Milczanowski v. State
| Citation | 645 S.W.2d 445 |
| Decision Date | 02 February 1983 |
| Docket Number | No. 63763,63763 |
| Parties | Anthony Wayne MILCZANOWSKI, Appellant, v. The STATE of Texas, Appellee. |
| Court | Court of Appeals of Texas. Court of Criminal Appeals of Texas |
This is an appeal from a conviction for prostitution under V.T.C.A., Penal Code Sec. 43.02(a)(1). Punishment was assessed by the court at 10 days in jail and a $400 fine.
In appellant's sixth ground of error he contends the judgment and sentence are at variance with the information.
The information, omitting the formal portions, alleges that appellant did:
"then and there knowingly agree to engage in sexual conduct, namely: deviate sexual intercourse, with J.W. Przywara, for a fee." (Emphasis added.)
The judgment and sentence show the court found appellant:
"... guilty of unlawfully then and there knowingly and intentionally offer to engage in sexual conduct with another in return for a fee payable to the said as charged in the information...." 1
The record reflects the following announcement of the trial judge's decision at the conclusion of the guilt stage:
Under Sec. 43.02(a)(1), supra, two of the distinct means of committing the offense are by offering to engage in sexual conduct for a fee, and by agreeing to engage in such conduct. The information alleged the latter means, while the judgment and sentence are inconsistent, finding appellant guilty of the former.
The court on appeal may reform and correct the judgment based on information in the record to conform to the finding of the trial court. Article 44.24(b), V.A.C.C.P.; Jiminez v. State, 552 S.W.2d 469 (Tex.Cr.App.1977); Joles v. State, 563 S.W.2d 619 (Tex.Cr.App.1978); Teamer v. State, 557 S.W.2d 110 (Tex.Cr.App.1977). In the instant case the trial court's pronouncement in open court that it was finding appellant guilty of prostitution does not recite "as charged in the information," nor does it otherwise reflect the facts found. Where, as here, the judgment and sentence recite findings at variance from the alleged offense the recital in open court reflected in this record cannot aid us in reforming the instruments, because it sheds no light on what facts were found by the trial court.
When trial is by jury, the written verdict provides the basis for reforming an erroneous recitation in judgment and sentence. Sims v. State, 546 S.W.2d 296 (Tex.Cr.App.1977); Cunningham v. State, 484 S.W.2d 906 (Tex.Cr.App.1972). In a bench trial the statement by the judge in the record is the only comparable source that may be consulted to learn the decision of the fact finder. In this case that source is insufficient to authorize reformation. For all that appears in the record, the trial judge may have found, and absent a record to the contrary is presumed to have found, the facts as recited in the judgment. Conviction on those facts, they being at variance from the...
To continue reading
Request your trial
-
Garrett v. State
... ... under Article 44.24(b), V.A.C.C.P., 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 jeopardy ... What, then, of fairness ... ...
-
Ex parte Johnson
...a given case so that it properly reflected the true verdict reached by the jury. See Releford, supra at 387, citing Milczanowski v. State, 645 S.W.2d 445 (Tex.Cr.App.1983); Chudleigh v. State, 540 S.W.2d 314 (Tex.Cr.App.1976); Anderson v. State, 504 S.W.2d 507 (Tex.Cr.App.1974); Castaneda v......
-
Bigley v. State
...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 n......
-
Frieling v. State
...agreeing to engage in sexual conduct are two distinct means of committing prostitution under section 43.02(a)(1). Milczanowski v. State, 645 S.W.2d 445, 446 (Tex.Crim.App.1983). In Mattias, a decision of which appellant bitterly complains, the female defendant was convicted of the distinct ......