January-February 2017

The CCA assumes (but doesn’t decide) that defendants can use revocation hearings to make “illegal sentence” claims

Clint Morgan

Assistant District ­Attorney in Harris County

For decades, the Court of Criminal Appeals moved the law in a direction that limited appeals from probation revocations so that defendants could challenge only the revocation itself, not the underlying judgment of guilt. Since 2001, the Court has held that on appeal from a revocation, the only challenge a defendant can make regarding his underlying conviction is that it is completely void—an extremely uncommon scenario.
    But in October, the Court backed off of this rule and invited additional litigation to explore how far it had backed off. In Wright v. State, the Court assumed without deciding that a defendant could use the appeal from his revocation to raise an illegal-sentence claim that attacks the conviction itself. The Court then provided guidance on how to litigate such a claim, including pointing out that the claim would need to be litigated at the revocation hearing and not just in the appellate courts.
    An illegal-sentence claim can take two forms. The most common in the caselaw (and let’s hope least common in practice) is a sentence that is not in the statutory range, such as the case where a jury assessed five years for a state jail felony. The other kind involves a claim that the defendant has been sentenced in the wrong range. This sort of claim will involve a challenge to the validity or existence of a prior conviction or aggravating element used to enhance punishment. For instance, in a recent case a defendant convicted of felony prostitution got a court of appeals to declare her three-year sentence illegal because the prior convictions that rendered her current offense a felony were invalid. Under Wright, prosecutors will need to be prepared to address these claims both at revocation hearings and on appeal from revocation.

The facts
Sir Melvin Wright Jr. was required to register as a sex offender. He failed to, and he was indicted for this failure. Code of Criminal Procedure Article 61.102(b)(1) makes failure to register a state jail felony, but Article 61.102(c) makes it a third-degree felony if the defendant has a prior conviction for failure to register. The indictment did not allege a prior conviction, nor did the State file any other pleadings alleging a prior conviction.
    But the record strongly suggests the presence of a prior conviction for failure to register. The top of the indictment described the offense as “F3,” indicating a third-degree felony. When Wright pleaded guilty, in return for a recommendation of probation, the trial court admonished him that he faced a sentence between two and 10 years. And at the plea hearing the prosecutor, defense counsel, and Wright himself all made statements indicating that Wright had been previously convicted for failure to register.
    The trial court found Wright guilty of third-degree failure to register and sentenced him to 10 years, but it suspended the sentence and placed Wright on probation. Wright did not appeal the conviction. Sometime later the State filed a motion to revoke, and Wright pleaded “true.” The trial court revoked but reduced the sentence to five years.

The appeal
On appeal from his revocation, Wright claimed that because the charging instrument reflected a state-jail felony, his sentence was illegal. The Dallas Court of Appeals noted the general rule that an appeal from revocation is limited to issues related to the revocation itself, not the conviction or sentence. However, it noted another rule holding that “a sentence outside the range of punishment is void and may be challenged at any time.”
    Normally, on a direct appeal, if the State has failed to properly prove its enhancement allegations, that error requires reversal without consideration of harm. Because Wright was using the appeal from his revocation to challenge the underlying conviction, however, the Dallas Court applied the harm standard from Ex parte Parrott, which is normally applied to illegal-sentence claims that are raised on habeas, not on direct appeal. Under the Parrott standard, the defendant must show that his sentence was “actually illegal,” not merely that the State made a pleading error. That is, he must show that he actually did not have a prior conviction. The Dallas Court reasoned that because there was evidence in the record of a prior conviction that could have elevated Wright’s punishment range to that of a third-degree felony, Wright had failed to affirmatively show that his sentence was illegal and therefore he could not prevail under the Parrott standard.

In the CCA
The Court of Criminal Appeals granted review to determine whether the Dallas Court erred in applying the Parrott standard to a direct appeal. Presiding Judge Keller, writing for a six-judge majority, held that the Dallas Court correctly applied the Parrott standard. Judge Alcala wrote a concurring opinion, joined by Judge Johnson, arguing that the law of direct appeals should apply instead of Parrott. Judge Newell concurred without opinion.
    The opinion of the Court began by noting that historically, there were only two situations where a defendant was allowed to use the appeal from his revocation to attack the underlying conviction. The first of these was the “void judgment” exception, which the Court had stated could arise in four situations:
1)    the indictment did not meet the constitutional minimum requirements (such as failure to name a defendant);
2)    the trial court lacked subject-matter jurisdiction (such as a felony tried in a county court);
3)    the record showed that there was no evidence to support the judgment; or
4)    an indigent defendant proceeded without appointed counsel or without properly waiving the right to counsel.
     “Illegal sentence” is not on that list. Nevertheless, the Court assumed, without deciding, that Wright’s illegal-sentence claim could be raised as a “void judgment” claim, then it discussed what he would need to prove to win on that claim. For a judgment to be void, it must be a “nullity” that is “accorded no respect.” Routine trial error, such as what is typically raised on direct appeal, would not suffice. The Court concluded that if a defendant could not show actual harm—rather than mere irregularity—as required by the Parrott standard, then he could not show that the judgment was void due to an illegal sentence. Because the record in this case did not affirmatively show that Wright’s sentence was actually illegal, he failed to satisfy the requirements for the “void judgment” exception.
    The second historical exception to the ban on using the appeal from a revocation proceeding to attack the underlying conviction was called the “habeas corpus exception.” It allowed a defendant to use his revocation proceeding (and the appeal therefrom) to litigate any matter that could be raised in a writ of habeas corpus. An illegal sentence claim can be raised in a writ of habeas corpus. In 2001 the Court eliminated the habeas corpus exception because it caused more confusion than it was worth.
    In Wright, the Court pointed out that while it had eliminated the habeas corpus exception, in other cases it had continued to hold that “a claim that a sentence is illegal may be raised at any time.” The Court assumed, without deciding, that Wright’s claim was appropriate as “an exception to [the] abrogation of the habeas corpus exception” and gave two reasons why his claim failed on the merits. First, he “failed to litigate the matter at the revocation hearing.” Second, if his claim really revived the habeas corpus exception, the habeas corpus standard of harm announced in Parrott would apply, and Wright had failed to meet that standard. Accordingly, the Court affirmed the court of appeals.
    In her concurrence, Judge Alcala described the Court’s analysis as “strange” and the product of “a twisted approach.” Judge Alcala observed that “aside from the absence of an enhancement paragraph in the indictment,” every other aspect of the case showed that the State intended to charge the enhanced offense and Wright knew he was pleading to the enhanced offense. In that situation, Judge Alcala believed that Wright’s appellate complaint was not an illegal sentence claim, but rather a claim that the State had failed to properly plead the enhancement. Accordingly, Judge Alcala would reject the illegal-sentence claim.
    Judge Alcala ended her opinion by criticizing the Court for “import[ing]” the law of habeas corpus into the law of direct appeals. She believed that requiring an increased showing of proof from defendants would make it more difficult for defendants with illegal sentences to gain relief.

Applications going forward
Though Judge Alcala saw the Court’s opinion as potentially closing off relief to certain defendants, the big story of this opinion is that by “assuming, without deciding” that Wright’s claim was appropriate as either a void-judgment claim or as a revival of the habeas corpus exception, the Court is opening a door to a significant number of claims that prosecutors have long thought were procedurally barred. The Court reopened a door it more or less closed 15 years ago.
    The Court’s opinion establishes a roadmap for how defendants should litigate these claims. By stating that Wright’s habeas claim failed in part because he did not litigate it in the trial court, the Court is telling defense attorneys that illegal-sentence claims should be raised at revocation hearings. Prosecutors and judges may think of revocation hearings as being about revocation; they now need to be prepared to address claims that prior convictions are nonexistent or are somehow invalid.
    For instance, in Kuol, the prostitution case mentioned earlier, the defendant pleaded guilty to felony prostitution and got deferred, but after revocation she attacked the validity of her prior convictions by alleging that she was a juvenile at the time. The Court of Appeals treated this as an illegal-sentence claim and reformed the judgment to make the current offense a misdemeanor. Kuol was decided prior to Wright, but the Court of Criminal Appeals denied review while Wright was pending, and I now see why. The illegal-sentence claim in Kuol is the sort of claim that Wright has assumed, without deciding, is appropriate.
    If the claims in Wright and Kuol are “illegal sentence” claims that can be litigated at revocation hearings, this area of litigation may expand significantly. Perhaps a defendant can use his revocation hearing to claim that he received ineffective assistance of counsel at a prior trial; thus, using it to enhance his current punishment renders the sentence illegal.
    Prosecutors will need to be prepared to address these sorts of claims. This opinion emphasizes, though, that to be entitled to relief, the defendant has the burden of proving he was actually harmed, rather than just asserting that the State did something wrong.


1  Wright v. State, ___ S.W.3d ___, No. PD-1137-15, 2016 WL 5799667 (Tex. Crim. App. Oct. 5, 2016).

2  Baker v. State, 278 S.W.3d 923 (Tex. App.—Houston [14th Dist.] 2009, pet. ref’d)

3  Kuol v. State, 482 S.W.3d 623 (Tex. App.—Houston [14th Dist.] 2015, pet. ref’d).

4  Though the opinion does not provide an answer one way or the other, I assume that “Sir” is a name and not a title.

5  Wright, 2016 WL 5799667 at *1.

6  Id. at *2 (e.g., prosecutor stating that Wright “failed to do it twice” because he “didn’t learn anything last time”).

7  Wright v. State, No. 05-14-00641-CR, 2015 WL 4628189 at *2 (Tex. App.—Dallas January 27, 2016) (mem. op. not designated for publication).

8  Ibid. (citing, inter alia, Mizzell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003)).

9  See Jordan v. State, 256 S.W.3d 286, 291 (Tex. Crim. App. 2008); see also Diaz v. State, No. 01-14-00387-CR, 2015 WL 3799463 (Tex. App.—Houston [1st Dist.] June 18, 2015, pet. ref’d) (mem. op. not designated for publication) (reversing punishment because habitual offender allegations in indictment did not occur in correct order, even though defendant stipulated to other convictions that rendered him eligible for habitual punishment).

10  396 S.W.3d 531 (Tex. Crim. App. 2013).

11  Wright, 2015 WL 4628189 at *2 (citing Parrott, 396 S.W.3d at 511). 

12  Wright, 2016 WL 5799667 at *1.

13  Wright, 2016 WL 5799667 at *3 n.26 (citing Nix v. State, 65 S.W.3d 664, 668 nn. 12-15 (Tex. Crim. App. 2001).

14  Jordan v. State, 54 S.W.3d 783 (Tex. Crim. App. 2001).

15  2016 WL 5799667 at *4 (citing Ex parte Rich, 194 S.W.3d 508, 511 (Tex. Crim. App. 2006).

16  Id. at *4-5 (Alcala, J., concurring).

17  482 S.W.3d at 628.