Nos. 05-03-01391-CR, 05-03-01392-CR, 05-03-01393-CR
Opinion filed August 16, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 265th Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F99-01008-HR, F99-52392-JR, F99-52393-JR. Affirmed as Modified in part; Reversed and Remanded in part.
Before Justices MOSELEY, BRIDGES, and O'NEILL.
Opinion By Justice MOSELEY.
Barbara Ann Dears appeals the punishments assessed on her convictions for theft of personal property, possession with intent to deliver heroin in an aggregate amount of four grams or more but less than 200 grams, and (3) possession of cocaine in an aggregate amount of four grams or more but less than 200 grams. A panel of the Court originally dismissed this appeal for want of jurisdiction on grounds that the trial court had certified that these convictions involved plea bargain agreements and that, pursuant to rule of appellate procedure 25.2(a)(2), appellant didn't have the right to appeal. Dears v. State, No. 05-03-01391-CR, slip op. at 2 n. 2, 2003 WL 22451057 (Tex.App.-Dallas Oct. 29, 2003, pet. granted) (mem. op.) (not designated for publication). The court of criminal appeals reversed, concluding that we misapplied rule 25.2(a)(2) when the rule refers only to plea bargains with regard to guilty pleas, not pleas of true on revocation motions, and that the certification was defective, and remanded for further proceedings. Dears v. State, 154 S.W.3d 610, 613-14 (Tex.Crim.App. 2005). In each appeal, appellant contends in a single issue that the sentence assessed is void. For the reasons below, we: (1) reverse and remand the judgments for further sentencing proceedings in the theft and heroin cases; and (2) modify the judgment in the cocaine case and affirm as modified. We rely on the court of criminal appeals's opinion for the procedural background of the theft and heroin cases, but we detail below the procedural background of the cocaine case. See id. at 611-12.
Trial court cause number F99-01008-HR; appellate court cause number 05-03-01391-CR.
Trial court cause number F99-52392-JR; appellate court cause number 05-03-01392-CR.
Trial court cause number F99-52393-JR; appellate court cause number 05-03-01393-CR.
I. THEFT CASE
Regarding punishment for the theft offense, appellant contends the trial court erred in using a prior felony theft conviction to enhance her punishment under section 12.42 of the penal code, the habitual offender provision. Appellant was indicted for the felony offense of theft of personal property with a value of less than $1,500. The indictment also alleged appellant had been previously convicted of a felony theft and a misdemeanor theft, making the offense a state jail felony. See Tex. Pen. Code Ann. § 31.03(e)(4)(D) (Vernon Supp. 2006). The punishment range for a state jail felony is "confinement in a state jail for any term of not more than two years or less than 180 days" and possible fine not to exceed $10,000. Id. § 12.35(a), (b) (Vernon 2003). The indictment also contained two enhancement paragraphs, alleging a different felony theft conviction and a robbery conviction; two prior felony convictions would make the offense punishable as a second degree felony. See id. § 12.42(a)(2) (Vernon Supp. 2006). The punishment range for a second degree felony is imprisonment for not less than two years or more that twenty years, and a possible fine not to exceed $10,000. See id. § 12.33 (Vernon 2003). Appellant was sentenced to five years' confinement in this theft case. Appellant argues, and the State agrees, that the State may not rely on a prior felony theft conviction to enhance punishment under section 12.42(a)(2) of a state jail felony theft offense under section 31.03(e)(4)(D). Brown v. State, 14 S.W.3d 832, 832-33 (Tex.App.-Austin 2000, pet. ref'd) (citing Ex parte Firo, 815 S.W.2d 568, 569 (Tex.Crim.App. 1991), and Rawlings v. State, 602 S.W.2d 268, 269-70 (Tex.Crim.App. 1980)); Freeman v. State, 970 S.W.2d 55, 59-60 (Tex.App.-Tyler 1998, no pet.). Accordingly, the prior felony theft conviction could not be used to enhance appellant's punishment pursuant to section 12.42(a)(2). See Brown, 14 S.W.3d at 832-33; Freeman, 970 S.W.2d at 59-60. Because appellant's sentence of five years is above the maximum range of punishment for a state jail felony, it is void. See Mizell v. State, 119 S.W.3d 804, 806 (Tex.Crim.App. 2003) ("A sentence that is outside the maximum or minimum range of punishment is unauthorized by law and therefore illegal."); Levy v. State, 818 S.W.2d 801, 802 (Tex.Crim.App. 1991). Accordingly, we resolve appellant's single issue in cause number 05-03-01391-CR in her favor. II. DRUG CASES A. Possession with Intent to Deliver Heroin
Appellant was indicted for intentionally and knowingly possessing with intent to deliver heroin in an amount by aggregate weight of four grams or more but less than 200 grams, a first degree felony. See Tex. Health Safety Code Ann. § 481.102(2) (Vernon Supp. 2006); Act of May 18, 1989, 71st Leg., R.S., ch. 678 § 1, sec. 481.112, 1989 Tex. Gen. Laws 2230, 2935, amended by Act of May 22, 2001, 77th Leg., R.S., ch. 1188, § 2, 2001 Tex. Gen. Laws 2691 (current version at Tex. Health Safety Code Ann. § 481.112(a), (d) (Vernon 2003)). The punishment range for a first degree felony is imprisonment for not less than five years up to ninety-nine years or life, and a possible fine of up to $10,000. Tex. Pen. Code Ann. § 12.32 (Vernon 2003). The indictment alleged appellant had been convicted previously of a single felony offense. Accordingly, the punishment range for the indicted offense, enhanced, was confinement in the penitentiary for not less than fifteen years or more than ninety-nine years or life and an optional fine. See id. § 12.42(c)(1) (Vernon Supp. 2006). The record shows appellant pled true orally and in writing to the allegation in the enhancement paragraph, and the trial court found the allegation true. Based on the evidence presented, the trial court found the evidence sufficient to substantiate guilt and reset the case for sentencing. At the sentencing hearing, the trial court found appellant guilty as charged and assessed punishment at ten years and a $750 fine. Subsequently, as detailed below, appellant filed a motion for new trial arguing the sentence in the heroin case was "impossible" because the minimum sentence was fifteen years. The State orally joined in the motion. The trial court left the previously imposed sentence intact and orally sentenced appellant to ten years and a $750 fine. Subsequently, the trial court placed appellant on shock probation for ten years. About two years later, the State filed a motion to revoke probation. Appellant pled true to the probation violations pursuant to an agreement. The trial court revoked appellant's probation and sentenced her to confinement for five years. Appellant contends that the trial court erred in assessing an initial sentence of ten years' confinement, subsequently granting shock probation, and assessing a final sentence of five years because "the sentence is illegal and the judgment void." The State responds that the originally assessed ten-year sentence was illegal, the proceedings after that sentence were a nullity, and the case should be remanded for sentencing. Because appellant pled true to the enhancement paragraph and the trial court so found, the minimum sentence for this enhanced offense is fifteen years. See Tex. Pen. Code Ann. § 12.42(c)(1). The originally imposed sentence of ten years was less than the minimum term of confinement and was therefore void. See Mizell, 119 S.W.3d at 806; Levy, 818 S.W.2d at 802. The granting of shock probation and the sentence of five years imposed after revocation were based on an unauthorized sentence were also improper and void. See Tex. Code Crim. Proc. Ann. art. 42.12, §§ (6)(a), 23(a) (Vernon Supp. 2006). Accordingly, we resolve appellant's single issue in cause number 05-03-01392-CR in her favor. B. Possession of Cocaine
Regarding the cocaine case, appellant contends the sentence assessed, five years, is void. The State disagrees, arguing the record shows the trial court assessed a proper sentence. 1. Background
Appellant was indicted for intentionally and knowingly possessing with intent to deliver cocaine in an amount of four grams of more but less than 200 grams, a first degree felony. See Health Safety Code Ann. § 481.102(3)(D) (Vernon Supp. 2006); Act of May 18, 1989, 71st Leg., R.S., ch. 678 § 1, sec. 481.112, 1989 Tex. Gen. Laws 2230, 2935 (amended 2001) (current version at Tex. Health Safety Code Ann. § 481.112(a), (d)); Tex. Pen. Code Ann. § 12.32 (punishment range for first degree felony is imprisonment for not less than five years up to ninety-nine years or life, and possible fine of up to $10,000). As in the heroin case, the indictment also included an allegation of a prior felony conviction, raising the punishment range to confinement in the penitentiary for not less than fifteen years or more than ninety-nine years or life and an optional fine. See Tex. Pen. Code Ann. § 12.42(c)(1). Appellant pled guilty to the charged offense and true to the enhancement paragraph. The trial court found the evidence substantiated her guilt and that the allegation in the enhancement paragraph was true. At the sentencing hearing, the trial court found appellant guilty as charged and orally sentenced her to confinement for ten years and a $750 fine. On the seventh day after the sentencing hearing, the trial court heard a motion for new trial that was directed to the sentences in the drug cases. The State orally joined in the motion "to reopen and reconsider sentencing." The trial court withdrew the sentence and the finding of guilt in the cocaine case and found the evidence substantiated a finding of guilt in that case, and placed appellant on deferred adjudication probation for ten years. On August 14, 2003, the trial court heard the State's motion to revoke probation in all these cases, and, appellant having pled true to the probation violations and reached an agreement as to punishment, the trial court accepted appellant's pleas of true. The record includes a "State's Motion to Reduce the Offense Charged," reducing the cocaine offense to the "lesser and included offense" of possession of cocaine in an amount over four grams but less than 200 grams; the presiding judge granted the motion. The trial court found appellant "guilty of the included offense of possession of a controlled substance, cocaine, having once before been confined [sic] for a felony offense." The court set punishment at five years' confinement in the penitentiary, and signed a final judgment adjudicating guilt. 2. Discussion
The premise of appellant's argument is that the sentence orally assessed (ten years) on the original adjudication was the only valid sentence, and the trial court's subsequent deferral of adjudication, probation, proceeding to adjudication, and imposition of a new sentence (five years) were a nullity. However, appellant's argument overlooks the trial court's withdrawal of the finding of guilt on the original charge for possession with intent to deliver cocaine, then finding the evidence substantiated a finding of guilt, and deferral of adjudication. See Tex. Code Crim. Proc. Ann. art. 42.12, § 5(a) (Vernon Supp. 2006). Because appellant received deferred adjudication, no sentence was imposed. On the State's motion to revoke probation, the trial court set aside the order deferring adjudication, adjudicated guilt as to possession of cocaine, and pronounced sentence. See Taylor v. State, 131 S.W.3d 497, 502 (Tex.Crim.App. 2004) (noting defendant not sentenced until guilt adjudicated). Appellant's reliance on Ex parte Reynolds, 462 S.W.2d 605 (Tex.Crim.App. 1970), and Powell v. State, 63 S.W.2d 712 (Tex.Crim.App. 1933), is misplaced because those cases involve re-sentencing but not withdrawal of a finding of guilt, then a finding that the evidence substantiated a finding of guilt, and deferral of adjudication. The record shows appellant was convicted of possession of four grams or more but less than 200 grams of cocaine, a second degree felony, enhanced by a prior conviction, making the punishment the same as a first degree felony. See Tex. Health Safety Code Ann. §§ 481.102(3)(D), .115(a), (d) (Vernon 2003); Tex. Pen. Code Ann. § 12.42(b). The punishment for a first degree felony is confinement for not less than five years or more than ninety-nine years or life, and possible fine of up to $10,000. See Tex. Pen. Code Ann. § 12.32. Accordingly, because the sentence of five years is within the range of punishment, it is proper, and we resolve appellant's single issue in cause number 05-03-01393-CR against her. III. CONCLUSION
Because of our resolution of appellant's issues in the theft case (cause number 05-03-01391-CR) and the heroin case (cause number 05-03-01392-CR), we reverse the judgments in those cases and remand them for further sentencing proceedings. See Tex. Code Crim. Proc. Ann. art. 44.29(b) (Vernon Supp. 2006). We note the judgment in the theft case erroneously states the offense as a third degree felony. In the cocaine case (cause number 05-03-01393-CR), we modify the judgment to show that appellant pled true to the enhancement paragraph and the enhancement paragraph was found true. See Tex.R.App.P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex.Crim.App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex.App.-Dallas 1991, pet. ref'd). Because of our resolution of appellant's issue in cause number 05-03-01393-CR, we affirm the judgment as modified.