Court of Appeals of Texas, Sixth District, Texarkana
Submitted: April 17, 2017
Appeal from the Criminal District Court No. 3 Dallas County,
Texas Trial Court No. F-1614870-J
Morriss, C.J., Moseley and Burgess, JJ.
R. Morriss III Chief Justice.
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 and three counts of theft of
property,  all state jail felonies. In a trial to the
court, a Dallas County 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,  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.
(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.
Santiago's Tarrant County Convictions Are
Legitimately Used as Two Convictions for Enhancement
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.
being released on parole from his Tarrant County convictions,
Santiago committed the offenses dealt with in these appeals.
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).
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).
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
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.
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 ...