Noe Rangel Niavez v. State ( 2013 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-12-00184-CR
NOE RANGEL NIAVEZ, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 251st District Court
Randall County, Texas
Trial Court No. 18,265-C, Honorable Ana Estevez, Presiding
May 20, 2013
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Appellant Noe Rangel Niavez appeals the trial court’s revocation of his
community supervision and its judgment sentencing him to eight years confinement in
prison for felony driving while intoxicated.1 We will reverse and render in part and
remand with instructions.
1
See Tex. Penal Code Ann. §§ 49.04(a) & 49.09(b)(2) (West Supp. 2012).
Background
In September 2006, a Randall County grand jury indicted appellant for the
offense of driving while intoxicated, third offense, a felony. On October 23, 2008, the
trial court called appellant’s case for trial and appellant entered a guilty plea pursuant to
a plea bargain agreement. Appellant signed a stipulation of evidence and the court
found him guilty. By the plea agreement, the State recommended a sentence of four
years confinement in prison and a fine of $1500. The trial court accepted the State’s
recommendation and sentenced appellant accordingly. The record does not contain a
corresponding written judgment.
Later that day, on the record in open court, the State made an oral motion for
new trial. It was granted without objection. Appellant waived reading the indictment.
As it did in the first trial, the court received appellant’s plea of guilty to the charged
offense, gave admonishments, and addressed the consequence of appellant’s
stipulation of the evidence and judicial confession. The court then examined a new plea
bargain agreement between appellant and the State requiring, among other things, a
guilty plea to the charged offense, a sentence of ten years confinement in prison
probated for four years, a fine of $1,500, confinement in a SAFPF2 program, and
incarceration until space in a SAFPF became available. After further admonishing
appellant and learning he desired to accept the new agreement, the court accepted the
agreement, finding appellant guilty of the charged offense. Finding no reason not to
proceed with punishment, the court then sentenced appellant according to the terms of
2
SAFPF is a substance abuse felony punishment facility within the Texas
Department of Criminal Justice. Rouse v. State, 300 S.W.3d 754, 758 n.6
(Tex.Crim.App. 2009).
2
the new plea bargain. The record contains a conforming written judgment signed by the
trial court. No appeal was taken.
Subsequently the State moved to revoke appellant’s community supervision. It
alleged appellant failed to comply with five conditions of the community supervision
order. Among the violations alleged was failure to attend and successfully complete an
outpatient treatment program.
At the May 2012 hearing on the State’s motion, appellant plead “guilty” to each of
the violations of community supervision alleged. After hearing evidence, the trial court
sentenced appellant to eight years confinement in prison and a fine of $1,500.3
Analysis
Through a single issue on appeal appellant argues the trial court had no power to
grant the State’s motion for new trial and all resulting proceedings, including the eight-
year sentence imposed as a result of his violation of community supervision, are a
nullity. He asks that we reverse the judgment imposing the eight-year sentence of
confinement “and render a judgment for the original sentence of four . . . years, placing
appellant in the same position he was immediately after the original plea.” On May 15,
2013, the State filed a response confessing error. The State found “Appellant’s point of
error is well taken at established law and should be sustained.”
3
Additional background information may be found in our order of February 21,
2013 abating and remanding the case for appointment of new appellate counsel.
Niavez v. State, No. 07-12-00184-CR, 2013 Tex. App. Lexis 1770 (Tex.App.--Amarillo
Feb. 21, 2013, per curiam order) (mem. op., not designated for publication).
3
As a preliminary step, what appellant asks requires that we look back to his 2008
conviction and sentence rendered in the course of the new trial granted on the State’s
motion. Ordinarily, the validity of the original conviction, from which no appeal was
taken, is not reviewable in the appeal of a subsequent revocation order. Whetstone v.
State, 786 S.W.2d 361, 363 (Tex.Crim.App. 1990), overruled on other grounds by
Gollihar v. State, 46 S.W.3d 243, 249-50, 256-57 (Tex.Crim.App. 2001). An exception
does lie, however, for a void judgment.
The void judgment exception recognizes that there are some rare
situations in which a trial court’s judgment is accorded no respect due to a
complete lack of power to render the judgment in question. A void
judgment is a “nullity” and can be attacked at any time. If the original
judgment imposing probation was void, then the trial court would have no
authority to revoke probations, since, with no judgment imposing probation
(because it is a nullity), there is nothing to revoke.
Nix v. State, 65 S.W.3d 664, 667-668 (Tex.Crim.App. 2001) (footnote omitted).
But a judgment is void only in very rare situations—usually due to a lack of
jurisdiction. In civil cases, a judgment is void only when there was “no
jurisdiction of the parties or property, no jurisdiction of the subject matter,
no jurisdiction to enter a particular judgment, or no capacity to act as a
court.” This rule is essentially paralleled in criminal cases. A judgment of
conviction for a crime is void when (1) the document purporting to be a
charging instrument (i.e. indictment, information, or complaint) does not
satisfy the constitutional requisites of a charging instrument, thus the trial
court has no jurisdiction over the defendant, (2) the trial court lacks subject
matter jurisdiction over the offense charged, such as when a
misdemeanor involving official misconduct is tried in a county court at law,
(3) the record reflects that there is no evidence to support the conviction,
or (4) an indigent defendant is required to face criminal trial proceedings
without appointed counsel, when such has not been waived, in violation of
Gideon v. Wainwright. While we hesitate to call this an exclusive list, it is
very nearly so.
Id. at 668. If the trial court had no jurisdiction to proceed to judgment after granting the
State’s motion for new trial, the resulting judgment is void and may be challenged in this
appeal.
4
A new trial means “the rehearing of a criminal action after the trial court has, on
the defendant’s motion, set aside a finding or verdict of guilt.” Tex. R. App. P. 21.1(a).
The procedural provisions governing motions for new trial in a criminal case require
strict compliance. Oldham v. State, 977 S.W.2d 354, 361 (Tex.Crim.App. 1998); see
Drew v. State, 743 S.W.2d 207, 223 (Tex.Crim.App. 1987). A trial court has no
authority to grant a new trial in a criminal case on its own motion or the motion of the
State. Stone v. State, 931 S.W.2d 394, 396 (Tex.App.--Waco 1996, pet. refused) (court
may not grant new trial in criminal case on its own motion or on the motion of the State;
procedural provisions governing motion for new trial in a criminal trial must be complied
with for court to have jurisdiction to consider motion); 43A George B. Dix & John M.
Schmolesky, Texas Practice Series: Criminal Practice and Procedure § 50.3 (3d ed.
2011) (no authority to grant new trial on court’s own motion or the motion of the State).
All proceedings following an improperly granted motion for new trial are a nullity.
Zaragosa v. State, 588 S.W.2d 322, 326-27 (Tex.Crim.App. 1979) (new trial in a
criminal case may be granted only on motion of defendant; court’s lack of authority to
order new trial sua sponte made a nullity of the second trial and conviction, under
former Code of Criminal Procedure Articles 40.02 & 40.03); Harris v. State, 958 S.W.2d
292, 293 (Tex.App.--Fort Worth 1997, pet. refused) (following Zaragosa); see also
Freeman v. State, 917 S.W.2d 512, 514 (Tex.App.--Fort Worth 1996, no pet.) (motion of
State treated as motion for new trial, hearing on State’s motion was a nullity). Based on
these authorities, we conclude the trial court had no power to render judgment following
the grant of the State’s motion for new trial.4 Therefore, under the void judgment
4
Because the appellate record contains a complete reporter’s record of the
5
exception, we may address appellant’s issue. Nix, 65 S.W.3d at 668. And, because the
2008 judgment imposing probation was void, the trial court had no authority in May
2012 to revoke appellant’s community supervision and impose a sentence of
confinement and a fine. Appellant’s issue is sustained.
Conclusion
We reverse and render judgment vacating the trial court’s judgment and
sentence of October 23, 2008, sentencing appellant to ten years confinement and fining
him $1,500 probated to four years community supervision and a fine of $1,500. We
likewise reverse and render judgment vacating the trial court’s judgment and sentence
of May 1, 2012, revoking appellant’s community supervision and sentencing him to eight
years confinement and fining him $1,500. We remand the case to the trial court with
instructions to reinstate the original judgment of October 23, 2008, sentencing appellant
to four years confinement and fining him $1,500. The trial court on remand shall also
prepare and sign a conforming written judgment and complete any ministerial or
administrative acts necessary to carry appellant’s punishment into execution as though
the State’s motion for new trial had not been granted. Tex. Code Crim. Proc. Ann. art.
42.01, § 1 (West Supp. 2012) (judgment) & art. 42.02 (West 2006) (sentence).
October 23, 2008 proceedings, before and after the State’s motion for new trial, the
record before us leaves “no question about the existence” of the defect in the
proceedings resulting in the void judgment. See Nix, 65 S.W.3d at 668.
6
We dispense with the clerk’s notice requirement of appellate rule 39.8. Tex. R.
App. P. 39.8 and 2. Our mandate will issue forthwith.
James T. Campbell
Justice
Do not publish.
7