State v. Jerome Paul Marroquin ( 2007 )

NO. 07-07-0116-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
DECEMBER 19, 2007
______________________________
THE STATE OF TEXAS, APPELLANT
V.
JEROME PAUL MARROQUIN, APPELLEE
_________________________________
FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;
NO. 54,103-E; HONORABLE RICHARD DAMBOLD, JUDGE
_______________________________
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Appellee, Jerome Paul Marroquin, was indicted for the offense of accident involving
injury or death. Appellee subsequently entered a plea of guilty without benefit of a plea
bargain. The trial court sentenced appellee to eight years confinement in the Institutional
Division of the Texas Department of Criminal Justice, with a fine of $800; however, the
sentence was suspended and appellee was placed on probation for a period of eight years.
The State of Texas filed notice of appeal alleging in one issue that the sentence was illegal
and thereby void. We reverse.
Background
For the offense that appellee pled guilty to, the range of punishment is imprisonment
in the Institutional Division of the Texas Department of Criminal Justice for up to five years
or confinement in the county jail for not more than one year, a fine not to exceed $5,000;
or both fine and imprisonment or confinement. TEX . TRANSP . CODE ANN . § 550.021(c)
(Vernon Supp. 2007). At the time of the plea, appellee signed a written admonishment
stating that the offense in question was a third degree felony with a range of punishment
of confinement in the Institutional Division of the Texas Department of Criminal Justice for
a period of not more than 10 years or less than two years and a fine not to exceed
$10,000. So too was appellee admonished orally by the trial court. After receiving the plea
and finding appellee guilty, the trial court entered the sentence of eight years confinement,
probated for eight years, and a fine of $800. The State alleges in its one issue that the
sentence pronounced and entered by the trial court is an illegal sentence because it is
outside the punishment range authorized by law. Appellee acknowledges that the term of
imprisonment is above the maximum allowed by the statute, but, urges that this court has
the authority to reform the judgment.
Analysis
The facts as reflected above are agreed by both parties to this appeal. It is further
agreed by the parties that the sentence imposed was not within the applicable punishment
range of the statute. See TEX . TRANSP . CODE ANN . § 550.021(c) (Vernon Supp. 2007).
The contested issue concerns how the illegal sentence should be corrected.
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A sentence that is outside the maximum or minimum authorized by law is an illegal
sentence. See Mizell v. State, 119 S.W.3d 804, 805 (Tex.Crim.App. 2003). An illegal
sentence is considered a void sentence. See Ex parte Seidel, 39 S.W.3d 221, 225
(Tex.Crim.App. 2001). When the appellate court is dealing with a void sentence, the only
action available is to remand the case to the trial court for a new trial on the issue of
punishment. See Ex parte Johnson, 697 S.W.2d 605, 607 (Tex.Crim.App. 1985).
Appellee argues that the court can simply reform the judgment citing Hollie v. State,
962 S.W.2d 263 (Tex.App.–Houston [1st Dist.] 1998), pet. dism’d, 984 S.W.2d 302
(Tex.Crim.App. 1999). Hollie involved a sentence of probation for a DWI wherein the
defendant was ordered to serve 45 days in jail as a term and condition of probation. At the
time, the maximum term of confinement that could be ordered as a term of probation was
30 days. The appellate court simply modified the 45 days to 30 days without sending the
case back for a new trial on the issue of punishment. The Hollie case was decided prior
to the Court of Criminal Appeals holding that a term of probation is part of the judgment
and not part of the sentence. Speth v. State, 6 S.W.3d 530, 532 (Tex.Crim.App. 1999).
Therefore, the analysis drawn by the appellee based upon the Hollie decision is not
applicable.
Accordingly, we are left with a void sentence in the judgment of the trial court. We
must, therefore, reverse the judgment of the trial court. Further, since the basis of the
reversal is predicated on an error made during the punishment stage of the trial, the court
shall commence the new trial as if a finding of guilt had been made and proceed to
punishment. TEX . CODE CRIM . PROC . ANN . art. 44.29(b) (Vernon Supp. 2007).
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Conclusion
The judgment of the trial court is reversed and the cause is remanded for a new
punishment trial.
Mackey K. Hancock
Justice
Publish.
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