Machado v. State

Full title: ALBERTO MACHADO, Appellant, v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Dec 13, 2005

No. 05-03-00439-CR (Tex. App. Dec. 13, 2005)

Opinion

No. 05-03-00439-CR

Opinion issued December 13, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the 363rd District Court, Dallas County, Texas, Trial Court Cause No. F02-50563-NW. Affirmed in part, Reversed and Remanded in part.

Before Justices FITZGERALD, LANG-MIERS, and MAZZANT.

OPINION

Opinion By Justice MAZZANT.

Alberto Machado appeals his conviction for unlawful possession of 400 grams or more of methamphetamine. In one point of error, he argues that the jury's failure to assess a fine under section 481.115(f) of the Texas Health and Safety Code renders the sentence void and constitutes reversible error. We affirm the trial court's judgment with respect to guilt and remand for a new punishment hearing.

Background

Appellant pled guilty to the unlawful possession of 400 grams or more of methamphetamine and elected to have a jury assess punishment. It returned with a sentence of 45 years. The jury did not assess a fine and the judgment does not include one. The verdict form provided a blank for the number of years assessed and another blank for the fine. The words "none or amount" appear in parentheses underneath the blank provided for the assessment of a fine. The jury wrote the word "none" in the space provided. Appellate counsel subsequently filed a motion to withdraw and submitted an Anders brief concluding that the record showed no reversible error. Anders v. California, 386 U.S. 768 (1967). Appellant filed a pro se brief raising four points of error. This Court concluded that only appellant's fourth argument-the basis for this appeal-was an arguable issue for appeal. We granted appellate counsel's motion to withdraw, abated the appeal, and remanded the case to the trial court with instructions to appoint new appellate counsel. Machado v. State, No. 05-03-00439-CR (Tex.App.-Dallas December 13, 2004) (not designated for publication).

Discussion

In his only point of error, appellant claims that the jury's failure to impose a fine renders his sentence void. He argues that article 481.115(f) of the Texas Health and Safety Code, the provision under which the jury sentenced him, requires the jury impose a fine. Article 481.115(f) reads as follows:

An offense under Subsection (a) is punishable by imprisonment in the institutional division of the Texas Department of Criminal Justice for life or for a term of not more than 99 years or less than 10 years, and a fine not to exceed $100,000, if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, 400 grams or more.

Tex. Health Safety Code Ann. § 481.115(f) (Vernon 2003) (emphasis added). To support his argument, appellant cites an unpublished opinion from this Court as well as published cases from the Beaumont and Houston First District courts of appeals. See Torres v. State, No. 05-96-00457-CR (Tex.App.-Dallas Feb. 26, 1999, no pet.) (not designated for publication) (remanding for new punishment hearing because the trial court did not impose a fine under 481.112 of the Health and Safety Code); Barton v. State, 962 S.W.2d 132, 139 (Tex.App.-Beaumont 1996, pet. ref'd) (concluding that under section 481.115(f), sentence should have included a fine in addition to the period of incarceration); Young v. State, 922 S.W.2d 676, 678 (Tex.App.-Beaumont 1996, pet. ref'd) (remanding for a new punishment hearing because jury failed to impose fine under section 481.121 of Health and Safety Code); Reed v. State, 795 S.W.2d 19, 20 (Tex.App.-Houston [1^st Dist.] 1990, no pet.) (remanding for new punishment hearing because jury failed to impose fine under section 481.112). Appellant argues that these authorities compel us to remand this case for a new punishment hearing because 481.115(f) and other similarly worded statutes require the imposition of a fine in addition to a period of incarceration. See Barton, 962 S.W.2d at 139; Young, 922 S.W.2d at 678; Reed, 795 S.W.2d at 20. We agree. The State maintains that a better reading of section 481.115(f) would be that it merely instructs the factfinder to consider a fine not to exceed a prescribed amount, and that it does not prevent the factfinder from assessing a fine of zero dollars.¹ The State, however, does not cite any persuasive legal authority² to support this interpretation of section 481.115(f), and we can find no authorities which suggest 481.115(f) or any other statutes with similar wording do not require the imposition of a fine in addition to the period of incarceration. Because appellant's sentence does not contain a fine in addition to the prison sentence, the punishment is not authorized by law. See Barton, 962 S.W.2d at 139; Young, 922 S.W.2d at 678; Reed, 795 S.W.2d at 20. Appellant's sentence is therefore void. See Heath v. State, 817 S.W.2d 335, 339 (Tex.Crim.App. 1991) (sentences not authorized by law are void). When a sentence is void, as it is here, the reviewing court must remand for a new punishment hearing because appellate courts do not have the authority to reform a judgment by adding a fine. Tex. Code Crim. Proc. Ann. art. 44.29(b); Reed, 795 S.W.2d at 21. We therefore affirm the trial court's judgment with respect to guilt and remand for a new punishment hearing.