Jason Michael Simoneaux v. State

In The Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-06-003 CR NO. 09-06-004 CR ____________________ JASON MICHAEL SIMONEAUX, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 252nd District Court Jefferson County, Texas Trial Cause Nos. 83608 and 83609 MEMORANDUM OPINION In this appeal, we reverse the trial court's judgments on punishment in two related cases and remand the cases to the trial court for new sentencing hearings. Two indictments charged Jason Michael Simoneaux with endangering a child by "intentionally, knowingly, and recklessly engag[ing] in conduct that placed . . . a child younger than fifteen years of age in imminent danger of death and bodily injury, by driving while [i]ntoxicated with [the child] as a passenger[.]" In each case, the trial court admonished Simoneaux that the offense was a second degree felony. In accordance with the plea bargain agreements, the trial court deferred adjudication of guilt and placed Simoneaux on community supervision for five years. The State subsequently moved to adjudicate. Simoneaux pled true to violating the terms of the community supervision order by committing criminal offenses of failure to stop and give required information and driving while intoxicated. The trial court proceeded with an adjudication of guilt and sentenced Simoneaux to concurrent eighteen year terms of confinement. On appeal, Simoneaux contends for the first time that the offenses for which he has been convicted are punishable as state jail felonies, not second degree felonies. The State concedes error. The offenses alleged in the indictments describe endangering a child under Penal Code Section 22.041(c). Tex. Pen. Code Ann. § 22.041(c) (Vernon Supp. 2005) ("A person commits an offense if he intentionally, knowingly, recklessly, or with criminal negligence, by act or omission, engages in conduct that places a child younger than 15 years in imminent danger of death, bodily injury, or physical or mental impairment."). An offense under Section 22.041(c) is a state jail felony. Tex. Pen. Code Ann. § 22.041(f) (Vernon Supp. 2005). The sentences exceed the maximum penalty allowed by the applicable statute. Tex. Pen. Code Ann. § 12.35 (Vernon 2003). A sentence outside the range applicable to the offense is void. Hern v. State, 892 S.W.2d 894, 896 (Tex. Crim. App. 1994). The error is not subject to procedural default. See Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003); Heath v. State, 817 S.W.2d 335, 336 (Tex. Crim. App. 1991), overruled on other grounds by Ex parte Williams, 65 S.W.3d 656 (Tex. Crim. App. 2001). Accordingly, we reverse the trial court's judgments on punishment and remand the cases to the trial court with instructions to conduct a new punishment hearing. See Edwards v. State, 106 S.W.3d 377, 380 (Tex. App.--Fort Worth 2003, no pet.); Tex. Code Crim. Proc. Ann. art. 44.29(b) (Vernon Supp. 2005). REVERSED AND REMANDED AS TO PUNISHMENT. ___________________________________ DAVID GAULTNEY Justice Submitted on May 15, 2006 Opinion Delivered May 31, 2006 Do Not Publish Before McKeithen, C.J., Gaultney and Horton, JJ.