Smith v. State
Decision Date | 09 May 1972 |
Docket Number | No. 44912,44912 |
Parties | James William SMITH, Appellant, v. The STATE of Texas, Appellee. |
Court | Texas Court of Criminal Appeals |
Marvin Collins, Jack V. Strickland, Fort Worth, for appellant.
Doug Crouch, Dist. Atty., John Harris, Ann Delugach and John Hill, Asst. Dist. Attys., Fort Worth, and Jim D. Vollers, State's Atty., Austin, for the State.
This is an appeal from a conviction for the possession of dangerous drugs, to-wit: Lysergic Acid Diethylamide. The jury found the appellant guilty and assessed his punishment at 1 year in jail followed by a 12 month probation period. The court sentenced the appellant to 1 year in jail and struck from the jury's verdict, after the jury had been discharged, the provision for a 12 month probation period.
The appellant sets forth 11 grounds of error; only two of which we will discuss. The appellant contends, 'The court erred in accepting the jury verdict on punishment which sets the appellant's punishment at confinement in jail for 1 year followed by a 12 month probation period.' Second, the appellant contends, 'The court erred in sentencing the appellant to confinement in jail for 1 year when the jury was not given a chance to reform its verdict.'
During the jury's deliberations the following note was written to the court by the jury:
'Question: Can defendant have a sentence to jail plus a probation period?
Example: 12 mos. jail followed by 12 mos. probation.
Answer: Yes
J. C. Duvall' (Trial Judge)
The record discloses at the time the verdict was returned that appellant's counsel made the following statement to the court:
The jury was then polled individually and each stated that that was his verdict.
At the time of sentencing, the court repeated the verdict of the jury and then stated:
At which time the State moved that the court strike that portion of the jury's verdict 'followed by...
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Wallace v. State
...is likewise fatally defective and may not be "reformed" into an assessment of punishment at life imprisonment. See Smith v. State, 479 S.W.2d 680 (Tex.Cr.App.1972): "The verdict having been received by the court and entered of record, the court in its judgment and sentence was not entitled ......
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...at 854. We held that since the verdict assessed punishment unauthorized by law, it was void at its inception, citing Smith v. State, 479 S.W.2d 680 (Tex.Cr.App.1972). In Smith, the defendant was convicted for possession of dangerous drugs. The jury found the defendant guilty and assessed pu......
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