Rhodes v. State

• Decision Date: 07 November 2007
• Docket Number: No. PD-1598-05.,No. PD-1599-05.,No. PD-1597-05.,PD-1597-05.,PD-1598-05.,PD-1599-05.
• Citation: 240 S.W.3d 882
• Parties: Terry RHODES, Appellant v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

240 S.W.3d 882

Terry RHODES, Appellant v. The STATE of Texas.

No. PD-1597-05.

No. PD-1598-05.

No. PD-1599-05.

Court of Criminal Appeals of Texas.

November 7, 2007.

Rehearing Denied December 19, 2007.

Kelly Gatewood, Huntsville, for Appellant.

Melinda Mayo, Amarillo, Matthew Paul, State's Atty., Austin, for State.

KELLER, P.J., delivered the opinion of the Court in which KEASLER, HERVEY, HOLCOMB and COCHRAN, JJ., joined.

We must determine whether a defendant may collaterally attack a prior judgment of conviction used to enhance a new offense, in the trial of that new offense, on the ground that the prior judgment was too lenient. We hold that he cannot.

I. BACKGROUND

A. Trial

Appellant was serving time in prison for burglary (three years) and aggravated sexual assault (forty-five years). He was bench-warranted to Smith County to answer for a theft offense. While in the Smith County jail, he escaped. He was ultimately convicted on both the theft and escape charges. He was sentenced to two years in state jail for the theft and ten years in prison for the escape. The escape sentence was ordered to be run concurrently with the theft sentence. The written judgment for the escape conviction is silent as to whether the escape sentence was to run concurrently to or consecutively with appellant's prior burglary and aggravated sexual assault sentences. This written judgment is also silent concerning whether or not there was a plea agreement.

Appellant later committed more crimes and was ultimately charged with new felony offenses of escape, burglary of a habitation, and theft. The State alleged two prior judgments of conviction for enhancement purposes.¹ One of those prior judgments was for the Smith County escape case. Appellant filed a motion to quash that enhancement allegation. Relying upon Article 42.08 of the Code of Criminal Procedure, he claimed that the judgment was void because the escape sentence was run concurrently with his other sentences when the statute required that it be cumulated with the earlier burglary and sexual assault sentences he was serving at the time he committed the escape.²

The State presented three responses to appellant's claim: (1) Article 42.08(b) did not require the escape judgment to be stacked because appellant was not actually "in" the prison system at the time of the escape, since he had been bench-warranted to the Smith County jail. (2) Even if the judgment had to be stacked, the absence of stacking did not make the judgment void and the deficiency could be corrected in a nunc pro tunc order. (3) Equitable notions of justice should prevent the defendant from gaining the benefit of concurrent sentencing and then turning around to complain about it later.

The trial court denied appellant's motion, the enhancement allegations were subsequently found to be true, and appellant was sentenced as an habitual offender on all three offenses, receiving sentences of thirty-three years, twenty-five years, and twenty-five years, respectively.

B. Appeal

In his sole point of error on appeal, appellant re-urged his contention that the Smith County escape judgment was void. In response, the State re-urged the first argument it had made at trial.³ The court of appeals found that Article 42.08(b) required that the sentence for the Smith County escape be stacked onto the sentence for the prior aggravated sexual assault,⁴ and it found that the failure to stack rendered the prior judgment void and thus unusable for enhancement purposes.⁵ As a result, the court of appeals reversed the judgment of the trial court and remanded the case for a new punishment hearing.⁶

The State filed a motion for rehearing, repeating its original argument and making the following additional arguments: (1) a prior conviction can be valid for enhancement purposes even if the sentence is void, (2) the trial court had no evidence before it that appellant met the criteria outlined in Article 42.08(b), (3) appellant bargained for the punishment obtained and cannot now complain of an action he earlier requested, and (4) a cumulation order is not part of the sentence. Appellant filed a response to the State's motion. In responding to argument (3) above, appellant acknowledged that he "did enter into a plea bargain for his sentence in the Smith County escape case" but claimed that he did not "invite" the error as a result. The motion for rehearing was denied.

En banc consideration was also requested but denied. In an opinion dissenting from the denial of en banc consideration, Justice Keyes argued that a cumulation order is not part of a sentence, so its absence could not render a sentence void.⁷

C. Discretionary Review

In its petition for discretionary review, the State raises several issues, which can be summarized as follows: (1) whether appellant was estopped from complaining that his sentence was illegal, (2) whether a defendant's constitutional rights would be violated by a nunc pro tunc order that would make the sentences run consecutively, (3) what is the legal effect of a failure to order a sentence to run consecutively as required by Article 42.08(b), and (4) what amount of evidence is required to invoke the mandatory provisions of Article 42.08(b).⁸

In arguing the estoppel question, the State claims that appellant entered into a plea agreement for his sentence on the Smith County escape charge. In his response brief, appellant contends that there is no evidence in the record to prove that his conviction was the result of an agreement.⁹ Our review of the trial record in the present case reveals that there was indeed no indication that the parties entered into a plea agreement. The trial record contains no court reporter's record or plea papers that might have shed light on whether a plea agreement existed, and the trial record does not otherwise contain any indication of a plea agreement. However, nothing in the trial record specifically refutes the existence of a plea agreement either, and as we observed above, appellant conceded the existence of a plea agreement in a pleading before the court of appeals. But even if we assume there was a plea agreement, we have no information concerning its terms, and more specifically, whether the terms included concurrent sentencing, unless we construe the State's contention that there was a plea agreement as an admission¹⁰ to that effect.¹¹

II. ANALYSIS

We need not decide whether to treat this case as involving a plea agreement with respect to the concurrent sentencing issue. As we shall explain, if there was no plea agreement on the concurrent sentencing issue, then the judgment is not void, and thus not subject to collateral attack, because it was at some point in time subject to reformation.¹² If there was a plea agreement on the concurrent sentencing issue, then appellant is estopped from challenging the judgment. We detail our reasoning on these points below.

A. No Agreement Means Judgment Is Not Void

Appellant's challenge to the enhancement allegation in this case constitutes a collateral attack on the prior judgment of conviction.¹³ Such a collateral attack is permitted only if the prior judgment is void, and not merely voidable.¹⁴

Initially, we point out that there is a difference between an entire judgment being "void" and a portion of a judgment being "void." For example, a judgment may contain two or more sentencing elements (e.g. imprisonment and fine), one of which may be valid while the other is void.¹⁵ When only one of the sentencing elements is void, the judgment is rendered void only if the judgment cannot be reformed to cure the infirmity (i.e. the infirmity cannot be cured without resort to resentencing).¹⁶ Some cases addressing other types of judgment defects have likewise indicated that the judgment is not void if the defect could have been reformed on the direct appeal of the judgment in question¹⁷ or in a nunc pro tunc order.¹⁸

This Court has addressed at least three different curable judgment defects relating to punishment that arose from a contested trial, in which there was no plea agreement. In Williams v. State, we confronted on direct appeal a claim that a cumulation order was void.¹⁹ We agreed, and we deleted the cumulation order but otherwise affirmed the conviction.²⁰

In Ex parte Johnson, an applicant claimed on habeas corpus that his conviction for aggravated robbery was void because it contained an unauthorized fine.²¹ The jury had rendered a verdict assessing punishment at fifty years of confinement and a $10,000 fine, but according to the habitual-sentencing statute under which the applicant was punished, no fine was authorized.²² We held that the trial court was empowered to reform the judgment by deleting the unauthorized fine.²³

In Barker v. State, the defendant did what appellant did here: he challenged a prior conviction used for enhancement purposes at the trial of a new offense.²⁴ He claimed that the prior judgment was void because, in addition to a valid three-day jail sentence and fifty-dollar fine, the judgment contained an invalid provision commuting the sentence to a six-month term of probation.²⁵ We rejected the defendant's contention.²⁶ First, we relied upon Ex parte King for the proposition that "a judgment or sentence containing an irregularity which may be reformed on appeal or by nunc pro tunc entry is not void, and may not be collaterally attacked."²⁷ Second we cited Lenore v. State for the proposition that "a prior judgment providing for a fine of $25 when the minimum punishment provided by law was a $100 fine was erroneous, but not void, and was available for enhancement of punishment in a prosecution for a subsequent offense."²⁸

Clearly, where concurrent sentencing is not a part of a plea agreement, reforming the judgment to make the sentence consecutive can be accomplished without resort to resentencing. We have already held that a cumulation order can be deleted without disturbing the remainder of...