Opinion issued September 19, 2017




                                      In The

                              Court of Appeals
                                     For The

                          First District of Texas
                           ————————————
                              NO. 01-16-00179-CR
                           ———————————
                     CYNTHIA KAYE WOOD, Appellant
                                         V.
                      THE STATE OF TEXAS, Appellee



                   On Appeal from the 351st District Court
                           Harris County, Texas
                       Trial Court Case No. 1445251

          MEMORANDUM OPINION ON REHEARING1




1
     We originally issued an opinion in this case on August 1, 2017. The State filed a
     motion for rehearing. We deny the motion for rehearing, withdraw our August 1,
     2017 opinion and judgment, and issue this opinion and judgment in their stead. Our
     disposition and judgment remain unchanged.
      Appellant, Cynthia Kaye Wood, pleaded guilty without an agreed

recommendation to the first-degree felony offense of attempted capital murder.

Following completion of a presentence investigation report, the trial court conducted

a sentencing hearing. At the conclusion of the hearing, the trial court assessed

appellant’s punishment at life imprisonment.

      Appellant raises five points of error. In her first and second points of error,

appellant contends that the evidence was insufficient to support her guilty plea to the

offense of attempted capital murder. In her third point of error, she argues that her

sentence of life imprisonment is illegal. In her fourth point of error, she asserts that

her trial attorney rendered ineffective assistance of counsel. In her fifth point of

error, she argues that the trial court erred in proceeding with sentencing without a

complete psychological evaluation. We reverse and remand for resentencing.

                                     Background

      On October 16, 2014, the State filed a complaint charging appellant with the

felony offense of attempted capital murder.2 The indictment charged as follows:

      [I]n Harris County, Texas, CYNTHIA KAYE WOOD, hereafter styled
      the Defendant, heretofore on or about OCTOBER 12, 2014, did then
      and there unlawfully, intentionally, with the specific intent to commit
      the offense of CAPITAL MURDER of K.W., hereafter styled the
      Complainant, do an act, to-wit: USE HER HAND TO IMPEDE THE
      COMPLAINANT’S ABILITY TO BREATHE, which amounted to

2
      A hospital’s security camera showed appellant attempting to suffocate the
      complainant, her four-month old son, by placing her hand over the complainant’s
      nose and/or mouth on two separate occasions.
                                           2
      more than mere preparation that tended to but failed to effect the
      commission of the offense intended.

      It is further presented that, at the time that the Defendant committed the
      felony offense of Attempted Capital Murder, on or about October 12,
      2014, as hereinabove alleged, she used and exhibited a deadly weapon,
      namely, Her Hand, during the commission of said offense and during
      the immediate flight from said offense.

      On November 23, 2015, appellant pleaded guilty to the charged offense,

without an agreed recommendation, and “true” to the deadly weapon allegation.

Appellant requested that the trial court assess punishment following the completion

of a presentence investigation (PSI) report. The trial court admonished appellant

that the range of punishment for the charged offense was five to ninety-nine years

or life and up to a $10,000 fine. At the conclusion of the hearing, the trial court

found that there was sufficient evidence to find appellant guilty, but did not make a

finding of guilt and reset the case for January 27, 2016.

      At the sentencing hearing, the trial court took judicial notice of all of the

information in the clerk’s file. The State introduced the PSI report into evidence and

called Dr. Rebecca Girardet to testify. Dr. Girardet testified that the complainant

was born on May 10, 2014, and that he was four months old at the time he was

brought to Memorial Hermann Children’s Hospital.

      At the conclusion of the evidence, the trial court found appellant guilty of

attempted capital murder and assessed her punishment at life in prison. This appeal

followed.
                                          3
                            Sufficiency of the Evidence

      In her first point of error, appellant contends that the evidence was insufficient

to support her guilty plea to the offense of attempted capital murder because a

necessary element of the charged offense was not both introduced into the record

and accepted by the trial court, in contravention of Article 1.15 of the Code of

Criminal Procedure. In her second point of error, she argues that the evidence was

insufficient to support her guilty plea because the evidence adduced at the sentencing

hearing, which included the PSI report, should not have been used to substantiate

her guilty plea.

       A. Elements of Attempted Capital Murder

      A person commits murder if the person “intentionally or knowingly causes

the death of an individual[.]” TEX. PENAL CODE ANN. § 19.02(b)(1) (West 2011). A

person commits capital murder if “the person commits murder as defined under

section 19.02(b)(1)” and an aggravating circumstance exists. Id. § 19.03(a). An

essential element of capital murder is the presence of one of the aggravating

circumstances enumerated in the statute. See id. Section 19.03(a) enumerates nine

possible aggravating circumstances which elevate murder to capital murder, one of

which is the murder of “an individual under 10 years of age.” Id. § 19.03(a)(8).

      Under Penal Code section 15.01(a), “[a] person commits an offense if, with

specific intent to commit an offense, he does an act amounting to more than mere


                                           4
preparation that tends but fails to effect the commission of the offense intended.” Id.

§ 15.01(a) (West 2011). Attempted capital murder is a first-degree felony which

carries a punishment range of imprisonment for life or for any term of no more than

ninety-nine years or less than five years. See TEX. PENAL CODE §§ 12.32(a),

15.01(d), 19.03(b) (West 2011).

       B. Code of Criminal Procedure Article 1.15

      Article 1.15 states:

      No person can be convicted of a felony except upon the verdict of a jury
      duly rendered and recorded, unless the defendant, upon entering a plea,
      has in open court in person waived his right of trial by jury in writing
      in accordance with Articles 1.13 and 1.14; provided, however, that it
      shall be necessary for the state to introduce evidence into the record
      showing the guilt of the defendant and said evidence shall be accepted
      by the court as the basis for its judgment and in no event shall a person
      charged be convicted upon his plea without sufficient evidence to
      support the same. The evidence may be stipulated if the defendant in
      such case consents in writing, in open court, to waive the appearance,
      confrontation, and cross-examination of witnesses, and further consents
      either to an oral stipulation of the evidence and testimony or to the
      introduction of testimony by affidavits, written statements of witnesses,
      and any other documentary evidence in support of the judgment of the
      court. Such waiver and consent must be approved by the court in
      writing, and be filed in the file of the papers of the cause.
TEX. CODE CRIM. PROC. ANN. art. 1.15 (West 2005).

      The evidence offered to support a guilty plea can take several forms. See

Menefee v. State, 287 S.W.3d 9, 13 (Tex. Crim. App. 2009). Evidence can be

proffered in testimonial or documentary form, in the form of an oral or written

stipulation, or in the form of a judicial confession. See id. So long as a judicial

                                          5
confession covers all of the elements of the charged offense, it will suffice to support

the guilty plea. See id.

       C. Analysis

       On November 23, 2015, appellant signed a document entitled Waiver of

Constitutional Rights, Agreement to Stipulate, and Judicial Confession, which

stated, in relevant part:

       In open court and prior to entering my plea, I waive the right of trial by
       jury. I also waive the appearance, confrontation, and cross-examination
       of witnesses, and my right against self-incrimination. The charges
       against me allege that in Harris County, Texas, CYNTHIA KAYE
       WOOD, hereafter styled the defendant, heretofore on or about
       OCTOBER 12, 2014, did then and there unlawfully, intentionally,
       with the specific intent to commit the offense of CAPITAL MURDER
       of K.W., hereafter styled the Complainant, do an act, to-wit: USE HER
       HAND TO IMPEDE THE COMPLAINANT’S ABILITY TO
       BREATHE, which amounted to more than mere preparation that tended
       to but failed to effect the commission of the offense intended.

AGAINST THE PEACE AND DIGNITY OF THE STATE.

       It is further alleged that during the commission of the felony offense of
       attempted capital murder, the Defendant, used and exhibited a deadly
       weapon, namely, her hands, on or about October 12, 2014.

       I understand the above allegations and I confess that they are true and
       that the acts alleged above were committed on October 12, 2014.

       In open court I consent to the oral and written stipulation of evidence
       in this case and to the introduction of affidavits, written statements, of
       witnesses, and other documentary evidence.

       Appellant argues that her judicial confession does not constitute sufficient

evidence to support her plea of guilty to the charge of attempted capital murder
                                           6
because her confession did not establish every element of the offense of attempted

capital murder. Specifically, she asserts that although the document describes a

murder, it makes no reference to an aggravating factor (here, the complainant’s age).

      When a stipulation or confession is deficient and does not establish every

element of the offense charged, the lack of evidence “may be compensated for by

other competent evidence in the record.” Menefee, 287 S.W.3d at 14. This includes

evidence presented during a sentencing hearing. Stewart v. State, 12 S.W.3d 146,

147–49 (Tex. App.—Houston [1st Dist.] 2000, no pet.) (stating that “article 1.15

does not distinguish between evidence offered at the guilt/innocence phase and the

punishment phase of the trial” and “simply requires that there be evidence in ‘the

record showing the guilt of the defendant.’”) (quoting TEX. CODE CRIM. PROC. ANN.

art. 1.15)); Menefee III v. State, No. 12–07–00001–CR, 2010 WL 3247816, at *1,

*6–7 (Tex. App.—Tyler Aug. 18, 2010, pet. ref’d) (mem. op., not designated for

publication) (on remand, finding evidence at sentencing hearing sufficient to support

guilty plea).

      To satisfy the sufficiency requirements of Article 1.15, the State was required

to offer supporting evidence that embraced every element of the charged offense.

See Menefee, 287 S.W.3d at 13. The State presented evidence during the sentencing

hearing, including Dr. Girardet’s testimony and the PSI report, which was sufficient

to support the charged offense. See id. at 18–19; Stewart, 12 S.W.3d at 147–49. Dr.


                                          7
Girardet testified that the complainant was born on May 10, 2014, and that he was

four months old at the time he was brought to Memorial Hermann Children’s

Hospital. The PSI report referred to the complainant as a “premature infant.”

      Appellant concedes that this evidence was sufficient to support her plea of

guilty to attempted capital murder but contends that the evidence cannot be used to

support her guilty plea because the record does not reflect that the trial court accepted

the evidence adduced at the sentencing hearing as the basis for its judgment of

conviction as required by Article 1.15. Rather, appellant argues, the trial court

explicitly decided that appellant’s guilty plea was supported on the basis of evidence

produced at the November 23, 2015 guilty plea hearing. In support of her argument,

appellant relies on the following statement by the trial court: “[B]ased on your plea

and on the papers that you filed today, I’m going to find there is sufficient evidence

to find you guilty, but I’m going to make no further finding today.”

      We recently rejected a similar argument in Doyle v. State, No. 01-16-00522-

CR, 2017 WL 711747 (Tex. App.—Houston [1st Dist.] Feb. 23, 2017, no pet.)

(mem. op., not designated for publication). There, the defendant argued that there

was no indication in the record that the trial court “accepted” the evidence at the

sentencing hearing “as the basis for its judgment” of conviction. See id. at *3. He

argued that the record, instead, indicated that the trial court determined guilt based




                                            8
only on what transpired when he entered his guilty plea three months earlier without

regard to evidence received later.

      Disagreeing with the defendant’s construction of Article 1.15, we noted:

      The plain meaning of the text of Article 1.15 does not support
      appellant’s argument. Article 1.15 does not impose a duty on the trial
      court to designate which body of evidence supported, and by
      implication which did not support, its judgment. Instead, it requires the
      trial court to accept the evidence of guilt the State offered, without
      differentiation: “[I]t shall be necessary for the state to introduce
      evidence into the record showing the guilt of the defendant and said
      evidence shall be accepted by the court as the basis for its judgment.”
      TEX. CODE CRIM. PROC. art. 1.15; cf. Stewart, 12 S.W.3d at 148
      (“Article 1.15 simply requires that there be evidence in ‘the record
      showing the guilt of the defendant.’ ”).

Doyle, 2017 WL 711747, at *4.

      The court concluded that the record did not support the defendant’s argument,

either. See id. It noted that the trial court did not limit the evidence of guilt to that

received before the sentencing hearing. Id. Rather, following the defendant’s guilty

plea, the trial court expressly stated that it would “withhold any findings” to await

the PSI report that was admitted as evidence at the sentencing hearing. Id. Only

after that evidence was admitted, did the trial court find the defendant guilty. Id.

      Similarly, the trial court here did not limit the evidence of guilt to that received

before the sentencing hearing. The trial court deferred a finding of guilty at the plea

hearing, and only after testimony was presented and the PSI report was admitted at

the sentencing hearing did it find appellant guilty and enter judgment.


                                            9
      Because there was sufficient evidence to support appellant’s conviction for

attempted capital murder, we overrule appellant’s first and second points of error.

                               Legality of Sentence

      In her third point of error, appellant contends that the evidence was sufficient

only to support a second-degree felony conviction, which carries a punishment of

two to twenty years’ confinement, and therefore, her life sentence is illegal. In her

supplemental reply brief, she further argues that her life sentence is illegal because

the indictment in this case only authorized a second-degree felony conviction.

      We note that issues generally may not be raised for the first time in a reply

brief. See TEX. R. APP. P. 38.3; Morales v. State, 371 S.W.3d 576, 589 (Tex. App.—

Houston [14th Dist.] 2012, pet. ref’d); Barrios v. State, 27 S.W.3d 313, 322 (Tex.

App.—Houston [1st Dist.] 2000, pet. ref’d). However, “[a] trial or appellate court

which otherwise has jurisdiction over a criminal conviction may always notice and

correct an illegal sentence.” Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App.

2003) (“There has never been anything in Texas law that prevented any court with

jurisdiction over a criminal case from noticing and correcting an illegal sentence.”)

(emphasis in original); Sierra v. State, 501 S.W.3d 179, 183 (Tex. App.—Houston

[1st Dist.] 2016, no pet.); Baker v. State, 278 S.W.3d 923, 927 (Tex. App.—Houston

[14th Dist.] 2009, pet. ref’d). We therefore address appellant’s argument that her




                                          10
life sentence is illegal because the indictment only authorized a second-degree

felony conviction.

      Here, the indictment charged appellant with

      unlawfully, intentionally, with the specific intent to commit the offense
      of CAPITAL MURDER of K.W., hereafter styled the Complainant, do
      an act, to-wit: USE HER HAND TO IMPEDE THE
      COMPLAINANT’S ABILITY TO BREATHE, which amounted to
      more than mere preparation that tended to but failed to effect the
      commission of the offense intended.

The indictment tracked the language of Penal Code sections 19.02(b)(1) (murder)

and 15.01(a) (criminal attempt), but it did not allege any of the aggravating

circumstances that elevate the offense of murder to capital murder. See TEX. PENAL

CODE § 19.03(a).

      The Texas Constitution guarantees defendants the right to indictment by a

grand jury for all felony offenses. TEX. CONST. art. I, § 10; Riney v. State, 28 S.W.3d

561, 564 (Tex. Crim. App. 2000). The indictment serves a dual purpose of protecting

citizens against arbitrary accusations by the government and providing a defendant

notice of the charged offense so he may prepare an effective defense. Riney, 28

S.W.3d at 565. The accused is not required to look elsewhere than the indictment

for notice, and “it is not sufficient to say that the accused knew with what offense he

was charged.” Id.

      In Sierra, we held that “[w]hen ‘an indictment facially charges a complete

offense, it is reasonable to presume the State intended to charge the offense alleged,
                                          11
and none other.’” 501 S.W.3d at 182–83 (quoting Thomason v. State, 892 S.W.2d

8, 11 (Tex. Crim. App. 1994)). “Therefore, when the indictment charges a complete

offense, ‘the State is held to the offense charged in the indictment, regardless of

whether the State intended to charge that offense.’” Sierra, 501 S.W.3d at 182–83

(quoting Thomason, 892 S.W.2d at 11); see also Rodriguez v. State, 18 S.W.3d 228,

232 (Tex. Crim. App. 2000) (concluding conviction not authorized on theory not

alleged in charging instrument).       To hold otherwise would circumvent the

requirement that an indictment give adequate notice to the defendant. See Riney, 28

S.W.3d at 565.

      Here, the indictment charged a complete offense—attempted murder.

Although the State intended to charge appellant with the offense of attempted capital

murder, it did not do so because the aggravating factor was missing from the

indictment. See Crawford v. State, 632 S.W.2d 800, 801 (Tex. App.—Houston [14th

Dist.] 1982, pet. ref’d) (reversing defendant’s conviction for capital murder where

indictment did not allege “aggravated rape” as enhancing offense under Penal Code

section 19.03(a)(2) elevating murder to capital murder). The term “capital murder”

is a term that describes a sentencing regime rather than a criminal offense. There is

no crime of capital murder that is different from murder. Capital murder is murder.

But, it is murder that is accompanied by an aggravating factor that provides the State

with a greater range of punishment than that which applies to the offense of murder.


                                         12
The requirement that the indictment allege the aggravating factor under section

19.03(a)(2) is particularly important given that the statute lists nine possible

aggravating circumstances elevating the offense of murder to capital murder. The

indictment in this case did not authorize a conviction for attempted capital murder,

and the State is held to the offense charged in the indictment. See Sierra, 501 S.W.3d

at 183.

      The crime charged in the indictment was attempted murder which is a

second-degree felony offense with a maximum sentence of confinement of twenty

years. See TEX. PENAL CODE ANN. §§ 19.02(c), 15.01(d), 12.33(a) (West 2011). “A

sentence that is outside the maximum or minimum range of punishment is

unauthorized by law and therefore illegal.” Mizell v. State, 119 S.W.3d 804, 806

(Tex. Crim. App. 2003).         Consequently, the trial court’s sentence of life

imprisonment in this case was “illegal, unauthorized, and void.” Sierra, 501 S.W.3d

at 185 (holding that trial court’s sentence of thirty years’ imprisonment was illegal,

unauthorized, and void where crime charged in indictment was second-degree felony

which carried maximum sentence of twenty years’ imprisonment); see also Mizell,

119 S.W.3d at 806; Ex parte Rich, 194 S.W.3d 508, 512 (Tex. Crim. App. 2006)

(concluding that mischaracterization of offense in indictment resulted in sentence in

violation of law). The remedy for a non-negotiated guilty plea that leads to an illegal




                                          13
sentence is remand for proper assessment of punishment. See Rich, 194 S.W.3d at

514–15. Accordingly, we sustain appellant’s third point of error.3

                                        Conclusion

      We reverse appellant’s conviction for attempted capital murder, order the trial

court to adjudge appellant guilty of attempted murder, and remand the case for

assessment of punishment.




                                                   Russell Lloyd
                                                   Justice

Panel consists of Chief Justice Radack and Justices Brown and Lloyd.

Do not publish. TEX. R. APP. P. 47.2(b).




3
      In light of our disposition, we do not reach appellant’s fourth point of error arguing
      that trial counsel rendered ineffective assistance of counsel, or her fifth point of error
      asserting that the trial court erred in proceeding with sentencing without a complete
      psychological evaluation.
                                              14
