Robert Lane Lee v. State

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-12-00219-CR

ROBERT LANE LEE, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 251st District Court Randall County, Texas Trial Court No. 22,237-C, Honorable Ana Estevez, Presiding

May 31, 2013

MEMORANDUM OPINION Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

Appellant, Robert Lane Lee, appeals his conviction for possession of a controlled

substance, listed in Penalty Group 1, of less than one gram.1 After receiving evidence

regarding punishment, the trial court sentenced appellant to serve 15 months in a State

Jail Facility (SJF) and a fine of $1,000.00. Appellant appeals contending that the trial

court erred in failing to place appellant on mandatory community supervision, and

entering a judgment that assessed a fine of $1,000.00 when no oral pronouncement of

1 See TEX. HEALTH & SAFETY CODE ANN. § 481.115(a), (b) (West 2010). the fine was made at the time appellant was sentenced. We will reverse and remand

for a new punishment hearing.

Factual and Procedural Background

Appellant does not contest the sufficiency of the evidence to support his

conviction; therefore, we will omit references to the facts concerning appellant’s arrest.

After a bench trial, appellant was convicted of possession of a controlled substance,

less than one gram, listed in Penalty Group 1. Following his conviction, the trial court

heard the evidence regarding punishment. During this phase of the trial, the trial court

heard a substantial amount of evidence regarding appellant’s convictions for numerous

misdemeanor offenses. Of particular note to the proceedings, the trial court heard

testimony regarding appellant’s conviction for the offense of credit card abuse.2 Initially,

appellant was placed on deferred adjudication community supervision. Then, following

the State’s motion to adjudicate appellant guilty, appellant was continued on deferred

adjudication with amended terms and conditions of community supervision. Following

another motion to adjudicate appellant guilty, the State and appellant entered into a plea

bargain whereby appellant was found guilty of credit card abuse, a felony, but was

sentenced, pursuant to section 12.44(a) of the Texas Penal Code, as a misdemeanor.

See TEX. PENAL CODE ANN. § 12.44(a) (West 2011). 3

2 At the time of appellant’s conviction, credit card abuse was a felony offense. See Acts 1973, 63rd Leg., R.S., ch. 399, 1973 Tex. Gen. Laws 936-37, amended by, Acts 1993, 73rd Leg., R.S., ch. 900, 1993 Tex. Gen. Laws 3644-45 (current version at TEX. PENAL CODE ANN. § 32.31 (West 2011)). 3 Further reference to the Texas Penal Code shall be by reference to “section ____” or “§ ____.”

2 After receiving the punishment evidence in the instant case, the trial court

pronounced appellant’s sentence at confinement in a SJF for 15 months.

Subsequently, the trial court signed a judgment that ordered confinement in a SJF for

15 months, and a fine of $1,000.00. This appeal followed.

Through two issues, appellant contends that the sentence pronounced by the

trial court was illegal because the law required the trial court to sentence appellant to

community supervision. Additionally, appellant contends that the orally pronounced

sentence, which did not contain an order to pay a fine, controls over the written

judgment. We agree with appellant and will reverse the sentence and remand the case

to the trial court for a new punishment trial.

Analysis

Initially we note that the State has candidly confessed that appellant’s position is

correct on both issues. As to the first issue, appellant was convicted of possession of

less than one gram of a controlled substance listed in Penalty Group 1. See TEX.

HEALTH & SAFETY CODE ANN. § 481.115(a), (b). Subsection (b) provides that “an offense

under Subsection (a) is a state jail felony if the amount of the controlled substance

possessed is, by aggregate weight, including adulterants or dilutants, less than one

gram.” Id. As a state jail felony offense, it is punishable by confinement for not less

than 180 days nor more than two years in a SJF, and an optional fine not to exceed

$10,000.00. See § 12.35 (West Supp. 2012).

However, a conviction of a state jail felony offense under section 481.115(b) of

the Texas Health & Safety Code carries with it a mandatory sentence of community

3 supervision unless the case falls within certain exceptions. See TEX. CRIM. PROC. CODE

ANN. art. 42.12, § 15(a)(1) (West Supp. 2012). Specifically, as applicable to this case,

unless the appellant had previously been convicted of a felony offense, other than one

punished under section 12.44(a), he is required to be sentenced to community

supervision. Id. Inasmuch as appellant’s previous felony offense was punished under

section 12.44(a), the trial court was required to sentence appellant to community

supervision. Sentencing appellant to 15 months confinement in a SJF resulted in

appellant being sentenced outside the maximum permitted by law. Consequently, this

is then a void sentence. See State v. Marroquin, 253 S.W.3d 783, 784-85 (Tex.App.—

Amarillo 2007, no pet.). Accordingly, appellant’s first issue is sustained. 4 Because we

are left with a void sentence, we must reverse and remand for a new trial as if a finding

of guilt had been made and the trial court proceeded to punishment. See TEX. CODE

CRIM. PROC. ANN. art. 44.29(b) (West Supp. 2012); Marroquin, 253 S.W.3d at 785.

Conclusion

The judgment of the trial court is reversed and the cause is remanded for a new

punishment trial.

Mackey K. Hancock Justice

Do not publish.

4 We note that the record reflects that appellant is also correct in his contention that the trial court’s oral pronouncement of sentence did not include a fine of $1,000.00. See Taylor v. State,131 S.W.3d 497, 500 (Tex.Crim.App. 2004).