Jose Calvillo v. the State of Texas

Opinion

MODIFY, VACATE, and REMAND and Opinion Filed August 28, 2024

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-23-00912-CR No. 05-23-00913-CR

JOSE CALVILLO, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 283rd Judicial District Court Dallas County, Texas Trial Court Cause Nos. F20-60678, F20-51752

MEMORANDUM OPINION Before Justices Pedersen, III, Smith, and Garcia Opinion by Justice Garcia The trial court adjudicated appellant guilty for possession of

methamphetamine of less than one gram and possession of heroin of less than one

gram, state jail offenses, and sentenced him to six years in prison.

Appellant now argues the punishment assessed exceeds the range of

punishment for both offenses and the original orders of deferred adjudication should

be modified to conform with the record. The State agrees.

We modify the original orders of deferred adjudication, vacate the trial court’s

judgments, and remand the cases to the trial court for a new punishment hearing. I. BACKGROUND

The trial court placed Appellant on community supervision for three years for

two state jail felony offenses, possession of less than one gram of methamphetamine

and possession of less than one gram of heroin. At the time of the original plea, the

State abandoned enhancement paragraphs in one case, and did not allege

enhancement paragraphs in the other case. The trial court deferred adjudication of

guilt on these state jail felony offenses and placed appellant on community

supervision for three years.

The State subsequently moved to adjudicate appellant’s guilt, and appellant

pleaded true to the allegations. The trial court assessed punishment at six years in

prison.

II. ANALYSIS

Appellant’s first two issues argue the trial court imposed a sentence for the

state jail felonies outside the statutory range of punishment. The State agrees.

A. The Offenses

F20-60678 (No. 05-23-00912-CR)

In this case, appellant was charged with possession of a controlled substance

in penalty group one (methamphetamine) in an amount less than one gram, a state

jail felony offense. TEX. HEALTH & SAFETY CODE ANN. § 481.115(a)–(b). The

Information alleged that appellant had been previously convicted of two non-state

jail felony offenses, elevating the potential range of punishment to that of a second

–2– degree felony. TEX. PENAL CODE ANN. § 12.425(b). The State later moved to strike

these enhancement paragraphs from the Information, and the motion was granted.

F20-51752 (No. 05-23-00913-CR)

In this case, a grand jury indicted appellant for possession of a controlled

substance in penalty group one (heroin) in an amount less than one gram, a state jail

felony offense. TEX. HEALTH & SAFETY CODE ANN 481.115(a)–(b). There were no

enhancement allegations.

B. The Punishment

Because there were no enhancements in either case, the maximum state jail

felony sentence was no more than two years. See TEX. PENAL CODE ANN. § 12.35(c).

The trial court, however, sentenced appellant to confinement for six years. The

sentence exceeds the maximum punishment for state jail felonies.

A sentence outside the maximum or minimum range of punishment is

unauthorized by law and therefore void. Ex parte Hill, 632 S.W.3d 547, 557 (Tex.

Crim. App. 2021); Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003).

The appropriate remedy to correct a void judgment that assesses punishment outside

the statutory range is to remand for a new punishment hearing. Robertsonwomack v.

State, No. 05-22-00569-CR, 2023 WL 386322 (Tex. App.—Dallas Jan. 25, 2023, no

pet.) (mem. op., not designated for publication). We sustain appellant’s first two

issues.

–3– C. The Deferred Adjudication Orders

Appellant’s third issue asks this Court to modify the original deferred

adjudication orders. The State agrees that modification is required.

We have the power to modify a judgment to speak the truth when we have the

necessary information to do so. TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d

26, 27–28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529 (Tex.

App.—Dallas 1991, pet. ref’d).

The order in cause number F20-60678 identifies the Degree of Offense as a

“2nd Degree Felony.” As we have explained, and the record reflects, the offense

charged is a state jail felony. In addition, the order lists the statute for the offense as

“481.112(C).” The correct statute is TEX. HEALTH & SAFETY CODE ANN. §

481.115(a)–(b).

The order in cause number F20-51752 reflects that appellant pleaded true to

enhancement paragraphs and that the court found the enhancements true. The record

reflects, however, that there were no enhancements in this case.

We sustain appellant’s third issue and modify the deferred adjudication orders

as requested.

III. CONCLUSION

We sustain appellant’s three issues. We modify the deferred adjudication

order in cause number F20-60678 to reflect that the degree of offense is a state jail

felony and the correct statute is TEX. HEALTH & SAFETY CODE ANN. § 481.115(a)–

–4– (b). We modify the order in cause number F20-51752 to state “N/A” for the

enhancement paragraph and court’s finding on enhancements sections of the order.

We vacate the trial court’s judgments and remand for a new sentencing hearing.

/Dennise Garcia/ DENNISE GARCIA Do Not Publish JUSTICE TEX. R. APP. P. 47.2(b) 230912F.U05

–5– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

JOSE CALVILLO, Appellant On Appeal from the 283rd Judicial District Court, Dallas County, Texas No. 05-23-00912-CR V. Trial Court Cause No. F20-60678. Opinion delivered by Justice Garcia. THE STATE OF TEXAS, Appellee Justices Pedersen, III and Smith participating.

Based on the Court’s opinion of this date, we MODIFY the deferred adjudication order to reflect that the degree of offense is a state jail felony and the correct statute is TEX. HEALTH & SAFETY CODE ANN. § 481.115(a)–(b). We VACATE the trial court’s judgment and REMAND for a new punishment hearing.

Judgment entered August 28, 2024

–6– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

JOSE CALVILLO, Appellant On Appeal from the 283rd Judicial District Court, Dallas County, Texas No. 05-23-00913-CR V. Trial Court Cause No. F20-51752. Opinion delivered by Justice Garcia. THE STATE OF TEXAS, Appellee Justices Pedersen, III and Smith participating.

Based on the Court’s opinion of this date, we MODIFY the deferred adjudication order to state “N/A” for the enhancement paragraph and court’s finding on enhancements sections of the order. We VACATE the trial court’s judgment and REMAND for a new punishment hearing.

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