Shappley v. State

¶1OPINION ON STATE’S MOTION FOR REHEARING

¶2The State urges that our original opinion was incorrect in reforming the order granting probation “to show the $5,000 fine is probated to conform to the verdict.” The State argues that Johnson v. State, Tex.Cr.App., 473 S.W.2d 939 and Faugh v. State, Tex.Cr.App., 481 S.W.2d 412 are distinguishable in that in each of those cases the jury thought the fine would be probated and entered a verdict to that effect. In the instant case, the court instructed the jury that it could recommend that the defendant be granted probation, subject to the conditions set forth in Sec. 6 of Art. 42.12, Vernon’s Ann.C.C.P.1 The charge recited those conditions, the pertinent one being: “h. Pay his fine, if one be assessed

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¶4The State reasons that where, as in the instant case, the court informed the jury of the court’s authority to require the payment of any fine assessed, and the jury was not misled in any manner in assessing a fine and recommending its probation, then the recommendation of probation by the jury in regard to the fine becomes advisory only upon the court. It is argued that if condition (h) of Sec. 6 of Art. 42.-12, supra, cannot be imposed as a condition by the court if the jury recommends probation, then the court may not impose any other conditions since such would be a limitation upon the jury’s right to recommend probation.

¶5Section 3a of Art. 42.12 provides that “in all eligible cases, probation shall be granted by the court if the jury recommends it in their verdict” (emphasis supplied), and the court in the instant case instructed the jury pursuant thereto that if it recommend probation in its verdict, “it shall be granted by the court.”

¶6The court instructed the jury at the punishment stage of the trial that the punish*775ment for the offense (selling securities as a salesman without being registered) is “a fine of not more than Five Thousand Dollars ($5,000.00) or confinement in the Texas Department of Corrections for not more than ten (10) years, or by both such fine and imprisonment.”

The jury verdict reads:

“We, the Jury, having found the defendant, Perrin Shappley, Jr., guilty of selling securities as a salesman without being registered as charged in the first count of the indictment, assess his punishment at 5 years in the Texas Dept, of Corrections and a fine Five Thousand Dollars (5,000.00). We further find that the defendant has never been convicted of a felony in this State or in any other state and recommend the probation of the sentence.

/s/ Dilton S. Sandifer Foreman”

¶7If the jury had elected to assess a fine only as punishment and recommend probation, the court, under the positions urged by the State, could have circumvented the entire jury verdict and rendered its recommendation meaningless. Faugh v. State, supra. Further, under such circumstances, what penalty would be required of the defendant if probation should later be revoked ? Faugh v. State, supra.

¶8The argument that the jury verdict recommending probation is advisory only to the fine is contrary to the mandatory provision of Sec. 3a of Art. 42.12, V. A.C.C.P., providing that “probation shall be granted by the court if the jury recommends it in their verdict.”

¶9While Sec. 3a of Art. 42.12 further provides, “If probation is granted by the jury the court may impose only those conditions which are set forth in Section 6 hereof,” it is noted that payment of fine is the only condition set forth under Sec. 6 which relates to the penalty. Obviously, conflict does exist in the foregoing provisions of Sec. 3a. The court should avoid a construction which will render an act or provision “futile or purposeless.” 53 Tex. Jur.2d, Statutes, Sec. 164. Section 3a provides for a defendant making a motion for probation before the jury and places a greater burden in both pleading 2 and proof on the defendant seeking a recommendation of probation from the jury, requiring:

“In no case shall probation be recommended by the jury except when the sworn motion and proof shall show, and the jury shall find in their verdict that the defendant has never before been convicted of a felony in this or any other State.”

¶10To adopt the interpretation urged by the State would render a defendant’s right to make his motion for probation before a jury “futile and meaningless” since the judge could circumvent the jury verdict.

¶11In Castro v. State, 118 Tex.Cr.App. 53, 42 S.W.2d 779, it was held that the action of the court in disregarding the recommendation of the jury that the sentence be suspended was void. There the Court said the action of the trial court violated the “ . . . fundamental principle that the judge presiding over a trial has no right and no power to change a verdict rendered by the jury unless with their consent and before their discharge.”

¶12To uphold a court’s action in requiring payment of the fine where the jury has recommended probation would allow the court to exact a portion or all of the punishment, as the case may be, in order for a defendant to obtain the benefit of the jury’s recommendation. See Faugh v. State, supra.

¶13*776In the recent case of Flores v. State, Tex.Cr.App., 513 S.W.2d 66, this Court said :

“While it is considered good-practice to enumerate in the court’s charge the probationary conditions which the court may impose if probation is recommended by the jury, the failure to so enumerate the said conditions is not harmful to the accused or restrictive of the court’s authority under the statute.”

¶14It follows that the mere reciting of the probationary conditions in the court’s charge cannot serve to enlarge upon the court’s authority under the statute where the jury recommends probation.

¶15For the reasons stated, the motion for rehearing is overruled.

¶16Opinion approved by the Court.