Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:Appellant was convicted of possession of more than five pounds but less than 50 pounds of marijuana. On October 28, 2002, after the punishment phase of the trial, the trial court sentenced appellant to 10 years in the Texas Department of Criminal Justice Institutional Division. The next day, the trial judge recalled appellant. He explained that the state had previously submitted evidence of prior felony convictions for enhancement purposes, and that he found them to be true. Thus, according to Texas Penal Code, 12.42(d), the court was not able to sentence appellant to any amount of time less than 25 years. The trial court then re-sentenced appellant to 25 years in the TDCJ Institutional Division. Appellant appealed to the 5th Court of Appeals, which affirmed the second sentence of the trial court. HOLDING:The court reverses the decision of the court of appeals and holds that the original 10-year sentence imposed by the trial court was a legal and authorized sentence. Appellant argues that an increase in punishment after a defendant has commenced serving his sentence violates a defendant’s double jeopardy rights. He also asserts that, after the trial court imposed the first sentence of 10 years, the trial court no longer had the ability to set aside the original sentence and order a new sentence. The court concludes that the court of appeals erred in failing to address the double jeopardy claims of the appellant. The facts do not support the contention that appellant’s sentence was statutorily unauthorized at the time it was pronounced. When the appellant was sentenced, the trial court did not specifically find the enhancements to be true on the record. The court then sentenced appellant within the range of punishment for an unenhanced offense. The record states only that the trial judge, at the first sentencing proceeding, said the court had “received evidence of prior felony – prior convictions,” and proceeded to sentence appellant to 10 years in the Texas Department of Criminal Justice. The record thus shows that the trial judge received the evidence of the prior convictions and considered them, but not that he found them true. The trial court erred to then find them true at a second sentencing hearing. This second attempt at sentencing violated Appellant’s rights under the Double Jeopardy Clause. Because the 10-year sentence was a valid and authorized sentence under the Texas Penal Code, the trial court’s second pronouncement of a 25-year sentence the following day was an unconstitutional 15-year increase, the court concludes. The trial court’s actions in this case were neither a mere correction of an unauthorized sentence, nor a nunc pro tunc order within the inherent authority of the court that would permit revision of the written judgment to comply with the oral pronouncement of sentence. The first sentence imposed was authorized by law, and the court’s action on the second day was more than correcting a clerical error to make the judgment comply with the sentence pronounced. In the instant case, the trial court validly sentenced appellant one day, and the next day called appellant back and increased his sentence. OPINION:Lawrence E. Meyers, J., delivered the opinion of the court, in which Keller, P.J., and Womack, Johnson, Keasler, Hervey, Holcomb, and Cochran, JJ., join. Price, J., filed a dissenting opinion. DISSENT:Tom Price, J. “This is a sad day for judicial integrity. “Despite the fact that the trial judge in this case said that he had found the enhancement allegations, which were supported by uncontested and certified penitentiary packets, true, the majority concludes that the trial court was unauthorized to correct the unauthorized sentence that had been imposed the day before. As a result, I respectfully dissent.”

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 1 article* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.