CHARLES WAYNE HARP, Appellant v. THE STATE OF TEXAS, Appellee

Reformed Judgment and Affirmed and Opinion filed October 25, 1989
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-89-00089-CR
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CHARLES WAYNE HARP, Appellant
V.
THE STATE OF TEXAS, Appellee
 
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On Appeal from the Criminal District Court No. 2
Dallas County, Texas
Trial Court Cause No. F88-88486-NI
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O P I N I O N
Before Chief Justice Enoch and Justices Baker and Onion FN:1
Opinion By Chief Justice Enoch
        After an open plea of guilty, the trial court found appellant, Charles Wayne Harp, guilty of the offense of forgery. Punishment, enhanced by two prior felony convictions, was assessed at twenty-five years confinement, and a fine of $1,000. In two points of error, appellant claims that the trial court erred in: (1) finding the evidence sufficient to support his plea of guilty because his judicial confession did not contain the date of the offense and because he was not asked if he pled guilty as charged in the indictment; and (2) assessing a fine of $1,000 because it is an unauthorized sentence not permitted by statute. We reform the judgment to delete the $1,000 fine, and as reformed, the trial court's judgment is affirmed.
        Appellant was charged in the indictment with committing forgery on January 15, 1988. On October 19, 1988, appellant waived his right to a jury trial and entered a plea of guilty before the court. Appellant was represented by counsel and admonished by the court. Appellant also executed a judicial confession as to the offense of forgery and a written stipulation as to all information contained in the two enhancement paragraphs of the indictment. The judicial confession was sworn to by appellant and introduced into evidence. Appellant then took the witness stand and testified under oath that he was guilty as charged in the indictment.
        A plea of guilty is an admission of guilt of the offense charged, but it does not authorize a conviction in a bench trial upon such plea unless there is evidence offered to support such plea and the judgment entered. Tex. Code Crim. Proc. Ann. art. 1.15 (Vernon 1981). A judicial confession, standing alone is sufficient to support a guilty plea. Dinnery v. State, 592 S.W.2d 343, 354 (Tex. Crim. App. 1980). An affirmation of indictment as true and correct will constitute a judicial confession sufficient to support a judgment of conviction. Potts v. State, 571 S.W.2d 180, 182 (Tex. Crim. App. 1978).         Appellant claims that the only evidence in the record to support his plea of guilty is his written stipulation and a judicial confession that is defective because it did not contain the date of the offense. The record clearly reflects appellant testified, under oath, that he was guilty as charged in the indictment. Accordingly, we hold that the evidence is sufficient to support the judgment. Appellant's first point of error is overruled.
        Appellant claims that the trial court's assessment of a $1,000 fine is unauthorized by section 12.42(d) of the Texas Penal Code, and requests that we reform the judgment and delete the improper fine. The Texas Penal Code provides that an individual adjudged guilty of a third degree felony offense may be punished by confinement for a term of not more than ten years or less than two years and by fine not to exceed $5,000. Tex. Penal Code Ann. § 12.34 (Vernon 1974). However, the Texas Penal Code also provides penalties for repeat and habitual felony offenders:
        If it be shown on the trial of any 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 he shall be punished by confinement in the Texas Department of Corrections for life, or for any term of not more than 99 years or less than 25 years.
Tex. Penal Code Ann. § 12.42(d) (Vernon Supp. 1989). This statute makes no provision for assessment of a fine in addition to a term of imprisonment where a felony offense has been enhanced by two prior felony convictions.
        Appellant pled guilty to the felony offense of forgery, enhanced by two prior felony convictions. The record reflects that the two prior felony convictions became final on June 3, 1985, and February 15, 1986, respectively. Section 12.42(d) of the Texas Penal Code applies. The statute does not make provision for assessment of fine in addition to term of imprisonment. The fine imposed in this case was unauthorized. Ex parte Youngblood, 698 S.W.2d 671 (Tex. Crim. App. 1985).
Under article 37.10(b) of the Texas Code of Criminal Procedure, an appellate court may only reform a judgment to delete an unauthorized fine assessed by a jury. King v. State, 710 S.W.2d 110, 114 (Tex. App.--Houston [14th Dist.] 1986, pet. ref'd), cert. denied, ___ U.S. ___, 108 S. Ct. 99 (1987). However, the rules of appellate procedure provide that the court of appeals may modify the judgment of the court below by correcting or reforming it. Tex. R. App. P. 80(b)(2). We need not remand the case for a new punishment hearing; rather we may reform the judgment and delete the improper fine. We reform the judgment to delete the $1000 fine, and as reformed, the trial court's judgment is affirmed.
 
 
 
                                                          
                                                          CRAIG TRIVELY ENOCH
                                                          CHIEF JUSTICE
 
Do Not Publish
Tex. R. App. P. 90
 
890089.U05
 
FN:1 The Honorable John F. Onion, Jr., Presiding Judge, Retired, Court of Criminal Appeals, sitting by assignment.
File Date[10-24-89]
File Name[890089F]