Tony Dwayne Clayton v. the State of Texas

NUMBER 13-25-00078-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

TONY DWAYNE CLAYTON, Appellant,

v.

THE STATE OF TEXAS, Appellee.

ON APPEAL FROM THE 90TH DISTRICT COURT
OF YOUNG COUNTY, TEXAS

MEMORANDUM OPINION

Before Chief Justice Tijerina and Justices Cron and Fonseca
Memorandum Opinion by Justice Cron

Forgery is an offense that can range anywhere from a Class C misdemeanor to a

first-degree felony, depending on the existence or absence of certain facts. 1 See TEX.

1 The Texas Legislature recently amended § 32.21 to increase the penalties for forgery. See Act

of May 23, 2025, 89th Leg. Ch. 824, § 1, sec. 32.21 (codified at TEX. PENAL CODE ANN. § 32.21). Under the
PENAL CODE ANN. § 32.21(d), (e-1). Both appellant Tony Dwayne Clayton and the State

ask the Court to set aside his conviction and two-year sentence for the state jail felony

offense of check forgery. See id. § 32.21(d). The parties agree that, based on the facts

alleged in the indictment, the highest-level offense Clayton could have been convicted of

was a Class A misdemeanor, see id. § 32.21(e-1)(3), which carries a maximum penalty

of one year confinement, see id. § 12.21(2). We set aside the judgment of conviction and

remand for further proceedings. 2

I. BACKGROUND

The State alleged by indictment that, “on or about January 11, 2021,” Clayton

forged a check in the amount of $1,590. The indictment included an image of the check

showing that it was made payable to Clayton. It also indicated that Clayton was being

charged with a “State Jail Felony” under “Penal Code § 32.21(d).”

The State and Clayton entered into a plea agreement: in exchange for Clayton

pleading guilty to the offense as charged in the indictment, the State agreed to

recommend deferred adjudication community supervision for a period of three years. Prior

to accepting Clayton’s guilty plea, the trial court admonished Clayton, both in writing and

Ex Post Facto Clauses of the United States and Texas Constitutions, a defendant is entitled to be
prosecuted under the version of a statute that existed at the time of the alleged offense. See U.S. CONST.
art. 1, §§ 9, 10; TEX. CONST. art. 1, § 16; Dorsey v. United States, 567 U.S. 260, 275 (2012); Ex parte
Moussazadeh, 361 S.W.3d 684, 690 n.3 (Tex. Crim. App. 2012). Accordingly, we will apply the version of
the statute that existed at the time of the alleged offense and will cite to that version throughout this
memorandum opinion. See Act of May 26, 2017, 85th Leg., R.S., ch. 977, § 25, sec. 32.21, 2017 Tex. Gen.
Laws 3966, 3977 (codified at TEX. PENAL CODE ANN. § 32.21).
2 This appeal was transferred to us from the Second Court of Appeals in Fort Worth pursuant to a

docket-equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. §§ 22.220(a)
(delineating the jurisdiction of appellate courts), 73.001 (granting the supreme court the authority to transfer
cases from one court of appeals to another at any time that there is “good cause” for the transfer). We are
bound by the precedent of the transferring court to the extent that it conflicts with our own. See TEX. R. APP.
P. 41.3.
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in open court, that he had been charged with “a state jail felony,” which carries a

punishment “of not less than six months nor more than two years in the State Jail Division

of the Texas Department of Criminal Justice.” After Clayton acknowledged these

admonishments and pleaded guilty to the offense, the trial court accepted the State’s

sentencing recommendation, granted Clayton deferred adjudication community

supervision for a period of three years, and ordered him to pay restitution in the amount

of $1,590 as a condition of his supervision.

The State subsequently filed a motion to adjudicate guilt alleging that Clayton

violated certain terms of his supervision. Clayton pleaded “true” to each of the State’s

allegations, which included failure to report, failure to pay restitution, and failure to abstain

from illegal drugs. On January 28, 2025, the trial court revoked Clayton’s supervision,

adjudicated him guilty of the underlying offense, and sentenced him to confinement in a

state jail facility for a period of two years. See id. § 12.35(a) (providing punishment range

for state jail felony). Clayton also received sixty-nine days’ credit on his sentence for the

time he spent in pretrial detention. See TEX. CODE CRIM. PROC. ANN. art. 42.03, § 2(a)(1)

(requiring the trial court to grant “credit on the defendant’s sentence for the time that the

defendant has spent” in pretrial detention).

Clayton’s original appellate counsel filed an Anders brief and motion to withdraw

stating that his review of the record failed to reveal any non-frivolous issues to advance

on appeal. See Anders v. California, 386 U.S. 738, 744 (1967). In conducting our

independent review of the record, see Penson v. Ohio, 488 U.S. 75, 80 (1988), we

discovered at least one arguable appellate ground: “Based on the facts alleged in the

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indictment, it appears that Clayton may have committed a Class A misdemeanor, rather

than a state jail felony.”

Consequently, we granted counsel’s motion to withdraw, abated the appeal, and

remanded the case to the trial court for the appointment of new appellate counsel. See

Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). After the appeal was

reinstated, the parties submitted briefs to the Court agreeing that Clayton’s judgment of

conviction should be set aside as void and the case remanded for further proceedings.

II. ANALYSIS

“A person commits an offense if he forges a writing with intent to defraud or harm

another.” TEX. PENAL CODE ANN. § 32.21(b). When the forged writing is a check, the

offense is a state jail felony unless “the actor engaged in the conduct to obtain or attempt

to obtain a property or service,” in which case the level of offense is determined by a value

ladder that ranges from a Class C misdemeanor to a first-degree felony based on the

value of the property. Id. § 32.21(d), (e-1); State v. Green, 682 S.W.3d 253, 258 (Tex.

Crim. App. 2024) (“We agree that the ‘[s]ubject to Subsection (e-1)’ language in

subsections (d) and (e) means that those provisions are subordinate to subsection (e-1)

whenever the facts necessary to trigger (e-1) are present. We further agree that (e-1)

constitutes an element of the offense rather than a punishment-phase issue.”). If a

defendant is charged under subsection (d), as occurred here, but subsection (e-1)

applies, then the “defendant is entitled to be convicted and punished under the provisions

in the value ladder, if doing so would result in a reduced offense classification and range

of punishment.” Green, 682 S.W.3d at 258.

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As noted, the State indicted Clayton under subsection (d), alleging that he forged

a check in the amount of $1,590. The image included in the indictment shows that the

check was made out to “Tony D. Clayton.” As a condition of his deferred adjudication

community supervision, Clayton was ordered to pay $1,590 in restitution, which indicates

that Clayton obtained $1,590 from his forgery. After Green, one of our sister courts

determined under similar facts in an unpublished opinion that subsection (e-1) controlled,

and therefore, the appellant was improperly convicted and punished under subsection

(d). Lennox v. State, No. 06-19-00164-CR, 2025 WL 793896, at *5 (Tex. App.—

Texarkana Mar. 13, 2025, pet. granted) (mem. op. on remand, not designated for

publication) (concluding that a forged check, made payable to the defendant, was

“conduct to obtain . . . property” under subsection (e-1) because the defendant “received

property in the form of money”).

Based on the face of the indictment, the parties agree that Clayton should have

been charged with a Class A misdemeanor because the forged instrument was a check,

Clayton engaged in the conduct to obtain property, and the value of the property was

“$750 or more but less than $2,500.” See TEX. PENAL CODE ANN. § 32.21(d), (e-1)(3);

Green, 682 S.W.3d at 279 (“[I]f the State has information in its possession indicating that

a defendant committed forgery to obtain property or services, it would be the better

practice for the State to charge the offense under subsection (e-1).”). The maximum

punishment for a Class A misdemeanor is “confinement in jail for a term not to exceed

one year.” TEX. PENAL CODE ANN. § 12.21(2). Clayton, on the other hand, was convicted

of a state jail felony and sentenced to two years’ confinement in a state jail facility. See

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id. § 12.35(a). Based on the foregoing, the parties also agree that Clayton’s sentence is

“illegal.” See Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003) (“A sentence

which is outside the maximum or minimum range of punishment is unauthorized by law

and therefore illegal.” (collecting cases)).

As for the proper disposition of this appeal, Clayton asks that we “vacate” his

judgment of conviction based on the illegal sentence, rather than modifying the judgment

and remanding for the proper assessment of punishment. The State agrees that the

judgment of conviction should be set aside and asks that we remand “to the trial court for

retrial.”

Although Clayton pleaded guilty to the facts as alleged in the indictment, we noted

in our Order of Abatement that this case raises questions about whether his plea was

made knowingly and voluntarily. 3 “[B]ecause a guilty plea is an admission of all the

elements of a formal criminal charge, it cannot be truly voluntary unless the defendant

possesses an understanding of the law in relation to the facts.” Ex parte Mable, 443

S.W.3d 129, 131 (Tex. Crim. App. 2014) (quoting McCarthy v. United States, 394 U.S.

459, 466 (1969)).

Here, the record reflects that the plea bargain that precipitated Clayton’s guilty plea

was based on a mutual mistake as to the level of offense and possible punishment range.

See Ex parte Mable, 443 S.W.3d at 131. It further reflects that the trial court, based on

3 We further noted in our Order of Abatement that when counsel advises his client to accept a plea

agreement based on a misunderstanding of the law (i.e., a claim of ineffective assistance), it can also render
the plea involuntary. Ex parte Moussazadeh, 361 S.W.3d 684, 689 (Tex. Crim. App. 2012). (“A defendant’s
decision to plead guilty when based upon erroneous advice of counsel is not done voluntarily and
knowingly.” (citing Ex parte Battle, 817 S.W.2d 81, 83 (Tex. Crim. App. 1991))). However, Clayton has not
raised an ineffective assistance claim.
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the same mistake, improperly admonished Clayton before accepting his plea. See id.

Moreover, the State concedes that Clayton’s due process rights were violated because

he did not “receive notice of [the] potential consequences of a conviction.” Under these

circumstances, including the State’s assent to the disposition, we agree that the judgment

of conviction should be set aside, and the parties restored to their positions before they

entered into the plea agreement. This necessarily means that the Order of Deferred

Adjudication should also be set aside. 4 See Galindo v. State, 698 S.W.3d 111, 117 (Tex.

App.—Eastland 2024, no pet.) (setting aside an order of deferred adjudication in a plea

bargain case where the sentence was illegal).

III. CONCLUSION

We vacate the trial court’s original Order of Deferred Adjudication as well as the

trial court’s subsequent Judgment Adjudicating Guilt, and we remand the cause to the

trial court for further proceedings consistent with this opinion. 5

JENNY CRON
Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed on the
30th day of October, 2025.

4 Clayton claims that the Order of Deferred Adjudication was also illegal because he was placed

on community supervision for a period of three years. See TEX. CODE CRIM. PROC. ANN. art. 42A.103(b) (“In
a misdemeanor case, the period of deferred adjudication community supervision may not exceed two
years.”).
5 Having granted the relief requested by the parties, this Court will not entertain a motion for
rehearing or reconsideration. Additionally, because Clayton has served nearly a full year of his sentence
and time is of the essence, on our own motion, we direct the Clerk of this Court to immediately issue the
mandate. See TEX. R. APP. P. 2, 18.1.
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