Opinion
Nos. 05-03-00717-CR, 05-03-00718-CR, 05-03-00719-CR, 05-03-00720-CR, 05-03-00721-CR, 05-03-00722-CR, 05-03-00723-CR
Opinion Filed December 2, 2003. DO NOT PUBLISH.
On Appeal from the 283rd Judicial District, Court Dallas County, Texas, Trial Court Cause Nos. F99-55623-Nt, F99-55624-Nt, F02-57771-Rt, F03-15031-Kt, F03-40259-Rt, F03-40260-Rt, and F03-40261-Rt.
Affirmed in part; Reversed and Remanded in part.
Before Justices MOSELEY, FITZGERALD, and LANG.
OPINION
David Terry Moore waived a jury trial and entered negotiated guilty pleas to robbery (cause no. 05-03-00717-CR) and unlawful possession of cocaine in an amount less than one gram (cause no. 05-03-00718-CR). See Tex. Pen. Code Ann. § 29.03 (Vernon 2003); Tex. Health Safety Code Ann. § 481.115(a), (b) (Vernon 2003). Pursuant to the plea agreements, the trial court sentenced appellant to six years confinement and a $1000 fine for the robbery and two years in a state jail facility and a $1000 fine for the cocaine possession. In both cases, the trial court granted appellant's motion for shock probation and placed him on community supervision for five years. Subsequently, appellant pleaded true to allegations in the State's motion to revoke that he committed five new robbery offenses. The trial court found the allegations true, revoked appellant's probation, and sentenced him to six years' confinement for the robbery and two years in a state jail facility for possession of cocaine.
In the five new cases, appellant entered open guilty pleas to robbery (cause nos. 05-03-00719-CR, 05-03-00720-CR, 05-03-00721-CR, 05-03-00722-CR, and 05-03-00723-CR). In four of the cases, appellant also pleaded true to one enhancement paragraph. The trial court found the enhancement paragraph true and sentenced appellant to fifty years' confinement in each case.
In two points of error, appellant contends the trial court erred in sentencing him outside the punishment range in one robbery case, and his pleas of guilty and true were involuntary because he believed he would receive drug treatment and probation. We sustain appellant's first point of error and overrule his second point of error.
Illegal Sentence
In his first point of error, appellant argues the sentence assessed in cause no. 05-03-00719-CR was outside the range of punishment allowed by law and is, therefore, illegal. Appellant asks that we reverse the trial court's judgment in this case and remand to the trial court for a new punishment hearing. The State responds that appellant failed to preserve error by not objecting to the sentence in the trial court or in a motion for new trial. In the alternative, the State concedes the case should be remanded to the trial court for a new punishment hearing.The court of criminal appeals has long held that a sentence is void or illegal when the punishment is not authorized by law, and thus renders the judgment void. See Ex parte Beck, 922 S.W.2d 181, 182 (Tex.Crim. App. 1996); Ex parte Johnson, 697 S.W.2d 605, 606 (Tex.Crim.App. 1985). A void judgment may always be collaterally attacked. See Ex parte Seidel, 39 S.W.3d 221, 225 n. 4 (Tex.Crim.App. 2001) (citing Ex parte Beck, 922 S.W.2d at 182). Thus, although appellant did not object at trial or in a motion for new trial, appellant has not waived his complaint.
In cause no. 05-03-00719-CR, appellant was indicted for robbery, a second-degree felony offense. There was no enhancement paragraph contained in the indictment. The punishment range for a second-degree felony offense is confinement in the penitentiary for not more than twenty years or less than two years and an optional fine of up to $10,000. See Tex. Pen. Code Ann. § 12.33 (Vernon 2003). Appellant's fifty-year sentence in this case is outside the punishment range and is not authorized by statute. Accordingly, we sustain appellant's first point of error.
Involuntary Pleas
In his second point of error, appellant argues his pleas of true (cause nos. 05-03-00717-CR and 05-03-00718) and guilty (cause nos. 05-03-00720-CR, 05-03-00721-CR, 05-03-00722-CR, and 05-03-00723-CR) were involuntary because he believed he would receive drug treatment and probation. Appellant argues he did not understand the consequences of his pleas. The State responds appellant entered his pleas with a full understanding of the consequences. We agree with the State.The record shows the trial judge properly admonished appellant orally and in writing. See Tex. Code Crim. Proc. Ann. art. 26.13(a), (d) (Vernon 1989 Supp. 2004); Kirk v. State, 949 S.W.2d 769, 771 (Tex.App.-Dallas 1997, pet. ref'd). At a joint hearing on the five new robbery cases and two revocation cases on March 10, 2003, appellant testified he understood the charges in the indictments and the allegations in the motion to revoke, and he understood the punishment range for the offenses in light of the enhancement paragraph. Appellant also testified: (1) he understood the judge would sentence him to any term within the punishment range; (2) he was freely pleading guilty to the new offenses because he was guilty of the offenses as charged in the indictments; (3) he was voluntarily pleading true to the allegations in the motion to revoke; and (4) he knowingly and voluntarily signed a judicial confession in each of the five robbery cases, voluntarily signed a plea of true to the enhancement paragraph in four of the robbery cases, and voluntarily signed pleas of true to the allegations in the two revocation cases. The trial judge passed all of the cases for a presentence investigation report.
During the March 27, 2003 sentencing hearing, appellant testified about his drug addiction and his physical and mental disabilities, and asked the trial judge to give him drug treatment. Appellant requested that the trial court order a comprehensive assessment and treatment services psychological evaluation before sentencing. The trial judge granted appellant's request and passed the case for the evaluation. The sentencing hearing resumed on April 24, 2003, at which appellant testified about information contained in the evaluation summary. The trial judge then pronounced sentence. Nothing in the record shows appellant believed the trial judge would place him on probation.
We conclude appellant has not shown he was not aware of the consequences of his pleas and was harmed or misled by the trial judge's admonishments. See Tex. Code Crim. Proc. Ann. art. 26.13(c) (Vernon 1989); Martinez v. State, 981 S.W.2d 195, 197 (Tex.Crim. App. 1998). The fact that appellant received greater punishment than he hoped for does not render his pleas involuntary. See Tovar-Torres v. State, 860 S.W.2d 176, 178 (Tex. App.-Dallas 1993, no pet.). Accordingly, we overrule appellant's second point of error.
Conclusion
In cause nos. 05-03-00717-CR, 05-03-00718-CR, 05-03-00720-CR, 05-03-00721-CR, 05-03-00722-CR, and 05-03-00723-CR, we affirm the trial court's judgment.In cause no. 05-03-00719-CR, we reverse the trial court's judgment and remand to the trial court for a new punishment hearing. See Tex. Code Crim. Proc. Ann. art. 44.29(b) (Vernon Supp. 2004).