Monroe v. State

Full title: LEAH D. MONROE, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, First District, Houston

Date published: Feb 5, 2009

No. 01-07-00474-CR (Tex. App. Feb. 5, 2009)

Opinion

No. 01-07-00474-CR

Opinion issued February 5, 2009. DO NOT PUBLISH. Tex. R. App. P. 47.2(b)

On Appeal from the 228th District Court, Harris County, Texas, Trial Court Cause No. 1067883.

Panel consists of Justices TAFT, KEYES, and ALCALA.

MEMORANDUM OPINION ON MOTION FOR REHEARING ¹

1 The State has filed a motion to modify our opinion in Monroe v. State, No. 01-07-00474-CR, 2008 WL 4965308 (Tex.App.-Houston [1st Dist.] Nov. 20, 2008, no pet. h.) (mem. op). We construe the State's motion to be a motion for rehearing. See Tex. R. App. P. 49.

EVELYN V. KEYES, Justice.

Appellant, Leah D. Monroe, pleaded guilty to possession with intent to deliver cocaine weighing more than 400 grams in violation of sections 481.112(a), (f) and 481.102(3)(D) of the Texas Health and Safety Code.² The trial court assessed punishment at 15 years in prison. In a sole point of error, appellant argued to this Court that the trial court "erred in assuming the existence of an unproved extraneous factor in determining the sentence." On November 20, 2008, we issued an opinion overruling appellant's sole point of error and affirming the trial court's judgment. The State has filed a motion to modify our opinion, pointing out that the failure of the trial court to assess a fine in its judgment of punishment renders the judgment void. We grant the State's motion for rehearing, withdraw our November 20, 2008 opinion, and issue this opinion in its stead. We reverse the judgment as to punishment and remand for a new punishment hearing.

2 See Tex. Health Safety Code Ann. §§ 481.112(a), (f), 481.102(3)(D) (Vernon 2003).

Sentencing Error Under Texas Health and Safety Code

A conviction under Texas Health and Safety Code section 481.112(f) requires imprisonment and a fine not to exceed $250,000. Tex. Health Safety Code Ann. § 481.112(f) (Vernon 2005). The State points out that the sentence did not include a fine as mandated by the statute, and it requests that, in the interest of justice, we modify our opinion. The State also notes that appellant has made no mention of this omission in her brief. "A sentence outside the statutory limits is void," and this Court lacks authority to reform the sentence by adding punishment. Ibarra v. State, 177 S.W.3d 282, 284 (Tex.App.-Houston [1st Dist.] 2005, no pet.) (citing Ex parte Sims, 868 S.W.2d 803, 804 (Tex.Crim.App. 1993)); Reed v. State, 795 S.W.2d 19, 20 (Tex.App.-Houston [1st Dist.] 1990, no pet.). An appellant does not have to raise this sentencing error as a point of error for a judgment assessing punishment to be void. Reed, 795 S.W.2d at 20. In Reed, the State brought up the omission of a fine, and the appellant failed to respond, as is the case here. Id. If the sentence is void, appellant must receive a new punishment hearing. See Ibarra, 177 S.W.3d at 284; Tex. Code Crim. Proc. Ann. art. 44.29(b) (Vernon Supp. 2008). Therefore, we must remand to the trial court for a new punishment hearing. See Ibarra, 177 S.W.3d at 284.

Conclusion

We grant the State's motion for rehearing, reverse the portion of the judgment assessing punishment, and remand for a new punishment hearing.