*1 WRIGHT, Jr., Appellant Melvin Sir Texas STATE

NO. PD-1137-15 Appeals of Texas.

Court Criminal 5, 2016 October

Delivered: *2 jail felony.2

state offense be could punished degree felony if were it shown the defendant previ- that had -been ously failing convicted of to register as a offender,3 sex heading and the of the in- charge dictment listed as “FAIL REG F3,” SEX ENH OFFEND but the indict- did include such paragraph, and the did not State serve a separate pleading making allega- such an tion.4 Hendrickson, Nanette for Melvin Sir plea hearing, At the the trial'court

Wright, Jr. appellant formed that charged he was Yeatts, Shelly O’Brien for of Tex- State register a sex offender and as. that the degree offense was a third felony, carrying range punishment P.J., KELLER, opinion delivered years in penitentiary optional MEYERS, KEASLER, in Court which fíne $10,000. Appellant pled exceed HERVEY, YEARY, RICHARDSON and guilty this charge. plea JJ., papers con- joined. paragraph tained a waiver which On direct from the revocation stated, hereby lant my “I waive right be “regular” community supervision, appel- indictment, tried on an grand returned lant contended that his sentence ille- errors, jury- defects, [and] all us, gal. appellant Before that contends irregularities, whether form sub- of appeals in applying erred the ha- stance, in charging instrument.” beas harm from Ex parte Par- rott1 to his case During testimony, appellant acknowl- reject appellant’s complaint il- his edged problem he “had a that this legal-sentence claim direct 20Ó8,” already once back in “al- proceeding was a collateral ready problems jus- had with the criminal attack on the from the system failing comply tice with [his] plea proceeding. Consequently, affirm sex requirements,” offender and that he of appeals. had “been trouble before with this closing arguments, case.” defense coun- I. BACKGROUND acknowledged appellant sel “no Proceedings

A. Trial once, good failing reason for let mercy alone twice” but asked Appellant failing reg- was indicted for Stating client.' appellant “failed to do allegations ister as a sex offender. The twice, the indictment back here a time” with Article second arid that conformed 62.102(b)(1), time,” anything made the offense a he learn “didn’t last (Tex. 1. 396 S.W.3d 531 Brooks v. ("prior Crim.App.1997) convictions used as 62.102(b)(1). 2. See Tex. Code Crim. Proc. form, pled enhancements must some but indictment"). they pled not be need 62.102(c). 3. See id. art. conviction, plead prior trial true to a prosecutor urged the court to sen- he did not penitentiary. prove to the and the State did appellant dispute conviction.8 did convicted The trial court be within that his sentence would felony. degree as a third failing register, if a *3 years a sentence of court assessed pled were and failure the prison suspended imposition but proved purposes, and he appellant on commu- placed sentence and that he fact such a dispute did years. nity Appellant for five supervision prior conviction.9 complaint hearing at the about made no felon, being degree third sentenced appeals The court of observed that his and he did not revoking probation is from an order generally propriety limited to the filed a later motion to revoke State not include a revocation and does review community supervision. Appellant pled But, conviction.10 motion, allegations true in the to the “a sentence outside the revoked commu- trial court punishment is void and be chal- nity The court supervision.5 reduced held, at lenged any time.”11The court how- years lant’s from ten sentence five ever, that must show that his revocation years.6 hearing, appel- At the “actually illegal” sentence was and that a complain being lant about sen- did only actually illegal sentence “the degree felon. tenced unavailable for was enhance- Appeal B. ment.”12 found that neither The court complaint State’s pro- about the appealed complaint vide nor about notice defects asserted prior the evidence show convic- period it exceeded the of confine- because tion jail could not be used enhance his felony, ment for a state allowed punishment.13 ap- The court concluded that years.7 was He that his contended pellant that his should not en- failed to show have been sentence degree illegal.14 illegal-sentence was to third the indict- its discus- hanced sion, allege prior parte the court of cited Ex did given a otherwise notice of Parrott and Ex Rich15 several times *1-2, App. State’s second re- 5. This was the motion to id. 2015 Tex. LEXIS 8161 proceedings on the mo- voke. In State’s first at *4. revoke, tion to the al- found legations but chose true to continue See id. appellant's supervision. community 10. Id. 42.12, 23(a) § 6. See Code Crim. Proc. Tex. ("the judge may ... reduce the Id. term of con- originally any finement assessed to term of *2, 12. Id. pre- App. confinement not less than minimum 2015 Tex. LEXIS 8161 at offense of which scribed for the the defendant *5. convicted.”). 13. Id. 05-14-00641-CR, Wright No. *1, 2015 14. Id. App. 2015 WL 4628189 Tex. LEXIS 4, 2015) (Tex.App.—Dallas August 8161. *3 (not designated 15. 194 S.W.3d 508 publication), initial as “see” and cites.16 assessment of sentence but also of “cf.” his “final at his sentence revocation hear- II. ANALYSIS ing,” but defect he claims is the In Ex we held that initial assessment of sentence at the time who community supervision imposed. He illegal-sentence raises an claim must show not claim new impo- does defect appli harm.17 Harm is not shown if the upon sition of sentence revocation. The history supply cant’s actual criminal would ap- initial assessment of sentence is what conviction or convictions needed pellant challenging, a challenge support the sentence.18 the initial sentence holding also discussed harmonized the appeal from later revocation is a collat- *4 parte in Ex Rich.19 contends eral attack on the assessment of sentence. of appeals apply that the court erred to out in harm set Ex There were two historical excep parte Parrott and Ex Rich to his general prohibition tions to against appeal. case because his case is a direct original collateral on an attacks conviction from a revocation: the “void present pro It is true that the judgment” exception and the “habeas cor ceeding is a direct it is But a direct pus” exception.22 judgment” ex “void appeal proceedings, of not a revocation ception requires that the claimed defect be appeal appellant’s original of convic one that judgment renders the “regular” tion. community supervi In the void, conviction context, excep void.23And sion when a assessed tion “nullity” means a that is no placed probation.20 “accorded defendant respect general origi complete power is that an due a lack of rule attack on the render judgment question.”24 nal conviction in an from Nix revocation State, proceedings is a v. collateral attack and is not we listed four situations which Appellant says allowed.21 he is com a in a criminal case plaining illegality about the of the is void “[w]hile hesitate to call we 4628189, *1-2, Wright, trasting adjudication regular 16. 2015 WL 2015 at deferred 8161, App. community LEXIS supervision). Tex. at *4-5. 17. 396 S.W.3d at 534. State, 859, Corley 21. v. 782 S.W.2d 860 n. 2 State, (Tex.Crim.App.1989); Dinnery v. 592 18. Id. at 536-37. 343, (Tex.Crim.App.1980) (op. 350-51 reh’g); 486 S.W.2d Ramirez See id. at 535-36. 19. 374 See also Nix v. (Tex.Crim.App. 667 42.12, 2(B) §§ Proc. Code Tex. Crim. 2001). (defining regular probation as when “a sen- confinement, imprisonment im- Nix, S.W.3d at Nix fine, fine, prisonment and or confinement and adjudication, from the of deferred revocation probated imposition and the of sentence is exceptions but the in Nix identified were de- (on part”), suspended in whole or in revo- rived from cases that resolved regular community supervision, cation "the regular community supervi- the revocation of judge may proceed dispose of the case as if sion. Id. community supervision” been no there had term of confinement deter- reduce the if Nix, 65 S.W.3d at 667-68. society mined to be in the best interest defendant). Huskins, See also Ex (con- (Tex.Crim.App.2005) 24.Id. satisfy the “void necessarily has failed list, nearly very it is so.”25 exclusive this an exception. judgment” of the four not one “Illegal sentence” was listed.26 situations exception a corpus” allowed The “habeas litigate, a revocation hear- defendant to assume Even we were cognizable on ing, any claims that would could, appropriate illegal sentence corpus.29 abrogated a of habeas writ void, circumstances, render 2001,30 corpus” exception the “habeas upheld on habeas can be sentence that that a claim that a sen- but we have said to show has failed because the defendant time.31 be raised tence is Nix. is not void under harm deciding, that an ille- Assuming, without that even if Parrott’s sentence exception to our claim is an gal-sentence proper corpus exception, abrogation conviction, the ly First, enhance ap- appellant’s claim would still fail. his actual harmless because error was at the litigate the matter pellant failed history supported criminal hearing, corpus the habeas so he was sentenced Second, within which apply.32 exception does not a a sentence is admonished.27Such corpus exception for the habeas rationale If a respect.” “nullity” that is “accorded liti- basically to allow defendant *5 on habeas under would lose early, purposes defendant claim gate his habeas satisfy necessarily he fails to then judicial economy.33 Because the habeas And the judgment” exception. essentially the “void involves the corpus exception exception requires that “the judgment corpus,34 of a of habeas litigation void writ no the exis to show harm would question” requirement about habeas record leave above, judg does of a defect that renders As apply. tence in his is available not claim that error conviction ment void.28So the record Parrott-, claims that the open pos leaves harmful the revocation under wrong rely appeals sibility that the defendant would lose reject that claim.35 Parrott. then the defendant We habeas under Nix, Jordan, supra supra at 786. also 30. 25. Id. at 668. 670. (1) The four situations were: 26. See id. charging purporting be a instru- document Rich, 31. 194 S.W.3d at 511. requi- satisfy ment does not the constitutional instrument, (2) charging of a sites Nix, (noting 65 at 670 & n. 26 32. See S.W.3d subject jurisdiction over matter court lacks appeals have that courts of do not (3) charged, reflects the offense corpus jurisdiction). habeas (not merely insuffi- there is evidence conviction, evidence) cient 785; Nix, Jordan, 65 S.W.3d 33. 54 S.W.3d at (4) required indigent to face defendant at 669-70. appointed without criminal trial counsel, such has not been waived when Nix, Jordan, supra supra; at 669. indigent right to counsel for violation & nn. 12-15. Id. 668 defendants. claim, rejecting appellant’s we do imply it have otherwise had merit. that would 27. 396 S.W.3d at 538. heading F3” notation in the The "ENH well have been sufficient indictment Nix, 65 S.W.3d at 668-69. (defective) some notice of a confer at least State, (Tex. State, 357 see Miles v. S.W.3d 785 v. Jordan Nix, (Tex.Crim.App.2011) & 31 n. Crim.App.2001), See 65 S.W.3d at also Kirkpatrick v. 669-70. judgment affirm court of remand the case the trial court for appeals. proper punishment.” Id. A complaint about a sentence outside the ALCALA, J., concurring opinion filed a proper punishment range sen JOHNSON, J., joined. in which raised the first time on NEWELL, J., concurred. here, appeal, post-conviction application. See Mizell CONCURRING OPINION 804, 806 (Tex.Crim.App.2003). ALCALA, J., concurring opinion filed case, In this aside the absence of JOHNSON, J., joined. paragraph an enhancement in the indict- analysis This Court’s strange. ment, everything else the record defini- to apply Court chooses rather habeas law tively shows State intended to applying appeals, than law charge appellant third-degree failure though this even is a direct register as a sex offender and that clearly law resolves this issue. Be- appellant understood that he would be governing cause the law punished range. within that Even the easily this is not an shows that caption identifying dictment’s the offense sentence, as contended Sir Melvin as “FAIL SEX REG OFFEND ENH F3” Jr., Wright, I appellant, affirm the would charged showed that of the court of upholding offender, failure sex en- I, how- and sentence. to a third-degree felony hanced due ever, not join majority do this Court’s Appellant judicially con- opinion imports inapplicable offense, to that fessed he was admonished into its standard offense, for that reflects I, therefore, this direct *6 During plea hearing, that offense. the the judgment. concur in the Court’s judge appellant trial that admonished he remedy This for Court has held that the “charged with a failure to a was a case in a defendant has been degree felony ... a sex offender proper punish sentenced outside punishment range a of to carries [that] ment is to remand the case years op- in the penitentiary and [an] resentencing. Levy 818 S.W.2d $10,000.” tional fine not to At exceed the 801, Levy, (Tex.Crim.App.1991). In plea, of guilty parties time the dis- this appellate Court an “[W]hen appellant cussed the fact that had another punishment stage finds error at the acknowledged and the trial, the case be to remanded the establishing that His proof offense. of trial court proper complaint really not that late is his sen- “In punishment.” Id. a defen cases where illegal it was was outside the plea guilty a or nolo conten- dant enters of instead, applicable range punishment; bargain of plea dere without the benefit a really complaining is that the indict- agreement with State and plead judge properly ment to more an assesses a not author failed law, paragraph. But by appropriate remedy types ized is to those illegal- finding guilt complaints allow the to remain and to are different having prior (Tex.Crim.App.2009), appellant's appellant's to waiver of references trouble registration at least some evidence defects in indictment have waived with are notice, any complaint regarding a lack of and that he had In Ex this Court held particularly because complaints, sentence that, to habeas relief due in order receive require that an enhance law does sentence, applicant must illegal to an pleaded an indictment. be cognizable irregularity (Tex. both show Brooks v. Ex harm. State, 324 Pelache v. Crim.App.1997); Importantly, 537-38 (Tex.Crim.App.2010). Un that, in a habeas case this Court ap analysis direct der a traditional is alleged it is that a sentence in which appellant’s that the evidence shows peals, impermissible enhance- illegal due to ac illegal, I would ment, prove required is to appellant’s conviction cordingly uphold by providing evidence harm extra-record on that basis. sentence actually ille- showing that his sentence was appeals, court of This Court and the convictions gal, in that there other were however, approach take a this twisted punishment range. Id. This rec- examining the actual case. Instead case, that, in a habeas “the Court noted is whether the sentence ord determine Court, ultimately this judge, and habeas this Court and the illegal on direct appeal, opportunity to evaluate that evi- [has] an cor- applied habeas court of have to determine whether sentence dence” appellant’s that pus law to hold actually illegal. id. at 535. because he failed show illegal has requirement to the habeas contrast conviction could any unproven prior that a proof to demonstrate extra-record sentence, as used to enhance this illegal, appeals, de- sentence resolving previously this held Court to show that fendant has burden applications assert- proceed- based sentence appellate sentences. brief ing ings that occurred the record Court, appellant challenges this before Here, appellant trial has court. before asserting appeals’s court of that, on the that was failed show import habeas law is erroneous court, his before the trial sentence proce- into a because of the disagree I this Court illegal. proce- those dural differences between applicable that the law agree I assertion dures. applied should be to this matter. *7 appeals merely they both because habeas law makes Post-conviction illegal-sentence complaints. There address prevail more a defendant difficult many procedural too differences be- are a claim that transplant tween those type places burden proceeding principles analy- into applicable habeas provide him to extra-record evidence sentencing complaint of a raised sis actually ille- I, therefore, shows that only in concur gal, in that there are convictions judgment. this Court’s permit him to that would be sentenced punishment range. In particular

within type proceeding, a defendant rely solely direct-appeal on the proof that there are no other convic-

tions that would which he sentenced.

range within