DocketNumber: No. 11-16-00314-CR
Citation Numbers: 549 S.W.3d 335
Judges: Bailey, Willson, Wright
Filed Date: 4/30/2018
Status: Precedential
Modified Date: 10/19/2024
In this appeal from the judgment in which the trial court revoked Appellant's community supervision, Appellant collaterally attacks his original conviction for possession of a controlled substance in a drug-free zone on the basis that the trial court assessed an illegal sentence. We vacate and remand.
I. The Charged Offense and Proceedings Below
Appellant was charged by information with the state-jail felony offense of possession of a controlled substance, specifically OxyContin, in an amount of less than one gram
Appellant pleaded guilty to the third-degree felony offense of possession of a controlled substance in a drug-free zone. After a hearing, the trial court accepted Appellant's plea and found him guilty. Appellant and the State "mutually agreed and recommended to the Court" through an "Agreed Punishment Recommendation" that, among other conditions, Appellant would receive ten years of confinement probated for ten years. Consistent with the agreement, the trial court sentenced Appellant to confinement for ten years, suspended the sentence, placed Appellant on community supervision for ten years, and assessed costs and fines, among other conditions. Later, the State moved to revoke Appellant's community supervision. After a hearing, the trial court revoked Appellant's community supervision and sentenced Appellant to confinement for six years. Appellant now appeals on a single issue.
II. Analysis
Appellant argues that he received an illegal sentence because the state-jail felony offense he was charged with-possession of a controlled substance in an amount of less than one gram-was improperly enhanced under the drug-free zone statute, Section 481.134 of the Texas Health and Safety Code, because an "institution of higher learning" is not a proper *340drug-free zone to enhance Appellant's underlying offense. Appellant argues that, because an illegal sentence was assessed, his judgment of conviction for the third-degree felony offense of possession of a controlled substance in a drug-free zone is void and the subsequent judgment in which the trial court revoked Appellant's community supervision is also void. The State argues that Appellant cannot challenge his original plea of guilty from this appeal of a revocation of community supervision.
A. This court has jurisdiction to hear Appellant's complaint of an illegal sentence under the "void judgment" exception.
Appellant claims he was assessed an illegal sentence in his underlying conviction. This court must determine whether it has jurisdiction to address Appellant's complaint. This is a direct appeal from the revocation of Appellant's community supervision in which Appellant alleges error not only in the judgment in which the trial court revoked his community supervision but also in his original conviction. "The general rule is that an attack on the original conviction in an appeal from revocation proceedings is a collateral attack and is not allowed." Wright v. State ,
B. The illegal sentence that Appellant received made his original conviction void, as is the judgment in which the trial court revoked his community supervision.
Appellant pleaded guilty to the improperly enhanced offense of possession of a controlled substance in an amount of less than one gram in a drug-free zone. As a result, Appellant was sentenced to imprisonment for ten years, but the trial court suspended that sentence and placed Appellant on community supervision for ten years. The punishment Appellant received was outside the range of punishment authorized for a state jail felony. See TEX. PENAL CODE ANN. § 12.35(a), (b) (state jail felony is limited to confinement "for any term of not more than two years or less than 180 days" and "a fine not to exceed $10,000"). A "sentence that is outside the range of punishment authorized by law is considered illegal." Ex parte Parrott ,
The question that Appellant has asked us to address is whether what he asserts is an illegal sentence renders the judgment of conviction void. In Nix , the Court of Criminal Appeals stated a nearly exclusive *341list of four instances where a judgment of conviction would be void: "(1) the document purporting to be a charging instrument ... does not satisfy the constitutional requisites of a charging instrument"; (2) "the trial court lacks subject matter jurisdiction over the offense charged"; (3) "the record reflects that there is no evidence to support the conviction"; and (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 [
In Wright , the Court of Criminal Appeals briefly discussed, without explicitly holding, whether an "illegal sentence" could render an original conviction void under the void judgment exception.
In discussing Parrott , the Wright court explained that "even if Parrott's sentence was illegal because of the failure to properly enhance with a prior conviction, the error was harmless because his actual criminal history supported the range of punishment within which he was sentenced and admonished. Such a sentence is not a 'nullity' that is 'accorded no respect.' "
The Wright court affirmed the judgment of the court of appeals, which applied the habeas law of Parrott and Ex parte Rich to hold that the defendant did not receive an illegal sentence.
Under Parrott , we must determine if Appellant suffered harm from the illegal sentence that he received. Parrott ,
Appellant asserts that he suffered harm, under Parrott , because there is no other conviction that could support the punishment range within which Appellant was sentenced. The State argues that Appellant was not actually harmed under Parrott because "additional drug free zones were available and applicable to Appellant's case." The State attaches two "drug free zone maps" to its brief, labeled as "Appendix A," and claims that the "location of the offense was only 535 feet from Wiggins Park and Pool, another drug free zone." This map is not in the appellate record. "We cannot consider documents attached to a brief as an exhibit or appendix which are not part of the appellate record." Viscaino v. State ,
Even if we assume this map was in the record, a "public swimming pool," like an "institution of higher learning," could not serve as a permissible drug-free zone to enhance Appellant's offense from a state jail felony to a third-degree felony because Section 481.134(b) is not applicable to a conviction under Section 481.115(b). See HEALTH & SAFETY § 481.134(b). A "playground" could serve as a permissible drug-free zone to enhance Appellant's offense, if Wiggins Park and Pool contains a playground within the meaning of the drug-free zone statute. See
We decline to hold, as the State requests, that Appellant was not harmed under Parrott based on the possibility of a valid drug-free zone within the vicinity of Appellant's offense. In assessing whether a defendant suffered harm under Parrott , Wright instructed courts to look at a defendant's prior criminal history to determine harm. Wright ,
Whether an illegal sentence falls within the void judgment exception is a matter of first impression for this court. For the void judgment exception to apply, "the record must leave no question about the existence of the fundamental defect." Nix , 65 S.W.3d at 668. "If the record is incomplete, and the missing portion could conceivably show that the defect does not in fact exist, then the judgment is not void, even though the available portions of the record tend to support the existence of the defect." Id. In this case, the record pertaining to Appellant's original conviction only contains a portion of the hearing on Appellant's plea of guilty; Appellant waived his right to have the court reporter *343take down the remaining portion of the proceedings. Thus, the record is incomplete.
But even though the record is incomplete, the missing portions could not conceivably show that the defect-the illegal sentence-does not exist. Before Appellant entered his plea of guilty, Appellant was instructed that this case was a "possession of a controlled substance in a drug-free zone, a third-degree felony." The trial court described the allegations the State was making against him, and the only drug-free zone mentioned was Howard Payne University. After hearing the State's allegations, Appellant pleaded guilty to the offense as charged: possession of OxyContin in an amount of less than one gram within 1,000 feet of Howard Payne University, an institution of higher learning. Based on the record before us, it would be unreasonable to conceive that the State proved an additional drug-free zone in the missing portions of the record because Appellant directly pleaded guilty to committing the offense within 1,000 feet of Howard Payne University, a drug-free zone that, on its face, appeared to be proper. Moreover, even if it was conceivable that the State adduced evidence that showed the offense was committed near Wiggins Park and Pool, it is unclear whether Wiggins Park and Pool would be a valid drug-free zone.
We conclude that the illegal sentence in this case renders the original judgment convicting Appellant of the third-degree felony offense of possession of a controlled substance in a drug-free zone void because " 'the record leave[s] no question' about the existence of a defect that renders the judgment void." Wright ,
C. The State's preservation of error and waiver arguments are unavailing in this case.
The State asserts (1) that Appellant failed to preserve the right to complain about his illegal sentence under Article 1.14 of the Texas Code of Criminal Procedure by failing to object to the indictment prior to trial and (2) that Appellant waived his right to complain about his illegal sentence because he pleaded guilty to the offense. As we explain below, we disagree for two reasons.
First, we agree with the State, and with the cases
Second, the State argues that "Appellant explicitly and affirmatively agreed on the record that he wished to proceed with his plea knowing that the State alleged that the offense occurred within 1,000 feet of an institution of higher learning." Although Appellant pleaded guilty,
D. The proper remedy is to vacate and remand and allow Appellant to withdraw his plea of guilty so the parties are returned to their original position before the entry of the plea bargain.
Appellant argues that the appropriate remedy is to allow him to withdraw his plea of guilty. Whether we allow Appellant to withdraw his plea depends on *345the existence of a plea bargain. "[W]hen a plea-bargain agreement calls for a sentence much greater than that authorized by law," the proper remedy is to "allow the defendant to withdraw his plea because there is no way of knowing whether the State would have offered a plea bargain within the proper range of punishment that he deemed acceptable, or whether he would have decided to proceed to trial." Rich ,
The Court of Criminal Appeals has defined "plea bargaining" to include "a promise of a recommendation from the prosecutor to the trial judge as to punishment, or some other concession by the prosecutor that he will not seek to have the trial judge invoke his full, maximum implementation of the conviction and sentencing authority he has." Perkins v. Court of Appeals for Third Supreme Judicial Dist. of Tex. ,
III. This Court's Ruling
We vacate the judgment in which the trial court revoked Appellant's community supervision as well as the original judgment of conviction, and we remand the cause to the trial court for further proceedings consistent with this opinion.
See
See Health & Safety § 481.134(b)(1).
Steadman v. State ,
In this case, Appellant did not separately plead "true" to the drug-free zone enhancement; instead, Appellant pleaded guilty to the offense of possession of a controlled substance in a drug-free zone.