                                      NO. 12-13-00312-CR

                             IN THE COURT OF APPEALS

                 TWELFTH COURT OF APPEALS DISTRICT

                                         TYLER, TEXAS

RICHARD KING MORRIS,                                  §       APPEAL FROM THE 173RD
APPELLANT

V.                                                    §       JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                              §       HENDERSON COUNTY, TEXAS

                                      MEMORANDUM OPINION
       Richard King Morris appeals his conviction for felony driving while intoxicated, for
which he was sentenced to imprisonment for life. In one issue, Appellant argues that the trial
court’s judgment is void for classifying the offense as a first degree felony. We affirm.

                                              BACKGROUND
       Appellant was charged by indictment with driving while intoxicated (DWI).               The
indictment alleged that Appellant had two prior DWI convictions, thereby resulting in the
charged offense’s being a third degree felony.1 The indictment further alleged that Appellant had
two other prior felony convictions. As a result, Appellant faced a potential range of punishment
of twenty-five to ninety-nine years or life.2
       Prior to trial, Appellant reached a plea agreement with the State whereby he agreed to
plead ―guilty.‖ In return, the State agreed to amend the indictment to charge Appellant with
―first degree felony‖ DWI and to cause whatever sentence the jury assessed against Appellant to
run concurrently to his parole. As a result of this agreement, Appellant faced a potential range of



       1
           See TEX. PENAL CODE ANN. § 49.09(b)(2) (West Supp. 2014).
       2
           See TEX. PENAL CODE ANN. § 12.42(d) (West Supp. 2014).
punishment of five to ninety-nine years or life.3 The trial court granted the State’s motion to
amend the indictment4 and admonished Appellant on the range of punishment for a first degree
felony prior to accepting his ―guilty‖ plea as well as his pleas of ―true‖ to the enhancement
allegations.
         The matter proceeded to a jury trial on punishment.                   Ultimately, the jury assessed
Appellant’s punishment at imprisonment for life.                    The trial court sentenced Appellant
accordingly, and this appeal followed.


         ESTOPPEL ON APPEAL RESULTING FROM ACCEPTING BENEFIT OF PLEA BARGAIN
         In his sole issue, Appellant argues that the charge against him was erroneously enhanced
to a first degree felony, a classification that does not exist for driving while intoxicated, and is,
therefore, void. The State argues that Appellant should be estopped on appeal from complaining
about the classification of his conviction because he enjoyed the benefit of the plea bargain,
namely, the jury’s being able to consider a broader range of punishment on the lower end of the
range.
         A defendant has an absolute and nonwaivable right to be sentenced within the proper
range of punishment established by the legislature. Mapes v. State, 187 S.W.3d 655, 660 (Tex.
App.–Houston [14th Dist.] 2006, pet. ref’d). However, even if a defendant cannot waive this
right, the doctrine of invited error may estop him from asserting it on appeal. See Mapes, 187
S.W.3d 655; Ex parte Shoe, 137 S.W.3d 100, 102 (Tex. App.–Fort Worth 2004), pet. dism’d,
235 S.W.3d 782.
         In Shoe, the appellant was convicted of DWI in 1997 pursuant to a plea bargain
agreement. See id. at 100. The trial judge sentenced the appellant to confinement for forty days
but failed to impose a mandatory minimum fine. See id. In 2002, the appellant applied for a writ
of habeas corpus, arguing that his 1997 conviction was void because the punishment fell below
the minimum statutory requirement. See id. The trial court denied the appellant’s application for
habeas corpus.         See id.   The court of appeals held that the appellant was estopped from


         3
             TEX. PENAL CODE ANN. § 12.32(a) (West 2011).
         4
           It is unclear how this amendment resulted in Appellant’s being charged with a first degree felony since
the amended indictment contains substantially the same allegations as the initial indictment. Nonetheless, the trial
court and the parties thereafter operated as if Appellant had been charged with a first degree felony.


                                                         2
challenging the void 1997 conviction because he had accepted the benefit of the lesser sentence
when he entered into the plea bargain agreement and benefited by not having to pay the fine. See
id. at 102.
         In the instant case, Appellant benefited from his plea bargain in that the jury was
permitted to consider a broader range of punishment on the lower end of that range than it was
legally entitled to consider. Appellant should not now be permitted to challenge the judgment of
conviction for a first degree felony––the bargained-for benefit he received—because the life
sentence imposed now makes the first degree classification of his conviction less appealing to
him.5 See Mapes, 187 S.W.3d at 660; Shoe, 137 S.W.3d at 102–03. Accordingly, we hold that
Appellant is estopped from challenging the trial court’s judgment for a first degree felony
because he accepted the benefits of that classification. Appellant’s sole issue is overruled.


                                                    DISPOSITION
         Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.

                                                                         SAM GRIFFITH
                                                                            Justice

Opinion delivered August 29, 2014.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                              (DO NOT PUBLISH)



         5
          We note that Appellant’s life sentence is within the range of punishment for a third degree felony DWI
with two felony enhancements as alleged in the indictment. See TEX. PENAL CODE ANN. §§ 12.42(d), 49.09(b)(2).


                                                           3
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                            JUDGMENT

                                           AUGUST 29, 2014


                                          NO. 12-13-00312-CR


                                     RICHARD KING MORRIS,
                                            Appellant
                                               V.
                                      THE STATE OF TEXAS,
                                            Appellee


                                 Appeal from the 173rd District Court
                        of Henderson County, Texas (Tr.Ct.No. C-20,076)

                        THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                        It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
                    Sam Griffith, Justice.
                    Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
