State v. Dickerson ( 1993 )

OPINION

DUGGAN, Justice.

The State has filed a motion for rehearing in this case. We deny the motion, but withdraw our initial opinion of August 12, 1993, and substitute this one in its stead.

Before an opinion issued in this case, the justices of this Court voted to consider the case en banc. No further oral argument was heard. All nine Justices participated in the decision.

The State appeals from the trial court’s imposition of a two-year sentence on appellee for the felony offense of theft. We reform the judgment, and, as reformed, affirm.

A jury found appellee guilty of theft. Although the value of the property appropriated in the primary offense was less than $750 in value, the primary offense was a third degree felony, because the jury found that appellee had been twice previously convicted of theft. See Tex.Penal Code Ann. § 31.-03(e)(4)(E) (Vernon Supp.1993). Because ap-pellee did not elect jury punishment, the trial court proceeded to conduct the punishment hearing. When the enhancement portion of the indictment was presented, appellee pled “not true” to the two enhancement paragraphs, thereby placing on the State the burden of proving one or more of the enhancement allegations in the indictment in order to secure enhanced punishment for a recidivist.¹

After the court heard evidence consisting solely of the State’s enhancement proof, both sides rested, and appellee’s counsel gave a brief argument. The following then transpired:

The court: All right. Michael Wayne Dickerson, would you stand up?

The jury has found you guilty in Cause No. 602266. The Court will sentence you to two years confinement in the Institutional Division of the Texas Department of Criminal Justice. Do you have anything to say why sentence of law should not be now pronounced against you?

Appellee: No, sir.

The court: You having nothing to say, it is the order of this court that you, Michael Wayne Dickerson, having been adjudged guilty of the offense of theft, an enhanced felony in the third degree, in Cause No. 602260 your punishment is assessed at two years in the Texas Department of Criminal Justice for a period of two years, be delivered to the sheriff of Harris County, Texas to the Texas Institutional Division of the Texas Department of Criminal Justice or any other person legally authorized to receive such convicts where you shall be confined for a term of two years to the laws governing that department. You are hereby remanded to the sheriff until he can obey and carry out the instructions of this sentence.

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All right, Mr. Bailiff.

The prosecutor: Did you not find the enhancements true?

The court: As enhanced?

The prosecutor: And you assessed him to two years?

The court: Yes, sir.

The prosecutor: He’s a habitual which makes it a minimum of 25.

The court: Well, that was a mistake then. I’m glad you called my attention to it. Come back up here. Mr. Dickerson, I have to retract the sentence that I have given here.

The Court hereby finds the enhancements are true and sentences you to 25 years in the Institutional Division of the Texas Department of Corrections. Do you have anything to say why sentence of law should not be pronounced against you?

Appellee: No.

The court: Having nothing to say, it’s the order of this Court that you, Michael Wayne Dickerson, having been adjudged guilty of the offense of theft, a felony as enhanced as a habitual, in Cause No. 602266, punishment is assessed at confinement for a period of 25 years, be delivered to the Sheriff of Harris County, Texas, or to the Director of the Institutional Division of the Texas Department of Criminal Justice or any other person legally authorized to receive such convicts where you shall be confined to said department for a term of 25 years in accordance with the laws governing the Institutional Division of the Texas Department of Criminal Justice. You are hereby remanded to the sheriff and the bailiff until he can carry out the instructions of this sentence.

Appellee’s trial counsel: Your Honor, at this time my client has asked me to inform the Court he’d like to give notice of appeal.

Appellee then filed what he styled a “motion for new trial.” In his motion, appellee complained only of the court’s “resentencing” of him to 25-years confinement. He prayed that “the court ... grant this motion and order that the judgment be corrected to reflect the court’s original sentence of 2 years.” At the motion hearing, the trial court heard evidence that “[n]ot even a minute” elapsed between the court’s sentencing appellee to two years and the prosecutor’s making his inquiry, “Did you not find the enhancements true?”

The trial court granted appellee’s motion.² The court’s order stated that “the judgment and sentence entered in this cause [is] modified to read that defendant was assessed a punishment of two (2) years.” It is from the granting of appellee’s motion that the State appeals.

In its first point of error, the State contends that the trial court erred in granting appellee’s motion and thereby “reforming the sentence from twenty-five years to two years” because the court “had the authority to correct an error in the assessment of punishment prior to the defendant beginning to serve his sentence.”

Tooke v. State, 642 S.W.2d 514 (Tex.App.—Houston [14th Dist.] 1982, no pet.), is a case on point. There, a jury found the defendant guilty of murder. Id. at 516. The trial court sentenced the defendant to confinement “for not less than 5 years nor more than 50 years.” Id. The defendant accepted the sentence.³ Id. Then the court, “realizing that he mistakenly omitted to consider the enhancement paragraph of the indictment, resentenced” the defendant to confinement “for not less than 15 years nor more than 50 years.” Id.

The court of appeals held as follows:

After sentence was first imposed on appellant, the trial court was without power to set aside that sentence and order a new sentence. Such attempted resentencing was null and void and of no legal effect. The original sentence was a valid and proper sentence. The court’s failure to consider the enhancement paragraph of the indictment prior to first sentencing appellant should not enlarge the court’s power over the case once sentence has been accepted ... Finding the second sentence to be void and of no legal effect, the sentence first imposed on appellant will stand.

Id. at 518 (citations omitted).

Here, the original sentence of two years was a valid and proper sentence. See Tex.Penal Code Ann. § 12.34 (Vernon Supp. 1993). Further, appellee accepted the original sentence. Under these facts, as did the court in Tooke, we hold that the “attempted resentencing” in this case was null and void, and the trial court therefore did not err in granting appellee’s motion and restoring the original sentence of two-years confinement.

The dissent characterizes the issue in this appeal as an error in sentencing, which it argues should be eligible for correction by the trial court as long as the defendant “has not already begun to perform or serve the original sentence[.]” No “sentencing error” occurred here. The trial court correctly sentenced appellee; there is no dispute that, without finding at least one of the two enhancement paragraphs to be true, two years was a statutorily allowable punishment. See Tex.Penal Code Ann. § 12.34 (Vernon Supp. 1993).

Admittedly, the State’s punishment phase evidence for enhancement (pen packets and fingerprint evidence connecting appellee to the pen packets) was uncontroverted; nevertheless, the trial court was not bound to accept the State’s proof. While it is obvious from the post-sentencing dialogue between the trial court and the prosecutor that the trial court meant to find the enhancement paragraphs true, three things occurred before it did so: (1) the court imposed a lawful punishment; (2) the court pronounced a valid and proper sentence; and (3) appellee accepted that sentence. Under these procedural facts, the trial court was not free to “retract the sentence ... given here” and “resentence” appellee, regardless of the fact that the punishment originally assessed was the product of mistake or oversight.

The “error” here was simply prosecutorial default following what the trial court later said “was a [judge’s] mistake.” The prosecutor should have promptly objected when the trial court made no findings regarding whether the contested enhancement paragraphs (contested because appellee pled “not true” when they were presented) were true or not true, and when the trial court assessed appellee’s punishment at two-years confinement, a statutorily permissible punishment for an unenhanced third degree felony offense. Instead, the prosecutor said nothing. If the prosecutor was unwilling to accede to the trial court’s rejection — or mistaken disregard — of the State’s uncontradicted proof, the prosecutor should have further promptly objected when the trial court proceeded to assess the statutory minimum punishment. The prosecutor said nothing. Instead, the prosecutor stood mute while the trial court afforded appellee his right of allocution, his opportunity to state any reason why sentence should not be pronounced against him. Ap-pellee was apparently (and understandably) quite willing to accept the sentence about to be imposed; he stated for the record that he had nothing to say. The prosecutor still said nothing.

The trial judge then sentenced appellee, as set out in the quoted extract, and remanded him to the bailiffs custody. The prosecutor still said nothing. The sentencing was finished and the remanded appellee had been taken by the bailiff from his position before the bench to the clerk’s desk, to be processed for delivery to the penitentiary. Only then did the prosecutor make an inquiry (not an objection) to the trial court: “Did you not find the enhancements true?” The quoted exchange that followed between the prosecutor and the judge resulted in the judge’s acknowledgment of “a mistake” and summons to appellee to “[c]ome back up here.” As we have held above, however, it was by then too late for the court to change the sentence.

We overrule point of error one.

In point of error two, the State argues that the trial court erred “in granting the defendant’s motion for new trial in order to reassess punishment, since Tex.R.App.P. 32 and Tex.Code Crim.P.Ann. art. 44.29 do not provide for a new trial to be granted as to punishment alone.”

We do not, however, consider ap-pellee’s motion to be a motion for new trial, despite its being styled as such. The effect of a motion is not determined by its caption, but rather by its contents and the purpose for which it is offered. See Carlisle v. State, 818 S.W.2d 156, 159 (Tex.App.—Houston [1st Dist.] 1991, no pet.); Hernandez v. State, 767 S.W.2d 902, 904 (Tex.App.—Corpus Christi 1989), aff'd, 800 S.W.2d 523 (Tex.Crim.App.1990). Here, appellee’s motion asked that appellee’s sentence “be modified to read that the defendant was assessed a punishment of two (2) years.” The trial court’s attempted “resentencing” of appellee was the only issue addressed in the motion. Under these circumstances, we consider appellee’s motion to be in the nature of a “motion to set aside void sentence.” It is not a true “motion for new trial” and we decline to treat it as such.

Nor did the trial court grant “a new trial ... as to punishment.” The effect of the court’s order was to set aside a void sentence and reinstate a valid, proper one.

We overrule point of error two.

The court’s motion for new trial order stated that “the judgment and sentence entered in this cause [is] modified to read that defendant was assessed a punishment of two (2) years.” However, as the State points out on rehearing, the judgment “still reflects a finding of true as to the allegations in the two enhancement paragraphs. An assessment of two years confinement is impossible in such a situation. See Tex.Penal Code Ann. § 12.42(d) (Vernon Supp.1993).”

In keeping with our opinion that the correct sentence to be served here is a sentence of two years, we reform the judgment as follows:

(1) We delete the word “True” in the “Enhancement Paragraph(s)” section of the judgment, because no valid finding of “true” was made.

(2) We change the words “25 year [sic] TDC” in the “Punishment and Place of Confinement” section of the judgment to the words “2 years TDCJ-ID.”

As reformed, we affirm the judgment of the trial court.

1 . The two enhancement paragraphs alleged previous convictions for the felony offense of credit card abuse and the felony offense of unauthorized use of a motor vehicle.

2 . The judge who ruled on appellee's "motion for new trial” was not the same judge who sentenced appellee.

3 . A defendant accepts his sentence when he gives no notice of appeal in response to it. Romero v. State, 712 S.W.2d 636, 638 (Tex.App.—Beaumont 1986, no pet.).