Mapes, Michael Cadett v. State

Affirmed and Majority and Dissenting Opinions filed February 7, 2006

Affirmed

and Majority and Dissenting Opinions filed February 7, 2006.

In The

Fourteenth Court of

Appeals

____________

NO. 14-04-00631-CR

____________

MICHAEL CADETT

MAPES ,

Appellant

V.

THE STATE OF TEXAS , Appellee

On Appeal from the 185th

District Court

Harris County, Texas

Trial Court Cause No. 949,878

M A J O R I T Y O P I N I O N

Appellant Michael Cadett Mapes appeals his

conviction for felony driving while intoxicated (DWI). In two points of error, appellant complains

that the trial court erred in denying his motion to quash a jurisdictional

paragraph and his motion for directed verdict.

We affirm.

Background

Appellant was charged with DWI in

2003. The indictment alleged two

previous DWI convictions to enhance the 2003 offense to felony DWI under

Section 49.09(b)(2) of the Texas Penal Code.

Tex. Pen. Code Ann. ' 49.09(b)(2)

(Vernon 2003). [1] Claiming that his 2000 conviction is void,

appellant timely filed a Motion to Quash a Jurisdictional Paragraph of the

Indictment, which the trial court denied.

At the close of the State = s evidence,

appellant moved for a directed verdict.

At the close of all the evidence, the trial court found appellant guilty

as charged in the indictment and sentenced appellant to two years = confinement in

the Institutional Division of the Texas Department of Criminal Justice.

In

his first point of error, appellant contends that the trial court erred in

denying his motion to quash a jurisdictional paragraph. Appellant argues that because the punishment

assessed in his 2000 DWI conviction fell below the statutorily-authorized

range, the 2000 conviction is void and therefore cannot be used to elevate his

2003 offense to a felony. [2] According to appellant, the district court

lacked jurisdiction because district courts have jurisdiction only over felony

DWI offenses; appellant = s 2003 offense was not a felony because

the void 2000 conviction could not be used to enhance. [3] We review a trial court = s ruling on a

motion to quash de novo. State v.

Moff , 154 S.W.3d 599, 601

(Tex. Crim. App. 2004).

In his second point of error, appellant

alleges that the trial court erred when it denied his motion for a directed

verdict because the evidence was legally insufficient to support his

conviction. We treat a complaint about a trial court = s failure to grant a motion for

directed verdict as a challenge to the legal sufficiency of the evidence. Williams v. State , 937 S.W.2d 479, 482

(Tex. Crim. App. 1996). In evaluating

the legal sufficiency of the evidence, we must view the evidence in the light

most favorable to the verdict and determine whether any rational trier of fact

could have found the essential elements of the offense beyond a reasonable

doubt. Vasquez v. State , 67

S.W.3d 229, 236 (Tex. Crim. App. 2002).

We will consider both of appellant = s points of error

together.

Punishment and Void Convictions

In Texas, the punishment assessed must

always be within the minimum and maximum fixed by law; if the punishment

assessed is less than the minimum provided by law, the judgment of conviction

is rendered a nullity. Mizell v.

State , 119 S.W.3d 804, 806 (Tex. Crim. App. 2003); Wilson v. State ,

677 S.W.2d 518, 524 (Tex. Crim. App. 1984).

Texas courts consistently have held convictions to be void when prior

enhancing convictions were also void. See

Wilson , 677 S.W.2d at 524 (finding that a prior conviction was void because

it fell below the statutory range of punishment); Ex Parte Burt , 499

S.W.2d 109, 110 (Tex. Crim. App. 1973) (stating that earlier enhancing

convictions were void because appellant was indigent, was not represented by

counsel, and had not waived his right to counsel); Renshaw v. State , 981

S.W.2d 464, 466 (Tex. App. C Texarkana 1998,

pet. ref = d) (finding

conviction void because State did not prove prior convictions at trial); State

v. Kindred , 773 S.W.2d 766, 768 (Tex. App. C Corpus Christi

1989, no pet.) (finding that earlier convictions were not final and were

therefore void).

DWI Offenses: Classification,

Punishment, and Jurisdiction

Texas Penal Code Section 49.04(b)

classifies the offense of DWI as a Class B misdemeanor and requires a minimum

punishment of seventy-two hours = confinement. Tex.

Pen. Code Ann. ' 49.04(b).

The maximum term of confinement for a Class B misdemeanor is 180

days. Tex. Pen. Code Ann. ' 12.22 (Vernon

2003). The offense of DWI enhanced by

one previous DWI conviction becomes a Class A misdemeanor and requires a

minimum term of confinement of thirty days.

Tex. Pen. Code Ann. ' 49.09(a) (Vernon

2003). The maximum term of confinement

for a Class A misdemeanor is one year. Tex. Pen. Code Ann. ' 12.21 (Vernon

2003). The offense of DWI enhanced by two previous DWI convictions becomes a third

degree felony. Tex. Pen. Code Ann. ' 49.09(b)(2). The two prior DWI convictions are

jurisdictional elements of a felony DWI offense, and they must be proved to

obtain a felony DWI conviction. Barfield

v. State , 63 S.W.3d 446, 448 (Tex. Crim. App. 2001). Class A and B

misdemeanor DWI offenses are tried in the county courts, while felony DWI

offenses are tried in either the district courts or the criminal district

courts. Tex. Code Crim. Proc.

Ann. arts. 4.05, 4.07 (Vernon 2005).

Appellant = s 2000 DWI

Appellant pleaded guilty to DWI in

2000. The information for that

conviction described a 1993 conviction for DWI, which elevated the 2000

conviction from a Class B to a Class A misdemeanor. Tex.

Pen. Code Ann. ' 49.04(a) (Vernon 2003). Appellant states that in his 2000 guilty

plea, the judge admonished that the maximum punishment for his offense was one

year, which comports with the maximum Class A misdemeanor punishment. On the 2000 judgment, the judge checked the

box denoting A misdemeanor @ and circled the

letter A A @ for class of

misdemeanor, as opposed to A B @ or A C. @ However, the judge imposed a punishment of

only twenty-four days, which falls below the minimum punishment required by

statute, and also circled A N/A @ for the A Plea to

Enhancement Paragraph(s) @ and the A Findings on

Enhancement(s) @ sections.

Clearly, the imposed twenty-four day

confinement falls below the minimum thirty-day confinement required by statute

for Class A misdemeanor DWIs. The judge = s designation of A Misdemeanor Class

A @ combined with the

twenty-four day punishment period indicates that appellant was convicted of a

Class A misdemeanor DWI but was sentenced outside the statutory range for such

an offense. Because the twenty-four day

sentence falls below the statutory minimum, appellant = s 2000 DWI

conviction is void. Mizell , 119

S.W.3d at 806 ; Wilson , 677 S.W.2d at 524 .

The State argues that appellant was

actually convicted of a Class B misdemeanor DWI because the judge circled A N/A @ under both the A Plea to

Enhancement Paragraph(s) @ and A Findings on

Enhancement(s) @ sections on the 2000 judgment. The State contends that these notations

indicate that appellant = s 2000 DWI conviction was not enhanced by

his 1993 DWI conviction and that the judge must have circled A A @ in the A Misdemeanor Class @ section by mistake.

The State alleges that because appellant = s non-enhanced

2000 DWI conviction was a Class B misdemeanor, the twenty-four day sentence

fell within the applicable seventy-two hour to 180-day statutory range. However, the State = s analysis is

misguided.

The State appears to interpret Penal Code

Section 49.09 as a punishment enhancement statute analogous to Penal Code

Sections 12.43 and 12.42, which describe the penalties for repeat and habitual

felony and misdemeanor offenders. Tex. Pen. Code Ann. ' ' 12.42, 12.43

(Vernon 2003). However, Texas courts have drawn a clear distinction between

enhancement of a punishment and enhancement of a DWI offense. Gibson v. State , 995 S.W.2d 693, 696

(Tex. Crim. App. 1999). As the Court of

Criminal Appeals explained in Gibson :

The prior

intoxication-related offenses, whether they are felonies or misdemeanors, serve

the purpose of establishing whether the instant offense qualifies as felony

driving while intoxicated. The prior

intoxication-related offenses are elements of the offense of driving while

intoxicated.

Id . The court

then concluded that A prior intoxication-related convictions

serve the purpose of enhancing the offense in Section 49.09(b) whereas prior

convictions used in Section 12.42(d) serve the purpose of enhancing punishment @ and further noted

that Section 49.09(b) should not be viewed as a punishment-enhancement statute

like Section 12.42(d). Id .; see also Martin v. State , 84 S.W.3d

267 , 268 B 69 (Tex. App. C Beaumont 2002,

pet. ref = d). Thus, two prior DWI convictions are required

elements of the offense of felony DWI under Section 49.09(b), and the

punishment enhancements under Sections 12.42 and 12.43 do not apply in the

felony DWI context. Gibson , 995

S.W.2d at 696 ; see also Weaver v. State , 87 S.W.3d 557, 560 (Tex.

Crim. App. 2002); Barfield , 63 S.W.3d at 448 . Likewise, one prior DWI is a required element

of the offense of Class A misdemeanor DWI under Section 49.09(a), to which the

punishment enhancements under Sections 12.42 and 12.43 do not apply. Gibson , 995 S.W.2d at 696 . Because the punishment enhancements in

Sections 12.42 and 12.43 are inapplicable in the context of enhanced DWI offenses,

pleas and findings regarding punishment enhancements are unnecessary. See Barfield , 63 S.W.3d at 448

(stating that separate plea to enhancement paragraphs was unnecessary in felony

DWI case because previous DWI convictions are elements of the felony DWI

offense).

Consequently, rather than indicating that

appellant had been convicted of a Class B misdemeanor, the trial judge = s notation of A N/A @ in the

enhancement sections of the 2000 DWI judgment reflects that enhancement pleas

and findings were inapplicable and unnecessary in that case. This interpretation of the judgment is also

consistent with the trial judge having classified the offense as a Class A

misdemeanor. In light of the above

precedent and the logical implications of the judge = s markings, we

find that the judgment convicted appellant of a Class A misdemeanor DWI but

sentenced him below the minimum statutory requirement of thirty days. Consequently, the 2000 conviction is void.

Nevertheless, we find that appellant is

estopped from complaining about his void 2000 conviction on appeal because he

enjoyed the benefit of the twenty-four day sentence. A defendant has an absolute and nonwaivable

right to be sentenced within the proper range of punishment established by the

legislature. Speth v. State , 6

S.W.3d 530, 532-33 (Tex. Crim. App. 1999).

However, even if a defendant cannot waive such a right, the doctrine of

invited error may estop him from asserting it on appeal. Ex Parte Shoe , 137 S.W.3d 100, 102 (Tex. App. C Fort Worth 2004,

pet. granted). In Shoe , the

appellant was convicted of DWI in 1997 pursuant to a plea bargain

agreement. Id . at 100. The trial judge sentenced Shoe to forty days

in jail but failed to impose a mandatory

minimum fine. Id . In 2002, Shoe applied for a writ of habeas

corpus, arguing that his 1997 conviction was void because the punishment fell

below the minimum statutory requirement.

Id . The trial court denied

Shoe = s application for

habeas corpus. Id . The Court of Appeals held that Shoe was

estopped from challenging the void 1997 conviction because he had accepted the

benefit of the lesser sentence when he entered into the plea bargain agreement

and benefited by not having to pay the fine.

Id . at 102. Similarly,

appellant entered into a plea bargain agreement in 2000 and benefitted from the

short twenty-four day sentence. As the

court stated in Shoe : A Appellant should

not now be permitted to challenge the lesser sentence C the benefit he

received and for which he bargained C because events

since the sentence was assessed now make that sentence less appealing to him. @ Id . at 102-03.

We find that the evidence is legally

sufficient to support appellant = s felony DWI

conviction. Because appellant is

estopped from challenging his 2000 DWI conviction, viewing the evidence in a

light most favorable to the verdict, we find that a reasonable trier of fact

could have found that the State proved beyond a reasonable doubt that appellant

had at least two prior valid convictions for DWI. Therefore, the trial court = s denial of appellant = s motion for a

directed verdict was proper.

Similarly, we find that the trial court

did not err by denying appellant = s motion to quash

a jurisdictional paragraph because having proved that appellant had two prior

DWI convictions, the State established the requisite elements of felony

DWI; therefore, the district court had

jurisdiction over the case. Accordingly,

we overrule both of appellant = s points of error

and affirm the judgment of the trial court.

RESPONSE TO

DISSENTING OPINION

The dissent disagrees with the majority = s position that appellant is estopped

from complaining that his 2001 DWI conviction is void because he enjoyed the

benefit of the 24-day illegal sentence.

The dissent primarily contends that the majority = s analysis is contrary to several

decisions by the Court of Criminal Appeals.

We believe that those cases are not

controlling.

First, the dissent cites Mizell v. State , in which the

Court of Criminal Appeals stated that punishments less than the statutory

minimum are illegal, void, and subject to attack on direct appeal, habeas

corpus, or in any court with jurisdiction.

119 S.W.3d 804, 806 (Tex. Crim. App. 2003). We do not contest this general principle;

however, we do not believe that Mizell sheds any light on the key issue

of estoppel. As the Mizell court

specifically noted: A We need not here address the question of whether a defendant

might, in some circumstances, be estopped from complaining, after he had enjoyed

its benefits, that his sentence was illegal or > void = because it was below the statutory

minimum. @

Id . at 807 n.8.

Next, the dissent argues that the majority = s decision conflicts with the Court

of Criminal Appeals = holdings in Ex Parte Williams , 65 S.W.3d 656 (Tex.

Crim. App. 2001), Fullbright v. State , 818 S.W.2d 808 (Tex. Crim. App.

1991), and Heath v. State . 817

S.W.2d 335 (Tex. Crim. App. 1991).

However, we find these cases to be distinguishable from the present

case.

For example, the dissent interprets Heath as holding

that principles of estoppel do not apply to void sentences, even when the

defendant has enjoyed the benefits of his plea bargain for an impermissibly

lenient sentence. However, although the Heath

court addressed the State = s estoppel argument in its opinion, its fundamental holding

does not turn on that issue.

In Heath , a plea bargain case involving an

unauthorized grant of probation, a four-judge plurality held that both the

order placing the defendant on probation and the order revoking his probation

were void because the defendant was ineligible for court-ordered

probation. 817 S.W.2d 335, 337 (Tex.

Crim. App. 1991). After finding the plea

bargain to be unenforceable, the court remanded the cause to the trial court

with orders that the trial court withdraw the defendant = s plea and that the defendant replead

to the indictment. Id . The court relied on Shannon v. State ,

which held that A when a defendant, who has entered a negotiated plea of

guilty, challenges the conviction and is successful, the appropriate remedy is

specific performance of the plea, if possible, or, if not, withdrawal of the

plea, with both parties, including the State , returned to their original

positions. @

Id . at 337 (citing Shannon v. State , 708 S.W.2d 850, 852

(Tex. Crim. App. 1986)) (emphasis in original).

In its opinion on rehearing, the Heath court

reiterated its prior holdings: (1) if a punishment is not authorized by law,

the sentence is void; (2) appellant did not waive the issue by failing to

complain in the trial court because a defect that renders a sentence void may

be raised at any time; and (3) when the void sentence is obtained as a result

of a plea bargain agreement, where specific performance is not an alternative,

the remedy is to order the plea of guilty withdrawn and to return the parties,

including the State, to their original positions. Id .

Additionally, the court addressed the State = s argument that estoppel principles

should prevent the defendant from complaining about the State = s motion to revoke the unauthorized

probation because the defendant had enjoyed the benefit of it. Id . at 338-39. At the end of its discussion, the court

overruled three cases that seemed to hold that a defendant is estopped from

complaining when the State moves to revoke his probation if that probation was

not authorized in the first place. Id .

at 339.

Despite this discussion, the Heath court = s fundamental holding on rehearing

does not involve estoppel principles.

Rather, the Heath court = s holding simply reaffirms the Shannon

holding that A in plea bargain situations where the defendant successfully

challenges the conviction and specific performance is not an alternative, the

only remedy is to order the plea withdrawn and return the parties to their

original positions. @ Id . at

340. The court also emphasized that its

reliance on Shannon in its original opinion was proper. Id .

Furthermore, in Ex Parte Williams , the Court of

Criminal Appeals drew a distinction between unauthorized probation orders and

illegal sentences, and held that the Heath court erred in applying a

legal doctrine regarding sentences to facts involving a probation order. 65 S.W.3d 656, 658 (Tex. Crim. App.

2001). Although the Williams court

mentioned that the State raised an estoppel argument, Williams does not

control the present estoppel issue because the court = s analysis and holding address only

the distinction between sentences and probation and whether the defendant was

entitled to habeas relief. Id . at

658. Because Heath and Williams

involved probation orders rather than sentences and because their holdings

ultimately do not address estoppel, we disagree with the dissent = s conclusion that Williams extends

Heath = s estoppel

analysis to situations involving void sentences.

The dissent also believes that the majority = s position conflicts with the Court

of Criminal Appeals = decision in Fullbright v. State . 818 S.W.2d at 810

. However, like Heath , Fullbright

involved the unauthorized grant of probation rather than a void

sentence. Id . at 809-10. In Fullbright , the defendant, who was

indicted for aggravated robbery, filed a motion to quash an enhancement

allegation, arguing that his prior conviction was void because the court had

ordered unauthorized probation. Id .

at 809. Citing Heath , the court

reiterated the general principles that a sentence unauthorized by law is void

and that a defect that renders a sentence void can be raised at any time. Id . at 810. Without discussing

estoppel, the Court of Criminal Appeals held that the court of appeals erred by

holding that the defendant could not raise the issue on appeal, and it remanded

the cause to the trial court for a new punishment hearing. Id . at 809, 811.

In addition to the fact that Fullbright addressed an

unauthorized grant of probation rather than a void sentence, we do not consider

it controlling in the instant case because Fullbright focuses on the

concept of waiver rather than estoppel.

As Justice Keller remarked in her concurring opinion in Williams :

A estoppel [is] distinct from waiver

and > is part of the definition of what can

constitute error, and quite reasonably defines error of which a party may

complain as excluding those actions of the trial court actually sought by the

party to the tribunal. = @ 65 S.W.3d at 658 (Keller, J.,

concurring); s ee also Prystash v. State , 3 S.W.3d 522, 531 (Tex. Crim.

App. 1999) (explaining in an erroneous jury charge case that there is A a crucial distinction between the

rules of waiver and the law of invited error, @ and that the doctrine of invited

error is properly thought of as estoppel, not as a form of waiver). In answering the question of whether A any error capable of rendering a

judgment or sentence void can be subject to estoppel, @ Justice Keller asserted that all

errors except for subject matter jurisdiction are subject to estoppel and

concluded that A by accepting the plea agreement, appellant gained a

bargained-for benefit that should now estop him from challenging the trial

court = s authority. @

Williams , 65 S.W.3d at 659-60 (Keller, J., concurring). Although Williams

also involved an unauthorized grant of probation, because the issue in the

present case is whether appellant is estopped from complaining about the void

2001 conviction because he enjoyed the benefit of that sentence pursuant to a

plea bargain, we find Justice Keller = s analysis to be more instructive

than the court = s decision in Fullbright .

The dissent cites several cases in support of its assertion

that A courts of appeals have recognized the

continued validity of the legal doctrines stated in Fullbright and Heath

as applied to illegal sentences rather than probation orders. @

We disagree.

In the first case cited by the dissent, Rhodes v. State ,

the court referred in a footnote to Fullbright = s holding that A the State may not rely upon a

punishment that is > not authorized by law = for enhancement purposes. @ 175 S.W.3d 348 , 352 n.1 (Tex. App. C Houston [1st Dist.] 2004, pet.

filed). The court also reiterates the

principle that punishments unauthorized by law are void and states that issues

regarding void sentences cannot be waived. Id .

However, the issue in the instant case involves enhancement of an

offense, not a punishment, and the Rhodes court, like the Fullbright court,

makes no mention of the effect of estoppel on a void conviction.

Secondly, the dissent notes that in Scott v. State , a

case in which the defendant was not assessed a mandatory fine, the court of

appeals cited Heath and ordered a new punishment hearing even though the

defendant benefitted from an improperly lenient sentence. 988 S.W.2d 947, 948 (Tex. App. C Houston [1st Dist.] 1999, no pet.).

The court reasoned that a sentence outside the statutory limits is absolutely

void and cannot be waived. Id .

Importantly, however, this case was decided before Williams .

Furthermore, like Fullbright , Scott does not address the

difference between estoppel and waiver and it focuses on punishment rather than

enhancement of an offense.

Finally, the dissent correctly states that in Ortiz v.

State , this court cited Heath in discussing the law regarding

illegal sentences. Nos.

14-00-00646-CR, 14-00-00647-CR, 14-00-00648-CR, 2001 WL 1249257 , at *1 (Tex.

App. C Houston [14th Dist.] October 18, 2001, no pet.) (not designated

for publication). However, Ortiz merely

reiterates the established principle that illegal sentences are void; it does

not address estoppel. Id .

For these reasons, we believe that reliance on Ex Parte

Shoe is proper in this case and that appellant is estopped from complaining

about his void prior conviction because he enjoyed the benefit of the lesser

sentence. 137 S.W.3d 100, 102 (Tex. App. C Fort Worth 2004, pet. granted).

/s/ Adele Hedges

Chief Justice

Judgment rendered

and Majority and Dissenting Opinions filed February 7, 2006.

Panel consists of

Chief Justice Hedges and Justices Fowler and Frost. (Frost, J. dissenting)

Publish C Tex. R. App. P. 47.2(b).

[1] Documents

admitted at trial show that appellant had been convicted of DWI in 1993 and in

2000.

[2] A conviction

for felony DWI requires proof of two prior DWI convictions. Tex. Pen.

Code Ann. ' 49.09(b)(2) . See also Barfield v. State , 63 S.W.3d 446, 448 (Tex. Crim.

App. 2001).

[3] Tex. Pen.

Code Ann. ' 4.05 (Vernon 2005) (stating that

felony DWI offenses are tried in either the district courts or the criminal

district courts).