Opinion issued October 4, 2018.

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-17-00606-CR

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JOHNNY ALLEN JENNINGS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 351st District Court

Harris County, Texas

Trial Court Case No. 1512991

MEMORANDUM OPINION

Appellant, Johnny Allen Jennings, pleaded guilty to the offense of aggravated 

assault of a family member with a deadly weapon, and the trial court assessed his 

punishment at sixty-five years’ confinement. In a single issue, Jennings argues that 

we should vacate his sentence and remand this case to the trial court for a new 
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sentencing proceeding because the sentence, which exceeds the statutory maximum 

sentence for his offense, is void. We modify the trial court’s judgment to reflect a 

sentence of twenty years’ incarceration and affirm the judgment as modified.

Background

Jennings was charged by indictment with the second-degree felony offense of 

aggravated assault of a family member with a deadly weapon after his girlfriend 

reported to police that he stabbed her under her chin with a screwdriver after he 

threatened to kill her, their two-year old son, and himself.

Jennings had previously been charged by indictment with the first-degree 

felony offense of aggravated sexual assault of a disabled person in an unrelated case 

involving a different complainant, R.S.

1 The State had also alleged in that case that 

Jennings had been convicted in Colorado in 2003 of the felony offense of attempted 

sexual assault of a child. Jennings was on bail in the aggravated sexual assault case 

when he injured his girlfriend.

Jennings pleaded guilty to both offenses, without an agreed recommendation, 

and elected for the trial court to assess punishment in both cases after a pre-sentence 

 

1 This case is the subject of a separate appeal, Cause No. 01-17-00605-CR (trial court 

case no. 1475819). An appellate court may take judicial notice of its own records in 

the same or related proceedings involving the same or nearly the same parties. 

Fletcher v. State, 214 S.W.3d 5, 7 (Tex. Crim. App. 2007); Huffman v. State, 479 

S.W.2d 62, 68 (Tex. Crim. App. 1972). Therefore, we take judicial notice of the 

records in both cause numbers.
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investigation (PSI) was conducted. Before accepting his guilty pleas, the trial court 

properly admonished Jennings on the record that the underlying offense in this 

appeal, aggravated assault of a family member with a deadly weapon, was a seconddegree felony offense punishable by a term of two to twenty years’ imprisonment

and a fine of up to $10,000. The trial court also admonished Jennings that aggravated 

sexual assault of a disabled person was a first-degree felony offense and that,

because the State had alleged that he had a final felony conviction for attempted 

sexual assault, this offense was punishable by a term of fifteen to ninety-nine years’

imprisonment or life imprisonment, and a fine of up to $10,000. See TEX. PENAL 

CODE ANN. § 12.42(c)(1) (West Supp. 2017).

After the PSI report was completed, the trial court held a joint punishment 

hearing for both offenses. At the beginning of the hearing, the State offered, and the 

trial court admitted without objection, the PSI report and Jennings’s Colorado pen 

packet. The PSI report contains, among other things, detailed summaries of the 

offense reports prepared in both charged cases and the Colorado case used to 

enhance Jennings’s punishment.

At the end of the hearing, the trial court pronounced Jennings’s punishment. 

Specifically, the trial court stated:

Mr. Jennings, you are a dangerous predator who repeatedly preys on 

the weak and disabled. You have no remorse because you lack the 

ability to understand the wrongfulness of your acts and their effect on 

the people you victimize. So in order to protect the people of Harris 
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County and hopefully give your victims closure to the pain, suffering, 

and mental anguish you have caused them, I hereby sentence you to 

confinement in the Texas Department of Criminal Justice Institutional 

Division for a period of 65 years. You are hereby remanded to the 

custody of the sheriff so that this order may be carried out.

The judgment in this case reflects that the trial court assessed Jennings’s punishment 

at sixty-five years’ imprisonment, to run concurrently with the sixty-five-year

sentence imposed for the first-degree felony offense of aggravated sexual assault of 

a disabled person. See TEX. PENAL CODE ANN. §§ 22.021(a)(1)(A)(iii), (a)(2)(C) 

(West Supp. 2017).

Void Sentence

In his sole issue on appeal, Jennings argues that we should vacate his sixtyfive-year prison sentence and remand this case to the trial court for a new sentencing 

proceeding because the sentence, which exceeds the statutory maximum sentence 

for his offense, is void.

A. Standard of Review and Applicable Law

An unauthorized sentence is illegal and has no legal effect. See Ex parte Rich, 

194 S.W.3d 508, 512 (Tex. Crim. App. 2006); see also Hern v. State, 892 S.W.2d 

894, 896 (Tex. Crim. App. 1994) (en banc) (holding sentence outside statutory limits 

is void). Whether a sentence exceeds the range of punishment authorized by statute 

is a question of law that we review de novo. See Yazdchi v. State, 428 S.W.3d 831, 
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837 (Tex. Crim. App. 2014); Kuhn v. State, 45 S.W.3d 207, 209 (Tex. App.—

Texarkana 2001, pet. ref’d).

Aggravated assault of a family member is a second-degree felony when, as 

here, the assault causes bodily injury and the defendant uses or exhibits a deadly 

weapon during the assault. See TEX. PENAL CODE ANN. § 22.02(a)(2), (b) (West 

2011). A second-degree felony is punishable by a prison sentence of two to twenty 

years and a fine not to exceed $10,000. See id. § 12.33. The State concedes that 

Jennings’s sixty-five-year prison sentence is void because it exceeds the maximum 

punishment authorized by statute. See Ex parte Rich, 194 S.W.3d at 512.

When reversing a trial court’s judgment, an appellate court must “render the 

judgment that the trial court should have rendered,” except when (1) remand is 

necessary for further proceedings or (2) the interests of justice require a remand for 

another trial. TEX. R. APP. P. 43.3. In most cases in which a defendant enters a guilty 

plea that is not a part of a plea-bargain agreement, and the trial court assesses an 

unauthorized sentence, the appropriate remedy is to allow the finding of guilt to 

remain and remand the case for a proper assessment of punishment. See Ex parte 

Rich, 194 S.W.3d at 514 (citing Levy v. State, 818 S.W.2d 801, 803 (Tex. Crim. App.

1991)). Appellate courts, however, have the authority to modify a trial court’s 

judgment, see TEX.R.APP. P. 43.2(b), including modifying punishment to accurately 

reflect the trial court’s intent, when the court’s intent is clear from the appellate 
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record. See McCray v. State, 876 S.W.2d 214, 217 (Tex. App.—Beaumont 1994, no 

writ) (modifying judgment bringing sentence within applicable range of punishment 

where trial court’s intent to impose maximum sentence was clear from record); see 

also Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993) (en banc) 

(modifying judgment to reflect conviction of lesser-included offense).

B. Analysis

There is no dispute that Jennings’s sixty-five-year prison sentence in this 

aggravated assault case is void because it exceeds the maximum punishment 

authorized by statute. See Ex parte Rich, 194 S.W.3d at 512. The question presented 

here concerns the appropriate remedy. While Jennings argues that we must reverse 

the judgment and remand for a new punishment hearing, the State contends that 

remand is not required because the record before us contains sufficient data or 

evidence indicating the trial court’s intent to impose the maximum sentence in the 

aggravated assault case.

Relying on McCray, the State argues that this Court should modify the 

judgment to reflect the maximum punishment authorized for a second-degree 

felony—twenty years’ imprisonment. McCray, 876 S.W.2d at 217. In that case, the 

appellate court held that McCray’s sentence was illegal because it exceeded the 

maximum sentence authorized for a third-degree felony––ten years’ incarceration—

and it reformed the judgment to reflect the maximum ten-year punishment. Id. The 
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court reasoned that reformation of the judgment, rather than remand, was appropriate 

in that case because the court had “the necessary data and evidence before it for 

reformation,” namely, statements the trial court made when it pronounced McCray’s 

sentence and the severity of the sentence the trial court imposed. Id. (discussing trial 

court’s comments, court’s mistaken belief that McCray was being sentenced for 

second-degree offense of aggravated kidnapping, and court’s pronouncement of 

maximum sentence court believed available).

When the trial court pronounced Jennings’s sentence, the court emphasized 

that Jennings was “a dangerous predator who repeatedly preys on the weak and 

disabled” and lacks any sort of remorse or repentance for his actions. The trial court 

expressed its concern that Jennings presented a danger to society and stated that the 

court’s sentence was intended to “protect the people of Harris County and give 

[Jennings’s] victims closure.” At the same hearing, the trial court sentenced Jennings 

to 65 years in prison for assaulting a disabled woman, a sentence well within the 

punishment range for that offense. This sentence, coupled with the court’s 

statements, provides sufficient data and evidence demonstrating the court’s intent to 

impose the maximum sentence in this case. See generally McCray, 876 S.W.2d at

217
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Conclusion

Based on the record before us, we reform the punishment portion of the 

judgment to reflect twenty years’ confinement in TDCJ and affirm as modified.

Russell Lloyd

Justice

Panel consists of Justices Keyes, Bland, and Lloyd.

Do not publish. TEX. R. APP. P. 47.2(b).