Hill, Michael Charles

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NOS. WR-83,074-04 & WR-83,074-05

EX PARTE MICHAEL CHARLES HILL, Applicant

ON APPLICATIONS FOR WRITS OF HABEAS CORPUS
IN CAUSE NOS. 26410 & 26411 IN THE 196TH JUDICIAL DISTRICT COURT
FROM HUNT COUNTY

HERVEY, J., delivered the opinion of the Court in which RICHARDSON,
NEWELL, KEEL, WALKER, and MCCLURE, JJ., joined. KELLER, P.J., filed a
concurring and dissenting opinion. YEARY, J., filed a concurring and dissenting
opinion in which SLAUGHTER, J., joined.

OPINION

Applicant, Michael Charles Hill, was convicted of second-degree felony sexual

assault of a child and indecency with a child by contact. Based on an enhancement, he

was automatically sentenced to life imprisonment for the sexual-assault offense, and his

punishment range for the indecency offense was enhanced to that of a first-degree felony.

The jury sentenced him to life imprisonment. This Court subsequently vacated

Applicant’s enhancing conviction on involuntary-plea grounds. Applicant now argues that
 Hill–2

his enhanced life sentences are illegal and that he should be resentenced. We filed and set

his application for submission. The parties briefed the following issues,

(1) Whether a defendant’s failure to object at the time of trial to the use
of a prior enhancing conviction forfeits error, particularly in the
context of sex offenses; TEX. CODE CRIM. PROC. Art. 1.14(b);
TEX. PENAL CODE § 12.42(c)(2), (g); see Ex parte Rich, 194
S.W.3d 508 (Tex. Crim. App. 2006); Ex parte Patterson, 969 S.W.2d
16 (Tex. Crim. App. 1998, op. on reh’g);

(2) Whether vacating a prior enhancing conviction that was final at the
time of the subsequent conviction and sentence affects the validity of
the subsequent sentence, particularly in the context of sex offenses;
Anderson v. State, 394 S.W.3d 531 (Tex. Crim. App. 2013);

(3) Whether the use of a prior enhancing conviction that does not
increase the punishment range causes harm; see Ex parte Parrott, 396
S.W.3d 531 (Tex. Crim App. 2013); and

(4) Whether a claim concerning the use of a prior enhancing conviction,
when that conviction is later vacated, is barred by the equitable
doctrine of laches.

The habeas court recommends that we deny relief. We conclude that Applicant is

entitled to be resentenced for aggravated sexual assault but not indecency with a child.

I. PROCEDURAL HISTORY

Applicant was convicted of sexual assault of a child and indecency with a child by

contact (the primary offenses), both second-degree felonies. TEX. PENAL CODE

§ 22.011(a)(2). The punishment range for a second-degree felony is two to twenty years’

imprisonment. Id. § 12.33(a). The State, however, sought enhanced sentences based on a

previous aggravated-sexual-assault conviction from 2000 in Dallas County (the enhancing
 Hill–3

conviction), which the jury found to be true. Id. § 22.021. The enhanced punishment for

sexual assault of a child was fixed by law at life imprisonment. Id. § 12.42(c)(2).

Applicant’s punishment range for the indecency offense was elevated into the first-degree

felony range, subjecting him to confinement for five to ninety-nine years or life. Id.

§ 12.42(b). The jury sentenced him to life imprisonment, and the judge stacked the

sentences,

Primary Offenses (2012)
Sexual Assault of a Child TEX. PENAL CODE §§ 22.011(a)(2), Automatic life
(2nd degree felony) 12.42(c)(2) imprisonment
Indecency by Contact TEX. PENAL CODE §§ 21.11, Life imprisonment
(2nd degree felony) 12.42(b)
Enhancing Offense (2000)
Aggravated Sexual Assault TEX. PENAL CODE § 22.021(a)(1)
(2nd degree felony)

Applicant appealed to the Sixth Court of Appeals, arguing that the evidence was

legally insufficient and that the State failed to give proper notice of its intent to enhance

his punishments with a prior felony conviction.1 The court overruled both points of error,

and Applicant did not file a petition for discretionary review in either case. Because the

facts pertaining to the offenses are not necessary to the resolution of this case, we do not

1
The court of appeals issued an opinion in each case. Hill v. State, No. 06-12-
00094-CR, 2013 WL 69239, at *1 (Tex. App.—Texarkana Jan. 8, 2013, no pet.) (mem.
op., not designated for publication) (indecency with a child by contact); Hill v. State, No.
06-12-00095-CR, 2013 WL 69248, at *3 (Tex. App.—Texarkana Jan. 8, 2013, no pet.)
(mem. op., not designated for publication) (sexual assault of a child).
 Hill–4

discuss them.

II. LACHES

The purpose of the laches doctrine is “to consider whether an applicant has slept

on his rights and, if he has, how that has affected the State, and whether, in light of the

delay, it is fair and just to grant him relief.” Ex parte Perez, 398 S.W.3d 206, 218–19

(Tex. Crim. App. 2013). If laches applies, we will not consider an applicant’s claims and

will deny relief. Ex parte Saenz, 491 S.W.3d 819, 826 (Tex. Crim. App. 2016). Laches

does not apply when,

• an applicant’s delay was not unreasonable because it was due to a
justifiable excuse or excusable neglect;

• the State would not be materially prejudiced as a result of the delay;
or

• the applicant is entitled to equitable relief for other compelling
reasons, such as new evidence that shows he is actually innocent of
the offense or, in some cases, that he is reasonably likely to prevail
on the merits.

Perez, 398 S.W.3d at 218. When determining whether laches applies, we examine each

case on its own facts, considering the totality of the circumstances. Id. at 216.

a. Challenging the Enhancing Conviction

According to postconviction counsel, he was hired about six months after

Applicant’s enhanced life sentences were affirmed on direct appeal, and he immediately

began investigating the enhancing conviction. In September 2014, Applicant filed his

initial habeas application. Postconviction counsel filed a “bare bones” application in
 Hill–5

which he sought and obtained access to the Dallas County District Attorney’s work

product.2 (Counsel claimed that the district attorney at the time required a court order

before allowing defense counsel to examine the State’s trial work product as part of a

postconviction investigation.) According to counsel, he discovered evidence of a Brady

violation and ineffective assistance of counsel, and he began collecting records to support

those claims. He also asserts that he was finally able to locate the victim in November

2014 and that she signed an affidavit recanting her allegations. Counsel subsequently

asked this Court to dismiss the application for further investigation. We dismissed the

application in April 2015.3

In December 2015, Applicant filed a second habeas application in which he argued

that he was actually innocent based on the victim’s recantation. Approximately six weeks

after the application was filed, the Dallas County District Attorney’s Office’s Conviction

Integrity Unit (Unit) contacted counsel and offered to review Applicant’s case. Applicant

agreed and asked this Court to dismiss his second application, which we did in June 2016.

2
Applicant alleged in his application that,

Over the last few years, there has been an alarming number of cases in Dallas
County where suppression of exculpatory evidence by prosecutors or law
enforcement agents has been discovered. These cases predated the current District
Attorney’s administration. Based on this, there is a reasonable possibility that a
review of the prosecutor’s file will reveal exculpatory evidence not turned over to
the defense. The exculpatory evidence found in the previous cases was in the
prosecutors work-product so a review of the work-product is necessary.
3
We actually dismissed his habeas application because he had discharged his five-year
sentence for the enhancement offense.
 Hill–6

In September 2016, Applicant filed a third habeas application, arguing (1) that he

was actually innocent based on the postconviction recantation, (2) that he was entitled to a

new trial because the State failed to disclose the victim’s pretrial recantation, and (3) that

his guilty plea was involuntary because he would not have pled guilty had the pretrial

recantation been disclosed. In December 2016, we remanded the case for an evidentiary

hearing, and while the case was on remand, the victim recanted her postconviction

recantation from November 2014. Applicant subsequently filed an amended habeas

application in which he abandoned the actual-innocence claim based on the

postconviction recantation. He continued to advance, however, the Brady and

involuntary-plea claims based on the suppressed pretrial recantation. He also added two

additional claims: (1) ineffective-assistance-of-counsel claim based on trial counsel’s

failure to obtain the medical records documenting the pretrial recantation4 and (2) another

Brady allegation based on the State’s failure to disclose that the victim lied to police on

4
Applicant alleged that his,

counsel failed to investigate [his] case by failing to obtain the complainant’s
available medical records, [Applicant] requested that counsel obtain the
complainant’s medical records. The medical records were available and contained
exculpatory evidence regarding the complainant’s recantation of her allegations
against [Applicant]. Had [Applicant] been aware of the recantation he would not
have entered a plea of guilty and instead would have insisted upon going to trial.
Trial counsel’s failure to request the medical records in this matter fell below an
objective standard of reasonableness and [Applicant] was prejudiced by trial
counsel’s deficient performance.
 Hill–7

multiple occasions.5 Over one year after we remanded the case, the habeas court returned

the record to this Court in March 2018. The habeas court recommended that we grant

relief on Applicant’s involuntary-plea claim in light of the Brady violations. We did so in

May 2018 and set aside Applicant’s enhancing conviction.

b. Challenging The Primary Offenses

In November 2018, postconviction counsel filed two writ applications, one for

each conviction, arguing that his enhanced life sentences are illegal and that he received

ineffective assistance of counsel because, among other things, trial counsel failed to

investigate the validity of the enhancement conviction from 2000. In June 2019, we

remanded the case again. In our order, we agreed that Applicant’s failure to object at trial

did not forfeit his illegal-sentence claims and that his enhanced life sentences are now

known to be illegal, but we remanded the case one more time to determine whether

Applicant’s illegal sentences harmed him. Ex parte Hill, Nos. WR-83,074-04 & WR-

83,074-05, 2019 WL 2607173, *1 (Tex. Crim. App. June 26, 2019) (per curiam) (not

5
In the amended application, Applicant cited the pretrial recantation and additionally
alleged that,

Additionally, a report from the Dallas Police Department indicates that the
complainant lied to police about having washed the sheets after the incident and
lied about the [Applicant]’s whereabouts during the initial report to law
enforcement. Evidence regarding the complainant’s credibility is exculpatory. The
report was in the possession of the Dallas Police Department, the investigating
agency and State’s agent for purposes of Brady v. Maryland. Yet, the report was
not disclosed to Applicant. Applicant would not have entered a guilty plea if he
had known of the recantation and evidence of complainant’s lies to law
enforcement.
 Hill–8

designated for publication) (citing Parrott, 396 S.W.3d at 533).

The habeas court found that Applicant’s indecency-with-a-child sentence could

still be enhanced into the first-degree felony punishment range using a prior second-

degree felony theft conviction but that Applicant’s sexual-assault-of-a-child sentence

could no longer be enhanced to automatic life imprisonment. It could only be punished as

a first-degree felony. After the record was returned to this Court, we filed and set

Applicant’s application for submission.

c. Analysis

The parties agree that Applicant has timely raised his illegal-sentence claims. The

State argues, however, that we should nonetheless apply laches because of Applicant’s

years of delay in seeking to have his enhancement conviction set aside. Applicant

responds that his delay in challenging that conviction is no longer the issue because this

Court has already overturned that conviction without mentioning laches. The only issue

now, Applicant contends, is whether his illegal-sentence claims were timely raised.

We agree with Applicant. While we have said that all equities of the case should

be considered, the equities of this case weigh in favor of not applying laches to

Applicant’s illegal-sentence claims. Perez, 398 S.W.3d at 217. The appropriate time to

apply laches because of Applicant’s delay in challenging his enhancement conviction was

before we reached the merits of his claims and set it aside, not now when Applicant is

raising different claims less than six months after they became available challenging
 Hill–9

sentences that he has never challenged. Further, even if Applicant had unreasonably

delayed seeking relief from his enhanced sentences, there is no record evidence to support

that the State would be materially prejudiced as the result of Applicant’s six-month delay.

Id. Also, there is no evidence that memories have faded or evidence has been lost or is

otherwise unavailable because of the passage of six months’ time. Id. at 216 (stating that

diminished memories and diminished availability of State’s evidence often occurs beyond

five years after a conviction becomes final) (citing In re Steptoe, 132 S.W.3d 434, 437–39

(Tex. Crim. App. 2004) (per curiam) (Cochran, J., dissenting); McCray v. Florida, 699

So.2d 1366,1368 (Fla. 1997)).

The State contends that it “will be left to argue [at resentencing] for a sentence

between five years to ninety-nine years or life for a now thirteen year old offense and

have only a theft conviction and a state jail conviction to present in punishment.” It is true

that Applicant’s sexual-assault-of-a-child sentence cannot be enhanced to automatic life

imprisonment based on his actual criminal history, but if that controlled the laches

inquiry, laches would apply to all illegal-sentence claims no matter how short the delay in

challenging the sentences if the applicant’s actual criminal history did not support the

enhanced punishment range. That reasoning subverts the proper scope of the laches

inquiry,6 and it is at odds with Parrott, 396 S.W.3d at 536, in which we held that an

applicant can show harm from an illegal sentence by showing that he has no other

6
The State’s argument is akin to saying that laches should apply because the State would
be harmed if Applicant is resentenced based on his actual criminal history.
 Hill–10

conviction to support the punishment range within which he was sentenced.7 If the State

is correct, Parrott and its progeny are meaningless because no applicant harmed by an

illegal sentence could ever prove harm. Laches would prevent consideration of the claim.

After reviewing the parties’ arguments and the entire record in this case, we conclude that

the totality of the circumstances weigh in favor of not applying laches to Applicant’s

illegal-sentence claims.

III. ILLEGAL SENTENCE CLAIMS

The next issues are whether Applicant forfeited his illegal-sentence claims when

he failed to object at trial, and if not, whether his sentences are illegal. To resolve those

issues, we must first review two different, but closely related, lines of cases because both

parties rely on them in their briefs: illegal-sentence claims based on invalid enhancements

(Rich) and invalid-enhancement claims (Hill, White, and Patterson). We begin with the

former.

a. Precedent

1. Illegal Sentence Claims

In Rich, the applicant pled guilty to felony driving while intoxicated (DWI) and

was sentenced based on two enhancements to a term of 25 years’ confinement pursuant to

7
Id.; see, e.g., Ex parte Rodgers, 598 S.W.3d 262 (Tex. Crim. App. 2020) (denying relief
on an illegal-sentence claim because applicant was not harmed under Parrott; not applying
laches); Ex parte Thompson, No. WR-85,274-01, 2016 WL 4938348 (Tex. Crim. App. Sept. 14,
2016) (per curiam) (not designated for publication) (granting relief on an illegal-sentence claim
under Parrott because applicant did not have another conviction that would support the
punishment range in which he was sentenced; not applying laches).
 Hill–11

a plea bargain. Rich, 194 S.W.3d at 510 (citing TEX. PENAL CODE 12.42(d) (providing for

an enhanced punishment range of between twenty-five to ninety-nine years’

confinement)). The applicant did not appeal. Id. at 509. He argued for the first time in his

initial writ application that his sentence was illegal because one of his enhancing

convictions had been reduced to a misdemeanor. Id. at 510. We held that his illegal-

sentence claim was not forfeited, explaining that we have long allowed such claims to be

raised for the first time postconviction and that the appellate record did not reveal the

problem with the applicant’s sentence. Id. at 513. We further explained that, when

deciding whether a sentence is illegal, the issue is “the legality of the punishment as it

now stands” even though the trial court’s reasoning and determination might have been

correct according to the facts before it at the time of sentencing, and that the applicant’s

sentence was illegal because it exceeded the maximum term of confinement by five years.

Id. at 512 In addressing harm, we noted that the applicant’s actual criminal history did not

support the enhanced punishment range within which he was sentenced, and there was a

great disparity between the 25-year sentence he received and “the possible sentences

within the proper range of punishment.” Id. at 510, 514. His sentence was “more than ten

times the minimum, and five years more than the maximum . . . .” Id. at 512–13.

2. Improper Enhancement Claims

In Hill, the appellant was convicted of felony theft and his punishment was

enhanced by two prior felony convictions. Hill v. State, 633 S.W.2d 520, 520 (Tex. Crim.
 Hill–12

App. [Panel Op.] 1981). He subsequently appealed his theft conviction and filed a writ of

habeas corpus. Id. On appeal, he argued that the his theft conviction should be reversed

because one of the enhancement convictions was defective. Id. at 523 (op. on reh’g). On

writ, he argued that the same enhancement was void because his counsel was not present

when he was sentenced. Id. Notably, the applicant never argued that his sentence was

illegal, only that one of the enhancements was improper. In a consolidated opinion, we

granted relief and set aside his enhancing conviction, reversed his conviction for the

primary offense, and remanded the case for a new trial. Id. at 520. On rehearing, however,

we reversed course and held that a defendant cannot raise for the first time on direct

appeal an improper-enhancement claim unless he objected at trial. Id. at 525 (op. on

reh’g); but see Ex parte Cashman, 671 S.W.2d 510, 513 (Tex. Crim. App. 1983) (Clinton,

J., dissenting) (“Hill’s principal vice lies in the breadth of its stated holding.”). We

reasoned that, when it comes to improper-enhancement claims, “[i]f an objection is timely

lodged on proper grounds, the trial court can finally determine, at trial, whether the prior

conviction was permissibly obtained and whether it is admissible as evidence.” Hill, 633

S.W.3d at 525.

In Ex parte White, 659 S.W.2d 434 (Tex. Crim. App. 1983), we recognized an

exception to the Hill improper-enhancement, contemporaneous-objection rule: it did not

apply when an invalid enhancement rendered the indictment or information void because

the trial court never acquired jurisdiction. Id. at 435. A few years later, however, we held
 Hill–13

in Patterson that White was abrogated by the combination of a constitutional amendment

to Section 12(b) of Article V of the Texas Constitution and an amendment to Article

1.14(b) of the Texas Code of Criminal Procedure.8 Patterson, 969 S.W.2d at 19 (op. on

reh’g). The constitutional amendment substantially broadened what constitutes an

indictment or information, requiring only that the instrument “charg[e] a person with the

commission of an offense,” and Article 1.14(b) of the Texas Code of Criminal Procedure

was amended to provide that a defendant waives any procedural or substantive defect in

an indictment or information unless he objects before the trial on the merits commences.9

Id. at 19, 20; see TEX. CODE CRIM. PROC. art. 1.14(b). We concluded that the applicant in

Patterson was not entitled to relief because, even though the indictment was voidable, he

failed to object at trial. Patterson, 969 S.W.2d at 20 (op. on reh’g).

b. Applicant Did Not Forfeit His Illegal Sentence Claims

The State argues that our improper-enhancement cases control the outcome of the

8
Article 1.14(b) states that,

If the defendant does not object to a defect, error, or irregularity of form or
substance in an indictment or information before the date on which the trial on the
merits commences, he waives and forfeits the right to object to the defect, error, or
irregularity and he may not raise the objection on appeal or in any other
postconviction proceeding. Nothing in this article prohibits a trial court from
requiring that an objection to an indictment or information be made at an earlier
time in compliance with Article 28.01 of this code.

TEX. CODE CRIM. PROC. art. 1.14(b).
9
To determine if an instrument is an indictment, we look to the face of the charging
instrument to determine if it is clear enough to give a defendant adequate notice of the charge
against him. Jenkins v. State, 592 S.W.3d 894, 901 (Tex. Crim. App. 2018).
 Hill–14

preservation issue, specifically Patterson, and that Applicant forfeited his illegal-sentence

claims because he failed to object at trial. It also argues that Rich is distinguishable

because the applicant’s sentence in that case was illegal when it was imposed. Applicant

responds that Rich controls and that, in granting relief, this Court never mentioned the

fact that the applicant’s sentence was illegal when it was imposed. Rather, it relied on a

determination of the legality of the sentence postconviction. He further contends that, if

Rich does not control, we should overrule Hill and its progeny. He asserts that no judge

can “finally determine” at trial whether a conviction was “permissibly obtained” and that,

even if it could do so, that would encroach on this Court’s sole authority to grant

postconviction habeas relief. See TEX. CODE CRIM. PROC. Chp. 11; see Cashman, 671

S.W.2d at 513 (Clinton, J., dissenting).

Just last year, this Court reaffirmed that “a claim of illegal sentence based upon an

invalid enhancement is cognizable in post-conviction habeas corpus proceedings . . . .”

Rodgers, 598 S.W.3d at 267 (citing Parrott, 396 S.W.3d at 538); Ex parte Pue, 552

S.W.3d 226, 228 n.7 (Tex. Crim. App. 2018) (same). Additionally, our research shows

that, although we have routinely followed Rich, we have not mentioned Hill or any of our

improper-enhancement cases in those decisions, nor have we have referred to our illegal-

sentence jurisprudence in our Hill line of cases. In fact, it appears that this Court has not

relied on Hill or its progeny in the 23 years since Patterson was decided.10 Specific to this

10
In Burg v. State, 592 S.W.3d 444, 449 (Tex. Crim. App. 2020), and without reference to
Hill or its progeny, we stated that Rule 33.1 of the Texas Rules of Appellate Procedure governing
 Hill–15

case, we also note that the illegality of Applicant’s sentence, like the illegality of the

applicant’s sentence in Rich, was not ascertainable from the appellate record, becoming

apparent only years later when this Court overturned his enhancement conviction on

involuntary-plea grounds due to a Brady violation. Rich, 194 S.W.3d at 510. The

foregoing leads to the following two conclusions: Rich controls Applicant’s illegal-

sentence claims based on an improper enhancement, and we need not overrule Hill and its

progeny because they do not apply to illegal-sentence claims based on an improper

enhancement.

c. The Vacature of an Enhancement Conviction Can Render
the Sentence for the Primary Offense Illegal

Next, the State argues that, even if Applicant can bring his claims for the first time

on writ, his sentences are not illegal because, at the time he was sentenced, his enhancing

conviction had not yet been set aside. For support, it cites our decision in Ex parte

Jimenez, 361 S.W.3d 679 (Tex. Crim. App. 2012). We disagree that Jimenez applies. In

that case, the applicant was convicted of felon in possession of a firearm. Id. at 680.

Later, this Court set aside the felony conviction relied on by the State. Id. at 681. The

applicant then filed an application for a writ of habeas corpus and argued that his felon-

in-possession-of-a-firearm conviction was void because the State could no longer prove

error preservation “does not bar review of a claim that a sentence is illegal due to the fact
that it is outside the maximum or minimum range of punishment.” Burg v. State, 592
S.W.3d 444, 449 (Tex. Crim. App. 2020). It appears that this holding would be in direct
contradiction to Hill, if Hill applied to illegal-sentence claims.
 Hill–16

that he was a convicted felon when he possessed the firearm. Id. We held that the

conviction was not void because the State was required to prove that the applicant was a

convicted felon when he possessed the firearm and that it had no continuing duty to be

able to prove each essential element of the offense in perpetuity. Id. at 684. Rich, on the

other hand is directly on point, and it states that when dealing with an illegal-sentence

claim based on an improper enhancement, we determine “the legality of the punishment

as it now stands,” not as it stood at some other time. Rich, 194 S.W.3d at 512.

d. Applicant’s Sentences Are Now Known To Be Illegal

“A sentence that is outside the maximum or minimum range of punishment is

unauthorized by law and therefore illegal.” Rodgers, 598 S.W.3d at 267 (citing Mizell v.

State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003)). To determine if a sentence exceeds

the maximum or minimum range of punishment authorized by law, we compare the

enhanced sentence that an applicant received to the range of punishment in which the

applicant would have been sentenced without the improper enhancement. Parrott, 396

S.W.3d at 533; Rich, 194 S.W.3d at 510–12. If the enhanced sentence is outside that

range of punishment, the sentence is illegal. Rodgers, 598 S.W.3d at 267 (citing Mizell,

119 S.W.3d at 806).

Here, both of Applicant’s sentences are illegal because they exceed the maximum

possible terms of confinement for a second-degree felony. Sexual assault of a child and

indecency with a child by contact as alleged in this case are second-degree felonies. TEX.
 Hill–17

PENAL CODE §§ 22.011(f), 21.11(d). A second-degree felony carries a range of

confinement between two and twenty years. Id. § 12.33(a). Based on an enhancement,

Applicant was automatically sentenced to life imprisonment for sexual assault of a child

and was sentenced by the jury to life imprisonment for indecency with a child by contact.

Id. §§ 12.42(b); 12.42(c)(2). Applicant’s life sentences are illegal because they exceed

what he could have received from the jury without the enhancement—a maximum of

twenty years’ confinement. Id. § 12.33.

e. Applicant Was Harmed by His Sexual Assault of a Child Illegal Sentence But
Not His Indecency with a Child Illegal Sentence

1. Sexual Assault of a Child

We recognized in Parrott that an applicant is not harmed by an illegal sentence if

his actual criminal history supports the range of punishment in which he was sentenced.

Parrott, 396 S.W.3d at 537. The State and Applicant agree that Applicant was harmed by

his automatic life sentence for sexual assault of a child. The State argues that, at most,

Applicant’s punishment could have been enhanced into the first-degree felony

punishment range, and even though that range includes life as a term of punishment, the

possibility of a life sentence and an automatic life sentence are not the same “punishment

range” for purposes of an illegal-sentence analysis.11 We agree. Section 12.42(c)(2) is a

11
The State also argues that, if we find that Applicant’s sentences are illegal, he was
probably harmed under Alleyne v. United States, 570 U.S. 99 (2013) because the enhancement
increased the minimum punishment. While the enhancement did increase the minimum
punishment, Alleyne dealt with the federal sentencing guidelines and whether enhancements are
considered fact issues to be submitted to the jury under the Sixth and Fourteenth amendments. Id.
 Hill–18

special enhancement provision that does not enhance a defendant’s sentence into a

punishment range. TEX. PENAL CODE § 12.42(c)(2). Rather, it fixes the punishment by

law at automatic life imprisonment and deprives an applicant from being sentenced by a

jury of his peers, which would have been able to consider the full range of punishment.12

Further, we note that “[a]n inmate serving a sentence under Section 12.42(c)(2), Penal

Code, is not eligible for release on parole until the actual calendar time the inmate has

served, without consideration of good conduct time, equals 35 calendar years,” but “a

defendant is eligible for parole in 15 years when assessed an “ordinary” life sentence.

TEX. GOV’T CODE §§ 508.145(c), 508.145(f). This is sufficient to show Parrott harm

because Applicant’s actual criminal history cannot support the automatic life sentence he

received under Section 12.42(c)(2); Parrott, 396 S.W.3d at 537.

2. Indecency with a Child

Applicant argues that whether he was harmed by his illegal indecency-with-a-child

sentence is more complicated. It is undisputed that Applicant cannot show Parrott harm

because his actual criminal history supports the first-degree felony punishment range in

which he was sentenced. But Applicant argues that he was nonetheless harmed because

at 111–12. This case is about illegal sentences under state law, not federal law. Further, the
sexual-assault conviction was submitted to the jury has a fact issue, and the jury found it true.
12
If Applicant had been sentenced for a first-degree felony, he could have been
sentenced to as little as five years’ confinement. TEX. PENAL CODE § 12.32; see Rich, 193
S.W.3d at 514 n.12 (noting the great disparity between the applicant’s twenty-five year
sentence and the punishment range within which he should have been sentenced of two to
twenty years’ confinement).
 Hill–19

the “replacement” conviction was for a dissimilar, less reprehensible offense—felony

theft—and he points out that the State heavily relied on the sexual nature of his

aggravated-sexual assault enhancement during closing arguments, asking the jury to give

him the maximum terms of confinement because he was a serial sex offender. The State

argued,

Why is the State asking for two life sentences? Is that a lot? Yeah, it’s a lot.
Sure. It’s a lot, and it’s not asked for lightly. But please think about the
circumstances of this case when you decide the punishment. This man was
in prison for aggravated sexual assault of a child under 14, a 12 year-old,
his niece. He goes to prison for it, pleads guilty, goes to prison, gets
released, is a registered sex offender and then molests his daughter, twice.
You’ve convicted him of it. Two lives irreparably changed by one
defendant. What’s the value of that? You have to decide the value of what’s
happened to these kids.

Applicant also directs us to Tyrone v. State, 854 S.W.2d 153, 160 (Tex. App.—Fort

Worth 1993, pet. ref’d) for support, asserting that the court of appeals found that

extraneous offenses erroneously admitted at punishment were harmful because “the

evidence . . . implicated that appellant committed numerous previous offenses which were

sufficiently similar in detail to the sexual abuse for which appellant was convicted,” and

the State emphasized the previous convictions at the punishment hearing. Id. at 160.

Applicant further argues that the jury was influenced to assess a life sentence for

indecency with a child because it knew that Applicant would be automatically sentenced

to life imprisonment for sexual assault of a child if it found the enhancement true, which

it did.
 Hill–20

We conclude that Parrott controls. The harm associated with an illegal sentence

turns on only whether an applicant’s sentence is within the range set by law, and here,

Applicant cannot show that he was harmed by his illegal sentence for indecency with a

child because his actual criminal history supports the first-degree felony punishment

range in which he was sentenced.

IV. CONCLUSION

Applicant is not entitled to a new punishment hearing on his conviction for

indecency with a child, but he is entitled to a new punishment hearing on his conviction

for aggravated sexual assault of a child, and we remand this cause for that purpose.

Delivered: October 20, 2021

Publish