David Allen Dewald v. the State of Texas

In The
Court of Appeals
Seventh District of Texas at Amarillo

No. 07-24-00057-CR

DAVID ALLEN DEWALD, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 181st District Court
Randall County, Texas
Trial Court No. 32439B, Honorable Titiana Frausto, Presiding

January 3, 2025
MEMORANDUM OPINION
Before PARKER and DOSS and YARBROUGH, JJ.

David Allen Dewald appeals two convictions for sex-offender registration

violations, enhanced by a prior felony conviction.1 A jury found him guilty, and the trial

court assessed punishment at 25 years of confinement on each count, to run concurrently.

On appeal, Appellant argues his sentences are illegal, the trial court failed to conduct an

ability-to-pay inquiry under Code of Criminal Procedure article 42.15(a-1), and the

1 See TEX. CODE CRIM. PROC. ANN. art 62.102.
judgments should be modified to delete any order to repay court-appointed attorney’s

fees. We modify the judgments and bills of costs as to repayment of attorney’s fees and

as modified affirm the judgments of guilt. We reverse and remand solely for a new

sentencing hearing and overrule Appellant’s complaint under article 42.15(a-1).

Analysis

First Issue

By his first issue, Appellant argues his sentences of confinement are void2 because

they exceed the statutory maximum for the charged third-degree felonies enhanced to

second-degree felonies. The state concedes error and argues “the proper remedy is to

remand for a new punishment hearing.”

Appellant was convicted of two counts of failure to register as a sex offender, third-

degree felonies. See TEX. CODE CRIM. PROC. ANN. art. 62.102(b)(2). Based on a prior

failure-to-register conviction, the State sought to enhance punishment to that of a second-

degree felony. See TEX. CODE CRIM. PROC. ANN. art. 62.102(c); TEX. PENAL CODE ANN.

§ 12.42(a). The maximum term of confinement for a second-degree felony conviction is

20 years. TEX. PENAL CODE ANN. § 12.33(a). Appellant’s 25-year term of confinement for

a second-degree felony exceeds the maximum authorized by law.

An illegal sentence is one unauthorized by law and must be reversed on direct

appeal. Bell v. State, 635 S.W.3d 641, 645 (Tex. Crim. App. 2021); Farias v. State, 426

2 We do not find a meaningful distinction between the terms “void” and “illegal” for purposes of this

appeal. See Hern v. State, 892 S.W.2d 894, 896 (Tex. Crim. App. 1994) (holding the defendant’s sentence
was illegal because it exceeded the statutory maximum for the offense).

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S.W.3d 198, 200 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d). Although the State

argues Appellant must show harm for this error, we disagree that such a showing is

required when challenging an illegal sentence in a direct appeal. See Farias, 426 S.W.3d

at 200. The State’s reliance on Ex parte Parrott, 396 S.W.3d 531 (Tex. Crim. App. 2013)

is misplaced, as Parrott was a habeas proceeding where harm must generally be shown.3

In a habeas case, harm is not shown if the record contains evidence of other prior

convictions that could have properly supported the enhanced sentence. Parrott, 396

S.W.3d at 536.

Here, the record reflects Appellant has a prior conviction for indecency with a child,

a second-degree felony. Pursuant to Penal Code section 12.42(d) a defendant’s

punishment can be enhanced to a term of confinement not exceeding 99 years or less

than 25 years if the defendant was previously convicted of two felonies other than state

jail felonies, and the second previous felony conviction was for an offense occurring after

the first previous conviction became final. TEX. PENAL CODE ANN. § 12.42(d). At first

glance, Appellant’s indecency conviction, combined with his failure-to-register conviction,

would seem to trigger this enhancement. However the record further reflects the

indecency conviction was an element of the charged failure-to-register offenses, and

Appellant’s duty to register arose from that conviction for an offense under Penal Code

section 21.11. See TEX. CODE CRIM. PROC. ANN. art. 62.001(5)(A). A conviction that is

elemental of the charged offense cannot also be used for enhancement without violating

3 In other words, harm is not shown in a habeas proceeding when the record contains evidence of

other prior convictions capable of supporting the enhanced sentence. See Parrott, 396 S.W.3d at 536
(concluding no harm when the record shows another conviction that could properly support the punishment
range for which the applicant was sentenced).

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double jeopardy. Barker v. State, 335 S.W.3d 731, 737 (Tex. App.—Houston [14th Dist.]

2011, pet. ref’d); see Ballard v. State, 149 S.W.3d 693, 699 (Tex. App.—Austin 2004, pet.

ref’d) (holding a conviction that creates the duty to register cannot also be used for

enhancement because “[i]n a prosecution for failing to register as a sex offender, the duty

to register is an element of the offense.”). Consequently, considering the full record, there

is no second conviction available to enhance Appellant’s punishment range to 25–99

years under section 12.42(d). Parrott, 396 S.W.3d at 536. The 25-year sentences exceed

the statutory maximum for the offenses and are therefore illegal. Increasing Appellant’s

punishment beyond what the law allows establishes harm.

The correct remedy under these circumstances is to conduct a limited remand for

a new punishment hearing. Calvillo v. State, Nos. 05-23-00912-CR, 05-23-00913-CR,

2024 Tex. App. LEXIS 6392, at *3 (Tex. App.—Dallas Aug. 28, 2024, no pet.) (mem. op.,

not designated for publication). Appellant’s first issue is sustained.4

Second Issue

Appellant next argues the trial court erred by failing to conduct an ability-to-pay

inquiry under Code of Criminal Procedure article 42.15(a-1). However, the Court of

Criminal Appeals has recently held this is a forfeitable complaint that must be preserved

4 Appellant did not raise his sentencing-error complaint in the trial court.We conclude, however,
the issue may be first urged on appeal as a Marin category-two right. See Grado v. State, 445 S.W.3d 736,
741 (Tex. Crim. App. 2014) (“In the absence of a defendant’s effective waiver, a judge has an independent
duty both to identify the correct statute under which a defendant is to be sentenced and the range of
punishment it carries and to consider the entire range of punishment in sentencing a defendant irrespective
of a defendant’s request that he do so . . . . The unfettered right to be sentenced by a sentencing judge
who properly considers the entire range of punishment is a substantive right necessary to effectuate the
proper functioning of our criminal justice system.”); Marin v. State, 851 S.W.2d 275, 278–80 (Tex. Crim.
App. 1993), abrogated on other grounds by Matchett v. State, 941 S.W.2d 922, 928 (Tex. Crim. App. 1996),
and overruled on other grounds by Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997).

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at trial. Cruz v. State, 698 S.W.3d 265, 268–69 (Tex. Crim. App. 2024). We find no

location in the record where Appellant objected on this basis below; thus, the issue was

forfeited. We overrule Appellant’s second issue.

Third Issue

By his third issue, Appellant seeks deletion of any order to repay court-appointed

attorney’s fees. The judgments order Appellant to pay fees “as applicable” and refer to

the bill of costs, which assess $6,350 in attorney’s fees.

An indigent defendant cannot be ordered to repay court-appointed attorney’s fees

absent proof of a material change in financial circumstances. See TEX. CODE CRIM. PROC.

ANN. art. 26.05(g); Cates v. State, 402 S.W.3d 250, 252 (Tex. Crim. App. 2013) (explaining

article 26.05(g) requires a present determination of financial resources); Carr v. State, No.

01-15-00246-CR, 2016 Tex. App. LEXIS 2134, at *11 (Tex. App.—Houston [1st Dist.] Mar.

1, 2016, no pet.) (mem. op., not designated for publication) (explaining the indigence

presumption is overcome if a material change in the defendant’s financial circumstances

occurs). Here, the record evidences that Appellant was indigent; it contains no proof of

any change in financial circumstances.

On appeal, the State concedes error, noting that the proper disposition “is to reform

the trial court’s judgment by deleting the order for payment of court-appointed attorney’s

fees.” We agree this is the proper remedy. Cates, 402 S.W.3d at 252; Carr, 2016 Tex.

App. LEXIS 2134, at *11. Accordingly, we sustain Appellant’s third issue. We modify both

judgments and bills of costs to delete the assessment of attorney’s fees.

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Conclusion

As modified, we affirm the judgments of guilt. With regard to court-appointed

attorney’s fees, we modify the judgments and bills of costs to delete any obligation for

Appellant to repay court-appointed attorney’s fees. With regard to punishment, we

reverse the trial court’s judgments and remand the case to the trial court solely for

conducting a new punishment hearing. See TEX. CODE CRIM. PROC. ANN. art. 44.29(b);

Parks v. State, No. 12-02-00198-CR, 2003 Tex. App. LEXIS 4639, at *6 (Tex. App.—Tyler

May 30, 2003, no pet.) (not designated for publication) (“An appeal of the punishment

phase is entirely limited to issues pertaining to the retrial of appellant’s punishment.”).

Lawrence M. Doss
Justice

Do not publish.

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