dissenting on state’s petition for discretionary review.
The question is what the legislature meant when it gave the State the right “to appeal a sentence in a case on the ground that the sentence is illegal.” Code of Criminal Procedure Article 44.01(b). More particularly, does the statute allow the State to appeal the trial court’s failure to make an affirmative finding on the defendant’s use of a deadly weapon?. The Court holds that the State *753may not appeal because such an affirmative finding is not part of the sentence.
Statutory language should be construed according to common usage, and according to technical meanings.1 “Sentence” has a common meaning and technical or particular meanings. Its common meaning is “punishment.”2 One of its technical or particular meanings comes from Article 42.02, which defines “sentence” as a part of a judgment. The Court holds that this technical meaning from Article 42.02 should be used in construing Article 44.01(b). I believe that the common meaning of “sentence” should be used.
It is a mistake to think that the technical meaning of “sentence” in Article 42.02 is always appropriate to other statutes. In the Code of Criminal Procedure “sentence” sometimes has the common meaning, and sometimes a technical meaning.
For example, Code of Criminal Procedure Article 37.071, § 2(a) says that in the trial of a capital felony case there shall be “a separate sentencing proceeding” in which evidence may be presented as to any matter that the court deems relevant to “sentence.” There “sentence” cannot mean a part of the judgment; it means “punishment.” Livingston v. State, 542 S.W.2d 655, 661 n. 4 (Tex.Cr.App.1976), cert. denied, 431 U.S. 933, 97 S.Ct. 2642, 53 L.Ed.2d 250 (1977). Identical language appears in Article 37.0711, § 3(a). Similar usage appears in Article 37.07, § 3(a), which says that in a non-capital case evidence may be offered as to any matter the court deems relevant to “sentencing.”
When error affects only the punishment stage of a capital trial, the “sentence” may be reformed. Code of Criminal Procedure Article 44.251. Or a new “sentencing” stage may be held before a new jury if the “sentence” is set aside or invalidated in a capital case in which a defendant was “sentenced to death.” Code of Criminal Procedure Article 44.29(e). In a non-capital case, error at the punishment stage produces a new “sentencing stage.” Code of Criminal Procedure Article 44.29(b). In these statutes, which are in the same chapter as the article we are construing, “sentence” means “punishment,” not a part of the judgment.
“Before pronouncing sentence” in a misdemeanor ease the “judge may consider alternative sentencing” by remanding the defendant to a treatment facility. Code of Criminal Procedure Article 42.023. This is not a reference to the part of the judgment which is technically defined in Article 42.02.
These statutes demonstrate that the term “sentence” in the Code of Criminal Procedure cannot always be construed according to the technical definition in Article 42.02. It sometimes must be given its meaning in common usage: punishment, in the broad sense.
After considering the common usage and technical meaning of a term in a statute, we may construe a statute according to the object sought to be attained. Code Construction Act, Texas Government Code § 311.023(1).
This Court has thoroughly considered the object of Article 44.01 in State v. Moreno, 807 S.W.2d 327 (Tex.Cr.App.1991). There the Court construed Section (a)(1) of Article 44.01, which says the State may appeal an order that “dismisses” an indictment, information, or complaint. This term required construction because Texas courts have no general authority to dismiss charging instruments. See State v. Johnson, 821 S.W.2d 609 (Tex.Cr.App.1991). While it would have been more appropriate for the statute to have spoken in terms of “setting aside” a charging instrument, which is the nomenclature of our Code of Criminal Procedure, this Court recognized that Article 44.01 borrowed liberally from its federal counterparts, 18 U.S.C. § 3731 and Federal Rule of Criminal Procedure 12(a), which use the term “dismiss.” State v. Moreno, 807 S.W.2d at 329 n. *7542. We recognized that Article 44.01 was “intended to extend to the State appellate powers akin to those that the United States Congress had extended to the federal government in a criminal case,” id. at 329, which included the power to appeal whenever the Constitution would permit. Id. at 332. After examining the federal practice, we held that Section (a)(1) authorized the State to appeal from any trial court order concerning an indictment or information whenever the order effectively terminates the prosecution in favor of the defendant, even though the order was not technically a “dismissal.” Ibid.
Remembering that, as we held in Moreno, Article 44.01 was intended to give the State full powers to appeal whenever the Constitution would permit, and that federal law is a guide to the construction of Article 44.01, we must consider the interpretations of the Constitution and the corresponding federal statutes.
In-1980 the Supreme Court of the United States took up the issue of whether authorizing the Government to appeal a sentence violated the Double Jeopardy Clause of the Fifth Amendment of the Constitution. United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980). The right to appellate review of sentences for certain offenses had been enacted in two identical statutes.3 The Court recognized that “Academic and professional commentary on the general issue is divided.” Id. at 121 n. 4, 101 S.Ct. at 429 n. 4. The Court identified five propositions pertinent to the question whether appellate review,of a sentence would violate the constitutional prohibition against multiple trials:
A The Double Jeopardy Clause is not a complete barrier to an appeal by the prosecution in a criminal ease. “(W)here a Government appeal presents no threat of successive prosecutions, the Double Jeopardy Clause is not offended.” United States v. Martin Linen Supply Co., 430 U.S. [564], at 569-570 [97 S.Ct. 1349, 1354, 51 L.Ed.2d 642] (1977).... From this it follows that the Government’s taking a review of respondent’s sentence does not in itself offend double jeopardy principles just because its success might deprive respondent of the benefit of a more lenient sentence....
B. The double jeopardy focus, thus, is not on the appeal but on the relief that is requested, and our task is to determine whether a criminal sentence, once pronounced, is to be accorded constitutional finality and conelusiveness similar to that which attaches to a jury’s verdict of acquittal. We conclude that neither the history of sentencing practices, nor the pertinent rulings of this Court, nor even considerations of double jeopardy policy support such an equation....
C. This Court’s decisions in the sentencing area clearly establish that a sentence does not have the qualities of constitutional finality that attend an acquittal. ...
D. The double jeopardy considerations that bar reprosecution after an acquittal do not prohibit review of a sentence....
E. The Double Jeopardy Clause does not provide the defendant with the right to know at any specific moment in time what the exact limit of his punishment will turn out to be....
Id. at 132-37, 101 S.Ct. at 434-37.
“All this highlights the distinction between acquittals and sentences.... [T]he Double Jeopardy Clause does not require that a sentence be given a degree of finality that prevents its later increase.” Id. at 137, 101 S.Ct. at 438. The Court held that the Government’s appeal of a sentence did not violate the constitutional prohibition of multiple trials.
The Court also held that the increase of a sentence on appellate review did not constitute multiple punishment. Id. at 138-40, 101 S.Ct. at 438-39. Therefore none of the protections of the Double Jeopardy Clause were denied by the Government’s appeal of a sentence.
*755With the constitutional issue settled Congress passed the Sentencing Reform Act of 1983,4 which gave the Government in every criminal case a right to appeal a “sentence” that “was imposed in violation of law.” 18 U.S.C. § 3742(b)(1). This statute authorizes the Government to appeal the trial court’s failure to apply mandatory punishment statutes. See, e.g., United States v. Investment Enterprises, Inc., 10 F.3d 263, 270 (5th Cir.1993) (denial of motion for in personam forfeiture); United States v. Anderson, 921 F.2d 335 (1st Cir.1990) (failure to apply Armed Career Criminal Act).
In light of our previous holding in Moreno, the constitutional doctrine of DiFrancesco, and the similarity of our statute to the corresponding federal statute, I believe that “sentence” in Article 44.01(b) means punishment in the broadest sense. The statute should be construed to permit the State to appeal illegal punishments as distinguished from acquittals. This would give it the full power, as permitted by the Constitution, to appeal a sentence. I would also hold that the trial court’s entry, or failure to make an entry, of an affirmative finding that the defendant used or exhibited a deadly weapon is a part of the punishment which may be appealed by the State without violating the Double Jeopardy Clause.
By construing “sentence” according to one technical meaning, the Court authorizes the State to appeal only a defect in a particular part of a judgment. It distinguishes a sentence from other parts of a judgment, rather than from an acquittal. This does not accomplish the legislative objective that we recognized in Moreno.
Not only does this construction prevent full appellate review of punishment issues when a sentence of confinement is imposed, it also will make it impossible for the State to appeal most judgments granting community supervision because there is no Article 44.02 “sentence” in most of such cases. (Only in a “shock probation” judgment is there a sentence, the execution of which is suspended.) This cannot have been what the statute was intended to do.
Article 44.01(b) should be construed to give the State the power to appeal illegal punishments.
I also want to record my respectful disagreement with the Court’s statement, ante at n. 4, that a court has authority to correct an error nunc pro tunc if the error was the violation of a mandatory duty. I believe that nunc pro tunc corrections should be limited to clerical errors.
McCORMICK, J., joins.. Code Construction Act, Tex. Gov’t Code § 311.011:
(a) Words and phrases shall be read in context and construed according to the rules of grammar and common usage.
(b) Words and phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be construed accordingly.
. "Sentence” is defined as "the punishment awarded by a law court to a person convicted in a criminal trial_” Oxford American Dictionary (1980).
. Organized Crime Control Act of 1970, Act of Oct. 15, 1970, P.L. 9M52, Tide X, § 1001(a), 84 Stat. 922, 950 (repealed 1984); Comprehensive Drug Abuse Prevention and Control Act of 1970, Act of October 27, 1970, P.L. 91-513, Tide II, § 409(h), 84 Stat. 1236, 1269 (repealed 1984).
. Act of Oct. 12, 1984, P.L. 98-473, Title II, ch. II, 98 Stat. 1837, 1987.