McCray v. State ( 1994 )

BURGESS, Justice,

concurring and dissenting.

I concur with the majority in point of error one. I dissent to the result in point of error two. The majority relies upon Bigley v. State, 865 S.W.2d 26 (Tex.Crim.App.1993), and Banks v. State, 708 S.W.2d 460 (Tex.Crim.App.1986), as authority for their reformation. The majority acknowledges that Banks, at 462, states: “When this Court has the necessary data and evidence before it for reformation, the judgment and sentence may be reformed on appeal.” The majority then finds they have the necessary evidence to reflect the intent of the trial court. I disagree. It certainly follows that if the trial court assessed what was believed to be the m'aximum punishment — twenty years — then the trial court would also assess the correct maximum punishment — ten years — upon a remand. However, there is no evidence that the trial judge would make the lighter ten year sentence run concurrently with the murder conviction. The trial judge could order this sentence to run consecutively with the murder conviction. I would allow the trial judge this option. Therefore, instead of reforming, I would remand back to the trial court for resentencing.