Heath v. State

• Decision Date: 24 April 1991
• Docket Number: No. 1465-89,1465-89
• Citation: Heath v. State, 817 S.W.2d 335 (Tex. Crim. App. 1991)
• Parties: Michael Anthony HEATH, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 335

817 S.W.2d 335

Michael Anthony HEATH, Appellant, v. The STATE of Texas, Appellee.

No. 1465-89.

Court of Criminal Appeals of Texas En Banc.

April 24, 1991.

Opinion on State's and State

Prosecuting Attorney's Motion for

Rehearing Oct. 23, 1991.

Wes Ball (Court-appointed on appeal), Arlington, for appellant.

Tim Curry, Dist. Atty., and C. Chris Marshall, Loretta Stauffer and David K. Chapman, Asst. Dist. Attys., Fort Worth, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

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)(1)(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)(1)(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 Dougherty. 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)(1)(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...