Ex parte Brian L. Rinehart

Amarillo, TX - Criminal defense attorney represented Brian L. Rinehart with appealing the trial court's denial of his application for writ of habeas corpus relief filed under article 11.072 of the Texas Code of Criminal Procedure..

On August 3, 2017, as part of a plea bargain,2 appellant pled guilty to one count of

burglary of a building and true to allegations of two prior felony convictions. In accordance

with the terms of the plea bargain, the trial court found appellant guilty and sentenced him

to ten years' incarceration suspended for a period of ten years. Appellant did not timely

appeal this conviction or sentence.

Appellant filed an application for writ of habeas corpus on February 15, 2019, in

which he claimed, inter alia, that his charged offense carried a maximum sentence of five

years of community supervision and, therefore, the trial court's order placing appellant on

ten years' community supervision was illegal. The State initially agreed with appellant's

contention concerning the illegal sentence but denied other claims asserted by appellant.

By order dated February 28, 2019, the trial court denied appellant's application but found

the ten-year community supervision period was unlawful and ordered the period of

appellant's community supervision reformed to five years.

On May 21, 2020, appellant filed a second application for writ of habeas corpus

challenging the voluntariness of his plea due to the issue regarding the appropriateness

of the length of his sentence, the trial court's reforming the sentence without appellant's

agreement, the effectiveness of trial counsel in negotiating an "illegal sentence,” and the

2 While not fully established by the record, the State contends that this plea bargain was part of a

larger plea bargain involving a total of five cause numbers and that "the concessions achieved by defense

counsel in these cases greatly overshadowed the period of probation ordered by the trial court” in the

present case.

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trial court's order requiring appellant to repay appointed counsel's attorney's fees. By

order of June 8, the trial court denied the application on the "face of the application.” It is

from this order that appellant appeals.

Appellant presents three issues by his appeal. However, these issues contain

multiple arguments. By his first issue, appellant argues that his plea bargain was

involuntary because the sentence assessed was unlawful and the trial court's reformation

was made without appellant's agreement in violation of contract principles. Appellant's

second issue argues that the trial court abused its discretion by not allowing appellant to

withdraw his guilty plea after the sentence was established to be illegal, the trial court

cannot reform the plea agreement if the agreement was void, it was a violation of due

process not to require specific performance of the original plea agreement, and it was a

violation of due process to order appellant to repay appointed attorney's fees without first

holding a hearing on appellant's ability to pay these costs. By his third issue, appellant

argues that counsel at the plea hearing was ineffective because he negotiated an invalid

sentence and the trial court violated appellant's right to counsel by failing to appoint an

attorney to assist him in pursuing the instant habeas proceeding.

Validity of Initial Sentence

The issue underlying many of appellant's arguments is whether the ten-year period

of community supervision which was initially ordered was unlawful.3 Consequently, we

3 While appellant presents his argument in terms of the illegality of his ten-year community

supervision sentence, "community supervision is not a sentence or even a part of a sentence.” Speth v.

State, 6 S.W.3d 530, 532 (Tex. Crim. App. 1999) (en banc). However, under article 42A.053(d)(2)(B)(i) of

the Texas Code of Criminal Procedure, it would be invalid for a trial court to place a defendant on community

supervision for a period longer than five years following a conviction of a third-degree felony under Title 7

of the Texas Penal Code. TEX. CODE CRIM. PROC. ANN. art. 42A.053(d)(2)(B)(i) (West 2018).

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will begin by addressing the validity of appellant's initial ten-year period of community

supervision.

On August 3, 2017, the trial court entered judgment finding appellant guilty of the

state jail felony offense of burglary of a building.4 TEX. PENAL CODE ANN. § 30.02(c)(1)

(West 2019). However, the offense is punished as a third-degree felony when the

defendant has been twice convicted of prior state jail felonies. Id. § 12.425(a) (West

2019). This provision enhances the applicable punishment range for repeat and habitual

felony offenders but does not alter the level of the charged offense. Ford v. State, 334

S.W.3d 230, 234 (Tex. Crim. App. 2011). The applicable range of punishment for a thirddegree felony includes a term of imprisonment between two and ten years. TEX. PENAL

CODE ANN. § 12.34(a) (West 2019). Since appellant could be sentenced to a term of

imprisonment not to exceed ten years, the trial court was authorized to suspend his

sentence and order appellant to serve ten years of community supervision. TEX. CODE

CRIM. PROC. ANN. art. 42A.053(c)(1). Consequently, appellant was not charged with a

third-degree felony under Title 7 of the Penal Code and, therefore, the trial court was not

4 The judgment erroneously identified the degree of offense as a third-degree felony for the offense

of "burglary of building with 2 prior state jail convictions (enh).” The offense of burglary of a building other

than a habitation is a state jail felony. TEX. PENAL CODE ANN. § 30.02(c)(1). This Court has the power to

modify incorrect judgments to make the record speak the truth when we have the necessary information to

do so. See TEX. R. APP. P. 43.2(b); Ramirez v. State, 336 S.W.3d 846, 852 (Tex. App.—Amarillo 2011,

pet. ref'd) (citing Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993) (en banc)). Appellate courts

have the power to reform whatever the trial court could have corrected by a judgment nunc pro tunc where

the evidence necessary to correct the judgment appears in the record. Asberry v. State, 813 S.W.2d 526,

529 (Tex. App.—Dallas 1991, pet. ref'd). The power to reform a judgment is "not dependent upon the

request of any party, nor does it turn on the question of whether a party has or has not objected in the trial

court.” Id. at 529-30. This Court can reform an erroneous judgment even when the judgment comes before

us in the context of an appeal of a ruling on an application for writ of habeas corpus. See Ex parte Saldana,

No. 13-17-00462-CR, 2018 Tex. App. LEXIS 8274, at *20-21 (Tex. App.—Corpus Christi Oct. 11, 2018, no

pet.) (mem. op., not designated for publication) (modifying judgment in appeal from grant of habeas corpus

application to reflect the fine that was orally pronounced by the trial court). Because we conclude that the

underlying judgment erroneously identifies the burglary of a building offense as a third-degree felony, we

modify this judgment to reflect that the offense was a state jail felony.

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limited to a maximum period of community supervision of five years. See id. art.

42A.053(d)(2)(B)(i). We conclude that the original order placing appellant on community

supervision for a period of ten years was valid in a case involving a conviction for the

offense of burglary of a building other than a habitation enhanced by two prior state jail

felonies.

Our determination that the original imposition of a ten-year period of community

supervision is not invalid overrules certain of appellant's arguments that are premised on

his contention that the sentence is illegal. Appellant's contention that his plea was

involuntary because the term of probation was unlawful is overruled. Likewise,

appellant's contention that the trial court abused its discretion by not allowing appellant

to withdraw his plea due to the sentence being illegal is overruled. Also, appellant's

contention that the State should be obliged to specifically perform its agreement is

overruled because the State performed its duty by recommending a valid period of

community supervision. Finally, appellant's contention that trial counsel was ineffective

because counsel negotiated an illegal plea is overruled.

Reformation of the Sentence

Appellant asserted in his first application for writ of habeas corpus that the trial

court's order placing him on ten years' community supervision was illegal. In response

to appellant's application, the State initially conceded error in the sentencing. The trial

court entered an order on February 28, 2019, denying appellant's application for habeas

relief but reforming the ten-year community supervision period to five years.

Consequently, even though we have already determined that the ten-year community

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supervision period in this case is valid, we must assess whether appellant is entitled to

relief due to the trial court's reformation of appellant's sentence.

Clearly, this is an unusual situation in which the trial court, without a motion to

revoke, reduced the period of appellant's community supervision. Because of the unusual

nature of this situation, we have not found any case law regarding the propriety of the trial

court's action. Without surprise, the parties have not identified any case law applicable

to the current situation. Nonetheless, even were we to assume that the trial court erred

in reducing the period of appellant's community supervision, appellant has failed to

establish his entitlement to habeas corpus relief because he has not established that he

was harmed by the trial court's action. See Ex parte Parrott, 396 S.W.3d 531, 534 (Tex.

Crim. App. 2013) ("an applicant must show harm to obtain habeas relief . . . .”). Appellant

argues that he is harmed by the reduction in the duration of time he will be on community

supervision because it will deprive him of the opportunity to complete the terms and

conditions of his community supervision before the period expires. According to

appellant, this harm will occur because he is currently imprisoned and anticipates that he

will remain incarcerated until after the five-year period expires. However, appellant's

claim of harm is purely speculative. His argument is that, if he does not get released

relatively soon, he will be unable to complete his ordered services and then the trial court

will revoke his community supervision. However, this argument makes multiple

assumptions regarding future events about which there is no record evidence, including

that appellant will not be released in sufficient time to allow him to fully comply with his

community supervision terms and conditions, that the State will file a motion to revoke his

community supervision if he does not complete all terms and conditions, and that the trial

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court will revoke appellant's community supervision if he has not completed the terms

and conditions of his community supervision. Because the trial court could not grant

habeas corpus relief due to harm that may transpire in the future, we overrule appellant's

contention that the trial court erred in not granting habeas relief on the basis of the

reformation of his community supervision period to five years.

Appointment of Counsel

Appellant contends that it was error for the trial court not to appoint him counsel to

assist him in preparing his challenge to the reformed period of community supervision

because the reformation constitutes a critical stage of prosecution. The Sixth Amendment

to the United States Constitution guarantees that, in all criminal prosecutions, the accused

shall enjoy the right to have the assistance of counsel for his defense.5 U.S. CONST.

amend. VI. The right to counsel attaches "at all critical stages of prosecution . . . .”

Westbrook, 29 S.W.3d at 117. However, writs of habeas corpus have been expressly

determined not to constitute critical stages of a criminal case and, therefore, do not require

appointment of counsel. Ex parte Graves, 70 S.W.3d 103, 111 (Tex. Crim. App. 2002).

We are aware of the exception created by article 11.074(b) of the Code of Criminal

Procedure, but appellant does not meet any of the applicable conditions because the

State has not represented that appellant was not guilty, guilty only of a lesser-included

offense, or convicted of an offense that has been found unconstitutional by the United

States Supreme Court or the Texas Court of Criminal Appeals. See TEX. CODE CRIM.

PROC. ANN. art. 11.074(b) (West Supp. 2020). As such, we conclude that the trial court

5 This right of counsel is made applicable to state felony prosecutions by the Due Process Clause

of the Fourteenth Amendment. See Westbrook v. State, 29 S.W.3d 103, 117 (Tex. Crim. App. 2000) (citing

Gideon v. Wainwright, 372 U.S. 335, 344-45, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963)).

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did not violate appellant's due process rights when it failed to appoint him counsel to

assist him in filing his application for writ of habeas corpus.

Order Requiring Appellant to Pay for Court-Appointed Attorney's Fees

Finally, appellant contends that the trial court ordered him to repay court-appointed

attorney's fees without first determining his ability to pay those costs. See TEX. CODE

CRIM. PROC. ANN. art. 26.05(g) (West Supp. 2020). However, a review of the appellate

record reflects that the only place where any attorney's fee reimbursement is referenced

expressly is in a "Case Transaction Summary” attached to appellant's application.6

However, this summary is not certified or sworn. As such, the record does not reflect that

appellant was ordered to repay court-appointed attorney's fees in the underlying case at

all.7 Further, the record reflects that appellant did not file any sort of hearing records that

could establish that the trial court failed to hold a hearing on appellant's ability to pay

attorney's fees before ordering appellant to repay them if, in fact, it did order that they be

repaid. Consequently, the trial court did not have sufficient record evidence to allow it to

reform the judgment to remove any reimbursement of attorney's fees that may have been

ordered in the judgment and, clearly, this Court does not have sufficient evidence before

it to allow reformation to insure that "the record speak the truth.” See TEX. R. APP. P.

43.2(b); Ramirez, 336 S.W.3d at 852 (citing Bigley, 865 S.W.2d at 27-28). We overrule

6 The record contains a certified bill of costs that does order appellant to pay $550 as

reimbursement for court-appointed attorney's fees, but this bill of costs relates to trial court cause number

F46964, which was a conviction for possession of a controlled substance that was entered on the same

date as the underlying burglary of a building conviction. There is no certified or sworn order for appellant

to repay court-appointed attorney's fees in the underlying burglary case.

7 Because the appellate record in this case did not initially contain a certified copy of the underlying

judgment, this Court ordered the district clerk to file a supplemental clerk's record containing a certified

copy of the judgment. This supplemental clerk's record does not contain a bill of costs reflecting that

appellant was ordered to reimburse court-appointed attorney's fees.

appellant's contention that the trial court erred in failing to reform the original judgment to

remove any order that appellant repay court-appointed attorney's fees.

Having determined that the underlying judgment erroneously identifies the burglary

of a building offense as a third-degree felony, we modify this judgment to reflect that the offense was a state jail felony. We affirm the trial court’s order denying appellant’s application for habeas relief.