Frederick Earl Washington v. State ( 2001 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-01-00003-CR
Frederick Earl Washington, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF BASTROP COUNTY, 21ST JUDICIAL DISTRICT
NO. 9560, HONORABLE JOHN L. PLACKE, JUDGE PRESIDING
Appellant Frederick Earl Washington was convicted of robbery after pleading guilty.
See Tex. Pen. Code Ann. § 29.02 (West 1994). His sole contention on appeal is that the forty-five
year sentence imposed by the court is unauthorized by law and void. We agree.
The indictment alleged two previous felony convictions for the purpose of enhancing
punishment. See id. § 12.42(d) (West Supp. 2001). On October 11, 2000, when Washington
appeared before the district court and pleaded guilty to the alleged robbery, the parties agreed to
reserve the enhancement issue for the sentencing hearing. With that, the court found Washington
guilty and reset the cause for sentencing.
Washington returned to court on November 28. He did not enter a plea to the
enhancement allegations, the State offered no evidence to prove the enhancement allegations, and the
court did not find the enhancement allegations to be true. Under the circumstances, appellant’s
sentence was not subject to enhancement. In fact, the court’s written judgment reflects that no
finding was made regarding the enhancement allegations. Nevertheless, the district court assessed
punishment at imprisonment for forty-five years.
Robbery is a second-degree felony. Id. § 29.02(b). Washington’s forty-five year
sentence exceeds that authorized for a second-degree felony. Id. § 12.33 (West 1994). A sentence
not authorized by law is void. Levy v. State, 818 S.W.2d 801, 802 (Tex. Crim. App. 1991); Brown
v. State, 14 S.W.3d 832, 833 (Tex. App.—Austin 2000, pet. ref’d); see Ex parte Seidel, 39 S.W.3d
221, 225 n.4 (Tex. Crim. App. 2001). Therefore, we affirm the district court’s judgment as to the
finding of guilt, but reverse that portion of the judgment imposing sentence and remand the cause for
reassessment of punishment within the range prescribed for a second-degree felony.
__________________________________________
Bea Ann Smith, Justice
Before Justices Kidd, B. A. Smith and Puryear
Affirmed in Part, Reversed and Remanded in Part
Filed: September 20, 2001
Do Not Publish
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