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Santiago v. State

Court of Appeals of Texas, Sixth District, Texarkana

May 18, 2017

ERIK LUIS SANTIAGO, Appellant
v.
THE STATE OF TEXAS, Appellee

          Date Submitted: April 17, 2017

         On Appeal from the Criminal District Court No. 3 Dallas County, Texas Trial Court No. F-1614870-J

          Before Morriss, C.J., Moseley and Burgess, JJ.

          MEMORANDUM OPINION

          Josh R. Morriss III Chief Justice.

         Erik Luis Santiago passed fraudulent checks in 2016 to several Dallas County businesses to pay for a Super Bowl party for his friends and to purchase automobile tires. In the aftermath of those actions, Santiago confessed to one count of forgery of a financial instrument[1] and three counts of theft of property, [2] all state jail felonies. In a trial to the court, a Dallas County[3] district court found Santiago guilty on all four counts. After Santiago's sentence was enhanced with a pair of 2014 Tarrant County convictions, Santiago was sentenced to serve ten years' imprisonment for each count, with the sentences to run concurrently. In this appeal, [4] Santiago appeals his conviction for theft of property in the trial court case bearing cause number F16-14870-J, arguing that his sentence was improperly enhanced. Santiago asserts that the sentences he received are illegal because the two 2014 Tarrant County convictions should have been treated as one state jail felony conviction and the use of the 2014 state jail conviction for theft of services violated the prohibition against ex post facto laws.

         Because (1) Santiago's Tarrant County convictions are legitimately used as two convictions for enhancement purposes and (2) the subsequent reclassification of theft of service, one of Santiago's enhancement convictions, from a 2014 state jail felony to a 2016 misdemeanor does not reclassify its enhancement effect on Santiago, but (3) the degree of offense was improperly recited in the judgment being appealed, we modify the judgment of the trial court and affirm it, as modified.

         (1) Santiago's Tarrant County Convictions Are Legitimately Used as Two Convictions for Enhancement Purposes

         In 2014, before the offenses made the subject of this case and its companion appeals, Santiago had created and passed checks with unauthorized bank information to purchase goods and services in Tarrant and Dallas Counties. As a result, on May 30, 2014, Santiago had been convicted in Tarrant County of two state jail felonies, that is, fraudulent use/possession of identifying information and theft of service of the value $1, 500.00 or more but less than $20, 000.00.

         After being released on parole from his Tarrant County convictions, Santiago committed the offenses dealt with in these appeals.

         Santiago complains that he received an illegal sentence here because, he argues, the two 2014 Tarrant County convictions should be treated as one state jail felony conviction since they were entered by the same court on the same day. Santiago argues that, since Section 3.02 of the Texas Penal Code allows the State to prosecute a defendant in a single action for all offenses that arise out of the same criminal episode, then the separate convictions that result from that single action should be treated as one conviction for enhancement purposes. See Tex. Penal Code Ann. § 3.02(a) (West 2011). Santiago cites no case authority, and we have found none, in support of this argument. He also argues, again without case authority, that, if the Legislature had intended to partition criminal episode conduct (joined or consolidated under Section 3.02) into separate offenses for enhancement purposes, it would have done so when it enacted Section 12.425(a) of the Texas Penal Code. See Tex. Penal Code Ann. § 12.425(a) (West Supp. 2016).

         In this case, Santiago was charged with a state jail felony punishable under Section 12.35(a) of the Texas Penal Code. The punishment range for a Section 12.35(a) state jail felony is confinement in state jail for not less than 180 days and not more than two years. Tex. Penal Code Ann. § 12.35(a) (West Supp. 2016); Thomas v. State, 481 S.W.3d 685, 689 (Tex. App.- Texarkana 2015), rev'd on other grounds, No. PD-0295-16, 2017 WL 1244453 (Tex. Crim. App. Apr. 5, 2017). Under Section 12.425(a), a Section 12.35(a) state jail felony may be punished as a third degree felony only if it is shown at trial "that the defendant has been previously finally convicted of two" Section 12.35(a) state jail felonies. Tex. Penal Code Ann. § 12.425(a). A third degree felony is punishable by imprisonment for not less than two years or more than ten years. Tex. Penal Code Ann. § 12.34 (West 2014).

         At trial, Santiago pled true to both of the 2014 Tarrant County convictions, and there was no evidence presented that he had previously been convicted of any other Section 12.35(a) state jail felony. Therefore, Santiago could have his current conviction for a Section 12.35(a) state jail felony punished as a third degree felony only if both of the 2014 Tarrant County convictions are available for enhancement purposes. If only one of the 2014 Tarrant County convictions is available for enhancement purposes, then Santiago's punishment of ten years' confinement would fall outside the maximum range of punishment authorized under Section 12.35(a). Santiago did not challenge the illegality of his sentence at trial.

         "A sentence that is outside the maximum . . . range of punishment is unauthorized by law and . . . illegal." Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003) (citing Ex parte Pena, 71 S.W.3d 336, 336 n.2 (Tex. Crim. App. 2002)). Further, a defendant may challenge an illegal sentence for the first time on direct appeal or by a writ of habeas corpus. Id. Generally, when an illegal sentence is challenged for the first time on appeal, the illegality of the sentence must be apparent on the face of the record. See Bonilla v. State, 452 S.W.3d 811, 818 n.30 (Tex. Crim. App. 2014) (unauthorized stacking order apparent on face of record resulting in illegal sentence may be raised for first time on appeal or by collateral attack); Ex parte Rich, 194 S.W.3d 508, 511 (Tex. Crim. App. 2006) ("Our precedents involving claims of illegal sentences have dealt with situations in which the illegality of the judgment was apparent from the facts before the trial court." (citation omitted)); Gonzalez v. State, 8 S.W.3d 640, 642 (Tex. Crim. App. 2000) (double jeopardy claim may be raised for first time on appeal or by collateral attack "when the undisputed facts show the double jeopardy violation is clearly apparent on the face of the record"). This same rule applies to a claim of an illegal sentence based on the improper use of a prior conviction for enhancement purposes. Rich, 194 S.W.3d at 513.

         In this case, the allegedly improper use of both of the 2014 Tarrant County convictions is not apparent on the record. At trial in this case, Santiago ...


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