Lisandro Carrillo Velasquez v. the State of Texas

IN THE
TENTH COURT OF APPEALS

No. 10-23-00363-CR

LISANDRO CARRILLO-VELASQUEZ,
Appellant
v.

THE STATE OF TEXAS,
Appellee

From the 19th District Court
McLennan County, Texas
Trial Court No. 2023-116-C1

MEMORANDUM OPINION

Lisandro Carrillo-Velasquez was convicted of one count of solicitation of

prostitution of a minor and one count of aggravated kidnapping and sentenced to 10

years and 20 years in prison, respectively. Because Carrillo-Velasquez’s sentence in

Count I, solicitation of prostitution of a minor is illegal, the trial court’s judgment as to

Count I is reversed and is remanded to the trial court. Because Carrillo-Velasquez’s

remaining issues are either not preserved or moot, the trial court’s judgment as to Count

II is affirmed.
BACKGROUND

In November of 2022, 15-year-old Jane Doe left home after having an argument

with her mother. While out, she encountered Carrillo-Velasquez. After a short

conversation, Carrillo-Velasquez then began to drag Doe into his apartment. Doe was

pushed down on the bed, and Carrillo-Velasquez got on top of her. Doe repeatedly

declined to have sex with Carrillo-Velasquez. However, he tried to convince Doe to have

sex by offering her $500 and the opportunity to stay and live with him. Eventually, Doe

escaped by running out the door when Carrillo-Velasquez opened it to see if the police

were outside. Ultimately, Carrillo-Velasquez was arrested at his apartment.

ILLEGAL SENTENCE

Carrillo-Velasquez asserts in his first issue that his sentence in Count I is illegal

because the Penal Code statute under which Carrillo-Velasquez was charged and

convicted did not allow for a punishment enhancement to a second-degree felony as was

charged at punishment, assessed by the jury, and pronounced by the trial court. Thus,

his argument continues, we are required to remand the judgment in Count I to the trial

court for a new trial on punishment.

Law

A defendant has an absolute and nonwaivable right to be sentenced within the

proper range of punishment established by the Legislature. Speth v. State, 6 S.W.3d 530,

532-33 (Tex. Crim. App. 1999). A sentence that is outside the range of punishment

authorized by law is considered illegal, and a defendant may obtain relief from an illegal

sentence on direct appeal or by a writ of habeas corpus. Ex parte Parrott, 396 S.W.3d 531,

Carrillo-Velasquez v. State Page 2
534 (Tex. Crim. App. 2013); Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003). A

contemporaneous objection to the imposition of an illegal sentence is not required. Mizell,

119 S.W.3d at 806 n.6. The proper remedy for an illegal sentence is a new punishment

hearing. See TEX. CODE CRIM. PROC. art. 44.29(b); Splawn v. State, 160 S.W.3d 103, 107-08

(Tex. App.—Texarkana 2005, pet. ref'd).

Charge

Carrillo-Velasquez was indicted in January of 2023 for committing the offense of

solicitation of prostitution of a minor occurring on November 6, 2022. That indictment

charged Carrillo-Velasquez with:

…knowingly offer a fee to another person, namely JANE DOE, a
pseudonym, for the purpose of engaging in sexual conduct, namely sexual
intercourse, with JANE DOE, a pseudonym, a person who was younger
than 18 years of age, and the fee constituted money….

In August of 2023, a superseding indictment charged the same conduct:

…knowingly offer a fee to another person, namely JANE DOE, a
pseudonym, for the purpose of engaging in sexual conduct, namely sexual
intercourse, with JANE DOE, a pseudonym, a person who was younger
than 18 years of age, and the fee constituted money….

The Penal Code statute in effect on the date of the offense and at the time both indictments

were handed down provided:

(a) A person commits an offense if the person knowingly offers or agrees to
pay a fee to another person for the purpose of engaging in sexual
conduct with that person or another.

2021 Tex. HB 1540, 2021 Tex. Gen. Laws 807, 2021 Tex. Ch 807, 2021 Tex. ALS 807 (former

Penal Code section 43.021(a)). The jury was charged with and found Carrillo-Velasquez

guilty of this offense as stated in the superseded indictment.

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The statute also provided that an offense under subsection (a) was a state jail

felony except in certain circumstances:

(1) a felony of the third degree if the actor has previously been convicted of
an offense under Subsection (a) or under Section 43.02(b), as that law
existed before September 1, 2021; or

(2) a felony of the second degree if the person with whom the actor agrees
to engage in sexual conduct is:

(A) younger than 18 years of age, regardless of whether the actor
knows the age of the person at the time of the offense;

(B) represented to the actor as being younger than 18 years of age;
or

(C) believed by the actor to be younger than 18 years of age.

2021 Tex. HB 1540, 2021 Tex. Gen. Laws 807, 2021 Tex. Ch 807, 2021 Tex. ALS 807 (former

Penal Code section 43.021(b)) (Emphasis added).

Application

During the punishment phase of the trial, the jury was charged with assessing

Carrillo-Velasquez’s punishment “at confinement in the Texas Department of Criminal

Justice, Institutional Division for any term of years not less than two (2) years nor more

than twenty (20) years;” and, additionally, assessing “a fine in any amount not to exceed

$10,000.00.” The jury assessed a 20-year term of confinement in prison and a $5,000 fine.

However, the punishment range charged and the sentenced assessed was for, and in the

range of, a second-degree felony. See TEX. PENAL CODE §12.33. To be convicted of a

second-degree felony under former section 43.21(b), there must be an agreement to

engage in sexual activity. See 2021 Tex. HB 1540, 2021 Tex. Gen. Laws 807, 2021 Tex. Ch

Carrillo-Velasquez v. State Page 4
807, 2021 Tex. ALS 807 (former Penal Code section 43.021(b)) (“(2) a felony of the second

degree if the person with whom the actor agrees to engage in sexual conduct…”). 1 There

was no agreement in this case; only an offer. 2 Thus, Carrillo-Velasquez could only be

punished for a state jail felony, that is, confinement in a state jail for any term not more

than two years or less than 180 days and a fine not to exceed $10,000. TEX. PENAL CODE §

12.35. Because Carrillo-Velasquez was sentenced outside the range of punishment for a

state jail felony, his sentence is illegal.

Accordingly, Carrillo-Velasquez’s first issue is sustained, and the judgment in

Count I is reversed and remanded to the trial court for a new trial on punishment only.

ABILITY TO PAY

In his second issue, Carrillo-Velasquez contends the trial court erred in failing to

conduct an on-the-record ability-to-pay inquiry pursuant to article 42.15(a-1) of the Texas

Code of Criminal Procedure. 3 The Court of Criminal Appeals has recently held that the

failure to conduct an article 42.15(a-1) hearing is forfeitable by failing to object. Cruz v.

State, No. PD-0628-23, 698 S.W.3d 265, 2024 Tex. Crim. App. LEXIS 653, * 14 (Crim. App.

1
Subsection (1) is not applicable to this case.

2 Section 43.021(b)(2) was amended in 2023 to include the word “offer” in the second-degree felony
punishment language; but the Legislature also provided that, “The change in law made by this article
applies only to an offense committed on or after the effective date of this Act. An offense committed before
the effective date of this Act is governed by the law in effect on the date the offense was committed, and
the former law is continued in effect for that purpose. For purposes of this section, an offense was
committed before the effective date of this Act if any element of the offense occurred before that date.”
Acts 2023, 88th Leg., Ch. 93 (SB 1527), § 2.11. The effective date of the amendment was September 1, 2023,
well after the date of the offense in this case.

3
Because we have already determined that the judgment in Count I is to be reversed and remanded for a
new punishment trial, our analysis of this issue is limited to the conviction in Count II.

Carrillo-Velasquez v. State Page 5
Sep. 4, 2024) (publish). Carrillo-Velasquez concedes that he did not object. Accordingly,

Carrillo-Velasquez has forfeited his complaint by not objecting, and his second issue is

overruled.

CONCURRENT FINES

By his last issue, Carrillo-Velasquez claims the trial court erred in cumulating his

fines. The jury assessed a $5,000 fine for each of Carrillo-Velasquez's two convictions.

The judgments for each conviction reflected a $5,000 fine and ordered the sentences to

run concurrently. Carrillo-Velasquez argues that this Court should reform the judgments

to reflect a fine totaling only $5,000; in other words, delete the fine from one of the

judgments. Because the judgment of conviction in Count I has been reversed and

remanded for a new trial on punishment, this issue has been rendered moot.

Accordingly, Carrillo-Velasquez’s third issue is overruled.

CONCLUSION

Having sustained Carrillo-Velasquez’s first issue and overruled Carrillo-

Velasquez’s second and third issues, we reverse the trial court’s Judgment of Conviction

by Jury, Count No. I, signed on November 1, 2023, and remand that Judgment to the trial

court for a new trial on punishment only. We affirm the trial court’s Judgment of

Conviction by Jury, Count No. II, signed on November 1, 2023.

LEE HARRIS
Justice

Carrillo-Velasquez v. State Page 6
Before Chief Justice Johnson,
Justice Smith, and
Justice Harris
Reversed and remanded in part; Affirmed in part
Opinion delivered and filed January 23, 2025
Do not publish
[CRPM]

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