NO. 07-07-0116-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
DECEMBER 19, 2007
______________________________
THE STATE OF TEXAS, APPELLANT
V.
JEROME PAUL MARROQUIN, APPELLEE
_________________________________
FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;
NO. 54,103-E; HONORABLE RICHARD DAMBOLD, JUDGE
_______________________________
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
          Appellee, Jerome Paul Marroquin, was indicted for the offense of accident involving injury or death. Appellee subsequently entered a plea of guilty without benefit of a plea bargain. The trial court sentenced appellee to eight years confinement in the Institutional Division of the Texas Department of Criminal Justice, with a fine of $800; however, the sentence was suspended and appellee was placed on probation for a period of eight years. The State of Texas filed notice of appeal alleging in one issue that the sentence was illegal and thereby void. We reverse.
Background
          For the offense that appellee pled guilty to, the range of punishment is imprisonment in the Institutional Division of the Texas Department of Criminal Justice for up to five years or confinement in the county jail for not more than one year, a fine not to exceed $5,000; or both fine and imprisonment or confinement. Tex. Transp. Code Ann. § 550.021(c) (Vernon Supp. 2007). At the time of the plea, appellee signed a written admonishment stating that the offense in question was a third degree felony with a range of punishment of confinement in the Institutional Division of the Texas Department of Criminal Justice for a period of not more than 10 years or less than two years and a fine not to exceed $10,000. So too was appellee admonished orally by the trial court. After receiving the plea and finding appellee guilty, the trial court entered the sentence of eight years confinement, probated for eight years, and a fine of $800. The State alleges in its one issue that the sentence pronounced and entered by the trial court is an illegal sentence because it is outside the punishment range authorized by law. Appellee acknowledges that the term of imprisonment is above the maximum allowed by the statute, but, urges that this court has the authority to reform the judgment.
Analysis
          The facts as reflected above are agreed by both parties to this appeal. It is further agreed by the parties that the sentence imposed was not within the applicable punishment range of the statute. See Tex. Transp. Code Ann. § 550.021(c) (Vernon Supp. 2007). The contested issue concerns how the illegal sentence should be corrected.
          A sentence that is outside the maximum or minimum authorized by law is an illegal sentence. See Mizell v. State, 119 S.W.3d 804, 805 (Tex.Crim.App. 2003). An illegal sentence is considered a void sentence. See Ex parte Seidel, 39 S.W.3d 221, 225 (Tex.Crim.App. 2001). When the appellate court is dealing with a void sentence, the only action available is to remand the case to the trial court for a new trial on the issue of punishment. See Ex parte Johnson, 697 S.W.2d 605, 607 (Tex.Crim.App. 1985).
          Appellee argues that the court can simply reform the judgment citing Hollie v. State, 962 S.W.2d 263 (Tex.App.âHouston [1st Dist.] 1998), pet. dismâd, 984 S.W.2d 302 (Tex.Crim.App. 1999). Hollie involved a sentence of probation for a DWI wherein the defendant was ordered to serve 45 days in jail as a term and condition of probation. At the time, the maximum term of confinement that could be ordered as a term of probation was 30 days. The appellate court simply modified the 45 days to 30 days without sending the case back for a new trial on the issue of punishment. The Hollie case was decided prior to the Court of Criminal Appeals holding that a term of probation is part of the judgment and not part of the sentence. Speth v. State, 6 S.W.3d 530, 532 (Tex.Crim.App. 1999). Therefore, the analysis drawn by the appellee based upon the Hollie decision is not applicable.
          Accordingly, we are left with a void sentence in the judgment of the trial court. We must, therefore, reverse the judgment of the trial court. Further, since the basis of the reversal is predicated on an error made during the punishment stage of the trial, the court shall commence the new trial as if a finding of guilt had been made and proceed to punishment. Tex. Code Crim. Proc. Ann. art. 44.29(b) (Vernon Supp. 2007).
Conclusion
          The judgment of the trial court is reversed and the cause is remanded for a new punishment trial.
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                                                                           Mackey K. Hancock
                                                                                     Justice
Publish.
v. Andrews, 155 S.W.3d 351, 356 (Tex.App.-Fort Worth 2004, pet. denied). To hold otherwise could subject governmental entities to liability for any number of conditions, regardless of their distance from roadways, simply due to the fact that the surrounding area is occasionally used by vehicles or pedestrians. Accordingly, we agree with the trial court and find that the condition of the meter box constituted a premise defect, as opposed to a special defect under § 101.022. Issue one is overruled.
Because the condition of the meter box constituted a premise defect, the City had a duty to use ordinary care to warn Duenes of any dangerous condition of which it was actually aware and Duenes was unaware, or make the condition reasonably safe.
Actual Knowledge of Unreasonably Dangerous Condition
To recover for an injury caused by premise defect, Duenes would have to prove that the City had actual knowledge of an unreasonably dangerous condition. Payne, 838 S.W.2d at 237; Martinez, 993 S.W.2d at 886. By its motion for summary judgment, the City alleged there was no evidence that it had actual knowledge of the condition of the meter box. The City further alleged that there was no evidence that it had any knowledge that the condition was unreasonably dangerous.
By her third issue, Duenes contends summary judgment was improper because "the testimony and related inferences" demonstrate that the City knew about the condition of the unsecured meter box lid prior to her injury. We disagree.
Specifically, Duenes relies on the following evidence which she claims supports her contention:
- The testimony of eyewitness Isidra Marquez that the meter box lid had not been working properly for at least one month prior to Duenes's injury.
- The testimony of Michael Williamson that a City employee made a service call to the meter box five days prior to Duenes's injury.
The evidence indicates that Marquez hosted the dinner party that Duenes attended and lived in the house next door to the property where the meter box was located. By deposition, she testified that she had noticed the lid was flipping at least a month before Duenes's injury and had placed a rock on top of the lid to protect her grandchildren. However, she conceded that she never contacted the City about the dangerous condition and never saw City employees working at the meter box. In his deposition, the City's Water Superintendent, Michael Williamson, insisted that the City had no actual knowledge of the meter box's condition on the date of the accident. He did confirm that a City employee "completed a job " at the meter box five days prior to Duenes's injury but testified that there was not a problem with the lid because if there was, it would have been reported to him. Williamson did not rule out the possibility that the box could have been tampered with after the service call.
Even so, Duenes insists that the evidence in this case parallels the evidence in Cross v. City of Dallas, 581 S.W.2d 514 (Tex.Civ.App.-Dallas 1979, writ ref'd n.r.e.). However, Cross was an appeal from a judgment non obstante veredicto concerning whether a jury could reasonably infer from circumstantial evidence that a city employee negligently failed to lock a water meter lid. See id. Although facially similar, we do not find Cross to be persuasive authority on the issue of actual knowledge.
A trial court should grant a no-evidence motion for summary judgment when the evidence offered to support a vital fact is "no more than a mere scintilla" of evidence. King Ranch, Inc. v. Chapman, 118 S.W.3d 742 (Tex. 2003). No more than a scintilla of evidence is established when the evidence would not allow reasonable and fair-minded people to differ in their conclusions. Forbes, Inc. v Granada Biosciences, Inc., 124 S.W.3d 167, 172 (Tex. 2003). The evidence offered by Duenes, the non-movant, in opposition to the City's no-evidence motion for summary judgment is no more than a mere scintilla of evidence of a vital fact, to-wit: actual notice. Marquez' testimony does not touch upon the City's actual notice at all. Williamson's testimony merely acknowledges the City's awareness of the existence of the meter box but does not acknowledge notice of any defect. Based upon such evidence, reasonable and fair-minded people could not reach the conclusion that the City had actual notice of a defective condition. Therefore, having negated at least one essential element of Duenes's cause of action, we hold the trial court did not err in granting summary judgment in this regard. Randall's Food Mkts, Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995). Duenes's third issue is overruled. Our disposition of this issue pretermits our consideration of Duenes's second and fourth issues. Tex. R. App. P. 47.1.
Accordingly, the judgment of the trial court is affirmed.
Patrick A. Pirtle
Justice
1. Tex. Civ. Prac. & Rem. Code Ann. § 101.022 (Vernon 2005).
2. The Order Granting Defendant's Motion for Summary Judgment did not specify whether it was based on the Defendant's no-evidence or traditional grounds.
3. It is unclear whether the water meter actually serviced the residence.