In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
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No. 06-08-00109-CR
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LEE VERT SMITH, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 5th Judicial District Court
Bowie County, Texas
Trial Court No. 06F0743-005
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION
Lee Vert Smith attempts to appeal his conviction for aggravated sexual assault of a child. Smith entered into a plea agreement and was sentenced in accordance therewith to twenty-five years' imprisonment.
The record contains a certification from the trial court that this "is a plea-bargain case, and the defendant has NO right of appeal." See Tex. R. App. P. 25.2.
Unless a certification, showing that a defendant has the right of appeal, is in the record, we must dismiss the appeal. See Tex. R. App. P. 25.2(d). Because the trial court's certification affirmatively shows Smith has no right of appeal, and because the record before us does not reflect that the certification is incorrect, see Dears v. State, 154 S.W.3d 610, 615 (Tex. Crim. App. 2005), we must dismiss the appeal.
Accordingly, we dismiss the appeal for want of jurisdiction.
Jack Carter
Justice
Date Submitted: June 12, 2008
Date Decided: June 13, 2008
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ued in effect for that purpose.] Id. § 1.18(a). The act further provided, "an offense is committed before the effective date of this article if any element of the offense occurs before the effective date." Id.
Criminal nonsupport is a continuing offense. See Belcher v. State, 962 S.W.2d 653, 656 (Tex. App.-Austin 1998, no pet.). Williams committed part of his nonsupport as far back as 1988, and it continued until June 1, 2000. Thus, part of the offense occurred before September 1, 1994, the effective date of the act. See Dickens v. State, 981 S.W.2d 186, 188 (Tex. Crim. App. 1998).
Because an element of the offense of criminal nonsupport occurred before the effective date of the act, Williams should have been sentenced under the former law, Act of May 24, 1973, 63rd Leg., R.S., ch. 399, § 1, 1973 Tex. Gen. Laws 922, 923 (amended 1987, 1993) (current version at Tex. Pen. Code Ann. § 25.05). That law classified criminal nonsupport as either a class A misdemeanor, which carried a punishment of a fine and/or confinement not to exceed one year, or a third-degree felony, which carried a punishment of no less than two years' and no more than ten years' confinement. Harvill v. State, 13 S.W.3d 478 (Tex. App.-Corpus Christi 2000, no pet.). The trial court, however, sentenced Williams under the current version of the criminal nonsupport statute, which classifies criminal nonsupport as a state jail felony and provides a range of punishment of not less than 180 days' and no more than two years' confinement. See Tex. Pen. Code Ann. § 12.35 (Vernon 1994).
A sentence unauthorized by law is fundamental error, rendering the sentence void. See Ex parte Hill, 528 S.W.2d 125, 126 (Tex. Crim. App. 1975); Muse v. State, 815 S.W.2d 769, 773 (Tex. App.-Waco 1991, no pet.). The sentence imposed on Williams was unauthorized under the applicable version of the criminal nonsupport statute. See Act of May 23, 1973, 63rd Leg., R.S., ch. 399, § 1, 1973 Tex. Gen. Laws 922, 923 (amended 1987, 1993). Accordingly, the sentence is void. The void sentence, however, does not necessarily invalidate the conviction. See Saunders v. State, 511 S.W.2d 281, 283-84 (Tex. Crim. App. 1974). Where the trial court sets the punishment and the only error concerns the punishment, the conviction should not be reversed, but the cause should be remanded to the trial court for assessment of the proper punishment. See Ex parte Hill, 528 S.W.2d at 126; Saunders v. State, 511 S.W.2d at 283-84.
The conviction is affirmed, but the sentence is voided. We remand the case to the trial court for the setting of proper punishment.
William J. Cornelius
Chief Justice
Date Submitted: January 31, 2002
Date Decided: March 6, 2002
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1. Public policy imposes an obligation on parents to support their children; thus, child support
payments are not considered a debt, but a legal duty. Ex parte McManus, 589 S.W.2d 790, 792 (Tex.
Civ. App.-Dallas 1979, orig. proceeding). Texas has also permitted imprisonment for failure to pay
child support, as well as the attorney's fees incurred while attempting to enforce support obligations,
because of the strong public policy in favor of a parent's duty to support his or her children. Tamez
v. Tamez, 822 S.W.2d 688, 691 (Tex. App.-Corpus Christi 1991, writ denied).