Opinion
No. 05-11-00782-CR
08-07-2012
SHENEQUA LINCOLE BARBER, Appellant v. THE STATE OF TEXAS, Appellee
REVERSE and REMAND; Opinion issued August 7, 2012
On Appeal from the 291st Judicial District Court
Dallas County, Texas
Trial Court Cause No. F10-62339-U
MEMORANDUM OPINION
Before Justices Morris, Moseley, and Myers
Opinion By Justice Morris
At trial, Shenequa Lincole Barber was convicted of theft, enhanced by two previous state jail felony convictions. The trial court assessed punishment at five years' imprisonment and a $2,000 fine. In a single issue, appellant contends the evidence is insufficient to find the enhancement paragraphs true and she should not have been sentenced in the third degree felony range. The State concedes error. We reverse the trial court's judgment as to punishment and remand the cause to the trial court for a new punishment hearing. The background of the case and the evidence admitted at trial are well known to the parties, and we therefore limit recitation of the facts. We issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.4 because the law to be applied in the case is well settled. In her sole issue, appellant argues that she never pleaded true to the enhancement paragraphs in her case nor was any evidence admitted regarding those previous convictions. Thus, appellant contends, her five year sentence is void because it is outside the range for a state jail felony. The indictment in appellant's case alleged she committed the offense of theft of property in an amount less than $1,500 and with two prior theft convictions, a state jail felony. See Tex. Penal Code Ann. § 31.03(e)(4)(D) (West Supp. 2011). The punishment range for a state jail felony is confinement in state jail for 180 days to two years and an optional fine of up to $10,000. Id. § 12.35 (West 2011). The indictment, however, also alleged appellant had two previous state jail felony convictions for credit card abuse and fraudulent use or possession of identifying information. If found true, the enhancement paragraphs would elevate the punishment range to that of a third degree felony: imprisonment for two to ten years and an optional fine of up to $10,000. Id. §§ 12.34, 12.425(a) (West Supp. 2011).
At the plea hearing, appellant waived her right to a jury and pleaded guilty to the theft charges. She did not enter a plea to either enhancement paragraph. Appellant's signed judicial confession and the stipulation of evidence admitted into evidence referred to the theft charge only. The trial court then passed the case for a presentence investigation report. During her sentencing hearing, appellant testified about the theft offense and her criminal background, but she did not enter pleas to the enhancement paragraphs nor did the State present any evidence as to the enhancement paragraphs. Nevertheless, the trial court found the enhancement paragraphs true and orally pronounced punishment at five years' imprisonment and a $2,000 fine. Because there was no evidence to show the offenses alleged in the enhancement paragraphs were committed by appellant, the trial court erred by finding the enhancement paragraphs true and enhancing appellant's sentence under section 12.425(a).
The trial court's judgment incorrectly states the sentence imposed was three years' imprisonment.
Absent the enhancement paragraphs, the punishment range for appellant's conviction was that of a state jail felony, confinement in state jail for 180 days to two years, and an optional fine of up to $10,000. The Texas Court of Criminal Appeals has consistently held that a sentence outside the proscribed punishment range is void and illegal. See Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003). A defendant has an "absolute and nonwaiveable right to be sentenced within the proper range of punishment." Speth v. State, 6 S.W.3d 530, 532-33 (Tex. Crim. App. 1999). We therefore resolve appellant's sole issue in her favor.
We reverse the trial court's judgment as to punishment and remand the cause for a new punishment hearing.
JOSEPH B. MORRIS
JUSTICE
Do Not Publish
Tex. R. App. P. 47
110782F.U05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
SHENEQUA LINCOLE BARBER, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-11-00782-CR
Appeal from the 291st Judicial District Court of Dallas County, Texas. (Tr.Ct.No. F10- 62339-U).
Opinion delivered by Justice Morris, Justices Moseley and Myers participating.
Based on the Court's opinion of this date, the judgment of the trial court is REVERSED as to punishment and the cause REMANDED for a new punishment hearing pursuant to Tex. Code Crim. Proc. Ann. art. 44.29(b).
Judgment entered August 7, 2012.
JOSEPH B. MORRIS
JUSTICE