Opinion issued December 20, 2016




                                       In The

                               Court of Appeals
                                      For The

                           First District of Texas
                             ————————————
                               NO. 01-16-00298-CR
                            ———————————
                      KYLE LINDSEY SMITH, Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee


                    On Appeal from the 405th District Court
                          Galveston County, Texas
                       Trial Court Case No. 15CR1834


                          MEMORANDUM OPINION

      A jury found appellant, Kyle Lindsey Smith, guilty of the felony offense of

driving while intoxicated, third offense.1 After he pleaded true to the allegations in




1
      See TEX. PENAL CODE ANN. §§ 49.04(a), 49.09(b)(2) (Vernon Supp. 2016).
two enhancement paragraphs that he had twice been previously convicted of felony

offenses, the jury assessed his punishment at confinement for fifty years and a fine

of $5,000. In his sole issue, appellant contends that the trial court erred in assessing

a fine against him that is not authorized by law.

      We modify the trial court’s judgment and affirm as modified.

                                     Background

      A Galveston County Grand Jury issued a true bill of indictment, alleging that

appellant, on or about April 29, 2014, “did then and there operate a motor vehicle in

a public place while [he] was intoxicated by reason of the introduction of alcohol or

a controlled substance or a drug or a dangerous drug or a combination thereof into

the body.” Further, it alleged that prior to the commission of the offense, on April

20, 2016, in cause number 253813 in the County Court at Law No. 1 of Galveston

County, Texas, and on March 30, 2009, in cause number 285602 in the County Court

at Law No. 2 of Galveston County, Texas, he was convicted “of an offense relating

to the operating of a motor vehicle while intoxicated.”

      After the jury found appellant guilty of the felony offense of driving while

intoxicated, third offense, he pleaded true to the allegations in two enhancement

paragraphs that he had twice been previously convicted of felony offenses. The trial

court then, in regard to punishment, instructed the jury, in pertinent part:




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      Having found the Defendant, KYLE LINDSEY SMITH, guilty of
      Driving While Intoxicated – 3rd offense or more, it now becomes your
      duty to assess the punishment in this case.

      The first enhancement paragraph of the indictment further alleges that
      the Defendant was previously convicted on or about the 5th day of
      December, 1989, in Cause No. 89crl621 in the 212th Judicial District
      Court of Galveston County, Texas for the offense of Kidnapping.

      The second enhancement paragraph of the indictment further alleges
      that the Defendant was previously convicted on or about the 28th day
      of October, 2011, in Cause No. 10CR3065 in the 56th Judicial District
      Court of Galveston County, Texas for the offense of possession of a
      controlled substance.

      To these allegations, the Defendant has entered a plea of True.

      You are therefore instructed to find that the allegations in the
      enhancement paragraphs are “True” and to assess punishment at
      confinement in the Institutional Division of the Texas Department of
      Criminal Justice for a period of not less than twenty[-]five (25) years
      nor more than ninety[-]nine (99) years or life. In addition thereto, you,
      in your discretion, may, assess a fine in an amount not to exceed Ten
      Thousand Dollars ($10,000.00) in addition to confinement in the
      penitentiary.

The jury assessed appellant’s punishment at confinement for fifty years and a fine

of $5,000.

                                 Imposition of Fine

      In his sole issue, appellant argues that the trial court erred in assessing a fine

against him because it is not authorized by law. See TEX. PENAL CODE ANN.

§ 12.42(d) (Vernon Supp. 2016). The State concedes that the trial court erred. Both




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appellant and the State have requested that this Court reform the trial court’s

judgment.

      As appellant correctly asserts, his punishment is governed by section 12.42(d),

which provides:

      [I]f it is shown on the trial of a felony offense . . . that the defendant has
      previously been finally convicted of two felony offenses, and the
      second previous felony conviction is for an offense that occurred
      subsequent to the first previous conviction having become final, on
      conviction the defendant shall be punished by imprisonment in the
      Texas Department of Criminal Justice for life, or for any term of not
      more than 99 years or less than 25 years. . . .

TEX. PENAL CODE ANN. § 12.42(d). Notably, this section does not allow for a fine

to be assessed against appellant. See id.; Dolph v. State, 440 S.W.3d 898, 908 (Tex.

App.—Texarkana 2013, pet. ref’d) (section 12.42(d) does not allow imposition of

fine); see also Vela v. State, No. 13-14-00249-CR, 2015 WL 1136182, at *4 (Tex.

App.—Corpus Christi Mar. 12, 2015, no pet.) (mem. op., not designated for

publication) (habitual-offender statute does not permit imposition of fine); Frias v.

State, No. 03-12-00463-CR, 2014 WL 3410592, at *9–10 (Tex. App.—Austin July

10, 2014, pet. ref’d) (mem. op., not designated for publication) (same).

      A sentence is illegal if it is not authorized by law. Ex parte Parrott, 396
S.W.3d 531, 534 (Tex. Crim. App. 2013); Ex parte Pena, 71 S.W.3d 336, 336 n.2

(Tex. Crim. App. 2002). When a jury assesses punishment in a case and, in the

verdict, assesses punishment that is both authorized by law for the offense and is not



                                            4
authorized by law for the offense, the reviewing court shall reform the verdict to

omit the punishment that is not authorized by law. See TEX. CODE CRIM. PROC. ANN.

art. 37.10(b) (Vernon 2006); Ex parte Johnson, 697 S.W.2d 605, 607–08 (Tex. Crim.

App. 1985) (following legislature’s mandate and reforming portion of verdict not

authorized by law); Melton v. State, 456 S.W.3d 309, 316 (Tex. App.—Amarillo

2015, no pet.) (“By statute, both trial courts and this Court are required to reform a

jury’s verdict to ‘omit the punishment not authorized by law.’” (quoting TEX. CODE

CRIM. PROC. ANN. art. 37.10(b))); see also Mizell v. State, 119 S.W.3d 804, 806 (Tex.

Crim. App. 2003) (“A trial or appellate court which otherwise has jurisdiction over

a criminal conviction may always notice and correct an illegal sentence.”). As the

Texas Court of Criminal Appeals has noted, under article 37.10(b), a court, when

faced with a “jury punishment verdict[] containing an unauthorized punishment

provision[,] . . . has no choice but to reform the verdict to show the punishment

authorized by law and to omit the punishment not authorized by law.” Nixon v.

State, 483 S.W.3d 562, 565 (Tex. Crim. App. 2016).

      Accordingly, we reform the verdict and modify the judgment of conviction to

delete the unauthorized $5,000 fine assessed against appellant in this case. See TEX.

R. APP. P. 43.2(b); see also Ex parte Johnson, 697 S.W.2d at 608 (deleting fine

improperly assessed).

      We sustain appellant’s sole issue.



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                                   Conclusion

      We affirm the judgment of the trial court as modified.




                                               Terry Jennings
                                               Justice

Panel consists of Chief Justice Radack and Justices Jennings and Bland.

Do not publish. TEX. R. APP. P. 47.2(b).




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