TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

ON MOTION FOR REHEARING

NO. 03-10-00367-CR

Blair Duane Wright, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF LAMPASAS COUNTY, 27TH JUDICIAL DISTRICT

NO. 8214, THE HONORABLE WILLIAM BACHUS, JR., JUDGE PRESIDING

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

We withdraw our opinion and judgment datedApril 24, 2012, substitute the following

opinion and judgment in their place, and deny the motion for rehearing.

Appellant Blair Duane Wright appeals a reformed judgment modifying his sentence

for driving while intoxicated with a child passenger. We dismiss the appeal for lack of jurisdiction.

PROCEDURAL BACKGROUND

In February 2009, pursuant to a plea bargain, appellant pleaded guilty to the offense

of driving while intoxicated with a child passenger, a state jail felony. See Tex. Penal Code Ann.

§ 49.045 (West 2011). He also pleaded true to two enhancement paragraphs, one alleging a previous

conviction for theft of more than $1500, a state jail felony, and another alleging a prior conviction
for obstruction or retaliation, a third degree felony. See id. §§ 31.03(a), (e)(4)(A), 36.06(a), (c)(West

Supp. 2011). Afterfinding him guilty, the trial court assessed the agreed punishment of confinement

for 19 years in the Institutional Division of the Texas Department of Criminal Justice (TDCJ),

purportedly under the repeat-offender provisions of the penal code. See id. § 12.42(a)(2) (West 1

Supp. 2010) (providing that at trial of unaggravated state jail felony, defendant shall be punished for

second degree felony upon proof of two previous sequential felony convictions).

In November 2009, ten months after being sentenced, appellant wrote a pro se letter

to the trial court complaining that the sentence was unlawful because a state jail felony had been

improperly used to enhance the punishment for the DWIstate jail offense to that of a second degree

felony. See Campbell v. State, 49 S.W.3d 874, 878 (Tex. Crim. App. 2001) (holding that as used

in section 12.42(a), “felony” and “state jail felony” are mutually exclusive). Pursuant to a bench

At the same proceeding, appellant also pleaded guilty to the offense of failure to appear,

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a third degree felony. See Tex. Penal Code Ann. § 38.10(a), (f) (West 2011). The same two prior

convictionswere used to enhance the punishment for the failure-to-appear offense, purportedlyunder

the habitual-offender provision of the penal code. See id. § 12.42(d) (West Supp. 2011) (providing

that at trial of a felony offense other than unaggravated state jail felony, defendant shall be punished

by imprisonment for life or any term not more than 99 years or less than 25 years upon proof of

two previous sequential felony convictions). However, as part of the plea-bargain agreement, the

State abandoned one of the enhancement paragraphs in order to bring the punishment range within

that of a second degree felony so that the trial court could assess the same negotiated 19-year prison

term. See id. § 12.42(a)(3) (providing that at trial of third degree felony, defendant shall be punished

for second degree felony upon proof of previous felony conviction). The record does not reflect

which enhancement paragraph was abandoned. Although the failure-to-appear conviction is not

before us in this appeal, we note that the use of a previous state jail felony conviction to enhance a

third degree felony under section 12.42(a)(3) may also violate the holding in Campbell that the terms

“felony” and “state jail felony,” as used in section 12.42(a), are mutually exclusive. See id.;

Campbell v. State, 49 S.W.3d 874, 878 (Tex. Crim. App. 2001). This is an issue appellant may urge

in a post-conviction habeas corpus application. See Ex parte Rich, 194 S.W.3d 508, 511 (Tex. Crim.

App. 2006).

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warrant returning him from TDCJ, appellant was subsequently brought back before the trial court. 

In May 2010, the trial court conducted a hearing to address the enhancement issue. The State

conceded that the punishment for appellant’s DWI-with-a-child-passenger offense was improperly

enhanced and resulted in an unlawful sentence. Agreeing that the two previous convictions did not

operate to enhance his punishment under the applicable repeat-offender provision, the trial court

re-sentenced appellant to two years’ confinement in a state jail facility, a term within the applicable

punishment range.

LACK OF JURISDICTION

Trial Court Certification

The clerk’s record in this appeal contains two trial court certifications. One is

dated February 20, 2009, the date of the original plea and sentencing. The second is dated

September 10, 2010, four months after the re-sentencing. Both certifications state that “this criminal

case is a plea-bargain case, and the defendant has NO right of appeal.” We are required to dismiss 2

an appeal “if a certification that shows the defendant has a right of appeal has not been made part

of the record.” See Tex. R. App. P. 25.2(d); Dears v. State, 154 S.W.3d 610, 613 (Tex. Crim.

App. 2005).

We also note that appellant’s signature does not appear on either certification. See Tex. 2

R. App. P. 25.2(d) (specifying that notification “shall be signed by the defendant”).

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Permission to Appeal

At the re-sentencing proceeding, appellant argued that the sentence on his failure-toappear conviction should be modified along with the DWI sentence. The State opposed that

re-sentencing, arguing that failure to appear was a separate offense and that the punishment assessed

for it was properly enhanced. Appellant, however, asserted that because the plea bargain involved

disposing of both cases, the modification of one sentence should result in modification of the

other. In seeking re-sentencing for the failure-to-appear conviction, appellant’s counsel made the

following statements:

• In other words, if there’s to be a sentencing in the DWI, then we believe there

should be a new sentencing in the bond jumping charge also.

• [W]e would like to then enter an appeal concerning the fact that the bond

jumping charge has now been separated out; and that sentence is allowed

to stand.

• We want them as a total package, Your Honor; and, therefore, we would

enter our objection to just sentencing on the DWI case.

• But in either case, if the Court sees fit overrule my motion [to modify the

failure to appear sentence], then I will help my client to perfect an appeal in

this matter, and we will address it in that capacity to get him another hearing.

The trial court indicated that it did not have the authority to modify the sentence on the failure-toappear charge. The court re-sentenced appellant on the DWI-with-a-child-passenger offense and

ordered that sentence to run concurrentlywith the 19-yearfailure-to-appear sentence. The court then

stated, “Now as far as that goes, I’m going to tell you that you have 30 days in which to appeal the

decision in this matter.”

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In his motion for rehearing, appellant asserts that the trial court’s statement that

appellant had 30 days in which to appeal “the decision in this matter” demonstrates that he did have

permission to appeal the re-sentencing in this cause and therefore is dispositive. We disagree. The

record reflects that appellant did not object to the trial court’s re-sentencing him for the

DWI-with-a-child-passenger offense, only to the trial court’s refusal to also re-sentence him on the

failure-to-appear charge. A reading of the record as a whole reflects that appellant wanted to appeal

the trial court’s refusal to re-sentence him on the failure-to-appear charge, and that is what the court

gave permission to appeal. We do not construe the grant of permission to complain about the trial

court’s failure to modify the failure-to-appear sentence in a separate case as including a grant of

permission to appeal the modified sentence in the instant case. Thus, we do not find the trial court’s

certification to be defective. See Dears, 154 S.W.3d at 613 (certification is defective if it is contrary

to record); Tex. R. App. P. 37.1.

Appellant also maintains on rehearing that the trial court’s certification completed

in connection with the re-sentencing reflected a “plea bargain” but no waiver of appeal. However,

in our previous opinion, we did not suggest that the trial court certification indicated that appellant

had waived his right to appeal. Rather, we noted that the trial court had certified that “this criminal

case is a plea-bargain case, and the defendant has NO right of appeal.”

Abatement

In his motion for rehearing, appellant complains that this Court “overlooked its own

opinion of June 15, 2011.” The original appellate counsel in this case filed an Anders brief. In

response, appellant filed a pro se brief. On June 15, 2011 this Court issued a memorandum opinion

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abating the appeal and remanding the case to the trial court for the appointment of new appellate

counsel because we concluded that one of the contentions raised by appellant in his pro se brief

constituted an arguable ground for appeal. Unfortunately, at the time we abated the appeal, we

apparently overlooked the fact that the trial court certification failed to certify that appellant had a

right to appeal. In his motion for rehearing, appellant asks us to “take notice” of our June 15, 2011

opinion. However, that opinion neither replaces nor obviates the requirement of a trial court

certification reflecting that appellant has a right to appeal.

The record in this case does not contain a trial court certification reflecting that

appellant has the right to appeal. Thus, we have no choice but to dismiss the appeal. See Tex. R.

App. P. 25.2(d). Moreover, even if we had jurisdiction in this case, we could not provide appellant

the relief he seeks. The briefs submitted post-abatement have enabled us to discern the exact nature

of appellant’s contention, and, for the reasons discussed below, we have concluded that we do not

have the authority to reverse appellant’s conviction and grant him the new trial he seeks.

VOID JUDGMENT

In his sole point of error, appellant argues that the trial court erred in re-sentencing

him because the proper remedy for the illegal sentence imposed due to improper

enhancement—which resulted in an unenforceable plea bargain agreement—was to allow him to

withdraw his plea and return the parties to their original positions. Under normal circumstances, 3

The State concedes that the plea-bargain agreement was impossible to perform and, 3

therefore, appellant should have been allowed to withdraw his plea. The State further acknowledges

that the trial court erred in simply re-sentencing appellant.

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appellant would be correct. When a plea-bargain agreement calls for a sentence greater than

that authorized by law, the defendant must be allowed to withdraw his plea. Ex parte Rich,

194 S.W.3d 508, 514 (Tex. Crim. App. 2006). The instant appeal, however, is not from the original

judgment of conviction but from the trial court’s reformed judgment modifying appellant’s sentence,

which does not impose an illegal sentence. While we agree that the trial court erred in simply

re-sentencing appellant, the more immediate problem in the instant appeal is not that the court erred

in doing so but that it lacked jurisdiction to do so.

A trial court’s jurisdiction over a case is an absolute systemic requirement. State

v. Dunbar, 297 S.W.3d 777, 780 (Tex. Crim. App. 2009); Saldano v. State, 70 S.W.3d 873, 888

(Tex. Crim. App. 2002). Without jurisdiction, the trial court has no power to act. Dunbar,

297 S.W.3d at 780. A trial court’s jurisdiction over a criminal case consists of “the power of the

court over the ‘subject matter’ of the case, conveyed by statute or constitutional provision, coupled

with ‘personal’ jurisdiction over the accused, which is invoked in felony prosecutions by the filing

of [an] indictment or information if indictment is waived.” Id. at 780 (quoting Fairfield v. State,

610 S.W.2d 771, 779 (Tex. Crim. App. 1981)). If no community supervision is imposed, no motion

for new trial or in arrest of judgment is filed, and no appeal is taken, then the trial court’s personal

jurisdiction over the defendant terminates 30 days after sentencing. Id. at 780; see Collins v. State,

240 S.W.3d 925, 927 (Tex. Crim. App. 2007); Tex. R. App. Proc. 21.4, 22.3. Consequently, after

that 30-day period, “‘a source of jurisdiction must be found to authorize the trial court’s orders.’” 

Dunbar, 297 S.W.3d at 780 (quoting State v. Patrick, 86 S.W.3d 592, 595 (Tex. Crim. App. 2002)

(plurality op.)).

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In the instant case, the trial court lost personal jurisdiction over appellant 30 days after

sentencing him on February 20, 2009. We discern no source of jurisdiction to authorize the trial

court’s modification of appellant’s sentence on May 21, 2010. Texas Rule of Appellate Procedure

21.1 defines “new trial on punishment” as “a new hearing of the punishment stage of a criminal

action after the trial court has, on the defendant’s motion, set aside an assessment of punishment

without setting aside a finding or verdict of guilt.” Tex. R. App. P. 21.1(b). Arguably appellant’s

letter could be construed as a motion for new trial on punishment. However, such a motion must

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be filed within 30 days after the date the trial court imposed sentence. Tex. R. App. P. 21.4(a). 

Thus, even if so construed, appellant’s request was untimely. The power to grant a motion for new

trial is an exercise of “particular authority” by a court of “limited jurisdiction.” State v. Holloway,

No. PD-0324-11, 2012 WL 715977, at *3 (Tex. Crim. App. Mar. 7, 2012). When the statutory

timetable is not followed, the trial court lacks jurisdiction to thereafter rule on the merits of the

motion for new trial. Id.

A court has inherent power to correct, modify, vacate, or amend its own rulings so

long as the court does not exceed a statutory timetable. See State v. Aguilera, 165 S.W.3d 695, 698

n.7 (Tex. Crim. App. 2005); Awadelkariem v. State, 974 S.W.2d 721, 728 (Tex. Crim. App. 1998).

Thus, a trial court retains plenary power to modify its sentence if a motion for new trial is filed

within 30 days of sentencing. State v. Davis, 349 S.W.3d 535, 537 (Tex. Crim. App. 2011); 5

The trial court’s docket sheet reflects the trial judge’s notation that the court “grant[ed] 4

defendant’s motion to resentence [sic].” We believe that, substantively, a motion to re-sentence is

the equivalent of a motion for new trial on punishment.

A trial court may, by entry of a judgment nunc pro tunc, correct clerical mistakes in a

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judgment or order at any time, even after the expiration of the court’s plenary power. See Ex parte

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Aguilera, 165 S.W.3d at 697-98. However, a trial court does not have the inherent authority to alter,

modify, or vacate a sentence imposed in open court without statutory authorization and without the

presence of the parties. Davis, 349 S.W.3d at 539-40 (citing McClinton v. State, 121 S.W.3d 768, 6

771 (Tex. Crim. App. 2003) (Cochran, J., concurring)). Accordingly, belated—that is, untimely and

therefore unauthorized—attempts to alter a defendant’s sentence are “null and void of effect.”

Ex parte Brown, 477 S.W.2d 552, 554 (Tex. Crim. App. 1972) (trial court’s re-sentencing order

making sentences cumulative entered after defendant had been imprisoned for two months was

invalid). Here, the trial court attempted to modify appellant’s sentence 15 months after the original

sentence was imposed, well beyond the period in which the court had authority to exercise its plenary

power to modify the sentence.

Because the trial court had no jurisdiction to modify appellant’s sentence, the

reformed judgment doing so is void. See Ex parte Redmond, 605 S.W.2d 600, 601 (Tex. Crim. App.

1980) (holding judgments of conviction were void because district court never acquired jurisdiction

over juvenile defendant). “‘A void judgment is a nullity from the beginning, and is attended by none

of the consequences of a valid judgment. It is entitled to no respect whatsoever because it does not

affect, impair, or create legal rights.’” Ex parte Seidel, 39 S.W.3d 221, 225 (Tex. Crim. App. 2001)

(quoting Ex parte Spaulding, 687 S.W.2d 741, 745 (Tex. Crim. App. 1985) (Teague, J., dissenting

and concurring)); see also Black’s Law Dictionary 921, 1709 (9th ed. 2009). Even if we had

Donaldson, 86 S.W.3d 231, 234 (Tex. Crim. App. 2002); see Tex. R. App. P. 23.

For example, under the “shock probation” statute, the trial court has express statutory 6

authorization to modify a sentence of imprisonment that has been previously imposed to place a

defendant on community supervision under certain specified circumstances. See Tex. Code. Crim.

Proc. Ann. art 42.12, § 6 (West Supp. 2011).

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jurisdiction over this appeal, vacating the void reformed judgment would simply leave the original

judgment in effect. But we have no jurisdiction to grant any relieffrom the February 2009 judgment,

even though it imposed an illegal sentence. See Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim.

App. 1998) (absent timely filed notice of appeal, appellate court does not obtain jurisdiction to

address merits of appeal in criminal case and can take no action other than to dismiss appeal for want

of jurisdiction); Tex. R. App. P. 26.2(a).

The habeas corpus procedure set out in article 11.07 of the Code of Criminal

Procedure provides the exclusive remedy for felony post-conviction relief in state court. See Tex.

Code Crim. Proc. Ann. art. 11.07, § 5 (West Supp. 2011) (“After conviction the procedure outlined

in this Act shall be exclusive and any other proceeding shall be void and of no force and effect in

discharging the prisoner.”); see also Ex parte Waggoner, 61 S.W.3d 429, 431 (Tex. Crim. App.

2001) (“Habeas corpus is reserved for those instances in which there is a jurisdictional defect in the

trial court which renders the judgment void . . . .”); Rich, 194 S.W.3d at 511 (claim of illegal

sentence is cognizable on writ of habeas corpus). Further, article 11.07 vests complete jurisdiction

over post-conviction relief from final felony convictions in the Texas Court of Criminal Appeals. 

See id.; Hoang v. State, 872 S.W.2d 694, 697 (Tex. Crim. App. 1993) (only court of criminal appeals

has authority to grant post-conviction relief from final felony convictions). If appellant has any

remedy, it is through that procedure.

CONCLUSION

Based upon the record before us, we have neither the jurisdiction nor the authority

to grant appellant the relief he seeks. We dismiss this appeal for lack of jurisdiction.

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__________________________________________

J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Pemberton and Rose

Dismissed for Want of Jurisdiction on Motion for Rehearing

Filed: May 22, 2012

Do Not Publish

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