Anton Lamart Osborn v. State ( 2008 )


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  •                                          NO. 12-07-00024-CR
    IN THE COURT OF APPEALS
    TWELFTH COURT OF APPEALS DISTRICT
    TYLER, TEXAS
    ANTON LAMART OSBORN,                                        §    APPEAL FROM THE 241ST
    APPELLANT
    V.                                                          §    JUDICIAL DISTRICT COURT OF
    THE STATE OF TEXAS,
    APPELLEE                                           § SMITH COUNTY, TEXAS
    MEMORANDUM OPINION
    Anton L. Osborn appeals his conviction for possession of between one and four grams of
    cocaine within 1,000 feet of a school, for which he was sentenced to imprisonment for life. In two
    issues, Appellant argues that (1) his sentence was grossly disproportionate to the offense for which
    he was convicted and (2) he received ineffective assistance of counsel during his trial on
    punishment. We vacate Appellant’s life sentence and remand.
    BACKGROUND
    Appellant was charged by indictment with possession of between one and four grams of
    cocaine, a third degree felony.1 The indictment further alleged that Appellant committed the
    offense “within 1,000 feet of real property owned by and rented to and leased to a school and
    school board, namely, Tyler Independent School District and Stewart Middle School....”2
    1
    See T EX . H EALTH & S AFETY C O D E A N N . §§ 481.115(c), 481.102(3)(D) (Vernon 2003 & Supp. 2007).
    2
    Because the offense is alleged to have occurred within one thousand feet of a school, Appellant faced a
    minimum sentence of imprisonment for seven years as opposed to the two year minimum sentence of a second or
    third degree felony. See T EX . H EALTH & S AFETY C O D E A N N . § 481.134(c) (Vernon Supp. 2007); see also T EX .
    P EN AL C O D E A N N . §§ 12.33, 12.34 (Vernon 2003).
    Moreover, the indictment alleged that Appellant had been previously convicted of the felony
    offense of burglary of a vehicle. Appellant pleaded “guilty” as charged and the matter proceeded
    to a jury trial on punishment.
    Appellant pleaded “true” to the enhancement paragraph in the indictment at the
    commencement of his trial on punishment. Ultimately, the jury assessed Appellant’s punishment
    at imprisonment for life. The trial court sentenced Appellant accordingly, and this appeal
    followed.
    VOID SENTENCE
    As a preliminary matter, we address sua sponte the legality of Appellant’s life sentence.3
    In Texas, the punishment assessed must always be within the minimum and maximum fixed by
    law; if the punishment assessed is outside the range provided by law, the sentence is void. See
    Mizell v. State, 
    119 S.W.3d 804
    , 806 (Tex. Crim. App. 2003); Ex parte Beck, 
    922 S.W.2d 181
    ,
    182 (Tex. Crim. App. 1996); Maples v. State, 
    187 S.W.3d 655
    , 658 (Tex. App.–Houston [14th
    Dist.] 2006, pet. ref’d). A defendant has an absolute and nonwaivable right to be sentenced within
    the proper range of punishment established by the legislature. See Speth v. State, 
    6 S.W.3d 530
    ,
    532–33 (Tex. Crim. App. 1999); 
    Maples, 187 S.W.3d at 660
    .
    In the case at hand, Appellant was convicted of possession of between one and four grams
    of cocaine. See TEX . HEALTH & SAFETY CODE ANN . §§ 481.115(c), 481.102(3)(D). The
    punishment range for such an offense, considering the single enhancement allegation to which
    Appellant pleaded “true,” is between seven and twenty years. See TEX . HEALTH & SAFETY CODE
    ANN . § 481.112(c); TEX . PENAL CODE ANN . §§ 12.33(a), 12.42(a)(3) (Vernon 2003 & Supp.
    2007). Here, the life sentence assessed by the trial court falls outside the range set forth by the
    3
    An appellate court with criminal law jurisdiction may raise the issue of a void sentence sua sponte. See
    Mizell v. State, 
    119 S.W.3d 804
    , 805 (Tex. Crim. App. 2003).
    2
    legislature.4 
    Id. Therefore, we
    hold that Appellant’s sentence is void.5 See 
    Mizell, 119 S.W.3d at 806
    .
    DISPOSITION
    Having determined that Appellant’s life sentence is void, we vacate Appellant’s life
    sentence and remand the cause to the trial court for a new sentencing hearing.
    JAMES T. WORTHEN
    Chief Justice
    Opinion delivered June 4, 2008.
    Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
    (DO NOT PUBLISH)
    4
    Both Appellant and the State have agreed that Appellant’s sentence is void because it was outside the
    applicable range of punishment.
    5
    Having determined Appellant’s sentence to be void, we do not reach Appellant’s first and second issues.
    W e further note that Appellant has only sought relief on appeal concerning his punishment.
    3