                                         NO. 12-07-00024-CR

                              IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                            TYLER, TEXAS

ANTON LAMART OSBORN,                                        §    APPEAL FROM THE 241ST
APPELLANT

V.                                                          §    JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,
APPELLEE                                           § SMITH COUNTY, TEXAS
                                           MEMORANDUM OPINION
             Anton L. Osborn appeals his conviction for possession of between one and four grams of
 cocaine within 1,000 feet of a school, for which he was sentenced to imprisonment for life. In two
 issues, Appellant argues that (1) his sentence was grossly disproportionate to the offense for which
 he was convicted and (2) he received ineffective assistance of counsel during his trial on
 punishment. We vacate Appellant’s life sentence and remand.


                                                    BACKGROUND
             Appellant was charged by indictment with possession of between one and four grams of
 cocaine, a third degree felony.1 The indictment further alleged that Appellant committed the
 offense “within 1,000 feet of real property owned by and rented to and leased to a school and
 school board, namely, Tyler Independent School District and Stewart Middle School....”2


         1
             See T EX . H EALTH & S AFETY C O D E A N N . §§ 481.115(c), 481.102(3)(D) (Vernon 2003 & Supp. 2007).

         2
            Because the offense is alleged to have occurred within one thousand feet of a school, Appellant faced a
minimum sentence of imprisonment for seven years as opposed to the two year minimum sentence of a second or
third degree felony. See T EX . H EALTH & S AFETY C O D E A N N . § 481.134(c) (Vernon Supp. 2007); see also T EX .
P EN AL C O D E A N N . §§ 12.33, 12.34 (Vernon 2003).
 Moreover, the indictment alleged that Appellant had been previously convicted of the felony
 offense of burglary of a vehicle. Appellant pleaded “guilty” as charged and the matter proceeded
 to a jury trial on punishment.
             Appellant pleaded “true” to the enhancement paragraph in the indictment at the
 commencement of his trial on punishment. Ultimately, the jury assessed Appellant’s punishment
 at imprisonment for life. The trial court sentenced Appellant accordingly, and this appeal
 followed.


                                                VOID SENTENCE
             As a preliminary matter, we address sua sponte the legality of Appellant’s life sentence.3
 In Texas, the punishment assessed must always be within the minimum and maximum fixed by
 law; if the punishment assessed is outside the range provided by law, the sentence is void. See
 Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003); Ex parte Beck, 922 S.W.2d 181,
 182 (Tex. Crim. App. 1996); Maples v. State, 187 S.W.3d 655, 658 (Tex. App.–Houston [14th
 Dist.] 2006, pet. ref’d). A defendant has an absolute and nonwaivable right to be sentenced within
 the proper range of punishment established by the legislature. See Speth v. State, 6 S.W.3d 530,
 532–33 (Tex. Crim. App. 1999); Maples, 187 S.W.3d at 660.
             In the case at hand, Appellant was convicted of possession of between one and four grams
 of cocaine. See TEX . HEALTH & SAFETY CODE ANN . §§ 481.115(c), 481.102(3)(D). The
 punishment range for such an offense, considering the single enhancement allegation to which
 Appellant pleaded “true,” is between seven and twenty years. See TEX . HEALTH & SAFETY CODE
 ANN . § 481.112(c); TEX . PENAL CODE ANN . §§ 12.33(a), 12.42(a)(3) (Vernon 2003 & Supp.
 2007). Here, the life sentence assessed by the trial court falls outside the range set forth by the




         3
           An appellate court with criminal law jurisdiction may raise the issue of a void sentence sua sponte. See
Mizell v. State, 119 S.W.3d 804, 805 (Tex. Crim. App. 2003).

                                                          2
 legislature.4 Id. Therefore, we hold that Appellant’s sentence is void.5 See Mizell, 119 S.W.3d
 at 806.


                                                   DISPOSITION
             Having determined that Appellant’s life sentence is void, we vacate Appellant’s life
 sentence and remand the cause to the trial court for a new sentencing hearing.




                                                                             JAMES T. WORTHEN
                                                                                 Chief Justice


 Opinion delivered June 4, 2008.
 Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                              (DO NOT PUBLISH)



         4
           Both Appellant and the State have agreed that Appellant’s sentence is void because it was outside the
applicable range of punishment.

         5
           Having determined Appellant’s sentence to be void, we do not reach Appellant’s first and second issues.
W e further note that Appellant has only sought relief on appeal concerning his punishment.

                                                           3
