Garcia v. State

549 S.W.3d 335

Anthony James GARCIA, Sr., Appellant

v.The STATE of Texas, Appellee

No. 11-16-00314-CR

Court of Appeals of Texas, Eastland.

Opinion filed April 30, 2018

Discretionary Review Refused September 19, 2018

Connie J. Kelley, 1108 Lavaca, # 110–221, Austin, TX 78701, for Appellant.

Michael Murray, District Attorney, Elisha Bird, Assistant, 200 South Broadway, Brownwood, TX 76801, for Appellee.

Panel consists of: Willson, J., Bailey, J., and Wright, S.C.J.⁵

MIKE WILLSON, JUSTICE

In this appeal from the judgment in which the trial court revoked Appellant’s community supervision, Appellant collaterally attacks his original conviction for possession of a controlled substance in a drug-free zone on the basis that the trial court assessed an illegal sentence. We vacate and remand.

I. The Charged Offense and Proceedings Below

Appellant was charged by information with the state-jail felony offense of possession of a controlled substance, specifically OxyContin, in an amount of less than one gram¹ and an enhancement that the offense was committed "on or within 1,000 feet of premises owned by an institution of higher learning," a drug-free zone. The parties apparently believed that the enhancement, as alleged, made the offense a third-degree felony.²

Appellant pleaded guilty to the third-degree felony offense of possession of a controlled substance in a drug-free zone. After a hearing, the trial court accepted Appellant’s plea and found him guilty. Appellant and the State "mutually agreed and recommended to the Court" through an "Agreed Punishment Recommendation" that, among other conditions, Appellant would receive ten years of confinement probated for ten years. Consistent with the agreement, the trial court sentenced Appellant to confinement for ten years, suspended the sentence, placed Appellant on community supervision for ten years, and assessed costs and fines, among other conditions. Later, the State moved to revoke Appellant’s community supervision. After a hearing, the trial court revoked Appellant’s community supervision and sentenced Appellant to confinement for six years. Appellant now appeals on a single issue.

II. Analysis

Appellant argues that he received an illegal sentence because the state-jail felony offense he was charged with—possession of a controlled substance in an amount of less than one gram—was improperly enhanced under the drug-free zone statute, Section 481.134 of the Texas Health and Safety Code, because an "institution of higher learning" is not a proper drug-free zone to enhance Appellant’s underlying offense. Appellant argues that, because an illegal sentence was assessed, his judgment of conviction for the third-degree felony offense of possession of a controlled substance in a drug-free zone is void and the subsequent judgment in which the trial court revoked Appellant’s community supervision is also void. The State argues that Appellant cannot challenge his original plea of guilty from this appeal of a revocation of community supervision.

A. This court has jurisdiction to hear Appellant’s complaint of an illegal sentence under the "void judgment" exception.

Appellant claims he was assessed an illegal sentence in his underlying conviction. This court must determine whether it has jurisdiction to address Appellant’s complaint. This is a direct appeal from the revocation of Appellant’s community supervision in which Appellant alleges error not only in the judgment in which the trial court revoked his community supervision but also in his original conviction. "The general rule is that an attack on the original conviction in an appeal from revocation proceedings is a collateral attack and is not allowed." Wright v. State , 506 S.W.3d 478, 481 (Tex. Crim. App. 2016) ; see Manuel v. State , 994 S.W.2d 658, 661 (Tex. Crim. App. 1999) (noting that a criminal defendant "placed on ‘regular’ community supervision may raise issues relating to the conviction, such as evidentiary sufficiency, only in appeals taken when community supervision is originally imposed" (citing Whetstone v. State , 786 S.W.2d 361, 363 (Tex. Crim. App. 1990) ; Traylor v. State , 561 S.W.2d 492, 494 (Tex. Crim. App. 1978) ; Patterson v. State , 487 S.W.2d 736, 737 (Tex. Crim. App. 1972) ; Pitts v. State , 442 S.W.2d 389, 390 (Tex. Crim. App. 1969) ; Gossett v. State , 162 Tex.Crim. 52, 282 S.W.2d 59, 62 (1955) ) ). However, a criminal defendant can collaterally attack his original conviction in an appeal from the revocation of community supervision under the "void judgment" exception. Wright , 506 S.W.3d at 481. "The void judgment exception recognizes that there are some rare situations in which a trial court’s judgment is accorded no respect due to a complete lack of power to render the judgment in question." Nix v. State , 65 S.W.3d 664, 667 (Tex. Crim. App. 2001). "The ‘void judgment’ exception requires that the claimed defect be one that renders the original judgment of conviction void." Wright , 506 S.W.3d at 481.

B. The illegal sentence that Appellant received made his original conviction void, as is the judgment in which the trial court revoked his community supervision.

Appellant pleaded guilty to the improperly enhanced offense of possession of a controlled substance in an amount of less than one gram in a drug-free zone. As a result, Appellant was sentenced to imprisonment for ten years, but the trial court suspended that sentence and placed Appellant on community supervision for ten years. The punishment Appellant received was outside the range of punishment authorized for a state jail felony. See TEX. PENAL CODE ANN. § 12.35(a), (b) (state jail felony is limited to confinement "for any term of not more than two years or less than 180 days" and "a fine not to exceed $10,000"). A "sentence that is outside the range of punishment authorized by law is considered illegal." Ex parte Parrott , 396 S.W.3d 531, 534 (Tex. Crim. App. 2013).

The question that Appellant has asked us to address is whether what he asserts is an illegal sentence renders the judgment of conviction void. In Nix , the Court of Criminal Appeals stated a nearly exclusive list of four instances where a judgment of conviction would be void: "(1) the document purporting to be a charging instrument ... does not satisfy the constitutional requisites of a charging instrument"; (2) "the trial court lacks subject matter jurisdiction over the offense charged"; (3) "the record reflects that there is no evidence to support the conviction"; and (4) "an indigent defendant is required to face criminal trial proceedings without appointed counsel, when such has not been waived, in violation of Gideon v. Wainwright [372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) ]. " Nix , 65 S.W.3d at 668. The Court of Criminal Appeals has explicitly stated that an "illegal sentence" was not one of the four instances listed. Wright , 506 S.W.3d at 482.

In Wright , the Court of Criminal Appeals briefly discussed, without explicitly holding, whether an "illegal sentence" could render an original conviction void under the void judgment exception. 506 S.W.3d at 482. The Wright court indicated that applying the law of habeas from Ex parte Parrott , 396 S.W.3d 531 (Tex. Crim. App. 2013), would guide courts in determining whether the void judgment exception was satisfied. 506 S.W.3d at 482. The Wright court explained that "[e]ven if we were to assume that an illegal sentence could, in appropriate circumstances, render a judgment void, a sentence that can be upheld on habeas because the defendant has failed to show harm is not void under Nix ." Id. at 482.

In discussing Parrott , the Wright court explained that "even if Parrott’s sentence was illegal because of the failure to properly enhance with a prior conviction, the error was harmless because his actual criminal history supported the range of punishment within which he was sentenced and admonished. Such a sentence is not a ‘nullity’ that is ‘accorded no respect.’ " Id. at 482 (footnote omitted). The court held that, if a defendant would lose on habeas under Parrott , then he fails to satisfy the void judgment exception. Id. at 482. The court further explained that "the void judgment exception requires that ‘the record leave no question’ about the existence of a defect that renders the judgment void." Id. at 482. "So if the record available in the revocation appeal leaves open the possibility that the defendant would lose on habeas under Parrott , then the defendant has necessarily failed to satisfy the ‘void judgment’ exception." Id. at 482.

The Wright court affirmed the judgment of the court of appeals, which applied the habeas law of Parrott and Ex parte Rich to hold that the defendant did not receive an illegal sentence. Id. at 482 (holding that the court of appeals did not err in relying on Parrott to determine whether Appellant’s sentence was illegal); see Wright v. State , No. 05-14-00641-CR, 2015 WL 4628189, at *2 (Tex. App.—Dallas Aug. 4, 2015) (mem. op., not designated for publication) (concluding that Appellant failed to show his sentence was "actually illegal"), aff'd , 506 S.W.3d 478. In accordance with Wright , we apply the law on habeas, as set out in Parrott , to this case.

Under Parrott , we must determine if Appellant suffered harm from the illegal sentence that he received. Parrott , 396 S.W.3d at 534–36. Because if he did not suffer harm under Parrott , "the defendant has necessarily failed to satisfy the ‘void judgment’ exception." Wright , 506 S.W.3d at 482. "An applicant demonstrates harm with proof ‘by a preponderance of the evidence that the error contributed to his conviction or punishment.’ " Parrott , 396 S.W.3d at 534 (quoting Ex parte Williams , 65 S.W.3d 656, 658 (Tex. Crim. App. 2001) ). "[A]n applicant is harmed by an illegal sentence when the appellate and habeas records show that he has no other conviction that could support the punishment range within which he was sentenced." Id. at 536 (citing Ex...