Garretson v. State

GARY DAVIS GARRETSON, Appellant v. THE STATE OF TEXAS, Appellee

NO. 14-18-00918-CR

NO. 14-18-00919-CR

State of Texas in the Fourteenth Court of Appeals

September 1, 2020

On Appeal from the 399th Judicial District Court Bexar County, Texas

Trial Court Cause No. 2017-CR-7980 and No. 2017-CR-12813

MEMORANDUM OPINION

Appellant Gary Davis Garretson appeals the trial court's judgment revoking his community supervision for burglary of a building with intent to commit theft¹and possession of a controlled substance, methamphetamine, PG₁, 1 to 4 grams.² Appellant raises three issues in this direct appeal. We reverse and remand.³

I. BACKGROUND

On April 23, 2017, appellant was arrested in San Antonio, Bexar County, Texas and subsequently indicted for possession of a controlled substance, methamphetamine, PG₁, 1 to 4 grams. The following month, on May 9, 2017, appellant was arrested again in San Antonio and indicted for burglary of a building with intent to commit theft.

On February 22, 2018, appellant pled guilty to both charges pursuant to a plea bargain in which he received 7 years, probated to community supervision for 5 years, with the sentences running concurrently. Appellant did not file a direct appeal of his convictions.⁴

On May 13, 2018, in Bexar County, appellant committed the offense of felon in possession of a firearm. Consequently, the State moved to revoke appellant's community supervision (adult probation) for violating the terms of his probation.

On August 1, 2018, the trial court conducted a revocation hearing. Appellant's probation in both cases was revoked after pleading "true" to the new criminal charge (felon in possession) pursuant to an agreement with the State. Pursuant to an agreed recommendation, the trial court assessed punishment at 5years' imprisonment in both cases running concurrently. Appellant made no complaint at the revocation hearing about his sentence in the burglary case exceeding the maximum statutory punishment allowed.

One week later, on August 8, 2018, appellant filed a motion to withdraw his plea and for a new trial. As grounds for a new trial, appellant alleged he was denied effective assistance of counsel at the time of his original plea (i.e., February 2018). According to appellant, he was denied effective assistance of counsel at that time due to legal advice leading him to agree to an illegal sentence. Appellant asserts he agreed to a sentence of 7 years in prison for a state jail felony (burglary of a building) which exceeds the maximum punishment range.⁵ Appellant alleges that his decision to plea on February 22, 2018 could not have been knowingly or intelligently entered.

On August 31, 2018, a visiting trial judge heard and denied appellant's motion for new trial. The visiting judge recognized that the underlying sentence in the burglary conviction exceeded the maximum statutory punishment range. In the middle of the hearing, the visiting judge took a court recess and consulted with the District Attorney's Office regarding his jurisdiction to address the underlying conviction, which invited an objection by defense counsel for his having an ex parte communication. At the conclusion of the hearing, over defense counsel's objection, the visiting trial judge orally issued a nunc pro tunc order to reform the February 22, 2018, judgment of conviction in the burglary case to a 2-year sentence.

Appellant timely filed a notice of appeal in both cases. Thereafter, we consolidated the appeals.

II. ANALYSIS

In his brief, appellant raises the following three issues:

• The trial court committed error is not subject to a harm analysis when [visiting Judge] meted out an illegal five-year incarceration sentence after revoking the Appellant's probation since the sentence was outside of the statutory range of punishment for a state jail felony.

• The trial court committed structural error because when a plea bargain is unenforceable it necessitates the total withdrawal of the total plea bargain thus the nunc pro tunc administered by the judge was void.

• The trial court denied appellant his right to a fair trial, a neutral and detached magistrate, after the [visiting trial] judge engaged in an admitted purposeful ex parte communication with the District Attorney's Office for guidance in making his decision in violation of the Fifth and Sixth Amendments to the U.S. Constitution.

The State argues that this case should be dismissed for lack of jurisdiction, asserting that this direct appeal is a collateral attack on a judgment of conviction in an appeal from a revocation of probation, which is normally prohibited. The State contends that appellant has failed to meet the void judgment exception concerning an illegal sentence as set forth in the Wright/Parrott line of cases.⁶ Alternatively, the State maintains that this court should sever the plea bargain agreement and only reverse and remand the burglary of a building case but affirm the judgment in the possession of a controlled substance case because appellant cannot meet his burden to show that this plea was a "package deal."

A. Jurisdiction

Before we can address appellant's issues, we must determine whether this court has jurisdiction.

1. Collateral attack on initial sentence

Although appellant is appealing from the revocation of his community supervision, he is not challenging the ground for revocation (i.e., the felon in possession charge). Rather, he is challenging one of the original judgments assessing punishment (i.e., burglary of a building with intent to commit theft). "In the 'regular' community supervision context, sentence is assessed when a defendant is placed on probation." Wright, 506 S.W.3d at 481 & n. 20.⁷ An original judgment placing a defendant on community supervision generally must be appealed, if at all, within the appellate time periods following rendition of that judgment.⁸ Martinez v. State, 194 S.W.3d 699, 701 (Tex. App.—Houston [14th Dist.] 2006, no pet.) (citing Nix v. State, 65 S.W.3d 664, 667 (Tex. Crim. App. 2001)). "[A] challenge to the initial assessment of sentence in an appeal from the later revocation is a collateral attack on the assessment of sentence" and "is not allowed." Wright, 506 S.W.3d at 481 & n. 21.

2. Void judgment exception

However, there are exceptions to this rule, including the "void judgment exception."⁹ Whillhite v. State, No. PD-0095-20, 2020 WL 3067568, at *1 (Tex. Crim. App. June 10, 2020) (citing Nix v. State, 65 S.W.3d 664, 667-68 (Tex. Crim. App. 2001)). Under the void judgment exception, the claimed defect is one that rendered the original judgment of conviction void or a nullity. Whillhite, 2020 WL 3067568, at *1; Wright, 506 S.W.3d at 481.

The Court of Criminal Appeals has identified at least four situations in which a judgment might be void. Whillhite, 2020 WL 3067568, at *1; Smith v. State, 309 S.W.3d 10, 17 (Tex. Crim. App. 2010); Martinez, 194 S.W.3d at 701. The very nearly exclusive list of situations in which the judgment of conviction is void are those in which: (1) the document purporting to be a charging instrument (i.e., indictment, information, or complaint) does not satisfy the constitutional requisites of a charging instrument, thus the trial court has no jurisdiction over the defendant, (2) the trial court lacks subject matter jurisdiction over the offense charged, such as when a misdemeanor involving official misconduct is tried in a county court at law, (3) the record reflects that there is no evidence to support the conviction, or (4) an indigent defendant is required to face criminal trial proceedings without appointed counsel, when such has not been waived. Smith v. State, 309 S.W.3d at 17-18; Martinez, 194 S.W.3d at 701-02 (citing Nix, 65 S.W.3d at 668). "While we hesitate to call this an exclusive list, it is very nearly so." Smith, 309 S.W.3d at 18.

3. Illegal sentence

However, there is arguably another scenario that may render a judgment of conviction void: an illegal sentence.¹⁰ An illegal sentence is one that is not authorized by law. See Ex parte Parrott, 396 S.W.3d at 534. A sentence outside the range of punishment authorized by law is considered illegal. Id.; Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003).

Although an illegal sentence is not included in the list of situations in which a judgment is void, an argument that a sentence is illegal may be raised at any time. See Wright, 506 S.W.3d at 482 (assuming for the sake of argument that an illegal sentence could render a conviction void but disposing of the appeal on other grounds); Ex parte Rich, 194 S.W.3d 508, 513 (Tex. Crim. App. 2006) ("[T]here has never been anything in Texas law that prevented any court with jurisdiction over a criminal case from noticing and correcting an illegal sentence," no matter when or how the relief was sought.); Garcia v. State, 549 S.W.3d 335, 341 (Tex. App.—Eastland 2018, pet. ref'd) (holding appellate court had jurisdiction to hear defendant's complaint of an illegal sentence under the void judgment exception to the general prohibition against collateral attacks on an original conviction in appeals from a revocation). Further, the Court of Criminal Appeals has recently found that an arguable ground for relief was presented "if the trial court had no subject matter jurisdiction over appellant's prosecution under section 33.021(b) [of the Texas Penal Code] because the statute had been declared unconstitutional, then appellant's conviction was void and he could raise the issue on appeal from the revocation proceedings." Whillhite, 2020 WL 3067568, at *1 (allowing direct appeal of revocation proceedings that attacked underlying conviction on statutethat was declared unconstitutional); see also Ex parte Rae, No. PD—0734—17, 2018 WL 1406648, at *1 (Tex. Crim. App. Mar. 21, 2018) (remanding in habeas proceeding the case to the trial court to reform the judgment to reflect misdemeanor DWI instead of felony DWI and to conduct a new punishment hearing).

Here, the...