Henry Tom Garland v. The State of Texas--Appeal from 175th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-02-00812-CR

Henry Tom GARLAND,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 175th Judicial District Court, Bexar County, Texas

Trial Court No. 2001-CR-7086

Honorable James E. Barlow, Judge Presiding (1)

Opinion by: Sandee Bryan Marion, Justice

Sitting: Sarah B. Duncan, Justice

Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: May 26, 2004

REVERSED AND REMANDED

Defendant, Henry Tom Garland, pled nolo contendere pursuant to a plea bargain to sexual assault of a child. Following defendant's plea of nolo contendere and his plea of true to one enhancement, the trial court sentenced him to twenty-five years' confinement. Despite receiving a sentence of twenty-five years, on appeal, defendant asserts his sentence is void because the trial court was statutorily required to sentence him to life. Defendant also asserts his plea of nolo contendere was involuntary. We reverse the trial court's judgment and remand.

VOID SENTENCE

The plea bargain here called for, inter alia, prosecution on count one of the indictment, that defendant agree he had been previously convicted of one felony for enhancement purposes under Penal Code section 12.42, a punishment cap of forty-five years, and a $1,000 fine. During the plea hearing, the trial court, prosecutor, and defense counsel discussed defendant's plea to the second enhancement paragraph, which stated as follows:

Before the commission of the offense alleged above, on the 12TH day of AUGUST, A.D., 1992, in GENERAL COURT - MARTIAL ORDER NUMBER 55, in FORT POLK, LOUISIANA, the Defendant was convicted of the offense of RAPE AN OFFENSE WHOSE ELEMENTS ARE SUBSTANTIALLY SIMILAR TO THE ELEMENTS OF THE OFFENSE OF SEXUAL ASSAULT UNDER SECTION 12.011 OF THE TEXAS PENAL CODE

At the plea hearing, the prosecutor asserted this enhancement paragraph would not be used to obtain a life sentence. Instead, the prosecutor intended to use defendant's plea to the enhancement only for the purpose of elevating defendant's second degree felony offense to a first degree felony offense.

The offense to which defendant pled nolo contendere is a second degree felony. See Tex. Pen. Code Ann. 22.011(f) (Vernon Supp. 2004). A second degree felony is punishable by confinement of not more than twenty or less than two years, and a fine of not more than $10,000. Id. 12.33 (Vernon 2003). A penalty for a repeat or habitual felony offender may be enhanced under the provisions of Penal Code section 12.42. The second enhancement paragraph allowed for the enhancement of defendant's punishment pursuant to section 12.42(c)(2)(B)(v), which provides that a defendant "shall be imprisoned in the institutional division for life if . . . the defendant has been previously convicted of an offense . . . under the laws of another state containing elements that are substantially similar to the elements of [the] offense [of sexual assault under Penal Code section 22.011]." Tex. Pen. Code Ann. 12.42(c)(2)(B)(v) (Vernon 2004). Thus, defendant's plea of true to the second enhancement paragraph required that he be sentenced to life. Instead, the trial court sentenced defendant to twenty-five years' confinement.

"A sentence that is outside the maximum or minimum range of punishment is unauthorized by law and therefore illegal." Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003). On appeal, defendant argues that because his sentence was less than that prescribed by Penal Code section 12.42(c)(2)(B)(v), his sentence is void. However, the State insists that the discussion before the bench during the plea hearing indicates the prosecutor intended to waive that portion of the enhancement that would have required proof that the prior rape constituted "an offense whose elements are substantially similar to the elements of the offense of sexual assault under section 22.011 of the Texas Penal Code." We disagree with the State's interpretation of the record. The prosecutor did not explicitly or implicitly waive any portion of the second enhancement paragraph. The prosecutor argued: "Well, it is - it is my understanding that as long as we are - the state intends to use it as just a prior felony conviction, rather than under the auspices of the automatic life provision, that it just enhances it to a first degree felony." The trial court pointed out to the prosecutor that this same goal could be achieved if defendant instead pled true to the third enhancement paragraph. Defense counsel also expressed concern that a life sentence might not be avoided.

Defendant's sentence of twenty-five years' confinement was less than that required by section 12.42(c)(2)(B)(v); therefore, his sentence is void. See Mizell v. State, 70 S.W.3d 156, 163 (Tex. App.--San Antonio 2001) (holding punishment less than statutory minimum void), aff'd, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003). Accordingly, we must vacate the sentence imposed and remand to the trial court for a new sentencing hearing. See Mizell, 70 S.W.3d at 163.

VOLUNTARINESS OF PLEA

Defendant asserts that because the erroneous sentencing occurred before entry of his plea, his plea of nolo contendere and his plea of true to the enhancement were both involuntary; therefore, this court must reverse his conviction. We agree that his plea of true to the enhancement was not voluntary because it is evident from the record that this plea was entered on the condition that the State did not intend to seek a life sentence.

We also agree that defendant's plea of nolo contendere was involuntary. A guilty plea may be accepted by the trial court only when the defendant is competent and the plea is free and voluntary. See Tex. Code Crim. Proc. Ann. art. 26.13(b) (Vernon Supp. 2004). The voluntariness of a guilty plea is determined by the totality of the circumstances. Crawford v. State, 890 S.W.2d 941, 944 (Tex. App.--San Antonio 1994, no pet.). A guilty plea is voluntary if the defendant is aware of the direct consequences of that plea. State v. Jimenez, 987 S.W.2d 886, 888 (Tex. Crim. App. 1999). One such direct consequence of a guilty plea is the maximum sentence that can be assessed for the offense to which the defendant purposes to plead guilty. Burnett v. State, 88 S.W.3d 633, 637 (Tex. Crim. App. 2002).

As the reviewing court, we must independently examine the record for indications that a defendant was or was not aware of the consequences of his plea and whether he was misled or harmed by the trial court's failure to admonish him of the punishment range or other admonishments. Burnett, 88 S.W.3d at 638. As the reviewing court, we examine the entire record to determine whether, on its face, it suggests that a defendant did not know the consequences of his plea. Id. We also consider record facts that the defendant did know the consequences of his plea. Id. It is ultimately this court's responsibility to determine whether the record supports or negates a defendant's assertion of harm. Id. at 639. Neither the defendant nor the State has any formal burden to show harm under this analysis. Id. at 638.

One of the terms of the plea agreement called for defendant's plea of true to one of the enhancements. At the commencement of the plea hearing, the trial court, the prosecutor, and defense counsel discussed defendant's plea of true to the second enhancement. Defense counsel asked the following question of the prosecutor:

Q. Let me just make sure I understand. The way you are - - you are presenting that is that the Judge is going to make a finding that - - that the enhancement paragraph is not sufficient, because how are we going to get out of the automatic life?

A. No. Just - - rather than using it for purposes of automatic life, it is just being used as a regular repeater paragraph. That makes it a first-degree felony as opposed to a second-degree felony. Following defendant's plea of true to the enhancement, the prosecutor stated the terms of the plea bargain, including that confinement would be capped at forty-five years. The court then explained to defendant that it was not duty-bound to follow the State's recommendation and if it sentenced defendant to more than he bargained then defendant could withdraw his plea. Defendant said he understood. At the conclusion of the hearing, the trial court found defendant guilty of the offense to which he pled.

At the commencement of the punishment hearing, defendant stated he wanted to withdraw his plea because he thought he could call witnesses to testify on his behalf and he complained that no witnesses had been interviewed. Defense counsel then asked defendant:

Q. Did I . . . not explain to you that . . . that when we got into the plea-bargain negotiations, that The State of Texas would be dropping their - - their enhancement, where they would be seeking life sentence in your case? Did I not explain that to you?

A. Yes, sir.The trial court denied defendant's request to withdraw his plea.

The record of both the plea hearing and the punishment hearing indicate defendant's plea of nolo contendere was based on his, and his attorney's, understanding that he would not be sentenced to life in prison. Our review of the entire record leads us to conclude that the parties bargained for a sentence outside the authorized range of punishment. See Burnett, 88 S.W.3d at 639. Our review of the record also leads us to conclude defendant would not have pled nolo contendere if a life sentence was to be imposed. Therefore, the appropriate remedy is to return the parties to the positions occupied prior to the plea bargain agreement. See Ex parte Beck, 922 S.W.2d 181, 182 (Tex. Crim. App. 1996).

CONCLUSION

We reverse the trial court's judgment and remand the cause for further proceedings.

Sandee Bryan Marion, Justice

DO NOT PUBLISH

1. The Honorable Mary Roman is the presiding judge of the 175th Judicial District Court of Bexar County, Texas. However, the Honorable James E. Barlow signed the judgment and presided over the plea and sentencing hearings.