Appeal from the County Court Colorado County, Texas Trial
Court Case No. 15-24295
consists of Justices Jennings, Massengale, and Huddle.
Michael Massengale Justice
habeas corpus appeal, a jury imposed a sentence of no fine
and no jail time for a defendant convicted of misdemeanor
drug possession. The State successfully moved for a new
punishment hearing, and the defendant filed a habeas corpus
petition, arguing that a second punishment hearing would
subject him to double jeopardy. The trial court denied
appeal, we conclude that the jury's original verdict
proposed punishment that would constitute a void sentence,
and therefore a new punishment hearing does not subject the
appellant to double jeopardy. Accordingly, we affirm.
Mark Aubrey Rogers, Jr. was charged with the Class B
misdemeanor offense of possession of less than two ounces of
marijuana. See Tex. Health & Safety Code §
481.121(b)(1). A jury found him guilty of the offense, but it
declined to assess a punishment. The court's charge
instructed the jury to determine and state in its verdict:
1. any fine to be imposed on the defendant of no more than
$2, 000, or
2. a term of confinement in the county jail to be imposed on
the defendant for no more than 180 days, or
3. both a fine to be imposed on the defendant of no more than
$2, 000 and a term of confinement in the county jail to be
imposed on the defendant for no more than 180 days.
See Tex. Penal Code § 12.22 (punishment for
Class B misdemeanor). The jury's verdict assessed "a
fine of $0.00" and "confinement in the
county jail for a term of 0 days." The trial
court signed a judgment of conviction in accordance with the
State filed a motion for a new punishment hearing. Relying on
Mizell v. State, 119 S.W.3d 804 (Tex. Crim. App.
2003), the State argued that the jury was not free to
disregard the statutory range of punishment, and that the
trial court could take corrective action by holding a new
punishment hearing. After a hearing, the trial court ordered
a new punishment trial.
filed a motion for new trial, which was denied. He then filed
a petition for writ of habeas corpus. See Tex. Code
Crim. Proc. arts. 11.09, 11.23. After a non-evidentiary
hearing, the trial court denied relief. The trial court did
not enter findings of fact ...