contending that supplementary fine was authorized by law
How later courts described this case
- contending that supplementary fine was authorized by law
Written by the judges who cited it.
Later courts went against this
Superseded by statute, as recognized in Ex Parte Youngblood
661 S.W.2d 957 (Tex.Crim.App. 1983), superseded by statute as stated in, Ex parte Youngblood, 698 S.W.2d 671, 672 (Tex.Crim.App.1985)).
The opinion
ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
McCORMICK, Judge,
dissenting.
This is a petition for discretionary review from the Houston Court of Appeals, First Supreme Judicial District. Appellant was convicted of burglary of a habitation. At the punishment phase of the trial, the court charged the jury that if they found the allegation of one prior conviction to be true they should assess punishment at confinement for life or for any term of years not less than fifteen nor more than ninety-nine. The court also instructed the jury that they could also assess a fine not to exceed $10,-000. The jury sentenced appellant to seventy-five years and assessed a $10,000 fine. The Court of Appeals reformed and affirmed the judgment of the trial court, finding that the imposition of a fine was not authorized by law and thus it should be deleted. On petition for discretionary review, appellant argues that since the judgment and sentence reflected a punishment unauthorized by law the conviction must be reversed.
It appears that in their interpretation of V.T.C.A., Penal Code, Section 12.42(c), everyone heretofore involved in this case, including the majority, has ignored the 1979 amendment to V.T.C.A., Penal Code, Section 12.32. Section 12.42(c), supra, reads as follows:
“(c) If it be shown on the trial of a first-degree felony that the defendant has been once before convicted of any felony, on conviction he shall be punished by confinement in the Texas Department of Corrections for life, or for any term of not more than 99 years or less than 15 years.” (Emphasis added)
In 1979, Section 12.32, supra, which set out punishment for first degree felonies, was amended by adding a new paragraph which reads as follows:
“(b) In addition to imprisonment, an individual adjudged guilty of a felony of the first degree may be punished by a fine not to exceed $10,000. (Emphasis added)
This Court should hold that Section 12.-42(c), supra, is speaking only to the term of imprisonment assessed a repeat offender in a first-degree felony. In addition to the enhanced term of imprisonment under Section 12.42(c), supra, a defendant could be assessed a fine not exceeding $10,000 under Section 12.32(b), supra.
It would be totally illogical to read these statutes any other way. To do so would mean that punishment for a repeat offender could be assessed at imprisonment up to life, but punishment for a person convicted solely of a first degree offense with no prior offenses could be assessed at imprisonment up to life and a fine not exceeding $10,000. This seems to negate the whole purpose of the statute governing punishment for repeat and habitual felony offenders. Section 12.42, supra.
Because the majority fails to construe the amendment to Section 12.32 in conjunction with the rest of Chapter 12,1 must dissent.
W.C. DAVIS and CAMPBELL, JJ., join in this dissent.