Wright, Sir Melvin Jr. ( 2015 )

PD-1137-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 10/5/2015 2:19:56 PM
Accepted 10/7/2015 2:38:31 PM
ABEL ACOSTA
NO. PD-1137-15 CLERK
IN THE
COURT OF CRIMINAL APPEALS
OF TEXAS
AT AUSTIN
_________________________
SIR MELVIN WRIGHT, JR.,
Appellant
v.
October 7, 2015
THE STATE OF TEXAS,
Appellee
_________________________
On appeal in Cause No. F11-72119-T
from the 283rd Judicial District Court
Of Dallas County, Texas
And on Petition for Discretionary Review from
the Fifth District of Texas at Dallas
In Cause No. 05-14-00641-CR
_________________________
APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
_________________________
Counsel of Record:
Lynn Richardson Nanette Hendrickson
Chief Public Defender Assistant Public Defender
Dallas County Public Defender’s Office
Katherine A. Drew State Bar Number: 24081423
Chief, Appellate Division 133 N. Riverfront Blvd., LB 2
Dallas, Texas 75207-399
(214) 653-3550 (telephone)
(214) 653-3539 (fax)
ATTORNEYS FOR PETITIONER/APPELLANT
LIST OF PARTIES
TRIAL COURT JUDGE
Rick R. Magnis – 283rd Judicial District Court
APPELLANT
Sir Melvin Wright
APPELLANT’S ATTORNEYS
AT TRIAL
Mark L. Watson, State Bar No. 20954800
5646 Milton St., Ste. 330
Dallas, TX 75206
ON REVOCATION
Stephen Duplantis, State Bar No. 24052192
Public Defender’s Office
Frank Crowley Courts Building
133 N. Riverfront Blvd.
Dallas, TX 75207
ON REVOCATION
Adolpho Lopez, State Bar No. 24070169
1231 E. Missouri Ave.
El Paso, TX 79902
ON APPEAL
Nanette R. Hendrickson, State Bar No. 24081423
Assistant Public Defender
Dallas County Public Defender’s Office
Frank Crowley Courts Building
133 N. Riverfront Blvd., LB 2
Dallas, Texas 75207-4399
STATE’S ATTORNEYS
AT TRIAL
Rachel Burris, State Bar No. 24030870
Mark Scott, State Bar No. 24067109
Chris Pryor, State Bar No. 24046661
Assistant District Attorneys
ii
ON APPEAL
Shelley O’Brien Yeatts, State Bar No. 24033487
Assistant District Attorney
Dallas County District Attorney’s Office
Frank Crowley Courts Building
133 N. Riverfront Blvd., LB-19
Dallas, Texas 75207-4399
iii
TABLE OF CONTENTS
LIST OF PARTIES ................................................................................................... ii
INDEX OF AUTHORITIES ..................................................................................... v
STATEMENT REGARDING ORAL ARGUMENT ............................................... 1
STATEMENT OF THE CASE ................................................................................. 1
STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE .................... 2
STATEMENT OF FACTS ........................................................................................ 2
GROUND FOR REVIEW ......................................................................................... 2
Whether the Court of Appeals incorrectly applied the habeas
harmless error analysis in Ex parte Parrott and Ex parte Rich to
Appellant’s case on direct appeal.
ARGUMENT ............................................................................................................. 3
PRAYER FOR RELIEF ..........................................................................................10
CERTIFICATE OF SERVICE ................................................................................10
CERTIFICATE OF COMPLIANCE .......................................................................11
iv
INDEX OF AUTHORITIES
Cases
Bullard v. State,
5483 S.W.2d 13 (Tex. Cr. App. 1977) ..............................................................6
Ex parte Parrott,
396 S.W.3d 531 (Tex. Crim. App. 2013) ................................................. 3, 5, 6
Ex parte Rich,
194 S.W.3d 508 (Tex. Crim. App. 1973) ............................................. 3, 4, 5, 6
Ex parte Tovar,
901 S.W.2d 484 (Tex. Crim. App. 1995) ..........................................................5
Jackson v. State,
680 S.W.2d 809 (Tex. Cr. App. 1984) ..............................................................6
Levy v. State,
818 S.W.2d 801 (Tex. Crim. App. 1991) ............................................... 6, 7, 10
Wright v. State,
No. 05-14-00641-CR, 2015 Tex. App. LEXIS 8161 (Tex. App.—Dallas
August 4, 2015) .............................................................................................2, 6
Statutes
TEX. CODE CRIM. PROC. 62.102(c) .......................................................................8
TEX. CODE CRIM. PROC. ART. 62.102(b)(1) ..........................................................9
TEX. PEN. CODE § 12.35(a) ...............................................................................8, 9
TEX. PEN. CODE § 21.11 (a)(1)..............................................................................8
TEX.CODE CRIM. PROC art. 62.102(a) ...................................................................7
TEX.CODE CRIM. PROC. art. 44.29(b) ....................................................................6
TEX.CODE CRIM. PROC. art. 62.101(a) ..................................................................7
TEX.CODE CRIM. PROC. art. 62.101(c)(1) .........................................................8, 9
TEX.CODE CRIM. PROC. art. 62.102(b) ..................................................................7
Rules
TEX. R. APP. P. 68.4(i) ..........................................................................................2
v
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
Sir Melvin Wright, Jr., Appellant, respectfully presents to this Honorable
Court his Petition for Discretionary Review of the Fifth District Court of
Appeals’ Opinion affirming the trial court’s judgment.
STATEMENT REGARDING ORAL ARGUMENT
Appellant requests oral argument because this case presents a question of
law on issues having statewide impact and possible reoccurrence. Oral
argument may be helpful to the members of this Court in the resolution of the
issues presented.
STATEMENT OF THE CASE
Appellant was indicted and pled guilty to the charge of failure to
register as a sex offender enhanced in the 283rd Criminal District Court in
Dallas County, Texas. (RR2: 6; CR: 11). On September 24, 2012, the trial
court sentenced Appellant to ten years to serve, but suspended the sentence.
(RR2: 17). The trial court placed Appellant on five years’ community
supervision and assessed a fine of $500.00. (RR2: 17). On November 7,
2013, after a hearing on the State’s motion to revoke, the trial court denied
the State’s motion to revoke, but modified Appellant’s probation rules to
include seven days in the county jail. (RR3: 9-10). On May 16, 2014, after a
1
hearing on the State’s motion to revoke, the trial court sustained the motion
and sentenced Appellant to five years’ incarceration. (RR4: 22; CR: 70).
STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE
On August 4, 2015, in an unpublished opinion authored by Justice
Brown, the Court of Appeals for the Fifth District of Texas affirmed the trial
court’s judgment. Wright v. State, No. 05-14-00641-CR, 2015 Tex. App.
LEXIS 8161, *4 (Tex. App.—Dallas August 4, 2015). This Court granted
an extension of time to file a Petition for Discretionary Review, which is
timely if filed on or before October 5, 2015.
STATEMENT OF FACTS
The facts of this case, which are extensive, are adequately recited in
the Court of Appeals’ opinion, which is attached to this Petition as required
by TEX. R. APP. P. 68.4(i).
Suffice it to say that Appellant was charged with and convicted of
failure to register as a sex offender. (CR: 11; RR2: 6).
GROUND FOR REVIEW
Whether the Court of Appeals incorrectly applied the habeas harmless
error analysis in Ex parte Parrott and Ex parte Rich to Appellant’s case on
direct appeal.
2
ARGUMENT
The Court of Appeals incorrectly applied the habeas harmless error
analysis set out by this Court in Ex parte Rich and Ex parte Parrott to
Appellant’s case on direct appeal. Ex parte Rich, 194 S.W.3d 508 (Tex. Crim.
App. 1973); Ex parte Parrott, 396, S.W.3d 531, 537-38 (Tex. Crim. App.
2013).
FACTS
Appellant was indicted on the charge of failure to register as a sex
offender. (CR: 11). On September 24, 2012, Appellant pled guilty to the
pending indictment. (RR2: 6). The trial court informed Appellant as to the
applicable range of punishment: “You’re charged with failure to register as a
sex offender. That’s a third degree felony and carries a punishment range of
two to ten years in the penitentiary and optional fine not to exceed $10,000.”
(RR2: 5). After testifying in mitigation, Appellant was sentenced by the trial
court that same day to ten years, suspended and five years community
supervision. (RR2: 11-12).
The State filed a motion to revoke on July 11, 2013. (CR: 34).
Appellant entered a plea of true to the motion. (RR3: 5). The trial court
admitted Appellant’s written plea of true and stipulation of evidence as
State’s exhibit number one. (RR3: 6). The trial court, however, denied the
3
State’s motion and modified Appellant’s probation to include seven days to
serve in the Dallas County Jail. (RR4: 9; CR: 51).
The State filed a final motion to revoke on March 12, 2014. (CR: 53-
54). Appellant entered a plea of true to the motion. (RR4: 5-6). The State
entered Appellant’s written plea of true and stipulation of evidence as State’s
exhibit number one. (RR5: 6). Appellant testified in mitigation that he had
completed his ten year registration requirement. (RR4: 11-13; Defendant’s
Exhibit 1). The trial court granted the motion to revoke and sentenced
Appellant to five years’ incarceration. (RR4: 22).
THE COURT OF APPEALS’ HOLDING IS INCORRECT
The Court of Appeals’ decision is in conflict with the holding of this
Court. This Court held in Ex parte Rich that an illegal sentence “may be
cognizable on a writ of habeas corpus.” Ex parte Rich, 194 S.W.3d 508, 511
(Tex. Crim. App. 2006). In determining if a sentence was “actually illegal,” this
Court distinguished between a clerical error in a judgment which can be
corrected by a nunc pro tunc order and an error that “resulted from judicial
reasoning or determination.” Id. at 512. Ultimately, this Court ruled that where
the record on appeal did not reveal the illegality in the defendant’s sentence, he
could challenge the illegality by applying for a writ of habeas corpus. Id.
4
In Ex parte Parrott, this Court held that in order to receive habeas relief
due to an illegal sentence, an applicant must show harm. Ex parte Parrott, 396,
S.W.3d 531, 537-38 (Tex. Crim. App. 2013). “[A] post-conviction habeas
corpus application must allege facts which show both a cognizable irregularity
and harm.” Id. at 534, quoting Ex parte Tovar, 901 S.W.2d 484, 486 (Tex.
Crim. App. 1995). Proof of harm in a habeas case may be developed with new
evidence beyond the appellate record. Id. This “affords the habeas judge, and
ultimately this Court, an opportunity to evaluate that evidence.” Id. at 535.
Furthermore, this Court then interpreted Ex parte Rich to include a
harmless error analysis applicable in habeas cases alleging an illegal sentence.
Id. at 536. More specifically, a habeas court must determine “whether Rich had
other prior convictions that the State could have properly used to enhance his
sentence or, stated differently, whether Rich was actually harmed by the
erroneous enhancement.” Id. According to Ex parte Parrott, the harmless error
analysis stated in Ex parte Rich is as follows:
(1) An 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; and
(2) An applicant is not harmed by an illegal sentence when the
appellate and habeas records show that there was another
conviction that could properly support the punishment range
within which he was sentenced.
5
Id. (emphasis added).
In the case at bar, the Court of Appeals’ opinion incorrectly applied the
harmless error analysis in Ex parte Rich to Appellant’s case on direct appeal.
The Court of Appeals’ analysis was as follows:
…appellant must show the sentence assessed was “actually
illegal.” See Ex parte Rich, 194 S.W.3d 508, 511 (Tex. Crim.
App. 2006). And appellant’s sentence was only actually illegal
if the conviction was unavailable for enhancement. Cf. Ex parte
Parrott, 396, S.W.3d 531, 537-38 (Tex. Crim. App. 2013).
Wright, 2015 Tex. App. LEXIS 8161, at *3-4.
This Court held the harm analysis in Ex parte Rich and Ex parte Parrott
applicable specifically to habeas cases because the law requires proof of harm
when habeas relief is sought. However, in the case at bar, Appellant is not
seeking habeas relief, but is on direct appeal. Therefore, the Court of Appeals
incorrectly applied a habeas standard to Appellant’s case on direct appeal.
Instead, the Court of Appeals should have determined if there was error, and if
so, applied the standard found in Levy v. State as follows:
when an appellate court finds error at the punishment stage of
the trial, the case may be remanded to the trial court for the
proper assessment of punishment. Tex. Code Crim. Proc. art.
44.29(b); Bullard v. State, 5483 S.W.2d 13, 18 (Tex. Cr. App.
1977); Jackson v. State, 680 S.W.2d 809, 814 (Tex. Cr. App.
1984). In cases where a defendant enters a plea of guilty or nolo
contendere without the benefit of a plea bargain agreement with
the State and the trial judge assesses a punishment not
authorized by law, the appropriate remedy is to allow the
6
finding of guilt to remain and to remand the case to the trial
court for the proper assessment of punishment.
Levy v. State, 818 S.W.2d 801, 803 (Tex. Crim. App. 1991).
The Court of Appeals should have found error in Appellant’s case.
Article 62.102 of the Texas Code of Criminal Procedure provides the
following:
(a) A person commits an offense if the person is required to
register and fails to comply with any requirement of this
chapter.
(b) An offense under this article is:
(1) A state jail felony if the actor is a person whose duty to
register expires under Article 62.101(b) or (c);
(2) a felony of the third degree if the actor is a person whose
duty to register expires under Article 26.101(a) and who is
required to verify registration once each year under Article
62.058;
(c) If it is shown at the trial of a person for an offense or an attempt
to commit an offense under this article that the person has
previously been convicted of an offense or an attempt to
commit an offense under this article, the punishment for the
offense or the attempt to commit the offense is increased to the
punishment for the next highest degree of felony.
Tex. Code Crim. Proc. art. 62.102(a), (b). Article 62.101(a), applies to those
who are not adjudicated of delinquent conduct and mandates registration for
life. Tex. Code Crim. Proc. art. 62.101(a) (emphasis added). Offenders not
subject to Texas Code of Procedure Article 62.101(a) are subject to Article
62.101(b) or (c). Anyone who is adjudicated of delinquent conduct must
register for ten years from the date on which “the disposition is made or the
7
person completes the terms of the disposition, whichever date is later.” Tex.
Code Crim. Proc. art. 62.101(c)(1). Any offense under Article 62.101(c) is
punished as a state jail felony pursuant to Article 62.102(b)(1) unless the
punishment is increased pursuant to Article 62.102(c). A state jail felony is
punishable by no more than two years or less than 180 days. Tex. Pen. Code
§ 12.35(a).
Punishment for an offense under Texas Code of Criminal Procedure
article 62.102 may be enhanced in some circumstances. Tex. Code Crim.
Proc. 62.102(c). If it is shown at the trial of an offense that an offender was
previously convicted of an offense under article 62.102, the current offense
is then “increased to the punishment for the next highest degree of felony.”
Id.
According to the indictment, Appellant was adjudicated of delinquent
conduct, specifically, indecency with a child by contact pursuant to Texas
Penal Code § 21.11(a)(1) and required to register for ten years. TEX. PEN.
CODE § 21.11 (a)(1); (CR: 11). Appellant judicially confessed to the same
facts as stated in the indictment. (CR: 22). Since Appellant was adjudicated
of delinquent conduct, Appellant’s case was subject to Article 62.101(c)
which addresses those adjudicated of delinquent conduct. TEX. CODE CRIM.
PROC. ART. 62.101(c)(1). According to the Texas Code of Criminal
8
Procedure, offenders subject to article 62.101(c) must register for ten years
and failure to do so is a state jail felony. TEX. CODE CRIM. PROC. ART.
62.102(b)(1). A state jail felony is punishable by no more than two years or
less than 180 days. TEX. PEN. CODE § 12.35(a). Therefore, the range of
punishment in Appellant’s case should have been a minimum of 180 days up
to a maximum of two years.
Appellant entered a plea of guilty to the original charge, but the record
does not reflect a plea to any enhancement paragraphs, nor did the trial court
give Appellant notice of any enhancement paragraphs. (RR2: 6, passim).
Furthermore, Appellant did not judicially confess to a conviction of any
prior offense under article 62.102. (RR2: passim; CR: 22). At no time during
Appellant’s plea did the State prove Appellant had a final conviction of a
previous offense under Article 62.102. (RR2: passim). Therefore,
Appellant’s case could not have been enhanced according to Article 62.102
(c).
As such, the charge in Appellant’s case was a state jail felony and he
should not have received a sentence above two years during his original
sentencing. Consequently, Appellant’s sentence of ten years, suspended with
five years community supervision was illegal as was his final sentence at his
revocation hearing of five years’ incarceration. Therefore, the Court of
9
Appeals should have found error in Appellant’s case and remanded it back
to the trial court for a new punishment hearing pursuant to Levy v. State.
Levy, 818 S.W.2d at 803.
CONCLUSION
The Court of Appeals’ decision to affirm the trial court’s illegal
sentencing of Appellant is contradictory to the rulings of this Court. This Court
should grant discretionary review to resolve this discrepancy between the Court
of Appeal’s ruling and the ruling of this Court.
PRAYER FOR RELIEF
For the reasons herein alleged, Appellant prays this Court grant this
petition and, upon reviewing the judgment entered below, remand the case for a
new punishment hearing.
Respectfully submitted,
Lynn Richardson
Chief Public Defender
/s/ Nanette Hendrickson
Nanette Hendrickson
Assistant Public Defender
State Bar No. 24081423
CERTIFICATE OF SERVICE
I hereby certify that on the 5th day of October, 2015, a true copy of the
foregoing petition for discretionary review was served on Lori Ordiway,
Assistant District Attorney, Dallas County Criminal District Attorney’s Office,
133 N. Riverfront Blvd., LB-19, 10th Floor, Dallas, Texas, 75207, by electronic
and hand delivery; and was also served on, Lisa C. McMinn, State Prosecuting
10
Attorney, P.O. Box 13046, Austin, Texas, 78711 by electronic delivery and by
depositing same in the United States Mail, Postage Prepaid.
/s/ Nanette Hendrickson
Nanette Hendrickson
CERTIFICATE OF COMPLIANCE
I certify that the foregoing Petition for Discretionary Review contains
2,801 words.
/s/ Nanette Hendrickson
Nanette Hendrickson
11
User Name: nanette hendrickson
Date and Time: Oct 05, 2015 1:42 p.m. EDT
Job Number: 24600858
Document(1)
1. Wright v. State, 2015 Tex. App. LEXIS 8161
Client/Matter: -None-
| About LexisNexis | Privacy Policy | Terms & Conditions | Copyright © 2015 | LexisNexis.
nanette hendrickson
No Shepard’s Signal™
As of: October 5, 2015 1:42 PM EDT
Wright v. State
Court of Appeals of Texas, Fifth District, Dallas
August 4, 2015, Opinion Filed
No. 05-14-00641-CR
Reporter
2015 Tex. App. LEXIS 8161
SIR MELVIN WRIGHT, JR., Appellant v. THE STATE OF LexisNexis® Headnotes
TEXAS, Appellee
Criminal Law & Procedure > Criminal Offenses > Classification
Notice: PLEASE CONSULT THE TEXAS RULES OF of Offenses > Felonies
APPELLATE PROCEDURE FOR CITATION OF
Criminal Law & Procedure > Sentencing > Ranges
UNPUBLISHED OPINIONS.
Criminal Law & Procedure > Postconviction Proceedings > Sex
Prior History: [*1] On Appeal from the 283rd Judicial Offenders > Registration
District Court, Dallas County, Texas. Trial Court Cause No. Family Law > Delinquency & Dependency > Delinquency
F-1172119-T. Proceedings
HN1 If a person is required to register as a sex offender
Core Terms based on an adjudication of delinquency, and fails to comply
with the registration requirements, the offense is a state jail
sentence, prior conviction, fail to register, enhanced, parte, felony. Tex. Code Crim. Proc. Ann. art. 62.102. If a person
sex offender, trial court, indictment, asserts, felony, revoke has a prior conviction for failure to register, the punishment
range is increased to a third-degree felony. Art. 62.102.
Case Summary
Criminal Law & Procedure > Sentencing > Appeals >
Appealability
Overview
Criminal Law & Procedure > Sentencing > Corrections,
Modifications & Reductions > Illegal Sentences
HOLDINGS: [1]-Although defendant, who pleaded guilty
Criminal Law & Procedure > Sentencing > Ranges
to the offense of failure to register as a sex offender, asserted
his sentence was illegal because of the State’s failure to Criminal Law & Procedure > ... > Probation > Revocation >
provide him with notice that it was seeking an enhanced General Overview
punishment range and its failure to provide evidence of a Criminal Law & Procedure > Appeals > Reviewability > General
prior conviction, defendant failed to show his sentence was Overview
illegal; [2]-Defendant’s sentence was only actually illegal if
the conviction was unavailable for enhancement; HN2 Generally, an appeal from an order revoking probation
is limited to the propriety of the revocation and does not
[3]-Although defendant asserted his guilty plea was
include a review of the original conviction. However, a
involuntary because he was improperly admonished as to
sentence outside the range of punishment is void and may
the range of punishment, defendant could not raise a
be challenged at any time.
complaint regarding the involuntariness of his original plea
in an appeal from the revocation of his probation.
Criminal Law & Procedure > Sentencing > Corrections,
Modifications & Reductions > Illegal Sentences
Outcome
HN3 A defendant who contends he received an illegal
Judgment affirmed. sentence must show the sentenced assessed was actually
illegal.
nanette hendrickson
Page 2 of 3
2015 Tex. App. LEXIS 8161, *1
Criminal Law & Procedure > ... > Entry of Pleas > Guilty register as a sex offender. The indictment stated the ″charge″
Pleas > Voluntariness was ″FAIL REG SEX OFFEND ENH F3,″ and alleged
Criminal Law & Procedure > Sentencing > Appeals > appellant’s duty to register was based on an adjudication of
Appealability delinquent conduct. The indictment did not, however, allege
appellant had a prior conviction for failure to register.
Criminal Law & Procedure > ... > Probation > Revocation >
General Overview
Appellant pleaded guilty to the offense. At the plea hearing,
Criminal Law & Procedure > Appeals > Reviewability > General the trial court admonished appellant he was being charged
Overview with ″failure to register as a sex offender″ and that the
punishment range was two to ten years’ confinement and a
HN4 An appellant may not raise a complaint regarding the $10,000 fine. Appellant entered a plea of guilty. His also
involuntariness of his original plea in an appeal from the signed a judicial confession in which he admitted committing
revocation of his probation. the offense as alleged in the indictment. During the hearing,
appellant and his attorney both made references to appellant’s
Counsel: For Appellants: Nanette Hendrickson, Dallas, TX. prior conviction. For example, appellant conceded he had
already had ″problems″ with the ″criminal justice system″
For Appellees: Michelle (Shelly) O’Brien, Susan Hawk, for failing to comply with the registration requirements, and
Dallas, TX. he did not want ″another case.″ His attorney then, in arguing
for leniency, acknowledged ″there’s no good reason for
Judges: Before Justices Bridges, Fillmore, and Brown. failing to register once, let alone twice.″ The State [*3] did
Opinion by Justice Brown. not, however, offer formal proof of his prior conviction.
Opinion by: ADA BROWN The trial court found appellant guilty of the offense, and
sentenced him to ten years in prison, but suspended
Opinion imposition of the sentence. The trial court’s judgment
reflects appellant was convicted of ″failure to
register/enhanced.″ Appellant did not appeal his conviction.
MEMORANDUM OPINION
The trial court subsequently revoked appellant’s probation.
Opinion by Justice Brown
At the hearing on the motion to revoke, appellant testified
Sir Melvin Wright, Jr. appeals his conviction for failure to and admitted he had been sentenced to twelve months for
register as a sex offender. In two points of error, appellant the ″2007″ offense. The trial court found the allegations in
contends (1) he received an illegal sentence, and (2) his the State’s motion to revoke true, and sentenced appellant to
guilty plea was involuntary. For the following reasons, we five years in prison.
affirm.
In his first issue, appellant asserts he was assessed an illegal
On November 1, 2011, a warrant issued for appellant’s sentence because his five-year sentence was outside the
arrest based on an affidavit alleging appellant had committed range of punishment for a state jail felony. HN1 If a person
the offense of failure to register as a sex offender, ″Felony is required to register as a sex offender based on an
3.″ The warrant was based on an affidavit stating probable adjudication of delinquency, and fails to comply with the
cause existed that appellant committed the offense. The registration requirements, the offense is a state jail felony.
affidavit stated appellant had been ″convicted″ of indecency TEX. CRIM. PROC. CODE ANN. § art. 62.102 (West). If a person
with a child and was sentenced to two years in the Texas has a prior conviction for failure to register, the punishment
Youth Commission. The affidavit further stated appellant range is increased to a third-degree felony. SEE TEX. CRIM.
was then later convicted of failing to register as a sex PROC. CODE ANN. § 62.102 (West); [*4] see also Ford v.
offender and sentenced to 365 days in jail. Finally, the State, 334 S.W.3d 230, 234 (Tex. Crim. App. 2011)
affidavit alleged appellant committed the instant failure to
register offense, which was enhanced ″due to the prior Appellant asserts his five-year sentence was illegal because
conviction.″ he was convicted of a state jail felony, for which the
maximum period of confinement allowable is two years. See
Appellant was arrested [*2] and arraigned on the charges. TEX. PENAL CODE ANN. § 12.35 (West 2011). He further
The grand jury subsequently indicted him for failing to asserts his punishment could not be enhanced because (1)
nanette hendrickson
Page 3 of 3
2015 Tex. App. LEXIS 8161, *4
the indictment did not allege a prior conviction, (2) he was complaint regarding defects in the evidence show his
not given notice of a prior conviction, (3) he did not plead conviction could not be used to enhance his punishment. Cf.
true to any allegations of a prior conviction, and (4) the Ex parte Parrott, 396 S.W.3d at 537-38 (Tex. Crim. App.
State did not otherwise prove he had a prior conviction. 2013). We conclude appellant has failed to show his
sentence was illegal. See Ex parte Rich, 194 S.W.3d at 511;
HN2 Generally, an appeal from an order revoking probation see also. Ex Parte Parrott, 396 S.W.3d a 537-38. We
is limited to the propriety of the revocation and does not overrule appellant’s first point of error.
include a review of the original conviction. Traylor v. State,
561 S.W.2d 492, 494 (Tex. Crim. App. [Panel Op.] 1978). In his second point of error, appellant asserts his guilty plea
However, a sentence outside the range of punishment is was involuntary because he was improperly admonished as
void and may be challenged at any time. See Ex parte Rich, to the range of punishment. It is well established HN4 an
194 S.W.3d 508, 511 (Tex. Crim. App. 2006); Mizell v.State, appellant may not raise a complaint regarding the
119 S.W.3d 804, 806 (Tex. Crim. App. 2003); Baker v. State, involuntariness of his original plea in an appeal from the
278 S.W.3d 923, 926 (Tex. App.—Houston 2009, pet. revocation of his probation. Jordan v. State, 54 S.W.3d 783,
ref’d). 785 (Tex. Crim. App. 2001). That issue must be raised in an
appeal from the original conviction. See id. We overrule
Here, appellant does not dispute he was sentenced within appellant’s second point of error.
the range of punishment if the State showed he had a prior
conviction. Nor does appellant dispute that he had a prior We affirm the trial court’s judgment revoking [*6]
conviction that would allow for enhancement. Cf. Ex parte appellant’s probation.
Parrott, 396 S.W.3d 531, 537-38 (Tex. Crim. App. 2013) (in /Ada Brown/
habeas proceeding defendant failed to show harm when
ADA BROWN
actual criminal history would support punishment). He
nevertheless asserts his sentence was illegal because of the JUSTICE
State’s failure to [*5] provide him with notice that it was
Do Not Publish
seeking an enhanced punishment range and its failure to
provide evidence of a prior conviction. However, HN3 TEX. R. APP. P 47.2(b)
appellant must show the sentenced assessed was ″actually
illegal.″ See See Ex parte Rich, 194 S.W.3d 508, 511 (Tex. JUDGMENT
Crim. App. 2006). And appellant’s sentence was only
Based on the Court’s opinion of this date, the judgment of
actually illegal if the conviction was unavailable for
the trial court is AFFIRMED.
enhancement. Cf. Ex parte Parrott, 396 S.W.3d 531, 537-38
(Tex. Crim. App. 2013). Neither appellant’s complaint Judgment entered this 4th day of August, 2015.
regarding the State’s failure to provide him notice nor his
nanette hendrickson