









IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





PD- 1298-03



JONATHAN MERCHANT HARRIS, Appellant


v.


THE STATE OF TEXAS




ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
FROM THE FIFTH COURT OF APPEALS

COLLIN  COUNTY



 Meyers, J., delivered the opinion of the Court, in which Keller, P.J., and
Womack, Johnson, Keasler, Hervey, Holcomb, and Cochran, JJ., join. Price, J., filed
a dissenting opinion.  

O P I N I O N


	Appellant was convicted of possession of more than five pounds but less than 50
pounds of marijuana.  On October 28, 2002, after the punishment phase of the trial, the
trial court sentenced Appellant to ten years in the Texas Department of Criminal Justice
Institutional Division.  The next day, the trial judge recalled Appellant.  He explained that
the State had previously submitted evidence of prior felony convictions for enhancement
purposes, and that he found them to be true.  Thus,  according to Texas Penal Code,
Section 12.42(d), the court was not able to sentence Appellant to any amount of time less
than twenty-five years. (1)  The trial court then re-sentenced Appellant to 25 years in the
TDCJ Institutional Division.  Appellant appealed to the Fifth Court of Appeals, which
affirmed the second sentence of the trial court. Harris v. State, No. 05-02-01761-CR
(Tex. App. Dallas - 2003, pet. granted) (not designated for publication), 2003 Tex. App.
LEXIS 5614.  We will reverse.					
	On appeal, Appellant argued that the trial court lost the power to set aside the
original, valid sentence and re-sentence Appellant to a higher sentence because Appellant
had already accepted the sentence and suffered some punishment as a result.  The State
responded that this issue was not preserved for review because Appellant did not object. 
The court failed to consider this issue, instead, the court of appeals held that the
presumption of regularity that attaches to all judgments was controlling in this case.  
	The court noted that the October 28, 2002, record does not indicate that the trial
court actually found the enhancements to be true.  However, the court also pointed out
that at the October 29, 2002, sentencing, the trial judge said he found them to be true and
the written judgment reflects this finding.  The court concluded that Appellant did not
satisfy his burden to overcome the presumption; in other words, he could not prove that
the 25- year sentence recited in the judgment of the court was false or in error.  In relying
on the presumption of regularity, however, the court of appeals failed to address the true
issue in this case: did the trial court commit constitutional error by re-sentencing
Appellant the day after it imposed the first sentence?  The issue here is not whether or not
the written judgment of the court is false or in error.  Rather, the issue is whether the trial
court even had the lawful authority (2) under federal Double Jeopardy principles to orally
issue the second sentence, which  increased Appellant's sentence by 15 years over the
first sentence, and then enter that second oral pronouncement of sentence into a written
judgment.  
	We granted review in this case to determine the following: "Does the decision of
the court of appeals conflict with the applicable decisions of the courts of appeals, the
Court of Criminal Appeals, and the Supreme Court of the United States?"  We conclude
that the court of appeals erred in failing to address the Double Jeopardy claims of
Appellant. (3) 
	Appellant argues that an increase in punishment after a defendant has commenced
serving his sentence violates a defendant's Double Jeopardy rights.  He also asserts that
after the trial court imposed the first sentence of ten years, the trial court no longer had
the ability to set aside the original sentence and order a new sentence.
	The State counters that when an original sentence is illegal or void, a trial court
acts properly and within its authority in correcting the sentence and assessing a lawful
punishment at a subsequent hearing.  The State argues in the instant case that the original
ten-year sentence was unlawful, because, under Texas Penal Code, Section 12.42(d), it
was mandatory that Appellant be sentenced to between 25 and 99 years as a repeat
offender if the two prior felony enhancements were found true.   The State relies on
Cooper v. State, 527 S.W. 2d 898 (Tex. Crim. App. 1975) in support of this argument.  
	In Cooper, the trial court mistakenly sentenced the defendant to a period of four
years, when the statutory minimum for the crime charged was five; thus the trial court had
the authority to later correct the first statutorily unauthorized sentence.  Id at 898-99. 
These facts are distinguishable from the facts in the instant case.  Here, the facts do not
support the contention that Appellant's sentence was statutorily unauthorized at the time
it was pronounced. (4)  When Appellant was sentenced, the trial court did not specifically
find the enhancements to be true on the record. (5) The court then sentenced Appellant
within the range of punishment for an un-enhanced offense.  The record states only that
the trial judge, at the first sentencing proceeding, said the court had "received evidence of
prior felony - prior convictions," and proceeded to sentence appellant to ten years in the
Texas Department of Criminal Justice. (6) The record thus shows that the trial judge
received the evidence of the prior convictions and considered them, but not that he found
them true. (7)  The trial court erred to then find them true at a second sentencing hearing. (8) 
This second attempt at sentencing violated Appellant's rights under the Double Jeopardy
Clause. (9)  Because the  ten-year sentence was a valid and authorized sentence under the
Texas Penal Code, the trial court's second pronouncement of a 25-year sentence the
following day was an unconstitutional 15-year increase. (10) 
	The trial court's actions in this case were neither a mere correction of an
unauthorized sentence, nor a nunc pro tunc order within the inherent authority of the
court that would permit revision of the written judgment to comply with the oral
pronouncement of sentence.  The first sentence imposed was authorized by law, and the
court's action on the second day was more than correcting a clerical error to make the
judgment comply with the sentence pronounced.  In the instant case, the trial court validly
sentenced appellant one day, and the next day called appellant back and increased his
sentence. (11) 
	Accordingly, we reverse the decision of the court of appeals, and hold that the
original ten-year sentence imposed by the trial court was a legal and authorized sentence. 
Copies of this opinion shall be sent to the Texas Department of Criminal Justice
Institutional Division, so that Applicant's sentence shall be entered in accordance with
our holding.	

							Meyers, J.
 
Delivered: January 12, 2005
Publish	

 





1.  Texas Penal Code § 12.42(d) states: "If it is shown on the trial of a felony offense other
than a state jail felony punishable under Section 12.35(a) that the defendant has previously been
finally convicted of two felony offenses, and the second previous felony conviction is for an
offense that occurred subsequent to the first previous conviction having become final, on
conviction he shall be punished by imprisonment in the institutional division of the Texas
Department of Criminal Justice for life, or for any term of not more than 99 years or less than 25
years."
2. For the sake of clarity, we discuss this issue in terms of the "authority" of the trial court,
due to the fact that the cases presented in this opinion, and cited as precedent by the parties, refer
to the issue in this way.
3. As noted above, the State argued to the court of appeals that Appellant failed to object to
the change in sentencing and thus did not preserve the issue for review.  We disagree.  Although
the court of appeals did not address the preservation issue, it is apparent from the record that
Appellant met the requirements of Texas Rule of Appellate Procedure 33.1(a)(1)(A) and Texas
Rules of Evidence 103(a)(1).  At the second sentencing, the following conversation took place
between the trial judge and Appellant's attorney:
Judge: "I'm sure he will want to appeal this.
Defense Attorney: "Yes, sir."
Judge: "Wouldn't blame him." 	
By recognizing that Appellant would want to appeal, it is clear that the trial judge was aware of
the substance of Appellant's complaint, and implicitly ruled against him by assigning the higher
sentence.  Additionally, rather than allow Appellant's attorney to inform him of the increased
sentence, the trial judge brought Appellant into the courtroom and stated:
	So I am assessing your punishment at 25 years confinement in the Institutional Division. 
The- I wanted to make you aware of that, and also that I believe probably [defense
attorney] will be filing a motion for - or advising the Court of its intent- of your intent to
appeal the decision or decisions in this matter.  So if- well, I wanted to make you aware
of that on the record and in open court.
4. The State also advances the argument that even if the first sentence was statutorily
authorized and thus unable to subsequently be corrected by the trial court, it was within the
plenary power of the trial court to change the sentence so long as the case was within its
jurisdiction.  While this proposition is true, the trial court could use its plenary power to modify
the sentence only as much as the new sentence would remain within the same statutory range of
punishment.  In the instant case, changing the sentence from ten to twenty-five years was outside
the punishment range of the third-degree felony.  It is therefore unnecessary for us to discuss the
plenary power of the court.  
5. The State argues in its brief that a trial judge is not required to make a specific finding of
"true" on the record, citing Garner v. State, 858 S.W. 2d 656 (Tex. App. Fort Worth- 1993, pet.
refused).  In Garner, the court of appeals held that the trial judge did not err in failing to read the
enhancement paragraphs orally to the defendant, or by failing to make an oral finding of true for
the record. Id. at 659.  However, in Garner, there was no attempt by the trial judge to change the
sentence he imposed on the defendant after the sentencing phase of the trial had concluded.  In
the case before us, a determination as to whether the first sentence imposed was actually an
unauthorized sentence depended on the specific findings of this trial court at the sentencing
hearing.  While it may not always be error for a trial court to fail to record specific findings, since
no finding of true by the trial court was made on the record in this case, we can point to nothing
in the record which supports the contention that the original sentence was unauthorized.  
6.  The full statement of the trial judge at the first sentencing hearing is as follows: 
		All right. Mr. Harris, the Court, having found you guilty of the offense of
possession of controlled substance, of possession of marijuana over five
pounds, less than fifty pounds, the Court further having received evidence
of prior felony- - prior convictions, the Court assesses your punishment at
ten years confinement in the Institutional Division of the Texas
Department of Criminal Justice.
7.  The State argues in its brief that the evidence provided for enhancement was un-controverted and overwhelming that Appellant had committed these prior felonies, as his
fingerprints compared to those in TDCJ records were positively matched.  Though this may be
true, the trial court is still not bound to accept the State's evidence and find them true.  See State
v. Dickerson, 864 S.W. 2d 761, 763 (Tex. App. Houston [1st Dist.] - 1993, no pet.). 
8. At the second sentencing, the trial judge responded, "well, they're found to be true," with
regard to the enhancements after defense counsel requested clarification of the statutory
sentencing maximums. While we do not suggest that the trial judge was being dishonest in any
way, it is clear from the record that one of two situations occurred: that the trial judge made a
mistake of omission at the first sentencing which he had no legal authority to correct the next
day, or that he changed his mind about finding the enhancements true, which he also had no legal
authority to do at a second sentencing proceeding. 
9. See Arizona v. Rumsey, 467 U.S. 203, 211 (1984) (a trial court's imposition of a life
sentence, based on its incorrect finding that, as a matter of law, robbery did not amount to an
aggravating circumstance warranting the death penalty, barred the imposition of the greater
sentence of death upon resentencing); Sanabria v. United States, 437 U.S. 54, 64 (1978) (even
mistaken or "egregiously erroneous" legal rulings that lead to a judgment of acquittal raise a
double jeopardy bar to retrial).
10. See Ex Parte Voekel, 517 S.W. 2d 291 (Tex. Crim. App. 1975)(holding any increase in
sentence imposed after the close of the sentencing hearing at which the initial sentence was
imposed was invalid); Tooke v. State, 642 S.W. 2d 514, (Tex. App. Houston [14th Dist] - 1982,
no pet.) (a trial court had no authority to re-sentence defendant by increasing the severity of the
sentence after he had been "formally sentenced," and had accepted such sentence).
11.  See Ex Parte Madding, 70 S.W. 3d 131 (Tex. Crim. App. 2002)(holding that when the
trial court orally ruled in the presence of the defendant that his sentences would be served
concurrently, and then later in a written judgment ordered them to be served consecutively, this
violated the defendant's right to due process of law). In Madding, this Court acknowledged that
the appellant might have had a valid argument against the increase in sentencing under the
double jeopardy clause, because of the rule in federal courts that an increase in sentence after the
defendant has commenced serving his punishment is a violation of his right not to be subject to
double jeopardy. Id. at 134 n.6.  In that case, we declined to base our decision on the issue of
double jeopardy, however, because applicant was entitled to relief on due process grounds.  
