Appeal from the 35th District Court, Brown County, Texas
Trial Court Cause No. CR21531
consists of: Willson, J., Bailey, J., and Wright, S.C.J.
appeal from the judgment in which the trial court revoked
Appellant's community supervision, Appellant collaterally
attacks his original conviction for possession of a
controlled substance in a drug-free zone on the basis that
the trial court assessed an illegal sentence. We vacate and
The Charged Offense and Proceedings Below
was charged by information with the state-jail felony offense
of possession of a controlled substance, specifically
OxyContin, in an amount of less than one gram and an
enhancement that the offense was committed "on or within
1, 000 feet of premises owned by an institution of higher
learning, " a drug-free zone. The parties apparently
believed that the enhancement, as alleged, made the offense a
pleaded guilty to the third-degree felony offense of
possession of a controlled substance in a drug-free zone.
After a hearing, the trial court accepted Appellant's
plea and found him guilty. Appellant and the State
"mutually agreed and recommended to the Court"
through an "Agreed Punishment Recommendation" that,
among other conditions, Appellant would receive ten years of
confinement probated for ten years. Consistent with the
agreement, the trial court sentenced Appellant to confinement
for ten years, suspended the sentence, placed Appellant on
community supervision for ten years, and assessed costs and
fines, among other conditions. Later, the State moved to
revoke Appellant's community supervision. After a
hearing, the trial court revoked Appellant's community
supervision and sentenced Appellant to confinement for six
years. Appellant now appeals on a single issue.
argues that he received an illegal sentence because the
state-jail felony offense he was charged with-possession of a
controlled substance in an amount of less than one gram-was
improperly enhanced under the drug-free zone statute, Section
481.134 of the Texas Health and Safety Code, because an
"institution of higher learning" is not a proper
drug-free zone to enhance Appellant's underlying offense.
Appellant argues that, because an illegal sentence was
assessed, his judgment of conviction for the third-degree
felony offense of possession of a controlled substance in a
drug-free zone is void and the subsequent judgment in which
the trial court revoked Appellant's community supervision
is also void. The State argues that Appellant cannot
challenge his original plea of guilty from this appeal of a
revocation of community supervision.
This court has jurisdiction to hear Appellant's complaint
of an illegal sentence under the "void judgment"
claims he was assessed an illegal sentence in his underlying
conviction. This court must determine whether it has
jurisdiction to address Appellant's complaint. This is a
direct appeal from the revocation of Appellant's
community supervision in which Appellant alleges error not
only in the judgment in which the trial court revoked his
community supervision but also in his original conviction.
"The general rule is that an attack on the original
conviction in an appeal from revocation proceedings is a
collateral attack and is not allowed." Wright v.
State, 506 S.W.3d 478, 481 (Tex. Crim. App. 2016);
see Manuel v. State, 994 S.W.2d 658, 661 (Tex. Crim.
App. 1999) (noting that a criminal defendant "placed on
'regular' community supervision may raise issues
relating to the conviction, such as evidentiary sufficiency,
only in appeals taken when community supervision is
originally imposed" (citing Whetstone v. State,
786 S.W.2d 361, 363 (Tex. Crim. App. 1990); Traylor v.
State, 561 S.W.2d 492, 494 (Tex. Crim. App. 1978);
Patterson v. State, 487 S.W.2d 736, 737 (Tex. Crim.
App. 1972); Pitts v. State, 442 S.W.2d 389, 390
(Tex. Crim. App. 1969); Gossett v. State, 282 S.W.2d
59, 62 (Tex. Crim. App. 1955))). However, a criminal
defendant can collaterally attack his original conviction in
an appeal from the revocation of community supervision under
the "void judgment" exception. Wright, 506
S.W.3d at 481. "The void judgment exception recognizes
that there are some rare situations in which a trial
court's judgment is accorded no respect due to a complete
lack of power to render the judgment in question."
Nix v. State, 65 S.W.3d 664, 667 (Tex. Crim. App.
2001). "The 'void judgment' exception requires
that the claimed defect be one that renders the original
judgment of conviction void." Wright, 506
S.W.3d at 481.
The illegal sentence that Appellant received made his
original conviction void, as is the judgment in which the
trial court revoked his community supervision.
pleaded guilty to the improperly enhanced offense of
possession of a controlled substance in an amount of less
than one gram in a drug-free zone. As a result, Appellant was
sentenced to imprisonment for ten years, but the trial court
suspended that sentence and placed Appellant on community
supervision for ten years. The punishment Appellant received
was outside the range of punishment authorized for a state
jail felony. See Tex. Penal Code Ann. §
12.35(a), (b) (state jail felony is limited to confinement
"for any term of not more than two years or less than
180 days" and "a fine not to exceed $10,
000"). A "sentence that is outside the range of
punishment authorized by law is considered illegal."
Ex parte Parrott, 396 S.W.3d 531, 534 (Tex. Crim.
question that Appellant has asked us to address is whether
what he asserts is an illegal sentence renders the judgment
of conviction void. In Nix, the Court of Criminal
Appeals stated a nearly exclusive list of four instances
where a judgment of conviction would be void: "(1) the
document purporting to be a charging instrument . . . does
not satisfy the constitutional requisites of a charging
instrument"; (2) "the trial court lacks subject
matter jurisdiction over the offense charged"; (3)
"the record reflects that there is no evidence to
support the conviction"; and (4) "an indigent
defendant is required to face criminal trial proceedings
without appointed counsel, when such has not been waived, in
violation of Gideon v. Wainwright."
Nix, 65 ...