Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Ex parte Rogers

Court of Appeals of Texas, First District

March 28, 2017

EX PARTE MARK AUBREY ROGERS, JR.

         On Appeal from the County Court Colorado County, Texas Trial Court Case No. 15-24295

          Panel consists of Justices Jennings, Massengale, and Huddle.

          OPINION

          Michael Massengale Justice

         In this 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 relief.

         On 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.

         Background

         Appellant 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 jury's verdict.

         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.

         Rogers 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.