The State of Texas v. Giordano, Gabriel Austin--Appeal from County Court at Law #4 of Fort Bend County

Reversed and Remanded and Opinion filed August 25, 2005.

In The

Fourteenth Court of Appeals

____________

NO. 14-04-01034-CR

____________

THE STATE OF TEXAS, Appellant

V.

GABRIEL AUSTIN GIORDANO, Appellee

On Appeal from the County Court at Law No. 4

Fort Bend County, Texas

Trial Court Cause No. 106452

M EM O R A N D U M O P I N I O N

In this appeal, the State of Texas complains the sentence of appellee, Gabriel Austin Giordano, is illegal. We agree and reverse the judgment of the trial court and remand the case for a new hearing on punishment.

Appellee was convicted by a jury of possession of two ounces or less of marijuana, a Class B misdemeanor.[1] After receiving the verdict, the trial court ordered a pre-sentence investigation report (APSI@). At the sentencing hearing, the trial court initially sentenced appellee to serve 180 days in jail to run concurrently with time in a Burnett County treatment facility. Appellee=s sentence was to begin in December 2004, when he entered the treatment facility. The trial court intended to allow appellee to remain out on bond between the time of sentencing and the time he was to enter the treatment facility, conditioned on his being tested for drugs every two weeks. However, when the trial court asked appellee, A[w]ill you test clean or dirty today,@ appellee responded that he would probably test Adirty.@ The trial court then sentenced appellee to three days in the Fort Bend County Jail as a condition of his bond.

The State is entitled to appeal an illegal sentence. Tex. Code Crim. Proc. Ann. art. 44.01(b) (Vernon Supp. 2004B05). AA sentence that is outside the maximum or minimum range of punishment is unauthorized by law and therefore illegal.@ Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003). A sentence that is not authorized is void. Ex parte Seidel, 39 S.W.3d 221, 225 n.4 (Tex. Crim. App. 2001). We find appellee=s sentence illegal and, therefore, void for two reasons.

First, appellee was convicted of possession of marijuana, a Class B misdemeanor, which is punishable by Aconfinement in jail for a term not to exceed 180 days.@ Tex. Pen. Code Ann. ' 12.22 (Vernon 2003).[2] Therefore, the maximum length of time the trial court could sentence appellant for the charged offense was 180 days. The trial court, however, sentenced appellee to an additional three days as a Acondition@ of his bond, for a total of 183 days, thereby exceeding the maximum allowable jail sentence by three days.

Second, because appellee was convicted of a Class B misdemeanor, the trial court had the option of remanding him Ato a treatment facility approved by the commission to accept court commitments for care and treatment for not more than 90 days, instead of incarceration or fine, . . .@ Tex. Health & Safety Code Ann. ' 462.081(a) (Vernon 1992) (emphasis added); see also Tex. Code Crim. Proc. Ann. art 42.023 (Vernon 2004B05) (providing that before pronouncing sentence on defendant convicted of criminal offense, judge may consider whether defendant should be committed for care and treatment). However, appellee was sentenced to 180 days in jail to run concurrently with time in the Burnett County treatment facility. Appellee=s 180 days= sentence in the treatment facility clearly exceeds the maximum length of 90 days allowed under section 462.081. Therefore, the States= sole issue is sustained.

Because appellee=s sentence is void, we reverse only the punishment portion of the judgment and remand to trial court for a new punishment hearing.[3] Accordingly, the judgment of the trial court is reversed and the cause is remanded to the trial court for proceedings consistent with this opinion.

/s/ J. Harvey Hudson

Justice

Judgment rendered and Opinion filed August 25, 2005.

Panel consists of Justices Yates, Anderson, and Hudson.

Do Not Publish C Tex. R. App. P. 47.2(b).

[1] Tex. Health & Safety Code Ann. ' 481.121 (Vernon 2003).

[2] Although the trial court did not assess a fine against appellee in this case, we note that a trial court may also assess a fine not to exceed $2,000 in addition to a jail sentence of not more than 180 days. Id.

[3] Tex. Code Crim. Proc. art. 44.29(b) (Vernon Supp. 2004B05); Lopez v. State, 18 S.W.3d 637, 640 (Tex. Crim. App. 2000).