                                NOS. 12-11-00061-CR
                                     12-11-00062-CR

                       IN THE COURT OF APPEALS

          TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS

MIRANDA PHILLIPS,                                §          APPEAL FROM THE 217TH
APPELLANT

V.                                               §          JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                         §          ANGELINA COUNTY, TEXAS

                                   MEMORANDUM OPINION
       On the court‘s own motion, we withdraw our opinion issued on August 10, 2011, and
substitute the following opinion in its place.
       Miranda Phillips appeals her convictions for felony theft. In her sole issue, Appellant
argues that the sentence imposed in each case is illegal and void. The State concedes error. We
reverse and remand both cases for a new sentencing hearing.


                                           BACKGROUND
       On March 25, 2010, Appellant was indicted for several offenses, two of which are relevant
to this appeal. In the first case (appellate cause number 12-11-00061-CR), the indictment alleged
that on December 16, 2010, Appellant committed ―theft of a girl[‘s] outfit or a pair of jeans or a
shirt or a baby outfit, of the value of less than $1,500.00, from Kerrie Shotwell‖ (the clothing
theft). In the second case (appellate cause number 12-11-00062-CR), the indictment alleged that
on October 12, 2009, Appellant committed theft of a television set with a value of less than
$1,500.00 from Nevin Partain (the television theft).
       The indictments for both offenses alleged that Appellant had been convicted of four prior
thefts, and that Appellant had also been convicted of aggravated assault. These prior offenses,
including the aggravated assault offense, were used to enhance Appellant‘s punishment.
Importantly, however, the judgment in the prior aggravated assault case does not contain an
affirmative finding that Appellant used or exhibited a deadly weapon during the commission of
that offense.
        The judgments for the clothing theft and the television theft recite that Appellant waived a
jury trial, pleaded guilty, and pleaded ―true‖ to the enhancement paragraphs of the indictments.
Based on her plea in each case, Appellant was also admonished that she faced a third degree felony
with a range of punishment from two years to ten years of imprisonment. The trial court found
her guilty of the thefts.
        At the sentencing hearing, the State introduced records of Appellant‘s prior convictions
and further referred to the conviction used for enhancement that is the subject of this appeal as
follows:

        Your Honor, I think in the file itself[,] . . . I think in that file is a certified copy of the aggravated
        assault. That‘s the subject matter of one of the enhancements. And with that, that will be—that‘s
        the only evidence we have to offer at this point in time.


The judgments for both offenses recite that both offenses were third degree felonies. Appellant
was sentenced to ten years of imprisonment for both offenses, to be served concurrently.


                                           IMPROPER ENHANCEMENT
        In her sole issue, Appellant argues that ―fundamental error is presented in sentencing [her]
to ten (10) years [of imprisonment] when the enhancement paragraph used to elevate the state jail
felony did not qualify for that purpose.‖ The State concedes error.
Standard of Review
        A ―void‖ or ―illegal‖ sentence is one that is not authorized by law. Ex parte Pena, 71
S.W.3d 336, 336 n. 2 (Tex. Crim. App. 2002); see Mizell v. State, 119 S.W.3d 804, 806 (Tex.
Crim. App. 2003) (―A sentence that is outside the maximum or minimum range of punishment is
unauthorized by law and therefore illegal.‖); Ex parte Beck, 922 S.W.2d 181, 182 (Tex. Crim.
App. 1996) (per curiam) (sentence of twenty-five years of imprisonment for offense for which
maximum range of punishment was two years of imprisonment was illegal).
        ―A sentence unauthorized by law is fundamental error, rendering the sentence void.‖


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Harvill v. State, 13 S.W.3d 478, 482 (Tex. App.–Corpus Christi 2000, no pet.) (citing Ex parte
Hill, 528 S.W.2d 125, 126 (Tex.Crim.App.1975) (sentence was void where trial court imposed
five year sentence and maximum authorized punishment was four years); Muse v. State, 815
S.W.2d 769, 773 (Tex. App.–Waco 1991, no pet.) (finding unauthorized sentence amounted to
fundamental error because fixing of penalties is purely legislative function outside ambit of
constitutional judicial authority)).
Applicable Law
         When the value of the property stolen is under $1,500.00, and there are two or more prior
convictions of theft, the offense is classified as a state jail felony. TEX. PENAL CODE ANN.
§ 31.03(e)(4)(D) (Vernon 2011). State jail felonies ordinarily have a punishment range of 180
days to two years of confinement in a state jail. TEX. PENAL CODE ANN. § 12.35(a) (Vernon
2011).
         As relevant here, the punishment range for a state jail felony is enhanced to the punishment
range for a third degree felony if ―the individual has previously been finally convicted of any
felony . . . for which the judgment contains an affirmative finding under Section 3g(a)(2), Article
42.12, Code of Criminal Procedure.‖ Id. § 12.35(c)(2)(B). In other words, the punishment level
is enhanced if it is shown that the defendant was (1) previously convicted of a felony, and (2) an
affirmative finding is made showing that the defendant used or exhibited a deadly weapon during
the commission of or during immediate flight following the prior felony used to enhance the state
jail felony, or was a party to the offense and knew that a deadly weapon would be used or
exhibited. See id.; TEX. CODE CRIM. PROC. ANN. art. 42.12, § 3g (a)(2) (Vernon Supp. 2010).
         In determining what constitutes an affirmative finding for purposes of Section 3g(a)(2), we
distinguish between a finding by the fact finder that a deadly weapon was used, and separately, the
inclusion of that finding by the trial court in its subsequent judgment. Tucker v. State, 61 S.W.3d
446, 447 (Tex. App.–Amarillo 2001, pet. ref‘d). Both are needed to satisfy the requirements of
Section 3g(a)(2). Id. at 448. Thus, once the fact finder determines that a deadly weapon was
utilized or exhibited, the duty is then imparted to the trial court to affirmatively express that
finding in its judgment. Id. A separate and specific finding expressly disclosing that a deadly
weapon was so used or exhibited must be included in the judgment. Id. When the trial court is
the fact finder though, it is discretionary whether to make an affirmative deadly weapon finding
even when the evidence otherwise supports such a finding. See Guerrero v. State, 299 S.W.3d



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487, 489-90 (Tex. App.–Amarillo 2009, no pet.). This is the rule because, for instance, an
affirmative deadly weapon finding renders a defendant ineligible for court ordered community
supervision, and such a result may be unwarranted in a particular case in the court‘s discretion.
See id. (holding trial court has discretion in making affirmative deadly weapon finding in written
judgment because that affects defendant‘s parole computation date and court ordered community
supervision eligibility); see also TEX. CODE CRIM. PROC. ANN. art. 42.12, §§ 3, 3g (a)(2); Tucker,
61 S.W.3d at 447. When the specific affirmative deadly weapon finding is absent from the trial
court‘s judgment, that conviction cannot be used to enhance a subsequent conviction for a state jail
felony to a third degree felony punishment level under Section 12.35(c)(2)(B) of the penal code.
See Tucker, 61 S.W.3d at 448-49.
Discussion
       The trial court was the fact finder in Appellant‘s prior aggravated assault case. The State
alleged that Appellant used a box cutter during the commission of that offense. The record shows
that Appellant pleaded guilty to the aggravated assault offense and was placed on deferred
adjudication community supervision for three years. Later, the State filed a motion to adjudicate
Appellant‘s guilt on the aggravated assault charge, and the trial court found her guilty, revoked her
community supervision, and sentenced her to three years of imprisonment.
       After serving her term of imprisonment, Appellant was arrested for the instant thefts,
among other offenses. The relevant enhancement paragraph in these theft indictments alleged
that ―on or about the 5th day of May, 2004, . . . [Appellant] was convicted of the felony offense of
aggravated assault, the same being a felony listed in Section 3g(a)(2), Article 42.12, Code of
Criminal Procedure. . . .‖ Thus, although the indictments did not specifically use the words
―deadly weapon,‖ they identified the relevant section number that triggered the Section 12.35
enhancement of a state jail felony to a third degree felony punishment level based on an
affirmative deadly weapon finding.
       In the instant theft cases, however, without an affirmative finding that a deadly weapon
was used in the commission of the prior aggravated assault used to enhance Appellant‘s theft
convictions, the trial court was without authority to enhance Appellant‘s penalty from a state jail
felony to a third degree felony level under Section 12.35. See Tucker, 61 S.W.3d at 448-49.
Accordingly, Appellant‘s sentences are unauthorized, illegal, and void.
       We note that Appellant pleaded ―true‖ to the enhancement even though the sentences are



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void. However, Appellant is not bound by the plea under the circumstances of these cases,
because the void sentences were not merely voidable and the error could not be waived. See Ex
parte Rich, 194 S.W.3d 508, 513 (Tex. Crim. App. 2006) (holding in an illegal sentence case that
―[d]espite the general rule that a plea of true to an enhancement paragraph relieves the State of its
burden to prove a prior conviction alleged for enhancement and forfeits the defendant's right to
appeal the insufficiency of evidence to prove the prior conviction, there is an exception when ‗the
record affirmatively reflects‘ that the enhancement is itself improper.‖).
         Finally, the void sentences do not necessarily invalidate the theft convictions.        See
Saunders v. State, 511 S.W.2d 281, 283-84 (Tex. Crim. App. 1974). Where the trial court sets
the punishment and the only error concerns the punishment, we need not order a reversal of the
judgment of conviction, but may remand for proper assessment of punishment by the trial court.
See Hill, 528 S.W.2d at 126; Saunders, 511 S.W.2d at 283–84.
         The State concedes, based on Tucker and Appellant‘s arguments, that harmful reversible
error occurred and joins Appellant‘s request for a new sentencing hearing. We agree that harmful
reversible error occurred. Accordingly, we sustain Appellant‘s sole issue.


                                                    DISPOSITION
         We reverse the trial court‘s judgments with respect to the punishments imposed in these
cases and remand for a new sentencing hearing in each case. See TEX. CODE CRIM. PROC. ANN.
art. 44.29(b) (Vernon Supp. 2010).

Opinion delivered August 17, 2011.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                              (DO NOT PUBLISH)




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