Joseph Wayne Deal v. State

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-04-081 CR ____________________

JOSEPH WAYNE DEAL, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 252nd District Court Jefferson County, Texas Trial Cause No. 83350

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MEMORANDUM OPINION

Without benefit of a plea bargain, Joseph Wayne ⁽¹⁾ Deal pled no contest to the offense of failing to stop and give information and render aid. See Tex. Transp. Code Ann. §§ 550.021, 550.023 (Vernon 1999). The trial court deferred adjudication of guilt and placed Deal on probation for ten years. Less than three years later, after hearing the State's Motion to Revoke Unadjudicated Probation, the trial court found Deal guilty and sentenced him to ten years confinement in the Institutional Division of the Texas Department of Criminal Justice.

After the trial court certified that Deal had the right to appeal, appellate counsel filed a brief that concluded no arguable error was presented in Deal's appeal. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), and High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978). However, our review of the record revealed arguable error regarding whether Deal's ten-year sentence is authorized by law. See Tex. Transp. Code Ann. §§ 550.021, 550.023 (Vernon 1999)(setting maximum punishment at imprisonment for not more than five years and a fine of up to $5,000). Having concluded that there was an arguable ground for appeal on that question, we abated the cause for the appointment of new counsel. The trial court appointed new counsel who filed the brief upon which we now act.

In a single issue, Deal asserts that the trial court erred in assessing punishment not authorized by law and that the sentence imposing punishment is void. The State concedes error in this cause's punishment phase and concludes that the assessed sentence exceeds the statutorily prescribed punishment range for the offense.

Generally, when a punishment is unauthorized by law, the sentence imposing that punishment is void. See Levy v. State, 818 S.W.2d 801, 802-03 (Tex. Crim. App. 1991). An assessed punishment that is unauthorized by law is one that is "not within the universe of punishments applicable to the offense." Ex parte Johnson, 697 S.W.2d 605, 607 (Tex. Crim. App. 1985). Such is the case here as Deal was sentenced to ten years while there is a statutorily imposed maximum sentence of five years. A sentence outside the statutory limits is void. We sustain Deal's issue.  

When a defendant pleads guilty or no contest, without the benefit of a plea bargain agreement, and is assessed a punishment not authorized by law, "the appropriate remedy is to allow the finding of guilt to remain and to remand the case to the trial court for the proper assessment of punishment." Levy, 818 S.W.2d at 803; see also Tex. Code Crim. Proc. Ann. art. 44.29(b) (Vernon Supp. 2005). Accordingly, we reverse the trial court's judgment as to punishment and remand the case to the trial court for a new punishment hearing and assessment.  

REVERSED AND REMANDED.

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HOLLIS HORTON

Justice

Submitted on August 16, 2005

Opinion Delivered August 24, 2005

Do Not Publish

Before McKeithen, C.J., Kreger and Horton, JJ.

1.

Deal's middle name has appeared in the record in various ways, including "Wayne" and "Dwayne." To be consistent with the deferred adjudication order, we use "Wayne" in this opinion.