OPINION
Appellant, Dallas Lowell Baker, appeals from his two convictions for online solicitation of a minor under section 33.021 of the Texas Penal Code. After finding appellant guilty of both offenses, the jury assessed appellant’s punishment for one offense at five years confinement in the institutional division of the Texas Department of Corrections. For the other offense, the jury assessed punishment at five years confinement in a state jail facility and a $10,000 fine and recommended that appellant be placed on community supervision and the fine probated. In a single issue on appeal, appellant contends the sentence of five years for a state jail felony is void and illegal. On that basis, he prays for reversal and remand for a new punishment *925 hearing on both convictions. We reverse and remand for a new punishment hearing only regarding the state jail felony conviction. We affirm the other conviction and punishment.
Discussion
The parties are well-acquainted with the facts of this case, so we will not recount them here. The jury charge on punishment in cause number 1148754 informed the jury that the offense was a felony punishable by between two years and twenty years in the Institutional Division of the Texas Department of Corrections plus a fine of up to $10,000. The jury assessed five years’ incarceration as punishment, and the judge pronounced and entered judgment in keeping with the jury’s assessment. In cause number 1148755, the charge on punishment informed the jury that the offense was a state jail felony, punishable by between 180 days and two years in a state jail facility plus a fine of up to $10,000. The jury assessed five years and a $10,000 fine as punishment but recommended that appellant be placed on community supervision and the fine probated. After the trial judge orally pronounced sentence in keeping with the two verdicts and dismissed the jury, the judge entered a written judgment listing the sentence in cause number 1148755 as two years (instead of the jury-assessed five years) in a state jail facility plus a $10,000 fine, with community supervision and probation for five years. 1
In his brief, appellant argues that the jury’s assessment, as well as the trial court’s oral pronouncement, of five years incarceration as punishment for the state jail felony was void and illegal because it was outside the statutory range for state jail felonies.
See
Tex. Penal Code Ann. § 12.85(a) (providing that a state jail felony is generally punishable by confinement for a term of not more than two years or less than 180 days);
Mizell v. State,
In response, the State argues that a void or illegal sentence was not imposed in cause number 1148755 because, in fact, no sentence was imposed in that cause; instead, the jury recommended and the trial court granted community supervision of the state jail term and probation of the fine. According to the State, because community supervision and probation operated to suspend imposition of the sentence, no sentence was actually imposed, and nothing void or illegal occurred. 3
We agree with appellant’s first two arguments — that the jury’s assessment and the trial court’s pronouncement of five years incarceration for the state jail felony was void as being outside the statutory range and that the trial court and this court are without authority to correct the error by reformation of the sentence. As a consequence, we reject the State’s argument that the grant of community supervision abrogates any illegality. The Court of Criminal Appeals has consistently held that a sentence outside the proscribed punishment range is void and illegal.
See, e.g., Mizell,
Contrary to the State’s suggestion otherwise, when a sentence includes an unauthorized punishment, it is not the imposition of the sentence that is void and illegal, it is the sentence itself.
See Mizell,
Lastly, we turn to appellant’s contention that the uncertainty generated by the void and illegal sentence in cause number 1148755 warrants a new punishment trial in both cause number 1148755 and cause number 1149754. We disagree. Nothing in the record suggests jury confusion regarding cause number 1149754. The punishment assessed in that cause was within the statutory range, even on the low end. The fact that the jury did not recommend community supervision in cause number 1149754, while it did in cause number 1149755, indicates separate consideration of each cause. We find no basis in the record for reversal of the judgment in cause number 1149754.
See Splawn v. State,
We reverse the trial court’s judgment in cause number 1148755 and remand that cause for a new punishment trial. We affirm the trial court’s judgment in cause number 1149754.
Notes
. It should be noted that appellant was charged and convicted under a prior version of section 33.021. See Act of June 18, 2005, 79th Leg., R.S., ch. 1273, § 1, 2005 Tex. Gen. Laws 4049, 4050. The current version does not impose any penalty less than a third degree felony (i.e., state jail felony punishment is no longer an option). Tf.x. Penal Code Ann. § 33.021.
. In support of this latter contention, appellant cites principally
Splawn v. State,
. In support of its argument, the State cites
Green v. State,
. Although we have found no other cases addressing the specific argument raised here by the State, reasoning by other courts has held consistent with our conclusion. In
State v. Marroquin,
the Amarillo Court of Appeals reversed and remanded for a new punishment hearing because the sentence was outside the range of punishment, even though the sentence had been suspended and the defendant placed on community supervision.