Opinion
05-22-00569-CR
01-25-2023
ARZAVIER ROBERTSONWOMACK, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish Tex.R.App.P. 47.2(b)
On Appeal from the 204th Judicial District Court Dallas County, Texas Trial Court Cause No. F17-52943-Q
Before Justices Pedersen, III, Goldstein, and Smith Opinion by Justice Goldstein
MEMORANDUM OPINION
BONNIE LEE GOLDSTEIN, JUSTICE
Appellant Arzavier Robertsonwomack complains that the trial court's judgment is void as it exceeds the maximum sentence for his conviction. The State agrees as do we. We therefore vacate the judgment and remand for a new trial on punishment.
We note without comment, as no issue has been raised, that the record refers to appellant's surname interchangeably as Womack, Robertson-Womack, and Robertsonwomack. The indictment, judgment, and notice of appeal use the latter spelling, which resulted in the case being docketed with the above style on appeal. To avoid confusion, consistent with other opinions, we shall use "appellant" to refer to the defendant on appeal.
In September 2017, appellant was indicted on one count of selling less than a quarter ounce of marijuana. See Tex. Health & Safety Code Ann. § 481.120. The State alleged in an enhancement paragraph that the offense was committed within 1,000 feet of a school zone. See id. § 481.134. Appellant pled guilty to the charge and, pursuant to a plea bargain agreement, adjudication of his guilt was deferred, and he was placed on two years' community supervision. On April 17, 2018, the State filed a motion to revoke appellant's community supervision, and appellant entered an open plea of true. The trial court accepted appellant's plea, adjudicated him guilty, revoked his community supervision, and assessed punishment at three years' confinement, with sentence to commence on May 31, 2022. Appellant filed a motion for new trial, which was denied. This appeal followed.
Appellant argues, and the State agrees, that his confinement is illegal because it exceeds the maximum punishment range for the offense with which he was charged. A sentence outside the minimum or maximum range of punishment is unauthorized by law and therefore void. Ex parte Hill, 632 S.W.3d 547, 557 (Tex. Crim. App. 2021); Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003). A void sentence may be challenged at any time. Ex parte Rodgers, 598 S.W.3d 262, 267 (Tex. Crim. App. 2020). Any court with jurisdiction may notice and correct an illegal sentence, even if the defendant did not object in the trial court. Mizell, 119 S.W.3d at 806 & n.6. The appropriate remedy to correct a void judgment that assesses punishment outside the statutory range is to remand for a new trial on punishment. See O'Reilly v. State, 501 S.W.3d 722, 730 (Tex. App.-Dallas 2016, no pet.); Lombardo v. State, 524 S.W.3d 808, 817 (Tex. App.-Houston [14th Dist.] 2017, no pet.).
The sale of marijuana in an amount less than one-quarter of an ounce is a Class A misdemeanor. See Tex. Health & Safety Code Ann. § 481.120(a), (b)(2). That offense may be enhanced to a state jail felony if it is committed within a thousand feet of "any real property that is owned, rented, or leased to a school or school board[.]" Id. § 481.134(e)(1). A state jail felony is punishable by confinement for a maximum of two years. Tex. Penal Code Ann. § 12.35(a). However, a state jail felony is punished as a third-degree felony if the defendant (1) used or exhibited a deadly weapon during the commission of the offense or (2) was previously convicted of a felony. Id. § 12.35(c).
Here, the indictment charged appellant with selling less than a quarter ounce of marijuana within 1,000 feet of a school zone. There is nothing in the record indicating appellant used or exhibited a deadly weapon or had a prior felony conviction. Appellant's punishment was therefore limited to two years' confinement. Because the judgment adjudicating appellant guilty assessed punishment at three years' confinement, it is void as to punishment. See Ex parte Hill, 632 S.W.3d at 557; Mizell, 119 S.W.3d at 806.
Accordingly, we sustain appellant's sole issue, vacate the trial court's judgment, and remand this case for a new trial on punishment.
JUDGMENT
Based on the Court's opinion of this date, the judgment of the trial court is REVERSED and the cause REMANDED for a new punishment trial.
Judgment entered January 25, 2023