Deszick Smith v. State ( 2001 )

Deszick Smith v. State of Texas

    IN THE

TENTH COURT OF APPEALS

No. 10-99-059-CR

No. 10-99-060-CR

     DESZICK SMITH,

                                                                         Appellant

     v.

     THE STATE OF TEXAS,

                                                                         Appellee

From the 82nd District Court

Falls County, Texas

Trial Court Nos. 6933 and 6940

O P I N I O N

          Pursuant to a plea agreement, Deszick Smith pled guilty to two separate indictments that joined both misdemeanor and felony charges. He was placed on community supervision. He did not appeal his convictions at that time. The State moved to revoke his community supervision and after a hearing, he was sentenced to two consecutive ten-year sentences in prison. Smith now brings this appeal. He challenges his convictions on the basis the trial court had no jurisdiction over the misdemeanor charges. We agree. The judgment of the trial court is reversed, and we return the parties to their pre-plea status.  

Issue on Appeal

      On appeal, Smith challenges his convictions on the basis the trial court had no jurisdiction over the misdemeanor charges. He is correct. See Tex. Code Crim. Proc. Ann. art. 4.05 (Vernon Supp. 2001). The plea agreement was based in part on the disposition of the misdemeanor charges which the trial court had no jurisdiction to resolve. See Heath v. State, 817 S.W.2d 335 (Tex. Crim. App. 1991). “We hold that both the order placing appellant on probation and the order revoking probation and sentencing appellant . . . are void.” Id. at 337 (quoting Dougherty v. State, 740 S.W.2d 516, 517 (Tex. App.—Houston [1st Dist.] 1987, no pet.)) (emphasis added). Based on these procedural facts, we have no alternative other than to reverse his convictions and return the parties to their pre-plea status. Shannon v. State, 708 S.W.2d 850, 852 (Tex. Crim. App. 1986). Therefore, we reverse the judgment of the trial court and remand both causes to the trial court for further proceedings consistent with this opinion.

                                                                         TOM GRAY

Justice

Before Chief Justice Davis,

      Justice Vance, and

      Justice Gray

Reversed and remanded

Opinion delivered and filed February 28, 2001

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