Opinion
No. 05-03-00210-CR.
Opinion Filed February 2, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 380th Judicial District Court, Collin County, Texas, Trial Court Cause No. 380-80646-01.
Before Chief Justice THOMAS and Justices JAMES and FITZGERALD.
SUPPLEMENTAL OPINION ON REHEARING
On December 3, 2003, this Court issued its opinion in this case. We concluded the trial court had imposed an unauthorized sentence, and we reversed the trial court's judgment and remanded the case for a new punishment hearing. The State has filed a motion for rehearing, arguing that Cranford invited the trial court's sentencing error and urging us to affirm Cranford's conviction on that ground. In this supplemental opinion, we address the State's invited error argument. However, our analysis of that argument does not cause us to change our original judgment in any way. Accordingly, we deny the State's motion for rehearing. The State's argument points to Cranford's testimony and his counsel's argument at the punishment phase of the trial. In both instances, specific references were made concerning Cranford's receiving help with his addiction problem. As a result, the State argues, Cranford should be estopped to "profit" from the trial court's erroneous sentence, which included assignment to Substance Abuse Felony Program ("SAFP") to help Cranford with that addiction problem. Our review of the record does not support the State's estoppel argument. At the punishment hearing, Cranford asked for "drug rehab or something." The following exchange then took place:
THE COURT: Well, you know, they do have help for you in the penitentiary.
THE WITNESS: Sir, I've been there twice. I know what it's about. They don't give you no help down there at all, sir. I mean, I swear to God they don't.
THE COURT: Can I send him to the penitentiary and to SAFP.
[THE DISTRICT ATTORNEY]: Apparently you can, Your Honor. I didn't think that was possible, but some of the prosecutors in the office were discussing that very issue. And I can check to get you a real answer. But if you wanted to do that and we needed to amend, I can check on it for you.The trial court then proceeded to explain SAFP, telling Cranford "it's as good a course as you can get." There is nothing further in the record concerning the results of the district attorney's research and "real answer" to the question; we only know the proposed penitentiary-plus-SAFP sentence was imposed. Thus, the record establishes that the trial judge was the first person to mention SAFP and the combined sentence, not Cranford or his counsel. Moreover, the district attorney gave at least a tentative approval to that sentence. We disagree with the State that Cranford invited the erroneous sentence in this case, and we will not estop him from complaining of that error on appeal. That being said, we stress again that remand, rather than rendition, is appropriate in this case. It is apparent the trial court sought to fashion a sentence that served Cranford's particular needs, and we commend that effort. By remanding, we not only comply with the dictates of the law, we also afford the trial court another opportunity to fashion the sentence the court believes is in Cranford's best interest. served Cranford's particular needs, and we commend that effort. By remanding, we not only comply with the dictates of the law, we also afford the trial court another opportunity to fashion the sentence the court believes is in Cranford's best interest.
The State did raise this defensive theory in its original brief.
See, e.g., King v. State, 710 S.W.2d 110, 114 (Tex.App.-Houston [14th Dist.] 1986, pet ref'd) (remand appropriate when unauthorized punishment imposed by trial court).
See, e.g., King v. State, 710 S.W.2d 110, 114 (Tex.App.-Houston [14th Dist.] 1986, pet ref'd) (remand appropriate when unauthorized punishment imposed by trial court).