DocketNumber： PD-1482-05
Filed Date： 10/31/2007
Status： Precedential
Modified Date： 9/15/2015
v.
THE STATE OF TEXAS
ON STATE'S PETITION FOR DISCRETIONARY REVIEW
FROM THE ELEVENTH COURT OF APPEALS
TAYLOR COUNTY
Meyers, J., filed a dissenting opinion, in which Holcomb, J., joined.
O P I N I O N
The majority opinion analyzes the State's ground for review, which asked whether the Double Jeopardy Clause would be violated by remanding the case to the trial court for a new hearing on sentencing and holds it would not. However, the issue of Double Jeopardy simply does not arise in this case. Although the court of appeals's discussion of Double Jeopardy was dicta and had no effect on its final decision, the State based its petition for discretionary review on the court's Double Jeopardy analysis. The Double Jeopardy issue is not raised by the facts of this case, therefore, the State is asking for an advisory opinion that has no relevance to this specific case. If we address the merits of this case, we should address only the underlying issue, which is the issue decided by the court of appeals-whether punishment within a non-enhanced range is a legal sentence even though it was based on an erroneous legal ruling by the trial court.
A sentence cannot be enhanced unless the prior convictions are alleged and found true by the assessor of punishment. The majority states that "the record does show that the trial court believed the enhancement allegations were true." However, the court did not make a finding of "true" or "untrue" with regard to the enhancement paragraphs. The indictment contained enhancement paragraphs alleging two prior felony convictions for theft of a motor vehicle. The State sought enhancement of Appellee's sentence in accordance with Texas Penal Code section 12.42(d). At the sentencing hearing, the court noted recent legislative changes to the definitions of felony theft, and requested that the parties brief the issue of whether the two prior convictions could be considered for felony enhancement purposes. The court rescheduled Appellee's sentencing hearing to give the parties time to submit briefs. At the second hearing the court stated, "It is my belief that the law is, with the intent of the legislature, that these lesser included offenses should not be used to enhance the minimum sentence to 25 years. . . ." The court subsequently imposed a sentence of seven years in the Texas Department of Criminal Justice-Institutional Division, a punishment within the statutory range for a second-degree felony without enhancements. The court was incorrect that Appellee's prior convictions could not be considered for enhancement.
The court of appeals relied on our opinion in Harris, 153 S.W.3d at 396, to correctly determine that without findings of "true" on the prior convictions, the 7-year sentence was legal, and the State is not entitled to a remedy in this case. However, the court of appeals proceeded to explain in dicta that under Harris, any re-sentencing of Appellee would violate his constitutional right against Double Jeopardy. Much of the Harris opinion is specific to cases in which the trial judge recalls and re-sentences a defendant who has already started serving a legal sentence. This case does not present that issue. In this case, the trial judge sentenced Appellee only one time. There is an important distinction between a judge recalling and re-sentencing a defendant who has already started serving a legal sentence and a sentence being attacked on appeal. Because the trial judge never attempted to increase Appellee's sentence, the Double Jeopardy analysis from Harris does not apply to this case, and we should not address the Double Jeopardy issue. The majority doesn't even consider the legality of this sentence and doesn't consider the State's only authority to appeal, which, under 44.01(b), is if the State appeals the sentence on the ground that the sentence is illegal.
I would affirm the decision of the court of appeals, which held that Appellee's seven-year sentence was valid at the time it was given because it is within the statutory range for a conviction of aggravated assault with a deadly weapon, without enhancements. And, because Appellee was not re-sentenced by the trial judge, as in Harris, we need not address the Double Jeopardy issue. Therefore, I respectfully dissent.
Meyers, J.
Filed: October 31, 2007
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