COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-10-00259-CR

EVERETT BEDFORD APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY

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MEMORANDUM OPINION1

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I. Introduction

Appellant Everett Bedford appeals his conviction and punishment for 

failure to label unauthorized recordings. See Act of May 22, 1989, 71st Leg., 

R.S., ch. 339, § 1, 1989 Tex. Gen. Laws 1305, 1307, repealed by Act of June 15, 

2007, 80th Leg., R.S., ch. 885, § 2.47(a)(1), 2007 Tex. Gen. Laws 2082, 2082 

 

1See Tex. R. App. P. 47.4.
2

(current version at Tex. Bus. & Com. Code Ann. § 641.054 (Vernon 2009)).2 We 

affirm the trial court’s judgment as to Bedford’s conviction, but we reverse the 

trial court’s judgment as to punishment and remand this case for a new trial on 

punishment.

II. Involuntary Plea

The information alleged that Bedford committed the offense of failure to 

label involving at least sixty-five unauthorized recordings during a 180-day 

period. Bedford agreed to plead guilty to a lesser included offense in exchange 

for five years’ deferred adjudication community supervision, $1,000 in restitution, 

drug screening, and counseling. The trial court’s July 25, 2008 ―unadjudicated 

judgment on plea of guilty or nolo contendere and suspending imposition of 

sentence‖ reflects that Bedford pleaded guilty to failure to label unauthorized 

recordings of more than seven but less than sixty-five during a 180-day period 

and received five years’ deferred adjudication community supervision, a $500 

fine, and court costs.

In May 2010, the State filed a petition to proceed to adjudication, and 

Bedford pleaded true to some of the State’s allegations. The judgment 

adjudicating guilt reflects that Bedford was convicted of failure to label 

 

2

The effective date of the repeal of former section 35.94 of the business 

and commerce code is April 1, 2009, the same effective date as its successor 

statute, business and commerce code section 641.054. We note that the 

legislature made no substantive change to the relevant portion of the statute at 

issue here when it repealed former section 35.94 and replaced it with section 

641.054. Therefore, we will cite to the statute’s current version.
3

unauthorized recordings of more than seven but less than sixty-five during a 180-

day period; that the trial court found true paragraphs 1, 2, and 5 of the State’s 

petition; and that Bedford was sentenced to three years’ confinement, a $1,000 

fine, and reparations in the amount of $1,493.

In his first point, Bedford complains that the trial court erred by adjudicating 

him guilty and imposing sentence because his guilty plea was involuntary as the 

trial court did not properly admonish him as to the range of punishment at the 

time he entered his guilty plea and again during his revocation hearing. In his 

second point, Bedford argues that his guilty plea was involuntary because the 

trial court failed to follow the original plea bargain agreement.

―[A] defendant placed on deferred adjudication community supervision may 

raise issues relating to the original plea proceeding . . . only in appeals taken 

when deferred adjudication community supervision is first imposed.‖ Manuel v. 

State, 994 S.W.2d 658, 661–62 (Tex. Crim. App. 1999); Wright v. State, 249 

S.W.3d 581, 584 n.2 (Tex. App.—Fort Worth 2008, no pet.). Furthermore, an 

involuntary plea does not render a conviction void, and an involuntariness claim 

is cognizable on a writ of habeas corpus. Jordan v. State, 54 S.W.3d 783, 785–

86 (Tex. Crim. App. 2001). Because Bedford did not timely appeal the trial 

court’s deferred adjudication community supervision order, we dismiss his 

second point. See id. For the same reason, we dismiss that portion of his first 

point complaining of his conviction.
4

III. Punishment Range

In the remainder of his first point, Bedford complains that the trial court did 

not properly admonish him as to the range of punishment. The State concedes 

that Bedford’s sentence is greater than the maximum punishment available by 

law and asks us to remand this case.

During the revocation hearing, the trial court asked Bedford if he pleaded 

guilty on July 25, 2008, to failure to label unauthorized recordings of more than 

seven but less than sixty-five during a 180-day period, and Bedford said, ―Yes.‖ 

The following dialogue occurred during the hearing:

[Defense counsel]: Judge, first of all, I would point out . . . if the 

Court will look on the original plea papers, you’ll see that when Mr. 

Bedford was admonished, when the Court entertained his guilty 

plea, that he was admonished on the—with the range of punishment 

being a stated two-to-five years in the Institutional Division. I would 

submit to the Court that’s not an accurate statement of the range of 

punishment, which would correctly be found in Section 641.01 [sic] 

of the Business [and] Commerce Code; should have read, I would 

submit, less than five years.

The Court: You understand that there is no minimum prison 

sentence on this case. That when you first took the plea, your 

lawyer told you that you could get two years as a minimum. There is 

no minimum. It’s basically from zero up to five years. You could get 

up to five years. But you may not even have to go to the 

penitentiary. Do you understand that?

The Defendant: Yes, sir.

The Court: Okay. There is a mandatory fine, however. And it can 

be prison and fine, if it happens that way. Do you understand that?

The Defendant: Yes, sir.

The Court: Okay. All right.
2

The punishment range for a failure to label offense involving at least sixtyfive unauthorized recordings during a 180-day period is imprisonment for not 

more than five years, a fine not to exceed $250,000, or both. See Tex. Bus. & 

Com. Code Ann. § 641.054(b)(1)(A). The punishment range for the same 

offense involving more than seven but fewer than sixty-five unauthorized 

recordings during a 180-day period—Bedford’s offense—is ―for a term of not 

more than two years, a fine not to exceed $250,000, or both.‖ Id. § 641.054(b)(2) 

(emphasis added). Bedford was sentenced to three years’ confinement, along 

with a fine and reparations. ―A sentence that is outside the maximum or 

minimum range of punishment is unauthorized by law and therefore illegal.‖ 

Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003). We sustain the 

remaining portion of Bedford’s first point because, based on the record before us,

the punishment assessed here exceeds the maximum punishment available for 

his conviction.

IV. Conclusion

Having dismissed Bedford’s second point and dismissed in part and 

sustained in part his first point, we reverse the trial court’s judgment on 

punishment and remand this case to the trial court for a new trial on punishment.

PER CURIAM

PANEL: MCCOY, MEIER, and GABRIEL, JJ.

DO NOT PUBLISH

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

DELIVERED: March 17, 201