Jeremy Michael Juarez v. the State of Texas ( 2021 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-19-00581-CR
Jeremy Michael Juarez, Appellant
v.
The State of Texas, Appellee
FROM THE 299TH DISTRICT COURT OF TRAVIS COUNTY
NO. D-1-DC-17-904047, THE HONORABLE KAREN SAGE, JUDGE PRESIDING
MEMORANDUM OPINION
In one point of error, Jeremy Michael Juarez appeals from the trial court’s
judgment adjudicating guilt, arguing that the trial court’s sentence of fifteen years’ confinement
was illegal because it exceeded the maximum penalty for a third-degree felony. For the
following reasons, we reverse the judgment and remand the case to the trial court for a new
punishment hearing.
BACKGROUND1
Appellant was indicted for the second-degree felony offense of assault family
violence (strangulation) with two prior convictions of assault family violence. See Tex. Penal
Code § 22.01(b-3) (providing that offense of assault family violence with strangulation is
second-degree felony if defendant has been previously convicted of assault family violence).
1
We limit our discussion to the procedural facts that are necessary to advise the parties
of the Court’s decision and the basic reasons for it. See Tex. R. App. P. 47.1, 47.4.
Appellant and the State entered into a plea agreement in which the State agreed to
waive the two prior convictions and move to reduce the charged offense to a third-degree felony.
See id. § 22.01(b)(2)(B) (stating that offense of assault family violence with strangulation is
third-degree felony). Consistent with the plea agreement, the parties confirmed to the trial court
during the plea hearing that the State was waiving “the two prior convictions” in the indictment
“just because [they did not] need that language,” and the indictment was amended to reduce the
charged offense to a third-degree felony. See Tex. Code Crim. Proc. arts. 28.10 (addressing
amendment of indictment), .11 (explaining how indictment is amended). A bracket with the
word “waive” is handwritten on the indictment in the margin of the two alleged prior
convictions. After appellant pleaded guilty, the trial court found “there’s sufficient evidence to
corroborate your plea of guilty” but deferred a finding of guilt. In a subsequent hearing, the trial
court advised the parties that it was following the plea agreement and placed appellant on
deferred adjudication community supervision for a term of ten years.2
Approximately two years later, the State filed a motion to proceed
with adjudication of guilt. Following a hearing, the trial court found appellant guilty of the
second-degree felony offense of assault family violence (strangulation) with previous
convictions and sentenced him to fifteen years’ confinement. Appellant filed a motion for new
trial that was overruled by operation of law. This appeal followed.
2
The plea agreement shows that appellant incorrectly initialed the punishment range for
a second-degree felony. The trial court also incorrectly admonished appellant as to the
punishment range for a second-degree felony, and the order deferring further proceedings
incorrectly states that the court “found sufficient evidence to find defendant guilty of the offense
of Assault Int/Reck Breath/Circ Family Violence, A Felony – Level 2.” Placing appellant on
deferred adjudication community supervision for a period of 10 years, however, was not an
illegal sentence. See Tex. Code Crim Proc. art. 42A.101 (authorizing court to defer further
proceedings without entering adjudication of guilt); see also id. art. 42A.103 (stating that in
felony case, period of deferred adjudication community supervision may not exceed 10 years).
2
ANALYSIS
In his sole point of error, appellant contends that his sentence of fifteen years’
confinement is an illegal sentence because the State waived his prior convictions as part of the
plea agreement and, therefore, “he was charged with a third-degree felony and the maximum
period of confinement was 10 years.” The State agrees with appellant.
“A sentence that is outside the maximum or minimum range of punishment is
unauthorized by law and therefore illegal.” Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim.
App. 2003). “A defendant may obtain relief from an unauthorized sentence on direct appeal or
by a writ of habeas corpus.” Id. The maximum term of confinement for an individual adjudged
guilty of a third-degree felony is ten years. See Tex. Penal Code § 12.34(a) (“An individual
adjudged guilty of a felony of the third degree shall be punished by imprisonment in the Texas
Department of Criminal Justice for any term of not more than 10 years or less than 2 years.”).
Although appellant was indicted for a second-degree felony, the State concedes
that it waived the two prior convictions for assault family violence that were alleged in the
indictment and that the charged offense in the amended indictment was a third-degree felony.
See id. § 22.01(b)(2)(B). The handwritten “waive” on the indictment in the margin of the two
alleged prior convictions was an acceptable way to amend the indictment. See Riney v. State,
28 S.W.3d 561, 565–66 (Tex. Crim. App. 2000) (explaining that physical interlineation of
original indictment is acceptable way to amend indictment); see also Tex. Code Crim. Proc.
arts. 28.10, .11. Thus, appellant’s sentence of fifteen years’ confinement exceeds the maximum
range of confinement allowed by statute and, therefore, is illegal. See Tex. Penal Code
§ 12.34(a); Mizell, 119 S.W.3d at 806. Accordingly, we sustain appellant’s point of error.
3
CONCLUSION
Having sustained appellant’s point of error, we reverse the judgment and remand
the case to the trial court for a new punishment hearing.3
__________________________________________
Melissa Goodwin, Justice
Before Justices Goodwin, Triana, and Smith
Reversed and Remanded
Filed: June 16, 2021
Do Not Publish
3
The State asks this Court to reform the judgment because the trial court improperly
found appellant guilty of a second-degree felony. Because we are reversing the judgment,
however, the trial court necessarily will have to enter a new judgment following the punishment
hearing. Compare Tex. R. App. P. 43.2(b) (authorizing appellate court to modify judgment and,
as modified, affirm) with id. R. 43.2(d) (authorizing appellate court to reverse and remand for
further proceedings). We are confident that the trial court’s judgment following the punishment
hearing will reflect that the “Degree of Offense” is “Third Degree Felony.” See Rabb v. State,
483 S.W.3d 16, 24 (Tex. Crim. App. 2016) (remanding to trial court and ordering trial court to
reform judgment and conduct punishment hearing); see also Tex. Code Crim. Proc. art. 44.29(b)
(addressing remand for new punishment hearing).
4