Villarreal v. State
| Decision Date | 19 December 1979 |
| Docket Number | No. 3,No. 62672,62672,3 |
| Citation | 590 S.W.2d 938 |
| Parties | Chris VILLARREAL, Appellant, v. The STATE of Texas, Appellee |
| Court | Texas Court of Criminal Appeals |
John R. Francis, Temple, for appellant.
Arthur C. Eads, Dist. Atty. and James T. Russell, Asst. Dist. Atty., Belton, Robert Huttash, State's Atty., Austin, for the State.
Before ROBERTS, PHILLIPS and DALLY, JJ.
This is an appeal from a conviction for burglary of a building. The punishment was assessed at imprisonment for two years, probated, and a $250 fine.
Appellant entered a plea of guilty and a judicial confession to the offense of burglary of a building. This offense is a felony of the second degree. V.T.C.A. Penal Code, Sec. 30.02(c). In assessing punishment the record shows that the district court treated the offense as a Class A misdemeanor and assessed a punishment of sixty days in jail, probated for one year, and a $250 fine. Nearly five months later, the State filed a motion to reopen punishment and assess a proper punishment, contending that the prior sentence was void. The district court granted the motion and this decision forms the basis of appellant's appeal. Appellant argues that the State's motion was tantamount to a State's motion for new trial and that the court did not have the authority to grant such a motion and reset the punishment.
The punishment for a second degree felony is imprisonment for a period of from two to twenty years. V.T.C.A. Penal Code, Sec. 12.33. Unlike a third degree felony, there is no authority for reducing a second degree felony to a Class A misdemeanor. Compare id. at Sec. 12.44. The initial punishment assessed was therefore void. Since there was "a failure from any cause whatsoever to enter judgment and pronounce sentence," the district court had the authority to enter a proper judgment and pronounce sentence. Art. 42.06, V.A.C.C.P. In contrast to a motion for new trial, the defendant need not initiate any entry of proper judgment and pronouncement of sentence under Art. 42.06.
Appellant takes the position that a nunc pro tunc procedure can never be used to correct a judicial error, because a court can only correct what was done, not what should have been done. This position is true, but in this instance is irrelevant. If a punishment is void, assessment of a proper punishment is not a correction. In the key case cited by appellant, Ex parte Pruitt, 139 Tex.Cr.R. 438, 141 S.W.2d 333 (1940), the Court, using reasoning not applicable to the present penal code, held that the excessive sentence...
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Ex parte Williams
...that the court of appeals erroneously dismissed the appeal, but relying upon this Court's two judge panel opinion of Villarreal v. State, 590 S.W.2d 938 (Tex.Cr.App.1979), it gratuitously remarked: "Under the circumstances, the trial court technically possessed the authority to set aside th......
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...may file a motion to re-open the case to remedy the illegal sentence. See Mizell, 119 S.W.3d at 806 & n. 7; Villarreal v. State, 590 S.W.2d 938, 938-39 (Tex.Crim.App.1979) (holding that trial court had authority, five months after sentencing, to grant the State's motion to reopen punishment......
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