Kimball v. State
Kimball v. State
Opinion of the Court
OPINION
Matthew Shane Kimball appeals from a conviction for burglary of a habitation and an order revoking his community supervision. By two issues, Kimball complains that the trial court erred when it sentenced him to fifteen years imprisonment and contends that he is entitled to a new hearing on punishment. We reform the trial court’s judgment, and affirm as reformed.
On January 11, 2002, Kimball entered a negotiated plea of guilty to an indictment for burglary of a habitation.
THE COURT: The Court, having found Count 1 to be true, the probation received by this defendant on March 18, 2002, is hereby revoked.
The Court finds the defendant guilty of the offense of burglary of a habitation and assesses his punishment at confinement in the penitentiary for a term of 15 years.
The defendant is hereby sentenced to 15 years in the penitentiary. He will be given credit for all previous jail time served.
Kimball did not object during the hearing, nor did he file a motion for new trial or present the issue to the trial court in some other manner. Thus, the issue is presented to this Court as unpreserved error. Complaint and ruling at the trial court level are prerequisites for appellate review. Tex.R.App. P. 33.1. Because this is a “regular probation” case, the appellant’s punishment was assessed and the sentence was pronounced on March 18, 2002. Only the imposition of the sentence of confinement was suspended while Kim-
In his first issue, Kimball argues, and the State concedes, that the trial court erred in pronouncing a fifteen-year sentence after the ten-year sentence had been assessed and pronounced, and its imposition had been duly suspended by a community supervision order. We agree. Once community supervision was revoked, the trial court exceeded its authority by imposing a term of confinement greater than the sentence originally assessed. Weed v. State, 891 S.W.2d 22, 23-24 (Tex.App.-Fort Worth 1995, no pet.). Issue one is sustained.
In his second issue, Kimball contends that the proper disposition of the appeal is to remand to the trial court for a “new ‘sentencing hearing.’” The State concedes this point, as well. That was the holding of Stevens v. State, 900 S.W.2d 348 (Tex.App.-Texarkana 1995, pet. ref'd). In Stevens, the court reformed the judgment by deleting some but not all of the findings regarding violation of the probation order. Id. at 352. The court then found that the trial court’s ruling on the motion to revoke reflected a lack of understanding of its ability to consider mitigating evidence and its power to then impose sentence for either the original or a shorter term at the revocation hearing. The court ruled as follows, “[t]he cause is reversed and remanded for a hearing, after which the court may impose an appropriate sentence.” Id. at 350. On remand, the trial court conducted the entire revocation proceeding anew. Stevens v. State, 951 S.W.2d 802 (Tex.App.-Texarkana 1997, no pet.). On subsequent appeal, the appellate court refused to consider issues relating to revocation because the trial court had exceeded the scope of the remand. Id. at 803.
Stevens is precedent for the limited remand suggested by the parties. However, we decline to adopt this approach because it is not statutorily authorized. The
The relief appropriate in this case is that found in the case relied upon by the appellant to support his claim of error. In Weed, the trial court erred by imposing upon revocation a jail term in excess of the six month sentence originally assessed and probated. Weed v. State, 891 S.W.2d at 24. The court reformed the judgment to reflect the punishment originally imposed. Id. at 25. This case is indistinguishable from Weed, and we adopt the rationale of that opinion.
The appellate record contains sufficient information for this Court to reform the judgment. The punishment assessed was ten years of incarceration and a $1,000 fine. The $1,000 fine imposed in March 2002, was never probated and should have been included in the judgment revoking community supervision. Coffey v. State, 979 S.W.2d 326, 328-29 (Tex.Crim.App. 1998); Davis v. State, 977 S.W.2d 859, 860-61 (Tex.App.-Dallas 1998, no pet.). The trial court did not exercise its discretion to reduce the sentence upon revocation. See Guzman v. State, 923 S.W.2d 792, 799 (Tex.App.-Corpus Christi 1996, no pet.). Because the community supervision order was revoked and the sentence was not reduced, we reform the judgment to impose the sentence originally assessed by the trial court. Issue two is overruled.
Accordingly, we reform the judgment of the trial court to reflect the punishment
AFFIRMED AS REFORMED.
. Kimball also pleaded "true” to a motion to adjudicate guilt in an unrelated case.
. The trial court also sentenced Kimball to a ten-month term of confinement on his other case.
.The record reflects that Kimball stole several checks from his grandfather, forged the payor’s signature, and passed the checks to third parties.
. Article 42.12, § 23(a) does authorize the trial court to reduce the sentence. The trial court did not exercise that authority in this case. No error was preserved in the trial court on the issue of sentence reduction, and the appellant does not argue that distinct issue.
. It does not necessarily follow that the trial court would be required to permit Kimball to withdraw his previously accepted plea of "true.” We will not comment on the appropriate procedure on remand, as any discussion of that issue would be dicta.
. We are not suggesting that an issue could have been raised. The punishment stage of the prosecution of Kimball concluded in March 2002, without an appeal, and error relating to that proceeding may not be raised at this juncture. See Serna v. State, 986 S.W.2d 693, 696 (Tex.App.-Amarillo 1998, no pet.).
Dissenting Opinion
dissenting.
I concur there is error, but dissent to the affirmance and reformation.
The majority assumes the judge intended to impose the original sentence, the maximum available. I disagree. My experience tells me trial judges rarely impose the maximum sentence when a plea of “true” is made.
The point is neither the majority nor I can say why the trial judge did what he did; all we can say is it was incorrect. Consequently, we should remand for a new heaaing.
. As noted by the majority, the State conceded error and suggested a remand for a new "sentencing” hearing.
. The range of punishment was two to twenty.
. This was an extremely experienced trial judge.
. I have prosecuted (1972-1974), defended (1975-1978), and presided (1978-1984) over numerous revocation proceedings.
. Kimball’s attorney describes this as an "obvious conclusion”.
. The court, at the sentencing hearing stated: “The Court finds the defendant guilty....” This is language consistent with an adjudication of guilt rather than a revocation of community supervision.
. Fifteen years as opposed to twenty.
. For judicial economy, I believe we should adopt the partial remand rationale of Stevens v. State, 951 S.W.2d 802 (Tex.App.-Texarkana 1997, no pet.), but I have no real quarrel with the majority’s refusal to do so.
Reference
- Full Case Name
- Matthew Shane KIMBALL, Appellant, v. the STATE of Texas, Appellee
- Cited By
- 14 cases
- Status
- Published