Affirmed in Part, Reversed and Remanded in Part, and Memorandum Opinion
filed October 30, 2018




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-17-00111-CR

                    JENIFER ANNETTE CASH, Appellant
                                         V.

                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 178th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1509662

                 MEMORANDUM                         OPINION


      Appellant Jenifer Annette Cash pled guilty without an agreed sentencing
recommendation to reckless injury to an elderly person, a state jail felony. See Tex.
Penal Code Ann. § 22.04(a)(3), (f) (West 2011). At appellant’s punishment hearing,
a presentence investigation (PSI) report was admitted into evidence. The trial court
sentenced appellant to serve ten years in prison.
      Appellant challenges her conviction in two issues. In her first issue, appellant
contends the trial court abused its discretion when it overruled her hearsay objection
to portions of the PSI report. We overrule this issue because trial courts may
consider information in a PSI report that is hearsay. In her second issue, appellant
argues that the judgment incorrectly reflects the degree of the felony to which she
pleaded guilty. In response, the State admits appellant’s sentence is illegal. We
therefore reverse the trial court’s judgment as to punishment and remand for a new
punishment hearing.

                                   BACKGROUND

      The complainant is the 77-year-old former foster mother of appellant.
Appellant and the complainant got into an argument inside appellant’s car. When
the complainant got out of the car, appellant backed her car up and the open
passenger door knocked the complainant down, causing her injuries. Appellant was
charged with recklessly causing bodily injury to the complainant, a person at least
65 years old. Appellant entered an open plea of guilty. The trial court ordered the
preparation of a presentence investigation report. Once the report was completed,
the trial court conducted a punishment hearing. The PSI report was admitted into
evidence over appellant’s hearsay objection to a portion of that report. Both the
complainant and appellant testified during the hearing. At the end of the hearing,
the trial court sentenced appellant to serve ten years in prison. This appeal followed.

                                      ANALYSIS

I.    The trial court did not abuse its discretion when it overruled appellant’s
      hearsay objection.
      In her first issue, appellant argues that the trial court abused its discretion
when it overruled her hearsay objection to certain portions of the PSI report. We
review a trial court’s admission of evidence for an abuse of discretion. Corley v.

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State, 541 S.W.3d 265, 267 (Tex. App.—Houston [14th Dist.] 2017, no pet.). Under
an abuse-of-discretion standard, we will not disturb the trial court’s decision if the
ruling falls within the zone of reasonable disagreement. Id.

       A trial court’s ability to consider hearsay evidence in determining the
punishment to impose on a defendant is well grounded in precedent. As we have
explained, “the Court of Criminal Appeals has held that the PSI statute authorizes
trial courts to consider information in the PSI report that is hearsay.” State v. Hart,
342 S.W.3d 659, 676 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d) (citing
Fryer v. State, 68 S.W.3d 628, 631 (Tex. Crim. App. 2002)). Because a trial court
has authority to consider hearsay evidence, we hold that the trial court did not abuse
its discretion when it overruled appellant’s hearsay objection to the admission of a
portion of the PSI report. We overrule appellant’s first issue.1

II.    Appellant’s sentence is illegal.

       Appellant argues in her second issue that she pleaded guilty to a third-degree
felony, but the trial court’s judgment incorrectly reflects that appellant was convicted
of a second-degree felony. In response, the State points out that the trial court’s error
was actually more serious, as the offense to which appellant pleaded guilty is only a


       1
          Appellant also appears to argue in her brief that she received ineffective assistance of
counsel because her trial counsel failed to object to numerous other instances of hearsay evidence
in the PSI report. Because a trial court can consider hearsay evidence contained in a PSI report,
we conclude appellant has not shown that her trial counsel was ineffective for failing to object to
that admissible evidence. See Oliva v. State, 942 S.W.2d 727, 732 (Tex. App.—Houston [14th
Dist.] 1997, pet. dism’d) (“Trial counsel’s failure to object to admissible evidence does not
constitute ineffective assistance of counsel.”). Additionally, appellant seems to argue in her first
issue that the trial court’s consideration of hearsay evidence in the PSI report violates her rights
under the Confrontation Clause of the United States Constitution. See U.S. Const. amend. VI. We
conclude appellant failed to preserve this issue for appellate review because she did not object on
that basis in the trial court. See Bin Fang v. State, 544 S.W.3d 923, 930 (Tex. App.—Houston
[14th Dist.] 2018, no pet.) (stating that defendant’s “hearsay objections did not preserve error for
his complaint on appeal concerning the Confrontation Clause.”).

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state jail felony. The State contends that appellant’s sentence was therefore illegal
and asks this Court to reverse that sentence and remand the case to the trial court for
a new punishment hearing.

      An illegal sentence is one that is not authorized by law. See Ex parte Parrott,
396 S.W.3d 531, 534 (Tex. Crim. App. 2013). A sentence outside the range of
punishment authorized by law is considered illegal. Id.; Mizell v. State, 119 S.W.3d
804, 806 (Tex. Crim. App. 2003). Although an illegal sentence is not included
among the situations in which a judgment is void, an argument that a sentence is
illegal may be raised at any time. See Wright, 506 S.W.3d 478, 482 (Tex. Crim.
App. 2016) (“‘Illegal sentence’ was not one of the four situations listed.”); Ex parte
Rich, 194 S.W.3d 508, 513 (Tex. Crim. App. 2006) (“[T]here has never been
anything in Texas law that prevented any court with jurisdiction over a criminal case
from noticing and correcting an illegal sentence, no matter when or how the relief
was sought.” (internal quotation marks omitted)).

      According to the State, the parties believed appellant was pleading guilty to a
third-degree felony. The ten-year prison sentence that the trial court imposed on
appellant is within the range of punishment for a third-degree felony. See Tex. Penal
Code Ann. § 12.34 (West 2011). The State explains, however, that “the parties and
the trial court were mistaken about [the] degree of offense to which the appellant
pled guilty.” We agree.

      Appellant’s indictment alleged that appellant recklessly caused bodily injury
to an elderly person. This was the charge to which appellant judicially confessed.
When a defendant recklessly causes bodily injury, the offense is a state jail felony.
See Tex. Penal Code Ann. § 22.04(f) (“When the conduct is engaged in recklessly,
the offense is a state jail felony.”). A state jail felony is punishable by confinement
for not more than two years or less than 180 days and a fine not to exceed $10,000.

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See id. § 12.35.

       Appellant’s sentence to serve ten years in prison is outside the statutory
punishment range and is therefore illegal. Mizell, 119 S.W.3d at 806. In this
circumstance, the appropriate remedy is to reverse the judgment as to punishment
and remand the question of appellant’s punishment to the trial court. See id. at 805,
807.

                                   CONCLUSION

       We affirm the trial court’s judgment on guilt. Because the trial court imposed
an illegal sentence on appellant, we reverse the judgment as to punishment and
remand to the trial court for a new punishment hearing.




                                       /s/       J. Brett Busby
                                                 Justice



Panel consists of Justices Busby, Brown, and Jewell.
Do Not Publish — TEX. R. APP. P. 47.2(b).




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