      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-17-00699-CR



                                   James Fountain, Appellant

                                                 v.

                                  The State of Texas, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT
      NO. D-1-DC-13-300388, HONORABLE P. DAVID WAHLBERG, JUDGE PRESIDING



                            MEMORANDUM OPINION


               James Fountain appeals his conviction for the third-degree felony of fraudulent

possession of a controlled substance. See Tex. Health & Safety Code § 481.129(a)(5). In his only

issue on appeal, Fountain contends that his sentence is outside the punishment range for fraudulently

“attempting” to obtain a controlled substance. We will affirm the district court’s judgment.


                                         BACKGROUND

               The record reflects that Fountain pleaded guilty in 2013 to the offense of “obtain[ing

a] controlled substance by fraud” by using a false or forged prescription form to obtain Alprazolam.

See id. The district court assessed punishment at ten years’ imprisonment but suspended imposition

of the sentence and placed Fountain on community supervision for five years in accordance with the

terms of his plea agreement. At a subsequent hearing on the State’s motion to revoke, the district

court found that Fountain violated the terms of his community supervision, revoked his community
supervision, and sentenced him to three years’ imprisonment. Fountain filed a motion for new trial

that was overruled by operation of law. This appeal followed.


                                          DISCUSSION

               As noted above, Fountain was convicted of fraudulent possession of a controlled

substance, a third-degree felony. See id. On appeal, Fountain contends that his original sentence of

ten years pursuant to his plea agreement and his subsequent sentence of three years upon the

revocation of his community supervision were illegal because those sentences were outside the

applicable range of punishment. Specifically, Fountain contends that because the State alleged an

“attempt” to possess or obtain a controlled substance through the use of a fraudulent prescription

form, he was convicted only of the offense of criminal attempt, which is not a third-degree felony

but a state jail felony. See Tex. Penal Code § 15.01(d).

               The State responds that Fountain’s sentences are within the legal range of

punishment, even if the conduct that he was charged with committing and to which he pleaded guilty

was only an “attempt” to obtain a controlled substance by fraud rather than actually obtaining it. The

State notes that Fountain judicially confessed to obtaining a controlled substance. The State also

notes that under subsection 481.129(a)(5) of the Texas Health and Safety Code, “attempted

fraudulent possession of a controlled substance” and “fraudulent possession of a controlled

substance” are treated equally and are completed offenses. See Tex. Health & Safety Code

§ 481.129(a)(5).

               An illegal sentence is one that is not authorized by law; therefore, a sentence that is

outside the range of punishment authorized by law is considered illegal. Ex parte Parrott,

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396 S.W.3d 531, 534 (Tex. Crim. App. 2013) (citing Mizell v. State, 119 S.W.3d 804, 806

(Tex. Crim. App. 2003)). If the punishment pursuant to a negotiated plea agreement exceeds the

statutory maximum, the proper relief is to return the parties to their respective positions before the

guilty plea was entered. Puente v. State, 320 S.W.3d 352, 356 n.8 (Tex. Crim. App. 2010) (citing

Ex parte Rich, 194 S.W.3d 508, 515 (Tex. Crim. App. 2006); Ex parte Beck, 922 S.W.2d 181, 182

(Tex. Crim. App. 1996)). Whether a sentence exceeds the range of punishment authorized by statute

is a question of law that we review de novo. See Yazdchi v. State, 428 S.W.3d 831, 837 (Tex. Crim.

App. 2014) (concluding that because statutory construction is question of law, appellate review of

lower court’s interpretation of statute is de novo); see also Doughty v. State, No. 01-13-00591-CR,

2014 Tex. App. LEXIS 11769, at *2 (Tex. App.—Houston [1st Dist.] Oct. 28, 2014, no pet.) (mem.

op., not designated for publication) (reviewing de novo legal question of whether trial court’s special

orders constituted punishment exceeding that which was statutorily authorized).


No illegal sentence

                Fountain’s indictment included an allegation that he “did then and there knowingly

attempt to possess or obtain a controlled substance, namely, Alprazolam, by fraud, to-wit: James

Fountain obtained a controlled substance through the use of a fraudulent prescription form[.]” That

allegation was consistent with section 481.129(a)(5) of the Health and Safety Code, which provides

in relevant part:


        (a) A person commits an offense if the person knowingly:

        ....



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       (5) possesses, obtains, or attempts to possess or obtain a controlled substance or an
           increased quantity of a controlled substance:

           (A) by misrepresentation, fraud, forgery, deception, or subterfuge; [or]

           (B) through use of a fraudulent prescription form[.]


Tex. Health & Safety Code § 481.129(a)(5)(A), (B). The Health and Safety Code further provides

that an offense under subsection 481.129(a) is “a felony of the third degree if the controlled

substance that is the subject of the offense is listed in Schedule III or IV[.]” Id. § 481.129(d)(2).

Fountain acknowledges that Alprazolam, the controlled substance identified in his indictment, “is

listed in schedule IV.” See id. § 481.032; 37 Tex. Reg. 978 (2012) (listing Alprazolam as Schedule

IV controlled substance) (current version at 42 Tex. Reg. 1271 (2017)). A third-degree felony is

punishable by “imprisonment in the Texas Department of Criminal Justice for any term of not more

than 10 years or less than 2 years.” Tex. Penal Code § 12.34(a).


               1. Fountain judicially confessed that he obtained controlled substance

               Fountain contends that his sentence was illegal because he was convicted only of the

offense of criminal attempt under section 15.01 of the Penal Code and under that statute, “[a]n

offense . . . is one category lower than the offense attempted.” See id. §15.01(d). However, Fountain

judicially confessed to the allegation in the indictment that he actually obtained the controlled

substance. See Potts v. State, 571 S.W.2d 180, 182 (Tex. Crim. App. 1978) (concluding that “an

affirmation of the indictment as true and correct will constitute a judicial confession sufficient to

support a judgment of conviction”); accord Menefee v. State, 287 S.W.3d 9, 13 (Tex. Crim. App.

2009) (recognizing that “so long as such a judicial confession covers all the elements of the charged

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offense, it will suffice to support the guilty plea”). Fountain’s indictment alleged both that he

attempted to obtain the controlled substance and that he actually obtained it: “James Fountain

obtained a controlled substance through the use of a fraudulent prescription form[.]” Fountain’s

written plea of guilty shows that he was charged with the felony offense of “obtain[ing a] controlled

substance by fraud” and in that plea Fountain states, “I admit and judicially confess that I committed

the charged offense as alleged in the indictment or information.” Similarly, Fountain’s judgment

of community supervision contains the district court’s finding that Fountain “is guilty as confessed

of the offense of Obtain Controlled Substance by Fraud, Felony-Level 3.”

               Fountain points out that during the plea hearing, the district court stated that it found

him guilty of the offense of fraudulently “attempting” to obtain a controlled substance. But during

the same hearing, when the court asked Fountain if he was prepared to enter a plea to the charge of

“fraudulently obtaining a controlled substance, a third-degree felony,” Fountain responded, “Yes,

sir.” We conclude that Fountain’s judicial confession to the charged offense as alleged in the

indictment resulted in his conviction for the third-degree felony offense of obtaining a controlled

substance by fraud. His original sentence of ten years pursuant to his plea agreement and his

subsequent sentence of three years upon the revocation of his community supervision were within

the proper range of punishment for that offense. See Tex. Penal Code § 12.34(a).


               2. Attempt to possess or obtain controlled substance defined as offense by statute

               Further, even if Fountain had been convicted only of attempting to possess or obtain

a controlled substance by fraud, the criminal attempt statute in section 15.01 of the Penal Code

would have no application here. Section 15.01 of the Penal Code—which applies only to inchoate

                                                  5
offenses—states that “[a] person commits an offense if, with specific intent to commit an offense,

he does an act amounting to more than mere preparation that tends but fails to effect the commission

of the offense intended.” Id. § 15.01(a). “Conduct constitutes an offense if it is defined as an

offense by statute.” Edwards v. State, 487 S.W.3d 330, 334 (Tex. App.—Eastland 2016, no pet.)

(quoting Oler v. State, 998 S.W.2d 363, 367 (Tex. App.—Dallas 1999, pet. ref’d) (citing Tex. Penal

Code § 1.03(a)).

               Under subsection 481.129(a)(5) of the Health and Safety Code, both attempted

fraudulent possession of a controlled substance and actual fraudulent possession of a controlled

substance are defined as offenses and treated equally.          See Tex. Health & Safety Code

§ 481.129(a)(5)(A), (B) (stating that person commits offense if he knowingly “possesses, obtains,

or attempts to possess or obtain” controlled substance by fraud or by use of fraudulent prescription

form); Edwards, 487 S.W.3d at 334 (noting that punishment depends on classification of controlled

substance that actor possesses or attempts to possess, not on whether actor is successful in obtaining

possession). An “attempt” to possess or obtain a controlled substance by fraud or through the use

of a fraudulent prescription form is a completed offense—not an inchoate offense—that is expressly

prohibited by the statute. See Tex. Health & Safety Code § 481.129(a)(5)(A), (B); Edwards,

487 S.W.3d at 334 (concluding that charge of attempt to possess is completed offense under section

481.129(a)(5), carrying same penalty as actually possessing controlled substance by fraudulent

means, and that such charge is inconsistent with criminal attempt under section 15.01 of Penal

Code); see also Velazquez v. State, No. 11-14-00354-CR, 2016 Tex. App. LEXIS 13857, at *10–11

(Tex. App.—Eastland Dec. 30, 2016, pet. ref’d) (mem. op., not designated for publication) (noting



                                                  6
that attempt to possess controlled substance by fraudulent means is not conduct that fails to effect

commission of offense).      Thus, the criminal attempt statute in section 15.01 of the Penal

Code—addressing acts that “fail[] to effect the commission of the offense intended”—has no

application here. See Tex. Penal Code § 15.01(a); Edwards, 487 S.W.3d at 335 (noting that “Section

15.01 does not apply to an ‘attempt to possess’ charge brought under Section 481.129(a)(5)”).

               Fountain relies on Thomas v. State, 516 S.W.3d 498 (Tex. Crim. App. 2017), and

Shannon v. State, 708 S.W.2d 850 (Tex. Crim. App. 1986), in support of his contention that his

sentences were illegal. But the holdings in those cases address the proper remedy to be applied once

a defendant has prevailed on his claim of an illegal sentence. See Thomas, 516 S.W.3d at 504;

Shannon, 708 S.W.2d at 852. Those cases say nothing about the proper punishment range for an

attempt to possess or obtain a controlled substance and offer no support for Fountain’s only issue

here, i.e., that the sentences imposed under the terms of his plea bargain and after the revocation of

his community supervision exceeded the statutory punishment range for his offense and were illegal.

               We conclude that Fountain’s ten-year and three-year sentences did not exceed the

applicable range of punishment for his charged offense and thus, were not illegal. See Tex. Penal

Code § 12.34(a). We overrule Fountain’s appellate issue.


                                          CONCLUSION

               We affirm the district court’s judgment revoking Fountain’s community supervision.




                                               Jeff Rose, Chief Justice



                                                  7
Before Chief Justice Rose, Justices Pemberton and Field

Affirmed

Filed: August 3, 2018

Do Not Publish




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