Heath v. State

MILLER, Judge,

dissenting.

There are two issues involved in this problem of what to do when a defendant has received an unauthorized punishment: Voidness of the entire judgment; and the separate issue of voluntariness of the plea. I will deal with each separately in this dissent.

VOIDNESS

The concept of void, as it pertains to a verdict or judgment, is truly a “muddled area of the law” (page 339). The rule from Wilson v. State, 677 S.W.2d 518 (Tex.Crim.App.1984), a case in which I dissented, that “a sentence not authorized by law is void” is today resanctioned by the majority. Since that decision however, this Court has had occasion to revisit this concept in Ex Parte Johnson, 697 S.W.2d 605 (Tex.Crim.App.1985). In Johnson we held that where a fine was assessed which was unauthorized by law, the newly enacted Art. 37.-10(b), V.A.C.C.P., saved the judgment from being void. 1 I believe the logic in Johnson should be controlling in this case.

*341 The Johnson rationale was succinctly stated, to-wit:

The preceding cases [Bogany v. State, 661 S.W.2d 957 (Tex.Crim.App.1983); Ex parte McIver, 586 S.W.2d 851 (Tex.Crim.App.1979); Smith v. State, 479 S.W.2d 680 (Tex.Crim.App.1972); and Ex parte Spaulding, 687 S.W.2d 741 (Tex.Crim.App.1985)] all share a common premise and conclusion. The premise in each case is that the jury rendered a verdict that was unauthorized by law, viz: the punishment assessed was not within the universe of punishments applicable to the offense. The common conclusion reached was that the judgment based upon such a verdict was void.

The logic connecting the premise and conclusion involves the lack of a specific vehicle by which the improper verdict could be reformed. A court was permitted only to reform the judgment in a given case so that it properly reflected the true verdict reached by the jury. Thus, when a jury rendered a verdict unauthorized by law, the only course of action available was to remand the case for a new trial. In this sense, a judgment and sentence were considered void since there was no way to cure the infirmity.

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Thus, under the new law, a court is authorized to reform a verdict and judgment containing unauthorized punishment, an infirmity which would have previously rendered the verdict void.

Johnson, 697 S.W.2d at 607 . (Emphasis in original). (Citations and footnote omitted).

Concurring in Johnson, Judge Campbell noted that only a part of the verdict, that being the fine, was void. Id. at 607-608 . Calling this a partially void verdict he noted a difference in remedies available between a partially void and an entirely void verdict. Explaining his previous writing for the Court in Ex Parte Spaulding, 687 S.W.2d 741 (Tex.Crim.App.1985), he noted:

However, the only portion of the verdict and judgment that was truly void was that portion which included an unauthorized fine. The error in the verdict might have been more accurately designated as a partially void verdict from which this Court lacked any remedy other than reversal. Because this Court lacked any authority to separate the void portion of the verdict from the remaining valid portion of the verdict, we were forced to “void” the entire verdict and judgment by reversing the entire conviction.

In such context, the opinion in Spauld-ing was correct in noting that the verdict was “void at its inception,” at least as to that portion of the verdict which contained an unauthorized fine. Because we did not yet have a remedy for Bogany error, we had no choice but to “void” the remainder of the verdict by reversing the conviction.

The remedies available to a court regarding a partially void verdict differ from the remedies available where an entire verdict is void. A verdict which is entirely void at its inception generally results from a defective condition, such as a lack of jurisdiction, permeating the entire verdict and creating a defect from which no remedy ever could be supplied by this Court other than reversal.

The legislature, by granting this Court the power to regulate the assessment of an unauthorized verdict, has not removed from the jury the power to set punishment. The authorized portion of the verdict is retained, and the defendant has been gratuitously benefitted by an arguably lesser sentence than might otherwise have been assessed.

In deliberating over the proper punishment to be assessed in this case, the jury effectively was given a greater range of punishment than legally should have been allowed. The jury had no authority to include a fine; therefore, our removal of the fine takes nothing away from the jury’s function. By reducing the sentence, through elimination of the fine, this Court has only retained that portion of the verdict which was properly returned by the jury.

Johnson, 697 S.W.2d at 608-609 . (Emphasis in original). (Citations omitted).

*342 Spaulding and Johnson then can be read to say that only the portion of a verdict/judgment that is unauthorized by law AND that cannot be reformed is void. The “voidness” of the entire verdict, espoused in Wilson and Bogany, is now limited only to that part of the verdict/judgment that is unauthorized because the defective part can be separated from the valid part and separately cured of its defect.

One other important legislative event has transpired since the above 1985 legislative and judicial changes were made. In 1987 the legislature passed Art. 44.29(b), V.A.C.C.P., which mandated that if a new trial is awarded because of an error in the punishment phase of a trial, only the punishment phase of the trial will be repeated. Retroactive application of this law was recently sanctioned by this Court in Grimes v. State, 807 S.W.2d 582 (Tex.Crim.App. 1991). Thus, if a part of a verdict/judgment is unauthorized by law, but that part is merely “an error or errors made in the punishment stage of the trial” as Art. 44.-29(b) states, then the entire judgment is no longer reversed. Specifically, the finding of guilt stands though the finding on punishment does not.

Therefore we now have a remedy that accomplishes exactly the same thing as was accomplished by art. 37.10(b) as set out in the Johnson situation above. With the latter article (37.10(b)) the appellate court reforms the punishment part of the verdict/judgment while leaving the conviction part intact. With the former article (44.-29(b)), while we set aside the entire judgment of conviction, the trial court in effect “reforms the verdict/judgment” [see Ex Parte Sewell, 742 S.W.2d 393 (Tex.Crim. App.1987) (opinion on rehearing)] 2 by redoing only the punishment part of the trial and leaving the conviction part intact. True, the trial court does so by presumably entering an entirely new judgment. However the effect is the same. In both cases the “void” portion of the verdict/judgment is separated from the valid part and the “void” part is cured of its defect. Thus I see no practical difference between the effect of the two articles for purposes of this discussion.

In sum: The unauthorized grant of probation is an error that, under the clear mandate of Art. 44.29(b), does not per se vitiate the verdict/judgment of guilt and, assuming for the sake of argument that it was an error in the punishment stage, leaves it intact. Thus the entire verdict/judgment is no longer per se “void” under the reasoning of Johnson and also Spaulding, as explained by Judge Campbell in his concurring opinion in Johnson.

I would therefore hold that because of Art. 44.29(b), the unauthorized punishment assessed here does not void per se the entire judgment, and would remand the case to the trial court for further proceedings under the authority of Sewell. Once in the trial court, the determination of whether this error fits art. 44.29(b) or not can be made, and the decision of whether to leave the guilty verdict/judgment intact or retry the issue of guilt will necessarily follow.

VOLUNTARINESS

There remains however the question of voluntariness of a plea to a plea bargain that cannot be carried out. This is separate and apart from any question of validity of the verdict/judgment discussed above. There are two facets to involuntariness that logically could arise. Involuntariness “per se” because the sentence re *343 ceived was unauthorized, and involuntariness because a defendant was misled as to a material fact that entered into his decision making process to plead guilty.

As to the first facet, involuntariness “per se” because the sentence received was unauthorized: In this case, since the appellant already enjoyed the entire benefits of the plea bargain, and since his probation was revoked for reasons other than that it was discovered to have been granted without authority, it would be tempting to adhere to the cases 3 relying on an estoppel type theory that are cited, and overruled, by the majority. Under the facts of this case, the appellant voluntarily entered into a guilty plea for a benefit, and he fully received that benefit; thus, he cannot now complain that his GUILTY plea was somehow involuntary because the benefit was much later determined to have been unauthorized by law. Tempting as this would be however, I note that the appellant did not raise this issue in the court of appeals, so that is the end of the matter for me.

As to the second facet, involuntariness because the appellant was misled as to a material fact that entered into his decision making process to plead guilty 4 : While this argument (that applicant would not have plead guilty in return for a probated sentence had he known that probation was not authorized) is one line of attack made before us on the court of appeal’s analysis, this issue was not raised in the court of appeals. 5 Thus I would not entertain a claim of involuntariness under either theory-

For the above reasons, I would deny relief based upon any theory that the plea was involuntary, grant relief on his claim that the punishment was unauthorized by law, and remand the case for further proceedings under the authority of Sewell. This would have the effect of allowing the trial judge to determine whether the verdict/judgment of guilt would stand. Because the majority does not, I dissent.

OVERSTREET, J., joins this dissent.

. Article 37.10(b), effective June 11, 1985, provides: If the jury assesses punishment in a case and in the verdict assesses both punishment that is authorized by law for the offense and punishment that is not authorized by law for the offense, the court shall reform the verdict to show the punishment authorized by law and to omit the punishment not authorized by law. If the trial court is required to reform a verdict under this subsection and fails to do so, the appellate court shall reform the verdict as provided by this subsection.

. As stated in Sewell:

In urging their motion, the State makes two assumptions that are, in our view, erroneous. First, the State assumes that by the words "to answer the indictment” at the end of the Court's opinion, we ordered that the applicant be retried as to guilt. We did not. Neither did we order that he be retried only as to punishment. We simply granted him relief and set aside the previous judgment of conviction, then, just as the opinion says, remanded him to the sheriff to answer the indictment.

Second, the State interprets Art. 44.29(b), supra, to be directed to this Court. It is not. The article plainly is directed at the trial court to take appropriate action in appropriate circumstances. The proper forum to urge the application of the article is the trial court.

Sewell, supra at 397 . [Emphasis in original].

. Popham v. State, 154 Tex.Crim. 529 , 228 S.W.2d 857 (1950), Hartley v. State, 169 Tex. Crim. 341 , 334 S.W.2d 287 (1960), and Tritt v. State, 379 S.W.2d 919 (Tex.Crim.App.1964).

. In Ex parte Pool, 738 S.W.2d 285 (Tex.Crim. App.1987), this Court found the applicant's guilty plea was not knowingly and voluntarily entered because of his reliance upon the erroneous advice of his counsel as to the minimum punishment he could receive. See also Ex parte Smith, 678 S.W.2d 78 (Tex.Crim.App. 1984) (Court holds guilty plea not knowingly and voluntarily entered where applicant would not have pled guilty had he known maximum penalty for offense was one-half of what he was told); Ex parte Hairston, 766 S.W.2d 790 (Tex.Crim. App.1989) (erroneous advice of counsel on parole eligibility renders guilty plea involuntary when parole eligibility is affirmative part or element of plea bargain); and Ex parte Stephenson, 722 S.W.2d 426 (Tex.Crim.App.1987) (guilty plea not knowingly and intentionally made where applicant induced by plea bargain to plead guilty).

.Appellant presented the following argument in the court of appeals:

Thus, pursuant to Article 42.12, Sec. 3g(a)(l)(D), the Appellant was not eligible for regular probation for the offense of Aggravated Robbery as he was "adjudged guilty". The Court could have granted deferred adjudication type probation under Article 42.12, Sec. 3d(a). Likewise, a jury is not prohibited from granting probation. Snow v. State, 697 S.W.2d 663 (Tex.App. — Houston [1st District] 1985, no pet.). In Cause No. 0328707D, the Court erred in suspending the imposition of the Appellant’s sentence and placing him on ten (10) years probation. Therefore, the Court abused its discretion in revoking a probation which was void as a matter of law since the Appellant was not legitimately on probation.