Opinion
No. 10-05-00125-CR
Opinion delivered and filed December 14, 2005. DO NOT PUBLISH.
Appeal from the 54th District Court, McLennan County, Texas, Trial Court No. 2004-944-C. Modified and affirmed.
Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA (Chief Justice GRAY concurring)
MEMORANDUM OPINION
A jury convicted Lutrill Amos Payne of murder. At the punishment phase, the jury found that Payne had acted under the immediate influence of sudden passion with adequate cause and assessed his punishment at eighteen years' imprisonment and a $3,500 fine. Payne contends in his sole issue that the judgment is erroneous because it recites that he was convicted of a first degree offense and should be modified to reflect a conviction for a second degree offense in light of the jury's finding on the sudden passion issue. The State agrees with Payne's contention. We will modify the judgment and affirm the judgment as modified. Section 19.02(d) provides that a murder for which the defendant has been convicted "is a felony of the second degree" if the defendant proves by a preponderance of the evidence and the jury so finds that "he caused the death under the immediate influence of sudden passion arising from an adequate cause." TEX. PEN. CODE ANN. § 19.02(d) (Vernon 2003). Article 42.01, § 1(14) of the Code of Criminal Procedure requires the judgment to reflect the "degree of offense for which the defendant was convicted." TEX. CODE CRIM. PROC. ANN. art. 42.01, § 1(14) (Vernon Supp. 2005). The court's judgment must accurately recite any of the matters listed in article 42.01 which apply to the case. See Rachuig v. State, 972 S.W.2d 170, 179 (Tex.App.-Waco 1998, pet. ref'd). It does not appear from the record that Payne presented his complaint to the trial court. Thus, it could be argued that this issue should be overruled because it has not been properly preserved. See TEX. R. APP. P. 33.1(a)(1). However, the preservation requirement is not absolute. See Edwards v. State, 21 S.W.3d 625, 626 n. 1 (Tex.App.-Waco 2000, no pet.). Thus, at least two courts have reviewed complaints similar to Payne's even though the complaints had not been presented to the trial court. See Cobb v. State, 95 S.W.3d 664, 666-67 (Tex.App.-Houston [1st Dist.] 2002, no pet.); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex.App.-Dallas 1991, pet. ref'd). We shall do likewise. Because of the jury's finding on "sudden passion," Payne's conviction is for a second degree felony. The State agrees that the judgment in this case does not accurately recite the degree of the offense of which Payne was convicted. Accordingly, we sustain Payne's sole issue. The pertinent line of the judgment as entered reads as follows:
"DEGREE AND PENAL CODE: 1ST, P.C. 19.02"We modify this line of the judgment to read as follows:
"DEGREE AND PENAL CODE: 2ND, P.C. 19.02(d)"We affirm the judgment as modified. See TEX. R. APP. P. 43.2(b).
CONCURRING OPINION
I concur in this Court's judgment only because the State agrees that we should reform the trial court's judgment. I note, however, that Payne failed to preserve his complaint. See Tex.R.App.P. 33.1(a). The majority's holding that Payne need not have done so is not in accord with the Texas Court of Criminal Appeals's recent cases on the preservation of error. See Mendez v. State, 138 S.W.3d 334, 340-42 (Tex.Crim.App. 2004); Marin v. State, 851 S.W.2d 275 (Tex.Crim.App. 1993). The Court of Criminal Appeals has set out the remedy for error in the judgment. See Ex parte Ybarra, 149 S.W.3d 147, 148-49 (Tex.Crim.App. 2004) (per curiam).