Taylor v. State, 53910

• Decision Date: 06 April 1977
• Docket Number: No. 53910,53910
• Citation: 549 S.W.2d 722
• Parties: Joseph Henry TAYLOR, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 722

549 S.W.2d 722

Joseph Henry TAYLOR, Appellant, v. The STATE of Texas, Appellee.

No. 53910.

Court of Criminal Appeals of Texas.

April 6, 1977.

Rehearing Denied May 10, 1977.

Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

ONION, Presiding Judge.

Appellant was convicted by a jury for driving a motor vehicle on a public highway while intoxicated. The jury assessed punishment at confinement in jail for one (1) year and at a fine of $500.00. The jury found appellant eligible for probation under the terms of Article 42.13, Vernon's Ann. C.C.P., and recommended that the fine only be probated. The court ordered the fine be probated for a period of eighteen months. Judgment was then entered and sentence pronounced reflecting the jury's verdict and the court's action thereon.

The record is before us without a transcription of the court reporter's notes. No brief was filed in the trial court in appellant's behalf as is required by Article 40.09, § 9, Vernon's Ann.C.C.P. No question of indigency is raised. Nevertheless, in light of the punishment assessed, we shall review whether that penalty and the probation granted were properly handled under Article 42.13, supra, "in the interest of justice." Article 40.09, § 13, Vernon's Ann.C.C.P.

At the penalty stage of the trial the court instructed the jury on the penalty applicable to driving while intoxicated and on the law of misdemeanor probation. Two verdict forms were submitted along with these instructions as follows:

During deliberations at the penalty stage of the trial the jury sent the following note to the court:

"Does the jail time and the fine run concurrent. If we asses (sic) jail time but probate the fine, when does the probation on the fine expire?"

The court answered:

"The length of the period of probation is not for consideration by the Jury."

The jury then utilized the second verdict form set out above by assessing punishment at one year in the county jail and at a fine of $500.00. The jury further recommended the "fine" be probated.

Article 42.13, § 3(b), Vernon's Ann.C.C.P., provides:

"(b) If a defendant satisfies all the requirements of Section 3(a)(1), (2), (3) and (4) of this Article, and the jury hearing his case recommends probation in its verdict, the court must grant the defendant probation. The court may grant the defendant probation regardless of the recommendation of the jury or the prior conviction of the defendant, except for a like offense within the last five years. The court may, however, extend the term of the probationary period to any length of time not exceeding the maximum time of confinement allowed by law. In the event probation is revoked in accordance with Section 6, the judgment of the court shall not prescribe any penalty in excess of that imposed by the jury."

§ 4 of the statute provides:

"(a) When a defendant is granted probation under the terms of this Act, the finding of guilt does not become final, nor may the court render judgment thereon, except as provided in Section 6 of this Article. (Emphasis added.)

"(b) The court shall record the fact and date that probation was granted on the docket sheet or in the minutes of the court. The court shall also note the period and terms of the probation, and the details of the judgment. The court's records may not reflect a final conviction, however, unless probation is later revoked in accordance with Section 6 of this Article."

§ 6 of the Act deals with revocation of misdemeanor probation and provides in part:

"(b) On the date the probation is revoked, the finding of guilty becomes final and the court shall render judgment thereon against the defendant. The judgment shall be enforced as in other cases and the time served on probation may not be credited or otherwise considered for any purpose."

§ 7 of the statute provides as follows:

"(a) When the period and terms of a probation have been satisfactorily completed, the court shall, upon its own motion, discharge him from probation and enter an order in the minutes of the court setting aside the finding of guilty and dismissing the accusation or complaint and the information or indictment against the probationer.

"(b) After the case against the probationer is dismissed by the court, his finding of guilty may not be considered for any purpose except to determine his entitlement to a future probation under this Act, or any other probation Act."

§ 4 clearly provides that when misdemeanor probation is granted the finding of guilt does not become final and the court is prohibited from rendering judgment thereon except in the subsequent event of revocation. This court has repeatedly held that no judgment should be entered where probation is granted in a misdemeanor case. See Ex parte Smith, 493 S.W.2d 958 (Tex.Cr.App.1973); Lee v. State, 516 S.W.2d 151 (Tex.Cr.App.1974); Coby v. State, 518 S.W.2d 829 (Tex.Cr.App.1975); McIntosh v. State, 534 S.W.2d 143 (Tex.Cr.App.1976); Savant v. State, 535 S.W.2d 190 (Tex.Cr.App.1976) (footnote # 1).

All of this is reinforced by the provisions of § 6 of Article 42.13, supra, that judgment is not to be entered until the revocation of probation.

In Lee v. State, supra, it was written:

". . . The record also contains what purports to be a sentence. This 'sentence' is a nullity, since where probation is granted in a misdemeanor conviction the court does not render either a judgment or sentence except in the event of a revocation of probation." See also Coby v. State, supra.

In Lee the jury found the defendant guilty of selling an obscene magazine (Article 527, Vernon's Ann.P.C., 1925), and subsequently the court assessed punishment at a fine of $1,000.00 and confinement in jail for six months, the last four months of which were to be probated. There this court held that where probation is granted in a misdemeanor conviction authority of the court insofar as confinement in jail is concerned is limited to suspension of the entire term and not merely part of it. The "order of trial court assessing the penalty" was reformed to show the entire six months in jail was to be probated and requiring the payment of the $1,000.00 fine. The payment of the fine was upheld under Article 42.13, § 5(b)(8), Vernon's Ann.C.C.P., which authorizes the court where it assesses punishment to direct payment of all or any portion of a fine as a condition of probation. Lee v. State, supra (footnote # 1). ¹

In Coby v. State, supra, the defendant was convicted of aggravated assault. His punishment, assessed by the jury, was a $1,000.00 fine, probated, and twenty-four (24) months in jail, thirty days to be served and the balance probated. Lee was cited with approval as to the limitation on the authority of the court to suspend the entire jail term and not merely part of it. In Lee the punishment was assessed by the court and could be reformed by this court, but in Coby the punishment was assessed by the jury and the...