Heath v. State

817 S.W.2d 335, 1991 Tex. Crim. App. LEXIS 221, 1991 WL 61741

• Court: Court of Criminal Appeals of Texas
• Decided: October 23, 1991
• Docket: 1465-89
• Status: Published

Opinions

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

BAIRD, Judge.

Appellant pled guilty to the charged offense of aggravated robbery. The trial court found appellant guilty, followed the plea bargain agreement between appellant and the State, and assessed punishment at ten years confinement, suspended imposition of the sentence and placed appellant on probation for ten years. The State later moved to revoke the probated sentence. The trial court held a hearing, revoked the probation and sentenced appellant to eight years confinement. The Court of Appeals affirmed. Heath v. State, 778 S.W.2d 208 (Tex.App. — Fort Worth 1989).¹

We granted appellant’s petition for discretionary review wherein the sole ground for review contends “the Court of Appeals erred in finding that appellant cannot be heard to complain about revocation of his probated sentence for aggravated robbery when the probation was originally granted contrary to Tex.Code Crim.Proc. Ann. Art. 42.12 (Vernon 1979).” Appellant argues that the trial court’s order granting probation and the sentence imposed after the revocation of probation were void because a defendant is ineligible for court-ordered probation if he is convicted of aggravated robbery. The trial court’s order granting probation and the subsequent sentence of eight years were not authorized by law. Tex.Code Crim.Proc.Ann. art. 42.12, § 3g(a)(l)(D). If a punishment is not authorized by law, that portion of the sentence imposing that punishment is void. Ex parte Johnson, 697 S.W.2d 605, 606-607 (Tex.Cr.App.1985).

The Court of Appeals held that since appellant did not raise the issue of the void sentence when the probation was assessed, appellant was barred from complaining of any defect in his sentence on appeal. Heath, 778 S.W.2d at 210, citing Trcka v. State, 744 S.W.2d 677 (Tex.App.— Austin 1988, pet.ref’d.). We have long held that a defect which renders a sentence void may be raised at any time. Ex parte McIver, 586 S.W.2d 851, 854 (Tex.Cr.App.1979). (Habeas corpus relief will issue to a person in custody under a sentence which is void because the punishment is unauthorized, citing Ex parte Harris, 495 S.W.2d 231, 232 (Tex.Cr.App.1973) and Ex parte White, 659 S.W.2d 434, 435 (Tex.Cr.App.1983)). Therefore, appellant was not barred from complaining of the void sentence on direct appeal by not first raising the issue before the trial court.

Having determined that the issue could be raised on direct appeal, we must determine what action is appropriate when a defendant ineligible to receive a probated sentence receives such a probated sentence pursuant to a plea bargain agreement. The identical issue was adressed in Dougherty v. State, 740 S.W.2d 516 (Tex.App.— Houston [1st] 1987, no pet.) where, pursuant to a plea bargain agreement, the defendant pled guilty to the offense of aggravated sexual assault. The trial court found the defendant guilty, followed the plea bargain agreement, and assessed punishment at ten years confinement, suspended imposition of the sentence and placed the defendant on probation. The probation was later revoked and the defendant was sentenced to ten years confinement. The court of appeals found that a defendant convicted of aggravated sexual assault was ineligible for court-ordered probation pursuant to Tex.Code Crim.Proc.Ann. art. 42.12 § 3g(a)(l)(C). The court of appeals reversed the cause and remanded it to the trial court by concluding:

The Texas Court of Criminal Appeals has uniformly held that an order or judgment inflicting punishment not authorized is void. State ex rel. Vance v. Hatten, 600 S.W.2d 828 (Tex.Crim.App. 1980); State ex rel. Curry v. Gray, 599 S.W.2d 630 (Tex.Crim.App.1980); Ex parte McIver, 586 S.W.2d 851 (Tex.Crim.App.1979).

We hold that both the order placing appellant on probation and the order revoking probation and sentencing appellant to 10 years confinement are void.

Dougherty, 740 S.W.2d at 517.

We agree with the reasoning in Dough-erty. This cause must be remanded to the trial court.

There remains one final question: In what posture do the parties stand when the cause returns to the trial court? As this cause involved a plea bargain agreement, unenforceable because appellant was ineligible for court-ordered probation for the offense of aggravated robbery, we turn to Shannon v. State, 708 S.W.2d 850 (Tex.Cr.App.1986) for guidance. In Shannon the defendant, pursuant to a plea bargain agreement, entered a plea of guilty in exchange for a sentence of two years. Appellant challenged the conviction. The court of appeals reversed the conviction and remanded the case for a reassessment of punishment only. We granted the State’s petition for discretionary review and held:

We hold, therefore, that when a defendant, who has entered a negotiated plea of guilty, challenges the conviction and is successful, the appropriate remedy is specific performance of the plea, if possible, or, if not, withdrawal of the plea, with both parties, including the State, returned to their original positions. [Emphasis in original.]

Id. at 852.

In this case, appellant is not eligible for court-ordered probation for the offense of aggravated robbery, therefore, specific performance is not an alternative. The only remaining remedy is to order appellant’s plea of guilty withdrawn and to return the parties, including the State, to their original positions.

Therefore, the judgment of the Court of Appeals is reversed and the cause is remanded to the trial court with orders that the trial court withdraw appellant’s plea and that appellant replead to the indictment in this cause.

OPINION ON STATE’S AND STATE PROSECUTING ATTORNEY’S MOTION FOR REHEARING

Michael Anthony Heath, appellant, pled guilty to the charged offense of aggravated robbery. The trial court found appellant guilty, followed the plea bargain agreement between appellant and the State, assessed punishment at ten years confinement, and suspended imposition of the sentence, placing appellant on probation for ten years. The State later moved to revoke the probated sentence. The trial court held a hearing, revoked the probation, and sentenced appellant to eight years confinement. The Court of Appeals affirmed. Heath v. State, 778 S.W.2d 208 (Tex.App. — Fort Worth 1989). On original submission, we granted appellant’s petition for discretionary review and held: 1) if a punishment is not authorized by law the sentence is void; 2) appellant did not waive the issue by failing to complain in the trial court because a defect that renders a sentence void may be raised at any time; and 3) when the void sentence is obtained as a result of a plea bargain agreement, where specific performance is not an alternative, the remedy is to order the plea of guilty withdrawn and to return the parties, including the State, to their original positions. Therefore, we reversed the judgment of the Court of Appeals and remanded the case to the trial court with orders that the trial court withdraw appellant’s plea and that appellant replead to the indictment. Heath v. State, 817 S.W.2d 335 (Tex.Cr.App. No. 1465-89, delivered April 24, 1991) (opinion on original submission).

The State and the State Prosecuting Attorney have filed motions for rehearing urging that our opinion on original submission is in conflict with other precedent from this Court. We will deny both motions and affirm our holding on original submission.

I.

As noted on original submission, a defendant convicted of aggravated robbery is not eligible for court-ordered probation. Tex.Code Crim.Proc.Ann. art. 42.12, § 3g(a)(l)(D). The State contends that we erred on original submission by not employing the doctrine of estoppel. Specifically, the State argues that since appellant enjoyed the unauthorized probation, he should be estopped from complaining when the State moves to revoke the probation. The State relies upon a line of cases beginning with Popham v. State, 154 Tex.Crim. 529, 228 S.W.2d 857 (1950).

In Popham, supra, the defendant pled guilty to assault with intent to rape and was sentenced to an unauthorized probation. The State later moved to revoke the probation. The trial court granted the State’s motion and assessed punishment at three years confinement. Citing no legal precedent, this Court held that where the trial court was without “authority to place appellant upon probation ... [it] did not err in revoking the unauthorized order of probation.” Id.

This Court revisited the issue in Hartley v. State, 169 Tex.Crim. 341, 334 S.W.2d 287 (1960). In Hartley, the defendant pled guilty to unlawful possession of a narcotic drug and was sentenced to an unauthorized probation. The State subsequently discovered the defendant had a prior felony conviction and moved to revoke the probation. The trial court granted the State’s motion and assessed punishment at two years confinement. Again, this Court held the defendant could not complain when an unauthorized probation was revoked. Id.

In Tritt v. State, 379 S.W.2d 919 (Tex.Cr.App.1964), defendant pled nolo contendere to an indictment for abortion. The defendant was sentenced to an unauthorized probation. The State later moved to revoke the probation. The trial court granted the State’s motion and assessed punishment at four years confinement. As the offense pled to was one in which court-ordered probation was not authorized, the defendant contended the original sentence was void. Again, this Court held the defendant could not complain when a court revoked an unauthorized probation. Id.

Additionally, the State relies upon Branch v. State, 477 S.W.2d 893 (Tex.Cr.App.1972), which the State Prosecuting Attorney describes as a “white horse case.” However, we find Branch distinguishable from the case at bar. Branch did not involve either a plea bargain agreement or a plea of guilty; the defendant exercised his right to a jury trial upon his plea of not guilty to the jury, and the jury returned a verdict of guilty. The trial judge assessed punishment at 10 years, probated, and the defendant did not appeal. The trial court later revoked Branch’s probation and he appealed urging that the evidence was insufficient to establish that he violated the terms and conditions of his probation. Also, on appeal Branch sought to have the Court of Criminal Appeals review any errors made in the original trial. To support this argument, he argued the court’s order granting probation was a nullity and he should be able to now give notice of appeal. The Court in Branch held: “If the court did not have the authority to grant probation, there is no error in its revocation” and cited Tritt, Hartley and Popham. Branch, 477 S.W.2d at 896.

Finally, the State asserts that our opinion on original submission is in conflict with Coleman v. State, 640 S.W.2d 889 (Tex.Cr.App.1982). We also find Coleman distinguishable. In Coleman, the trial court improperly sentenced appellant to pay a fine as a condition of deferred adjudication.1 The issue in Coleman was whether an unauthorized condition of probation, not used to revoke the probation, was sufficient to “set aside an otherwise valid conviction.” Id. In Coleman we held: “The mere imposition of an unauthorized condition of probation, which is not utilized as a basis of a subsequent revocation of probation, cannot be used to set aside an otherwise valid conviction.” Id. at 892. This case does not deal with the terms and conditions of probation but whether the initial probation, obtained through a plea bargain agreement, was authorized. Therefore, Coleman is not dis-positive of the issues presented today.

II.

We recognize that Popham, Hartley and Tritt appear to support the State’s estoppel theory; however, the following cases support our holding on original submission. In Ex parte Austin, 746 S.W.2d 226 (Tex. Cr.App.1988), the defendant pled guilty pursuant to a plea bargain agreement for shock probation pursuant to Tex. Code Crim.Proc.Ann. art. 42.12, § 3e. The agreement was approved by the Court. However, the defendant was ineligible to receive shock probation due to the affirmative finding of the use of a deadly weapon in the commission of the offense. We specifically noted that the trial court, the State, defense counsel and defendant were unaware that the plea bargain could not be carried out. Austin, 746 S.W.2d at 227. As the plea was based upon an inducement that could not be fulfilled, we ordered the guilty plea withdrawn and the defendant returned to the trial court to answer the indictment. Austin, 746 S.W.2d at 229. In plea bargain situations, withdrawal of the plea is appropriate where the State or trial court never had the authority to ensure compliance with the plea bargain. Ex parte Austin, 746 S.W.2d at 227. Accordingly, when the plea bargain agreement calls for a sentence not authorized by law, the defendant’s plea will be withdrawn. Austin, 746 S.W.2d at 229.

Sentences not authorized by law are void. Wilson v. State, 677 S.W.2d 518 (Tex.Cr.App.1984). This has been the law in Texas for over a century. Fowler v. State, 9 Tex.App. 149 (1880), (punishment below the statutory minimum held to be incapable of supporting a conviction); Brown v. State, 99 S.W. 1001, 50 Tex.Cr.R. 626 (Tex.Cr.App.1907); Dillard v. State, 177 S.W. 99, 107, 77 Tex.Cr.R. 1 (Tex.Cr.App.1915) (“The Courts have no right to assess a punishment not provided by the laws of this State for the commission of any offense” where the punishment was below the minimum.); Rutherford v. State, 187 S.W. 481, 79 Tex.Cr.R. 605 (Tex.Cr.App.1916) (“The punishment assessed must be always within the minimum and maximum fixed by law” where trial to the jury and jury assessed punishment below the minimum.); Simmons v. State, 156 Tex. Crim. 601, 245 S.W.2d 254 (1952); Henderson v. State, 167 Tex.Crim. 112, 318 S.W.2d 898 (1958); Bradshaw v. State, 331 S.W.2d 52 (Tex.Cr.App.1960); Ex parte McIver, 586 S.W.2d 851 (Tex.Cr.App.1979); State ex rel. Curry v. Gray, 599 S.W.2d 630 (Tex.Cr.App.1980) (order granting probation unauthorized by law is void); State ex rel. Vance v. Hatton, 600 S.W.2d 828 (Tex.Cr.App.1980); Bogany v. State, 661 S.W.2d 957 (Tex.Cr.App.1983); Ex parte Johnson, 697 S.W.2d 605 (Tex.Cr.App.1985); Ex parte Williams, 753 S.W.2d 695 (Tex.Cr.App.1988).

III.

We realize there is conflicting authority represented by the trilogy of Popham, Hartley and Tritt. However, we find that to continue this line of cases, which were decided without the benefit of legal precedent, would only add confusion to an already muddled area of law. See, Popham, 228 S.W.2d at 858. Accordingly, Popham, 228 S.W.2d 857, and its progeny, are overruled. As previously stated, we believe Branch and Coleman are distinguishable; however, to the extent they conflict with our holding today, they are overruled.

IV.

In Shannon v. State, 708 S.W.2d 850 (Tex.Cr.App.1986), the defendant, pursuant to a plea bargain agreement, was sentenced to two years confinement in the Texas Department of Corrections. On appeal the defendant attacked his conviction arguing the offense for which he was convicted was a Class A misdemeanor with a maximum punishment of one year. The Court of Appeals agreed and remanded the case to the trial court for resentencing. Shannon, 708 S.W.2d at 851. The State argued before this Court, “since this was a negotiated plea, the proper remedy is to remand the case to the trial court, putting both parties back in their original positions before the negotiated plea.” Id. at 851. We agreed with the State:

The court of appeals, in holding that appellant was entitled to resentencing, relied upon a long line of precedent establishing that, when an error relates only to punishment and the punishment was assessed by the trial court, a defendant is entitled solely to resentencing and not to a new trial. [Citations omitted.] In applying this principle of law, this Court has never before distinguished the “negotiated guilty” plea from either “not guilty” pleas or “guilty” pleas without a recommendation. We take this opportunity to do so now.

In this case the conviction is based upon a plea bargain and the punishment assessed is an intergral part of the agreement to plead guilty. The idea that error is “punishment error” only is incompatible with the negotiated plea and we therefore disavow such analysis in this specific area. When a defendant attacks the sentence he received and for which he bargained, he is attacking the entire judgment of conviction. [Emphasis in original.] To permit resentencing in this situation is to bind only one party to the agreement. This is neither logical nor fair.

708 S.W.2d at 851.

If we applied the doctrine of estoppel to errors where the parties (the trial court, the State, defense counsel and appellant) unknowingly enter into unauthorized plea bargain agreements, we would be treating those errors as punishment error only, which is incompatible with the concept of negotiated pleas and represents a theory that has been specifically disavowed by this Court. Shannon, 708 S.W.2d at 852.

Our reasoning in Shannon remains sound and its holding should be applied in this case, in plea bargain situations where specific performance is not an alternative, the only remedy is to order the plea withdrawn and to return the parties, including the State, to their original positions. Shannon, 708 S.W.2d at 852. Accordingly, the motions for rehearing are denied, the judgment of the Court of Appeals is reversed and the cause is remanded to the trial court with orders that the trial court withdraw appellant’s plea and that appellant replead to the indictment in this cause.

WHITE and BENAVIDES, JJ., concur in the result. McCORMICK, P.J., dissents.

1 . Appellant was also charged with the offense of burglary of a habitation. At the time of his plea in the instant cause, Appellant also pled guilty to that offense. Pursuant to the instant plea bargain agreement, the trial court assessed punishment at ten years confinement, suspended imposition of the sentence and placed appellant on probation for ten years. After the same hearing involved in the instant case, the trial court, revoked the probation and sentenced appellant to eight years confinement. The Court of Appeals affirmed. Heath v. State, 778 S.W.2d 208 (Tex.App. — Fort Worth 1989). No petition for discretionary review was filed from that affirmance. Therefore, the only offense involved in this case is that of aggravated robbery.

1 . All emphasis, unless otherwise indicated, is supplied by the author.