John Dennis Clayton Anthony v. State

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-13-00089-CR

JOHN DENNIS CLAYTON ANTHONY, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 287th District Court Bailey County, Texas Trial Court No. 2557, Honorable Gordon H. Green, Presiding

February 12, 2015

CONCURRING OPINION Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

I concur in the result and the discussion about counsel’s ineffectiveness at the

initial plea hearing. Yet, I am also concerned about the application of Wiley v. State,

410 S.W.3d 313, 319 (Tex. Crim. App. 2013) (reaffirming prior authority holding that “an

appellant will not be permitted to raise on appeal from the revocation of his community

supervision any claim that he could have brought on an appeal from the original

imposition of that community supervision”) to the circumstances before us. My concern

is avoided though when considering this court’s opinion in Neugebauer v. State, 266 S.W.3d 137 (Tex. App.—Amarillo 2008, no pet.). There we held that “[i]f the original

judgment imposing community supervision is void, then the trial court has no authority

to revoke that community supervision, since, with no judgment imposing community

supervision, there is nothing to revoke.” Id. at 139.

I analogize the situation here to one wherein the sentence is not authorized by

law. Should such a sentence be levied, it is void or illegal. Ex parte Pena, 71 S.W.3d

336 n.2 (Tex. Crim. App. 2002). While this is really not a case where the sentence

was illegal (since a sentence requires a conviction and deferring the adjudication is not

a conviction and, therefore, a sentence), the course of action undertaken by the trial

court was prohibited by statute. Thus, it was void. Being void, it never occurred.

So, as we observed in Neugebauer, since the original judgment deferring the

adjudication of appellant’s guilt and placing him on community supervision was void, the

trial court had nothing before it to revoke. Thus, its judgment should be reversed, and

the parties should begin anew as if the defendant had never been placed on deferred

adjudication or agreed to a plea bargain that the law barred the trial court from

enforcing.

Brian Quinn Chief Justice

Publish.