NO. _______ _ 

IN THE COURT OF CRIMINAL APPEALS 

OF THE STATE OF TEXAS 

*************************************************************** 

THE STATE OF TEXAS, 

Appellant, 

v. 

PHILIP DEVON DEEN, 

Appellee. 

*************************************************************** 

On Appeal From The Court of Appeals, Eleventh Judicial 

District, Eastland, Texas 

Cause Number 11-13-00271-CR 

The 350th District Court of Taylor County, Texas 

Honorable Thomas Wheeler, Presiding Judge 

Trial Court Cause Number 8104-D 

*************************************************************** 

STATE'S PETITION FOR DISCRETIONARY REVIEW 

*************************************************************** 

James Eidson 

Criminal District Attorney 

Taylor County, Texas 

300 Oak Street, Suite 300 

Abilene, Texas 79602 

325-674-1261 

325-674-1306 FAX 

BY: Britt Lindsey 

Assistant District Attorney 

400 Oak Street, Suite 120 

Abilene, Texas 79602 

State Bar No. 24039669 

THE STATE REQUESTS ORAL ARGUMENT 

PD-1484-15

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 11/16/2015 11:00:57 AM

Accepted 11/17/2015 11:42:59 AM

ABEL ACOSTA

CLERK
*************************************************************** 

STATE OF TEXAS, APPELLANT 

V. 

PHILIP DEVON DEEN, APPELLEE 

************************************************************* 

IDENTITY OF PARTIES AND COUNSEL 

Appellant: State of Texas 

Trial Attorney for State: 

James Eidson 

Criminal District Attorney 

Taylor County Courthouse 

300 Oak Street, Ste. 300 

Abilene, Texas 79602 

Appeal Attorney for State: 

Britt Lindsey 

Assistant District Attorney 

400 Oak St., Suite 120 

Abilene, Texas 79602 

Presiding Judge: 

Honorable Thomas Wheeler 

3 5 0 'h District Court 

300 Oak St. 

Abilene, Texas 79602 

Appellee: Philip Devon Deen 

Trial Attorney for Appellee: 

Bill Fisher 

Attorney at Law 

1605 South Third Street 

Abilene, Texas 79602 

Appeal Attorney for Appellee: 

Richard E. Wetzel 

Attorney at Law 

1411 West Ave., Ste.100 

Austin, Texas 78701 
TABLE OF CONTENTS 

Identity of Parties and Counsel.. ......................................................... i 

Table of Contents ................................................................................ ii 

Index of Authorities ........................................................................... iii 

Statement Regarding Oral Argument ............................................... 1 

Statement of the Case ........................................................................ 2 

Grounds for Review ............................................................................ 3 

1. Appellee should be estopped from claiming the conviction 

used to enhance his punishment is void when he pleaded 

true to the enhancement paragraph at trial. ...................... 3 

2. If Appellee is not estopped from arguing on appeal that his 

prior conviction is void by his plea of true, his case should be 

remanded to the trial court for a factual determination on 

that issue ..................................................................... 4 

Argument and Authorities ............................................................ 4-15 

Conclusion ........................................................................... 15 

Prayer ............................................................................................. 16 

Certificate of Compliance ................................................................. 18 

Certificate of Service ......................................................................... 18 

Appendix ........................................................................................... 19 

11 
INDEX OF AUTHORITIES 

CASES 

Ex Parte Williams, 63 S.W.3d 656, 659 (Tex. Crim. App 2001) ...... 2 

Nix v. State, 65 S.W.3d 664 (Tex. Crim. App. 2001) ..................... 15 

Rhodes v. State, 240 S.W.3d. 882 (Tex.Crim. App. 2007) ...... passim 

Wilson v. State, 677 S.W.2d 518 (Tex. Crim. App. 1984) ................ 8 

STATUTES 

TEX. CODE CRIM. PROC. art. 42.12, § 3g(a)(l)(F) (West 2014) ......... 4 

TEX. PENAL CODE. ANN. § 12.35(c)(2)(A) (West 2014) ....................... 4 

111 
IN THE TEXAS COURT OF CRIMINAL APPEALS 

********************************************************* 

THE STATE OF TEXAS, 

APPELLANT, 

v. 

PHILLIP DEVON DEEN, 

APPELLEE. 

********************************************************* 

On Appeal From 

The Eastland Court of Appeals 

Eleventh Judicial District, Eastland, Texas 

Cause Number 11-13-00271-CR 

The 350th District Court of Taylor County, Texas 

Honorable Thomas Wheeler, Presiding Judge 

Trial Court Cause Number 8104-D 

********************************************************* 

STATE'S PETITION FOR DISCRTIONARY REVIEW 

********************************************************* 

TO THE HONORABLE COURT OF APPEALS: 

Now comes The State of Texas, by and through the 

undersigned Assistant District Attorney and submits this 

Petition for Discretionary Review pursuant to TEX. R. APP. 

PROC. 68. The State further requests oral argument. 

STATEMENT REGARDING ORAL ARGUMENT 

I 
This case presents a novel question in an area which 

previous opinions of this Court has characterized as having "a 

dearth of case law." Rhodes v. State, 240 S.W.3d. 882, 890-91 

(Tex.Crim. App. 2007) (quoting Ex Parte Williams, 63 

S.W.3d 656, 659 (Tex. Crim. App 2001)(Keller, P.J., 

concurring)). Because of the unusual issues presented in this 

case and its possible implications in sentence enhancement 

across the State, the State believes oral argument would 

benefit the Court and respectfully requests the same. 

STATEMENT OF THE CASE 

Appellee was convicted of possession of cocaine in an 

amount less than one gram, a state jail felony. At punishment, 

Appellee pleaded true to a prior conviction in an enhancement 

paragraph raising the range of punishment to that of a third 

degree felony. On appeal, Appellee argued that his prior 

conviction was void due to a sentence below the statutory 

minimum. The Eastland Court of Appeals agreed and 

remanded to the trial court for a new hearing on punishment. 

STATEMENT OF PROCEDURAL HISTORY 

2 
Appellee was found guilty by a jury on April 16, 2013, 

of possession of cocaine in and amount less than one gram, 

and opted to have punishment assessed by the judge of the 

trial court. (RR3: 140) (CRl: 41, 55-56) A prior conviction of 

aggravated robbery was alleged in the indictment, 

enhancing the range of punishment from a state jail felony 

range to a third degree felony range. (CRl: 6, 62) Appellee 

entered a plea of true to the prior conviction and the pen 

packet was entered into evidence. (RR4: 4, 7-8; RR5: SX 

l(punishment)). The trial court sentenced Appellee to four 

years TDCJ-ID on August 22, 2013, and Appellee appealed 

to the Eastland Court of Appeals on August 22, 2014. (RR4: 

40) (CRl: 58-59). On October 15, 2015, the Eastland Court of 

Appeals issued its opinion reversing the sentence of the trial 

court and remanding Appellee's case for a new hearing on 

punishment. See Opinion of the Court, Appendix. No Motion 

for Rehearing was filed. 

GROUNDS FOR REVIEW 

1. Appellee should be estopped from claiming the 

conviction used to enhance his punishment is 

3 
void when he pleaded true to the enhancement 

paragraph at trial. 

2. If Appellee is not estopped by his plea of true 

from arguing on appeal that his prior conviction 

is void, his case should be remanded to the trial 

court for a factual determination on that issue. 

ARGUMENT AND AUTHORITIES 

Phillip Devon Deen, Appellee, was indicted for 

possession of cocaine in an amount of less than one gram, a 

state jail felony, in the 350th District Court. HEALTH & SAFETY 

§§ 481.102(3)(D), 481.115(b) (West 2014); TEX. PENAL CODE. 

ANN. § 12.35(a), (b) (West 2014). The State relied on Appellee's 

prior conviction for first degree felony aggravated robbery, an 

offense listed in Section 3g(a)(l) of the Texas Code of Criminal 

Procedure, to seek an enhanced sentence under Section 

12.35(c)(2)(A) of the Texas Penal Code. TEX. PENAL CODE. 

ANN. § 12.35(c)(2)(A) (West 2014); TEX. CODE CRIM. PROC. art. 

42.12, § 3g(a)(l)(F). Appellee was originally placed on 

deferred adjudication for the aggravated robbery, but the trial 

court subsequently entered a judgment adjudicating his guilt 

on August 27, 2009 and sentenced Appellee to four years in 

4 
prison, which is below the statutory m1n1mum. A sentence 

below the statutory minimum is void unless it is the result of 

a plea bargain on the part of the defendant. 

At the punishment hearing for the possession of cocaine, 

Appellee pleaded true to the prior conviction of aggravated 

robbery. (RR4: 4) Based on Appellee's plea of true, no evidence 

regarding the 2009 aggravated robbery was offered by the 

State other than a pen packet containing the judgment of 

conviction. (RR4: 8) On appeal Appellee argued that his prior 

conviction was void because no evidence was offered into the 

record showing that the sentence of four years was the result 

of a plea agreement. No evidence was presented because the 

State relied on the defendant's plea of true to the aggravated 

robbery conviction, and the court made no explicit finding that 

the prior conviction was void or not void because Appellee did 

not raise the issue. 

1. Appellee should be estopped from claiming the 

conviction used to enhance his punishment is void when 

he pleaded true to the enhancement paragraph at trial 

5 
At the punishment phase of his trial, Appellee pleaded 

true to the enhancement paragraph of his indictment 

alleging the prior conviction for aggravated robbery. On 

appeal, Appellee challenges that same conviction as void 

because of a sentence below the statutory range of 

punishment, claiming that there is no evidence that the 

lenient sentence was the result of a plea bargain. However, 

no evidence of a plea bargain in the prior conviction was 

entered because the State relied on Appellee's plea of true. 

Appellee should be estopped from arguing counter to his own 

plea of true on Appeal, and the Eastland Court of Appeals 

erred in declaring Appellee's prior conviction void and 

remanding his case to the trial court for a new hearing on 

punishment. 

In the opinion issued on October 15, 2015, the Eastland 

Court found that Appellee's prior conviction for aggravated 

robbery was void due to his four year sentence being below 

the statutory minimum for a first degree felony, and that it 

accordingly could not be used to enhance his current state 

6 
jail felony possess10n of cocaine. The Appellee should be 

estopped from arguing that his prior conviction is void due to 

his plea of true to the prior conviction and the State's 

reliance on that plea of true. 

In general, a sentence for less than the statutory 

minimum or more than the statutory maximum allowed by 

law renders a judgment of conviction a nullity. See, e.g. 

Wilson v. State, 677 S.W.2d 518 (Tex. Crim. App. 1984) 

(prior first degree felony conviction with four year sentence 

could not be used for enhancement in subsequent felony). 

However, an exception exists when a defendant enters into a 

plea bargain with the State for a sentence below the 

mandatory minimum. When the defendant himself contracts 

with the State for a sentence below the minimum, he is then 

estopped from declaring that same sentence void at a later 

date. This "estoppel by judgment" exception was articulated 

by this Court in the case of Rhodes v. State, 240 S.W.3d. 882 

(Tex. Crim. App. 2007). 

7 
In Rhodes, the defendant was serving sentences of 

three years and forty-five years for burglary and aggravated 

sexual assault, respectively. Rhodes, 240 S.W.3d at 884. 

While being bench warranted to Smith County to answer for 

a theft charge, defendant escaped; after he was apprehended 

he was sentenced to two years in state jail for the theft and 

ten years for the escape, to run concurrently with one 

another. Id. Appellee later committed more felony offenses 

and was charged with burglary of a habitation, escape and 

theft. Id. At trial, the defendant filed a motion to quash an 

enhancement paragraph regarding his prior Smith County 

escape conviction on the grounds that it was void because it 

was run concurrently with his other offenses rather than 

consecutively as required by Tex. Crim. Pro. art. 42.08(b). Id. 

In other words, the defendant claimed he "received a 

judgment that was illegally lenient by having his sentence 

run concurrently instead of consecutively." Id. On appeal, 

the court of appeals agreed and found that the trial court's 

failure to order that the escape sentence run consecutively 

8 
with the prior aggravated sexual assault sentence rendered 

the escape judgment void and thus unusable for 

enhancement purposes. Id. at 885. The State filed a Petition 

for Discretionary Review. 

This Court granted the State's Petition for 

Discretionary Review and reversed the holding of the court 

of appeals. The Court predicated its holding on two grounds: 

(1) if the defendant did not enter into a plea agreement on 

the concurrent sentencing issue, the judgment was not 

subject to collateral attack as void because the judgment 

could be corrected by an order nunc pro tune reforming the 

sentence, and (2) if the defendant did enter into a plea 

agreement on the concurrent sentencing issue, he was now 

estopped from challenging the judgment. Id. at 887. After an 

examination of case law from other jurisdictions, the Court 

reasoned that: 

A defendant who has enjoyed the benefits of an 

agreed judgment prescribing a too-lenient 

punishment should not be permitted to 

collaterally attack that judgment on a later date 

on the basis of the illegal leniency. Here, 

appellant received a judgment that was illegally 

9 
lenient by having his sentence run concurrently 

instead of consecutively. Had he complained 

about the illegal leniency at the time of trial, or 

even on direct appeal, the State could likely have 

obtained a legal judgment that would now be 

available for enhancement purposes. But instead, 

appellant quietly enjoyed the benefits of the 

illegally lenient judgment, challenging it now 

only because, due to his own subsequent criminal 

conduct, the judgment can be used to enhance his 

punishment for a new offense. If he agreed to the 

concurrent sentencing provision, then through his 

own conduct he helped procure and benefit from 

the illegality and he should not now be allowed to 

complain. 

Rhodes at 892. In the instant case, the Eastland Court 

of Appeals distinguished Rhodes by noting the requirement 

of a plea agreement before the estoppel requirement could be 

applied. The Court further noted that counsel for the State 

conceded in her brief that "there is insufficient 

documentation to show whether the prior conviction was a 

result of a plea-bargain agreement." However, the State 

conceded only that that the record was silent on that point, 

not that no such documentation existed or that no plea 

bargain could have been proved at trial. The reason that the 

record is silent on this point is because Appellee pleaded true 

10 
to the prior conviction of aggravated robbery, thus obviating 

any further proof of its validity. 

In Rhodes, the defendant filed a motion to quash the 

enhancement paragraph at the time of trial alleging that it 

was void due to a too lenient sentence. Rhodes at 884. Here, 

Appellee did not file a motion to quash, or even stand silent 

to the enhancement allegation. Rather, Appellee entered a 

plea of true to the enhancement paragraph, which the State 

relied upon to its detriment. Had Appellee not pleaded true 

to the enhancement allegation, the State could have 

addressed the issue of whether or not the too-lenient 

sentence resulted from a plea agreement, with the guidance 

of the Rhodes case. This issue could have been addressed a 

number of ways: notations from the docket sheet could have 

shown that Appellee agreed to a four year sentence per a 

plea agreement, or the original prosecutor in the case could 

testify as to any agreement between the parties. Because the 

prior aggravated robbery sentencing was also in the 35Qth 

District Court and before the same presiding judge, the 

11 
judge could have stated his recollection from the bench or 

stated what his usual practice is regarding sentencing 

defendants to prison terms below the statutory minimum in 

the absence of a plea agreement. Appellee's silence at trial is 

exactly the same conduct that Rhodes forbids, repeated 

twice: Appellee, having pleaded true to the enhancement 

paragraph, now complains that his plea of true was relied 

upon. Appellee should be estopped from collaterally 

attacking his own plea of true to his enhancement 

paragraph. 

2. If Appellee is not estopped by his plea of true from 

arguing on appeal that his prior conviction is void, his 

case should be remanded to the trial court for a factual 

determination on that issue 

Appellee argues that his prior conviction for 

aggravated robbery is void because his sentence of four years 

is below the statutory minimum for a first degree felony. 

However, case law from this Court establishes that a 

defendant is estopped from claiming that a sentence below 

the statutory minimum is void when the defendant received 

12 
that sentence due to a plea bargain entered into with the 

State. No evidence was adduced or entered on that point in 

the trial court because the State relied on Appellee's own 

plea of true to the prior conviction. If Appellee is now 

allowed to contravene that plea of true, the issue should be 

remanded to the trial court for a factual determination as to 

whether Appellee's four year sentence for aggravated 

robbery was the result of a plea bargain. The Court of 

Appeals erred when it declared Appellee's prior conviction 

void when no evidence was entered on that point in the trial 

court due to Appellee's own plea of true. 

If Appellee is now allowed to raise the question of 

whether his prior conviction for aggravated robbery is void 

due to an illegally lenient sentence, that question should be 

remanded to the trial court for a factual determination. The 

sentence of four years in the prior aggravated robbery is not 

void on its face; as per Rhodes, it is dependent on whether it 

was due to a plea agreement on the part of Appellee. The 

record in the trial court is silent on that point, but as stated 

13 
above it is silent due to Appellee's own doing in pleading 

true to the enhancement allegation. 

The Eastland Court of Appeals noted that the State 

conceded in its brief "that there is insufficient 

documentation to show whether the prior conviction is the 

result of a plea agreement," and went on to state that in 

light of Rhodes's requirement of a plea agreement before 

applying the doctrine of estoppel by judgment that "the court 

declines to extend the estoppel doctrine in the absence of a 

plea agreement." Court's opinion at 13. Respectfully, this 

assumes that no plea agreement exists when that has not 

been demonstrated due to Appellee's own plea of true. Had 

Appellee done as the defendant in Rhodes did in filing a 

Motion to Quash the enhancement paragraph (or at a bare 

minimum not pleaded true to it), the State could have 

responded by presenting evidence of an existing plea 

agreement in the prior conviction. By pleading true to the 

enhancement paragraph and subsequently asserting it to be 

14 
void when convenient to do so, Appellee both creates his own 

harm and reaps the benefit of it. 

In its opinion the Court of Appeals noted that "a void 

judgment is a nullity and may be attacked at any time," 

quoting Nix v. State, 65 S.W.3d 664, 667-68 (Tex. Crim. App. 

2001). This does not entitle Appellee to declare his own 

sentence void when the State has been afforded no 

opportunity to respond with evidence to the contrary. As 

stated above, the State's position is that Appellee is estopped 

by his plea of true from now asserting that his prior 

conviction is void, but should Appellee be allowed to do so 

the issue should be remanded to the trial court for an 

evidentiary hearing and a determination on the record. 

CONCLUSION 

If Appellee is allowed to collaterally attack his prior 

sentence as void after pleading true to his enhancement 

paragraph, criminal defendants who reoffend after plea 

bargaining for sentences below the minimum will have a 

means of circumventing the use of prior convictions in 

15 
contravention of both the Legislature's enhanced sentencing 

scheme and the case law of this Court regarding estoppel by 

judgment. The Eastland Court of Appeals erred in its 

opinion and the negative implications of that error requires 

reversal. 

PRAYER FOR RELIEF 

The State respectfully requests that this Court reverse 

the ruling of the Eastland Court of Appeals on the grounds that 

Appellee is estopped from asserting that his prior conviction is 

void by his plea of true to that conviction in the trial court. 

Alternatively, should Appellee now be allowed to make that 

assertion, the State requests that the issue be remanded to the 

trial court for a factual determination as to whether a plea 

agreement existed in the prior conviction, thus estopping 

Appellee from collaterally attacking that conviction. 

Respectfully submitted, 

James Eidson 

Criminal District Attorney 

Taylor County, Texas 

300 Oak Street 

16 
Abilene, Texas 79602 

325-674-1261 

325-674-1306 FAX 

BY: /s/ Britt Lindsey 

BRITT LINDSEY 

Assistant District Attorney 

Appellate Section 

400 Oak Street, Suite 120 

Abilene, Texas 79602 

325-674-1376 

325-674-1306 FAX 

State Bar No. 24039669 

Attorney for the State 

17 
CERTIFICATE OF SERVICE 

This is to certify that on November 16, 2015 a copy of 

the foregoing instrument has been served via mail, email or 

e-filing to the following: 

Richard E. Wetzel 

Attorney at Law 

1411 West Ave., Ste.100 

Austin, Texas 78701 

Email: wetzel law@1411west.com 

Lisa C. McMinn 

State Prosecuting Attorney 

209 W. 14th Street 

Austin, Texas 78701 

Email: infor1nation@SPA.texas.gov 

Isl Britt Lindsey 

BRITT LINDSEY 

Assistant District Attorney 

Appellate Section 

400 Oak Street, Suite 120 

Abilene, Texas 79602 

325-674-1376 

325-674-1306 FAX 

State Bar No. 24039669 

Attorney for the State 

18 
CERTIFICATE OF COMPLIANCE 

This is to certify that the sections covered by Texas 

Rule of Appellate Procedure 9.4(i)(l) contain 2258 words in 

14 point type. 

19 

s/ Britt Lindsey 

BRITT LINDSEY 
APPENDIX: OPINION OF THE llTH COURT OF APPEALS 

20 
Opinion filed October 15, 2015 

In The 

~lebentb qcourt of ~ppeal~ 

No.11-13-00271-CR 

PHILLIP DEVON DEEN, Appellant 

v. 

THE STATE OF TEXAS, Appellee 

On Appeal from the 350th District Court 

Taylor County, Texas 

Trial Court Cause No. 9902-D 

MEMORANDUM OPINION 

Phillip Devon Deen appeals his jury conviction for the offense of possession 

of cocaine in an amount of less than one gram, a state jail felony. See TEX. 

HEALTH & SAFETY CODE ANN. §§ 481.102(3)(D), 481.l 15(b) (West 2010). The 

State alleged a prior conviction for aggravated robbery as an enhancement. See TEX. 

PENAL CODE ANN.§ 12.35(c)(2)(A) (West Supp. 2014). Appellant pleaded "true" 

to the prior aggravated robbery conviction, and the trial court assessed his 

punishment at confinement for a term of four years in the Texas Department of 
Criminal Justice, Institutional Division. Appellant raises four issues on appeal, 

challenging both his conviction and his punishment. We modify the judgment of 

conviction to correct an error concerning the level of the offense for which he was 

convicted. As modified, the judgment of conviction is affirmed. However, we 

reverse the judgment with respect to Appellant's punishment and remand for a new 

trial on punishment. 

Background Facts 

Chris Collins, a police officer with the Abilene Police Department, received 

an alert to look for a white Infinity with Louisiana license plates because of a 

suspicion that the driver was selling cocaine. Officer Collins located the vehicle, 

observed a traffic violation, and initiated a traffic stop. Appellant was the driver of 

the vehicle. Officer Collins spoke with Appellant, and based on that conversation 

and the information Officer Collins had received about Appellant, Officer Collins 

asked Appellant to exit the vehicle-whereupon Officer Collins handcuffed 

Appellant. 

Officer Collins requested assistance from a K-9 officer, and Ismael Jaimes, a 

K-9 officer with the Abilene Police Department, arrived with his dog, Chavo, and 

conducted an open-air sniff around Appellant's vehicle with Chavo. Based upon 

Chavo giving a positive alert, Officer Jaimes and Chavo searched the inside of 

Appellant's vehicle. Officer Jaimes found a pill bottle inside the center 

console/armrest. The pill bottle contained four small rocks that the DPS chemist 

confirmed consisted of less than one gram of cocaine. Officer Collins questioned 

Appellant about what the officers had found in Appellant's vehicle without first 

telling him or showing him what they had found, and Appellant said that it was the 

"stuff I smoke," "crack." Appellant told Officer Collins that "four rocks" were 

located in the armrest. Officer Collins's dash-cam equipment recorded his 

conversation with Appellant. 

2 
Issues on Appeal 

In his first issue, Appellant alleges ineffective assistance of counsel. 

Appellant's first issue is comprised of six sub-issues. The first four sub-issues deal 

with counsel's performance during the guilt/innocence phase, and the last two subissues relate to the punishment phase. Appellant's second issue deals with the trial 

court's admission of evidence during the guilt/innocence phase. In his third issue, 

Appellant challenges his sentence based upon the contention that his prior conviction 

for aggravated robbery was void. In his fourth issue, Appellant asks for the judgment 

to reflect that the jury convicted him of a state jail felony rather than a third-degree 

felony. 

Ruling on Nonresponsive Objection 

We begin our analysis by addressing Appellant's second issue because it 

concerns the guilt/innocence phase and is related to one of the sub-issues contained 

within his first issue alleging ineffective assistance of counsel. Appellant contends 

that the trial court erred when it overruled Appellant's "nonresponsive" objection to 

Officer Collins's testimony about Appellant being recently released from prison. 

The following dialogue occurred between defense counsel and Officer Collins 

during cross-examination: 

Q. Okay. You talked to him for a little while and then he gets 

out of the car and you handcuff him? 

A. That's correct. 

Q. Is that normal procedure? 

A. Based on the conversation we had and while I was standing at 

the vehicle, I placed him in handcuffs for my safety. 

Q. Based on conversation you had. You've said that several 

times, but you're not telling us anything about what the conversation is 

that led you to believe that you had a reason to arrest him. 

3 
A. He told me his driver's license was suspended, that he wasn't 

supposed to be driving, and that he was just recently released from 

pnson. 

Q. Did he tell you -- did he tell -- let me back up. 

[DEFENSE COUNSEL]: Your Honor, I'm going to have to 

object to the last thing he said about being -- about prison. I don't think 

that my question led to that. I'm asking him what he's based this on, 

and surely he didn't base it on that. 

THE COURT: [Defense Counsel], I took the question to be what 

did he tell you, even though that wasn't the words -- you haven't told 

us what he said -- so your objection for nonresponsive is overruled. I 

believe the door was opened for that response. 

[DEFENSE COUNSEL]: Okay. 

We review the trial court's decision to admit or exclude evidence under an 

abuse of discretion standard. See Shuffieldv. State, 189 S.W.3d 782, 793 (Tex. Crim. 

App. 2006). A trial court abuses its discretion when it acts outside the zone of 

reasonable disagreement. See Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 

2003). We conclude that the trial court did not abuse its discretion by overruling 

Appellant's "nonresponsive" objection because the officer's answer appeared to be 

responsive to trial counsel's question about the conversation thatthe officer had with 

Appellant that led to Appellant's arrest. 

Moreover, a '"nonresponsive' objection alone, however, merely informs the 

trial court why the objection was not made prior to the answer being given." 

Jackson v. State, 889 S.W.2d 615, 617 (Tex. App.-Houston [14th Dist.] 1994, pet. 

refd) (quoting Smith v. State, 763 S.W.2d 836, 841 (Tex. App.-Dallas 1988, pet. 

refd)). Even after the "nonresponsive" portion of the objection is made, there 

remains the question of the testimony's admissibility. Id. In this context, in order 

4 
to properly exclude evidence or obtain an instruction to disregard, a party must 

address in its objection both the nonresponsiveness and the inadmissibility of the 

answer. Id. Furthermore, a blanket "nonresponsive" objection alone is an 

insufficient objection to preserve error where the response is a hybrid answer-that 

is, where a portion of the answer is objectionable and a portion of the answer is not 

objectionable. Id. Accordingly, trial counsel's objection solely on the basis that the 

officer's answer was not responsive did not present a valid basis for the trial court 

to exclude the officer's answer. We overrule Appellant's second issue. 

Ineffective Assistance of Counsel 

In his first issue, Appellant asserts ineffective assistance of counsel in six subissues. He contends that his trial counsel's performance was deficient because he 

(1) failed to object to the admissibility of Officer Collins's dash-cam video, 

(2) elicited testimony that police officers suspected Appellant of selling cocaine, 

(3) opened the door to the admissibility of Officer Collins' s testimony that Appellant 

had recently been released from prison, ( 4) failed to request a jury instruction on 

extraneous offenses, (5) failed to object to an invalid conviction used to enhance 

punishment, and (6) failed to object to the prosecutor's questions at punishment that 

violated the attorney-client privilege. To determine whether Appellant's trial 

counsel rendered ineffective assistance, we must first determine whether Appellant 

has shown that his counsel's representation fell below an objective standard of 

reasonableness and, if so, then determine whether there is a reasonable probability 

that the result of the proceeding would have been different but for his counsel's 

errors. Strickland v. Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 726 

S.W.2d 53, 55-57 (Tex. Crim. App. 1986). 

We must indulge a strong presumption that counsel's conduct fell within the 

wide range of reasonable professional assistance, and Appellant must overcome the 

presumption that, under the circumstances, the challenged action might be 

5 
considered sound trial strategy. Strickland, 466 U.S. at 689; Tong v. State, 25 

S.W.3d 707, 712 (Tex. Crim. App. 2000). An allegation of ineffective assistance of 

counsel must be finnly founded in the record, and the record must affirmatively 

demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 814 

(Tex. Crim. App. 1999). With respect to allegations of ineffective assistance of 

counsel, the record on direct appeal is generally undeveloped and rarely sufficient 

to overcome the presumption that trial counsel rendered effective assistance. Bone v. 

State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002); Thompson, 9 S.W.3d at 813-14. 

The Court of Criminal Appeals has said that "trial counsel should ordinarily be 

afforded an opportunity to explain his actions before being denounced as 

ineffective." Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003). If 

trial counsel did not have an opportunity to explain his actions, we will not find 

deficient performance unless the challenged conduct was "so outrageous that no 

competent attorney would have engaged in it." Garcia v. State, 57 S.W.3d 436, 440 

(Tex. Crim. App. 2001). We note at the outset of our analysis that Appellant did not 

file a motion for new trial. Accordingly, the appellate record does not contain an 

explanation from trial counsel concerning his actions. 

Appellant's first sub-issue concerns trial counsel's failure to object to the 

admissibility of Officer Collins's dash-cam video, specifically the audio portion of 

the recording. In order to prevail on this contention, Appellant must establish that 

the evidence was inadmissible because the failure to object to admissible evidence 

does not constitute ineffective assistance. See Ex parte Jimenez, 364 S.W.3d 866, 

887 (Tex. Crim. App. 2012). 

Appellant contends that the dash-cam video was inadmissible because the 

State could not establish the predicate for its admissibility. Article 38.22, section 3 

of the Texas Code of Criminal Procedure requires that oral statements of an accused 

be electronically recorded by a device that can make an accurate recording. TEX. 

6 
CODE CRIM. PROC. ANN. art. 38.22 § 3(a) (West Supp. 2014). Appellant contends 

that the recording device was incapable of making an accurate recording because 

"the voices and the words within the recording were garbled and at points 

incomprehensible." 

Officer Collins testified that his mobile video recording equipment was 

capable of making an accurate recording of his conversation with Appellant and that 

he had reviewed the video for accuracy. He explained, however, that the microphone 

attached to his chest was not working. Accordingly, there was no audio recorded 

for a large portion of Officer Collins's encounter with Appellant. The only 

functioning microphone was the one located in the backseat of Officer Collins's 

patrol car. Appellant's trial counsel did not object to the prosecutor's offer of a 

portion of the recording into evidence. The prosecutor then published approximately 

twenty-three minutes of the recording to the jury. The first several minutes of the 

recording did not contain any audio. Afterward, Officer Collins read Appellant his 

Miranda 1 rights and began questioning him. In response to Officer Collins's 

question about what would be found in Appellant's car, Appellant stated that the 

officers would find four rocks of "crack" in his car. After the recording was played 

for the jury, the prosecutor questioned Officer Collins about the recording as 

follows: 

Q. Officer Collins, it's difficult to understand, but initially after 

being read his rights, there was something about smoke. Do you recall 

what that question was? 

A. Yes, I asked him what we found in the vehicle, and he said, 

The stuff I smoke. And I asked him what he smokes, and he said, 

Crack. 

Q. And was he able to describe for you where it was located? 

1

Miranda v. Arizona, 384 U.S. 436 (1966). 

7 
A. He said the crack was in the armrest, which is the same as the 

center console in that vehicle. 

Q. Is that where it was found? 

A. Yes. 

Q. And was he able to describe for you how many crack rocks? 

A. We asked him how much was in the car, and he said there was 

$40 worth. We asked him how much was -- you know, how many rocks 

were $40 worth, and he said there's four rocks. 

As noted previously, Officer Collins testified that his video equipment was 

capable of making an accurate recording. Accordingly, Appellant's trial counsel 

may have concluded that this testimony was sufficient to establish the requisite 

predicate for the admissibility of the recording. To show ineffective assistance of 

counsel for the failure to object during trial, the appellant must show that the trial 

judge would have committed error in overruling the objection. Ex parte White, 160 

S.W.3d 46, 53 (Tex. Crim. App. 2004). The record does not establish that the trial 

court would have erred in overruling the predicate objection that Appellant contends 

should have been made. Accordingly, Appellant's trial counsel's failure to object to 

the recording's admissibility was not deficient. 

Appellant asserts in his second sub-issue that trial counsel was ineffective 

when he elicited testimony from Officer Collins that officers suspected Appellant of 

being a drug dealer. Specifically, trial counsel asked Officer Collins why he was on 

the lookout for Appellant's vehicle, and Officer Collins responded that the driver of 

the vehicle was suspected of selling cocaine. 

Evidence of other crimes, wrongs, or acts is inadmissible at the 

guilt/innocence phase of trial to show the accused's conformity with those other acts. 

TEX. R. Evrn. 404(b); Lockhart v. State, 847 S.W.2d 568, 570 (Tex. Crim. App. 

8 
1992). Rule 404(b) incorporates the fundamental tenet of our criminal justice system 

that an accused may be tried only for the offense for which he is charged, not for his 

criminal propensities. Rankin v. State, 974 S.W.2d 707, 718 (Tex. Crim. App. 1996). 

For an extraneous offense to be admissible, it must be relevant apart from supporting 

an inference of character conformity. Montgomery v. State, 810 S.W.2d 372, 387 

(Tex. Crim. App. 1991). 

Appellant contends that there could have been no strategic reason for trial 

counsel to have questioned Officer Collins on the reason the police were interested 

in Appellant and his automobile. We disagree. It appears that trial counsel was 

attempting to establish that the officer's reason for stopping and arresting Appellant 

was pretextual in nature. Thus, trial counsel's questioning about the conversation 

that Officer Collins had with Appellant leading to Appellant's arrest may have been 

based on trial strategy. The record does not affirmatively demonstrate that trial 

counsel's question seeking to determine the officer's basis for stopping Appellant 

fell below an objective standard of reasonableness. 

Appellant's third sub-issue alleging ineffective assistance of counsel is related 

to his second issue that we have already addressed. As noted above, the trial court 

concluded that "the door was opened" to Officer Collins' s response that Appellant 

was recently released from prison. Appellant contends that trial counsel's alleged 

act of opening the door constituted ineffective assistance of counsel. We disagree. 

An accused may make otherwise inadmissible evidence admissible by 

"opening the door" through questions that elicit testimony about extraneous 

offenses. Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009). While 

the trial court rnled that "the door was opened" by trial counsel, the record does not 

demonstrate that counsel's conduct constituted ineffective assistance of counsel. As 

was the case with the second sub-issue, it appears that trial counsel was attempting 

to establish that the officer's reason for stopping and arresting Appellant was 

9 
pretextual in nature. Thus, trial counsel's questioning about the conversation that 

Officer Collins had with Appellant leading to Appellant's arrest may very well have 

been based on trial strategy. Accordingly, the record does not affirmatively 

demonstrate that trial counsel's questioning of Officer Collins was deficient. 

Appellant's fourth sub-issue alleging ineffective assistance concerns trial 

counsel's failure to request a jury instruction limiting the jury's consideration of 

extraneous offenses. The Texas Court of Criminal Appeals has noted that trial 

counsel might deliberately forego a limiting instruction for extraneous offenses as a 

part of "trial strategy to minimize the jury's recollection of the unfavorable 

evidence." Delgado v. State, 235 S.W.3d 244, 250 (Tex. Crim. App. 2007) (quoting 

United States v. Johnson, 46 F.3d 1166, 1171 (D.C. Cir. 1995)). Without evidence 

in the record of trial counsel's strategy, we will not speculate why he did not request 

a limiting instruction. 

In considering Appellant's first four sub-issues alleging ineffective assistance, 

we have determined that the performance of Appellant's trial counsel during the 

guilt/innocence phase did not fall below an objective standard of reasonableness. 

We additionally conclude that Appellant has failed to show there is a reasonable 

probability that, but for his counsel's alleged errors, the result of the proceeding 

would have been different. The evidence of Appellant's guilt was overwhelming in 

that he confessed on the recording to possession of the controlled substance. 

Appellant's fifth and sixth sub-issues concern alleged instances of ineffective 

assistance of counsel occurring during the punishment phase. If Appellant were to 

prevail on either of these claims, he would be entitled to a new punishment hearing. 

CRIM. PROC. art. 44.29(b); see Milburn v. State, 15 S.W.3d 267, 271-72 (Tex. 

App.-Houston [14th Dist.] 2000, pet. ref'd). As set forth below, we conclude that 

Appellant is entitled to a new trial on punishment with respect to his third issue. 

Accordingly, we need not address his fifth and sixth sub-issues concerning alleged 

10 
ineffective assistance of counsel during the punishment phase. We overrule 

Appellant's first issue alleging ineffective assistance of counsel. 

Illegal Sentence Based on Void Prior Conviction 

In his third issue, Appellant contends that his enhanced, four-year sentence of 

confinement for a state jail felony is illegal. The State relied upon Appellant's prior 

conviction for the first-degree felony offense of aggravated robbery to seek an 

enhanced sentence under Section 12.35(c)(2)(A) of the Penal Code. PENAL 

§ 12.35(c)(2)(A). Appellant contends that this prior conviction was void and 

unavailable for enhancement purposes because his sentence of confinement for the 

first-degree felony was below the statutory minimum. We agree. 

Possession of less than one gram of cocaine is a state jail felony offense 

punishable by confinement for any term of not more than two years or less than 180 

days and a fine not to exceed $10,000. HEALTH & SAFETY §§ 481.102(3)(D), 

481.1 lS(b ); PENAL§ 12.35(a), (b ). A state jail felony offense may be punishable as 

a third-degree felony offense by enhancement with a prior felony conviction for an 

offense listed in Section 3g(a)(l) of Article 42.12 of the Texas Code of Criminal 

Procedure. PENAL§ 12.35(c)(2)(A); CRIM. PROC. art. 42.12, § 3g(a)(l). Aggravated 

robbery is an offense listed in Article 42.12, section 3g(a)(l). CRIM. PROC. 

art. 42.12, § 3g(a)(l)(F). 

The indictment alleged that Appellant had previously been convicted of 

aggravated robbery in 2009. Aggravated robbery is a first-degree felony with a 

minimum sentence of confinement of five years. See PENAL §§ 12.32, 29.03(b) 

(West 2011 ). Appellant pleaded "true" to the prior conviction at the outset of the 

punishment hearing. The State offered a copy of the judgment from the 2009 

conviction for aggravated robbery into evidence. The judgment indicates that 

Appellant was originally placed on deferred adjudication for a term of eight years 

but that the trial court subsequently entered a judgment adjudicating guilt on 

11 
August 27, 2009. However, Appellant was only sentenced to confinement for a term 

of four years. 

Appellant's challenge to the enhancement allegation in this case constitutes a 

collateral attack on the prior judgment of conviction. See Rhodes v. State, 240 

S.W.3d 882, 887 (Tex. Crim. App. 2007). Such a collateral attack is permitted only 

if the prior judgment is void, and not merely voidable. Id.; see Nix v. State, 65 

S.W.3d 664, 667-68 (Tex. Crim. App. 2001) ("A void judgment is a 'nullity' and 

can be attacked at any time."). The Court of Criminal Appeals addressed an 

analogous situation in Wilson v. State, 677 S.W.2d 518 (Tex. Crim. App. 1984). In 

Wilson, the defendant's punishment was enhanced with a prior conviction for a firstdegree felony. 677 S.W.2d at 520, 524. However, the defendant was only sentenced 

to confinement for a term of four years. Id. at 524. The court stated as follows: "It 

is now axiomatic that the punishment assessed must always be within the minimum 

and maximum fixed by law. When the punishment assessed is less than the 

minimum provided by law, this renders the judgment of conviction a nullity." Id. 

The court determined that the defendant's prior judgment of conviction was void 

and should not have been used against the defendant for enhancement purposes. Id. 

The State contends that Appellant should be estopped from complaining that 

his prior sentence was too lenient because he enjoyed the benefits of a sentence that 

was below the statutory minimum. The State cites Rhodes in support of this 

proposition. We conclude that Rhodes is distinguishable from the facts in this case. 

The defendant in Rhodes was serving time in the penitentiary when he 

escaped. Rhodes, 240 S.W.3d at 884. When recaptured, he was tried and convicted 

of escape and was sentenced to imprisonment for a term often years. Id. The trial 

judge did not expressly order the escape sentence to be served consecutively with 

the sentences the defendant was serving when he escaped as required by the Code 

of Criminal Procedure. Id.; see CRIM. PROC. art. 42.08(b). The defendant later 

12 
committed more felonies, and the State alleged the prior escape conviction for 

enhancement purposes. Rhodes, 240 S.W.3d at 884. The defendant objected to the 

use of the escape conviction for enhancement purposes, asserting that the judgment 

was void because the sentence was ordered to run concurrently with the sentences 

he was serving when he escaped. Id. The court concluded that the judgment for the 

escape conviction was not void because it could be reformed through a judgment 

nunc pro tune to correct the error alleged by the defendant. Id. at 887-89. As noted 

by the court, a judgment of conviction is only void if "the infinnity cannot be cured 

without resort to resentencing." Id. at 888. 

The court additionally stated in Rhodes that "[a] defendant who has enjoyed 

the benefits of an agreed judgment prescribing a too-lenient punishment should not 

be permitted to collaterally attack that judgment on a later date on the basis of the 

illegal leniency." Id. at 892. The court premised this conclusion on the principle of 

estoppel. Id. at 891-92. The record before the court in Rhodes did not show whether 

the concurrent serving of the sentence for the escape conviction was pursuant to a 

plea agreement. Id. at 886-87. Accordingly, the court did not rely upon estoppel 

grounds for its resolution in Rhodes. 

The State concedes in this appeal "that there is insufficient documentation to 

show whether the prior conviction was a result of a plea-bargain agreement." 

Irrespective of this omission, the State contends that Appellant should still be 

estopped from attacking the prior conviction because he reaped the benefit of a 

sentence that was too lenient. In light of Rhodes's requirement of a plea agreement 

before applying the estoppel doctrine, we decline the State's request to extend the 

estoppel doctrine in the absence of a plea agreement. 

Under Rhodes, the controlling question as to whether Appellant may 

collaterally attack his prior judgment of conviction for aggravated robbery is 

whether it was void or voidable. The Texas Court of Criminal Appeals determined 

13 
in Wilson that a four-year sentence for a first-degree felony rendered the judgment 

of conviction void. Wilson, 677 S.W.2d at 524. Rhodes does not change this result 

because the infirmity with the judgment of conviction for aggravated robbery cannot 

be cured without resort to resentencing. See Scott v. State, 988 S.W.2d 947, 948 

(Tex. App.-Houston [1st Dist.] 1999, no pet.) (A judgment of conviction cannot be 

reformed by adding punishment.). 

As noted previously, a state jail felony is only punishable by up to two years' 

confinement in state jail. PENAL § 12.35(a). Appellant was sentenced to a term of 

confinement for four years based upon the enhancement alleged under Section 

12.35(c)(2)(A). Appellant's prior judgment of conviction for aggravated robbery 

was void and could not be used to enhance the punishment to that of a third-degree 

felony. Accordingly, we sustain Appellant's third issue. We reverse the trial court's 

judgment as to punishment, and we remand the cause to the trial court for a new 

punishment hearing. See CRIM. PROC. art. 44.29(b). 

Correction of Judgment 

In his fourth issue, Appellant asserts that the trial court's judgment incorrectly 

shows that he was convicted of a third-degree felony. We agree. The jury actually 

convicted Appellant of a state jail felony offense. The enhancement only affected 

the applicable punishment range and not the degree of the offense for which he was 

convicted. See PENAL § 12.35(c) ("An individual adjudged guilty of a state jail 

felony shall be punished for a third degree felony if it is shown on the trial of the 

offense that .... "(emphasis added)). Accordingly, we sustain Appellant's fourth 

issue. We modify the trial court's judgment to correctly show that the jury convicted 

Appellant of a state jail felony offense. See TEX. R. APP. P. 43 .2(b ). 

This Court's Ruling 

We modify the judgment of the trial court to reflect that Appellant was 

convicted of a state jail felony offense. As modified, the judgment of conviction is 

14 
affirmed. However, we reverse the trial court's judgment as to punishment and 

remand the cause for a new punishment hearing consistent with this opinion. 

October 15, 2015 

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

Panel consists of: Wright, C.J., 

Willson, J., and Bailey, J. 

15 

JOHN M. BAILEY 

JUSTICE