John Dennis Clayton Anthony v. State ( 2015 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-13-00089-CR
JOHN DENNIS CLAYTON ANTHONY, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 287th District Court
Bailey County, Texas
Trial Court No. 2557, Honorable Gordon H. Green, Presiding
February 12, 2015
CONCURRING OPINION
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
I concur in the result and the discussion about counsel’s ineffectiveness at the
initial plea hearing. Yet, I am also concerned about the application of Wiley v. State,
410 S.W.3d 313, 319 (Tex. Crim. App. 2013) (reaffirming prior authority holding that “an
appellant will not be permitted to raise on appeal from the revocation of his community
supervision any claim that he could have brought on an appeal from the original
imposition of that community supervision”) to the circumstances before us. My concern
is avoided though when considering this court’s opinion in Neugebauer v. State, 266
S.W.3d 137 (Tex. App.—Amarillo 2008, no pet.). There we held that “[i]f the original
judgment imposing community supervision is void, then the trial court has no authority
to revoke that community supervision, since, with no judgment imposing community
supervision, there is nothing to revoke.” Id. at 139.
I analogize the situation here to one wherein the sentence is not authorized by
law. Should such a sentence be levied, it is void or illegal. Ex parte Pena, 71 S.W.3d
336 n.2 (Tex. Crim. App. 2002). While this is really not a case where the sentence
was illegal (since a sentence requires a conviction and deferring the adjudication is not
a conviction and, therefore, a sentence), the course of action undertaken by the trial
court was prohibited by statute. Thus, it was void. Being void, it never occurred.
So, as we observed in Neugebauer, since the original judgment deferring the
adjudication of appellant’s guilt and placing him on community supervision was void, the
trial court had nothing before it to revoke. Thus, its judgment should be reversed, and
the parties should begin anew as if the defendant had never been placed on deferred
adjudication or agreed to a plea bargain that the law barred the trial court from
enforcing.
Brian Quinn
Chief Justice
Publish.
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