Arnold v. State (2003)
In Arnold v. State, 115 S.W.3d 757 (Tex. App.--Austin 2003, no pet.), the court of appeals held that the trial court "erred by telling the jury that the 'minimum sentence for probation is five years,'" when article 42.13 provided that the minimum period for community supervision for child sex offenders was five years. Id. at 760.
The appellate court noted, "The period of supervision is not a sentence. The sentence is the term of incarceration that is suspended on the jury's recommendation." Id. at 760 n.4.
The trial court in Arnold also erred by not requiring the jury to assess a prison term before recommending supervision and by, instead, imposing the prison term itself. Id. Article 42.12 requires that the jury first impose confinement and then recommend probation. See TEX. CODE CRIM. PROC. art. 42.12 (a), (b).
The Arnold court found the errors to be harmless, however, because the jury did not recommend community supervision. 115 S.W.3d at 760.