Zachary Williams v. the State of Texas

AFFIRMED as MODIFIED in part; REVERSED and REMANDED in part;
and Opinion Filed November 27, 2024

S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-23-00680-CR
No. 05-23-00681-CR
No. 05-23-00682-CR

ZACHARY WILLIAMS, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 265th Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F21-12488-R, F21-12489-R, and F21-62009-R

MEMORANDUM OPINION
Before Justices Pedersen, III, Smith, and Garcia
Opinion by Justice Smith

Appellant Zachary Williams entered an open plea of guilty to (1) the state jail

felony offense of possession of methamphetamine in an amount of less than one

gram,1 see TEX. HEALTH & SAFETY CODE ANN. §§ 481.102, 481.115(a), (b); (2) the

offense of accident involving injury,2 see TEX. TRANSP. CODE ANN. § 550.021(c)(2);

and (3) the state jail felony offense of evading arrest on foot with a prior evading

1
Trial Court Cause No. F21-12488-R; Appellate Cause No. 05-23-00680-CR.
2
Trial Court Cause No. F21-12489-R; Appellate Cause No. 05-23-00681-CR
arrest conviction,3 see TEX. PENAL CODE ANN. § 38.04(a), (b)(1). Appellant also

pleaded true to two punishment enhancement paragraphs on the possession charge

and to at least one enhancement paragraph on the evading arrest charge.4 The cases

proceeded to a punishment hearing before the court. The trial court deferred a

finding of guilt on the possession charge and placed appellant on community

supervision for a term of ten years. As to the other two charges, the trial court found

appellant guilty and assessed his punishment at ten years’ imprisonment in the

Correctional Institutions Division of the Texas Department of Criminal Justice.

Appellant filed a motion for new trial in each case, which the trial court

denied. These appeals ensued. In eight issues, appellant asserts that the trial court

erred in ordering him to pay restitution in the possession case (Issues One and Two),

the order of deferred adjudication in the possession case contains errors and should

be modified (Issue Six), the sentences in the accident involving injury and the

evading arrest cases are illegal because they are outside the range of punishment

allowed by statute (Issues Three and Four), alternatively the judgments in those two

cases should be modified to accurately reflect the record (Issues Seven and Eight),

and the trial court erred in ordering appellant to pay costs and restitution when it

neglected to make the required indigency inquiry on the record (Issue Five). The

3
Trial Court Cause No. F21-62009-R; Appellate Cause No. 05-23-00682-CR.
4
Whether appellant pleaded true to one judicial enhancement paragraph, one punishment enhancement
paragraph, or two punishment enhancement paragraphs is the subject of his fourth issue on appeal.
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State brings two cross issues asserting that other modifications are necessary. Based

on the reasons discussed below, we affirm as modified the Order of Deferred

Adjudication in Trial Court Cause No. F21-12488-R, reverse the punishments

assessed in Trial Court Cause Nos. F21-12489-R and F21-62009-R, and remand

Cause Nos. F21-12489-R and F21-62009-R to the trial court for new sentencing

hearings.

Restitution Ordered in Cause No. F21-12488-R

In his first issue, appellant argues that the trial court abused its discretion and

violated his constitutional right to due process of law by ordering appellant to pay

$5,000 in restitution on the possession of methamphetamine offense when that

offense did not itself cause any damage. See TEX. CODE CRIM. PROC. ANN. art.

42.037(b)(1), (2) (providing that restitution may be ordered “[i]f the offense results

in damage to or loss or destruction of property of a victim of the offense” or “[i]f the

offense results in personal injury to a victim”). Appellant argues in his second issue

that the restitution order also violated his constitutional right to due process because

it was not included in the oral pronouncement of his sentence. The State agrees, as

do we, that the trial court erred in including restitution in the Order of Deferred

Adjudication.

Restitution is punishment, see Ex parte Cavazos, 203 S.W.3d 333, 338 (Tex.

Crim. App. 2006), and therefore, it must be orally pronounced. Tracy v. State, No.

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05-19-00218-CR, 2020 WL 948378, at *3 (Tex. App.—Dallas Feb. 27, 2020, pet.

ref’d) (mem. op., not designated for publication).

In the plea proceeding below, restitution was not requested by the State,5

discussed by the parties, or orally pronounced by the trial court when it deferred a

finding of guilt and placed appellant on community supervision for a term of ten

years. However, the Order of Deferred Adjudication in Cause No. F21-12488-R

reflects that appellant is to pay restitution in the amount of $5,000. Thus, we agree

with the parties that the trial court erred in including restitution in the Order of

Deferred Adjudication and sustain appellant’s second issue.

This Court has the power to modify an order of deferred adjudication to speak

the truth when we have the necessary information to do so. See Tracy, 2020 WL

948378, at *3 (citing Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—Dallas

1991, pet. ref’d), and modifying the order of deferred adjudication to delete the

restitution amount). We therefore modify the Order of Deferred Adjudication in

Cause No. F21-12488-R to delete the $5,000 in restitution. Because we have

sustained appellant’s second issue, it is not necessary for us to reach his first issue

regarding whether restitution could be ordered under article 42.037 in this drug

possession case. See TEX. R. APP. P. 47.1.

5
See TEX. CODE CRIM. PROC. art. 42.037(k) (“The burden of demonstrating the amount of the loss
sustained by a victim as a result of the offense is on the prosecuting attorney.”).
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Further Modifications of Order in Cause No. F21-12488-R

In his sixth issue, appellant argues that the Order of Deferred Adjudication in

Cause No. F21-12488-R should be further modified to reflect that the offense for

which he pleaded guilty was a state jail felony, not a third-degree felony. The State

agrees, and in its second cross issue, asserts that the order should also be modified

to reflect that there were no terms of agreement or plea bargain in this case. We

agree that the Order of Deferred Adjudication should be further modified as the

parties have requested.

Appellant pleaded true to possessing less than one gram of methamphetamine.

Possession of less than one gram of a controlled substance listed in Penalty Group

1, which includes methamphetamine, is a state jail felony offense. TEX. HEALTH &

SAFETY CODE §§ 481.102, 481.115(a), (b). Although the punishment range was

enhanced to a third-degree felony range, see TEX. PENAL CODE § 12.425(a), the

degree of offense itself was not enhanced. The record further shows that appellant’s

pleas were open, meaning that he pleaded guilty to the offense but did not enter an

agreement with the State as to any particular terms of punishment. Therefore, we

sustain appellant’s sixth issue and the State’s second cross issue and further modify

the Order of Deferred Adjudication in Cause No. F21-12488-R to reflect that the

degree of offense was a state jail felony enhanced to a third-degree punishment range

and that appellant’s plea was open.

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Illegal Sentence in Cause No. F21-12489-R

Appellant argues in his third issue, and the State agrees, that the sentence

imposed against him in the accident involving injury case is illegal because it

exceeds that allowed by statute. A sentence is illegal if it is outside the range of

punishment authorized by law. Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim.

App. 2003).

The indictment in Cause No. F21-12489-R alleged that appellant intentionally

and knowingly operated a vehicle, which became involved in an accident, which

resulted in or was reasonably likely to result in injury to or the death of a person, and

the defendant, knowing that said accident occurred, intentionally and knowingly

failed to immediately stop at the scene of the accident or immediately return to the

scene of the accident and remain there to comply with the law. See TEX. TRANSP.

CODE §§ 550.021, 550.023. The indictment further alleged that the accident resulted

in injury to the named victim. There were no punishment enhancements alleged

with this offense.

Section 550.021 of the transportation code provides that the range of

punishment for this offense varies according to the level of injury inflicted. Id. §

550.021(c). For example, if the accident results in death, the offense is a second-

degree felony. Id. § 550.021(c)(1)(A). If the accident results in serious bodily

injury, the offense is a third-degree felony. Id. § 550.021(c)(1)(B). And if the

offense results in injury, but not serious bodily injury, the offense is punishable by

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imprisonment in the Texas Department of Criminal Justice for not more than five

years or confinement in the county jail for not more than one year, a fine of up to

$5,000, or both a fine and imprisonment or confinement. Id. § 550.021(c)(2).

Here, the indictment alleged that the accident resulted in injury, not serious

bodily injury, which has an allowable maximum punishment of five years’

imprisonment. See id. The trial court’s assessment of ten years’ imprisonment is

outside that range. Therefore, we agree that appellant’s sentence is illegal and, thus,

void. See Mizell, 119 S.W.3d at 806, 806 n.7.

We sustain appellant’s third issue, reverse his illegal sentence in Trial Court

Cause No. F21-12489-CR, and remand the case to the trial court for a new trial on

punishment. Although the finding of guilt and thus the conviction remains,6 it is not

yet necessary for us to reach appellant’s seventh issue regarding modifications to the

judgment of conviction in this case because the trial court will necessarily issue a

new judgment of conviction after the new trial on punishment. See TEX. R. APP. P.

47.1.

6
See Ex parte Rich, 194 S.W.3d 508, 514 (Tex. Crim. App. 2006) (“In cases in which a defendant
enters a plea of guilty or nolo contendere without the benefit of a plea bargain and the trial judge assesses
a punishment not authorized by law, the appropriate remedy is to allow the finding of guilt to remain and
to remand the case for a new punishment hearing.”); see also TEX. CODE CRIM. PROC. art. 44.29(b)
(providing trial court “shall commence the new trial as if a finding of guilt had been returned and proceed
to the punishment stage” when the court of appeals awards a new trial only on the basis of errors made in
the punishment phase).
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Illegal Sentence in Cause No. F21-62009-R

In his fourth issue, appellant argues that his sentence in the evading arrest case

is also illegal because it is outside of the punishment range allowed. The State does

not agree that the sentence in this case is illegal. The question here turns on which

punishment range applies: (1) the state jail felony range for evading arrest with a

prior conviction for evading arrest, or (2) the third-degree felony range for evading

arrest with a prior conviction for evading arrest plus two prior state jail felonies in

addition to the previous evading arrest.

The offense of evading arrest is generally a Class A misdemeanor. TEX.

PENAL CODE § 38.04(b). However, if the defendant has been previously convicted

of evading arrest, the offense is a state jail felony. Id. § 38.04(b)(1). State jail

felonies are punishable by confinement in a state jail facility for a term of not more

than two years or less than 180 days. Id. § 12.35(a). However, the punishment range

of a state jail felony can be enhanced to the range for a third-degree felony, if it is

shown on the trial of an offense punishable under section 12.35(a) that the defendant

has twice before been finally convicted of a state jail felony. Id. § 12.425(a). The

punishment range for a third-degree felony is imprisonment in the Texas Department

of Criminal Justice for a term of not more than ten years or less than two years. Id.

§ 12.34(a).

The plea agreement in Cause No. F21-62009-R shows that appellant pleaded

true to the first enhancement paragraph, but not the second:

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A state jail felony punishable under section 12.35(a) cannot be enhanced to a

higher punishment level on only one prior state jail felony conviction; there must be

two. Id. §§ 12.35, 12.425. Given that, appellant argues that his plea of true was to

the jurisdictional enhancement paragraph, which elevated the offense from a Class

A misdemeanor to a state jail felony due to his previous conviction for evading

arrest, see id. § 38.04(b), not to one of the punishment enhancement paragraphs. The

State responds that this argument is “illogical” as the jurisdictional allegation was

part of the indicted offense and not a separate enhancement paragraph. The State

further asserts appellant’s single checkmark on his plea paperwork was a clerical

error and the record as a whole shows he pleaded true to both punishment

enhancements because he judicially confessed to the charges as stated in the

indictment, which included both enhancement paragraphs; he pleaded true to those

same enhancement paragraphs in the drug possession case; his plea paperwork

shows that he was admonished as to a third-degree felony7; appellant’s counsel

stated that appellant was entering “pleas of guilt to all three counts, and true to the

7
We note that this was not the proper admonishment even if appellant was pleading true to the two
enhancement paragraphs. As we explained above, enhancing the punishment range is different than
enhancing the offense level itself. Appellant was not charged with a third-degree felony. Thus, the proper
admonishment in the plea paperwork would have been for the following box to be checked if appellant was
pleading true to both enhancement paragraphs: “State Jail Felony Punished as 3rd Degree Felony.”

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enhancements”; and, at the end of the punishment hearing, as to Cause Nos. F21-

12489-R and F21-62009-R, the trial judge stated, “I accept your pleas of true. I find

the enhancement paragraphs true.”

Due to the inconsistencies in his plea paperwork and the vague statements on

the record regarding the enhancement paragraphs generally, we do not agree that it

is clear appellant pleaded true in Cause No. F21-62009-R to both punishment

enhancements paragraphs thereby enhancing his punishment range to that of a third-

degree felony. Therefore, on this record, we conclude appellant’s sentence of ten

years is outside the available punishment range and, thus, illegal. We sustain

appellant’s fourth issue and, as with his accident-causing-injury case, we reverse his

illegal sentence in Trial Court Cause No. F21-62009-CR, and remand the case to the

trial court for a new trial on punishment. Because we have sustained appellant’s

fourth issue and reversed his sentence, it is not necessary for us to reach his eighth

issue, or the State’s first cross issue, regarding further modifications to the judgment

in Cause No. F21-62009-R. See TEX. R. APP. P. 47.1.

Indigency Inquiry Regarding Costs

Appellant contends in his fifth issue that the trial court erred in ordering him

to pay costs of court and restitution when it neglected to make the required indigence

inquiry under article 42.15 of the Texas Code of Criminal Procedure. See TEX. CODE

CRIM. PROC. art. 42.15(a-1) (providing that trial court shall inquire on the record,

during or immediately after imposing sentence, whether the defendant has sufficient

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resources to immediately pay all or part of the fine and costs and, if not, determine

whether such should be delayed or paid in intervals, discharged by performing

community service, waived in full or in part, or satisfied by any combination of the

three). Although the State agrees that the trial court erred in failing to conduct the

inquiry on the record, we conclude that appellant waived his statutory right to

requiring an on-the-record inquiry as recently explained in Cruz v. State, 698 S.W.3d

265 (Tex. Crim. App. 2024).

In Cruz, the Court of Criminal Appeals held that the ability-to-pay inquiry

was “not fundamental to the functioning of our adjudicatory system” and, thus, the

appellant in that case forfeited his complaint that the trial court failed to conduct the

inquiry on the record when he did not object in the trial court. 698 S.W.3d at 266,

268–69, 271 (conducting a Marin v. State, 851 S.W.2d 275 (Tex. Crim. App. 1993),

category analysis and determining that the ability-to-pay inquiry is a category-three

right, which is forfeitable). As in Cruz, appellant made no request for the trial court

to conduct an inquiry on the record, nor did he object to the trial court’s failure to do

so. By failing to timely present his request to the trial court, he has not preserved

this issue for our review. See TEX. R. APP. P. 33.1(a). We overrule appellant’s fifth

issue.

Conclusion

The Order of Deferred Adjudication in Cause No. F21-12488-R is modified

as follows:

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 “3rd Degree Felony” is corrected to read “State Jail Felony” under the
section titled, “Degree of Offense”;

 “10 Years Deferred Probation No Fine” is corrected to read “Open” under
the section titled, “Terms of Plea Bargain”;

 “$5000” is deleted from the section titled, “Restitution”; and

 the following sentence is added to the end of the judgment under the
“special findings” section: “Pursuant to section 12.425(a) of the Texas
Penal Code, the defendant’s punishment range was enhanced from a state-
jail felony to a third-degree felony.”

The Order of Deferred Adjudication is otherwise affirmed. The judgments of

conviction in Cause Nos. F21-12489-R and F21-62009-R are reversed as to the

punishment assessed, and the causes are remanded to the trial court for new

punishments hearings.

/Craig Smith/
CRAIG SMITH
JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b)
230680F.U05

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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

ZACHARY WILLIAMS, Appellant On Appeal from the 265th Judicial
District Court, Dallas County, Texas
No. 05-23-00680-CR V. Trial Court Cause No. F21-12488-R.
Opinion delivered by Justice Smith.
THE STATE OF TEXAS, Appellee Justices Pedersen, III and Garcia
participating.

Based on the Court’s opinion of this date, the trial court’s Order of Deferred
Adjudication is MODIFIED as follows:

 “3rd Degree Felony” is corrected to read “State Jail Felony” under the
section titled, “Degree of Offense”;

 “10 Years Deferred Probation No Fine” is corrected to read “Open” under
the section titled, “Terms of Plea Bargain”;

 “$5000” is deleted from the section titled, “Restitution”; and

 the following sentence is added to the end of the judgment under the
“special findings” section: “Pursuant to section 12.425(a) of the Texas
Penal Code, the defendant’s punishment range was enhanced from a state-
jail felony to a third-degree felony.”

As REFORMED, the Order of Deferred Adjudication is AFFIRMED.

Judgment entered this 27th day of November 2024.

–13–
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

ZACHARY WILLIAMS, Appellant On Appeal from the 265th Judicial
District Court, Dallas County, Texas
No. 05-23-00681-CR V. Trial Court Cause No. F21-12489-R.
Opinion delivered by Justice Smith.
THE STATE OF TEXAS, Appellee Justices Pedersen, III and Garcia
participating.

Based on the Court’s opinion of this date, the trial court’s judgment as to the
punishment assessed is REVERSED and the cause is REMANDED for further
proceedings pursuant to TEX. CODE CRIM. PROC. ANN. art. 44.29(b).

Judgment entered this 27th day of November 2024.

–14–
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

ZACHARY WILLIAMS, Appellant On Appeal from the 265th Judicial
District Court, Dallas County, Texas
No. 05-23-00682-CR V. Trial Court Cause No. F21-62009-R.
Opinion delivered by Justice Smith.
THE STATE OF TEXAS, Appellee Justices Pedersen, III and Garcia
participating.

Based on the Court’s opinion of this date, the trial court’s judgment as to the
punishment assessed is REVERSED and the cause is REMANDED for further
proceedings pursuant to TEX. CODE CRIM. PROC. ANN. art. 44.29(b).

Judgment entered this 27th day of November 2024.

–15–