Orlando Antwonie Harris v. State ( 2006 )

NO. 07-04-0505-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

JANUARY 13, 2006

______________________________



ORLANDO ANTWONIE HARRIS, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE



_________________________________

FROM THE COUNTY COURT OF LAW NO. 2 OF POTTER COUNTY;

NO. 106789; HONORABLE PAMELA C. SIRMON, JUDGE

_______________________________

Before QUINN, C.J., and REAVIS and HANCOCK, JJ.

MEMORANDUM OPINION

Following a plea of not guilty, appellant Orlando Antwonie Harris was convicted by a jury of indecent exposure and assessed a $1,000 fine. The fine was suspended in favor of two years community supervision. Presenting two issues, appellant contends (1) the trial court's grant of community supervision was not authorized by law, and (2) because the grant of community supervision was unlawful, the sentence and underlying conviction are void. We affirm in part and reverse and render in part.

By his first issue, appellant claims suspension of the fine was not authorized by law because the relevant community supervision statutes do not allow for suspension of a fine only. In support of his argument, appellant directs us to article 42.12, section 4 of the Code of Criminal Procedure which provides that "[a] jury that imposes confinement as punishment for an offense may recommend to the judge that the judge suspend the imposition of the sentence and place the defendant on community supervision." Tex. Code Crim. Proc. Ann. art. 42.12, § 4(a) (Vernon Supp. 2005). Section 4 makes no mention of community supervision as an option in the absence of a sentence of confinement. Appellant also relies on Ex parte McIver, 586 S.W.2d 851 (Tex.Cr.App. 1979), wherein the Court examined the statutory authority behind a jury verdict sentencing the defendant to both a term of confinement and a fine, with only the fine being probated. After examining article 42.12, the Court concluded "the Legislature did not contemplate that fines would be probated." Id. at 855.

In the present case, citing section 4(a), the State concedes the jury lacked the statutory authority to recommend that the fine be suspended in the absence of a term of confinement. Considering the lack of statutory authority to the contrary, we agree and conclude the suspension of appellant's fine in favor of community supervision was unlawful. Appellant's first issue is sustained.

By his second issue, appellant argues that because the suspension of his fine was not authorized by law, both his sentence and underlying conviction are void. We disagree.

Generally, when a punishment is unauthorized by law, the sentence imposing the punishment is void. E.g., Heath v. State, 817 S.W.2d 335, 336 (Tex.Cr.App. 1991), overruled on other grounds by Ex parte Williams, 65 S.W.3d 656 (Tex.Cr.App. 2001); Coleman v. State, 955 S.W.2d 360, 364 (Tex.App.-Amarillo 1997, no pet.). However, in Ex parte Williams, 65 S.W.3d 656, 657 (Tex.Cr.App. 2001), the Court determined that "illegal sentences and unauthorized probation orders are two different things." In Williams, the defendant was convicted of aggravated assault and granted ten years probation despite the fact he was statutorily ineligible. Id. The Court ruled that the defendant's sentence was not void because the unauthorized probation order did not constitute an illegal sentence. The Court then explained that community supervision is separate and distinct from the sentence, and therefore, an unlawful grant of community supervision is not subject to the rules that govern unlawful sentences. Id. See also Speth v. State, 6 S.W.3d 530, 533 (Tex.Cr.App. 1999) (defining community supervision as "an arrangement in lieu of the sentence, not as part of the sentence").

Similarly, we do not find appellant's conviction or sentence in the present case to be unlawful and void. Appellant cites no authority, statutory or otherwise, in which an unlawful grant of community supervision renders the underlying conviction void. Furthermore, the sentence of a $1,000 fine assessed by the jury is within the range of punishment prescribed by the applicable statute. See Tex. Pen. Code Ann. § 12.22(1) (Vernon 2003). It is the court's grant of community supervision that is unsupported by authority, and based on Williams, an unlawful grant of community supervision does not render appellant's sentence or conviction void. His second issue is overruled.

Accordingly, that part of the judgment suspending payment of the $1,000 fine in favor of two years community supervision is reversed and judgment is hereby rendered that appellant's punishment stands at a $1,000 fine; in all other respects, the judgment is affirmed. See Tex. R. App. P. 43.2.

Don H. Reavis

Justice

Publish.

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Tex. Fam. Code Ann. §152.202(a) (Vernon 2002). ⁽³⁾ Thus, Texas retains jurisdiction over child custody matters even if Texas is no longer considered the home state of the child as long as there remains a significant connection between this state and the child. In re McCormick, 87 S.W.3d at 750; In re Bellamy, 67 S.W.3d 482, 484 (Tex. App.--Texarkana 2002, no pet.). ⁽⁴⁾

It is undisputed that L.E. has contacts with New York. However, that such ties may exist with a foreign state is not determinative. This is so because the focus lies upon the nexus between the children encompassed within the prior custody order and Texas. And, it is quite conceivable that the parties may have significant ties with more than one state. In re McCormick, 87 S.W.3d at 750; In re Bellamy, 67 S.W.3d at 485.

With regard to the ties with Texas, we find evidence illustrating that Eckert has continued to reside in Hardin County in the same house since the divorce. He has also exercised or attempted to exercise his visitation rights with the child in Texas on multiple occasions. So too has L.E. seen a dentist and physician in Texas while in the custody of Eckert, the physician being the same one the child saw prior to moving to New York.

Evidence of record further depicts that L.E. has three half brothers and several friends in Texas, and attended day care, Y camp, and church in Texas since the divorce. There also is evidence that Eckert may have had more contact with the child in Texas but for the actions of Volkenberg, and that recent contact with the child had been prevented by legal action instituted by Volkenburg in New York.

Since Volkenburg's departure to New York and prior to the initiation of Eckert's modification suit, the district court in Hardin County also has been asked to address other matters involving L.E. For instance, in 2000, the trial court ordered Volkenburg to post a bond "to protect the visitation and possession periods of . . . Eckert." During that same year, the trial court also awarded Eckert's parents visitation rights with regard to their grandson. Additionally, Volkenburg sought and obtained a writ of attachment to have the child returned to her custody after one of Eckert's visitation periods had ended. Furthermore, none of the several New York courts that Volkenburg had petitioned to assume jurisdiction over custody issues involving L.E. opted to do so.

Given these facts, we cannot say that the child no longer has a significant connection with Texas such as to deprive the trial court of jurisdiction. See In re McCormick, 87 S.W.3d at 751 (holding that there was still a significant connection with Texas when the child had attended school in Texas even while living nearby in New Mexico and had visited his mother and her family in Texas). Nor can we say that substantial evidence is no longer available in Texas concerning the child's care, protection, training, and personal relationships. So, we overrule the first issue.

Issue Two - Exercise of Jurisdiction

In her second issue, Volkenburg alleges that even if the trial court had jurisdiction, it erred by exercising it. As support for her proposition she relies on §155.003 of the Texas Family Code. However, because that provision irreconcilably conflicts with §152.202 of the same code, the later supplants it. In re Bellamy, 67 S.W.3d at 484; see Tex. Fam. Code Ann. §152.002 (Vernon 2002) (stating that if a provision of chapter 152 conflicts with a provision of this title or another statute or rule of this state and the conflict cannot be reconciled, this chapter prevails). So, we again overrule the issue.

Accordingly, the judgment of the trial court is affirmed.

Brian Quinn

Justice

1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov't Code Ann. §75.002(a)(1) (Vernon Supp. 2004).

2. Volkenburg filed a plea to the jurisdiction, amended plea to the jurisdiction, motion to transfer and a second amended plea to the jurisdiction. The trial court held two separate hearings to address these motions.

3.

Section 152.204 involves temporary emergency jurisdiction and is inapplicable to this case.

4.

Under §155.003 of the Family Code, a court may not exercise its continuing, exclusive jurisdiction to modify conservatorship if the child's home state is other than this state. Tex. Fam. Code Ann. §155.003(b)(1) (Vernon 2002). The "home state" is the state in which a child lived with a parent for at least six consecutive months immediately before the commencement of the proceeding. Id. §152.102(7).