Citations
- 72 S.W.2d 909
Full opinion text
HAWKINS, Judge.
Under an iriflictfnént charging that 'appellant while intoxicated' operated an automobile upon a public road -in’ Comanche epupty, he was convicted and his punishment assessed at confinement in the penitentiary for one year. ,
The. record -is 'before this court without statement of facts or bills of, exeeptipn. ,.\ye notice, however, that, in pronouncing sentence against appellant, as well as in the judgment, an error was committed by stating that his punishment would be assessed at confinement in the penitentiary for two years. The verdict of the jury assessed punishment at one year in the penitentiary and prohibited appellant from driving a motor vehicle on the highway for two years.
The judgment and sentence will be reformed to follow the verdict, and, as thus reformed, will be affirmed.
On Motion for Rehearing.
LATTIMORE, Judge.
Appellant urges error on our part in reforming his sentence, which had been by the trial court erroneously entered at two years, so as to make same state the penalty as one year. We reformed the sentence to correspond with the verdict. Appellant urges error on our part in so doing. In felony cases tried by juries alone, under the procedure in this state, the power to fix the punishment is exclusively in the hands of the jury. If the sentence pronounced does not correspond with the punishment so fixed by the jury, this court on appeal has power to rer form it and make it correspond. Article 817, C. C. P.; Holden v. State, 98 Tex. Cr. R. 592, 267 S. W. 275; Laudermilk v. State, 47 Tex. Cr. R. 427, 83 S. W. 1107; Smiddy v. State, 101 Tex. Cr. R. 138, 274 S. W. 602.; Hart v. State, 101 Tex. Cr. R. 514, 276 S. W. 233; Thurman v. .State, 102 Tex. Cr. R. 76, 276 S. W. 1103; Williams v. State, 119 Tex. Cr. R. 345, 42 S.W.(2d) 1017.
The motion for rehearing is overruled.