgment.