### 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. 03-10-00367- CR

Blair Duan e Wright, Appellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F LAMP ASAS CO UNTY, 27TH JUDICI AL DISTRICT NO. 821 4, TH E H ONO RAB LE WI LLIAM B ACHUS, JR., J UDGE P RESIDING

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

We withdraw our opinion a n d ju d g me n

t d a te d A p r il 2 4 , 2 0 1 2, substitut e the following opinion and judgme nt in their place , and deny the motion for re hear ing. Appellant Bla ir Duane Wright appea ls a ref ormed judgme nt modify ing his sentenc e for driving while intox icated with a child passeng er. We dismiss the appea l for lack of jurisdiction.

P ROCEDURAL BACK GR OUND
I n Fe bruar

y 2009, pursuant to a plea barg ain, appellant pleade d g uilty to the offe nse of driving whil e int ox icated with a child passeng er, a state j ail felony

. See Tex. Penal C ode Ann. § 49.045 (West 2011). He also pleade d true to two enhanc ement para g raphs, one alleg ing a previous conviction for theft of more than $1500, a state jail f elony , and anothe r alleg ing a prior convictionfor obstruction or reta liation, a third deg ree felony

. See id. §§ 31.03(a) , (e) (4)( A), 36.06(a) , (c) (West

Supp. 2011). After finding him g uilty , the trial court assessed the agree d punishment of confine ment for 19 y ear s in the I nstitut ional Div i sion of the Texas Depa rtment of Criminal J ustice (TDCJ), purportedly under the repe at-off ender provisions of the penal code. See i d

. § 12.42(a) (2) (West 1 Supp. 2010) (providing that at trial of unag g ravated state jail felony , defe ndant shall be punished for second de g ree felony

upon proof of

two previous seque ntial felony convictions).
I n November 2009, ten months afte r being sentenc ed, appellant wrote a pro se letter
to the trial court complaining that the sentenc e was unlawfu l b ec ause a state jail felony had been improperly used to enhanc e the punishment for the DWI state jail offe nse to that of a second deg ree felony

. See Campbell v. Stat e , 49 S.W .3d 874, 878 (Tex

. C rim. App. 2001) (holding that as used in section 12.42(a) , “fe lony ” and “state jai l felony” are mutually exclusive). Pursuant to a bench

At the s ame procee ding, a ppellant also plea ded guilty to the offe nse of f

ailure to a ppear , 1 a third deg ree felony

. See Tex. Pena l Code Ann. § 38.10(a) , (f) (West 2011). The same two prior c o nv ic ti o n s w e r e used to enhanc e the punishment for the failure -to-appe ar offe nse, purpor te d ly u n d e r the habitual-off

ender provision of the penal code. See id. § 12.42(d) (West Supp. 2011) (providing that at trial of a felony offe nse other than unag g ravated state jail felony , defe ndant shall be punished by i m p ri s o n m en t fo r life or any term not more than 99 y ear s or less than 25 y ear s upon proof of two previous sequ ential felony convictions). Howeve r, as part of the pl ea- barg ain agr eeme nt, the State abandone d one of the enhanc ement para g raphs in order to bring the punishment rang e within that of a second deg ree felony so that the trial court could assess the same neg otiated 19-year prison term. See id. § 12.42(a) (3) (providing that at trial of third deg ree felony , defe ndant shall be punished for second deg ree felony upon proof of previous felony convict i o n ). The rec ord does not ref lect which enhanc ement para g raph was abandoned

. Although the failure -to-appe ar conviction is not befor e us in this appea l, w e note that the use of a previous state jail felony conviction to e nhance a third deg ree felony under section 12.42(a) (3) may also violate the holding in Campbell that the terms “fe lony ” and “state jail felony ,” as used in section 1 2

. 4 2 (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 urg e in a post-conviction habea s corpus application. See Ex parte Rich , 194 S.W .3d 508, 511 (Tex. Crim. App. 2006). 2war

rant returning him from TDCJ , appellant was subsequently broug ht back befor e the trial court. I n May 2 0 1 0 , t h e trial court conducte d a hear ing to addre ss the enhanc ement issue. The State

conce ded that the punishment for appellant’ s DWI -with-a- child-passe ng er offe nse was improperly enhanc ed and resulted in an unlawful sentenc e. Ag ree ing that the two previous convictions did not
operate to enhanc e his punishment under the applicable repe at- o ff en d er provision, the trial court

re- sentenc ed appellant to two y ear s’ confine ment in a state jail fac ility , a term within the applicable punishment rang e.

LACK OF JURISDICTION Trial Cou rt Certification

The cler k’s rec ord in this appea l contains two trial court cer tifications. One is dated Fe b ru ar y 2 0, 2009, the date of the orig inal plea and sentenc ing. The second is dated September 10, 2010, four months afte r the re- sentenc ing. Both cer tifications state that “this criminal

case is a plea- barg ain case , and the defe ndant has NO rig ht of appea l.” We are require d to dismiss 2 an appeal “if a certification that shows the defendant has a right of appe al has not been made part of the rec ord.” See Tex. R

. Ap p . P

. 25.2(d); Dears v. State , 154 S.W .3d 610, 613 (Tex. Crim. App. 2005).

We also note t hat appellant’s signature does not appea r on either certific ation. See Tex. 2 R. App. P. 25.2(d) (spec ify ing that notification “shall be sig ned by the def endant” ). 3Permi

ssion t o Appeal At the re- sentenc ing proce eding , appellant argued that the sentenc e on his failure -toappea r conviction should be modified along wi t h t he DWI sentenc e. The State opposed that

re- sentenc ing, arguing that failure to appea r was a separ ate offe nse and that the punishment assessed for it wa s proper ly enhanc ed. Appellant, howeve r, asser ted that beca

use the plea barg ain involved disposing of both case s, the modification of one sentenc e should result in modificat i on of the other. I n seeking re- sentenc ing for the failure -to-appe ar conviction, appellant’ s cou nsel made the following statements:

• I n other words, if there ’s to be a sentenc ing in the DWI , then we believe there should be a ne w sentenc ing in the bond jumping char g e also.

• [W ]e would like to then ent er an appea l conce rning the fac t that the bond jumping char g e has now been separ ated out; and t h at sentenc e is allowed to stand.

• We wa n t t h em as a total packa g e, Your Honor; and, there fore , we would enter our objec tion to jus t sentencingon the DWI case .

• But in either case , if the Court sees fit overr ule my motion [t o m o d i fy t he failure to a

ppear sentenc e], the n I will he lp my client to perf ect an appea l in this matter, and we will addre ss it in that capa city to g et him another hear ing.

The trial c ourt indicated that it did nothave the authority to modify

the sentenc e on the failure-toap p ea r char g e. The court re- sentenc ed appellant on the DWI -with-a- child-passe ng er offe nse and order ed that sentenc e to run concur rently with the 19-y ear failure -to-appe ar sentenc e. The court then stated, “Now as far as that g oes, I ’m g oing to te ll you that y ou have 30 day s in which to a ppeal the decision in this matter.”

4I n his motion for re h ea ring , appellant asser ts that the trial court’s statement that appellant had 30 day s in which to appea l “the decision in this matter” demonstrates that he did have permission to appea l the re- sentenc ing in this cause and there fore is dispositi ve. We disag ree . The

rec ord ref

lects that appellant did no t o b j ec t t o the trial court’s re- sentenc ing him for the
DWI -with-a- child-passe ng er offe nse, only to the trial court’s ref usal to also re- sentenc e him on the failure -to-appe ar char g e. A rea ding of the rec ord as a whole ref lects that appellant wanted to appea l the trial court’s ref

usal to re- sentenc e him on the failure -to-appe ar char g e, and that is what the court
g ave permission to appea l. We do not c onstrue the g rant of permission to c omplain a bout the trial court’s failure to modify the failure -to-appe ar sentenc e in a separ at e case as including a g rant of permission to appea l the modified sentenc e in the instant case . Thus, we do not find the trial court’s

cer tification to be defe ctive. See Dears , 154 S.W .3d at 613 (ce rtification is defe ctive if it is contra ry
to rec ord); Te x . R. App. P. 37.1.

Appellant also maintains on rehe aring that the trial court’s cer tification com p leted in connec tion with the re- sentenc ing ref lected a “plea barg ain” but no waiver of appea l. Howeve r, in our previous opinion, we did not sug g est that the trial court cer tification indicated that appellant had waived his rig ht to appea l. Rather, we noted that the trial court had cer tified that “this criminal

case is a plea- barg ain ca se, and the defe ndant has NO rig ht of appe al.”

Abatem ent I n his motion for rehe aring , appellant complains that this Court “over looked its own opinion of J une 15, 2011.” The orig inal appellate counsel in thi s ca s e fi l ed an Anders brief. I n
response , appellant filed a pro se brief. On J une 15, 2011 this Court issued a memorandum opinion

5abating the appea l and rema nding the case to the trial court for the appointment of new appellate counsel beca

use we conclude d that one of the conte n t i o n s raised by appellant in his pro se brief constituted an argu ab l e ground for appea l. Unfortunately , at the time we abate d the appea l, we
appar ently

overlooke d the fa ct that the trial c ourt cer tification failed to c ertify

that appellant ha d a rig ht to appea l. I n his motion for rehe aring , appellant asks us to “take notice” of our J une 15, 2011

o p i n ion. Howeve r, that opinion neither repla ces nor obviates the require ment of a trial co u rt

cer tification ref

lecting that appellant ha s a rig ht to appeal. The rec ord in this case does not contain a trial court cer tification ref

l ecting that appellant has the right to appea l. Thus, we have no choic e but t o dismiss the appeal. See Tex. R. App. P. 25.2(d). Moreove r, even if we had jurisdiction in this case , we could not provide appellant the relief he seeks. The briefs submitt ed post-abate ment have enable d us to discern the exact nature of appe llant’s contention, and, f or the rea sons disc ussed below, we have conclude d that we do not have the authority

to reve rse a

ppellant’s convic tion and g rant him the newtrial he see ks.

VOID JUDG MENT
I n his sole point of error , appellant a rg ues that t he trial court e rre d in re-se ntencing him beca

use the proper reme dy for t h e i l l egal sentenc e imposed due to improper

en hance ment—which resulted in an unenfor cea ble plea barg ain ag ree ment—was to allow him t o withdraw his plea and return t he parties to their original posi tions. Under normal circ umstances, 3

The State con cedes that the plea- barg ain ag ree ment was impossibl e to perf orm and, 3 there fore , appellant should have been allowed to withdraw his plea. The State further acknow ledg es that the trial cour

t erre d in simpl y

re- sentenc ing a

ppellant. 6appellant would be corr ect. When a plea- barg ain ag ree ment calls for a sentenc e g reater than

that authorized by law, the defe ndant must b e al l o we d t o withdraw his plea. Ex parte Rich , 194 S.W .3d 508, 514 (Tex. Crim. App. 2006). The instant appea l, howeve r, is not from the orig inal judgme nt of conviction but from the trial court’s ref ormed judgme nt modify

in g a ppellant’s sentenc e, which does not impose an illega l sentenc e. Whil e we ag ree that the trial court err ed in simply

re- sentenc ing appellant, the more immediate problem in the instant appea l is not that the court err ed in doing so but that it lacke d jurisdiction to do so.

A trial court’s jurisdiction over a case is an absolute sy stemic require m en t

. State

v. Dunbar , 297 S.W .3d 777, 780 (Tex. Crim. App. 2009); Sa l d a no v. State , 70 S.W .3d 873, 888 (Tex. Crim. App. 2002). Wit hout jurisdiction, the trial court has no powe r t o ac t. Dunbar , 297 S.W .3d at 780. A trial court’s jurisdi ct i o n over a criminal case consists of “the power of the
court over the ‘subject matter’ of the case , convey ed by statute or constitutional provision, coupled with ‘per sonal’ jurisdiction over the acc used, which is invoked in felony prosec utions by the filing of [an] indic t m en t o r information if indictment is waived.” Id. at 780 (quoting Fairfield v. State , 610 S.W .2d 771, 779 (Tex. Crim. App. 1981)). I f no community supervision is imposed, no motion for new trial or in arre st of judgme nt is filed, and no appea l is taken, then the trial court’s persona l jurisdiction over the defe ndant terminates 30 day s afte r sentenc ing. Id. at 780; see Colli ns v. State , 240 S.W .3d 925, 927 (Tex. Crim. App. 2007); Tex. R. App. Proc. 21.4, 22.3. Consequently , afte r that 30-day period, “‘a

source of jurisdiction must be found to authorize the trial court’s order s.’” Dunbar , 297 S.W .3d at 780 (quoting State v. Patrick , 86 S.W .3d 592, 595 (Tex. Crim. App. 2002) (plurality op.)).

7I n the instant case , the trial court lost persona l jurisdiction o v e r a p p e llant 30 day s afte r
sentenc ing him on Fe bruar y 20, 2 0 0 9

. We discern no source of jurisdiction to authorize the trial court’s modification of appellant’ s sentenc e on May 21, 2010. Texas Rule of Appellate Procedur e 21.1 define s “new trial on punishment” as “a new hear ing of the punishment stag e of a cr iminal action afte r the trial court has, on t h e d ef endant’ s motion, set aside an assessment of punishment without setting aside a

findingor ver dict of g uilt.” Tex. R. App. P. 21.1(b). Arguably appellant’ s letter c ould be construe d as a motion for new trial on punishment. Howeve r, such a motion mus t 4 be filed within 30 day s after t h e d at e the trial court imposed sentenc e. Tex. R. App. P. 21.4(a)

. Thus, even if so construed, appellant’ s reque st was untimely

. The power to g rant a motion for new trial is an exercise of “par ticular authority ” by a court of “limited jur isdiction.” State v. Holloway , No. PD-0324-11, 2012 WL 715977, at *3 (Tex. Crim. App. Mar. 7, 2012 ). W h en t h e statutory
t imetable is not followed, the trial court lacks jurisdiction to there afte r rule on the merits of the motion for new tria l. Id.

A court has i nhere nt power to corr ect, modify , vacate, or amend its own ruli ng s 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 reta ins plenar y power to modify its sentenc e if a mot i o n fo r n ew trial is filed within 30 day s of sentenc ing. State v. Davis , 349 S.W .3d 53 5 , 537 (Tex. Crim. App. 2011); 5

The trial court’s docket sheet ref lects the trial judge ’s n o tation that the court “g rant[ed] 4 defe ndant’s motion to rese ntence [si c].” We be lieve that, substantively , a motion to re- sentenc e is the equivale nt of a motion for ne w trial on punishment. A trial court may , by entry of a judgme nt nunc pro tunc , corr ect cler ical m i s takes in a 5 judgme nt or order at any time, even afte r the expiration of the court’s plenar y power . See Ex parte 8Aguilera , 165 S.W .3d at 697-98. Howeve r, a trial court does not have the inhere nt authority to alter,

modify , or vaca

te a sentenc e imposed in open court without statutory authorization and without the
prese nce 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) (Cochra n, J ., concur

ring )). Acc ording ly , belated—that is, untimely and there fore unaut h o ri z ed

— attempts to alter a defe ndant’s sentenc e are “null and void of eff ect.”
Ex parte Brown , 477 S

. W

. 2d 552, 554 (Tex. Crim. App. 1972) (trial court’s re- sentenc ing order making sentenc es cumulative enter ed afte r defe ndant had been imprisoned for two months was invalid). Her e, the trial court attempted to modify appellant’ s sentenc e 15 months afte r the orig inal
sentenc e was imposed, well bey ond the period in which the court had authority to exercise its plenar y power to modify

the sentenc e. Be cause the t ri al court had no jurisdiction to modify appellant’ s sentenc e, the ref ormed judgme nt doing so is void. See Ex parte Redmond , 605 S.W .2d 600, 601 (Tex. Crim. App. 1980) (holding judgme nts of conviction wer e void beca use district court never acquir ed jurisdiction

over juvenile defe ndant). “‘A void judgme nt is a nullity from the beg inning, and is attended by none of the conseque nces of a valid judgme nt. I t is entitled to no respe ct whatsoeve r beca use it does not aff ect, impair, or cre ate leg al rig hts.’” 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) (Tea gue, J ., dissenting and concur

ring )); 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 t h e “s h o ck p robation” statute, the trial court has express statutory 6 authorization to modify a sentenc e of imprisonment that has been previously imposed to place a defe ndant on community supervision under cer tain specifie d circ umstances. See Tex. Code. Crim. Proc. Ann. a

rt 42.12, § 6 (West Supp. 2011). 9jurisdiction over this appea l, vaca ting the void ref

ormed judgme nt would simply leave the orig inal judgme nt in eff

ect. But we have no jurisdiction to g rant any relief from the Fe bruar y 2009 judgme nt, even thoug h it impos ed an illeg al sentenc e. See Slaton v. State , 981 S.W .2d 208, 210 (Tex. Crim. App. 1998) (abse nt t i m el y fi l ed notice of appea l, appellate court does not obtain jurisdiction to addre ss merits of appea l in criminal case and can take no action other than to dismiss appea l for want of jurisdiction); Tex. R. App. P . 26.2(a)

.

The habea s corpus proce dure set out in article 11

. 0 7 of the Code of Criminal Procedur e provide s the exclusive r emedy for felony post-conviction re lief in state cour t. See Tex. Code Crim. Proc. Ann. art. 11.07, § 5 (West Supp. 2011) (“A fter conviction the proce dure outlined in th i s Ac t shall be ex clusive and any other procee ding shall be void and of no forc e and eff ect in discharg ing the prisoner.” ); see a l s o Ex parte W

aggoner , 61 S.W .3d 429, 431 (Tex. Crim. App. 2001) (“H abea s corpus is rese rved for those instances in which there is a jurisdictional defe ct in the trial court which rende rs the judgme nt void

. . . .”); R i ch , 1 9 4 S

. W

. 3d at 511 (cla im of illega l
sentenc e is cog nizable on writ of habea s corpus)

. Fur ther, article 11.07 vests complete jurisdiction over post-c onviction 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 appea ls has authority to g rant post-conviction relief from final felony conviction s ). I f appellant has any

reme dy , it is t hroug h that proce dure.

CONCLUSION

Ba sed upon the record before us, we have neither the j urisdiction nor t h e authority to gr ant appe llant the relief he see ks. We dismi ss this appeal for lack of jurisdiction.
10__________________________________________ J . Woodfin J ones, Chief Just ice
Be fore Chief J ustice Jones, J ustices Pemberton a nd Rose Dismissed for Want of J urisdiction on Motion for Rehear ing Filed: May

22, 2012 Do Not Publish

11