                                 NO. 12-14-00114-CR

                         IN THE COURT OF APPEALS

                TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS

DAVID LUKE FORRESTER,                          §      APPEAL FROM THE 159TH
APPELLANT

V.                                             §      JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                       §      ANGELINA COUNTY, TEXAS

                                 MEMORANDUM OPINION
       David Luke Forrester appeals his convictions for possession of child pornography and
online solicitation of a minor. He raises one issue on appeal. We reverse and remand with
instructions.


                                        BACKGROUND
       On November 2, 2012, an Angelina County grand jury returned a six count indictment
against Appellant. The indictment alleged that Appellant committed four counts of aggravated
sexual assault of a child, one count of possession of child pornography, and one count of online
solicitation of a minor. Pursuant to a plea bargain, the State dismissed counts one through four
of the indictment (aggravated sexual assault of a child), and Appellant pleaded guilty to counts
five and six (possession of child pornography and online solicitation of a minor). There was no
agreement on punishment and a presentence investigation was conducted. On February 18,
2014, the trial court conducted a sentencing hearing.     On count five (possession of child
pornography), the trial court assessed punishment at ten years of imprisonment. On count six
(online solicitation of a minor), the trial court assessed punishment at twenty years of
imprisonment. The trial court then ordered the sentences to run consecutively. This appeal
followed.
                                        LEGALITY OF PUNISHMENT
       In his sole issue on appeal, Appellant contends that the trial court erred by ordering his
sentences to run consecutively. Appellant argues that his convictions arose from the same
criminal episode, and therefore do not fall under any of the exceptions listed in Texas Penal
Code Section 3.03, which authorizes consecutive sentences. But Appellant’s sentence for online
solicitation of a minor is based on a statutory subsection that has been declared unconstitutional.1
Therefore, we must first determine whether Appellant bargained for a legal sentence in return for
the State’s dismissal of four counts of aggravated sexual assault of a child.
Standard of Review and Applicable Law
       A plea bargain is a contract between the state and the defendant. Ex parte De Leon, 400
S.W.3d 83, 89 (Tex. Crim. App. 2013). When both parties have knowingly and voluntarily
entered into a plea bargain, they are bound by the terms of that agreement once it is accepted by
the trial judge. Moore v. State, 295 S.W.3d 329, 331 (Tex. Crim. App. 2009). But where the
parties bargain for an illegal sentence, the appropriate remedy is to return them to the positions
they occupied prior to the plea bargain agreement. See Ex parte Beck, 922 S.W.2d 181, 182
(Tex. Crim. App. 1996); see also Ex parte De Leon, 400 S.W.3d at 90 (holding that if specific
performance of plea agreement is not possible, appropriate remedy is “withdrawal of the plea,
with both parties, including the State, returned to their original positions”) (citing Shannon v.
State, 708 S.W.2d 850, 852 (Tex. Crim. App. 1986)). An illegal sentence is one that is not
authorized by law. See Mizell v. State, 119 S.W.3d 804, 806 n. 7 (Tex. Crim. App. 2003).
Discussion
       Appellant pleaded guilty to counts five and six of the indictment in return for the State’s
dismissal of counts one through four. Count six of the indictment alleged that, on or about
August 6, 2012, Appellant


       did then and there, being a person who was 17 years of age or older, with the intent to arouse or
       gratify the sexual desire of the defendant or John Doe, a pseudonym, intentionally communicate
       by text message in a sexually explicit manner, to-wit: by referring to oral deviate sexual
       intercourse or anal deviate sexual intercourse, with John Doe, a pseudonym, an individual younger
       than 14 years of age[.]



       1
           See Ex parte Lo, 424 S.W.3d 10, 20 (Tex. Crim. App. 2013).


                                                       2
        The indictment tracks the language of Section 33.021(b) of the penal code. See TEX.
PENAL CODE ANN. § 33.021(b) (West 2011).2 On October 30, 2013, the court of criminal appeals
held that Section 33.021(b) is unconstitutional. See Ex parte Lo, 424 S.W.3d 10, 20 (Tex. Crim.
App. 2013). Appellant pleaded guilty on December 3, 2013. Thus, when Appellant pleaded
guilty to count six, he pleaded guilty to a crime that did not exist. See Ex parte Chance, 439
S.W.3d 918, 919 (Tex. Crim. App. 2014) (Cochran, J., concurring); Reyes v. State, 753 S.W.2d
382, 383 (Tex. Crim. App. 1988) (“[A]n unconstitutional statute in the criminal area is to be
considered no statute at all.”) (citing Hiett v. U.S., 415 F.2d 664, 666 (5th Cir. 1969), cert. den.
397 U.S. 936, 90 S. Ct. 941, 25 L. Ed. 2d 117).
        Neither Appellant nor the State raised an issue in this appeal regarding the legality of
Appellant’s sentence pursuant to their plea agreement. Nevertheless, an appellate court “may
always notice and correct an illegal sentence” if it otherwise has jurisdiction over a criminal
conviction. Mizell, 119 S.W.3d at 806. We have jurisdiction in this case. See TEX. R. APP. P.
25.2(a)(2).
        At the time Appellant entered into the plea agreement and pleaded guilty, a conviction
and sentence under Section 33.021(b) of the penal code was unauthorized by law. See Ex parte
Lo, 424 S.W.3d at 20; Mizell, 119 S.W.3d at 806 n. 7 (Tex. Crim. App. 2003). Thus, the parties
bargained for an illegal sentence. See Ex parte Beck, 922 S.W.2d at 182. The appropriate
remedy is to return both parties to their original pre-plea positions. See Ex parte De Leon, 400
S.W.3d at 91; Ex parte Beck, 922 S.W.2d at 182. Therefore, we do not address whether
Appellant’s sentences should be cumulated because the issue is moot. See TEX. R. APP. P. 47.1.




        2
            Section 33.021(b) provides as follows:

        A person who is 17 years of age or older commits an offense if, with the intent to arouse or gratify
        the sexual desire of any person, the person, over the Internet, by electronic mail or text message or
        other electronic message service or system, or through a commercial online service, intentionally:

            (1) communicates in a sexually explicit manner with a minor; or

            (2) distributes sexually explicit material to a minor.

TEX. PENAL CODE ANN. § 33.021(b) (West 2011).


                                                            3
                                                   DISPOSITION
         Having found error in the judgment, we reverse the trial court’s judgment and remand
the cause to the trial court with instructions to dismiss count six of the indictment. See Ex parte
Lo, 424 S.W.3d at 27; Ex parte Beck, 922 S.W.2d at 182.


                                                                 BRIAN HOYLE
                                                                    Justice


Opinion delivered March 18, 2015.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)



                                                          4
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                           MARCH 18, 2015


                                         NO. 12-14-00114-CR


                                   DAVID LUKE FORRESTER,
                                          Appellant
                                             V.
                                    THE STATE OF TEXAS,
                                           Appellee


                                Appeal from the 159th District Court
                        of Angelina County, Texas (Tr.Ct.No. 2012-0589)

               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 and the cause remanded to the trial court with instructions to dismiss
count six of the indictment; and that this decision be certified to the court below for observance.
                    Brian Hoyle, Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
