Opinion
No. 05-14-01484-CR
01-28-2016
LARRY RAY BUTLER, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 194th Judicial District Court Dallas County, Texas
Trial Court Cause No. F06-69427-M
MEMORANDUM OPINION
Before Justices Francis, Evans, and Stoddart
Opinion by Justice Evans
Larry Ray Butler appeals from a judgment revoking his community supervision and assessing his punishment at twenty-two months' confinement in state jail for his conviction of possession of cocaine in an amount less than one gram. In a single issue, appellant asserts his sentence is void and illegal because at a hearing on an earlier motion to revoke community supervision and adjudicate guilt, the trial court granted the State's motion to impose punishment for the offense as a class A misdemeanor as provided in section 12.44(a) of the Texas Penal Code. For the reasons that follow, we affirm the trial court's judgment.
BACKGROUND
Two years after appellant was placed on deferred adjudication community supervision for the felony offense of possession of cocaine in an amount less than one gram, the State filed a motion to adjudicate guilt alleging he violated several conditions of his community supervision. Appellant and the State negotiated a plea agreement providing that in exchange for appellant pleading true to the allegations in the revocation motion, his sentence for the felony conviction would be 270 days in the Dallas County Jail. As part of the plea agreement, the State filed, and the trial court granted, a motion pursuant to section 12.44(a) of the penal code requesting imposition of a sentence for a class A misdemeanor rather than the punishment applicable for the state jail felony. When the trial court questioned appellant about the plea agreement at the revocation/adjudication hearing, however, appellant indicated there were extenuating circumstances he wanted to explain to the court. The trial court advised appellant he could enter an open plea if he did not want the court to follow the plea agreement. After the appellant stated he was "scared," the court stated, "Okay. Well, you can just tell me what's going on, and I'll make the decision. Is that what you want to do?" Appellant responded "Yes." Appellant's counsel then entered appellant's plea of true to the offense. The trial court confirmed with appellant that he was pleading true freely and voluntarily. The trial court also admitted the State's sole exhibit consisting of appellant's voluntary plea of true and stipulation of evidence. Appellant then testified. When appellant's counsel asked appellant if he was asking the trial court to continue his probation, appellant responded "Yes, ma'am." At the conclusion of the hearing, the trial court accepted appellant's guilty plea, found him guilty, and sentenced appellant to punishment at two years' imprisonment in state jail, "probated for two years." The court also ordered appellant to attend outpatient treatment as a condition of probation. Appellant did not object to the punishment nor did he appeal from the trial court's judgment.
The trial court's docket sheet indicates that appellant "requested court to not follow plea bargain," that appellant entered an open plea of true, and the court found appellant guilty and assessed punishment at two years' state jail probated for two years with "IOP a condition of probation."
In November 2010, the State filed a second motion to revoke community supervision. At the revocation hearing on October 23, 2014, appellant entered an open plea of true to the State's allegations. After finding appellant's plea was voluntary and that he had violated various conditions of his probation, the trial court sentenced appellant to twenty-two months' confinement in a state jail facility. It is from this judgment that appellant appeals.
At the time the State's motion was filed, appellant was in custody in California. He was returned to Dallas, Texas on September 30, 2014. --------
ANALYSIS
In his sole issue, appellant contends that his twenty-two month sentence was illegal and void because the trial court never rescinded its order granting the State's motion to impose a class A misdemeanor sentence for appellant's state-jail felony offense.
A sentence is illegal and, thus void, if the sentence is outside the range of punishment authorized by law. Ex parte Parrott, 396 S.W.3d 531, 534 (Tex. Crim. App. 2013); Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003). Appellant does not dispute that he was charged with, pled guilty to, and was found guilty of, a state jail felony, i.e., possession of controlled substance in an amount less than one gram. See TEX. HEALTH & SAFETY CODE ANN. § 481.115(b) (West 2010). The applicable punishment range for a state jail felony is confinement in a state jail facility for a term of not more than two years or less than 180 days and an optional fine not to exceed $10,000. TEX. PENAL CODE ANN. § 12.35 (West Supp. 2015). Thus, appellant's twenty-two month sentence is within the statutory range of punishment and not outside the range authorized by law.
As noted above, the record is clear that at the first revocation hearing in 2009, the State's motion to impose sentence for a class A misdemeanor pursuant to section 12.44(a) of the penal code was part of a plea bargain agreement that appellant ultimately rejected. In the "Agreed sentence" portion of the written plea agreement, the box next to "Confinement in" was checked with the indication "county jail" "for 270 days." The box next to "Other" was also checked with the notation "12.44(a)." The State's 12.44(a) motion was filed contemporaneously with the plea agreement.
At the hearing, however, appellant indicated he did not want to follow the plea bargain agreement and instead entered an open plea of true to the allegations. During his testimony, appellant indicated that he wanted the judge to continue his probation. The trial court granted appellant's request by sentencing him to "two years in the State Jail, probated for two years." At the time appellant was sentenced, there was simply no operative plea agreement in effect because appellant chose to pursue an open plea. Appellant cites no authority, and we have found none, restricting the trial court's punishment assessment based on an order on a motion filed pursuant to a plea bargain that appellant rejected. Moreover, there is nothing in the record to suggest that any party or the trial court considered the order on the 12.44(a) motion as limiting the court's assessment of punishment after appellant indicated his intent to forego the plea bargain and enter an open plea. For the same reasons, the trial court was not bound by the order in 2014 when appellant was sentenced to twenty-two months in state jail after pleading true to the allegations in the State's second revocation motion. Because the sentence appellant received in 2014 falls within the statutory range for punishment of the state jail felony of which he was convicted, his sentence was not illegal or void. We resolve appellant's sole issue against him.
We affirm the trial court's judgment.
/David W. Evans/
DAVID EVANS
JUSTICE Do Not Publish
TEX. R. APP. P. 47
141484F.U05
JUDGMENT
On Appeal from the 194th Judicial District Court, Dallas County, Texas
Trial Court Cause No. F06-69427-M
Opinion delivered by Justice Evans, Justices Francis and Stoddart participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 28th day of January, 2016.