                               Fourth Court of Appeals
                                      San Antonio, Texas
                                 MEMORANDUM OPINION
                                         No. 04-16-00100-CR

                                      John Elvis CARPENTER,
                                              Appellant

                                                   v.

                                        The STATE of Texas,
                                              Appellee

                     From the 290th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2015-CR-7313
                             Honorable Melisa Skinner, Judge Presiding

Opinion by:       Luz Elena D. Chapa, Justice

Sitting:          Patricia O. Alvarez, Justice
                  Luz Elena D. Chapa, Justice
                  Jason Pulliam, Justice

Delivered and Filed: September 21, 2016

AFFIRMED AS MODIFIED

           John Elvis Carpenter was convicted of burglary of a habitation and sentenced as a habitual

offender. In addition to imprisonment, Carpenter’s sentence includes a $2,000 fine. On appeal,

Carpenter contends “[t]he fine . . . assessed by the trial court [i]s outside the range of punishment

and therefore illegal.” The State agrees. Having reviewed the record, we also agree. We therefore

strike the $2,000 fine and affirm the judgment as modified.

                                            BACKGROUND

           On a Tuesday evening, Carpenter used a sledgehammer to break into the home of Amadeo

Patterson in San Antonio, Texas. Carpenter entered Patterson’s home and stole several items
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belonging to Patterson and his family. The stolen items included two laptop computers, a Samsung

Galaxy tablet, a Leatherman Multitool, several pieces of jewelry, a compound bow, and a quiver

of arrows. Carpenter placed several of the items into a white pillowcase to carry them out of the

home. After leaving Patterson’s home, Carpenter pawned several of the stolen items at pawn shops.

Carpenter was thereafter arrested.

       A grand jury indicted Carpenter for burglary of a habitation. The indictment further alleged

Carpenter had two prior convictions for burglary of a habitation. Pursuant to a plea agreement with

the State, Carpenter pled guilty and agreed he had prior felony convictions. The State and

Carpenter “mutually agreed and recommended” punishment be assessed at a “cap of 35 years” and

a fine of $2,000. Carpenter and his counsel signed the plea agreement in which he agreed to the

recommended punishment, and Carpenter waived his right to a jury trial. The trial court found

Carpenter guilty, and pronounced sentence in accordance with the plea agreement at the

punishment hearing. Carpenter’s sentence includes a $2,000 fine and thirty-five years’

confinement in the Institutional Division of the Texas Department of Criminal Justice.

       The trial court certified the case was a plea-bargain case and Carpenter had no right of

appeal. Carpenter signed the certification, but filed a notice of appeal and a motion for the

appointment of appellate counsel. The trial court granted Carpenter’s motion and appointed him

counsel. Carpenter then filed a motion for an amended certification of his right to appeal. He

argued the fine was not authorized by the habitual offender statute. See TEX. PENAL CODE ANN.

§ 12.42 (West Supp. 2016). The trial court granted Carpenter’s motion and signed an amended

certification permitting Carpenter to appeal.




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                                               ILLEGAL SENTENCE

         Carpenter filed his appellant’s brief and raised one issue: “The fine included in the plea

bargain and assessed by the trial court [i]s outside the range of punishment and therefore illegal.” 1

“The State agrees with [Carpenter] the $2,000.00 fine assessed against him as part of the judgment

for this case should be deleted and the remaining portion of the judgment imposing thirty five (35)

years imprisonment is legal and should be affirmed.”

         “A sentence that is outside the maximum or minimum range of punishment is unauthorized

by law and therefore illegal.” Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003). “[A]

defendant cannot agree to an illegal sentence.” Jackson v. State, 990 S.W.2d 879, 881 (Tex. App.—

Beaumont 1999, no pet.), overruled on other grounds by Sawyer v. State, 294 S.W.3d 862 (Tex.

App.—Beaumont 2009, pet. ref’d). Section 12.42 of the Texas Penal Code provides penalties for

repeat and habitual felony offenders on trial for a first, second, or third degree felony. TEX. PENAL

CODE ANN. § 12.42. Section 12.42(d) provides, subject to exceptions not applicable in this case:

         [I]f it is shown on the trial of a felony offense other than a state jail felony . . . the
         defendant has previously been finally convicted of two felony offenses, and the
         second previous felony conviction is for an offense that occurred subsequent to the
         first previous conviction having become final, on conviction the defendant shall be
         punished by imprisonment . . . for life, or for any term of not more than 99 years or
         less than 25 years.

Id. § 12.42(d). Section 12.42(d) does not authorize a fine in addition to imprisonment. Id.; Dolph

v. State, 440 S.W.3d 898, 908 (Tex. App.—Texarkana 2013, pet. ref’d).

         The indictment charged Carpenter with burglary of a habitation. This offense is not a state

jail felony; it is a second degree felony. See TEX. PENAL CODE ANN. § 30.02(c) (West 2011). The


1
  After Carpenter’s appointed counsel filed a brief on Carpenter’s behalf, Carpenter filed a pro se reply brief in which
he raised another issue. We will not address the issue raised in Carpenter’s pro se brief because appellants are not
entitled to hybrid representation on appeal. See Marshall v. State, 210 S.W.3d 618, 620 n. 1 (Tex. Crim. App. 2006)
(explaining that defendants have no right to hybrid representation on appeal and pro se brief will not be addressed):
Ex parte Taylor, 36 S.W.3d 883, 887 (Tex. Crim. App. 2001) (per curiam) (“Appellants are not allowed to have
‘hybrid representation’ on appeal, in which an appellant and an attorney can present independent points to an appellate
court.”).
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trial court found the indictment’s enhancement allegations true. The indictment alleged Carpenter

was convicted for burglary of a habitation in 1987 and burglary of a habitation in 1993. These

convictions were for felony offenses. See id.; Blankenship v. State, 780 S.W.2d 198, 200 (Tex.

Crim. App. 1988). The indictment further alleged the 1993 felony conviction is for an offense that

occurred after the 1987 conviction became final. Thus, section 12.42(d) required Carpenter to be

“punished by imprisonment . . . for life, or for any term of not more than 99 years or less than 25

years” and did not authorize a fine in addition to imprisonment. See TEX. PENAL CODE ANN.

§ 12.42(d); Dolph, 440 S.W.3d at 908. Carpenter’s sentence of imprisonment for thirty-five years

is within the statutory range of punishment, but the $2,000 fine is not authorized. See TEX. PENAL

CODE ANN. § 12.42(d); Dolph, 440 S.W.3d at 908. The $2,000 fine is therefore illegal. See Dolph,

440 S.W.3d at 908.

                                           CONCLUSION

          When a trial court assesses an unauthorized or illegal fine, we may modify the judgment

“by striking the requirement . . . appellant pay a fine as part of his punishment.” Harris v. State,

670 S.W.2d 284, 285 (Tex. App.—Houston [1st Dist.] 1983, no writ); see also Mizell, 119 S.W.3d

at 806 (“A trial or appellate court which otherwise has jurisdiction over a criminal conviction may

always notice and correct an illegal sentence.”); TEX. R. APP. P. 43.2(b) (authorizing a court of

appeals to “modify a trial court’s judgment and affirm it as modified”). We therefore modify the

trial court’s judgment by striking the requirement that Carpenter pay a fine as part of his

punishment and affirm the judgment as modified. See TEX. R. APP. P. 43.2(b); Harris, 670 S.W.2d

at 285.

                                                  Luz Elena D. Chapa, Justice

DO NOT PUBLISH



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