In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________
No. 07-13-00032-CR
________________________
REGINALD DWAYNE MELTON, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the County Court at Law
Navarro County, Texas
Trial Court No. C34415-CR; Honorable Amanda Putman, Presiding
February 12, 2015
ORDER DENYING MOTION FOR REHEARING
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
On January 13, 2015, this Court affirmed Appellant’s conviction for the offense of
possession of a controlled substance.1 At the same time, we affirmed in part and
reversed and remanded in part the assessment of punishment—affirming the period of
confinement, but reversing and remanding the fine assessed. Via his Motion for
1
Melton v. State, No. 07-13-00032-CR, __ S.W.3d __, 2015 Tex. App. LEXIS 266 (Tex. App.—
Amarillo Jan. 13, 2015, no pet. h.).
Rehearing, Appellant contends that a unified punishment hearing as to both the period
of incarceration and amount of fine must be held upon remand. Due to the unusual but
potentially recurring nature of the arguments being made, we write to support our
reasoning for denying Appellant’s motion.
By his original brief, Appellant contended that when a verdict assesses
punishment that is both authorized and not authorized, the verdict should be reformed
to omit the punishment that is not authorized by law and a judgment should be entered
that assesses only that punishment authorized by law. Appellant argued that, should
we affirm his conviction but find error in the punishment assessed, this Court should
affirm the sentence of 15 years and delete the fine of $15,000. On rehearing Appellant
contends the proper remedy is to remand the case for a new hearing as to all
punishment. As applied to this case, Appellant contends he should receive a new
punishment hearing as to both confinement and fine, when we have found error as to
the fine only.
Based on the punishment verdict rendered by the jury in this case, prior to the
enactment of article 37.10(b) of the Texas Code of Criminal Procedure, Appellant would
have been entitled to a new punishment hearing as to both the period of confinement
and the amount of the fine. See TEX. CODE CRIM. PROC. ANN. art. 44.29(b) (West Supp.
2014). However, effective June 11, 1985, the Legislature amended article 37.10 by
adding subparagraph (b), which provides as follows:
If the jury assesses punishment in a case and in the verdict assesses both
punishment that is authorized by law for the offense and punishment that
is not authorized by law for the offense, the court shall reform the verdict
to show the punishment authorized by law and to omit the punishment not
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authorized by law. If the trial court is required to reform a verdict under
this subsection and fails to do so, the appellate court shall reform the
verdict as provided by this subsection.
Act of May 17, 1985, 69th Leg., R.S., ch. 442, § 1, 1985 Tex. Gen. Laws 1577.
Under this provision, a court is required to differentiate between punishment that
is authorized by law and punishment that is not authorized. As to punishment that is
authorized by law, a court is to leave that punishment in place, while reforming the
verdict and judgment as to the unauthorized punishment. Appellant’s argument that he
should receive a new punishment hearing as to both the period of confinement and the
amount of the fine would render meaningless the provisions of article 37.10(b) which
clearly differentiates between different forms of punishment.
Because article 37.10(b) differentiates between a period of confinement that is
authorized by law and a fine that is not authorized by law, we conclude that we are not
only authorized but required to address each form of punishment separately. Having
found error only in the assessment of the fine, our remand is limited solely to that issue.
Appellant’s Motion for Rehearing is denied.
Patrick A. Pirtle
Justice
Publish.
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