concluding that the Texas Rules of Appellate Procedure empower courts of appeals to reform judgments
How later courts described this case
- concluding that the Texas Rules of Appellate Procedure empower courts of appeals to reform judgments
- concluding that Texas Rules of Appellate Procedure empower courts of appeals 11 to reform judgments
- concluding that the court of appeals has the power to reform judgments to correct clerical errors
- concluding that Texas Rules of Appellate Procedure empower courts of appeals to reform judgments
Written by the judges who cited it.
Distinguished
Distinguished by Doherty v. State, 1994 Tex. App. LEXIS 2842 (1994)
Appellant argues that Bigley is distinguishable because it involved insufficient evidence rather than prosecutorial vindictiveness.
The opinion
BAIRD, Judge,
concurring.
Based upon the controlling authority from this Court, the Court of Appeals correctly held the evidence was insufficient to support a finding that appellant possessed methamphetamine in an aggregate weight of over 400 grams. Bigley v. State, 831 S.W.2d 409, 412 (Tex.App.—Austin 1992). And, the Court of Appeals correctly held that, under Tex.R.App.P. 80(b), it had the authority to reform the judgment to reflect a conviction for possession of more than twenty-eight but less than 400 grams of methamphetamine. Id. at 415 . However, I am writing separately to express my belief that the Court of Appeals was authorized to reform the judgment because the jury had been instructed on the lesser offense.
I.
As the Court of Appeals noted, in Garrett v. State, 749 S.W.2d 784 (Tex.Cr.App.1986), we held:
... neither this Court nor the court of appeals is authorized to reform the judgment and sentence to reflect conviction for a lesser included offense under [Tex.Code Crim.Proc.Ann. art. 44.24(b) ], since “reformation of judgment and sentence may be done only to cause those instruments to reflect the true finding of the fact finder when such a finding is reflected in the verdict or, in a bench trial, the pronouncement of the court’s finding.” Milczanowski v. State, 645 S.W.2d 445, 447 (Tex.Cr.App.1983). All that remains upon remand is to enter judgment of acquittal. But for this essentially ministerial act, there is no lack of finality in the judgment, and hence no basis to apply continuing jurisdiction.
Id. 749 S.W.2d at 793-794 . See Bigley, 831 S.W.2d at 415, n. 2 .
The Court of Appeals, however, continued and noted that art. 44.24(b) had been repealed and replaced by Rule 80 which contains a broader grant of authority to the courts of appeals. Id. Rule 80(b) provides:
Types of Judgment. The court of appeals may: (1) affirm the judgment of the court below, (2) modify the judgment of the court below by correcting or reforming it, (3) reverse the judgment of the court below and dismiss the case or render the judgment or decree that the court below should have rendered, or (4) reverse the judgment of the court below and remand the case for further proceedings. 1
II.
In Stephens v. State, 683 S.W.2d 23 (Tex.App.—Dallas 1984), the defendant was convicted of aggravated rape. However, the Court of Appeals found the evidence was insufficient to sustain the conviction and ordered an acquittal. We affirmed that judgment. Stephens v. State, 717 S.W.2d 338 (Tex.Cr.App.1986). The State re-indicted Stephens for rape and Stephens filed a pretrial application for a writ of habeas corpus claiming that the prosecution was barred by the Double Jeopardy Clause. We found the subsequent prosecution was jeopardy barred. In so finding we specifically noted that the State had, at Stephens’ first trial, chosen not to request an instruction on the lesser included offense of rape. Stephens v. State, 806 S.W.2d 812, 817-818 (Tex.Cr.App.1991). By failing to pursue the lesser included offense of rape, at the first trial, jeopardy had attached to that offense and the State was forever barred from prosecuting Stephens for that offense. Id.
In Granger v. State, 605 S.W.2d 602 (Tex.Cr.App.1980), the defendant was originally convicted of capital murder. However, we found the evidence was insufficient to prove the aggravating element of remuneration and ordered an acquittal. Granger was re-indicted for murder and filed a pretrial application for writ of habeas corpus contending the *29 prosecution was barred by the Double Jeopardy Clause. However, at Granger’s original trial, the jury had been charged on the lesser offense of murder. We held this instruction distinguished Granger’s jeopardy claim from that in Stephens and held Granger’s subsequent prosecution for murder was not jeopardy barred. Granger v. State, 850 S.W.2d 513, 524 (Tex.Cr.App.1993).
III.
In the instant case, as the majority notes, the jury was instructed on the lesser offense of possession of more than twenty-eight but less than 400 grams of methamphetamine. Consequently, the reformation by the Court of Appeals is not jeopardy bar-red. However, had there been no such instruction on the lesser included offense, the Court of Appeals would not have been authorized , to reform the judgment under Rule 80(b). Had there been no such instruction, the appropriate action would have been for the Court of
Appeals to order an acquittal. In other words, Rule 80(b) does not give the courts of appeals the authority to reform a judgment to that of a jeopardy barred offense.
With these comments, I join the majority opinion.
. Unless otherwise indicated, all emphasis is supplied.