Opinion
NO. 12-11-00214-CR
04-30-2012
ELLIOTT TIMOTHY SCOTT, APPELLANT v. THE STATE OF TEXAS, APPELLEE
APPEAL FROM THE 7TH JUDICIAL DISTRICT COURT SMITH COUNTY, TEXAS
MEMORANDUM OPINION
Elliott Timothy Scott appeals his conviction for delivery of a controlled substance. In two issues, Appellant contends that the trial court erred in sentencing him outside the range of punishment by assessing a fine not allowed under the statutory enhancement provisions for the crimes alleged against him. In his third issue, he contends the judgment of the trial court should be modified to correct a clerical error. We modify the judgment and affirm as modified.
BACKGROUND
Appellant was charged by indictment with delivery of a controlled substance. The indictment also contained two enhancement paragraphs relating to two prior sequential felony convictions under the habitual offender statute.
See TEX. HEALTH & SAFETY CODE ANN. § 481.112(c) (West 2010).
See TEX. PENAL CODE ANN. § 12.42(d) (West Supp. 2011).
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Appellant entered an open plea of guilty to the charged offense, pleaded "true" to the enhancements, stipulated to the truth of the evidence in writing, and was found guilty of the offense. The trial court sentenced Appellant to forty-five years of imprisonment and assessed a $10,000.00 fine. The trial court announced the fine as part of its oral pronouncement of Appellant's sentence, and also included the fine as part of its written judgment. In the written judgment, the trial court also ordered that $0.00 in restitution was payable to the "Smith County Collections Department." This appeal followed.
IMPROPER FINE
In his first issue, Appellant argues that "the trial court erred in sentencing the Appellant outside the range of punishment by assessing a fine not allowed for by the statutory enhancement provisions violating the due process clause of the United States Constitution." In his second issue, he makes the same contention, but claims his sentence violates his due process rights under the Texas Constitution. Because these issues are related, we address them together.
The habitual felony offender statute does not authorize the assessment of a fine. See TEX. PENAL CODE ANN. § 12.42(d) (West Supp. 2011). Appellant was sentenced under this statute, and the record before us clearly demonstrates that the trial court did not have the authority to assess the fine. The State has conceded this point.
The dispute concerns the appropriate remedy. Appellant contends that the trial court's improper order of the fine renders the judgment void and the judgment should therefore be reversed. The State disagrees and argues that the appropriate remedy is modification of the trial court's judgment to delete the fine. We agree with the State. See Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); Ex parte Youngblood, 698 S.W.2d 671, 672 (Tex. Crim. App. 1985) (holding court had power to modify judgment to delete fine not authorized by statute); Blevins v. State, 74 S.W.3d 125, 132 (Tex. App.—Fort Worth 2002, pet. ref'd) (same). This court has the power to modify incorrect judgments when it has the necessary data and information to do so. See TEX. R. APP. P. 43.2(b).
It is true that a sentence that is outside the maximum or minimum range of punishment is unauthorized by law and therefore illegal. Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003). And a trial or appellate court that otherwise has jurisdiction over a criminal conviction may always notice and correct an illegal sentence. Id. For many types of sentencing errors, though, this does not include the power to simply modify and reform the judgment. See, e.g., Baker v. State, 278 S.W.3d 923, 925-26 (Tex. App.—Houston [14th Dist.] 2009, pet. ref'd) (holding oral pronouncement of five year sentence on state jail felony was illegal and could not be corrected by mere reformation of judgment). However, the order of a fine where no fine is authorized presents a different situation. A judgment awarding a fine of any amount where no fine may be awarded can simply be deleted from the judgment. See Mizell, 119 S.W.3d at 807 n.18. In Mizell, the court stated that the "court of appeals can take notice of [an] illegal sentence which exceeds [the] statutory maximum and has the power to reform and correct judgments and. . . by striking the requirement that appellant pay a fine as part of his punishment . . . ." Id (citing Harris v. State, 670 S.W.2d 284, 285 (Tex. App.—Houston [1st Dist.] 1983, no pet.) (applying rule and holding that illegal fine may be deleted from judgment)). Consequently, under the circumstances of this case, we have the authority to reform the judgment to delete the fine.
We sustain Appellant's first and second issues insofar as they pertain to trial court's lack of authority to assess the $10,000.00 fine against Appellant. We overrule the remaining portion of Appellant's first and second issues in which he contends that the judgment should be reversed rather than reformed.
RESTITUTION
In his third issue, Appellant asks that we modify and reform the trial court's written judgment to correct a clerical error. The State has joined Appellant in this request.
As a general rule, when an oral pronouncement of sentence and a written judgment differ, the oral pronouncement controls. Ex parte Madding, 70 S.W.3d 131, 135 (Tex. Crim. App. 2002). Further, when it has the necessary information before it, an appellate court may correct a trial court's written judgment to reflect its oral pronouncement. Thompson v. State, 108 S.W.3d 287, 290 (Tex. Crim. App. 2003); Ingram v. State, 261 S.W.3d 749, 754 (Tex. App.—Tyler 2008, no pet.). The Texas Rules of Appellate Procedure expressly authorize us to modify the judgment of the trial court. TEX. R. APP. P. 43.2.
During the sentencing hearing, no mention of restitution was made, the trial court did not orally order that restitution be paid, and the written judgment reflects that $0.00 was required to be repaid by Appellant as restitution. Yet, the written judgment also reflects that restitution is to be paid to the "Smith County Collections Department." We conclude that we have the necessary information to correct the error in the trial court's judgment and can modify the judgment so that it speaks the truth. See id.
Appellant's third issue is sustained.
DISPOSITION
Having sustained Appellant's first and second issues in part, we modify the trial court's judgment to delete the $10,000.00 fine. Having sustained Appellant's third issue, we modify the trial court's judgment to delete the designation of the "Smith County Collections Department" as the recipient of restitution. As modified, we affirm the judgment of the trial court.
JAMES T. WORTHEN
Chief Justice
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.