Opinion
No. 05-04-00260-CR
Opinion issued February 17, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the County Court at Law No. 1, Collin County, Texas, Trial Court Cause No. 001-81767-03. Affirmed.
Before Justices MORRIS, MOSELEY, and FITZGERALD.
OPINION
At the conclusion of the punishment phase of Roderick Jerome Leroy's trial, the trial court accepted a jury verdict of no fine and no confinement in the case. Afterward, the court signed a judgment sentencing appellee to one day's confinement and a one dollar fine. The State now attempts to challenge that judgment in two issues presented in its appeal. The State asserts in its first issue that the trial court erred by accepting a jury verdict that constituted no punishment and, in its second issue, that the trial court erred by sua sponte reforming the verdict by adding a dollar fine and a day in jail without appellee being present. Because the State is not statutorily entitled to challenge the jury verdict and because the parties were not harmed by the trial court's modification of the jury's verdict, we affirm the trial court's judgment assessing a punishment of one day's confinement and a one dollar fine. A jury convicted appellee of misdemeanor assault. Afterward, the jury assessed appellee's punishment at a fine of "none" and a confinement period of "none." Neither the State nor appellee objected to this punishment, and the trial court orally accepted the sentence and dismissed the jury. Less than one month later, the trial court signed a judgment setting out the jury's verdict on punishment as a one dollar fine and one day's confinement in county jail. At a hearing preceding the trial court's action, the State objected that the court could not "accept the verdict of the jury, permit it to stand, and then refuse to abide by it." Appellee's counsel stated that appellee wished to "take no action at this time." Appellee's position was "as long as it did not result in any punishment to him, . . . because he has already served six days in jail, he had no objection to that." After the trial court signed its written judgment, the State appealed, asserting it has the right to appeal because the judgment arrested or modified a previous judgment and the punishment of "none" assessed by the jury amounted to an illegal sentence. The State is entitled to appeal a trial court's order in a criminal case if the order, among other things, "arrests or modifies a judgment." Tex. Code Crim. Proc. Ann. art. 44.01(a)(2) (Vernon Supp. 2004-05). The State is also entitled to appeal a sentence on the ground that the "sentence is illegal." Id. art. 44.01(b). We may, however, "look behind the State's facial allegation of what it is appealing to determine whether it is in fact `appealing a sentence and not something else.'" State v. Baize, 981 S.W.2d 204, 206 (Tex.Crim.App. 1998) (quoting State v. Ross, 953 S.W.2d 748 (Tex.Crim.App. 1997)). A sentence is "that part of the judgment . . . that orders that the punishment be carried into execution in the manner prescribed by law." Baize, 981 S.W.2d at 206; see also Tex. Code Crim. Proc. Ann. art. 42.02 (Vernon Supp. 2004-05). The meaning of "sentence," in the context of authorizing a State's appeal, is not the same as the act of assessing punishment. Baize, 981 S.W.2d at 206. The sentence in appellee's case, as reflected in the written judgment, is not illegal on its face; a one dollar fine and confinement for one day fall within the punishment range for misdemeanor assault. See Tex. Pen. Code Ann. §§ 12.21, 22.01(b) (Vernon 2003). Moreover, the State did not appeal until after the trial court had altered in its written judgment the jury's verdict on punishment. It did not object to or attempt to appeal the original jury verdict. Now on appeal, the State claims the trial court erred by accepting the jury verdict on punishment and in sua sponte modifying the jury's verdict. These allegations make clear that the State is "not appealing the sentence, but the procedure leading to the assessment of punishment." Baize, 981 S.W.2d at 206. Therefore, we do not have jurisdiction to address the State's appeal based on its first allegation that the sentence is illegal. Id. The State alternatively bases its right to appeal on the allegation that the trial court arrested or modified a judgment. To the extent the trial court rendered judgment when it accepted the jury's verdict on punishment, we agree that the later, written judgment can by viewed as modifying the initial rendition. See Jones v. State, 795 S.W.2d 199, 201 (Tex.Crim.App. 1990). Thus, we have jurisdiction to address the State's complaints involving the final, written judgment. In its first issue, however, the State complains the trial court erred by initially accepting an illegal jury verdict that constituted no punishment. The State asserts the trial court should have brought the illegal verdict to the jury's attention, rather than accepting it and dismissing the jury. This complaint is not directed toward the final, written judgment, but instead is directed toward the trial court's "order" at trial accepting the jury's verdict, which was later modified by the final, written judgment. Accordingly, we do not have jurisdiction to address the State's claim asserted in its first issue. We dismiss for want of jurisdiction the State's complaint asserted in its first issue. In its second issue, the State complains the trial court erred by sua sponte reforming the jury verdict by adding a dollar fine and a day in jail and by doing so in appellee's absence. Sentence in a misdemeanor case, such as appellee's, may be rendered in the defendant's absence. Tex. Code Crim. Proc. Ann. art. 42.14 (Vernon 1979). Nevertheless, the trial court clearly erred by modifying the jury's verdict in this way. See id. art. 42.01, § 1(7) (Vernon Supp. 2004-05); State v. Savage, 933 S.W.2d 497, 499 (Tex.Crim.App. 1996); see also Reed v. State, 795 S.W.2d 19, 21 (Tex.App.-Houston [1st Dist.] 1990, no pet.) (holding power of court to reform judgment under article 37.10(b) of code of criminal procedure does not include power to add punishment, even if addition is de minimus). In this case, however, neither appellee nor the State was harmed by the error, and therefore we may not reverse the case. See Cain v. State, 947 S.W.2d 262, 264 (Tex.Crim.App. 1997). According to the rules of appellate procedure, if the record in a criminal case reveals constitutional error, the court of appeals must reverse the judgment of conviction or punishment unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment. Tex.R.App.P. 44.2(a). The record here fails to reveal constitutional error. The only party with a constitutional right to a jury trial expressly stated, through counsel, he had no objection to the trial court's modification of the jury's original sentence. See U.S. Const. amend. VI; Tex. Const. art. I, § 10. Furthermore, the trial court's written judgment did not assess a constitutionally impermissible sentence. The appellate rules also state that any non-constitutional "error, defect, irregularity, or variance that does not affect substantial rights must be disregarded." Tex.R.App.P. 44.2(b). A substantial right is not affected and the error is harmless if, after reviewing the entire record, we determine that the error did not influence, or had only a slight influence, on the trial outcome. Montez v. State, 975 S.W.2d 370, 373 (Tex.App.-Dallas 1998, no pet.). In evaluating harm, we must examine the proceedings in their entirety, necessarily considering the character of the proceedings, what was at stake in their outcome, and how the error affected the case as a whole. Kotteakos v. U.S., 328 U.S. 750, 762 (1946); see also King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997) (adoption the Kotteakos definition of substantial rights). The purpose of such an evaluation is to "not be technical, where technicality does not really hurt the party whose rights in the trial and in its outcome the technicality affects." Kotteakos, 328 U.S. at 760. We have not discovered any source detailing the State's substantial rights, if any exist, in a situation such as the one before us. Despite the fact that the State must approve a defendant's waiver of his constitutional right to a jury trial, we do not believe the State possesses a substantial right to have a jury determine punishment. See Tex. Code Crim. Proc. Ann. art. 1.13 (Vernon Supp. 2004-05). The "primary duty" of a district attorney, as representative of the State in criminal cases, is to see that justice is done. Id. art. 2.01. Here, the trial court's erroneous act transformed an illegal sentence to which the State had not objected into a sentence that both fell into the applicable punishment range and did not adversely affect appellee in its variance from the jury verdict. In addition, the action furthered the State's interest in pursuing judicial economy. See Rosales v. State, 4 S.W.3d 229, 238 (Tex.Crim.App. 1999) (discussing State's interest in legitimate verdicts and judicial economy in context of appointing expert witnesses). The State's substantial rights were not harmed. See State v. Lasalle, 135 S.W.3d 94, 98 (Tex.App.-Corpus Christi 2003, pet. ref'd) (holding State was not harmed by trial court granting new trial). And we do not believe the error in this individual case rises to the level of "injury to the jury system, to the law as an institution, to the community at large, and to the democratic ideal reflected in the processes of our courts." Ballard v. U.S., 329 U.S. 187, 195 (1946) (finding harmful error in wholesale exclusion of women from panel of grand and petit jurors in district where indictment was returned and trial occurred). Furthermore, the record does not reveal any harm to appellee, and he does not complain of any. Therefore, because the error in the case did not affect either party's substantial rights, we resolve the State's second issue against it. We affirm the trial court's judgment.