
NO. 07-07-0116-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

DECEMBER 19, 2007
______________________________

THE STATE OF TEXAS, APPELLANT

V.

JEROME PAUL MARROQUIN, APPELLEE
_________________________________

FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;

NO. 54,103-E; HONORABLE RICHARD DAMBOLD, JUDGE
_______________________________


Before CAMPBELL and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Â Â Â Â Â Â Â Â Â Â Appellee, Jerome Paul Marroquin, was indicted for the offense of accident involving
injury or death.  Appellee subsequently entered a plea of guilty without benefit of a plea
bargain.  The trial court sentenced appellee to eight years confinement in the Institutional
Division of the Texas Department of Criminal Justice, with a fine of $800; however, the
sentence was suspended and appellee was placed on probation for a period of eight years. 
The State of Texas filed notice of appeal alleging in one issue that the sentence was illegal
and thereby void.  We reverse.
Background
Â Â Â Â Â Â Â Â Â Â For the offense that appellee pled guilty to, the range of punishment is imprisonment
in the Institutional Division of the Texas Department of Criminal Justice for up to five years
or confinement in the county jail for not more than one year, a fine not to exceed $5,000;
or both fine and imprisonment or confinement.  Tex. Transp. Code Ann. Â§ 550.021(c)
(Vernon Supp. 2007).  At the time of the plea, appellee signed a written admonishment
stating that the offense in question was a third degree felony with a range of punishment
of confinement in the Institutional Division of the Texas Department of Criminal Justice for
a period of not more than 10 years or less than two years and a fine not to exceed
$10,000.  So too was appellee admonished orally by the trial court.  After receiving the plea
and finding appellee guilty, the trial court entered the sentence of eight years confinement,
probated for eight years, and a fine of $800.  The State alleges in its one issue that the
sentence pronounced and entered by the trial court is an illegal sentence because it is
outside the punishment range authorized by law.  Appellee acknowledges that the term of
imprisonment is above the maximum allowed by the statute, but, urges that this court has
the authority to reform the judgment.
Analysis
Â Â Â Â Â Â Â Â Â Â The facts as reflected above are agreed by both parties to this appeal.  It is further
agreed by the parties that the sentence imposed was not within the applicable punishment
range of the statute.  See Tex. Transp. Code Ann. Â§ 550.021(c) (Vernon Supp. 2007). 
The contested issue concerns how the illegal sentence should be corrected.
Â Â Â Â Â Â Â Â Â Â A sentence that is outside the maximum or minimum authorized by law is an illegal
sentence.  See Mizell v. State, 119 S.W.3d 804, 805 (Tex.Crim.App. 2003).  An illegal
sentence is considered a void sentence.  See Ex parte Seidel, 39 S.W.3d 221, 225
(Tex.Crim.App. 2001).  When the appellate court is dealing with a void sentence, the only
action available is to remand the case to the trial court for a new trial on the issue of
punishment.  See Ex parte Johnson, 697 S.W.2d 605, 607 (Tex.Crim.App. 1985).  
Â Â Â Â Â Â Â Â Â Â Appellee argues that the court can simply reform the judgment citing Hollie v. State,
962 S.W.2d 263 (Tex.App.âHouston [1st Dist.] 1998), pet. dismâd, 984 S.W.2d 302
(Tex.Crim.App. 1999).  Hollie involved a sentence of probation for a DWI wherein the
defendant was ordered to serve 45 days in jail as a term and condition of probation.  At the
time, the maximum term of confinement that could be ordered as a term of probation was
30 days.  The appellate court simply modified the 45 days to 30 days without sending the
case back for a new trial on the issue of punishment.  The Hollie case was decided prior
to the Court of Criminal Appeals holding that a term of probation is part of the judgment
and not part of the sentence.  Speth v. State, 6 S.W.3d 530, 532 (Tex.Crim.App. 1999). 
Therefore, the analysis drawn by the appellee based upon the Hollie decision is not
applicable.
Â Â Â Â Â Â Â Â Â Â Accordingly, we are left with a void sentence in the judgment of the trial court.  We
must, therefore, reverse the judgment of the trial court.  Further, since the basis of the
reversal is predicated on an error made during the punishment stage of the trial, the court
shall commence the new trial as if a finding of guilt had been made and proceed to
punishment.  Tex. Code Crim. Proc. Ann. art. 44.29(b) (Vernon Supp. 2007).
Conclusion
Â Â Â Â Â Â Â Â Â Â The judgment of the trial court is reversed and the cause is remanded for a new
punishment trial.
Â 
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Mackey K. Hancock
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Justice



Publish.  


 v. Andrews, 155 S.W.3d 351, 356 (Tex.App.-Fort
Worth 2004, pet. denied).  To hold otherwise could subject governmental entities to liability
for any number of conditions, regardless of their distance from roadways, simply due to the
fact that the surrounding area is occasionally used by vehicles or pedestrians.  Accordingly,
we agree with the trial court and find that the condition of the meter box constituted a
premise defect, as opposed to a special defect under § 101.022.  Issue one is overruled.
	Because the condition of the meter box constituted a premise defect, the City had
a duty to use ordinary care to warn Duenes of any dangerous condition of which it was
actually aware and Duenes was unaware, or make the condition reasonably safe. 
Actual Knowledge of Unreasonably Dangerous Condition
	To recover for an injury caused by premise defect, Duenes would have to prove that
the City had actual knowledge of an unreasonably dangerous condition.  Payne, 838
S.W.2d at 237; Martinez, 993 S.W.2d at 886.  By its motion for summary judgment, the
City alleged there was no evidence that it had actual knowledge of the condition of the
meter box.  The City further alleged that there was no evidence that it had any knowledge
that the condition was unreasonably dangerous.  
	By her third issue, Duenes contends summary judgment was improper because "the
testimony and related inferences" demonstrate that the City knew about the condition of
the unsecured meter box lid prior to her injury.  We disagree.
	Specifically, Duenes relies on the following evidence which she claims supports her
contention:

	The testimony of eyewitness Isidra Marquez that the meter box lid had
not been working properly for at least one month prior to Duenes's
injury.
 	The testimony of Michael Williamson that a City employee made a
service call to the meter box five days prior to Duenes's injury.

	The evidence indicates that Marquez hosted the dinner party that Duenes attended
and lived in the house next door to the property where the meter box was located.  By
deposition, she testified that she had noticed the lid was flipping at least a month before
Duenes's injury and had placed a rock on top of the lid to protect her grandchildren. 
However, she conceded that she never contacted the City about the dangerous condition
and never saw City employees working at the meter box.  In his deposition, the City's
Water Superintendent, Michael Williamson, insisted that the City had no actual knowledge
of the meter box's condition on the date of the accident.  He did confirm that a City
employee "completed a job " at the meter box five days prior to Duenes's injury but testified
that there was not a problem with the lid because if there was, it would have been reported
to him.  Williamson did not rule out the possibility that the box could have been tampered
with after the service call. 
	Even so, Duenes insists that the evidence in this case parallels the evidence in
Cross v. City of Dallas, 581 S.W.2d 514 (Tex.Civ.App.-Dallas 1979, writ ref'd n.r.e.). 
However, Cross was an appeal from a judgment non obstante veredicto concerning
whether a jury could reasonably infer from circumstantial evidence that a city employee
negligently failed to lock a water meter lid.  See id.  Although facially similar, we do not find
Cross to be persuasive authority on the issue of actual knowledge. 
	A trial court should grant a no-evidence motion for summary judgment when the
evidence offered to support a vital fact is "no more than a mere scintilla" of evidence.  King
Ranch, Inc. v. Chapman, 118 S.W.3d 742 (Tex. 2003). No more than a scintilla of
evidence is established when the evidence would not allow reasonable and fair-minded
people to differ in their conclusions. Forbes, Inc. v Granada Biosciences, Inc., 124 S.W.3d
167, 172 (Tex. 2003).  The evidence offered by Duenes, the non-movant, in opposition to
the City's no-evidence motion for summary judgment is no more than a mere scintilla of
evidence of a vital fact, to-wit: actual notice.  Marquez' testimony does not touch upon the
City's actual notice at all.  Williamson's testimony merely acknowledges the City's
awareness of the existence of the meter box but does not acknowledge notice of any
defect.  Based upon such evidence, reasonable and fair-minded people could not reach
the conclusion that the City had actual notice of a defective condition.  Therefore, having
negated at least one essential element of Duenes's cause of action, we hold the trial court
did not err in granting summary judgment in this regard. Randall's Food Mkts, Inc. v.
Johnson, 891 S.W.2d 640, 644 (Tex. 1995).  Duenes's third issue is overruled.  Our
disposition of this issue pretermits our consideration of Duenes's second and fourth issues. 
Tex. R. App. P. 47.1.
	Accordingly, the judgment of the trial court is affirmed.
 
							Patrick A. Pirtle
							      Justice
1. Tex. Civ. Prac. & Rem. Code Ann.  Â§ 101.022 (Vernon 2005).
2. The Order Granting Defendant's Motion for Summary Judgment did not specify
whether it was based on the Defendant's no-evidence or traditional grounds.
3. It is unclear whether the water meter actually serviced the residence. 
