Opinion
No. 05-08-01445-CR
Opinion Filed April 29, 2009. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause No. F02-21081-KI.
Before Justices MOSELEY, O'NEILL, and MURPHY.
OPINION
Christopher C. Jackson waived a jury and pleaded guilty to possession with intent to deliver cocaine in an amount of more than 400 grams. The trial court deferred adjudicating guilt, placed appellant on seven years' community supervision, and assessed a $1000 fine. The State later moved to adjudicate guilt, alleging appellant violated the terms of his community supervision. At a hearing on the motion, appellant pleaded true to the violations. The trial court granted the State's motion, adjudicated appellant guilty, and assessed punishment at fifteen years' imprisonment. In a single point of error, appellant contends the trial court's failure to assess a mandatory fine renders the sentence void and constitutes reversible error. We reverse and remand to the trial court for a new punishment hearing. Appellant argues the statute under which he was convicted provides punishment that includes both imprisonment and a fine. Because the trial court assessed a term of imprisonment without including a fine, the sentence is void. Appellant asks us to reverse the trial court's judgment and remand the case to that court for a new punishment hearing. The State agrees that appellant's sentence is void and appellant should receive a new punishment hearing. Appellant was convicted of possession with intent to deliver cocaine in an amount of more than 400 grams. See Tex. Health Safety Code Ann. § 481.112(a) (Vernon 2003). The punishment range for the offense is imprisonment for a term from fifteen to ninety-nine years or life and a fine not to exceed $250,000. See id., § 481.112 (f). Because appellant's sentence did not contain a fine in addition to the period of incarceration, the punishment assessed was not authorized by law. See Ex parte Rich, 194 S.W.3d 508, 512 (Tex.Crim.App. 2006). A sentence outside the statutory punishment range for an offense is void. See Hern v. State, 892 S.W.2d 894, 896 (Tex.Crim.App. 1994). When a sentence is void, an appellant must receive a new punishment hearing. See Tex. Code Crim. Proc. Ann. art. 44.29(b) (Vernon Supp. 2008). We sustain appellant's sole point of error. We reverse the trial court's judgment and remand for a new punishment hearing.
We have jurisdiction to address appellant's complaint even though the trial court's certification recites that appellant waived the right of appeal. Appellant's unbargained-for waiver of appeal was executed before the trial court decided to proceed to adjudication of guilt, and there was no recommended sentence. Therefore, appellant's waiver of appeal was not made knowingly and intelligently regarding the sentencing phase of trial. See Ex parte Delaney, 207 S.W.3d 794, 798 (Tex.Crim.App. 2006).
In its brief, the State mistakenly cites section 481.115 of the Texas Health and Safety Code as the statute under which appellant was convicted. That statute pertains to possession of controlled substances in penalty group 1, while the offense in this case concerns possession with intent to deliver a controlled substance in penalty group 1.