### NO.

_______ _ INTHE COURTOF CRIMINALAPPEALS
OF THE STATE OF TEXAS 

## *************************************************************** THE STATE OFTEXAS, Appellant, 

## v. PHILIP DEVONDEEN, Appellee. 

## *************************************************************** OnAppealFromThe Court ofAppeals, Eleventh Judicial District,Eastland, Texas Cause Number 11-13-00271-CR The 350th District Court ofTaylor County, Texas

Honorable ThomasWheeler, PresidingJudge Trial Court Cause Number 8104-D 

## *************************************************************** STATE'S PETITION FOR DISCRETIONARYREVIEW 

## *************************************************************** JamesEidson CriminalDistrictAttorney Taylor County, Texas 300 OakStreet, Suite 300 Abilene, Texas 79602 325-674-1261 325-674-1306 FAX BY: BrittLindsey AssistantDistrictAttorney 400 OakStreet, Suite 120 Abilene, Texas 79602 StateBarNo. 24039669 THE STATE REQUESTS ORALARGUMENT 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 OFTEXAS, APPELLANT V. 

### PHILIP DEVONDEEN, APPELLEE 

## ************************************************************* IDENTITY OF PARTIESAND COUNSEL Appellant: State ofTexas TrialAttorneyfor State: James Eidson Criminal DistrictAttorney TaylorCountyCourthouse 300 OakStreet, Ste. 300 Abilene, Texas79602 AppealAttorney for State: BrittLindsey AssistantDistrictAttorney 400 Oak St., Suite 120 Abilene, Texas 79602 PresidingJudge: HonorableThomas Wheeler 3 50 'h District Court 300 Oak St. Abilene, Texas79602 Appellee: Philip Devon Deen TrialAttorneyfor Appellee: Bill Fisher Attorneyat Law 1605 SouthThird Street Abilene, Texas 79602 AppealAttorneyfor Appellee: Richard E. Wetzel Attorneyat Law 1411 West Ave., Ste.100 Austin, Texas 78701

### TABLE OF CONTENTS Identity ofParties and Counsel..

.........................................................i Table ofContents

................................................................................ii Index ofAuthorities

...........................................................................iii StatementRegarding OralArgument

............................................... 1 Statementofthe Case

........................................................................ 2 Groundsfor Review

............................................................................ 3 1. Appellee should be estopped from claiming the conviction used to enhance his punishment is void when he pleaded true to the enhancementparagraph at trial.

......................3 2. 

### IfAppellee is not estopped from arguing on appeal that his prior conviction is void by his plea oftrue, his case should be remanded to the trial court for a factual determination on thatissue

.....................................................................4 Argument andAuthorities

............................................................ 4-15 Conclusion

...........................................................................15 Prayer
............................................................................................. 16 Certificate ofCompliance

................................................................. 18 Certificate ofService

......................................................................... 18 Appendix

........................................................................................... 19

11

### INDEXOFAUTHORITIES CASES ExParte 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

### INTHE TEXAS COURT OF CRIMINALAPPEALS ********************************************************* THE STATE OFTEXAS, APPELLANT, 

# v. PHILLIPDEVONDEEN, APPELLEE. ********************************************************* OnAppeal From The Eastland CourtofAppeals EleventhJudicialDistrict, Eastland, Texas Cause Number 11-13-00271-CR The 350th District Court ofTaylor County, Texas Honorable ThomasWheeler, PresidingJudge Trial Court Cause Number 8104-D ********************************************************* 

### STATE'S PETITION FOR DISCRTIONARY REVIEW *********************************************************


### TO THE HONORABLE COURT OFAPPEALS: 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 ofthis Court has characterized as having "a dearth ofcase 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 ofthe unusual issues presented in this

case and its possible implications in sentence enhancement

across the State, the State believes oral argument would benefitthe Court andrespectfully requests the same. 

### STATEMENT OF THE CASE Appellee was convicted of possession of cocaine in an amount less thanone gram, a statejailfelony. At punishment, Appellee pleaded true to a prior conviction in an enhancement paragraph raising the range ofpunishment 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 trialcourtfor a new hearingonpunishment. 

### 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 ofAppeals on August 22, 2014. (RR4: 40) (CRl: 58-59). On October 15, 2015, the Eastland Court of Appeals issued its opinion reversing the sentence ofthe trial court and remanding Appellee's case for a new hearing on punishment. 

### See Opinion ofthe Court, Appendix. No Motion for Rehearingwas 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 courtfor a factual determination on that issue. 

### ARGUMENTAND AUTHORITIES Phillip Devon Deen, Appellee, was indicted for possession of cocaine in an amount of less than one gram, a statejail 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 listedin Section 3g(a)(l) ofthe Texas Code ofCriminal 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 pleabargainonthe part ofthe defendant. At the punishmenthearing for the possession ofcocaine, Appellee pleaded true to the prior conviction of aggravated robbery. (RR4: 4) Based onAppellee's plea oftrue, 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 offour 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 hispunishment is void when hepleaded true to the enhancementparagraph at trial

5

### At the punishment phase ofhis 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 shouldbe estoppedfrom arguing counterto 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. Inthe opinionissued 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 estoppedfrom arguingthathis prior conviction is void due to his plea of true to the prior conviction and the State's reliance onthat plea oftrue. 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 himselfcontracts 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 requiredbyTex. 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 DiscretionaryReview. 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 nuncpro 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 thejudgment. 

### 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, thejudgment canbe used to enhance his punishment for a new offense. Ifhe agreed to the concurrent sentencingprovision, 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 ofa plea agreement before the estoppelrequirement 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 onthis pointis becauseAppellee pleadedtrue
10

### to the prior conviction of aggravated robbery, thus obviating any further proofofits 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 oftrue 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 ofways: 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 agreementbetweenthe 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 ofa 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. IfAppellee is not estopped by his plea of true from arguing on appeal that hisprior conviction is void, his case should be remanded to the trial courtfor afactual determination on that issue Appellee argues that his prior conviction for aggravated robbery is void because his sentence offour 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 toAppellee's ownplea oftrue. 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 offour 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 ofestoppelbyjudgmentthat "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 andreaps the benefit ofit. 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 positionis thatAppellee 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 onthe 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 ofboth the Legislature's enhanced sentencing scheme and the case law ofthis 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 ofthe Eastland Court ofAppeals onthe 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 attackingthat conviction.

Respectfully submitted, James Eidson CriminalDistrictAttorney Taylor County, Texas 300 OakStreet

16

### Abilene, Texas 79602 325-674-1261 325-674-1306 FAX

BY: /s/ BrittLindsey 

### BRITT LINDSEY AssistantDistrictAttorney Appellate Section 400 Oak Street, Suite 120 Abilene, Texas 79602 325-674-1376 325-674-1306 FAX State BarNo. 24039669 Attorney for the State

17CERTIFICATE 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-filingto the following: Richard E. Wetzel Attorney at Law 1411 West Ave., Ste.100 Austin, Texas78701 

### Email: wetzel law@1411west.com
Lisa C. McMinn State ProsecutingAttorney 209 W. 14thStreet Austin, Texas 78701 Email: infor1nation@SPA.texas.gov

Isl

### BrittLindsey BRITTLINDSEY AssistantDistrictAttorney Appellate Section 400 Oak Street, Suite 120 Abilene, Texas 79602 325-674-1376 325-674-1306 FAX State BarNo. 24039669 Attorney for the State

18CERTIFICATE OF COMPLIANCE 

### This is to certify that the sections covered by Texas Rule ofAppellate Procedure 9.4(i)(l) contain 2258 words in 14 pointtype.

19 

### s/ BrittLindsey BRITT LINDSEY

### APPENDIX: OPINION OFTHE llTH 

### COURT OFAPPEALS

20Opinion filed October 15, 2015



### In The

# ~lebentb 

# qcourt of**~ppeal~** No.11-13-00271-CR

PHILLIPDEVONDEEN, Appellant 

# v. THE STATE OF TEXAS, Appellee
On Appeal from the 350th District Court Taylor County, Texas Trial Court CauseNo. 9902-D MEMORANDUM OPINION Phillip Devon Deen appeals hisjury conviction for the offense ofpossession 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 apriorconvictionfor aggravatedrobbery as anenhancement. 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 thejudgment of conviction to correct an error concerning the level ofthe offense for which he was convicted. As modified, the judgment of conviction is affirmed. However, we reverse thejudgmentwith respect to Appellant's punishment and remand for a new trial on punishment. BackgroundFacts 

### 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 atraffic violation, and initiated atraffic stop. Appellantwas 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 sniffaround 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 ofless than one gram ofcocaine. 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.

2Issues onAppeal In his first issue, Appellant alleges ineffective assistance of counsel. Appellant's first issue is comprised ofsix 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 ofevidence during the guilt/innocence phase. In his third issue, Appellantchallengeshis sentencebaseduponthecontentionthathispriorconviction for aggravatedrobbery was void. Inhis fourth issue,Appellantasks forthejudgment to reflect that thejury convicted him ofa statejail felony rather than a third-degree felony. Ruling onNonresponsive Objection We begin our analysis by addressing Appellant's second issue because it concerns the guilt/innocence phase and is relatedto one ofthe sub-issues contained within his first issue alleging ineffective assistance ofcounsel. Appellant contends that the trial court erredwhen it overruledAppellant's "nonresponsive" objectionto 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 ofthe car and you handcuffhim? A. That's correct. Q. Is thatnormal procedure? A. Based onthe conversation we had andwhile Iwas standing at the vehicle, Iplaced him in handcuffs for my safety. Q. Based on conversation you had. You've said that several times, butyou'renottelling us anything about whatthe conversation is that led you to believethatyou had a reason to arresthim.

3A. Hetold me his driver's license was suspended, thathe wasn't supposed to be driving, and that he was just recently released from pnson. Q. Didhe tell you -- did he tell

-- let me backup. [DEFENSE COUNSEL]: Your Honor, I'm going to have to objectto the lastthinghe said aboutbeing

-- aboutprison. I don'tthink that my question led to that. I'm asking him what he's based this on, and surely he didn'tbase it on that. THE COURT: [DefenseCounsel], Itookthequestiontobewhat did he tell you, even though that wasn't the words

-- you haven't told us whathe said

-- so your objection for nonresponsive is overruled. I believethe door was opened for thatresponse. [DEFENSE COUNSEL]: Okay. We review the trial court's decision to admit or exclude evidence under an abuse ofdiscretion standard. SeeShuffieldv. State, 189 S.W.3d782, 793 (Tex. Crim. App. 2006). A trial court abuses its discretion when it acts outside the zone of reasonabledisagreement. SeeZulianiv. 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 responsiveto trial counsel'squestion abouttheconversationthattheofficerhadwith Appellantthat 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 [14thDist.] 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 ofthe testimony's admissibility. Id. In this context, in order

4to properly exclude evidence or obtain an instruction to disregard, a party must address in its objection both the nonresponsiveness and the inadmissibility ofthe 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 aportion ofthe answer is objectionable and aportion ofthe answer is not objectionable. Id. Accordingly, trial counsel's objection solely on the basis thatthe 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. IneffectiveAssistance of Counsel Inhis first issue, Appellant asserts ineffective assistance ofcounsel 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) openedthe doorto the admissibility ofOfficerCollins'stestimonythatAppellant had recently been released from prison, (4) failed to request ajury instruction on extraneous offenses, (5) failed to object to an invalid conviction used to enhance punishment, and (6) failed to objectto the prosecutor's questions at punishmentthat 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, ifso, then determine whether there is a reasonable probability that the result ofthe proceeding would have been different but for his counsel's errors. Stricklandv. Washington, 466 U.S. 668, 687 (1984); Hernandezv. 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 ofreasonable professional assistance, and Appellantmust overcomethe presumption that, under the circumstances, the challenged action might be
5considered sound trial strategy. Strickland, 466 U.S. at 689; Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). An allegation ofineffective 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 overcomethepresumptionthattrial counselrendered 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 wouldhave engaged in it." Garcia v. State, 57 S.W.3d436, 440 (Tex. Crim. App. 2001). We note atthe outset ofour analysis thatAppellantdid 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 ofOfficer 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 Exparte 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 ofthe Texas Code ofCriminal Procedure requires that oral statements ofan accused be electronically recorded by a device that can make an accurate recording. TEX.

6CODE CRIM. PROC. ANN. art. 38.22 § 3(a) (West Supp. 2014). Appellant contends that the recording device was incapable ofmaking 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 ofmaking an accuraterecording ofhis conversationwithAppellantand that hehadreviewedthevideo for accuracy. Heexplained,however, thatthemicrophone 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 portionoftherecording into evidence. Theprosecutorthenpublishedapproximately twenty-three minutes ofthe recording to thejury. The first several minutes ofthe 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. Afterthe 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 beingreadhis rights, there was something about smoke. Do you recall whatthat 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).
7A. He said the crackwas in the armrest, which is the same as the center console in that vehicle. Q. Is thatwhere it was found? A. Yes. Q. And was he ableto describe for you how many crack rocks? A. We askedhimhow much was inthecar, and he saidthere was $40 worth. We askedhimhowmuchwas --youknow, howmany rocks were $40 worth, and he said there's four rocks. As noted previously, Officer Collins testified that his video equipment was capable ofmaking an accurate recording. Accordingly, Appellant's trial counsel may have concluded that this testimony was sufficient to establish the requisite predicate for the admissibility ofthe recording. To show ineffective assistance of counsel for the failure to object during trial, the appellant must show that the trial judgewould have committed error in overrulingthe objection. Exparte White, 160 S.W.3d 46, 53 (Tex. Crim. App. 2004). The record does not establish that the trial courtwouldhave erred in overrulingthepredicate objectionthatAppellantcontends shouldhave been made. Accordingly, Appellant's trial counsel's failure to objectto the recording's admissibility was not deficient. Appellant asserts in his second sub-issue that trial counsel was ineffective whenhe elicitedtestimony from OfficerCollinsthatofficers suspectedAppellantof being a drug dealer. Specifically, trial counsel asked Officer Collins why he was on the lookout for Appellant's vehicle, and Officer Collins respondedthatthe driver of the vehicle was suspected ofselling cocaine. Evidence of other crimes, wrongs, or acts is inadmissible at the guilt/innocencephaseoftrial to showthe accused's conformity withthose other acts. TEX. R. Evrn. 404(b); Lockhart v. State, 847 S.W.2d 568, 570 (Tex. Crim. App.

81992). Rule404(b) incorporatesthe fundamental tenetofourcriminaljusticesystem that an accused may be tried only for the offense for whichheis charged, not for his criminalpropensities. Rankinv. State, 974 S.W.2d707, 718 (Tex. Crim. App. 1996). For an extraneous offenseto be admissible, it mustbe relevant apartfrom supporting an inference ofcharacter 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 establishthatthe officer's reason for stopping and arrestingAppellant was pretextual in nature. Thus, trial counsel's questioning about the conversation that Officer Collins had withAppellant 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 ofreasonableness. Appellant'sthird sub-issue alleging ineffective assistanceofcounselis 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 ofopening the door constituted ineffective assistance ofcounsel. 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 courtrnled that "the door was opened" by trial counsel, the record does not demonstratethatcounsel's conductconstituted ineffective assistance ofcounsel. 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
9pretextual in nature. Thus, trial counsel's questioning about the conversation that Officer Collins hadwithAppellant leading to Appellant's arrestmay very well have been based on trial strategy. Accordingly, the record does not affirmatively demonstrate thattrial counsel's questioning ofOfficer Collins was deficient. Appellant's fourth sub-issue alleging ineffective assistance concerns trial counsel's failure to request ajury 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 UnitedStates v. Johnson, 46 F.3d 1166, 1171 (D.C. Cir. 1995)). Without evidence in the record oftrial counsel's strategy, we will not speculatewhy he did notrequest a limiting instruction. InconsideringAppellant'sfirst four sub-issues allegingineffective assistance, we have determined that the performance ofAppellant's trial counsel during the guilt/innocence phase did not fall below an objective standard ofreasonableness. We additionally conclude that Appellant has failed to show there is a reasonable probability that, but for his counsel's alleged errors, the result ofthe proceeding wouldhave been different. The evidence ofAppellant's guilt was overwhelming in thathe confessed on the recording to possession ofthe controlled substance. Appellant's fifth and sixth sub-issues concern alleged instances ofineffective assistance ofcounsel occurring during the punishmentphase. IfAppellant were to prevail on either ofthese claims, he would be entitledto anew 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

10ineffective assistance of counsel during the punishment phase. We overrule Appellant's first issue alleging ineffective assistance ofcounsel. IllegalSentence Basedon VoidPrior Conviction In his third issue, Appellantcontends thathis enhanced, four-year sentence of confinement for a statejail 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 ofconfinement 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 punishableby confinement for any term ofnot more thantwo 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 statejailfelony offense may bepunishable as a third-degree felony offense by enhancement with a prior felony conviction for an offense listed in Section 3g(a)(l) ofArticle 42.12 ofthe Texas Code ofCriminal 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 offive years. See PENAL §§ 12.32, 29.03(b) (West 2011). Appellant pleaded "true" to the prior conviction at the outset ofthe 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 ofeight years but that the trial court subsequently entered a judgment adjudicating guilt on
11August 27, 2009. However,Appellantwas only sentencedto confinementfor aterm offour 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 ifthe priorjudgment is void, and not merely voidable. Id.; see Nix v. State, 65 S.W.3d 664, 667-68 (Tex. Crim. App. 2001) ("A voidjudgment 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'spunishmentwas enhanced with apriorconviction for afirstdegree felony. 677 S.W.2d at 520, 524. However, the defendantwas only sentenced to confinement for a term offour years. Id. at 524. The court stated as follows: "It is now axiomatic thatthe punishment assessed must always be withinthe minimum and maximum fixed by law. When the punishment assessed is less than the minimum provided by law, this renders thejudgment ofconviction a nullity." Id. The court determined that the defendant's priorjudgment ofconviction was void and shouldnothave beenused againstthe defendantfor enhancementpurposes. Id. The State contends that Appellant should be estopped from complaining that his prior sentence was too lenientbecause he enjoyed the benefits ofa sentencethat was below the statutory minimum. The State cites Rhodes in support of this proposition. We concludethatRhodes 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 ofescape and was sentenced to imprisonment for a term oftenyears. 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

12committed 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 ofthe escape conviction for enhancement purposes, asserting thatthejudgment was void because the sentence was ordered to run concurrently with the sentences he was serving when he escaped. Id. The courtconcluded thatthejudgmentfor the escape conviction was not void because it could be reformed through ajudgment nuncpro tune to correctthe errorallegedby the defendant. Id. at 887-89. As noted by the court, ajudgmentofconviction is only void if"the infinnity cannotbe cured without resort to resentencing." Id. at 888. The court additionally stated in Rhodes that "[a] defendant who has enjoyed the benefits ofan agreedjudgmentprescribing a too-lenientpunishment should not be permitted to collaterally attack thatjudgment on a later date on the basis ofthe illegal leniency." Id. at 892. The courtpremisedthis conclusion ontheprinciple of estoppel. Id. at 891-92. TherecordbeforethecourtinRhodesdidnotshowwhether the concurrent serving ofthe 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 "thatthere 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 sentencethat was too lenient. In light ofRhodes's requirement ofaplea agreement before applying the estoppel doctrine, we decline the State's request to extend the estoppel doctrine in the absence ofaplea 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 ofCriminal Appeals determined

13in Wilson that a four-year sentence for a first-degree felony rendered thejudgment ofconviction void. Wilson, 677 S.W.2d at 524. Rhodes does not changethis result becausethe infirmity withthejudgmentofconvictionfor aggravatedrobbery cannot be cured without resort to resentencing. See Scott v. State, 988 S.W.2d 947, 948 (Tex. App.-Houston [1stDist.] 1999, no pet.) (Ajudgmentofconviction cannotbe reformed by adding punishment.). As notedpreviously, a statejailfelony is only punishable by up to two years' confinement in statejail. 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 priorjudgment of conviction for aggravated robbery was void and could not be used to enhance the punishment to that ofa third-degree felony. Accordingly, wesustainAppellant'sthird issue. Wereversethetrial court's judgment as to punishment, and we remand the cause to the trial court for a new punishmenthearing. See CRIM. PROC. art. 44.29(b). Correction of Judgment Inhis fourth issue, Appellantasserts thatthetrial court'sjudgmentincorrectly shows thathe was convicted ofa third-degree felony. We agree. Thejury actually convicted Appellant ofa statejail felony offense. The enhancement only affected the applicable punishmentrange and notthe degree ofthe offense for which he was convicted. See PENAL § 12.35(c) ("An individual adjudged guilty ofa statejail felony shall be punished for a third degree felony ifit is shown on the trial ofthe

offense that

...."(emphasis added)). Accordingly, we sustain Appellant's fourth issue. We modify thetrialcourt'sjudgmentto correctly showthatthejuryconvicted Appellant ofa statejailfelony offense. See TEX. R. APP. P. 43.2(b). This Court'sRuling We modify the judgment of the trial court to reflect that Appellant was convicted ofa statejailfelony offense. As modified, thejudgment ofconviction is

14affirmed. However, we reverse the trial court's judgment as to punishment and remand the cause for a new punishmenthearing consistent with this opinion.

October 15, 2015 Do notpublish. See TEX. R. APP. P. 47.2(b). Panel consists of: Wright, C.J., Willson, J., and Bailey, J.

15 JOHN M. BAILEY JUSTICE