Mayes v. State

A jury found appellant guilty of the second degree felony of sexual assault. At the punishment phase, the trial judge properly instructed the jury concerning the punishment range (two to twenty years in prison) and the possibility of community supervision. The jury returned a verdict sentencing appellant to two years in prison and recommending community supervision. The judge told the jury that its verdict was illegal because the minimum period of community supervision for sexual assault is five years. She told them to deliberate again, and the jury then assessed a sentence of five years and once more recommended community supervision. Although the minimum community supervision period is five years, the jury properly returned a verdict within the sentencing range of two to twenty years. Because supervision is not a part of the sentence, appellant could receive a sentence of two years, and the trial judge could place him on community supervision for the minimum term of five years (or for any greater period up to 10 years). The jury was properly instructed on the pertinent law, and it followed that law. The initial jury verdict of a sentence of two years with a recommendation of community supervision was legal, and the trial judge should have accepted it.The court of appeals' judgment is reversed and remanded to address the issue of error preservation. Court of Criminal Appeals, No. PD-1633-10, 09-14-2011.

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Cochran, J., delivered the opinion of the Court in which Keller, P.J., and Meyers, Price, Womack, Johnson, Keasler and Hervey, JJ., joined. Alcala, J., did not participate.

OPINION

A jury found appellant guilty of the second degree felony of sexual assault. At the punishment phase, the trial judge properly instructed the jury concerning the punishment range (two to twenty years in prison) and the possibility of community supervision. The jury returned a verdict sentencing appellant to two years in prison and recommending community supervision. The judge told the jury that its verdict was illegal because the minimum period of community supervision for sexual assault is five years.*fn1 She told them to deliberate again, and the jury then assessed a sentence of five years and once more recommended community supervision. The issue in this case is whether the initial verdict was in fact illegal. The court of appeals held that it was,*fn2 but we conclude that a jury sentence of two years confinement with a recommendation of community supervision is not an illegal or improper verdict.

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