REVERSE and REMAND; and Opinion Filed April 22, 2015.




                                       S    In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                    No. 05-14-00711-CR

                           ALEXANDER FRANCES, Appellant
                                        V.
                            THE STATE OF TEXAS, Appellee

                     On Appeal from the 401st Judicial District Court
                                  Collin County, Texas
                         Trial Court Cause No. 401-82484-2013

                            MEMORANDUM OPINION
                           Before Justices Myers, Evans, and Brown
                                  Opinion by Justice Brown


       Appellant Alexander Frances pled guilty to aggravated robbery and not true to a gang

enhancement. The trial court found appellant guilty of the offense of aggravated robbery and

found the gang enhancement to be true. The judge sentenced appellant to twenty years’

confinement, believing the statutory minimum for appellant’s offense was fifteen years when in

fact it was only five. Concluding appellant has the right to be sentenced by a judge who

considers the entire range of punishment, we reverse the trial court’s judgment and remand this

cause for a new punishment hearing. Because all dispositive issues are settled in law, we issue

this memorandum opinion. TEX. R. APP. P. 47.2(a), 47.4.
           On appeal, appellant complains of two points of error: 1) the evidence presented at trial

was insufficient to support a finding of true to the gang enhancement paragraph, and 2) the

punishment assessed is grossly disproportionate for the offense charged.

           Appellant was charged by indictment with the offense of aggravated robbery on October

22, 2013. Relying on section 71.02, the State filed a notice of gang enhancement on April 14,

2014. See TEX. PENAL CODE ANN. § 71.02 (West Supp. 2014). The record before us shows that

the judge, prosecutor and defense attorney proceeded under the wrong statute and considered the

wrong range of punishment. The parties were under the mistaken belief that section 71.02 was

applicable to enhance the punishment of the offense of aggravated robbery pursuant to section

29.03. See TEX. PENAL CODE ANN. § 29.03 (West 2011). As a result, the trial court considered

the wrong range of punishment. 1

           The State now concedes, and we agree, that the “gang member enhancement” offered by

the State for aggravated robbery does not exist.2 The “gang member enhancement” used by the

trial court applies to the offense of engaging in organized criminal activity under Chapter 71. See

TEX. PENAL CODE ANN. § 71.01–.05 (West 2011 & Supp. 2014). “The unfettered right to be

sentenced by a sentencing judge who properly considers the entire range of punishment is a

substantive right necessary to effectuate the proper function of our criminal justice system.”

Grado v. State, 445 S.W.3d 736, 741 (Tex. Crim. App. 2014). We conclude the trial court erred

by not considering the full range of punishment in this case. Accordingly, we reverse the trial




     1
       The record reflects the trial court used fifteen years as the minimum sentence under section 71.02(b)(2) rather than a minimum sentence of
five years under section 29.03(b). See TEX. PENAL CODE ANN. § 29.03(b), 71.02(b)(2).
     2
        A gang-related conduct finding pursuant to article 42.0197 is not under consideration in this opinion. See TEX. CODE CRIM. PROC. ANN.
art. 42.0197 (West Supp. 2014) (provides for the finding that the applicable conduct was engaged in as part of the activities of a criminal street
gang). See also TEX. PENAL CODE ANN. § 3.03(b)(4) (West Supp. 2014) (provides sentences may run concurrently or consecutively if the accused
is found guilty of more than one offense arising out of the same criminal episode and is convicted for offense under 42.0197, Code of Criminal
Procedure).



                                                                      –2–
court’s judgment as to the punishment and remand this case to the trial court for a new

punishment hearing.

       Having determined this case will be remanded for a new punishment hearing, we

conclude the two points of error raised by appellant about his punishment are moot.

       In conclusion, we reverse the trial court’s judgment pertaining to the punishment and

remand this cause to the trial court for a new punishment hearing.




                                                     /Ada Brown/
                                                     ADA BROWN
                                                     JUSTICE

DO NOT PUBLISH
TEX. R. APP. P. 47.2(b).

140711F.U05




                                               –3–
                                       S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

ALEXANDER FRANCES, Appellant                       On Appeal from the 401st Judicial District
                                                   Court, Collin County, Texas
No. 05-14-00711-CR         V.                      Trial Court Cause No. 401-82484-2013.
                                                   Opinion delivered by Justice Brown. Justices
THE STATE OF TEXAS, Appellee                       Myers and Evans participating.

        Based on the Court’s opinion of this date, the judgment of the trial court is REVERSED
as to the punishment and the cause REMANDED for a new punishment hearing. TEX. CODE
CRIM. PROC. ANN. art. 44.29(b) (West Supp. 2014).


Judgment entered this 22nd day of April, 2015.




                                             –4–
