Vacate and Remand in part; Affirm in part and Opinion Filed June 23, 2022

In the

Court of Appeals

Fifth District of Texas at Dallas

No. 05-21-00353-CR

No. 05-21-00354-CR

No. 05-21-00355-CR

ARIK NYLES MAXEY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 194th Judicial District Court

Dallas County, Texas

Trial Court Cause Nos. F17-75257-M, F17-52204-M, & F17-75276-M

MEMORANDUM OPINION

Before Justices Myers, Carlyle, and Goldstein

Opinion by Justice Carlyle

A grand jury returned three aggravated robbery indictments against Arik 

Nyles Maxey. During plea negotiations, the charge in one of those cases, trial court 

cause no. F17-75257-M, was reduced to robbery.

1 On July 10, 2017, pursuant to a 

negotiated guilty plea in that case, the trial court adjudicated Mr. Maxey guilty of 

robbery and sentenced him to ten years’ imprisonment for that offense with the 

1

In this consolidated appeal, appellate cause no. 05-21-00353-CR is the appeal of trial court cause no. 

F17-75257-M, appellate cause no. 05-21-00354-CR is the appeal of trial court cause no. F17-52204-M, and 

appellate cause no. 05-21-00355-CR is the appeal of trial court cause no. F17-75276-M. 
–2–

possibility of shock probation. See generally TEX. CODE CRIM. PROC. art. 42A.202

(providing for shock probation).

On December 4, 2017, with the other two cases still pending, the trial court 

held a hearing on Mr. Maxey’s shock probation request. During the hearing, the trial

court granted the request and signed an order suspending his sentence in cause no. 

F17-75257-M and placing him on ten years’ community supervision in that case.

Then, following a brief recess, Mr. Maxey filed a motion for new trial in that case, 

which the State consented to. After the trial court granted the motion for new trial, 

the robbery charge in cause no. F17-75257-M was changed back to aggravated 

robbery and Mr. Maxey entered negotiated guilty pleas in all three cases. Pursuant 

to the parties’ plea agreements, the trial court placed Mr. Maxey on ten years’

deferred adjudication community supervision in all three cases. 

In early 2021, the State moved to revoke probation and adjudicate guilt in 

those three cases. At the April 29, 2021 revocation hearing, the trial court (1) orally 

stated it found Mr. Maxey guilty of robbery in cause no. F17-75257-M and 

aggravated robbery in the other two cases and (2) assessed punishment at twenty 

years’ imprisonment in each case, to run concurrently. Later that same day, the trial 

court signed judgments in all three cases showing convictions for aggravated 

robbery. 

Mr. Maxey contends (1) the trial court abused its discretion at the revocation 

hearing by allowing objected-to testimony regarding extraneous offenses and bad 
–3–

acts; (2) the trial court’s “misunderstanding of the offense and the punishment range” 

in cause no. F17-75257-M “violated Appellant’s right to due process”; and (3) the 

April 29, 2021 written judgment in cause no. F17-75257-M should be reformed to 

reflect that Mr. Maxey was convicted of robbery. 

We affirm the trial court’s April 29, 2021 judgments in cause nos. F17-52204-

M and F17-75276-M. In cause no. F17-75257-M, we vacate the trial court’s 

December 4, 2017 and April 29, 2021 judgments, reinstate the trial court’s July 10,

2017 judgment and December 4, 2017 shock probation order, and remand that case 

to the trial court for proceedings consistent with this opinion. 

Revocation hearing testimony

The State’s 2021 motion to revoke probation and adjudicate guilt alleged, 

among other things, that Mr. Maxey violated probation condition (A), which 

required him to “not possess a firearm during the term of Supervision.” Mr. Maxey 

pleaded true to that allegation and several others. 

At the revocation hearing, Kenya Johnson testified she and Mr. Maxey began 

dating in August 2020 and broke up a few months later. Though they “never got back 

together,” they began “hanging out again” in January 2021. On the night of February 

10, 2021, she went to a motel to “hav[e] a threesome” with Mr. Maxey and another 

woman. When the woman who was supposed to meet them did not show up, Mr. 

Maxey called someone else, which Ms. Johnson was not “okay with.”
–4–

The prosecutor asked Ms. Johnson, “And so how did you begin to act when 

the other person showed up?” Defense counsel stated, “Your Honor, at this time I 

am going to object based on relevance.” The prosecutor responded, “I think if the 

Court gives me an opportunity to develop the testimony, we will see why it becomes 

relevant as far as the condition A, and also it is somewhat punishment evidence as 

well.” The trial court overruled defense counsel’s objection. 

Ms. Johnson testified she became jealous when the other person arrived. Mr. 

Maxey and Ms. Johnson began fighting, which included him banging her head into 

the wall and grabbing her phone from her. Mr. Maxey had a gun with him that was 

“[o]n the restroom counter.” She testified he told her he would kill her. 

At that point in Ms. Johnson’s testimony, the following exchange occurred:

Q. And at some point did someone come to the room, because there was 

a disturbance?

[DEFENSE COUNSEL]: Your Honor, I am going to object based on 

relevance, based on A(1), possession of a gun, she just testified there 

was possession of a gun. I don’t think she needs to go any further.

. . . .

[PROSECUTOR]: Your Honor, I think—I am going to develop the 

testimony that she is the one that called 911 as well.

[DEFENSE COUNSEL]: And, Your Honor, again, for judicial 

economy and relevance, we pled true. She has established something 

that we have already pled true to. . . . 

The trial court overruled defense counsel’s objection.

Ms. Johnson testified that after a janitor came to the room to check on them, 

Mr. Maxey left and went to Waffle House. She asked him if she could use her phone 
–5–

to call her mom to pick her up and he said no. She was able to get a phone from “a 

stranger that stayed at the room.” She and the stranger went to Waffle House, where 

the stranger and Mr. Maxey had “a confrontation” during which Mr. Maxey “showed 

the gun.” At that point, Ms. Johnson decided she needed to call 9-1-1.

In his first issue, Mr. Maxey contends the trial court abused its discretion 

“when it admitted testimony of extraneous offenses and bad acts over the objections 

of defense counsel.” Mr. Maxey argues that though any evidence the trial court 

deems relevant to sentencing may be offered after a finding of guilt, the trial court 

abused its discretion when it “allowed [Ms. Johnson] to testify to Appellant’s bad 

acts and extraneous offenses prior to adjudicating Appellant on any of the three 

offenses.”

Generally, to preserve a complaint for appellate review, a party must present

to the trial court a timely objection that states the specific grounds for the desired 

ruling if they are not apparent from the context. TEX. R. APP. P. 33.1(a); see Pena v. 

State, 285 S.W.3d 459, 463–64 (Tex. Crim. App. 2009). Here, the asserted bases 

for Mr. Maxey’s trial court objections to the complained-of testimony were 

“relevance” and “judicial economy.” On this record, we conclude those objections 

did not preserve the “extraneous offenses” complaint he asserts on appeal. See

Bunton v. State, 136 S.W.3d 355, 370 (Tex. App.—Austin 2004, pet. ref’d) (“The 

Texas Court of Criminal Appeals has now made it clear that a general relevancy 

objection at trial does not preserve error concerning inadmissible extraneous 
–6–

offenses.”); accord Rawlins v. State, 521 S.W.3d 863, 870–71 (Tex. App.—Houston 

[1st Dist.] 2017, pet. ref’d). 

Offense and punishment in cause no. F17-75257-M

Mr. Maxey’s second and third issues pertain to the trial court’s April 29, 2021 

judgment in cause no. F17-75257-M. He contends (1) the trial court violated his 

right to due process “when it orally pronounced one sentence in the presence of 

Appellant and then signed a written judgment, when Appellant was not present, that 

was more severe than the oral sentence,” and (2) “[p]er the Court’s oral 

pronouncement, the written judgment should be reformed to memorialize that 

Appellant was convicted of the second-degree offense of robbery.”

The State argues these issues “are moot because the trial court’s unauthorized 

granting of a new trial in cause number F17-75257-M nullified all subsequent 

proceedings in that case.” We agree.

A defendant may file a motion for new trial no later than thirty days after the 

date the trial court imposes or suspends sentence in open court. TEX. R. APP. P.

21.4(a). A trial court has no authority to grant a motion for new trial more than 

seventy-five days after sentencing. TEX. R. APP. P. 21.8(a); State ex rel. Cobb v. 

Godfrey, 739 S.W.2d 47, 49 (Tex. Crim. App. 1987). Any action on the motion by 

the trial court after that time expires is a nullity. Godfrey, 739 S.W.2d at 49; see also 

Smith v. State, 559 S.W.3d 527, 533 (Tex. Crim. App. 2018) (“A shock probation 
–7–

hearing is not a new trial on punishment. A trial judge has no authority to issue a 

new judgment and sentence some five months after adjudication.”).

Here, Mr. Maxey’s December 4, 2017 motion for new trial in cause no. F17-

75257-M was filed and granted more than four and one-half months after the trial 

court’s July 10, 2017 adjudication and sentencing in that case. Thus, the granting of 

his motion for new trial and the subsequent proceedings and judgments in that case 

were nullities. See Godfrey, 739 S.W.2d at 49; see also Smith, 559 S.W.3d at 533.

Accordingly, we vacate the trial court’s December 4, 2017 and April 29, 2021 

judgments in cause no. F17-75257-M, reinstate the trial court’s July 10, 2017 

judgment and December 4, 2017 shock probation order in that case, and remand that

case to the trial court “to proceed as if it had not granted a new trial.” Zaragosa v. 

State, 588 S.W.2d 322, 327 (Tex. Crim. App. 1979) (directing that because trial court 

improperly granted motion for new trial, “The judgment of the second conviction is 

set aside, and the judgment of the original conviction is reinstated, and the trial court 

is ordered to proceed as if it had not granted a new trial.”); Harris v. State, 958 

S.W.2d 292, 294 (Tex. App.—Fort Worth 1997, pet. ref’d) (same). We affirm the 

trial court’s April 29, 2021 judgments in trial court cause nos. F17-52204-M and 

F17-75276-M.

210353f.u05

210354f.u05

210355f.u05

Do Not Publish

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

/Cory L. Carlyle/

CORY L. CARLYLE

JUSTICE
–8–

Court of Appeals

Fifth District of Texas at Dallas

JUDGMENT

ARIK NYLES MAXEY, Appellant

No. 05-21-00353-CR V.

THE STATE OF TEXAS, Appellee

On Appeal from the 194th Judicial 

District Court, Dallas County, Texas

Trial Court Cause No. F17-75257-M.

Opinion delivered by Justice Carlyle. 

Justices Myers and Goldstein 

participating.

Based on the Court’s opinion of this date, we VACATE the trial court’s 

December 4, 2017 and April 29, 2021 judgments in this case, REINSTATE the 

trial court’s July 10, 2017 judgment and December 4, 2017 order granting shock 

probation, and REMAND this case to the trial court for further proceedings 

consistent with this Court’s opinion.

Judgment entered this 23rd day of June, 2022.
–9–

Court of Appeals

Fifth District of Texas at Dallas

JUDGMENT

ARIK NYLES MAXEY, Appellant

No. 05-21-00354-CR V.

THE STATE OF TEXAS, Appellee

On Appeal from the 194th Judicial 

District Court, Dallas County, Texas

Trial Court Cause No. F17-52204-M.

Opinion delivered by Justice Carlyle. 

Justices Myers and Goldstein 

participating.

Based on the Court’s opinion of this date, the judgment of the trial court is 

AFFIRMED.

Judgment entered this 23rd day of June, 2022.
–10–

Court of Appeals

Fifth District of Texas at Dallas

JUDGMENT

ARIK NYLES MAXEY, Appellant

No. 05-21-00355-CR V.

THE STATE OF TEXAS, Appellee

On Appeal from the 194th Judicial 

District Court, Dallas County, Texas

Trial Court Cause No. F17-75276-M.

Opinion delivered by Justice Carlyle. 

Justices Myers and Goldstein 

participating.

Based on the Court’s opinion of this date, the judgment of the trial court is 

AFFIRMED.

Judgment entered this 23rd day of June, 2022.