Ex Parte Spaulding , 1985 Tex. Crim. App. LEXIS 1262 ( 1985 )

OPINION

CAMPBELL, Judge.

This is a post-conviction writ of habeas corpus brought pursuant to Art. 11.07, V.A.C.C.P. Applicant complains that his conviction for aggravated sexual abuse is void. Applicant contends that the jury’s assessment of a $10,000.00 fine in addition to a term of years as punishment is unauthorized by law and therefore the verdict is void and any subsequent judgment and sentence based upon the void jury verdict is void. We agree and grant relief.

Applicant was indicted for aggravated sexual abuse. The indictment further alleged two¹ prior felony convictions for purposes of enhancement. After trial to a jury, the applicant was found guilty. The jury found the applicant had previously been convicted of a felony and assessed punishment at fifty years confinement at the Texas Department of Corrections and a fine of $10,000.00. The trial judge had orally instructed the jury that they could assess a fine as well as confinement. The jury verdict form also included a notation that the jury “has the discretion to assess a fine not to exceed $10,000.00 or not to assess any fine whatever.”

Applicant appealed his conviction which was affirmed by the Thirteenth Court of Appeals (Corpus Christi). 656 S.W.2d 538. Applicant has filed, without the assistance of counsel, four previous writs of habeas corpus which have all been denied without written order. Applicant, now represented by Staff Counsel for Inmates, for the first time raises the issue presented here.

In Bogany v. State, 661 S.W.2d 957 (Tex.Cr.App.1983) this Court held that V.T.C.A. Penal Code, Section 12.42 did not authorize a fine in addition to the enhancement of punishment. This Court refused to harmonize sections 12.42 and 12.32, supra, and held that any jury verdict assessing a fine in addition to enhanced jail time was “void from its inception.” Bogany, supra at 959.

The State concedes that if this Court is to continue following Bogany that applicant is entitled to relief. The State by its district attorney argues that Bogany should be reinterpreted to mean that any fine assessed is in fact surplusage that this Court can ignore.

Surplusage in a jury verdict has been defined as language unnecessary to the verdict where the jury’s intent is clearly discernible without said language. See 25 Tex.Jur.3d, sec. 3606 (Criminal Law) and the cases cited therein. We cannot find that the jury’s assessment of a $10,000.00 fine was “unnecessary.” It is clear from the record that the jury fully intended to assess a fine as they were instructed that they could do in their discretion.²

Finally the State, through its State Prosecuting Attorney, has filed a motion to dismiss the application as moot, alleging that the Governor of the State of Texas has remitted applicant’s fine and deleted the offending portion, thus making applicant’s contention moot. Neither party has briefed the question of the Governor’s power to commute or remit a portion of a void judgment and sentence. This appears to be a question of first impression.

Under the Texas State Constitution the Governor is granted the exclusive power to grant pardons and commutation.³ Ex parte Thomas, 108 Tex.Cr.R. 653, 2 S.W.2d 270 (1928). A commutation limits or modifies an original sentence. 27 Tex.Jur.3d, sec. 4403 (Criminal Law). However, in Bo-gany this Court found that the judgment and sentence based upon a jury verdict unauthorized by law was void. Black’s Law Dictionary defines a void judgment as:

“One which has no legal force or effect, invalidity of which may be asserted by any person whose rights are affected at any time and at any place directly or collaterally, [citation omitted.] One which, from its inception is and forever continues to be absolutely null, without legal efficacy, ineffectual to bind parties or support a right, of no legal force and effect whatever, and incapable of any confirmation, ratification or enforcement in any manner or to any degree.” [citation omitted.]

Black’s Law Dictionary, p. 1745 (Fourth Ed.1968, West Pub.Co.). Void is further defined in Black’s as that which nothing can cure.

Since this Court has held that the error complained of here renders a judgment and sentence void at its inception, the Governor cannot modify that which is void. Such judgment and sentence being void, the error is incurable and any subsequent attempt at remitting the fine portion of a void sentence is also void. We hold that the Governor, though he has exclusive jurisdiction to grant commutations, is without authority to remit or commute a portion of a void sentence.

In so folding, we are cognizant of the fact that in another facially similar context we have upheld the Governor’s power to commute a sentence that is legally infirm. See Stanley v. State, 490 S.W.2d 828 (Tex. Cr.App.1973); Cherry v. State, 488 S.W.2d 744 (Tex.Cr.App.1972), cert. denied 411 U.S. 909, 93 S.Ct. 1538, 36 L.Ed.2d 199 (1973); Whan v. State, 485 S.W.2d 275 (Tex.Cr.App.1972), cert. denied 411 U.S. 934, 93 S.Ct. 1906, 36 L.Ed.2d 394 (1973). In those cases we held that the Governor does have the power to commute a death sentence to a sentence of life after the death sentence has been found to be constitutionally infirm by the United States Supreme Court. Those cases involve reversible constitutional error; they do not involve the problem presented in this case, a judgment which is void ab initio and therefore a nullity. The judgments in Stanley, supra, Cherry, supra, and Whan, supra, were, for want of a better term, voidable, whereas the judgment in the case sub judice is void. Even the Governor, with his constitutional powers, may not breathe new life into a “dead” judgment.

Applicant is entitled to the relief prayed for. Applicant’s judgment of conviction is vacated and applicant is entitled to a new trial. Applicant’s judgment and sentence in Cause No. 81-9-3258 in the 24th district court of Jackson County is hereby vacated and applicant is ordered into the custody of the Jackson County sheriff to stand trial in said cause number.

It is so ordered.

WHITE, J., dissents.

1 . The State abandoned one of the two enhancement paragraphs prior to the submission of. the case to the jury on punishment.

2 . All emphasis supplied by the writer of this opinion unless otherwise indicated.

3 . The Texas Constitution, Art. 4, Sec. 11 provides:

"In all criminal cases, except treason and impeachment, the Governor shall have power, after conviction ... to grant reprieves and commutations of punishment and pardons, and under such.rules as the Legislature may prescribe, and upon the written recommendation and advice of a majority of the Board of Pardons and Paroles, he shall have the power to remit fines and forfeitures.”