Summary
In Soto v. State, No. 04-04-00630-CR, 2005 Tex. App. LEXIS 4167 (Tex. App.-San Antonio, June 1, 2005, no pet.) (not designated for publication) the range of punishment exceeded that allowed by statute.
Summary of this case from Ledezma v. State No. 04-04-00630-CR
Delivered and Filed: June 1, 2005. DO NOT PUBLISH.
Appeal from the 290th Judicial District Court, Bexar County, Texas, Trial Court No. 1999-CR-1898, Honorable Sharon MacRae, Judge Presiding. Reformed in Part; Remanded in Part.
Sitting: Catherine STONE, Justice, Sarah B. DUNCAN, Justice, Rebecca SIMMONS, Justice.
Opinion by: REBECCA SIMMONS, Justice.
Sofia Soto appeals the trial court's judgment revoking her community supervision and sentencing her to two years confinement in the Texas Department of Criminal Justice — Institutional Division (TDCJ-ID). Soto contends that the offense for which she was charged and convicted was a state jail felony not a second degree felony. The State concedes error in this regard; however, the State contends that this court should reform the judgment to change the location of Soto's confinement to state jail and affirm the judgment as reformed. Given the underlying circumstances, we reform the trial court's judgment to reflect a conviction of a state jail felony and remand the cause to the trial court for a new punishment hearing.
Background
Soto was indicted for tampering with a governmental record with intent to defraud or harm another. The indictment contained no allegation that the governmental record in question, a fictitious automobile liability insurance card, was issued by the government. Accordingly, Soto was charged with a state jail felony as opposed to a second degree felony. Soto entered into a plea bargain agreement with the State in which she agreed to a punishment of six years and the State agreed to recommend community supervision for six years. The trial court admonished Soto with the punishment range applicable to a second degree felony. In accordance with the plea bargain agreement, the trial court sentenced Soto to six years confinement in the TDCJ-ID; however, the trial court suspended Soto's sentence and placed her on community supervision for a term of six years commencing March 28, 2000. In January of 2004, the State filed a motion to revoke Soto's probation for failure to report and failure to pay fines. The trial court continued Soto's probation but sanctioned her by requiring her to serve thirty days in the Bexar County Jail. In July of 2004, the State filed another motion to revoke Soto's probation for failure to report and failure to pay fines. Soto pled true to the violations, and the trial court revoked Soto's probation and sentenced her to two years confinement in the TDCJ-ID. Discussion
Soto asserts that the original sentence imposed by the trial court exceeded the range of punishment for the offense for which she was convicted. Soto requests that this court "reverse her original conviction and remand for proper sentencing." Alternatively, Soto requests that this court "reverse her sentence and remand to the trial court for re-sentencing as a state jail felony." The State counters that Soto was not harmed by the original sentence that exceeded the maximum range for a state jail felony because she was placed on community supervision. Although the State acknowledges that the term of Soto's community supervision originally exceeded the five year maximum length permitted for a state jail felony, the State notes that Soto's probation, as extended in January of 2004, was within the maximum length a judge is permitted to extend community supervision for a state jail felony. The State further notes that Soto's probation was revoked within the five year maximum length of community supervision permitted for state jail felonies absent any extension. Again, the State appears to be arguing that Soto was not harmed by the excessive length of the community supervision as originally imposed. A sentence that is outside the maximum range of punishment is unauthorized by law and is therefore illegal or void. Mizell v. State, 119 S.W.3d 804, 806 (Tex.Crim.App. 2003). "A void judgment is a `nullity' and can be attacked at any time." Nix v. State, 65 S.W.3d 664, 667-68 (Tex.Crim.App. 2001). "If the original judgment imposing probation was void, then the trial court would have no authority to revoke probation, since, with no judgment imposing probation (because it is a nullity), there is nothing to revoke." Id. At 668. Since the governmental record at issue in this case was not issued by the government, Soto's offense was a state jail felony punishable by confinement in a state jail for a minimum term of 180 days and a maximum term of two years. See Tex. Pen. Code Ann. §§ 12.35, 37.10(c)(1) (Vernon 2003). The sentence imposed by the trial court exceeded this maximum range and was, therefore, void. Although the State asserts that we could simply reform the judgment to change the place of confinement from the TDCJ-ID to state jail, the place of confinement is a part of the sentence, and when an unauthorized place of confinement is specified, the sentence is void. Banks v. State, 29 S.W.3d 642, 644-45 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd). The State relies heavily on Lujan v. State, 664 S.W.2d 737 (Tex.App.-El Paso 1983, no pet.), to support its contention that this court should simply reform the judgment; however, in Lujan, the court expressly noted, "[t]he original ten years probation was within the range of the indicted robbery offense. So was the ultimate five year sentence upon revocation." Id. at 739. Unlike Lujan, the original sentence, which exceeded the maximum punishment range, and the sentence upon revocation, which included an unauthorized place of confinement, were both illegal sentences. See Mizell, 119 S.W.3d at 806; Banks, 29 S.W.3d at 644-45. Furthermore, in Lujan, the appellate court determined that it had the same information available for reformation as the trial court would have upon reversal and remand. Id. In this case, however, we do not know the effect the erroneous punishment range "exerted on the court's discretion" in pronouncing sentence. Hudgens v. State, 709 S.W.2d 648, 649 (Tex.Crim.App. 1986). Because we cannot assume that the trial court would assess the same sentence, we believe the more just result is to reform the judgment to reflect a conviction of the state jail felony of tampering with a governmental record with intent to defraud or harm another and remand the case for a new trial on punishment. See Tex. Code Crim. Proc. Ann. art. 44.29(b) (Vernon Supp. 2004-2005); see also Lockett v. State, 874 S.W.2d 810, 818 (Tex.App.-Dallas 1994, pet. ref'd). Conclusion
The trial court's judgment is reformed to reflect a conviction of the state jail felony of tampering with a governmental record with intent to defraud or harm another. The cause is remanded to the trial court for a new punishment hearing.