Opinion
No. 24800.
April 12, 1950. For Opinion on Rehearing see 230 S.W.2d 236.
Appeal from the Court of Criminal Appeals, Woodley, J.
None on appeal for appellant.
George P. Blackburn, State's Atty., of Austin, for the State.
Relator is confined in the penitentiaries of Texas under a conviction in Cause No. 5338 in the District Court of Stephens County, Texas, the sentence being for 'embezzlement' and for a term of not less than two years nor more than five years.
Relator relies upon the decisions of this court in Ex parte East, 225 S.W.2d 833, and cases therein cited as supporting his contention that the judgment is void for uncertainty as to punishment, and he seeks release from further confinement under such conviction.
Upon its face, the judgment upon which relator's sentence is predicated shows that upon a plea of guilty, the punishment of relator was assessed by the court at 'not less than two nor more than five years.'
It was shown in Ex parte East that the judgment entered showing the punishment to have been assessed at 'not less than five years, nor more than his natural life,' was the judgment actually pronounced and rendered by the trial, a jury being waived.
In the trial of an accused for a felony for which the punishment is not absolutely fixed by law, in the event of their finding the defendant guilty, the jury must assess the punishment. See Art. 693, C.C.P.
Such punishment to be stated in the verdict must be definite and certain. See Jones v. State, 101 Tex.Crim. R., 274 S.W. 566.
The judgment rendered by the court is required to be entered of record. It must show the verdict and adjudge that the defendant be punished as has been determined by the jury. See Art. 766, C.C.P.
Art. 10a, Vernon's Ann.C.C.P., provides for the waiver of a jury by the defendant in felony cases less than capital, upon entry of a plea of guilty.
This article empowers the court in such cases to assess the punishment on a plea of guilty. Bolton v. State, 123 Tex.Crim. 543, 59 S.W.2d 833.
The court may assess the punishment by an order or a 'verdict,' or he may do so in the judgment rendered by him.
In the event that the punishment is assessed in the judgment, the judgment partakes of the nature of, and performs the functions of, a verdict. See Ex parte Traxler, 147 Tex.Crim. 661, 184 S.W.2d 286.
A sentence is the order of the court in a felony case required to be made and entered, ordering the judgment to be carried into execution. See Art. 767, C.C.P.
Art. 775, Vernon's Ann.C.C.P., provides that where the punishment is assessed at confinement in the penitentiary for more than the minimum, the judge shall pronounce an indeterminate sentence fixing in such sentence as the minimum, the time provided by law as the lowest term in the penitentiary for the offense, and as the maximum, the term stated in the verdict.
In the absence of a definite term being assessed by the court or jury, there is no basis for a valid sentence under this article.
In Ex parte East, Tex.Cr.App., 225 S.W.2d 833, and the cases there cited, as well as other later cases, the judgment was held void for want of a definite punishment having been in fact assessed.
But if in fact, a definite punishment was assessed and the entry of a judgment showing otherwise was by a clerical error, the judgment may be corrected by the court which rendered it under its inherent powers, so as to make the record speak the truth, by nunc pro tunc entry of the judgment as same was actually rendered in the case when tried. See Ex parte Patterson, 139 Tex.Crim. R., 141 S.W.2d 319; Ex parte Mattox, 137 Tex.Crim. R., 129 S.W.2d 641.
And upon appeal, a judgment may be reformed to conform to the verdict. See Jones v. State, supra.
In addition to the matter of punishment, it is noted that the offense is described in the judgment and sentence as 'embezzlement,' without showing the offense to be a felony.
Relator is not entitled to be discharged, but he is ordered relieved from present confinement in the penitentiary and delivered by the penitentiary authorities to the custody of the Sheriff of Stephens County, Texas, to abide the further orders of the District Court of Stephens County, in Cause No. 5338, on the Criminal Docket of said court:
Unless upon a hearing in said court it be shown that the entry of the judgment was by clerical error, and such error be corrected in the manner provided by law by the entry nunc pro tunc of the judgment actually rendered showing a definite punishment to have been actually assessed at the time of the trial, relator shall be held to answer the charge in the indictment as though a new trial had been granted.
But should it be shown that on the original trial, relator was adjudged to be guilty of felony embezzlement and his punishment was assessed at a definite term, and a correct judgment be entered now for then, relator's sentence may likewise be reformed to follow such judgment. The sentence may not be otherwise altered except to make it speak the truth as to the sentence heretofore pronounced, but may be by the court credited with the time relator has been confined on such charge. Relator shall have his right of appeal from such judgment and sentence so corrected by nunc pro tunc entry.
Opinion approved by the Court.