                                                                                       PD-1137-15
                                                                     COURT OF CRIMINAL APPEALS
                                                                                      AUSTIN, TEXAS
                                                                     Transmitted 10/5/2015 2:19:56 PM
                                                                       Accepted 10/7/2015 2:38:31 PM
                                                                                       ABEL ACOSTA
                                NO. PD-1137-15                                                 CLERK


                                IN THE
                      COURT OF CRIMINAL APPEALS
                              OF TEXAS
                              AT AUSTIN
                         _________________________

                        SIR MELVIN WRIGHT, JR.,
                                   Appellant

                                         v.
October 7, 2015
                          THE STATE OF TEXAS,
                                      Appellee
                         _________________________

                      On appeal in Cause No. F11-72119-T
                      from the 283rd Judicial District Court
                             Of Dallas County, Texas
                  And on Petition for Discretionary Review from
                       the Fifth District of Texas at Dallas
                          In Cause No. 05-14-00641-CR
                         _________________________

      APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                   _________________________

                                                Counsel of Record:

             Lynn Richardson                    Nanette Hendrickson
             Chief Public Defender              Assistant Public Defender
                                                Dallas County Public Defender’s Office
             Katherine A. Drew                  State Bar Number: 24081423
             Chief, Appellate Division          133 N. Riverfront Blvd., LB 2
                                                Dallas, Texas 75207-399
                                                (214) 653-3550 (telephone)
                                                (214) 653-3539 (fax)

                      ATTORNEYS FOR PETITIONER/APPELLANT
                             LIST OF PARTIES
TRIAL COURT JUDGE
Rick R. Magnis – 283rd Judicial District Court

APPELLANT
Sir Melvin Wright

APPELLANT’S ATTORNEYS
AT TRIAL
Mark L. Watson, State Bar No. 20954800
5646 Milton St., Ste. 330
Dallas, TX 75206

ON REVOCATION
Stephen Duplantis, State Bar No. 24052192
Public Defender’s Office
Frank Crowley Courts Building
133 N. Riverfront Blvd.
Dallas, TX 75207

ON REVOCATION
Adolpho Lopez, State Bar No. 24070169
1231 E. Missouri Ave.
El Paso, TX 79902

ON APPEAL
Nanette R. Hendrickson, State Bar No. 24081423
Assistant Public Defender
Dallas County Public Defender’s Office
Frank Crowley Courts Building
133 N. Riverfront Blvd., LB 2
Dallas, Texas 75207-4399

STATE’S ATTORNEYS
AT TRIAL
Rachel Burris, State Bar No. 24030870
Mark Scott, State Bar No. 24067109
Chris Pryor, State Bar No. 24046661
Assistant District Attorneys


                                        ii
ON APPEAL
Shelley O’Brien Yeatts, State Bar No. 24033487
Assistant District Attorney
Dallas County District Attorney’s Office
Frank Crowley Courts Building
133 N. Riverfront Blvd., LB-19
Dallas, Texas 75207-4399




                                     iii
                                      TABLE OF CONTENTS


LIST OF PARTIES ................................................................................................... ii
INDEX OF AUTHORITIES ..................................................................................... v
STATEMENT REGARDING ORAL ARGUMENT ............................................... 1
STATEMENT OF THE CASE ................................................................................. 1
STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE .................... 2
STATEMENT OF FACTS ........................................................................................ 2
GROUND FOR REVIEW ......................................................................................... 2
         Whether the Court of Appeals incorrectly applied the habeas
         harmless error analysis in Ex parte Parrott and Ex parte Rich to
         Appellant’s case on direct appeal.
ARGUMENT ............................................................................................................. 3
PRAYER FOR RELIEF ..........................................................................................10
CERTIFICATE OF SERVICE ................................................................................10
CERTIFICATE OF COMPLIANCE .......................................................................11




                                                        iv
                                   INDEX OF AUTHORITIES

Cases
Bullard v. State,
  5483 S.W.2d 13 (Tex. Cr. App. 1977) ..............................................................6
Ex parte Parrott,
  396 S.W.3d 531 (Tex. Crim. App. 2013) ................................................. 3, 5, 6
Ex parte Rich,
  194 S.W.3d 508 (Tex. Crim. App. 1973) ............................................. 3, 4, 5, 6
Ex parte Tovar,
  901 S.W.2d 484 (Tex. Crim. App. 1995) ..........................................................5
Jackson v. State,
  680 S.W.2d 809 (Tex. Cr. App. 1984) ..............................................................6
Levy v. State,
  818 S.W.2d 801 (Tex. Crim. App. 1991) ............................................... 6, 7, 10
Wright v. State,
 No. 05-14-00641-CR, 2015 Tex. App. LEXIS 8161 (Tex. App.—Dallas
 August 4, 2015) .............................................................................................2, 6
Statutes
TEX. CODE CRIM. PROC. 62.102(c) .......................................................................8
TEX. CODE CRIM. PROC. ART. 62.102(b)(1) ..........................................................9
TEX. PEN. CODE § 12.35(a) ...............................................................................8, 9
TEX. PEN. CODE § 21.11 (a)(1)..............................................................................8
TEX.CODE CRIM. PROC art. 62.102(a) ...................................................................7
TEX.CODE CRIM. PROC. art. 44.29(b) ....................................................................6
TEX.CODE CRIM. PROC. art. 62.101(a) ..................................................................7
TEX.CODE CRIM. PROC. art. 62.101(c)(1) .........................................................8, 9
TEX.CODE CRIM. PROC. art. 62.102(b) ..................................................................7
Rules
TEX. R. APP. P. 68.4(i) ..........................................................................................2




                                                        v
TO THE HONORABLE COURT OF CRIMINAL APPEALS:

      Sir Melvin Wright, Jr., Appellant, respectfully presents to this Honorable

Court his Petition for Discretionary Review of the Fifth District Court of

Appeals’ Opinion affirming the trial court’s judgment.

           STATEMENT REGARDING ORAL ARGUMENT

      Appellant requests oral argument because this case presents a question of

law on issues having statewide impact and possible reoccurrence. Oral

argument may be helpful to the members of this Court in the resolution of the

issues presented.

                      STATEMENT OF THE CASE

      Appellant was indicted and pled guilty to the charge of failure to

register as a sex offender enhanced in the 283rd Criminal District Court in

Dallas County, Texas. (RR2: 6; CR: 11). On September 24, 2012, the trial

court sentenced Appellant to ten years to serve, but suspended the sentence.

(RR2: 17). The trial court placed Appellant on five years’ community

supervision and assessed a fine of $500.00. (RR2: 17). On November 7,

2013, after a hearing on the State’s motion to revoke, the trial court denied

the State’s motion to revoke, but modified Appellant’s probation rules to

include seven days in the county jail. (RR3: 9-10). On May 16, 2014, after a




                                     1
hearing on the State’s motion to revoke, the trial court sustained the motion

and sentenced Appellant to five years’ incarceration. (RR4: 22; CR: 70).

 STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE

      On August 4, 2015, in an unpublished opinion authored by Justice

Brown, the Court of Appeals for the Fifth District of Texas affirmed the trial

court’s judgment. Wright v. State, No. 05-14-00641-CR, 2015 Tex. App.

LEXIS 8161, *4 (Tex. App.—Dallas August 4, 2015). This Court granted

an extension of time to file a Petition for Discretionary Review, which is

timely if filed on or before October 5, 2015.

                          STATEMENT OF FACTS

      The facts of this case, which are extensive, are adequately recited in

the Court of Appeals’ opinion, which is attached to this Petition as required

by TEX. R. APP. P. 68.4(i).

      Suffice it to say that Appellant was charged with and convicted of

failure to register as a sex offender. (CR: 11; RR2: 6).

                           GROUND FOR REVIEW

 Whether the Court of Appeals incorrectly applied the habeas harmless
error analysis in Ex parte Parrott and Ex parte Rich to Appellant’s case on
                               direct appeal.




                                       2
                                 ARGUMENT

      The Court of Appeals incorrectly applied the habeas harmless error

analysis set out by this Court in Ex parte Rich and Ex parte Parrott to

Appellant’s case on direct appeal. Ex parte Rich, 194 S.W.3d 508 (Tex. Crim.

App. 1973); Ex parte Parrott, 396, S.W.3d 531, 537-38 (Tex. Crim. App.

2013).

FACTS

      Appellant was indicted on the charge of failure to register as a sex

offender. (CR: 11). On September 24, 2012, Appellant pled guilty to the

pending indictment. (RR2: 6). The trial court informed Appellant as to the

applicable range of punishment: “You’re charged with failure to register as a

sex offender. That’s a third degree felony and carries a punishment range of

two to ten years in the penitentiary and optional fine not to exceed $10,000.”

(RR2: 5). After testifying in mitigation, Appellant was sentenced by the trial

court that same day to ten years, suspended and five years community

supervision. (RR2: 11-12).

      The State filed a motion to revoke on July 11, 2013. (CR: 34).

Appellant entered a plea of true to the motion. (RR3: 5). The trial court

admitted Appellant’s written plea of true and stipulation of evidence as

State’s exhibit number one. (RR3: 6). The trial court, however, denied the



                                      3
State’s motion and modified Appellant’s probation to include seven days to

serve in the Dallas County Jail. (RR4: 9; CR: 51).

      The State filed a final motion to revoke on March 12, 2014. (CR: 53-

54). Appellant entered a plea of true to the motion. (RR4: 5-6). The State

entered Appellant’s written plea of true and stipulation of evidence as State’s

exhibit number one. (RR5: 6). Appellant testified in mitigation that he had

completed his ten year registration requirement. (RR4: 11-13; Defendant’s

Exhibit 1). The trial court granted the motion to revoke and sentenced

Appellant to five years’ incarceration. (RR4: 22).

THE COURT OF APPEALS’ HOLDING IS INCORRECT

      The Court of Appeals’ decision is in conflict with the holding of this

Court. This Court held in Ex parte Rich that an illegal sentence “may be

cognizable on a writ of habeas corpus.” Ex parte Rich, 194 S.W.3d 508, 511

(Tex. Crim. App. 2006). In determining if a sentence was “actually illegal,” this

Court distinguished between a clerical error in a judgment which can be

corrected by a nunc pro tunc order and an error that “resulted from judicial

reasoning or determination.” Id. at 512. Ultimately, this Court ruled that where

the record on appeal did not reveal the illegality in the defendant’s sentence, he

could challenge the illegality by applying for a writ of habeas corpus. Id.




                                       4
      In Ex parte Parrott, this Court held that in order to receive habeas relief

due to an illegal sentence, an applicant must show harm. Ex parte Parrott, 396,

S.W.3d 531, 537-38 (Tex. Crim. App. 2013). “[A] post-conviction habeas

corpus application must allege facts which show both a cognizable irregularity

and harm.” Id. at 534, quoting Ex parte Tovar, 901 S.W.2d 484, 486 (Tex.

Crim. App. 1995). Proof of harm in a habeas case may be developed with new

evidence beyond the appellate record. Id. This “affords the habeas judge, and

ultimately this Court, an opportunity to evaluate that evidence.” Id. at 535.

      Furthermore, this Court then interpreted Ex parte Rich to include a

harmless error analysis applicable in habeas cases alleging an illegal sentence.

Id. at 536. More specifically, a habeas court must determine “whether Rich had

other prior convictions that the State could have properly used to enhance his

sentence or, stated differently, whether Rich was actually harmed by the

erroneous enhancement.” Id. According to Ex parte Parrott, the harmless error

analysis stated in Ex parte Rich is as follows:

      (1) An applicant is harmed by an illegal sentence when the
         appellate and habeas records show that he has no other
         conviction that could support the punishment range within
         which he was sentenced; and

      (2) An applicant is not harmed by an illegal sentence when the
         appellate and habeas records show that there was another
         conviction that could properly support the punishment range
         within which he was sentenced.



                                       5
      Id. (emphasis added).

      In the case at bar, the Court of Appeals’ opinion incorrectly applied the

harmless error analysis in Ex parte Rich to Appellant’s case on direct appeal.

The Court of Appeals’ analysis was as follows:

      …appellant must show the sentence assessed was “actually
      illegal.” See Ex parte Rich, 194 S.W.3d 508, 511 (Tex. Crim.
      App. 2006). And appellant’s sentence was only actually illegal
      if the conviction was unavailable for enhancement. Cf. Ex parte
      Parrott, 396, S.W.3d 531, 537-38 (Tex. Crim. App. 2013).

Wright, 2015 Tex. App. LEXIS 8161, at *3-4.

      This Court held the harm analysis in Ex parte Rich and Ex parte Parrott

applicable specifically to habeas cases because the law requires proof of harm

when habeas relief is sought. However, in the case at bar, Appellant is not

seeking habeas relief, but is on direct appeal. Therefore, the Court of Appeals

incorrectly applied a habeas standard to Appellant’s case on direct appeal.

Instead, the Court of Appeals should have determined if there was error, and if

so, applied the standard found in Levy v. State as follows:

      when an appellate court finds error at the punishment stage of
      the trial, the case may be remanded to the trial court for the
      proper assessment of punishment. Tex. Code Crim. Proc. art.
      44.29(b); Bullard v. State, 5483 S.W.2d 13, 18 (Tex. Cr. App.
      1977); Jackson v. State, 680 S.W.2d 809, 814 (Tex. Cr. App.
      1984). In cases where a defendant enters a plea of guilty or nolo
      contendere without the benefit of a plea bargain agreement with
      the State and the trial judge assesses a punishment not
      authorized by law, the appropriate remedy is to allow the



                                       6
      finding of guilt to remain and to remand the case to the trial
      court for the proper assessment of punishment.

Levy v. State, 818 S.W.2d 801, 803 (Tex. Crim. App. 1991).

      The Court of Appeals should have found error in Appellant’s case.

Article 62.102 of the Texas Code of Criminal Procedure provides the

following:

   (a) A person commits an offense if the person is required to
       register and fails to comply with any requirement of this
       chapter.
   (b) An offense under this article is:
       (1) A state jail felony if the actor is a person whose duty to
       register expires under Article 62.101(b) or (c);
       (2) a felony of the third degree if the actor is a person whose
       duty to register expires under Article 26.101(a) and who is
       required to verify registration once each year under Article
       62.058;
   (c) If it is shown at the trial of a person for an offense or an attempt
       to commit an offense under this article that the person has
       previously been convicted of an offense or an attempt to
       commit an offense under this article, the punishment for the
       offense or the attempt to commit the offense is increased to the
       punishment for the next highest degree of felony.

Tex. Code Crim. Proc. art. 62.102(a), (b). Article 62.101(a), applies to those

who are not adjudicated of delinquent conduct and mandates registration for

life. Tex. Code Crim. Proc. art. 62.101(a) (emphasis added). Offenders not

subject to Texas Code of Procedure Article 62.101(a) are subject to Article

62.101(b) or (c). Anyone who is adjudicated of delinquent conduct must

register for ten years from the date on which “the disposition is made or the



                                        7
person completes the terms of the disposition, whichever date is later.” Tex.

Code Crim. Proc. art. 62.101(c)(1). Any offense under Article 62.101(c) is

punished as a state jail felony pursuant to Article 62.102(b)(1) unless the

punishment is increased pursuant to Article 62.102(c). A state jail felony is

punishable by no more than two years or less than 180 days. Tex. Pen. Code

§ 12.35(a).

        Punishment for an offense under Texas Code of Criminal Procedure

article 62.102 may be enhanced in some circumstances. Tex. Code Crim.

Proc. 62.102(c). If it is shown at the trial of an offense that an offender was

previously convicted of an offense under article 62.102, the current offense

is then “increased to the punishment for the next highest degree of felony.”

Id.

        According to the indictment, Appellant was adjudicated of delinquent

conduct, specifically, indecency with a child by contact pursuant to Texas

Penal Code § 21.11(a)(1) and required to register for ten years. TEX. PEN.

CODE § 21.11 (a)(1); (CR: 11). Appellant judicially confessed to the same

facts as stated in the indictment. (CR: 22). Since Appellant was adjudicated

of delinquent conduct, Appellant’s case was subject to Article 62.101(c)

which addresses those adjudicated of delinquent conduct. TEX. CODE CRIM.

PROC.    ART.   62.101(c)(1). According to the Texas Code of Criminal



                                      8
Procedure, offenders subject to article 62.101(c) must register for ten years

and failure to do so is a state jail felony. TEX. CODE CRIM. PROC.         ART.

62.102(b)(1). A state jail felony is punishable by no more than two years or

less than 180 days. TEX. PEN. CODE § 12.35(a). Therefore, the range of

punishment in Appellant’s case should have been a minimum of 180 days up

to a maximum of two years.

       Appellant entered a plea of guilty to the original charge, but the record

does not reflect a plea to any enhancement paragraphs, nor did the trial court

give Appellant notice of any enhancement paragraphs. (RR2: 6, passim).

Furthermore, Appellant did not judicially confess to a conviction of any

prior offense under article 62.102. (RR2: passim; CR: 22). At no time during

Appellant’s plea did the State prove Appellant had a final conviction of a

previous offense under Article 62.102. (RR2: passim). Therefore,

Appellant’s case could not have been enhanced according to Article 62.102

(c).

       As such, the charge in Appellant’s case was a state jail felony and he

should not have received a sentence above two years during his original

sentencing. Consequently, Appellant’s sentence of ten years, suspended with

five years community supervision was illegal as was his final sentence at his

revocation hearing of five years’ incarceration. Therefore, the Court of



                                       9
Appeals should have found error in Appellant’s case and remanded it back

to the trial court for a new punishment hearing pursuant to Levy v. State.

Levy, 818 S.W.2d at 803.

                                CONCLUSION

      The Court of Appeals’ decision to affirm the trial court’s illegal

sentencing of Appellant is contradictory to the rulings of this Court. This Court

should grant discretionary review to resolve this discrepancy between the Court

of Appeal’s ruling and the ruling of this Court.

                           PRAYER FOR RELIEF

      For the reasons herein alleged, Appellant prays this Court grant this
petition and, upon reviewing the judgment entered below, remand the case for a
new punishment hearing.
                                       Respectfully submitted,
                                       Lynn Richardson
                                       Chief Public Defender

                                       /s/ Nanette Hendrickson
                                       Nanette Hendrickson
                                       Assistant Public Defender
                                       State Bar No. 24081423

                      CERTIFICATE OF SERVICE

      I hereby certify that on the 5th day of October, 2015, a true copy of the
foregoing petition for discretionary review was served on Lori Ordiway,
Assistant District Attorney, Dallas County Criminal District Attorney’s Office,
133 N. Riverfront Blvd., LB-19, 10th Floor, Dallas, Texas, 75207, by electronic
and hand delivery; and was also served on, Lisa C. McMinn, State Prosecuting


                                      10
Attorney, P.O. Box 13046, Austin, Texas, 78711 by electronic delivery and by
depositing same in the United States Mail, Postage Prepaid.

                                      /s/ Nanette Hendrickson
                                      Nanette Hendrickson


                   CERTIFICATE OF COMPLIANCE

      I certify that the foregoing Petition for Discretionary Review contains
2,801 words.


                                      /s/ Nanette Hendrickson
                                      Nanette Hendrickson




                                     11
User Name: nanette hendrickson
Date and Time: Oct 05, 2015      1:42 p.m. EDT
Job Number: 24600858


Document(1)

1.   Wright v. State, 2015 Tex. App. LEXIS 8161
     Client/Matter: -None-




                      | About LexisNexis | Privacy Policy | Terms & Conditions | Copyright © 2015 | LexisNexis.
                                             nanette hendrickson
No Shepard’s Signal™
As of: October 5, 2015 1:42 PM EDT


                                                      Wright v. State
                                       Court of Appeals of Texas, Fifth District, Dallas
                                                 August 4, 2015, Opinion Filed
                                                      No. 05-14-00641-CR

Reporter
2015 Tex. App. LEXIS 8161

SIR MELVIN WRIGHT, JR., Appellant v. THE STATE OF                   LexisNexis® Headnotes
TEXAS, Appellee
                                                                       Criminal Law & Procedure > Criminal Offenses > Classification
Notice: PLEASE CONSULT THE TEXAS RULES OF                              of Offenses > Felonies
APPELLATE PROCEDURE FOR CITATION OF
                                                                       Criminal Law & Procedure > Sentencing > Ranges
UNPUBLISHED OPINIONS.
                                                                       Criminal Law & Procedure > Postconviction Proceedings > Sex
Prior History: [*1] On Appeal from the 283rd Judicial                  Offenders > Registration
District Court, Dallas County, Texas. Trial Court Cause No.            Family Law > Delinquency & Dependency > Delinquency
F-1172119-T.                                                           Proceedings

                                                                    HN1 If a person is required to register as a sex offender
Core Terms                                                          based on an adjudication of delinquency, and fails to comply
                                                                    with the registration requirements, the offense is a state jail
sentence, prior conviction, fail to register, enhanced, parte,      felony. Tex. Code Crim. Proc. Ann. art. 62.102. If a person
sex offender, trial court, indictment, asserts, felony, revoke      has a prior conviction for failure to register, the punishment
                                                                    range is increased to a third-degree felony. Art. 62.102.
Case Summary
                                                                       Criminal Law & Procedure > Sentencing > Appeals >
                                                                       Appealability
Overview
                                                                       Criminal Law & Procedure > Sentencing > Corrections,
                                                                       Modifications & Reductions > Illegal Sentences
HOLDINGS: [1]-Although defendant, who pleaded guilty
                                                                       Criminal Law & Procedure > Sentencing > Ranges
to the offense of failure to register as a sex offender, asserted
his sentence was illegal because of the State’s failure to             Criminal Law & Procedure > ... > Probation > Revocation >
provide him with notice that it was seeking an enhanced                General Overview
punishment range and its failure to provide evidence of a              Criminal Law & Procedure > Appeals > Reviewability > General
prior conviction, defendant failed to show his sentence was            Overview
illegal; [2]-Defendant’s sentence was only actually illegal if
the conviction was unavailable for enhancement;                     HN2 Generally, an appeal from an order revoking probation
                                                                    is limited to the propriety of the revocation and does not
[3]-Although defendant asserted his guilty plea was
                                                                    include a review of the original conviction. However, a
involuntary because he was improperly admonished as to
                                                                    sentence outside the range of punishment is void and may
the range of punishment, defendant could not raise a
                                                                    be challenged at any time.
complaint regarding the involuntariness of his original plea
in an appeal from the revocation of his probation.
                                                                       Criminal Law & Procedure > Sentencing > Corrections,
                                                                       Modifications & Reductions > Illegal Sentences
Outcome
                                                                    HN3 A defendant who contends he received an illegal
Judgment affirmed.                                                  sentence must show the sentenced assessed was actually
                                                                    illegal.

                                                      nanette hendrickson
                                                                                                                     Page 2 of 3
                                               2015 Tex. App. LEXIS 8161, *1

   Criminal Law & Procedure > ... > Entry of Pleas > Guilty       register as a sex offender. The indictment stated the ″charge″
   Pleas > Voluntariness                                          was ″FAIL REG SEX OFFEND ENH F3,″ and alleged
   Criminal Law & Procedure > Sentencing > Appeals >              appellant’s duty to register was based on an adjudication of
   Appealability                                                  delinquent conduct. The indictment did not, however, allege
                                                                  appellant had a prior conviction for failure to register.
   Criminal Law & Procedure > ... > Probation > Revocation >
   General Overview
                                                                  Appellant pleaded guilty to the offense. At the plea hearing,
   Criminal Law & Procedure > Appeals > Reviewability > General   the trial court admonished appellant he was being charged
   Overview                                                       with ″failure to register as a sex offender″ and that the
                                                                  punishment range was two to ten years’ confinement and a
HN4 An appellant may not raise a complaint regarding the          $10,000 fine. Appellant entered a plea of guilty. His also
involuntariness of his original plea in an appeal from the        signed a judicial confession in which he admitted committing
revocation of his probation.                                      the offense as alleged in the indictment. During the hearing,
                                                                  appellant and his attorney both made references to appellant’s
Counsel: For Appellants: Nanette Hendrickson, Dallas, TX.         prior conviction. For example, appellant conceded he had
                                                                  already had ″problems″ with the ″criminal justice system″
For Appellees: Michelle (Shelly) O’Brien, Susan Hawk,             for failing to comply with the registration requirements, and
Dallas, TX.                                                       he did not want ″another case.″ His attorney then, in arguing
                                                                  for leniency, acknowledged ″there’s no good reason for
Judges: Before Justices Bridges, Fillmore, and Brown.             failing to register once, let alone twice.″ The State [*3] did
Opinion by Justice Brown.                                         not, however, offer formal proof of his prior conviction.

Opinion by: ADA BROWN                                             The trial court found appellant guilty of the offense, and
                                                                  sentenced him to ten years in prison, but suspended
Opinion                                                           imposition of the sentence. The trial court’s judgment
                                                                  reflects appellant was convicted of ″failure to
                                                                  register/enhanced.″ Appellant did not appeal his conviction.
MEMORANDUM OPINION
                                                                  The trial court subsequently revoked appellant’s probation.
Opinion by Justice Brown
                                                                  At the hearing on the motion to revoke, appellant testified
Sir Melvin Wright, Jr. appeals his conviction for failure to      and admitted he had been sentenced to twelve months for
register as a sex offender. In two points of error, appellant     the ″2007″ offense. The trial court found the allegations in
contends (1) he received an illegal sentence, and (2) his         the State’s motion to revoke true, and sentenced appellant to
guilty plea was involuntary. For the following reasons, we        five years in prison.
affirm.
                                                                  In his first issue, appellant asserts he was assessed an illegal
On November 1, 2011, a warrant issued for appellant’s             sentence because his five-year sentence was outside the
arrest based on an affidavit alleging appellant had committed     range of punishment for a state jail felony. HN1 If a person
the offense of failure to register as a sex offender, ″Felony     is required to register as a sex offender based on an
3.″ The warrant was based on an affidavit stating probable        adjudication of delinquency, and fails to comply with the
cause existed that appellant committed the offense. The           registration requirements, the offense is a state jail felony.
affidavit stated appellant had been ″convicted″ of indecency      TEX. CRIM. PROC. CODE ANN. § art. 62.102 (West). If a person
with a child and was sentenced to two years in the Texas          has a prior conviction for failure to register, the punishment
Youth Commission. The affidavit further stated appellant          range is increased to a third-degree felony. SEE TEX. CRIM.
was then later convicted of failing to register as a sex          PROC. CODE ANN. § 62.102 (West); [*4] see also Ford v.
offender and sentenced to 365 days in jail. Finally, the          State, 334 S.W.3d 230, 234 (Tex. Crim. App. 2011)
affidavit alleged appellant committed the instant failure to
register offense, which was enhanced ″due to the prior            Appellant asserts his five-year sentence was illegal because
conviction.″                                                      he was convicted of a state jail felony, for which the
                                                                  maximum period of confinement allowable is two years. See
Appellant was arrested [*2] and arraigned on the charges.         TEX. PENAL CODE ANN. § 12.35 (West 2011). He further
The grand jury subsequently indicted him for failing to           asserts his punishment could not be enhanced because (1)

                                                    nanette hendrickson
                                                                                                                   Page 3 of 3
                                              2015 Tex. App. LEXIS 8161, *4

the indictment did not allege a prior conviction, (2) he was     complaint regarding defects in the evidence show his
not given notice of a prior conviction, (3) he did not plead     conviction could not be used to enhance his punishment. Cf.
true to any allegations of a prior conviction, and (4) the       Ex parte Parrott, 396 S.W.3d at 537-38 (Tex. Crim. App.
State did not otherwise prove he had a prior conviction.         2013). We conclude appellant has failed to show his
                                                                 sentence was illegal. See Ex parte Rich, 194 S.W.3d at 511;
HN2 Generally, an appeal from an order revoking probation        see also. Ex Parte Parrott, 396 S.W.3d a 537-38. We
is limited to the propriety of the revocation and does not       overrule appellant’s first point of error.
include a review of the original conviction. Traylor v. State,
561 S.W.2d 492, 494 (Tex. Crim. App. [Panel Op.] 1978).          In his second point of error, appellant asserts his guilty plea
However, a sentence outside the range of punishment is           was involuntary because he was improperly admonished as
void and may be challenged at any time. See Ex parte Rich,       to the range of punishment. It is well established HN4 an
194 S.W.3d 508, 511 (Tex. Crim. App. 2006); Mizell v.State,      appellant may not raise a complaint regarding the
119 S.W.3d 804, 806 (Tex. Crim. App. 2003); Baker v. State,      involuntariness of his original plea in an appeal from the
278 S.W.3d 923, 926 (Tex. App.—Houston 2009, pet.                revocation of his probation. Jordan v. State, 54 S.W.3d 783,
ref’d).                                                          785 (Tex. Crim. App. 2001). That issue must be raised in an
                                                                 appeal from the original conviction. See id. We overrule
Here, appellant does not dispute he was sentenced within         appellant’s second point of error.
the range of punishment if the State showed he had a prior
conviction. Nor does appellant dispute that he had a prior       We affirm the trial court’s judgment revoking [*6]
conviction that would allow for enhancement. Cf. Ex parte        appellant’s probation.
Parrott, 396 S.W.3d 531, 537-38 (Tex. Crim. App. 2013) (in       /Ada Brown/
habeas proceeding defendant failed to show harm when
                                                                 ADA BROWN
actual criminal history would support punishment). He
nevertheless asserts his sentence was illegal because of the     JUSTICE
State’s failure to [*5] provide him with notice that it was
                                                                 Do Not Publish
seeking an enhanced punishment range and its failure to
provide evidence of a prior conviction. However, HN3             TEX. R. APP. P 47.2(b)
appellant must show the sentenced assessed was ″actually
illegal.″ See See Ex parte Rich, 194 S.W.3d 508, 511 (Tex.       JUDGMENT
Crim. App. 2006). And appellant’s sentence was only
                                                                 Based on the Court’s opinion of this date, the judgment of
actually illegal if the conviction was unavailable for
                                                                 the trial court is AFFIRMED.
enhancement. Cf. Ex parte Parrott, 396 S.W.3d 531, 537-38
(Tex. Crim. App. 2013). Neither appellant’s complaint            Judgment entered this 4th day of August, 2015.
regarding the State’s failure to provide him notice nor his




                                                   nanette hendrickson
