Garcia, Andres

In the Court of Criminal
Appeals of Texas
════════════
No. WR-96,457-01
════════════

EX PARTE ANDRES GARCIA,
Applicant

═══════════════════════════════════════
On Application for Writ of Habeas Corpus
Cause No. W-2325698-A in the 204th District Court
From Dallas County
═══════════════════════════════════════

YEARY, J., filed a dissenting opinion.

Texas Penal Code Section 12.425(a) provides: “If it is shown on
the trial of a state jail felony . . . that the defendant has previously been
finally convicted of two state jail felonies . . ., on conviction the defendant
shall be punished for a felony of the third degree.” TEX. PENAL CODE §
12.425(a) (emphasis added). Is this provision mandatory? Does it apply
in deferred adjudication cases? Can a trial court ignore or modify
GARCIA – 2

previous findings of “true” to enhancement paragraphs?
The Court, today, declines to answer these questions. Instead, it
decides that “the trial court lacked the authority to vacate its judgment
adjudicating guilt[,]”stating that a trial court’s authority only “extends
up to thirty days after the imposed sentence begins.” Majority Opinion
at 3. But that is problematic, because—if the statute is mandatory and
applies in deferred adjudication cases—Applicant’s 180-day sentence
might be illegal, given that it was outside the range of punishment for a
third-degree felony. See TEX. PENAL CODE § 12.34(a) (requiring
punishment by imprisonment for at least two years but not greater than
ten). And if the sentence is illegal, then the trial court might maintain
authority to subsequently assess a proper punishment because the
original sentence is void. So, this Court’s conclusion that “the trial court
lacked the authority to vacate its judgment adjudicating guilt” might be
premature.
Accordingly, I would file and set this case to address the proper
application of Section 12.425(a) of the Texas Penal Code in a written
opinion, including a determination of whether the original judgment in
this case imposed an illegal sentence. And if it was illegal, we should
decide whether a sentence that is void divests a trial court of its plenary
jurisdiction. Because the Court does not, I respectfully dissent.
I. BACKGROUND
In February of 2024, Applicant confessed and pled true to
possession of a controlled substance—Penalty Group 1/1-B—less than
one gram—a state jail felony. He also pled true to, and the trial court
found to be true, two prior state-jail-felony-enhancement paragraphs,
GARCIA – 3

increasing the range of punishment to a third-degree felony. TEX. PENAL
CODE § 12.425(a). The trial court then deferred a finding of guilt and
placed Applicant on two years of deferred-adjudication community
supervision.
Subsequently, in May of 2024, the State moved to adjudicate
Applicant’s guilt and revoke his community supervision. Then, on
October 1, 2024, pursuant to a plea agreement between Applicant and
the State, the trial court adjudicated guilt, revoked Applicant’s
community supervision, and assessed punishment at 180 day’s
confinement—which is outside the range of punishment established for
a felony of the third degree. Notably, before assessing Applicant’s
punishment at less than the law requires for a third-degree felony, the
trial court did nothing expressly to undo its previous findings of true to
the enhancement allegations.
On January 6, 2025, Applicant filed an application for writ of
habeas corpus because he remained in custody, even though his 180-day
sentence should have discharged around November 13, 2024. Applicant
explained that he was informed that the plea agreement would not be
honored. Indeed, on January 7th—the day after Applicant filed his writ
application—the trial court vacated its October 1st judgment as void.
Subsequently, the State withdrew its motion to proceed with an
adjudication of guilt, and the trial court modified the conditions of
Applicant’s community supervision and extended the term for a period
of two years. It appears that the trial court thus recognized that the
judgment was illegally lenient and attempted to implement a proper
punishment.
GARCIA – 4

After Applicant filed his writ application, the State responded—
arguing that this Court does not have jurisdiction over Applicant’s writ
application because the judgment is not final, given that Applicant was
placed back on community supervision. See TEX. CODE CRIM. PROC.
11.07(3)(a); Ex parte Payne, 618 S.W.2d 380, 381 (Tex. Crim. App. 1981)
(noting that a conviction is not final when an applicant is on probation).
Further, it argued that the trial court was permitted to vacate the
original judgment because that judgment was illegal and thus void. See
Mizell v. State, 119 S.W.3d 804, 805–07 (Tex. Crim. App. 2003).
II. ILLEGAL SENTENCE?
This Court has said that, if a sentence is not authorized by law,
the sentence is “illegal” or “void[.]” Ex parte Pena, 71 S.W.3d 336, 336
n.2 (Tex. Crim. App. 2002) (citing Ex parte Johnson, 697 S.W.2d 605,
606–07 (Tex. Crim. App. 1985)). This includes a sentence that is illegally
lenient. Cooper v. State, 527 S.W.2d 898, 899 (Tex. Crim. App. 1975)
(citing Ex parte Hill, 528 S.W.2d 125 (Tex. Crim. App. 1975)); Mizell,
119 S.W.3d at 806. When a judgment is void, the Court has said, it “is a
nullity from the beginning, and is attended by none of the consequences
of a valid judgment.” Ex parte Seidel, 39 S.W.3d 221, 225 (Tex. Crim.
App. 2001) (quoting Ex parte Spaulding, 687 S.W.2d 741, 745 (Tex.
Crim. App. 1985) (Teague, J., concurring)). Indeed, the judgment is
“entitled to no respect whatsoever because it does not affect, impair, or
create legal rights.” Id. In fact, the Court has explained, a “court which
otherwise has jurisdiction over a criminal conviction may always notice
and correct an illegal sentence[,]” and Texas law has never “prevented
any court with jurisdiction over a criminal case from noticing and
GARCIA – 5

correcting an illegal sentence.” Mizell, 119 S.W.3d at 806.
In pertinent part, Texas Penal Code Section 12.425(a) states: “If
it is shown on the trial of a state jail felony . . . that the defendant has
previously been finally convicted of two state jail felonies . . ., on
conviction the defendant shall be punished for a felony of the third
degree.” TEX. PENAL CODE § 12.425(a) (emphasis added). And “an
individual adjudged guilty of a felony of the third degree shall be
punished by imprisonment in the Texas Department of Criminal Justice
for any term of not more than 10 years or less than 2 years.” TEX. PENAL
CODE § 12.34(a) (emphasis added). Although the word “shall” is not
always given mandatory effect, “the presumption is that it is [used] in
the imperative, and not [in merely] a directory,[ 1] sense.” McLaren v.
State, 82 Tex. Crim. 449, 453, 199 S.W. 811, 812 (1917); see also
Albertson's, Inc. v. Sinclair, 984 S.W.2d 958, 961 (Tex. 1999) (“We
generally construe the word ‘shall’ as mandatory[.]”).
While this Court has never addressed whether Section 12.425(a)
is mandatory, it has held that other habitual offender statutes that
utilize the word “shall” are mandatory. State v. Allen, 865 S.W.2d 472,
474 (Tex. Crim. App. 1993). For example, in State v. Allen, this Court
held that Section 12.42(d) of the Penal Code, which requires a greater
punishment upon the showing of a prior offense, was mandatory. Id.
There, the trial court had found two enhancement paragraphs “true,”
but nevertheless imposed punishment for a Class A misdemeanor—

1 A directory requirement is “[a] statutory or contractual instruction to

act in a way that is advisable, but not absolutely essential — in contrast to a
mandatory requirement.” Directory Requirement, BLACK’S LAW DICTIONARY
578 (12th ed. 2024).
GARCIA – 6

despite “findings of habitual felon status” under Section 12.42(d). Id. at
473. Even though another statute, Section 12.44(a) of the Texas Penal
Code, provided a trial court some degree of discretion in punishing a
defendant who is convicted of a state jail felony, this Court held that
“[o]nce a finding of true as to the enhancement paragraphs has been
made, the ‘punishment is absolutely fixed’ by law.” Id. at 474 (quoting
Harvey v. State, 611 S.W.2d 108, 111 (Tex.Crim.App.1981), cert. denied,
454 U.S. 840, 102 S. Ct. 149, 70 L.Ed.2d 123 (1981)). So, at least with
respect to Section 12.42(d), once prior felony convictions are found to be
true, the statute restricts a trial court’s discretion regarding sentencing.
Id. See also Donaldson v. State, 476 S.W.3d 433, 439 (Tex. Crim. App.
2015) ([“O]nce a finding of true as to the enhancement paragraphs has
been made, ‘the punishment is absolutely fixed by law.’”) (quoting
Harvey, 611 S.W.2d at 111).
Some courts of appeals have also held that mandatory habitual
offender statutes apply in the deferred adjudication setting. See State v.
Kersh, 2 S.W.3d 636, 638 (Tex. App.—Houston [14th Dist.] 1999), aff'd
on other grounds, 127 S.W.3d 775 (Tex. Crim. App. 2004); Pierce v. State,
No. 05-23-00315-CR, 2024 WL 3857570, at *5 (Tex. App.—Dallas Aug.
19, 2024, no pet.) (not designated for publication). For example, in State
v. Kersh, the court of appeals held that a trial court erred when it
assessed a punishment outside the statutory range for a felony
committed by a habitual offender. Kersh, 2 S.W.3d at 638. There, the
appellee had pled guilty to an indictment, and the trial court found two
enhancement paragraphs “true” before deferring a finding of guilt and
placing the appellee on community supervision. Id. at 637. Nonetheless,
GARCIA – 7

after the State moved to revoke, the trial court sentenced the appellee
without regard to the previous “true” findings to the enhancement
paragraphs. Id. The court of appeals reversed, explaining that a trial
becomes a unitary proceeding after a guilty plea is entered, so the
“issues of guilt and punishment cannot be separated.” Id. at 38 (citing
Washington v. State, 893 S.W.2d 107, 108–09 (Tex. App.—Dallas 1995,
no pet.)). See also Pierce, 2024 WL 3857570, at *5 ([“W]hen the trial
court later adjudicated Pierce’s guilt, the mandatory operation of
Section 12.42(d) restricted the trial court’s discretion in sentencing and
required a minimum sentence of twenty-five years.”).
Here, Applicant’s sentence might be illegally lenient—given that
the trial court ignored the previously-found-to-be “true” enhancement
paragraphs. Applicant received a sentence of 180 days, which is
unquestionably below the two-year minimum required by Section
12.34(a) of the Texas Penal Code. Given the presumption that the word
“shall” is imperative, this Court should at least take the time to explain
why that presumption should not apply before it grants relief. Further,
the mandatory operation of the word “shall” in other habitual offender
statutes like Section 12.42(d) suggests that the statute here ought to be
construed as mandatory.
The Court’s opinion currently makes no mention of whether the
statute might be mandatory. Given that illegal sentences are void from
their inception, this Court should arguably refrain from ordering
enforcement of a potentially void, illegal sentence without explicitly
deciding that it is not, in fact, void. Of course, it is at least possible that
the Court might determine that Section 12.425(a) does not apply in cases
GARCIA – 8

of deferred adjudication. But again—the Court makes no such
declaration. Instead, it simply orders enforcement of the sentence
without considering the real possibility that doing so might be mistaken.
Especially because courts of appeals have applied similar statutes to
deferred adjudication cases, this Court should take the time to address
the issue.
Simply put, it is still entirely possible that Applicant’s sentence is
illegal and void. If it is, in light of statements made in this Court’s
precedents as well as others made in opinions of the courts of appeals, it
would be prudent to slow down and consider these precedents before
requiring the enforcement of such an illegal sentence. The Court should
file and set this case to address the questions that have emerged about
Section 12.425(a) and its proper application to this case.
III. TRIAL COURT ERROR?
Next, assuming for the sake of argument that the original
sentence imposed in this case was illegal, another issue arises that
should also be addressed. The Court says that, “[a]bsent a timely-filed
notice of appeal from a judgment adjudicating guilt, a trial court’s
authority over a criminal case extends up to thirty days after the
imposed sentence begins.” Majority Opinion at 3. But because illegal
sentences are void, it is possible that the trial court did not err to vacate
the original judgment and assess a proper punishment, regardless of
how long after the judgment was entered. Put another way, assuming
this Court decides that the original sentence imposed in this case was
illegal, we must still the determine whether the trial court erred to
vacate it and assess a proper punishment beyond the thirty days that
GARCIA – 9

would otherwise have signified the end of its plenary power.
Typically, in cases in which an illegal sentence has been imposed,
trial courts have been permitted to assess a new, lawful punishment sua
sponte. Cooper, 237 S.W.2d at 899. For example, in Cooper v. State, this
Court upheld a trial court’s modification of an illegal sentence. Id. There,
just a few days after sentencing a defendant to four years of
confinement, the trial court discovered that the sentence fell below the
statutory minimum of five years. Id. at 898. Upon making that
discovery, the trial court conducted a subsequent hearing, set aside the
original punishment and sentence, assessed punishment at five years,
and entered a judgment reflecting the new five-year sentence. Id. This
Court explained that because the trial court was not authorized to assess
a four-year punishment in the first instance, that punishment was void.
Id. at 899. And, because the sentence was void, “the trial court acted
properly and within his authority in assessing a lawful punishment at
the subsequent hearing.” Id.
In some other instances, trial courts have also been permitted to
assess a lawful punishment even later than thirty days after an imposed
sentence began. See, e.g., Villarreal v. State, 590 S.W.2d 938, 938–39
(Tex. Crim. App. 1979). For example, in Villarreal v. State, this Court
upheld a trial court’s modification of an illegally lenient sentence that
occurred nearly five months after the initial punishment was assessed.
Id. There, the appellant had entered a plea of guilty for burglary of a
building, which was a second-degree felony. The trial court treated the
offense, however, as a Class A misdemeanor and assessed an illegally
lenient sentence. Id. at 938. Then, nearly five months later, the State
GARCIA – 10

moved to reopen punishment, arguing that the prior judgment was void,
and the trial court granted that motion. Id. Despite the appellant’s
argument that the State’s motion was tantamount to a motion for new
trial (which would have been untimely), this Court determined that the
initial punishment was void and, relying in part on a since-repealed
provision in the Code of Criminal Procedure, this Court held that the
trial court had authority to enter a proper judgment. Id. at 939. The
Court clarified that, “[i]f a punishment is void, assessment of a proper
punishment is not a correction.” Id. It also cited to Cooper for the
proposition that, because the original sentence was void, the trial court
did not err in subsequently assessing a lawful punishment. Id. (citing
Cooper, 527 S.W.2d at 899).
Here, assuming the sentence is illegal, it is at least possible that
the trial court might have retained jurisdiction to assess a proper
punishment. This Court should file and set the case to assess that
possibility. Cooper clearly indicates that trial courts have authority to
assess a proper punishment sua sponte. And Villarreal’s reliance on
Cooper arguably indicates that a trial court retains the authority to
assess a proper punishment—even after it would typically have lost its
plenary jurisdiction. 2
It seems to be a well settled axiom that an illegal sentence is void
and has no legal effect. The Court suggests that a trial court’s
jurisdiction “extends up to thirty days after the imposed sentence
begins.” Majority Opinion at 3. But if a sentence is void, does the

2 To be sure, Villarreal did not explicitly discuss jurisdiction, but it
certainly seems to have permitted the assessment of a proper punishment
more than thirty days after the sentence “began.”
GARCIA – 11

sentence ever truly begin? Perhaps a trial court only loses its plenary
jurisdiction thirty days after entering a judgment imposing a legal
sentence. In light of the Court’s proposed disposition in this case,
seemingly ignoring its own prior precedents relating to illegal sentences,
it might be jurisprudentially significant for us to address that here, in a
written opinion.
IV. CONCLUSION
Because the legality of Applicant’s sentence is unclear, this Court
should file and set the case to determine whether the sentence was
illegal. Particularly, we should address whether Section 12.425(a) of the
Texas Penal Code is mandatory and, if so, whether it applies in deferred
adjudication cases. Doing so will dictate the proper next steps. If the
sentence is legal, Applicant is likely entitled to specific performance of
his plea agreement, as the Court holds. But if it is illegal, we must decide
whether a void sentence divests a trial court of its plenary jurisdiction
after thirty days. Because the Court grants relief without answering
these predicate questions, and thus premises its conclusion on the
assumption that the trial court necessarily erred to vacate a potentially
illegal sentence, I respectfully dissent.

FILED: April 23, 2025
PUBLISH