ISAAC ALEXANDER CHAVEZ v. THE STATE OF TEXAS (2011)

OPINION

Opinion By Justice Richter

Isaac Alexander Chavez appeals the trial court's four separate judgments against him.   With respect to cause no.   05–10–01203–CR, appellant challenges the trial court's judgment because the sentence fails to include a statutorily required fine.   Appellant also complains that all four judgments should be modified to reflect the correct name of the State's attorney.   We affirm the trial court's judgments in cause nos.   05–01200–CR, 05–01201–CR, and 05–10–01202–CR, as modified.   We affirm the trial court's judgment in cause no.   05–10–01203–CR as to guilt, as modified, and reverse and remand for a new punishment hearing.

Background

On May 12, 2009, Appellant was charged by indictment with the offenses of injury to a child (cause no.   05–10–01200–CR) and assault, enhanced (cause no.   05–10–01201–CR).  Both cases were tried together.   Appellant waived a jury, executed a judicial confession, and entered negotiated pleas of guilty to both charges.   In accordance with the plea agreement, appellant was placed on deferred adjudication for five years and assessed a $750 fine.   On March 1, 2010 the State moved to adjudicate appellant's guilt, alleging he had violated the terms of his probation.   On May 14, 2010, appellant was charged by indictment with the offense of unlawful possession of a firearm by a felon (cause no.   05–10–01202–CR).  On June 23, 2010, appellant was charged by indictment with unlawful possession of 400 grams or more of a controlled substance, specifically codeine (cause no.   05–10–01203–CR).

The adjudications of guilt in cause nos.   05–10–01200–CR and 05–10–01201–CR, and the trials for cause nos.   05–10–01202–CR and 05–10–01203–CR were handled together on September 1, 2010.   Appellant pleaded true to the allegations of the State's motion to adjudicate.   The trial court found the allegations true, adjudicated appellant's guilt, and sentenced him to ten years confinement for each case.   Appellant also pleaded guilty and executed a judicial confession to the charges of unlawful possession of a firearm and unlawful possession of 400 grams or more of a controlled substance.   After a hearing on punishment, the trial court sentenced appellant to ten years of confinement on each charge.

Void Judgment

In his first issue on appeal, appellant argues that because his sentence in cause no.   05–10–01203–CR did not contain a mandatory fine in addition to incarceration, the punishment assessed was not authorized by law and is void.   Appellant was convicted pursuant to section 481.118(3) of the health and safety code of the offense of unlawful possession of 400 grams or more of a controlled substance.  Section 481.118(e) states:

[a]n offense under Subsection (a) is punishable by imprisonment in the Texas Department of Criminal Justice for life or for a term of not more than 99 years or less than 5 years, and a fine not to exceed $50,000, if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, 400 grams or more.

Tex. Health & Safety Code § 481.118(e) (West 2010).

The State agrees that the trial court's judgment is void because the sentence imposed failed to include the statutorily required fine.   The State suggests the finding of guilt should be upheld and the case remanded for a rehearing on the issue of punishment.

Punishment assessed under section 481.118(e) must include assessment of a fine in addition to the term of confinement.  Id. Here, the trial court assessed punishment at confinement for ten years, but did not assess a fine.   Because appellant's sentence does not contain a fine in addition to the period of incarceration, that portion of the sentence imposing the punishment is void.   See Ibarra v. State, 177 S.W.3d 282, 284 (Tex.App.—Houston [1st Dist.] 2005, no pet.);   see also Barton v. State, 962 S.W.2d 132, 139 (Tex.App.—Beaumont 1997 (pet.ref'd).  This Court does not have the authority to reform a judgment by adding a fine.   See Reed v. State, 795 S.W.2d 19, 21 (Tex.App.—Houston [1st Dist.] 1990, no writ).   Our remedy is to remand to the trial court for a new punishment hearing.   See Tex.Code Crim. Proc. Ann. art. 44.29(b) (West Supp.2010);  see also Ex parte Rich, 194 S.W.3d 508, 514 (Tex.Crim.App.2006) (“In cases in which a defendant enters a plea of guilty or nolo contendere without the benefit of a plea bargain and the trial judge assesses a punishment not authorized by law, the appropriate remedy is to allow the finding of guilt to remain and to remand the case for a new punishment hearing.”).   We sustain appellant's first issue.

Modify Judgments

In issues two through five, appellant contends all four of the trial court's written judgments are incorrect and should be modified to correct the name of the State's attorney in each case.   The State agrees that appellant is correct in his claim that the judgments incorrectly reflect the name of the State's attorney.

According to the record, the State was represented by Danielle Uher at the September 1, 2010 hearing on adjudication in cause nos.   05–10–01200–CR and 05–10–01201–CR, and trial in cause nos.   05–10–01202–CR and 05–10–01202–CR.   However, the trial court's judgments incorrectly reflect the State's attorney as Patrice Williams.   Thus the written judgments are incorrect.   We sustain appellant's second, third, fourth and fifth issues, and modify the trial court's judgments in cause nos.   05–10–01200–CR, 05–10–01201–CR, 05–10–01202–CR, and 05–10–01203–CR to reflect that Danielle Uher was the attorney for the State.   See Tex. R.App. P. 43.2(b);  B igley v. State, 865 S.W.2d 26, 27–28 (Tex.Crim.App.1993);  Abron v. State, 997 S.W.2d 281, 282 (Tex.App.—Dallas 1998, pet. ref'd).

Conclusion

We affirm the trial court's judgments in cause nos.   05–10–01200–CR, 05–10–01201–CR, and 05–10–01202–CR, as modified.   We affirm the trial court's judgment in cause no.   05–10–01203–CR with respect to guilt, as modified, and reverse and remand for a new hearing as to punishment.

MARTIN RICHTER JUSTICE