Appeal from the County Criminal Court at Law No. 8 Harris
County, Texas Trial Court Cause No. 2120891
DISSENTING OPINION ON DENIAL OF
MOTION FOR EN BANC RECONSIDERATION
was indicted for assault family violence (a Class A
misdemeanor), the jury returned a verdict of guilty, the
trial court entered judgment, and a panel of this court
affirmed. While Moliere seeks en banc
reconsideration on several grounds, I believe the primary
relevant question is limited to whether
Apprendidemands that a jury determine whether the
alleged crime involved family violence and that question was
answered by the jury when it convicted Moliere for
misdemeanor assault involving family violence. The trial
court permissibly took judicial notice of the conviction
under the plain terms of Code of Criminal Procedure article
42.013. Nonetheless, I would grant en banc reconsideration to
address two material errors in the panel's opinion that
appear to threaten "the uniformity of the court's
decisions." See Tex. R. App. P. 41.2 (c).
Illegal sentences can be attacked for the first time on
argues the panel incorrectly concluded, "that
appellant's sentence was not illegal and thus he cannot
rely on that doctrine to raise his issue on appeal."
Moliere v. State, No. 14-17-00594-CR, 2018 WL
6493882, at *2 (Tex. App.-Houston [14th Dist.] Dec. 11, 2018,
no pet. h.). Specifically, he argues the panel's
assessment "puts the cart before the horse" because
"[t]he ability to raise an illegal-sentence issue on
appeal does not depend on whether the appellate court
ultimately finds the illegal-sentence issue to be
meritorious." I agree with Moliere and conclude the
panel's opinion improperly implies a defendant's
illegal-sentence claim must be meritorious before it can be
raised as an issue on appeal.
The panel's opinion misstates relevant law.
panel concluded that, "To establish that his sentence is
illegal, [Moliere] must first establish that the statute is
facially unconstitutional." Id. I emphatically
reject this contention as a misstatement of law that is
predicated upon cases that do not stand for the proposition
Mizell v. State, the Texas Court of Criminal Appeals
considered an appeal from a $0 fine based on a conviction for
official oppression; because the fine was outside of the
statutory range created by Penal Code section 12.21
(concerning the punishment range for Class A misdemeanors),
the $0 fine was an illegal sentence "that ha[d] no legal
effect". Mizell v. State, 119 S.W.3d 804, 806
(Tex. Crim. App. 2003) (en banc). At no time was the
constitutionality of the official oppression statute (or
section 12.21) ever implicated; in fact, the word
"Constitution" (and all variants thereof) is absent
from the Court of Criminal Appeals's opinion. Therefore,
I dissent from this court's refusal to grant en banc
reconsideration because I believe the panel opinion is
contrary to controlling law.
the panel opinion cites three cases in support of its
conclusion that Moliere must first prove the statute is
unconstitutional before he can attack his illegal sentence:
Karenev v. State, 281 S.W.3d 428 (Tex. Crim. App.
2009); Ex parte Beck, 541 S.W.3d 846 (Tex. Crim.
App. 2017); and Massoth v. State, Nos.
14-03-00605-CR, 14-03-00606-CR, No. 2004 WL 1381027 (Tex.
App.-Houston [14th Dist] June 22, 2004, pet. ref d) (mem.
op., not designated for publication). Although the
opinion's language is perhaps unintentionally imprecise,
none of these decisions expressly stands for the cited
conclusion of law; instead, the proposition is an incorrect
statement of law that should be corrected by the en banc
court. More specifically:
• Karenev simply stands for the proposition
that a facial challenge to the constitutionality of a statute
cannot be raised for the first time on appeal.
• Massoth involved a criminal defendant who
lodged a generalized objection under Apprendi to his
two life sentences being stacked by the trial court. There,
this court held a generalized objection was insufficient to
preserve the issue for appeal; contrary to the panel
opinion's implication, however, Massoth neither
involved nor mentioned an alleged "illegal
• Ex parte Beck involved an exception to the
general rule concerning waiver when the statute at issue has
already been declared unconstitutional, but did not involve
or mention illegal sentences.
Texas Rule of Appellate Procedure 49.3 precludes a panel
rehearing, I would grant en banc reconsideration to correct
these two errors ourselves, rather than leave it to the Court
of Criminal Appeals.
(Justices Zimmerer, Spain, and Poissant join this dissenting
opinion; Chief Justice Frost and Justices Christopher, Wise,
and Jewell vote to deny the motion for en ...