Opinion
No. 01-99-00858-CR.
Opinion issued April 20, 2000.
On Appeal from the 232nd District Court, Harris County, Texas, Trial Court Cause No. 781,937.
Charles W. Kennedy and Timothy J. Cariker, for Appellant.
Julie Klibert and John B. Holmes for Appellee.
Panel consists of Justices MIRABAL, WILSON, and NUCHIA.
OPINION
Appellant, Eric Michael Locascio, pled guilty to the offense of driving while intoxicated (DWI). The trial court found appellant guilty and, in accordance with the plea agreement, assessed punishment at confinement for three years, but suspended the sentence of confinement and placed appellant on community supervision. Subsequently, the State filed a motion to revoke appellant's community supervision, and appellant stipulated to the truth of the allegations in the State's motion. After the trial court found the allegations "true," it revoked appellant's community supervision and sentenced him to confinement for five years.
Because of appellant's prior DWI convictions, this DWI offense is considered a third degree felony. See Tex. Penal Code Ann. § 49.09(b) (Vernon Supp. 2000). The punishment range for a third degree felony is confinement for at least two years but not more than ten years, and a possible fine not to exceed $10,000. Tex. Penal Code Ann. § 12.34 (Vernon 1994).
Appellant asserts the trial court erred in increasing appellant's term of confinement from three to five years, and as a result, this Court should remand the cause for a new hearing on sentencing.
The State concedes the trial court was without the authority to assess punishment of confinement in an amount greater than that which was originally assessed; however, the State contends the appropriate remedy is for this Court to reform the judgment.
We agree that the trial court was without the authority to sentence appellant to confinement for five years when he was originally sentenced only to three years confinement. See Tex. Code Crim. P. Ann. art. 42.12, § 23(a) (Vernon Supp. 2000); Ex parte Balderas, 804 S.W.2d 261, 263-4 (Tex.App.-Houston [1st Dist.] 1991, orig. proceeding).
The only issue concerns the appropriate remedy for the trial court's imposition of a sentence greater than the sentence originally given. Under Rule 43.2(b), this Court has the authority to reform or modify the judgment of the trial court and affirm the judgment as modified. See Tex.R.App.P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27 (Tex.Crim.App. 1993) (holding that Rule 80, now Rule 43.2, gives courts of appeals the authority to reform judgments). Reformation of the judgment is appropriate when the appellate court has before it the necessary data and evidence supporting a modification. Banks v. State, 708 S.W.2d 460, 462 (Tex.Crim.App. 1986); Tamez v. State, 620 S.W.2d 586, 590 (Tex.Crim.App. 1981).
In the present case, the record on appeal is clear and supports reformation of the judgment. Appellant was given community supervision for his third offense of DWI, and within two months of being placed on community supervision, appellant was charged with possession of cocaine. At the hearing on the State's motion to revoke, the trial judge heard evidence that appellant failed to go to drug and alcohol counseling, failed to complete the required number of community service hours, and tested positive for cocaine. Before sentencing appellant, the trial judge said, "You've had one chance after another and you've just done nothing but blow those chances and eventually the line has been crossed and you just don't get anymore chances. . . ." The trial court's order revoking community supervision sets out that the original punishment was "3 yrs, TDC probated 3 yrs," and states that the new punishment imposed is "5 yrs TDC," clearly reflecting that the trial judge intended to impose a sentence of confinement of two years over the original three years.
We note that, in Flores v. State, this Court reformed the judgment to reflect conviction for a lesser included offense rather than the offense recited in the judgment. 888 S.W.2d 187, 193 (Tex.App.-Houston [1st Dist.] 1994, pet. ref'd). However, this Court remanded the cause for a new punishment hearing because it could not be certain the trial court would assess the same punishment for a different conviction. Id. The present case is distinguishable from Flores because the original conviction for DWI remains the same, and the record is clear that the trial court would not have sentenced appellant to less than three years confinement.
In appellant's brief, he contends the trial court failed to consider mitigating evidence or a shorter sentence, and, as a result, the appropriate remedy is for this court to remand the cause for a new punishment hearing. See Stevens v. State, 900 S.W.2d 348, 350 (Tex.App.-Texarkana 1995, pet. ref'd). In contrast to Stevens, in which there was significant mitigating evidence not considered by the trial court, here, the only mitigating evidence is the testimony of appellant, his mother, and his stepfather stating appellant had finally learned his lesson. There is nothing to indicate the trial judge ignored or failed to consider this evidence.
Based on the record, we conclude that the trial court did not intend to assess punishment at less than three years confinement. Accordingly, we modify the judgment to assess punishment at three years confinement, and, as modified, we affirm the judgment.
Justice Wilson dissenting.
The panel in this case agrees that the defendant was not lawfully sentenced by the trial court. The majority now sentences him to three years confinement, stating that it has the necessary data and authority to reform the illegal sentence. Because I believe the majority has incorrectly interpreted or broadened the mandate of the cases and rule it cites, I respectfully dissent. I would reverse and remand the case for a new punishment hearing.
As authority, the majority cites Banks v. State, 708 S.W.2d 460, 462 (Tex.Crim.App. 1986), and Tamez v. State, 620 S.W.2d 586, 590 (Tex.Crim.App. 1981).
In Banks, the trial court orally pronounced sentences that "stacked" defendant's punishments for multiple crimes. Because the written judgment lacked the specificity required for "stacking," the court of appeals reversed. The Texas Court of Criminal Appeals then reversed the appellate court, saying the written sentence could be reformed to indicate the detailed oral pronouncement of the trial court. The appellate court had a lawful sentence by the trial court and conformed an incorrect written judgment to it.
In Tamez, the trial court originally imposed a legal sentence, but then attempted to impose "shock probation" illegally. Again, the Court of Criminal Appeals permitted the reformation of an illegal judgment to reflect the legal sentence originally imposed. Neither case helps us because the type of information before the Banks and Tamez courts was not as subjective in nature as is the information facing the court here.
I find the cases of no help in resolving the case before us. Here, the majority determines from the record that it was the trial court's intention to "max" the defendant, and now "reforms" the judgment to carry out that desire. When the majority reforms the judgment in this case, it does not base its decision on any lawful order or judgment that exists in the record. The majority reads the record and imposes a sentence it believes the trial court would have imposed, if the court had acted lawfully. Because I find no case that permits an appellate court to reform a judgment in such a way as to become the sentencing court itself, I dissent.
I do not disagree with this assessment of the evidence.