Opinion
No. 05-03-01263-CR.
Opinion issued February 19, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the County Court at Law No. 3, Collin County, Texas, Trial Court Cause No. 003-81320-02. Reversed and Remanded.
OPINION
The issue presented in this State's appeal is whether a fine-only sentence for a Class B misdemeanor driving while intoxicated (DWI) offense is illegal because it was below the statutory minimum term of 72 hours confinement. Concluding that it is an illegal sentence, we reverse the judgment of the trial court and, pursuant to article 44.29(b) of the Texas Code of Criminal Procedure, we remand this case to the trial court for further proceedings related to punishment. Tex. Code Crim. Proc. Ann. art. 44.29(b) (Vernon Supp. 2004). Appellee David Dewayne Turner was charged with the Class B misdemeanor offense of DWI. Upon his plea of not guilty, a jury found him guilty. Over the State's objection, the trial court instructed the jury in its punishment charge that the range of punishment was "a fine not to exceed $2,000; or confinement between 72 hours and 180 days; or both a fine and confinement within the stated ranges." The jury assessed only a $200 fine and no term of confinement; the trial court imposed sentence on the jury's verdict. The State appealed asserting the sentence is illegal. See Tex. Code Crim. Proc. Ann. art. 44.01(b) (Vernon Supp. 2004) ("The state is entitled to appeal a sentence in a case on the ground that the sentence is illegal."); Mizell v. State, 119 S.W.3d 804, 806 (Tex.Crim.App. 2003). Appellee has filed no brief. Resolution of the issue before us implicates the interaction of two sections of the penal code: section 12.22, the general punishment statute for Class B misdemeanors; and section 49.04(b), a specific statute relating to punishment for certain DWI offenses. See Tex. Pen. Code Ann. §§ 12.22, 49.04 (Vernon 2003). The general statute provides a punishment range for a Class B misdemeanor of a fine not greater than $2,000, or confinement for up to 180 days, or both such fine and confinement. Id. § 12.22. The specific DWI statute provides for a minimum term of confinement of seventy-two hours. Id. § 49.04(b). The trial court conflated the two provisions, imposing the 72-hour minimum term only on the confinement prong of the punishment provisions of the general statute but otherwise leaving the "or" provision of that statute intact, thereby instructing the jury it could impose a fine only, which the jury did. In a well-reasoned opinion, this identical issue was addressed by the First District Court of Appeals in Houston in State v. Magee, 29 S.W.3d 639, 640 (Tex.App.-Houston [1st Dist.] 2000, pet. ref'd). Because we agree with the analysis in Magee, we conclude, as did the Houston, First Court, that the specific statute prevails and the trial court was, therefore, required to sentence appellee to a minimum of seventy-two hours confinement in jail for the Class B misdemeanor offense of DWI. Consequently, we sustain the State's sole point of error. We reverse the judgment of the trial court and, pursuant to article 44.29(a) of the Texas Code of Criminal Procedure, we remand this case to the trial court for further proceedings related to punishment.