William Lawrence Wint v. State

11th Court of Appeals Eastland, Texas Opinion William Lawrence Wint Appellant Vs. No. 11-04-00168-CR -- Appeal from Ector County State of Texas Appellee After a nonjury hearing, the trial court granted the State=s motion to revoke community supervision and sentenced William Lawrence Wint to confinement for 5 years and a fine of $750. We modify and affirm in part; we reverse in part; and we remand the cause for a new punishment hearing. Background Facts Appellant was convicted in 1995 for the sexual assault of a child in Upton County, Texas. Appellant was indicted in Ector County in 2003 for failing to comply with the sex offender registration requirements of TEX. CODE CRIM. PRO. ANN. art. 62.10 (Vernon Pamph. Supp. 2004 - 2005). The indictment did not contain an enhancement allegation. Pursuant to a plea agreement on August 22, 2003, appellant was placed on community supervision for a state jail felony. See TEX. CODE CRIM. PRO. ANN. art. 42.12, ' 15(b) (Vernon Pamph. Supp. 2004 - 2005). The term of supervision was 5 years and a $750 fine, and one of the conditions was that appellant would have no direct or indirect contact with any minor child under the age of 17 unless supervised by an adult who had been approved by his community supervision officer. The State alleged in its motion to revoke that appellant had direct contact with minor children under the age of 17 without the supervision of an adult who had been approved by his community supervision officer. There were only two witnesses who testified at the revocation hearing on May 13, 2004. Roy Harrison, appellant=s community supervision officer, testified that he made an unannounced field visit to appellant=s residence on March 18, 2004. The man who answered the door said that appellant was not there because he was babysitting. That man gave Harrison the phone number where appellant could be reached. Harrison called his department, and someone gave him the address which matched that telephone number. Harrison went to that address and found appellant in the presence of several small children. There was also a woman on crutches who said that she had called appellant to help with the children. Harrison said that this woman had not been approved to supervise appellant with children. Appellant testified that his ex-wife had called and asked him to help her that day with her grandchildren because she had fallen and hurt her ankle. She needed him to help her until her husband got home that evening. Trial Court=s Ruling The trial court found that appellant had direct contact with minor children under the age of 17 without the supervision of an adult who had been approved by his community supervision officer and that this was a violation of one of the provisions of his community supervision. The trial court then sentenced appellant to serve a term of 5 years in the Texas Department of Criminal Justice and to pay a fine of $750. Issue Presented for Review Appellant argues that the trial court erred in sentencing him to five years confinement for a state jail felony. Opinion Appellant cites Mizell v. State, 119 S.W.3d 804, 806 (Tex.Cr.App.2003), where the court held: A sentence that is outside the maximum or minimum range of punishment is unauthorized by law and therefore illegal. A defendant may obtain relief from an unauthorized sentence on direct appeal or by a writ of habeas corpus....There has never been anything in Texas law that prevented any court with jurisdiction over a criminal case from noticing and correcting an illegal sentence. (Emphasis in original; Authorities omitted) The only case cited by the State is Bunton v. State, 136 S.W.3d 355 (Tex.App. - Austin 2004, pet=n ref=d). In that case, the defendant had been convicted of a state jail felony by a jury which found that his punishment should be enhanced by proof of the use of a deadly weapon during that offense and then enhanced again by proof of two prior felony convictions. In the case before us, appellant was convicted of a state jail felony. Normally, the maximum punishment for a state jail felony is confinement for a term of 2 years and a fine of $10,000. See TEX. PEN. CODE ANN. ' 12.35 (Vernon 2003). That section also states that an individual adjudged guilty of a state jail felony may be punished for a third degree felony if it is shown during the trial of the offense that a deadly weapon was used or that the individual had been previously convicted of any felony listed in TEX. CODE CRIM. PRO. ANN. art. 42.12, ' 3g(a)(1) (Vernon Pamph. Supp. 2004 - 2005) or any felony for which the judgment made an affirmative finding that a deadly weapon was used or exhibited. However, no such enhancement was alleged in this case. Moreover, the same offense cannot be used to require registration and to also enhance the punishment for failing to register. Ballard v. State, 149 S.W.3d 693 (Tex.App. - Austin 2004, pet=n ref=d); see also Hernandez v. State, 929 S.W.2d 11, 13 (Tex.Cr.App.1996). Article 62.10 provides that failure to register as a sex offender is a state jail felony unless it is shown during the trial of the person for an offense under Article 62.10 that Athe person has previously been convicted of an offense under this article.@ In that event, the person shall be punished for a felony of the third degree. The record shows only one failure to register as a sex offender. This Court=s Ruling The order of the trial court is modified to reflect that the offense was a state jail felony, rather than a third degree felony; and as modified, the order is affirmed insofar as it grants the motion to revoke appellant=s community supervision. The portion of the order assessing punishment is reversed, and the cause is remanded for the trial court to impose an appropriate sentence for a state jail felony. BOB DICKENSON SENIOR JUSTICE August 11, 2005 Do not publish. See TEX.R.APP.P. 47.2(b). Panel consists of: Wright, J., and McCall, J., and Dickenson, S.J.[1] [1]Bob Dickenson, Retired Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.