### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

ON MOTION F OR REHEARING

NO. 03-18-00260- CR 1

Ronald Ru dolp h Rodriguez, Appellan t

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F CO MAL CO UNTY, 207 TH JUDICI AL DISTRICT NO. CR2015 -39 5, H ONO RAB LE R. B RUCE B OY ER, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

Our opinion and judgme nt issued on J uly 24, 2018, are withdrawn, and the following opinion is subs tituted.

Ronald Rudolph R odrig uez was charg ed with possession of a controlled substance (methamphe tamine) in a corr ectional fac ility and with possession of less than one g ram of a controlled substance (methamphe tamine). See Tex. Penal Code § 38.11(d), (g ) (setting out offe nse

The notice of appea l for this case was orig inally filed in this Court in September 2016, and 1 the case was transfe rre d to the El Paso Court of Appea ls la ter that same month in compliance with a docket- equalization order issued by the supreme court. See Tex. Gov’t Code § 73.001 (authorizing transfe r of case s). I n Ap ri l 2 0 1 8 , the s upreme court iss ued another order t ransf err ing back to this Court this case and thirty -eig ht other case s that had also been previously transfe rre d to the El Paso Court a nd that had not y et rea ched a final dispositi on. See Misc. Docke t No. 18-9054, Transf er of Cases fr om Courts of Appeals (T ex. Apr. 12, 2018).of possession in corr ectional fac ility and stating that offe nse is third-deg ree felony ); Tex. Hea lth & Safety Code §§ 481.102(6), .115(a)- (b) (g overning offe nse of possession of l ess t han one g ram of

m et h am p hetamine and providing that offe nse is state-jail felony ). The indictment also contain ed

two enhanc ement para g raphs alleg ing that Rodrigue z had previously been convicted of two felony offe nses. See Tex. Penal Code §§ 12.42(d) (ra ising punishment rang e for felony offe nse if defe ndant
h as previously been convicted of two felony offe nses), .425(b) (ele vating punishment ran ge fo r state-jail fe lony

to that of second- deg ree felony if defe ndant has pre viously been c onvicted of two felony offe nses). At the start of the trial, Rodrigue z pleade d not g uilty to the offe nse of possessing

a controlled substance in a corr ecti o n al fa cil ity but pleade d g uilty to the offe nse of possessing

me th a mp h e ta mi n e
. D u r in g th e g u il t- o r - in n o c e n c e p h a s e , th e ju

r y f o u n d R o d ri g u e z g u i l t y o f p o s s e s s io n in a correctional fac ility

. At the end of the punishment phase, the jury found the enhanc ement al leg ations to be true and assessed Rodrigue z’s punishment for the char g e of possessi o n i n a

corr ectional fac ility at life imprisonment and for the char g e of possession of a controlled substance

at tw enty y ear s’ imprisonment, and the district court rende red its judgme nt of conviction in

acc ordanc e with the jury ’s verdicts. See id. §§ 12.33 (listing punishment rang e for second- deg ree felony ), .42(d) (setting out punishment rang e for felony offe nse when defe ndant has been previously convicted of two felonies)

. I n t hree issues on appea l, Rodrigue z contends that there was err or in the jury char g e, that he wa s p rovided with ineffe ctive assistance of counsel, and that one of the enhanc ement allegations was im proper ly included in the j ury char g e. W e wi l l reve rse the district court’s judg ments of conviction and r emand f or a ne w punishment hear ing.

2BACK GR OUND
As set ou t ab o v e, Rodrigue z was char g ed with possessing methamphetamine in a

corr ectional f

acility and with possessing less than one g ram of methamphetamine, and he plea ded
g u il ty to th e la

tt e r o f f e n s e
. T h e in d ic tm e n t c o n ta in e d e nh a n c e me n t p a r a g r a p h s a ll e g in g th a

t Ro d r ig u e z

was previously convicted of the felony offe nses of theft and forg ery
. During the g uilt-or-innoce nce phase, the State called va rious law-e nforc ement off icials to the stand. First, Offic er J ustin Gar cia explained that he was working “as an asset p ro t ection associate ” for a store on the day in question, that he observe d Rodrigue z g rab “an 18-pac k of beer ,” and that he saw Rodrigue z attempt to leave the store without pay ing fo r t h e b ee r. Next, Offic er J ason Tucke r was called to the stand and rela ted that Rodrigue z wa s taken into c ustody and driven

to jail, and in his cross-e x amination, Offic er Tucke r explained that he indicated on his repor t about the incid en t t h at R o d rig uez was intox icated. Then, Offic er J ohn Mahoney testified that he drove Rodrigue z to jail and that Rodrigue z seeme d coher ent on the trip to jail and asked Offic er Mahoney

to issue him a ticket rathe r than arr est him. After Of fice r Mahoney finished testify ing, Offic er Gilbert Serna rela ted that he asked Rodrigue z at the jail if Rodrigue z had any wea pons or contra

band

on him and that Rodrigue z denied car ry ing any co n t raba

nd, and Offic er Serna also testified that he found during a pat-down sear ch “a white bag with a clea r cry stal substance” inside Rodrigue z’s shirt pocket. Simi larly , Offic er Chris Stanley testified that he inventoried Rodrigue z’s wallet afte r R o d ri g uez was broug ht to jail and that there “wa s a white powder y substance” inside the wa l l et

. Finally , Offi ce r J ef

fr ey Keve rline was called to the stand and testified that he is “a controlled substance analy st,” that he tested the substances found during the pat-down sear ch of Rodrigue z

3and during the sear ch o f his wallet, that both substances wer e methamphetamine, that one of the

substances ha d a mass of 0.11 g rams, and tha t the other substanc e had a mass of 0.14 g rams. During the punishment phase, the State called sever al witnesses to testify reg arding
p r io r o f f e n s e s p u r p o r te d ly c o mm it

te d b y Ro d

r ig u e z, in c lu d in g th e tw o o f

f e n s e s li s te d a s e nh a

n c e me n ts in the indictment, and reg arding offe nses t hat allege dly occur red after the offenses at issue. After the witnesses finished testify ing, the jury assessed Rodrigue z’s punishment, and the district court rende red its judgme nt of conviction. Rodrigue z appea ls the district court’s judgme nts of conviction.

DISCUSSIO N
I n his fi rs t i s s ue on appea l, Rodrigue z contends that the district “cour t err ed in including the culpable mental state of ‘re ckless’ in the jury char g e.” I n his second issue on appea l, Rodrigue z arg ues that he was denied eff ective assistance of cou nsel. I n his final issue on appea l, Rodrigue z asser

ts that the district court err ed by including one of the enhanc ement alleg ations in the jury char g e.
Jury Charge The i ndictment in this case alleg ed, in rele vant part, that Rodrigue z “did then and there intentionally or knowing ly possess a controlled substance, to-wi t : M et hamphetamine, on
proper ty owned, used[,] or controlled by a corr ectional fac ility , to-wit: the Comal County J ail.” I n
contra st, the portion of the j u ry ch ar ge p erta ining to possession of a controlled substance in a

corr ectional fac ility specifie d as follows: “Our law provides that a person commits an offe nse if he intentionally , knowing ly , or re cklessly possesses a controlled substance while on prope rty owned,

4. . . used, or controlled [by ] a corr ectional fac ility .” Fur ther the char ge p ro v i d ed the complete statutory defini t i o n s for the terms intentionally , knowing ly , and rec klessly

. See Tex. Penal Code § 6.03. Moreove r, in the applica tion section, the cha rg e instructed the jury

as follows:

Now bear ing i n m i n d the fore g oing instructions, if y ou believe from the evidenc e bey ond a re asonable doubt, that . . . Rodrigue z . . . did t hen and the re intentionally , knowing ly , or rec klessly possess
. . . [m ]ethamphetamine, on proper ty owned, used[,] or controlled by a corr ectional faci l i t y , t o -wit: the Comal [C ]ount y jail, the[n] y ou will find [R odrig uez] g uilty of the offe nse of Prohibited Substance in a Correc tional Fa cility

.

On appea l, Rodrigue z contends that the inclusion of a re ck l ess mental state was improper for sever al rea sons. First, Rodrigue z arg ues t h at “‘ Reckless Possession of a Controlled Substance’ is [n] ot an [o] ffe nse” under the Penal Code. Although the statutory provision forbidding possession in a correc t i o n al fa ci l ity does not specify what culpable m ental st ate is require d for an offe nse, see id. § 38.11(d), Rodrigue z insists that only intentional or knowing conduct can constitute an offense and points to statutes and case law g overning the offense of possession o f a co n t rolled substance a s support for this proposition, see, e.g. , id. § 1.07(a) (39) (def ining “[p] ossession); Tex.
Hea lth & Safety Code § 481.115(a) (setting out offe nse of possession of co n t ro l l ed s ubstance ); Poindexte r v. State , 153 S.W .3d 402, 405 (Tex. Crim. App. 2005) (setting out requi re m ents for proving “unlawf

ul possession of a controlled substance” ), abrogated on other grounds by Robinson
v. State , 466 S.W .3d 166, 173 & n.32 ( Tex. Crim . App. 2015).

Additionally , Rodrigue z arg ues t hat “[ e]ven if rec kless possession were an off ense under the laws of this [S ]t ate,” the indictment did not char g e him for that offe nse and that including

rec klessness in the jury char g e but not in the i n d i ct m ent deprive d him “of [n] otice of the [a] ct or

5[a ]c ts [r ]e li e d [u ]p o n to [c ]o n s ti tu te ‘ [r ]e c k le s s n e s s
. ’ ” S

e e T e x . C o d e Cr im

. Pr o c
. a r t. 2 1

. 1 5 ( e xp la in in g
t h at if “it is char g ed that the acc used acte d rec klessly ,” indictment “must alleg e, with rea sonabl e

cer tainty , the ac t or ac ts relied upon to constitute rec klessness”)

.

For purposes of resolving this issue on appea l, we will assume without deciding that the inclusion of a mental state of rec klessness was err or. I f an appellate court deter mines that there is err or prese nt in a jury char g e, it must then evalua te the harm cause d by the err or. See Ngo v. State , 175 S.W .3d 738, 743 (Tex. Crim. App. 2005). The amount of harm neede d for a reve rsal depends

on whether a complaint reg arding “that err or was prese rved in the trial court.” Swearingen v. State , 2 7 0 S. W. 3 d 8 0 4 , 8 0 8 ( T e x. A p p
. — Au s ti n 2 0 0 8 , p e t. r e f

’ d )

. I f th e d e f

e n d a n t ma d e a ti me ly o b

je c ti o n ,

reve rsal is requir ed i f t here has been “ some harm.” Almanza v. Stat e , 686 S.W .2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’ g ). Howeve r, if no objection was made, a reve rsal is war rante d only
if the err or “re sulted in ‘eg reg ious harm.’” See Neal v. State , 256 S.W .3d 264, 278 (Tex. Crim. App. 2008) (quoting Almanza , 686 S.W .2d at 171).

I n this cas e, Rodrigue z contends that this Court should deter mine whether there

was some harm stemming from the err or beca use he objected to the inclusion of the rec kless mental

sta t e, but the State contends that this Court should addre ss whether Rodrigue z was eg reg iously harme d beca

use he failed to proper ly object to the jury instructions. For purposes of resolving this 2

I n its brief, the State also asser ts that Rodrigue z is prohibited “fr om complaining ” about the 2 instructions beca

use Rodrigue z reque sted that the chang es to the jury instructions be made. Given our ul timate resolution of this issue on appea l, we nee d not decide w hether the doctrine of i nvited err or applied in thi s ca s e. S ee Druery v. State , 225 S.W .3d 491, 505-06 (Tex. Crim. App. 2007) (explaining that defe ndant was estopped on appea l from complaining about absenc e of lesserincl u d ed instruction when defe ndant asser ted during trial that he did not want lesser instruction). Howeve r, we do note that it appea rs from the rec ord that Rodrigue z only ag ree d to cer tain chang es 6issue on appea l, we will assume for the s ake of arg ument that Rodrigue z objected to the inclusion of a rec kless mental s tate in t he abstra ct and a pplication sections of the jury char g e. Ac cording ly ,

we will analy

ze whether Rodrigue z suffe red some harm by the inclusion of the rec kless mental state.
I n this ty pe of analy sis, rev i ew i ng courts “consider: (1) the j ury char g e as a whole, (2) the arg uments of counsel, (3) the entirety of the evidenc e, and (4) other rele vant fac tors prese nt in th e r e c o r d

. ” R e e v e

s v
. S ta te , 4 2 0 S. W. 3 d 8 1 2 , 8 1 6 ( T e x. Cr im

. A p p
. 2 0 1 3 )

. A lt

h o u g h th e s ta

n d a r d is less stringe nt than the analy sis perf ormed when an objection is not made, the revie wing court must still “find that the defe ndan t ‘s u ff ere d some actua l, rathe r than mere ly theore tical, harm from the

err or.’” Id. (quoting W

arner v. State , 245 S.W .3d 458, 462 (Tex. Crim. App. 2008)). I f there has been an objection, a reve rsal is war rante d when the err or is “ca lculat ed t o i n jure the rig hts of the defe ndant.” Id. (quoting Almanza , 686 S.W .2d at 171).

As set out above, the j u ry ch ar ge included the mental state of rec klessness in the abstrac t section as well as in the application s ection setting out the offe nse, and the char g e also included a definition of rec klessness in the abstrac t section. Moreove r, the State mentioned

o n ce during its closing arg uments that the jury could find Rodrigue z g uilty if they found that h e “intentionally , knowing ly , or re cklessly ” possessed me thamphetamine a t the jail.

Howeve r, neither the State nor Rodrigue z sug g ested that the evidenc e indicated that Rodrigue z rec klessly possessed the methamphetamine. Although Rodrigue z arg ued in his opening
arg ument that he forg ot that the drug s wer e in his possession beca use he was drunk at the time of his

afte r the district court considere d Rodrigue z’s objection to the inclusion of a lesser- included-of fense instruction and deter

mined that a lesser

instruction with a rec kless mental state c ould be g iven. 7arr est, he did not arg ue that he rec klessly obtained possession of the methamphetamine. I nstead,

Rodrigue z arg ued that the misconduct at issue did not fall within the purpose of th e go v er ning statute, which, acc ording to Rodrigue z, “is to addre ss the issue of contra band

. . . in the possession of prison inmates.” Fur

ther, Rodrigue z empha siz ed that he “wa s not a prison inmate” and that the drug s wer e only found as a result of “the booking proce ss.” See Brown v. State , 89 S.W .3d 630, 633 (Tex. Crim. App. 2002) (re jecting arg

ument that evidenc e was insufficient to support conviction for possessing contraba

nd in corr ectional facility beca use defendant was taken to cor rec tional fac ility
ag ainst his will after being arr ested).

I n addition, Rodrigue z sug g ested that finding a defe ndant g uilty under these ci rc u m s t an ces will encour ag e police office rs to not perf orm a thoroug h sear ch with the hope o f finding drug s when the defe ndant is taken to jail. Finally , Rodrigue z arg ued that the State failed to
meet its burde n of proving the eleme nts bey ond a rea sonable doubt, e mphasized the small a mount of contra band at issue, a

nd urg ed that the State wa s misusi ng the law “ to simpl y pile on.”
I n i t s closing , the State asser ted that Rodrigue z violated the law by possessing a controlled substance in a corr ectional fac ili t y , that Rodrigue z made the decision “to possess that controlled substance,” that the evidenc e prese nted at trial sug g ested that Rodrigue z was competent and not intox icated when he wa s b ro u gh t t o jail, that intox ication is not a defe nse to the char g ed crime in any event, that the amount of contra band possessed is not an element of the char g ed offe nse, and that Rodrigue z was essentially asking the jury to ignor e the law in order to find him not g uilty

.

More importantly , the evidenc e pre sented in this case demonstrates tha t Rodrigue z did not suffe r some harm from the alleg edly err oneous jury char g e. Although one of the office rs

8testified that he mar k ed o n h is incident repor t that Rodrigue z was intox icated, no evidenc e was introduced indicating that Rodrigue z rec klessly possessed the m ethampheta mine, and another office r testified that Rodrigue z was coher ent and responsive. I n addition, the jury was prese nted with evidenc e that police office rs found two bag s of methamphetamine—one in Rodrigue z’s shirt pocket and the other i n his wallet—as a result of their sear ch of Rodrigue z at the jail and that Rodrigue z pleade d g uilty to know ingly or intentionally possessing one of the bag s of methamphetamine. See Brumbalow v. State , No. 11-08-00277- CR, 2010 WL 2696712, at *1, *3 (Tex. App.—Eastland J uly 8, 2010, no pet.) (mem. op., not desi g nated for publication) (dete rmining that evidenc e was sufficie nt
to support conviction for knowing ly possessing methamphetamine wher e methamphe t am i n e was found inside cig are tte pack located inside shirt that defe ndant was wea ring ); Riggs v. State , No. 11- 05-00012-CR, 2005 WL 2476 2 6 7 , at *1, *2 (Tex. App.—Eastland Oct. 6, 2005, pet. ref ’d) (not d es i gnated for publication) (explaining that evidenc e was sufficie nt to support conviction for manufa cturing controlled substance wher e defen dant was found wea ring shirt containing “a key ingr edient for manufa cturing methamphetamine” ). No evi d en ce was prese nted during the trial

s u g g e s ti n g th a

t Ro d r ig u e z’ s me n ta l s ta

te a s it r e la

te d to th e p o s s e s s io n o f th e b a g o f me th a mp h e ta mi n e serving as t he basis for the char g e of posse ssion in a correc tional fac ility differ ed from his mental state as it re lated to the possession offe nse that he ple aded g uilty to. 3

I n his brief, Rodrigue z points to a prior opinion by this Court as support for the i dea that 3 he was harme d by the allege dly err oneous jury char g e. See Limon v. Stat e , No. 03-10-00666-CR, 2012 WL 5392160 (Tex. App.—Austin Nov. 2 , 2012, no pet.) (mem. op., not desig nated for publication). I n Limon , this Court deter mined that the inclusion of a rec kless mental state in the abstrac t and application sections of a jury char g e for the crime of crue lty to animals was err oneous beca use the g overning statute at that time provided that a person committed an o ff en s e i f he “intentionally

or knowing ly

. . . abandons unreasona

bly an animal in the person’ s custody .” Id. at 9Under the unique circ umstances of this case , we conclude that Ro d ri gu ez d id not

suffe r some harm as a result of the alleg ed char g e err or. Acc ording ly , we overr ule Rodrigue z’s first issue on appea l.

Assistance of Coun sel

I n his second issue on appea l, Rodriguez as s er ts that he “wa s denied the rig ht of eff ect i v e assistance of counsel throug hout sever al critica l stag es of his trial: during the criminal trial itself

. . . and during the time period for the filing of a motion for new trial.” Reg arding the trial, Rodrigue z asser

ts that his trial “attorne y prese nted no witnesses,” admitted “no evidenc e of any sort,” and perf

ormed “ver

y littl e cross-e x amination” of the State’s witnesses. Fur ther, Rodrigue z contends that “ [t ]he recor d ref lects no motions made for f unding of investiga tors or experts.”
To succe ed o n an i neff

ectivene ss claim, a defe ndant must overc ome the strong presumption that his trial “counse l’s conduct falls within the wide rang e of rea sonable profe ssional assistance ” and must show that the attorney ’s “re prese ntation fell below an objective sta n d ar d o f

rea sonablene ss
. . . under preva iling profe ssional norms” and “that there is a rea sonable probability that, but for counsel’s unprofe ssional err ors, the result of the proce eding would have been differ ent.”

*1, *2 (quoting Act of May 24, 2001, 77th L eg ., R.S., ch. 450, § 1, sec. 42.09(a) (3), 2001 Tex. Gen. L aws 8 8 7 , 8 8 7 ( amende d 2007) (cur rent version at Tex. Penal Code Ann. §§ 42.09(a) (3), .092(b)( 4)). Fur ther, this Court conclude d that the defe ndant was eg reg iously harme d by the jury -cha rg e err or beca use “[t] he err oneous inclusion of the ‘re cklessly ’ mental state was not ‘cor rec ted or ameliora ted’ in another portion of the char g e,” beca use the evidenc e sug g ested that the defe ndant’s conduct could have been “re ckless as opposed to intentional or knowing ,” and be cause repe ated a ssertions to the err oneously included rec kles s m en tal state wer e made by the State and by the defe ndant during their arg uments. Id. at *3-4 (quoting Ngo v

. State , 175 S.W .3d 738, 752 (Tex. Crim. App. 2005)). Howeve r, in light of the signific ant evidentiar y differ ence s prese nt in this case as well as the fac t that ref ere nces to a rec kless mental state by the parties in this case wer e minimal, we believe that Limon is disti ng uishable fr om the curr ent ca se. 10Strickland v. W ashington , 466 U.S. 668, 688, 689, 6 9 4 (1 9 8 4 ). “A rea sonable probability is a probability sufficie nt to undermine confide nce in the outcome.” Nava v. State , 415 S.W .3d 289, 308 (Tex. Crim. App. 2013). “I t will not suffice for Appellan t t o show ‘that the err ors had some

conce ivable eff

ect on the outcome of the proce eding .’” Perez v. State , 310 S.W .3d 890, 894 (Tex. Crim. App. 201 0 ) (quoting Strickland , 466 U.S. at 693). “Rather , he must show that ‘there is a

rea sonable probability that, absen t t h e er rors, the fac tfinder would have had a rea sonable doubt
respe cting g uilt.’” Id. (quoting Strickland , 466 U.S. at 695). “Any alleg ation of ineffec t i v en ess
must be firmly founded in the rec ord, and the rec ord must af fi rm atively demonstrate the alleg ed ineffe ctiveness.” Thompson v. State , 9 S.W .3d 808, 813 (Tex. Crim. App. 1999).

“[A]n appellant’ s failure to satisfy one prong of the Strickland test neg ates a court’s need t o co nsider the other prong .” Garcia v. State , 57 S.W .3d 436, 440 (Tex. Crim. App. 2001). Evaluations of eff

ectivene ss are based on “the totality of the repr esenta tion.” F r a n g i a s v. State , 450 S.W .3d 125, 136 (Tex. Crim. App. 2013); see also Davis v. State , 413 S.W .3d 816, 837 (Tex. App.—Austin 2013, pet. ref ’d) (providing tha t assessment should consider “ cumulative ef fec t” of counsel’s defic iencies)

. Fur thermore , even though a defe ndant is not entitled to repr esenta tion that is err or-f ree , a si ng le error can render the repr esenta tion ineffe ctive if it “wa s eg reg ious and had a seriously deleter ious impact on the balance of the represe ntation.” Frangias , 4 5 0 S

. W

. 3 d at 136;

see also Blount v. State , 64 S.W .3d 451, 455 (Tex. App.—Texarkana 2001, no pet.) (explaining that

even if “c o u n s el ’s ac tions

. . . seem imprudent in hindsight, it is not for us to second- g uess her strateg y ”). I n addition, a defe ndant cannot claim that his trial counsel provided ineffe ctive assistance

o f c o u n s e l b y f a il in g to c a ll w it

n e s s e s u n le s s th e d e f

e n d a n t c a n s h o w th a

t th e w it n e s s e s w e r e a

v a il a b le

11and that their testimony would have benef itted the defe ndant. See King v. State , 649 S.W .2d 42, 44 (Tex. Crim. App. 1983); Brennan v. State , 334 S.W .3d 64, 79 (Tex. App.—Dallas 2009, no pe t.);
Tutt v. State , 940 S.W .2d 114, 121 (Tex. App.—Tyler 1996, pe t. ref’ d).

I n g e n e r a l, d ir e c t a

p p e a ls d o n o t p r o v id e a u s e f u l v e h ic le f

o r p r e s e n ti n g in e f

f e c ti v e n e s s claims beca

use the rec ord for that ty

pe of claim “is g ener all y undevelope d.” Goodspee d v. State , 187 S.W .3d 390, 392 (T ex
. C ri m
. App. 2005); see also Mallett v. State , 65 S.W .3d 59, 63 (Tex. Crim. App. 2001) (stating that “[i] n the majority of case s, the rec ord on direc t appea l is undevelope d and cannot adequa

tely ref lect the motives behind trial counsel’s actions”)

. I n addition, befor e their
repr esenta tion is deeme d ineffe ctive, trial attorney s should be aff orded the opportunity to explain their actions. Goodspee d , 187 S.W .3d at 392 (stating that “counse l’s conduct is revie wed with g rea t defe renc e, without the distorting e ffe cts of hindsig ht”). I f that opportunity has not bee n provided,

as in this case , an appellate court s h o uld not deter mine that an attorney ’s perf ormanc e was ineffe ctive unless the conduct at issue “wa s so outrag eous t hat no competent attorney would have
eng ag ed in it.” See G arcia , 57 S.W .3d at 440.

As set out above, no motion for new trial was filed in this case , and no alleg ations of ineffe ctive assistanc e we re pr esente d to the district court. Ac cording ly , Rodrigue z’s trial attorney has not been aff

orded the opportunity to explain his rea sons for not calling any witnesses to the stand and for limit ing his cross-e x amination of the State’s witnesses. Compare Mallett , 65 S.W .3d at 63 ( p r o v id in g th a

t “ [w ]h e n th e r e c o r d is s il e n t o n th e mo ti v a ti o n s u n d e r ly in g c o u n s e l’ s ta c ti c a l d e c is io n s , th e a p p e ll a n t u s u a ll y c a

n n o t o v e r c o me th e s tr o n g p r e s u mp ti o n th a

t c o u n s e l ’ s c o n d

u c t w a s r e a s o n a

b le ” ) , Villalobos v. Stat e , No. 03-13-00687-CR, 2015 WL 5118369, at *5 (Tex. App.—Austin Aug

. 26,

122015, pet. ref ’d) (mem. op., not desig nated for publication) (stating that, in g ener al, without rec ord

e v id e n c e r e g a

r d in g a tt o r n e y ’ s s tr a te g y , a p p e ll a te c o u r ts “ c a nn o t s p e c u la

te a s to w h e th e r a v a li d s tr a te g y exis ted, and thus [an] appellant cannot rebut the strong presumption of rea sonable assistance ”), and
W ard v. State , No. 05-01-01790- CR, 2002 WL 31159972, at *2 (Tex. App.—Dallas Sept. 30, 2002, pet. ref ’d) (mem. op., not desig nated for publi ca t i on) (explaining that revie wing courts “do not inquire int o counsel’s trial strateg y unless such strateg y does not have a plausible basis,” commenting that rec ord contained “no explanation for counsel’s ac t i o n s , ” and concluding that defe ndant had not met first Strickland prong “bec ause he has not shown that counsel’s perf ormanc e

was defic ient”), with Lair v. State , 265 S.W .3d 580, 593-96 (Tex. App.—Houston [1st Dist.] 2008, pet. ref ’d) (dete rmining that new p u n i s h m en t hear ing should be held wher e defe ndant attache d aff idavits from “almost two dozen witnesses” to motion for new trial “all of whom stated that they

wer e not contac ted by appellant’ s trial counsel and that they wer e rea dy , willing, and able to testify

on appellant’ s behalf at the punishment stag e” and wher e tr i al counsel also submitt ed aff idavit stating tha t “he did not eve n interview th[o] se witnesses” and that “the importance of humanizi ng appellant to the jury outweig hed the fac t that the State could h ave had eac h of the witnesses acknow ledg e appellant’ s prior felony conviction”) , and Shanklin v. State , 190 S.W .3d 154, 163-66,
1 6 8 ( T e x. A

p p
. — H o u s to n [1 s t D is t. ] 2 0 0 5 ) ( r e ma n d in g f o r n e w p u n is h me n t h e a

r in g a f te r d e te r mi n in g that trial attorney provided ineffe ctive assistance of counsel wher e aff idavits from 2 0 witnesses

wer e submitt ed as part of motion for ne w trial desc ribing what witnesses’ testimonies would have been and st at i n g t h at trial attorney never contac ted them and wher e trial attorney admitted in his

a f f id a v it “ th a t h e ‘ d id n o t c o n d

u c t a n y me a n in g f u l in v e s ti g a ti o n ’ ” r e g a

r d in g “ ‘ th e p u

n is h me n t s ta g e ’ ” ) , pet. dism’d, improvide ntly granted , 211 S.W .3d 315 (Tex. Crim. App. 2007).
13Moreove r, “the decision whether to prese nt witnesses is larg ely a mat t er o f t rial

strateg y . ” Har kcom v. State , No. 02-12-00576- CR, 2016 WL 3960581, at *3 (Tex. App.—For t Worth J uly 21, 20 1 6 , n o pet.) (mem. op., not desig nated for publication). Simi larly , decisions
reg arding ““[w]hether to cross-e x amine a witness and the extent of cross-e x amination ar e prime examples of trial strateg y .” Barragan v. State , No. 01-93-01137- CR, 1994 WL 719778, at *3 (Tex. App.—Houston [1st Dist.] Dec . 29, 1994, no pet.) (not desig nated f or publication); see also Nava

v
. S ta te , N o s
. 1 1

- 1 2

- 0 0 1 1 5

— 0 0 1 1 6

- CR , 2 0 1 3 WL 4 0 5 2 5 6 0 , a t * 4 ( T e x. A

p p
. — E a s t la n d A u g
. 8 , 2 0 1 3 , no pet.) (me m. op., not de signa ted for publication) (stating that “[t] he extent of c ross-examination does not prove ineffe ctive assist ance ”); Rubio v. Stat e , No. 13-03-00426-CR, 2 0 0 4 WL 1698321,

at *2 (Tex. App.—Corpus Christi J uly 29, 2004, no pet.) (mem. op., not desig nated for publication) (noting that “brie f cross-e x amination of a witness may also fall within the purview of trial strateg y ”).

I n light of the undeveloped record befor e t h i s Court, it is not entirely clea r t hat t he
fi rs t p rong of the Strickland test could be met here

. Howeve r, even assuming for the sake o f
arg ument that the rec ord befor e this Court established that the alleg ed failure s wer e unrea sonable in

t h es e ci rcumstanc es, we are still unable to conclude that the second prong of Strickland has b ee n
met. Rodrigue z has not demonstrated on appeal t h at t here wer e witnesses that wer e available to
te s ti f y o r w h a t th e ir te s ti mo n ie s w o u ld h a v e b e e n
. Si mi la

r ly , Ro d r ig u e z h a s n o t s e t o u t w h a

t e v id e n c e would have been admitted throug h additional cross-e x amination of the State’s witnesses. I n the absenc e of a

ny evidenc e in the re cord indica ting what the testimony from the a dditional witnesses would have been or what evidenc e would have been admitted throug h additional cross-e x amination, Rodrigue z’s arg uments amount to asser tions that his trial attorney ’s all eg ed failure s had a

14conce ivable eff ect on the outcome of the trial, which is insufficient to support a claim of ineffe ctive assistance

. See Bone v. State , 77 S.W .3d 828, 835 (Tex. Crim. App. 2002) (ca utioning re viewing

courts ag ainst specula ting “about the exis tence of” mitigating evidenc e and noting that “[i] neff ective assistance of counsel claims are not built on retrospe ctive specula tion”); Brennan , 334 S.W .3d at 79 (over ruling issue asser

ting that trial counsel was ineffe ctive for failing to call witness to stand when defe ndant fa iled to meet his burden of establishing tha t witness was ava ilable). Having deter

mined that Rodrigue z has not shown that his trial attorney provided ineffe ctive assistance of counsel on the g rounds alleg ed ab o v e, we need not further addre ss the matter, but w e do emphasize that ineffe ctiveness challeng es are considere d in light of “ the totality of the repr esenta tion” provided by the attorney

. See Thompson , 9 S.W .3d at 813; see also Simmons

v. State , Nos. 03-11-0 0229—00230-CR, 2012 WL 3629864, at *4 (Tex. App.—Austin Aug

. 22,
2 0 1 2 , p e t. r e f

’ d ) ( me m. o p
. , n o t d e s ig

n a te d f o r p u b li c a ti o n ) ( d e te r

mi n in g th a

t “ [t ]h e c r it ic a l w e a

k n e s s ” in ineffe ctiveness c laim was “its fa ilure to consider the totality

of trial counse l’s repr esenta tion”).
Moreove r, we note that during voir dire, Rodrigue z’s attorn ey q u es t ioned the jury panel reg arding fac tors they would consider in deter mining someone’s sentenc e for drug possession, including whether the amount of the drug would be a fac t o r; re gar d i n g the cost to incar cer ate

n o n v io le nt offe nders; reg arding whether the State might overc harg e someone; and r e g a r d in g w h e th e r the panel might cre dit a police office r’s testimony more than the testimony from someone who is not a law-enfor ceme nt office r. Fu rt h er , Rodrigue z’s attorney emphasized the S tate’s burden of proof and a defe ndant’s rig ht to not testify , and Rodrigue z’s attorney moved to strike sever al panelists for

caus e
. I n a d d it io n , d

u r in g th e g u il t- o r - in n o cenc e phase, Rodrigue z’s attorney cross-e x amined sever al

15of the State’s witnesses and arg ued during his closing arg uments that the State had not met its burden

of proof and that the conduct at i s s u e i n t h i s ca se did not fall under the purpose of the statute prohibiting possession in a corr ectional fac ility

. Duri n g his opening statement in the punishment phase, Rodrigue z’s attorney arg ued that Rodrigue z’s life fell apar t afte r he beca

me addicted to drug s and alcohol and that Rodrigue z’s prior offe nses wer e all “low level, nonviolent offe nses.” Finally , during his closing arg uments, Rodrigue z’s attorney emphasized the “nonviolent nature of this case ,” noted the small amount of methamphetamine involve d , a tt e mpted to undermine the cre dibilit y of one of the State’s witnesses, and sug g ested that the jury should consider imposing a minimal sente nce.

I n th e a b s e n c e o f f

u r th e r in f o r ma ti o n , w e c o n c lu d e th a

t th e to ta li ty o f th e r e p r e s e n ta ti o n would seem to ref

lect that Rodrigue z was not provided with ineffe ctive ass i s t an ce o f counsel during the trial.

I n addition to arg uing tha t he was de nied ef fec tive assistance of counsel during the trial, Ro d ri gu ez also arg ues, as discussed previously , that he was denied eff ective assistance of counsel during the time period for filing a motion for new trial. Specifica lly , Rodrigue z asser ts that his trial counsel failed to file a motion for new trial and that by the time that his trial counsel withdrew from the case and by the time he was appointed appellate counsel, “the time for a motion for new trial had expired.” Additionally , Rodrigue z sug g ests that if he had “bee n able to avail himself of the reme dy of a motion for new trial, he would have been able to prese nt evidenc e of the shortcoming s and def

icient per formanc e of [his] trial counsel on the r ecor d.”
As pointed out by Rodrigue z, the 30-day period of time “to file a motion for new trial afte r t he date that the t rial court imposes o r s u s p en d s sentenc e in open court” i s a “‘critica l stag e’

16during which a defe ndant is constitutionally entitled to eff ective assistance of counsel in filing a motion for new trial.” Cooks v. State , 240 S.W .3d 906, 907-08 (Tex. Crim. App. 2007); see Benson

v. State , 224 S.W .3d 485, 490 (Tex. A pp.—Houston [1st Dist.] 2007, no pet.); Massingill v. State , 8 S. W. 3 d 7 3 3 , 7 3 7 ( T e x. A p p
. — Au s ti n 1 9 9 9 , p e t. r e f

’ d )

. H o w e v e r , “ w h e r e a d e f e n d a n t is r e p r e s e n te d by counsel during trial, [t here is] a rebuttable presumption that this counsel continued to adequately

r e p r e s e n t th e d e f

e n d a n t d u r in g th is c r it ic a l s ta g e
. ” Co o k s , 2 4 0 S. W. 3 d a

t 9 1 1 ; s e e B e n s o n , 2 2 4 S. W. 3 d
at 491. Stated differ ently , “whe n a mot ion for new t rial i s not filed i n a case, t here is a rebuttable presumption that the defe ndant was counsele d by his attorney reg arding the merits of the motion and ultimately reje cted the option,” and “this presumption will not be rebutted when there is nothing in the rec ord to sug g est otherwise.” Prudhomme v. State , 28 S.W .3d 114, 119 (Tex. App.—Texarkana 2000, order ), disp. on merits , 47 S.W .3d 683 (Tex. App.—Texarkana 2001, pet. ref ’d); see Oldham

v. State , 977 S.W .2d 354, 363 (Tex. Crim. App. 1998) (discussing rebuttable presumption when no motion for new trial is f

iled and noting that “[t] here [wa]s nothing in the rec ord to sug g est that the attorney did not discuss the merits of a motion for a ne w trial with the appe llant”).
I n th is c a s e , a

p p r o xim a te ly tw e n ty

- tw o d a y s a f te r Ro d r ig u e z’ s c o n v ic ti o n , Ro d

r ig u e z’ s trial counsel filed a notice of appe al as well as a motion to withdraw in or der to a llow a n appellate attorney to be appointed. Fur

ther, the district court did not g rant the motion to withdraw until the last day for filing a motion for new trial when the district court also appointed an appellate attorney for Rodrigue z. Compare Munoz v. State , No. 03-10-00547- CR, 2 011 WL 2437665, at *2 (Tex. App.—Austin J une 15, 2011, no pet.) (mem. op., not desig nated for publication) (c oncluding that presumption that defe ndant, “with the advice of counsel, had previously considere d and reje cted the

17option of filing a motion for new trial” was not overc ome wher e t h er e wa s n o evidence that trial

counsel withdrew during 30-day period for fil i n g m o tion for new trial), with Cooks , 240 S.W .3d

at 911 (stating that presumption was rebutted wher e there was evidenc e “that app el l an t was
unrepr esente d by counsel during the initial twenty day s of the 30-day period” and wher e appointed
ap p el l at e counsel asser

ted “that there was not enoug h time afte r her appointment to adequately assist appellant in deciding whether to fi l e a motion for new trial” (interna l footnote omitted)),
Bearman v

. State , 425 S.W .3d 328, 330 (Tex. A pp.—Houston [1st Dist.] 2010, order ) (e x plaining that “pre sumption that appellant continued to be repr esente d by trial counsel during ” 30-day period for filing motion for new trial did not apply “bec ause the rec ord conclusively shows that he was not” wher e rec ord demonstrated that trial attorney “wa s permitted to withdraw two wee ks into the 30-day period” and that “appe llate counsel was not appointed unti l after the 30-da y period ha d expired”), disp. on merits , No. 01-08-00787, 2011 WL 2501626 (Tex. App.—Houston [1st Dist.] J une 2 3 , 2011, pet. ref

’d) (mem. op., not desig nated for publication), and Garcia v. State , 97 S.W .3d 343, 348 (Tex. App.—Austin 2003, pet. ref’d) (deter mining that pres u m p t i o n h ad been rebutted when trial

court allowed appointed counsel to withdraw at time of defe nd an t ’s sentenc ing, when appellate counsel was not appointed until well over one month later, and when defe ndant filed pro se motion for ne w trial alleg ing ine ffe ctive assistanc e of c ounsel).

I n light of the rec ord bef

o re t h is Court, particula

rly the fac ts that Rodrigue z’s trial attorney did not withdraw until the last day of the 30-day period for filing a motion for new trial and that R o d ri gu ez was appointed appellate counsel on that same day , cf. Munoz , 2011 WL 2437665,

at *2 (obser

ving that presumption is g ener ally only overc ome when “ther e is some evidenc e in the

rec ord that the defe ndant was not repr esente d by counsel at some point during the 30-day period in
18w h ic h to f

il e a mo ti o n f

o r n e w tr ia l” ) , w e c a

nn o t c o n c lu d e th a

t Ro d r ig u e z h a s r e b u

tt e d th e p r e s u

mp ti o n that his trial counsel repr esente d him eff ectively during the 30-day period for filing a motion for new trial and that his trial counsel discussed the option of filing a motion for new trial but that Rodrigue z reje cted that option.

For all of these r easons, we overr ule Rodrig uez’s second issue on a ppeal.

Enh ancem ent Allegation

I n h is f in a l is s u e o n a

p p e a l, Ro d

r ig u e z c o n te n d s th a

t o n e o f th e e nh a

n c e me n t a l l e g a t i o n s used to eleva te his punishment rang e for both char g es was based on a void judg ment of conviction and was “ther efor e unavailable fo r enhanc ement of punishment.” As discussed previously , the 4

As an initial matter, we note that Rodrigue z did not prese nt this issue in his opening 4 appellate brief an d i n s t ea d prese nted hi s arg uments in a fili ng that he called a supplemental brief. “A brief may be amende d or supplemented with the court’s permission ‘whe never justice require s, on whateve r rea sonable terms the court may presc ribe,’” Houston v. State , 2 8 6 S

. W

. 3 d 604, 612 (Tex. App.—Bea u m o n t 2009, pet. ref ’d) (quoting Tex. R. App. P. 38.7), but no supplement was reque sted by this Court. Acc ording ly , Rodrigue z has essentially prese nted a new arg ument in a reply bri ef , and reply briefs are “not intended to allow an appellant to raise new issues” that wer e not addre ssed in an appellee ’s brief. State v. Sanchez , 135 S.W .3d 698, 700 (Tex. App.—Dallas 2003) (explaining that court “nee d not consider the matter as it is a new issue raised in the State’s reply b r ie f ” ) , a ff ’ d 1 3 8 S. W. 3 d 3 2 4 ( T e x. Cr im

. A p p
. 2 0 0 4 )

. H o w e v e r , in li g h t o f th e n a tu r e o f Ro d r ig u e z’ s supplemental claim and of g overning case law perta ining to challeng es to the leg ality of sentenc es, we will “construe the briefing rules liberally to allow the issue to be prese nted as an amendment to th e a p p e ll a n t’ s b r ie f

. ” S e e H o u s to n , 2 8 6 S. W. 3 d a

t 6 1 2 ; s e e a ls o W

o o d v
. S ta te , N o
. 0 1

- 1 6

- 0 0 1 7 9

- CR , 2017 WL 4127835, at *4, *6 (Tex. A pp.—Houston [1st Dist.] Sept. 19, 2017, pet. g rante d) (mem. op., not des i g nated for publication) (addr essing issue reg arding leg ality of sentenc e that was prese nted for first time in reply brief beca use appellate courts may corr ect illega l s en t en ces and reve rsing for ne w punishment hear ing be cause trial court’ s sentence was illeg al and void); Bruton v. Stat e , No. 08-11-00316-CR, 2013 WL 4029272, at *4 (Tex. App.—El P as o Aug

. 7, 2013) (not desig nated for publication) (commenting that “[a] new issue may not be raised for the first time in a reply brief” but ad d ressing “ar g uments raised in the reply brief in the interest of justice”), aff’d 428 S.W .3d 865 (Tex. Crim. App. 2014). 19indictment alleg ed that Rodrigue z had been previously convicted of two felony offe nses, and the jury

found those enhanc ement alleg ations to be true. The rele vant enhanc ement alleg ation provided that Rodrigue z “wa s duly and lega lly convic t ed o f t h e felony offe nse of THEF T, alleg ed to have been committed on or about the 27th day of September , 1994.”
As support for the enhanc ement alleg ation, the State submitt ed sever al d o cuments perta ining to the 1994 offe nse, and all of those documents contained the same ca u s e n umber, specifie d that the defe ndant for the 1994 offe nse had the same name as R o d ri gu ez , and wer e 5
admi t t ed into evidenc e as exhibi ts during the punishment phase. The first document was the indictme n t for the 1994 offe nse, and the indictment alleg ed that Rodrigue z committed the felony offe nse of theft “on or about” September 27, 1994, that t h e value of the proper ty was less than $1,500, that Rodriguez h ad previously committed two misdemeanor theft offe nses, and that Rodrigue z had previously committed the felony offe nse of forg ery
. The second document was the judgme nt of conviction for the 1994 offe nse, and t h e judgme nt specifie d that Rodrigue z was convic t ed of a third-deg ree felony for a theft that he committed on September 27, 1994, that Rodrigue z was sentenc ed to ten y ear s’ imprisonment f or the offe nse, that Rodrigue z’s punishment

was “suspende d,” and that Rodrigue z was place d on community supervision for ten y ear s. The 1994 judgme nt also contained Rodrigue z’s thumb print, and another document s u b mitted by the State perta ining to the 1994 of

fense also containing the same c ause numbe r, Rodrigue z’s na me, and the date of conviction includes all of Rodrigue z’s fing erpr ints. The third document was the State’s

Although the documents perta ining to the 1994 conviction specify that Rodrigue z’s middle 5 name was “R u d o l f” o r “F u dolf” rathe r than Rudolph as listed in the judgme nt in this case , the documents all conta in the same fir st and last names. 20motion to revoke Rodrigue z’s community supervision, and the motion mentions that Rodrigue z was

convicted of the offe nse of theft, lists the date that he was convicted under the 1994 judgme nt, and

s ta te s th e p u n is h me n t th a

t Ro d r ig u e z w a s in it ia ll y a s s e s s e d

. T h e f o u r th d o c u me n t is th e c a

p ia s is s u e d as part of t he revo ca t i on proce eding s, and the capia s specifie d that Rodrigue z had been convicted of the felony offe nse of theft with two or more previous convictions for theft. The final document submitt ed by

the State is the judg ment revoking Rodrigue z’s community supervision for the 1994 offe nse, and the judgme nt specifie s that Rodrigue z was convicted of a third-deg ree felony for theft, lists the dates for the 1994 o ff en s e and for the 1994 judgme nt placing Rodrigue z on community supervision, sets out Rodrigue z’s initially assessed punishment under the 1994 judgme nt as well as the punishment imposed following r evocation, a nd includes Rodrig uez’s thumb print. During the punishment hear ing, the State called Offic er Ronnie Womack to the stand to discuss the documents listed abo v e as we l l as others. I n his testimony , Offic er Womack testified that he has rec eived specia liz ed training reg arding fing erpr int analy sis, that he obtained Rodriguez’s fing erpr ints prior to testify ing, tha t he compar ed Rodrig uez’s fing erpr ints with t hose fing erpr ints taken for the 1994 offe nse, and that Rodrigue z’s fing erpr ints matched the ones prese nt in the documents perta ining to the 1994 offe nse.

O n a p p e a l in th is c a s e , Ro d

r ig u e z a r g ues that a lt

h o u g h the 1994 conviction stated that the offe nse was a third-deg ree felony , the offe nse was classified by statute as a state-jail felony at the time that the offe nse was alleg ed to have occur red. I n light of the alleg ed disparity betwee n the offe nse level listed in the judgme nt and the o ff en s e l evel descr ibed by the rele vant statutory provision of the Penal Code , Rodrigue z contends that the 1994 conviction was for a state-jail

21felony , not a third-deg ree felony , that “the State relied on an illega l sentenc e and void judgme nt for

enhanc ement purposes in this case ,” and that this Court should reve rse his punishment a n d r e ma n d for a new sentenci n g h ea ri n g
. See Tex. Penal Code § 12.42 (spec ify ing that require ments for 6
enhanc ing punishment for felony offe nses due to prior felony convictions are not satisfied by proof of prior c onvictions for state- jail felonies). By prese nting this issue on appea l, Rodrigue z is, in essenc e, collater ally attacking his prior conviction serving as an enhanc ement allegation. At first blush, it would seem that the t y pe of claim that Rodrigue z is pursuing should be pursued thr o u gh an application for writ of habea s
corpus. See Ex parte Pue , 552 S.W .3d 226, 228 (Tex. Crim. App. 2018) (noting that “[a] claim that

a sentenc e is ill egal beca use it exceeds the statutory maxi mum is cog nizable in a writ of habea s
corpus and may be raised at any time”); Ex parte Rich , 194 S.W .3d 508, 510 , 5 1 1 (T ex
. Crim. App. 2006 ) (o b s er ving that applicant may “ra ise a claim of i lleg al s entenc e based on an im proper

e n h a n c e me n t f o r th e f ir s t ti me o n a w r it o f h a

b e a s c o r p u s ” ) ; s e e a ls o E

x p a r te M il la r d , 5 8 7 S. W. 2 d 7 0 3 ,

I n its reply brief, the S t at e argue s that Rodrigue z failed to prese rve his third issue 6 for appellate purposes by failing to object to the use of the enhanc ement at t ri al in this case
. See Johnson v. Stat e , No. 13-15-00420- CR, 2016 WL 3911231, at *1-2 (Tex. App.—Corpus Christi J uly 14, 2016, pet

. ref

’d) (mem. op., not desig nated for publication) (dete rmining that defe ndant failed to prese rve co m p l ai nt that State was using prior “misdemea nor conviction as both a predic ate of

fense and as a

n enhanc ement alleg ation”); Sparks v. State , 809 S.W .2d 773, 774 (Tex. App.—Houston [14t h Dist.] 1991, pet. ref ’d) (noting that collater al attack on prior conviction was possible but explaining that “the burden of proof was on the party attacking the conviction to show its invalidity in the rec ord and prese rve the err or for appea l”). Howeve r, g overning case law by the c o u r t o f c r im in a l a

p p e a ls d e mo n s tr a

te s th a t th e ty p e o f c la im a s s e r

te d b y Ro d

r ig u e z d o e s n o t n e e d to be prese nted to a trial court in order to be considere d on appea l. See Mizell v. State , 119 S.W .3d 804, 806 n.6 (Tex. Crim. App. 20 03) (noting that “[u] nlike most trial err ors which are forf eited if not timely asser

ted, a party is not require d to make a contempora neous objection to the imposit ion of an illega l sentenc e”) ; see also Ex parte Rich , 194 S.W .3d 508, 510 (Tex. Crim. App. 2006) (providing that “a de fec t that rende rs a se ntence void may be ra ised at any

time”). 22705 (Tex. Crim. App. 1979) (stating that “[i] t is established howeve r, that a collater al attack may be

broug ht ag ainst enhanc ement of punishment that is based on a void prior conviction”)

. Howeve r, th e c o u

r t of criminal appea ls has previously explained that an enhanc ement alleg ation may be collater ally attacked in a non-habe as context under cer tain circ umstances. Specifica lly , the court has explained that “[a] prior convicti o n t hat was alleg ed for enhanc ement
may be collater ally attacke d if it is void .

. . or if it is tainted by a constitutional de fec t .

. . . Other, lesser infirmities in a prior conviction may not be raised by a collater al attack.” Galloway v. State , 578 S.W .2d 142, 143 (Tex. Crim. App. 1979) (interna l footnotes omitted); see also De en v. State , 509 S.W .3d 345, 349-51 (Tex. Crim. App. 2017) (addr essing i n d i re ct appea l issue of whether enhanc ement alleg ation was void); Rhodes v. State , 240 S.W .3d 882, 887 (Tex. Crim. App. 2007) (noting that defe ndant may challeng e “e nhance ment alleg ation . . . if the prior judg ment is void”).
Fur ther, the court of cr i m i n al ap p eals has explained that “a sentenc e is void when the punishment is unauthorized.” Ex parte Seidel , 39 S.W .3d 221, 225 n.4 (Tex. Crim. App. 2001). When expoundi n g u p o n t his are a of law, the court also stated that althoug h “[a] punishment exceeding the statutory maxi mum is not outside the jurisdictional pa rame ters of a trial court,” that ty pe of “punishment rende rs the judgme nt void beca use it is illega l, i.e., unauthorized by law .” Id. Additionally , the court rea soned that if a judgme nt is void, “it may be attacke d either by direc t appea l

or collater al attack.” Id. at 225; see also Mizell v. State , 119 S.W .3d 804, 805, 806 (Tex. Crim. App. 2003) (conc erning whether State could challeng e defe ndant’s sentenc e as illega l and providing that “[a] sentenc e that is outside the maxi mum or minimum rang e of punishment is unauthorized by law and there fore illega l”; that “any court—trial or appellate —may notice, on its own, an illega l sentenc e

23and rec tify that err or”; “that “[a] trial or ap pellate court which otherwise has jurisdiction over a

c r im in a l c o n v ic ti o n ma

y a lw a y s n o ti c e a n d c o r r e c t a n il le g a l s e n te n c e ” ; a

n d th a t “ [t ]h e r e h a s n e v e r b e e n
any thing in Texas law that preve nted any court with jurisdiction over a criminal case from noticing

a n d c o r r e c ti n g a n il le g a l s e n te n c e ” ) ; E

x p a r te S e id e l , 3 9 S. W. 3 d a

t 2 2 5 ( s ta ti n g th a t “ [a ] v o id ju d g me n t is a null ity from the beg inning, and is attended by none of t h e co n s equenc es of a valid judgme nt” ( q u o ti n g E x p a r te S p a u ld in g , 6 8 7 S. W. 2 d 7 4 1 , 7 4 5 ( T e x. Cr im

. A p p
. 1 9 8 5 ) ( T e a g

u e , J. , c o n c u

r r in g ) ) )

. Consist ent with t h ese direc tives, sever al appellate case s have rea soned that an enhanc ement alleg ation used to eleva te the punishment level during a trial for a criminal offe nse may be attacke d on appea l if the prior conviction serving as the enhanc ement is void. See, e.g. , Sumpter

v
. S ta te , N o
. 1 4

- 9 5

- 0 0 9 4 2

- CR , 1 9 9 6 WL 1 9 8 2 5 2 , a t * 1

- 2 ( T e x. A

p p
. — H o u s to n [1 4 th D is t. ] A

p r
. 2 5 , 1996, no pet.) (not desig nated for publication) (quoting langua ge fr o m court of criminal appea ls

re gar ding when enhanc ement alleg ation may be collater ally attacke d but concluding that alleg ed

err or i dentified by appellant was cler ical error and did not rende r voi d prio r co n viction serving as

e n h a n c e me n t a ll e g a

ti o n ) ; H o u s to n v
. S

ta te , 9 1 6 S. W. 2 d 7 0 5 , 7 0 7

- 0 8 ( T e x. A p p
. — H o u s to n [1 4 th D is t. ] 1996, no pet.) (setting out circ umstances in which en h ance ment alleg ations may be collater ally attacke d but overruling appellant’ s arg uments). 7

I n another appellate decision, a defe ndant soug ht to challeng e the use of a prior conviction 7 for enhanc ement purposes beca use that prior co n v i ct i o n incorre ctly stated that it was for a thirddeg ree felony rathe r than a state-jail felony as provided by statute, but the appellate court deter mined that “the pri o r j u d gm ent is not subject to collater al attack on this basis” beca use the alleg ed err or
“ c o u ld h a v e b e e n r e me d ie d b y e n tr

y o f a c o r r e c te d ju d g me n t o r r e f

o r ma ti o n o n a p p e a l. ” S e e Th u r m a n v. State , No. 14-02-00319- CR, 2003 WL 548579, at *2 (Tex. App.—Houston [14t h Dist.] Fe b. 27, 2003, pet. ref

’d) (mem. op., not desig nated for publication). Howeve r, unl i k e t h e prese nt case , n o t h i n g i n the Thurman opinion indicates that the punishment that the defe ndant rec eived for the prior convic tion ex cee ded the pe rmissible punishment rang e for state-jail fe lonies. 24As discussed above, Rodrigue z contends that the 1994 conviction for theft could not

be used to enhanc e his punishment in this case beca use that prior conviction is a void judgme nt, and during the punishment hear ing, the State prese nted sever al documents perta ining to the 1994 offe nse specify ing that Rodrigue z committed theft of proper ty in 1994, that the stolen proper ty had a value of less than $ 1 , 5 0 0 , that Rodrigue z had previously been convicted of two misdemeanor theft offe nses and of the felony offe nse of forg ery , that the 1994 offe nse wa s a t h i rd -deg ree felony , and that Rodrigue z wa s initially sentenc ed to te n y ear s’ imprisonment be fore he was plac ed on community supervision. I n addition, Offic er W omack testified that the finger prints obtained from Ro d ri gu ez in the curr ent ca se matche d those collec ted for the 1994 offe nse.

Al t h o u gh the provision of the Penal Code in eff ect prior to the date of the alleg ed
1994 theft offe nse eleva ted theft offe nses t o t h i rd-de g ree felonies if the defe ndant had previously been convicted twice of theft, see Act of May 10, 1993, 73d L eg ., R.S., ch. 203, § 4, sec. 31.03, 1993
Tex. Gen. L aws 390, 391 (providing that theft is third-deg ree felony if “the value of the proper ty is less than $750 and the defe ndant has pre viously been convicted two or more times of any g rade of th e f t” ) ( a me n d e d 1 9 9 3 to 2 0 1 7 ) ( c u r r e n t v e r s io n a

t T e x. Pe n a l Co d e § 3 1

. 0 3 ) , th e v e r s io n o f th e s ta tu te in eff ect when Rodrigue z alleg edly committed the 1994 offe nse stated that theft was a sta t e- jail fe lo n y if “ th e v a lu e o f th e p r o p e r ty is le s s th a

n $ 1 , 5 0 0 a n d th e d e f e n d a n t h a s p r e v io u s ly b e e n c o n v ic te d

two or more times of any g rade of theft,” see Act of May 29, 1993, 73d L eg ., R.S., ch. 900, § 1.01,

sec. 31.03(e) (4), 1993 Te x . Gen. L aws 3586, 3637-38 ( amende d 1995 to 2017) (cur rent version at
Tex. Penal Code § 31.03). Acc ording ly , the rec ord befor e this Court indicates that Rodrigue z’s 1994 theft convic tion should have bee n for a state-jail fe lony , not a third-deg ree felony

.

25As discussed above, a challeng e to an enha n ce ment alleg ation in the proce dural

posture prese nt ed h er e ca n be sustained if the prior conviction is void, and a prior conviction is void if the punishment assessed was not authorized by law. The documents perta ining to the 1994 conviction that wer e prese nted by the State specifie d that Rodrigue z was sentenc ed to ten y ear s’ imprisonment, which is consistent with the permissible punishment rang e for a third-deg ree felony but not for a state-jail felony

. Compare Tex. Penal Code § 12.34 (providing that punishment rang e for third-de g ree felony

is betwee n two and ten y ear s’ imprisonment), with id. § 12.35 (stating that punishment rang e for state-jail felony is betwee n 180 day s and two y ear s’ confine ment). Moreove r, althoug h the indictment for the 1994 offe nse contained an enhanc ement para g raph al l egi n g that Rodrigue z h ad p re v iously been convicted of the felony offe nse of forg ery and althoug h the provisions of the Penal Code in eff ect at the time of the 1994 conviction did enhanc e the punishment
rang e for cer tain state-jail fe lonies if a defenda nt had been pre viously

convicted of

a sing le fe lony offe nse, the g overning provisions of the Penal Code did not authorize the punishment rang e for the state-jail felony of theft to be enhanc ed by a single prior felony con v i ct i o n
. See Act of May 29, 8 1993, 73d L eg ., R.S., ch. 900, § 1.01, secs. 12.35, .42, 1993 Tex. Gen

. L aws 3586, 3603-04 (ele vating punishment rang e for sta te-jail felonies to that of second- deg ree felonies if state-jail felony involv ed use of deadly wea pon and if defe ndant had been previously convicted of felony offe nse or if defe ndant had previously been convicted of one of cer tain ty pes of felonies listed in

We note that the judgme nt of conviction for the 1994 offe nse stated that it appea red “fr om 8 the proof and the finding s of the Court that” Rodrigue z had “not befor e been convicted of a felony in this State or another state.” Howeve r, as set out above, the indictment for that offe nse contained an enhanc ement alleg ation reg arding a prior felony conviction from 1990 for forg ery , and Rodrigue z pleade d g uilty

to the char g es listed in the indictment. 26statute and committed another felony offe nse) (amen d ed 1 9 95 to 2015) (cur rent version at Tex. Penal Code §§ 12.35, .42, .425). 9

Given the testimony linking Rodrigue z to the 1994 offe nse as well as the numerous documents submitt ed in this case demon s t ra t i n g t hat the offe nse level for the 1994 theft was improperly char acte rized as a third-deg ree felony , that the punishment imposed for the 1994 offe nse exceede d the punishment authorized by the statutes in eff ect at the time that the 1994 o ffense alleg edly occur

red, and that the s tatutes in eff ect at that t i m e did not permit the puni shment rang e for the 1994 theft to be enhanc ed, we must conclude that the se ntence was not authorized and tha t the 1994 conviction is void. Acc ording ly , we must also conclude based on the rec ord befor e this
Court in this case that the 1994 offe nse should not have bee n u s ed as a felony -enha nceme nt alleg ation in the underly

ing tr ial in this case. Wit h the prec eding in mind, the State still asser ts that Rodrigue z may not challeng e the propriety

of the e nhance ment alleg ation. I n particula r, t he S tate acknowledg es t hat t he st atute that went int o eff

ect shortly

befor e the pr ior theft alleg edly occur red c hang ed the offense level for theft with two prior theft convictions from a third-deg ree felony to a state-jail felony , but the State

notes that the bill enac ting the chang e stated that the chang es applied “only to an offe nse committed

Simi larly , the current version of t he P enal Code provision, in ge nera l, does not authorize 9 the punishment rang e for a state-jail-f elony conviction for theft to be eleva ted by a single prior felony conviction. See Tex. Penal Code § 12.425 (enha ncing punishment rang e for state-jail felony if “the d ef en d an t has previously been convicted of two state jail felonies” or if “the defe ndant has previously been finally convicted of two felonies other than a state jail f elony ” and also enhanc ing punishment rang e for state-jail felony if “the defenda nt has previously been finally co nvicted of a felon y o t h er than a state jail felony ” and if state-jail felony involved use of deadly wea pon or if defe ndant was a lso previously convicted of

specific ty

pes of f elonies enume rate d in statute). 27on or after the eff ective da te of this article ” and tha t “an of fense is committed befor e the eff ective d a te o f th is a r ti c le if a n y e le me n t o f th e o f

f e n s e o c c u r s b e f o r e th e e f f e c ti v e d a te

. ” S e e A c t o f M a

y 2 9 , 1993, 73d L eg ., R.S., ch. 900, § 1.1 8, 1993 Tex. Gen. L aws 3586, 3705. I n light of this lang uag e and in light of the case law explaining that “[t] he ‘on or about’ lang uag e of an indictment allows the
State to prove a date other than the one alleg ed in the indictment as long as the date is anter ior to the prese ntment of the indictment and within the statutory limit ations period,” see Hendrix v. State , 150 S.W .3d 839, 853 (Tex. App.—Houston [14t h Dist.] 2004, pet. re f’ d ), the State arg ues that Rodrigue z “could hav e b ee n convicted for [a] theft” occur ring at any time within the five y ear s le a d in g u p to th e d a te a ll e g e d in th e in d ic tm e n t, s e e T e x. Co d e Cr im

. Pr o c
. a r t. 1 2

. 0 1 ( 4 ) ( A ) ( s e tt in g o u t

s ta tu te o f li mi ta

ti o n s f o r th e f t)

. F u r th e r , th e St a

te o b s e r v e s th a t mo s t o f th a

t f iv e - y e a r p e r io d o c c u

r r e d prior to the cha

ng e in the law making the ft a state- jail felony

rathe r than a

third-deg ree felony

. Building on these arg uments and observa tions, the State also asser ts that in case s in which an offe nse is alleg ed to have occur red “on or about” a cer

tain date, courts have applied “the presumption of reg ularity to uphold convictions which migh t have been incorre ct if the offe nse

occur red on the actual date which the offe nse was alleg ed to have occur red.” See Sc ates v. State , 274 S.W .2d 833, 833-34 (Tex. Crim. App. 1955) (addr es sing issue of whether punishment was incorre ctly assessed under prior version of statute that had been amende d for offe nse that was alleg ed

to h av e o cc urre d “on or about” cer tain date and concluding that in absenc e of any contra dictory information in rec ord, there i s presumption “that the conviction was reg ular and that the offe nse char g ed was found to have been committed within the time presc ribed by law authorizing the penalty assessed” ); see also Breeding v. State , 274 S.W .2d 704, 704 (Tex. Crim. App. 1955) (explaining that

28“[t] he presumption preva ils that the offe nse was committed at a time when the punishment assessed

was a pplicable” ).
For all of these rea sons, the State contends that this Court should pr esume that “the evidenc e was sufficie nt to support [R odrig uez] ’s 1994 judgme nt o f conviction for a third-deg ree felony ” beca

use that offe nse occur

red prior to the eff

ective date of the statute chang ing the offe nse level for theft fr om a third-deg ree felony to a state-ja il felony

. Although the State points to various ty pes of presumptions that could apply when the

rec ord provides no information contra dicting those presumptions, that is not the case here

. Although the indictment alleg ed that Rodrigue z committed the 1994 theft “on or about” September 27, 1994, and althoug h the judgme nt for the 1994 offe nse stated that Rodrigue z pleade d g uilty to the offe nse “conta ined in the indictment,” the judgme nt also expressly stated that the trial co u rt “c o n s idere d the pleading s and evidenc e offe red” and conclude d that Rodrigue z committed the th ef t “on September 27, 1994.” Simi larly , the judgme nt re v oking Rodrigue z’s community supervision for the 1994 offe nse listed the offe nse date as being September 27, 1994. I n light of the lang uag e of the judgme nt as well as all of the other documents admitted into evidenc e perta ining to the 1994 offe nse,

we must conclude that any presumption that the offe nse occur red befor e the eff

ective date o f t h e statutory amendment ha s been r ebutted.
I n another set of arg uments contending that the enhanc ement may not be challeng ed
in this appea l, the State asser ts that a defe ndant may be estopped from asser ting that a conviction is void. As support for this arg ument, the State ref ers to Dee n v. State , 509 S.W .3d 345 (Tex. Crim. App. 2017). I n Dee n , the defe ndant was convicted of robber y and was subject to a minimum five29y ear sentenc e, but the trial court imposed a punishment of four y ear s’ imprisonment instead. Id. at

347. Following his rele ase from prison for that offe nse, the defe ndant was char g ed with possessing

a controlled substance. Id. During the trial for the possession char g e, the State asser ted that t h e defe ndant’s punishment level should be enhanc ed due to the prior robber y conviction, and the trial

court found the enhanc ement to be true and sentenc ed the defe ndant acc ording ly

. Id. On appea l, the defe ndant “contended that beca use his ag g rava ted robbery sentenc e was shorter than the s tatutory minimum , the j udg ment imposing i t was voi d , an d h i s prior conviction was therefor e unavailable

to enhanc e his sentenc e in this case .” Id. The court of criminal appea ls deter mined that beca

use the defe ndant “ac cepte d the benef it of his illega lly lenient sentenc e,
. . . he is there fore estopped by the prior judg ment from collate rally attacking the validity

of the c onviction it im posed.” Id. at 348.
W i t h t his case in mind, the State contends that Rodrigue z obtained a benef it fro m being convicted of a highe r-leve l offe nse an d , t h er ef o re, should not be able to challeng e the enhanc ement. Specifica lly , the State arg ues that at the time of the 1994 conviction, individuals who

wer e convicted of state-jail felonies wer e not statutorily entitled to “par ole or g ood-conduc t time,”

see Ro g er

s v. S t ate , 432 S.W .3d 916, 917 n.1 (Tex. App.—Texarkana 2014, no pet.) (setting out historical and statutory rea sons why individuals convicted of state-jail felonies wer e not “entitled to parole or g ood-conduc t cre dit”), asser ts that individuals convicted of st at e- j ail felonies wer e not elig ible for community supervi s i o n “in some circ umstances,” and urg es that an individual may h av e p ref err ed “to plead [guilty ] to a third-deg ree felony offe nse with an equal—or even wi t h a signific antly longe r—sentenc e, on the condition” that he be place d on community supervision or in an effort to make “parole

. . . more li kely .” Acc ording ly , the S t at e i n sists that beca use R odrig uez

30acc epted the benef it of being place d on community supervision for the theft offe nse and rec eived the potential benef

it “for g ood conduct time and parole elig ibilit y ,” Rodrigue z is barr ed from attacking the theft c onviction. 1 0

A s a n in it ia l ma

tt e r , w e n o te th a

t th e c ir c u ms ta n c e s p r e s e n t in D e e n d if

f e r s ig n if ic a n tl y fr o m those here

. I n Dee n , the offe nse level for the enhanc ement alleg ation was corr ec t , b u t t h e defe ndant rec eived the benef it of a punishment tha t was less than the r equire d minimum . For that

rea son, the defe ndant in Dee n rec eived an actua l benef it resulting in the imp o s i t i o n of a lesser

sentenc e. I n contra st, t h e o ffense level for the theft enhanc ement in this case was incorre ctly deter mined to be a third-deg ree felony rathe r t han a state-jail felony as specified by the gover ning statute, and Rodrigue z wa s assessed a punishment that exceede d the maxi mum amount authorized for state -jail felonies.

T h e St a te a ls o c o n te n d s th a

t Ro d r ig u e z is b a r r e d b y “ th e d o c tr in e o f la c h e s ” f r o m c o ll a te r a ll y 1 0 attacking the 1994 conviction. Howeve r, neither of the case s relied on by Rodrigue z involved a situation in which a defe ndant was challeng ing as void an enhanc ement alleg ation that was used to incre ase the defe ndant’s punishment. See Ex parte Smith , 444 S.W .3d 661, 663-64, 668 (Tex. Crim. App. 2014) (conc erning habea s application filed ten y ear s after defe ndant was c onvicted in which applicant arg ued that he was “denie d his rig hts to appea l and eff ective assi s t an ce of appellate counsel” and rea soning that “[t] here must come a time when a criminal conviction is final, when the deter rent eff ects of cer tainty and immediacy of punishment outweig h an inmate’s rig ht to endlessly litigate an appea l of his conviction” (quoting In re Steptoe , 132 S.W .3d 434, 438 (Tex. Crim. App. 2004) (Cochra

n, J ., dissenting) )); Ex parte Perez , 398 S.W .3d 206, 208, 211 (Tex. Crim. App. 2013) ( a d d r e s s in g h a b e a s c o mp la in

ts r e g a r d in g n e a r ly tw e n ty

- y e a r - o ld c o n v ic ti o n th a

t a s s e r te d th a t a p p li c a n t missed deadline for filing petition for revie w beca use his cou nsel did not timely provide notice that intermediate court had aff irmed his conviction and noting that “equity aids the vigilant and not those who slumber on their rig hts” (quoting Ex parte Carrio , 992 S.W .2d 486, 487 n.2 (Tex. Crim. App. 1999), overruled in par t by Ex parte Perez , 398 S.W .3d 206, 213 (Tex. Crim. App.2013)))

. Moreove r, a deter

mination that Rodrigue z’s cl aim is barr ed would be inconsistent with the direc tives from the court of criminal appea ls instructing that a claim that a punishment exceede d the a u th o r iz e d r a

n g e o f p u n is h me n t a n d is , th e r e f

o r e , il le g a l ma

y b e r a is e d a

t a n y ti me
. S e e E x p a r te P u e , 552 S.W .3d 226, 228 (Tex. Crim. App. 2018). 31Additionally , althoug h the State contends that there are circ umstance s in which a

defe ndant convicted of a state-jail felony may not be place d on community supervisi o n , we h ave found no statutory basis that would have prohibited the t ri al co u rt from placing Rodrigue z on community supervision if he ha d pleade d g uilty to a st ate-

jail-felony char g e for theft rather than a third-deg ree -fe lony char g e. See Act of May 27, 1965, 59th L eg ., R.S., ch. 722, § 1, art. 42.12, 1965
T e x. G e n
. L a

w s 3 1 7 , 4 8 9

- 9 9 ( a

me n d e d 1 9 6 7 to 2 0 1 5 ) ( s e tt in g o u t c ir c u ms ta n c e s in w h ic h in d iv id

u a ls
may be place d on community supervision and specify ing in amendments that individuals convicted of state-jail felonies may be plac ed on community supervision), repeale d by Act of May 26, 2015, 84th L eg ., R.S., ch. 770, § 3.01, 2015 Tex. Gen. L aws 2321, 2395.

Moreove r, althoug h the State theorizes that an individual could obtain a benef it from being sentenc ed under a more serious offe nse level than statutorily authorized by potentially being

awa rded with g ood-beha

vior cre dit and parole elig ibilit y , it is not entirely clea r that this ty

pe of potential benef

it purportedly obtained by ag ree ing to be subject to a signific antly highe r punishment
rang e can s erve as a basis for e stopping someone from cha lleng ing the leg ality of a pr ior sentenc e under the circ umstances prese nt here

. See Dee n , 509 S.W .3d at 350 (explaining that “[t] he benef it here was Appellant’s rele ase from prison approximately nine months ear lier than the Penal Code would have otherwise permitted”)

. Fur thermore , we note that there is no indication that Rodrigue z

a c tu a ll y r e c e iv e d a

n y o f th e s e p o te n ti a l b e n e f

it s
. O n th e c o n tr a

r y , th e r e c o r d b e f

o r e th is Co u

r t indicates that Rodrigue z wa s orig inally place d on community supervision for ten y ear s for the theft offe nse, that the community supervision was revoke d almost two y ear s later , an d that Rodrigue z

was sentenc ed to two y ear s’ imprisonment following the revoc ation. See Tex. Penal Code § 12.35

32(stating that maxi mum punishment for state-jail felony is two y ear s). I n light of the prec eding , we

do not believe that Rodrigue z rec eived any benef it that would estop him from challeng ing the theft enhanc ement on g rounds that the prior c onviction was void.

For all the rea sons previously g iven, we must conclude that the punishment assessed
in the 1994 theft conviction was not authorized by law and that, there fore , the conviction was void.
Be cause the 1994 conviction was used to enhanc e R o d ri guez’s punishment in this case for both offe nses, we sustain Rodrigue z’s third iss ue on appe al and r emand the case for a new punishm ent hear ing. See Ex parte Rich , 194 S.W .3d at 514 (providing that if “a n appellate court finds e rror at th e p u n is h me n t s ta g e o f th e tr ia l, th e c a s e ma y b e r e ma n d e d to th e tr

ia l c o u r t f o r th e p r o p e r a s s e s s me n t of punishment”).

CONCLUSION

Ha v i n g o verr

uled Rodrigue z’s first two issues on appea l but having sustained hi s final issue on appea l, we reve rse the district court’s judgme nts of conviction and rema nd for a new punishment hearing consistent with this opi nion.

__________________________________________ David Pury ear , J ustice
Be fore J ustices Pury ear , Bour land, and Toth
Reverse d and Remande d on Motion for Rehea ring Filed: De cembe r 7, 2018 Do Not Publish

33