Russell v. State , 727 S.W.2d 92 ( 1987 )

SCALES, Justice.

ON MOTION FOR REHEARING

On motion for rehearing, we withdraw our previous opinion. The following is now the opinion of the court.

Randall Alex Russell was convicted of involuntary manslaughter. The jury assessed punishment at two years confinement in the Texas Department of Corrections and a $5,000 fine. The jury probated the fine for a period of five years. Russell appeals, in two points of error, contending that: 1) the trial court erred in overruling his challenge for cause of a prospective juror; and 2) the verdict rendered by the jury is void as a matter of law. We disagree with appellant’s first point. We also disagree with appellant’s second point insofar as it characterizes the jury verdict as void. However, we agree that the verdict includes punishment that is not authorized by law. Consequently, we affirm and reform the jury verdict to delete the portion that is unauthorized.

Appellant’s conviction arises out of a one-car accident in which the passenger was killed. At the time of the accident, appellant was driving the car, and he had an alcohol concentration of 0.19 in his blood.³

Appellant contends, in his first point of error, that the trial court erred in overruling his challenge of a prospective juror for cause. Article 35.16(c)(2) of the Texas Code of Criminal Procedure provides that:

(c) A challenge for cause may be made by the following defense for any of the following reasons:

2. That [the prospective juror] has a bias or prejudice against any of the law applicable to the case upon which the defense is entitled to rely, either as a defense to some phase of the offense for which the defendant is being prosecuted or as a mitigation thereof or of the punishment therefor.

TEX.CODE CRIM.PROC.ANN. art. 35.-16(c)(2) (Vernon 1966). Appellant argues that, pursuant to article 35.16(c)(2),⁴ his challenge for cause should have been sustained because the prospective juror expressed doubts as to his ability to give probation.

We must review the trial court’s decision to overrule appellant’s challenge for cause in light of all of the answers that the prospective juror gave during voir dire questioning. Anderson v. State, 633 S.W.2d 851, 854 (Tex.Crim.App.1982). During the defense counsel’s voir dire questioning, the prospective juror stated that, because of his prior driving encounters with drunk drivers, he did not think that he could fairly consider probation. However, during the State’s voir dire examination, the following exchange occurred:

PROSECUTOR: I will ask you one more time then, in an appropriate case could you consider and assess a probated sentence?

PROSPECTIVE JUROR: In a proper case, under all of the testimony and facts, I guess I probably could.

We hold that the State successfully rehabilitated the prospective juror by eliciting statements from him which indicate that he could give probation in a proper case. See Von Byrd v. State, 569 S.W.2d 883, 891 (Tex.Crim.App.1978), cert. denied, 441 U.S. 967, 99 S.Ct. 2418, 60 L.Ed.2d 1073 reh’g denied, 444 U.S. 888, 100 S.Ct. 190, 62 L.Ed.2d 123 (1979); Moore v. State, 542 S.W.2d 664, 671 (Tex.Crim.App.1976); Parsons v. State, 160 Tex.Cr.R. 387, 271 S.W.2d 643, 652 (1953), cert. denied, 348 U.S. 837, 75 S.Ct. 36, 99 L.Ed. 660 (1954). Thus, the trial court did not err in overruling appellant’s challenge for cause. Appellant’s first point of error is overruled.

In his second point of error, appellant argues that the jury verdict is void because the jury assessed a probated fine in addition to a non-probated term of confinement in the Texas Department of Corrections. Prior to the enactment of article 37.10(b) of the Texas Code of Criminal Procedure, the verdict rendered against appellant by the jury would have been void. See Ex parte McIver, 586 S.W.2d 851, 853-54 (Tex.Crim.App.1979). However, article 37.-10(b) authorizes trial courts and appellate courts to reform jury verdicts which contain punishment that is not authorized by law. TEX.CODE CRIM.PROC.ANN. art. 37.10(b) (Vernon Supp.1986). Consequently, a jury verdict before us, is no longer void. See Ex parte Youngblood, 698 S.W.2d 671, 672 (Tex.Crim.App.1985); Ex parte Johnson, 697 S.W.2d 605, 606-07 (Tex.Crim.App.1985). Rather, we may reform the verdict to omit the punishment that is not authorized by law. In a felony case, a probated fine is not authorized by law where the jury has also assessed a non-probated term of confinement. See Ex parte McIver, 586 S.W.2d at 854; see also Ex parte Johnson, 697 S.W.2d at 606 (discussing the McIver holding). Accordingly, pursuant to article 37.10(b), we reform the judgment in cause no. F85-086-HR of the 199th Judicial District Court of Collin County to delete the $5,000.00 probated fine.

As reformed, the judgment of the trial court is affirmed.

3 . By definition, a driver is intoxicated if he or she has an alcohol concentration of 0.10 or higher. TEX.REV.CIV.STAT.ANN. art. 6701/-5, § 3(j)(4) (Vernon Supp.1986).

4 . All statutory references are to the Texas Code of Criminal Procedure.