                                   NO. 12-18-00096-CR

                           IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                        TYLER, TEXAS

 TIMOTHY CRAIG BAILEY,                           §      APPEAL FROM THE 3RD
 APPELLANT

 V.                                              §      JUDICIAL DISTRICT COURT

 THE STATE OF TEXAS,
 APPELLEE                                        §      ANDERSON COUNTY, TEXAS

                                   MEMORANDUM OPINION
       Timothy Craig Bailey appeals his conviction for evading arrest or detention with a vehicle,
for which he was sentenced to imprisonment for twenty-five years. In two issues, Appellant argues
that his sentence is grossly disproportionate to the crime of which he was convicted and the trial
court failed properly to admonish him with regard to enhancement allegations. We reverse and
remand.


                                          BACKGROUND
       Appellant was charged by indictment with evading arrest or detention with a vehicle. The
State later gave notice of its intent to submit to the factfinder that Appellant previously was
convicted of two felonies––burglary of a habitation and manufacture or delivery of between one
and four grams of a controlled substance in Penalty Group 1. Appellant pleaded “not guilty,” and
the matter proceeded to a jury trial.
       Ultimately, the jury found Appellant “guilty” as charged. At his trial on punishment,
Appellant pleaded “true” to the enhancement allegations, and the jury assessed his punishment at
imprisonment for twenty-five years. The trial court sentenced Appellant accordingly, and this
appeal followed.
                                                ILLEGAL SENTENCE
         In his first issue, Appellant argues that the sentence imposed by the trial court amounts to
cruel and unusual punishment. However, in our analysis of Appellant’s first issue, we have
discovered a related subissue pertaining to the legality of Appellant’s sentence. We first will
consider that portion of Appellant’s first issue. See TEX. R. APP. P. 38.1(f) (statement of issue will
be treated as covering every subsidiary question that fairly is included); see also McClure v. State,
648 S.W.2d 667, 670 (Tex. Crim. App. [Panel Op.] 1982) (unassigned error may be considered in
the interest of justice).
         A sentence that is outside the maximum or minimum range of punishment is unauthorized
by law and, therefore, is illegal and void. See Mizell v. State, 119 S.W.3d 804, 806, n.7 (Tex.
Crim. App. 2003); see also Speth v. State, 6 S.W.3d 530, 532–33 (Tex. Crim. App. 1999) (“a
defendant has an absolute and nonwaiveable right to be sentenced within the proper range of
punishment established by the Legislature”). Nothing in Texas law ever has prevented a court with
jurisdiction over a criminal case from noticing and correcting an illegal sentence. See Mizell, 119
S.W.3d at 806.
         In the case at hand, Appellant was convicted of evading arrest or detention with a vehicle,
a state jail felony. See TEX. PENAL CODE ANN. § 38.04(a), (b)(1)(B) (West 2016).1 Considering
the two enhancement allegations to which Appellant pleaded “true,” the range of punishment for
the offense is two to twenty years. See id. §§ 12.33(a) (West 2011), 12.425(b) (West Supp. 2018).
         Thus, since Appellant was found guilty of a state jail felony, which was enhanced to a
second degree felony, his twenty-five year sentence is outside the applicable range of punishment.
See id. §§ 12.33(a), 12.425(b), 38.04(a), (b)(1)(B). Accordingly, we hold that the trial court erred
by pronouncing an illegal sentence. See Mizell, 119 S.W.3d at 806; Speth, 6 S.W.3d at 532–33.
Appellant’s first issue is sustained in part.2




         1
           It is apparent from the record that the parties mistakenly believed Appellant was charged with a third degree
felony. However, neither the indictment, the evidence presented at trial, nor the court’s charge indicate that Appellant
previously was convicted under Section 38.04 or that another person suffered serious bodily injury as a direct result
of an officer’s attempt to apprehend Appellant as he fled. See, e.g., TEX. PENAL CODE ANN. § 38.04(b)(2).
         2
            As a result of our disposition of this part of Appellant’s first issue, we do not consider the remainder of his
first issue or his second issue. See TEX. R. APP. P. 47.1.


                                                            2
                                                   DISPOSITION
         Having sustained Appellant’s first issue in part, we reverse the trial court’s judgment to
the extent it imposed an illegal sentence and remand the cause to the trial court for a new
punishment hearing consistent with this opinion.



                                                                 JAMES T. WORTHEN
                                                                    Chief Justice



Opinion delivered December 12, 2018.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)




                                                          3
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                        DECEMBER 12, 2018


                                         NO. 12-18-00096-CR


                                   TIMOTHY CRAIG BAILEY,
                                           Appellant
                                              V.
                                     THE STATE OF TEXAS,
                                           Appellee


                                  Appeal from the 3rd District Court
                     of Anderson County, Texas (Tr.Ct.No. 3CR-17-33121)

                       THIS CAUSE came to be heard on the appellate record and the briefs filed
herein, and the same being considered, because it is the opinion of this court that there was error
in the judgment of the court below, it is ORDERED, ADJUDGED and DECREED by this court
that the judgment be reversed to the extent it imposed an illegal sentence and the cause remanded
to the trial court for a new punishment hearing in accordance with the opinion of this court; and
that this decision be certified to the court below for observance.
                    James T. Worthen, Chief Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
