                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                                    No. 07-12-00184-CR


                            NOE RANGEL NIAVEZ, APPELLANT

                                            V.

                            THE STATE OF TEXAS, APPELLEE

                          On Appeal from the 251st District Court
                                   Randall County, Texas
                 Trial Court No. 18,265-C, Honorable Ana Estevez, Presiding

                                      May 20, 2013

                             MEMORANDUM OPINION
                 Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


      Appellant Noe Rangel Niavez appeals the trial court’s revocation of his

community supervision and its judgment sentencing him to eight years confinement in

prison for felony driving while intoxicated.1 We will reverse and render in part and

remand with instructions.




      1
          See Tex. Penal Code Ann. §§ 49.04(a) & 49.09(b)(2) (West Supp. 2012).
                                        Background


       In September 2006, a Randall County grand jury indicted appellant for the

offense of driving while intoxicated, third offense, a felony. On October 23, 2008, the

trial court called appellant’s case for trial and appellant entered a guilty plea pursuant to

a plea bargain agreement. Appellant signed a stipulation of evidence and the court

found him guilty. By the plea agreement, the State recommended a sentence of four

years confinement in prison and a fine of $1500. The trial court accepted the State’s

recommendation and sentenced appellant accordingly. The record does not contain a

corresponding written judgment.


       Later that day, on the record in open court, the State made an oral motion for

new trial. It was granted without objection. Appellant waived reading the indictment.

As it did in the first trial, the court received appellant’s plea of guilty to the charged

offense, gave admonishments, and addressed the consequence of appellant’s

stipulation of the evidence and judicial confession. The court then examined a new plea

bargain agreement between appellant and the State requiring, among other things, a

guilty plea to the charged offense, a sentence of ten years confinement in prison

probated for four years, a fine of $1,500, confinement in a SAFPF2 program, and

incarceration until space in a SAFPF became available.           After further admonishing

appellant and learning he desired to accept the new agreement, the court accepted the

agreement, finding appellant guilty of the charged offense. Finding no reason not to

proceed with punishment, the court then sentenced appellant according to the terms of

       2
         SAFPF is a substance abuse felony punishment facility within the Texas
Department of Criminal Justice.  Rouse v. State, 300 S.W.3d 754, 758 n.6
(Tex.Crim.App. 2009).


                                              2
the new plea bargain. The record contains a conforming written judgment signed by the

trial court. No appeal was taken.


      Subsequently the State moved to revoke appellant’s community supervision. It

alleged appellant failed to comply with five conditions of the community supervision

order. Among the violations alleged was failure to attend and successfully complete an

outpatient treatment program.


      At the May 2012 hearing on the State’s motion, appellant plead “guilty” to each of

the violations of community supervision alleged. After hearing evidence, the trial court

sentenced appellant to eight years confinement in prison and a fine of $1,500.3


                                        Analysis


      Through a single issue on appeal appellant argues the trial court had no power to

grant the State’s motion for new trial and all resulting proceedings, including the eight-

year sentence imposed as a result of his violation of community supervision, are a

nullity. He asks that we reverse the judgment imposing the eight-year sentence of

confinement “and render a judgment for the original sentence of four . . . years, placing

appellant in the same position he was immediately after the original plea.” On May 15,

2013, the State filed a response confessing error. The State found “Appellant’s point of

error is well taken at established law and should be sustained.”




      3
        Additional background information may be found in our order of February 21,
2013 abating and remanding the case for appointment of new appellate counsel.
Niavez v. State, No. 07-12-00184-CR, 2013 Tex. App. Lexis 1770 (Tex.App.--Amarillo
Feb. 21, 2013, per curiam order) (mem. op., not designated for publication).


                                            3
       As a preliminary step, what appellant asks requires that we look back to his 2008

conviction and sentence rendered in the course of the new trial granted on the State’s

motion. Ordinarily, the validity of the original conviction, from which no appeal was

taken, is not reviewable in the appeal of a subsequent revocation order. Whetstone v.

State, 786 S.W.2d 361, 363 (Tex.Crim.App. 1990), overruled on other grounds by

Gollihar v. State, 46 S.W.3d 243, 249-50, 256-57 (Tex.Crim.App. 2001). An exception

does lie, however, for a void judgment.


       The void judgment exception recognizes that there are some rare
       situations in which a trial court’s judgment is accorded no respect due to a
       complete lack of power to render the judgment in question. A void
       judgment is a “nullity” and can be attacked at any time. If the original
       judgment imposing probation was void, then the trial court would have no
       authority to revoke probations, since, with no judgment imposing probation
       (because it is a nullity), there is nothing to revoke.
Nix v. State, 65 S.W.3d 664, 667-668 (Tex.Crim.App. 2001) (footnote omitted).


       But a judgment is void only in very rare situations—usually due to a lack of
       jurisdiction. In civil cases, a judgment is void only when there was “no
       jurisdiction of the parties or property, no jurisdiction of the subject matter,
       no jurisdiction to enter a particular judgment, or no capacity to act as a
       court.” This rule is essentially paralleled in criminal cases. A judgment of
       conviction for a crime is void when (1) the document purporting to be a
       charging instrument (i.e. indictment, information, or complaint) does not
       satisfy the constitutional requisites of a charging instrument, thus the trial
       court has no jurisdiction over the defendant, (2) the trial court lacks subject
       matter jurisdiction over the offense charged, such as when a
       misdemeanor involving official misconduct is tried in a county court at law,
       (3) the record reflects that there is no evidence to support the conviction,
       or (4) an indigent defendant is required to face criminal trial proceedings
       without appointed counsel, when such has not been waived, in violation of
       Gideon v. Wainwright. While we hesitate to call this an exclusive list, it is
       very nearly so.
Id. at 668. If the trial court had no jurisdiction to proceed to judgment after granting the

State’s motion for new trial, the resulting judgment is void and may be challenged in this

appeal.


                                             4
      A new trial means “the rehearing of a criminal action after the trial court has, on

the defendant’s motion, set aside a finding or verdict of guilt.” Tex. R. App. P. 21.1(a).

The procedural provisions governing motions for new trial in a criminal case require

strict compliance. Oldham v. State, 977 S.W.2d 354, 361 (Tex.Crim.App. 1998); see

Drew v. State, 743 S.W.2d 207, 223 (Tex.Crim.App. 1987).            A trial court has no

authority to grant a new trial in a criminal case on its own motion or the motion of the

State. Stone v. State, 931 S.W.2d 394, 396 (Tex.App.--Waco 1996, pet. refused) (court

may not grant new trial in criminal case on its own motion or on the motion of the State;

procedural provisions governing motion for new trial in a criminal trial must be complied

with for court to have jurisdiction to consider motion); 43A George B. Dix & John M.

Schmolesky, Texas Practice Series: Criminal Practice and Procedure § 50.3 (3d ed.

2011) (no authority to grant new trial on court’s own motion or the motion of the State).

All proceedings following an improperly granted motion for new trial are a nullity.

Zaragosa v. State, 588 S.W.2d 322, 326-27 (Tex.Crim.App. 1979) (new trial in a

criminal case may be granted only on motion of defendant; court’s lack of authority to

order new trial sua sponte made a nullity of the second trial and conviction, under

former Code of Criminal Procedure Articles 40.02 & 40.03); Harris v. State, 958 S.W.2d

292, 293 (Tex.App.--Fort Worth 1997, pet. refused) (following Zaragosa); see also

Freeman v. State, 917 S.W.2d 512, 514 (Tex.App.--Fort Worth 1996, no pet.) (motion of

State treated as motion for new trial, hearing on State’s motion was a nullity). Based on

these authorities, we conclude the trial court had no power to render judgment following

the grant of the State’s motion for new trial.4    Therefore, under the void judgment



      4
          Because the appellate record contains a complete reporter’s record of the


                                            5
exception, we may address appellant’s issue. Nix, 65 S.W.3d at 668. And, because the

2008 judgment imposing probation was void, the trial court had no authority in May

2012 to revoke appellant’s community supervision and impose a sentence of

confinement and a fine. Appellant’s issue is sustained.


                                      Conclusion


      We reverse and render judgment vacating the trial court’s judgment and

sentence of October 23, 2008, sentencing appellant to ten years confinement and fining

him $1,500 probated to four years community supervision and a fine of $1,500. We

likewise reverse and render judgment vacating the trial court’s judgment and sentence

of May 1, 2012, revoking appellant’s community supervision and sentencing him to eight

years confinement and fining him $1,500. We remand the case to the trial court with

instructions to reinstate the original judgment of October 23, 2008, sentencing appellant

to four years confinement and fining him $1,500. The trial court on remand shall also

prepare and sign a conforming written judgment and complete any ministerial or

administrative acts necessary to carry appellant’s punishment into execution as though

the State’s motion for new trial had not been granted. Tex. Code Crim. Proc. Ann. art.

42.01, § 1 (West Supp. 2012) (judgment) & art. 42.02 (West 2006) (sentence).




October 23, 2008 proceedings, before and after the State’s motion for new trial, the
record before us leaves “no question about the existence” of the defect in the
proceedings resulting in the void judgment. See Nix, 65 S.W.3d at 668.


                                           6
      We dispense with the clerk’s notice requirement of appellate rule 39.8. Tex. R.

App. P. 39.8 and 2. Our mandate will issue forthwith.




                                               James T. Campbell
                                                  Justice


Do not publish.




                                           7
