                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-09-00170-CR

JOSE SILVERIO LUGO,
                                                          Appellant
v.

THE STATE OF TEXAS,
                                                          Appellee



                          From the 278th District Court
                             Walker County, Texas
                             Trial Court No. 24229


                     MEMORANDUM OPINION ON
                PETITION FOR DISCRETIONARY REVIEW


       Jose Silverio Lugo appeals from a conviction for violating a protective order

pursuant to Texas Penal Code Section 25.07. TEX. PEN. CODE ANN. § 25.07 (Vernon

2003). The trial court assessed punishment at confinement for eight (8) years in the

Texas Department of Criminal Justice – Institutional Division. See TEX. PEN. CODE ANN.

§ 25.07(g).

       On original submission, this Court affirmed the judgment. See Lugo v. State, No.

10-09-00170-CR, 2009 Tex. App. LEXIS 9823 (Tex. App.—Waco Dec. 30, 2009).           As
authorized by Rule of Appellate Procedure 50, we issue this modified opinion within

sixty days after Lugo filed his petition for discretionary review. TEX. R. APP. P. 50. On

reconsideration of the issues presented, we will reverse the judgment, remand this

cause to the trial court for a new trial on punishment, and withdraw our prior opinion

and judgment. Id.

        Lugo complains that the trial court lacked subject matter jurisdiction over the

cause because the indictment as alleged failed to state a felony offense, and, in the

alternative, that his sentence is illegal because he was convicted of a misdemeanor

offense and sentenced to felony punishment.        We hold that complaints about the

indictment must be raised prior to the empaneling of the jury. We also hold that the

sentence imposed is illegal because Lugo was convicted for the misdemeanor offense of

violation of a protective order but sentenced to third degree felony punishment.

Therefore, the judgment of the trial court is modified to show that Lugo was convicted

for the misdemeanor offense of violation of a protective order, reversed in part, and

remanded in part to the trial court for a new trial on punishment.

Subject Matter Jurisdiction

        In his first issue, Lugo complains that the district court lacked subject matter

jurisdiction over this cause because the indictment did not allege a felony offense, but

merely a misdemeanor offense. Lugo did not object to the indictment prior to trial. In

1985, Section 1.14(b) of the Code of Criminal Procedure was amended to require that all

defects in indictments, whether of form or substance, must be objected to prior to

empaneling the jury in order to preserve the objection for appeal. See TEX. CODE CRIM.

Lugo v. State                                                                      Page 2
PROC. ANN. § 1.14(b) (Vernon 2005). The Texas Court of Criminal Appeals has held that

this extends to matters of subject matter jurisdiction in instances such as this, where it is

evident from the face of the indictment that the State intended to charge him with a

felony offense. See Kirkpatrick v. State, 279 S.W.3d 324, 329 (Tex. Crim. App. 2009) (citing

Teal v. State, 230 S.W.3d at 182 (Tex. Crim. App. 2007)). Further, Lugo’s application for

probation filed with the trial court indicates his understanding that he was on trial for a

third degree felony.      We find that Lugo waived any complaint regarding the

defectiveness of the indictment by failing to bring his objection to the attention of the

trial court. See TEX. CODE CRIM. PROC. ANN. § 1.14(b); see also Kirkpatrick, 279 S.W.3d at

329. Lugo’s first issue is overruled.

Illegal Sentence

        In his second issue, Lugo argues that his sentence is void because it imposes

felony punishment for a misdemeanor conviction. See Ex parte McIver, 586 S.W.2d 851,

854 (Tex. Crim. App. [Panel Op.] 1979) (holding that when statute authorized jury to

recommend probation as to a period of confinement and impose a fine, a sentence that

did the opposite by assessing confinement and recommending probation of a fine was

deemed void). Lugo was sentenced to imprisonment for eight (8) years, which is within

the range of punishment for a third degree felony offense. See TEX. PEN. CODE ANN. §

12.34 (Vernon 2003).

The Jury Charge

        The charge to the jury set forth the following instructions:



Lugo v. State                                                                          Page 3
        A person commits an offense if in violation of a Protective Order, a copy
        of which was given to the person, the person knowingly or intentionally
        commits an act in furtherance of the offense of stalking.

        A person commits the offense of stalking if the person, on more than one
        occasion and pursuant to the same scheme or course of conduct that is
        directed specifically at another person, knowingly engages in conduct,
        including following the other person, that the actor knows or reasonably
        believes the other person will regard as threatening bodily injury or death
        or that an offense will be committed against the other person’s property;
        and would cause a reasonable person to fear bodily injury or death for
        herself or that an offense will be committed against the person’s
        property.”

        The application paragraph stated:

        “Now, bearing in mind the foregoing instructions, if you find from the
        evidence beyond a reasonable doubt that … the defendant, Jose Silverio
        Lugo, did intentionally or knowingly commit an act, to wit: violate the
        terms of a Protective Order which had been served upon the defendant
        and further did intentionally or knowingly commit an act in furtherance
        of the offense of stalking as defined herein, you will find the defendant
        guilty as charged in the indictment.

        A violation of a protective order is a class A misdemeanor unless, at trial, it is

shown that Lugo violated the order by committing the offense of stalking, which

promotes the offense a third degree felony. TEX. PEN. CODE ANN. § 25.07(g) (Vernon

2005). While the charge properly defined the offense of stalking, it did not seek or

require a finding that Lugo actually committed the offense of stalking, merely that he

committed an act in furtherance of the offense of stalking. These findings are not the

same. Thus, the charge alleged and sought a conviction for a class A misdemeanor

offense only. TEX. PEN. CODE ANN. § 25.07(g). The range of punishment for a class A

misdemeanor offense is a fine up to $4,000, confinement in a county jail for a period not




Lugo v. State                                                                         Page 4
to exceed one year, or a combination of both a fine and confinement. TEX. PEN. CODE

ANN. § 12.21 (Vernon 2005). Lugo was sentenced to imprisonment for eight years.

        The Court of Criminal Appeals has consistently held that a sentence outside the

proscribed punishment range is void and illegal. See, e.g., Mizell v. State, 119 S.W.3d 804,

806 & n.7 (Tex. Crim. App. 2003) (citing cases from 2002, 2001, 1996, and 1979). An

illegal sentence “has no legal effect.”      Id. at 806.    Lugo has “an absolute and

nonwaiveable right to be sentenced within the proper range of punishment established

by the Legislature.” Speth v. State, 6 S.W.3d 530, 532-33 (Tex. Crim. App. 1999). Because

Lugo’s sentence is clearly outside of the proscribed range of punishment for the offense

for which he was convicted, his sentence is illegal and therefore, void. We sustain

Lugo’s second issue. Accordingly, we must reverse the trial court’s judgment and

remand this cause for a new punishment trial.

Conclusion

        We find that any complaint regarding Lugo’s indictment was required to be

raised to the trial court prior to the empaneling of the jury. However, we find that the

charge to the jury alleged only a misdemeanor offense for which Lugo was convicted

and therefore, his eight-year sentence was illegal and void. Accordingly, we reverse the

judgment of the trial court and remand this cause for a new punishment trial.




                                          TOM GRAY
                                          Chief Justice



Lugo v. State                                                                         Page 5
Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Reversed and remanded
Opinion delivered and filed April 28, 2010
Do not publish
[CR25]




Lugo v. State                                Page 6
