NO. 2444-01






Cochran, J., delivered the opinion of the Court in which Meyers, Price, Womack, Keasler, Hervey and Holcomb, JJ., joined. Johnson, J., filed a dissenting opinion. Keller, P.J., concurred in the result.


We granted Appellant's two grounds for review to address the question of whether the State may bring a cross-point in its appellate brief arguing that the defendant's sentence is illegal when the defendant appeals his conviction but the State does not file its own notice of appeal. (1) Because we hold that any court- trial or appellate- may notice, on its own, an illegal sentence and rectify that error, the State was not obligated to file a notice of appeal before the court of appeals could address that issue. We therefore affirm the decision of the court of appeals which concluded that defendant's sentence of a fine of "$0" was not a valid sentence. (2)


Appellant, a Bexar County Sheriff's officer, was charged, in a two-count indictment, with violation of an inmate's civil rights and official oppression. A jury found him guilty of both offenses. The jury assessed a fine of $2,000 on the civil rights violation and "$0"- the equivalent of no punishment-for the official oppression offense. Appellant filed a notice of appeal for both convictions and raised four distinct claims on appeal. The State, after responding to appellant's points of error in its brief, brought what it called a cross-point of error, pointing out the fact that appellant's sentence of a fine of "$0" on the official oppression charge was not within the statutory punishment range.

The Court of Appeals addressed and rejected all of appellant's claims and agreed with the State's position on the cross-point. It stated that:

Official oppression is a Class A misdemeanor. Tex. Penal Code Ann. 39.03(d) (Vernon 1994). The Texas Penal Code requires that a person found guilty of a Class A misdemeanor be punished by: "(1) a fine not to exceed $4,000; (2) confinement in jail for a term not to exceed one year; (3) or both such fine and confinement." Id. 12.21.

The jury found Mizell guilty of official oppression but assessed no punishment. Therefore, punishment on this charge was not within the prescribed statutory range. Sentences below the statutory minimum are void. (3)

The court of appeals sustained the State's cross-point, "vacate[d] the sentence imposed for count two, and remand[ed] to the trial court for a new sentencing hearing on count two." (4)


Appellant contends that, by failing to file its own notice of appeal, "the State failed to invoke the appellate court's jurisdiction of its claim that Mr. Mizell's sentence was illegal- whether such appeal was brought pursuant to Tex. Code Crim. Proc. Art. 44.01(b) or (c)." (5) Appellant therefore asks this Court to reimpose an illegal sentence- a sentence that has no legal effect- because the State failed to file a notice of appeal. This we cannot do. Appellant appealed his convictions and therefore the court of appeals had jurisdiction over the two cases. A trial or appellate court which otherwise has jurisdiction over a criminal conviction may always notice and correct an illegal sentence. (6)

A sentence that is outside the maximum or minimum range of punishment is unauthorized by law and therefore illegal. (7) A defendant may obtain relief from an unauthorized sentence on direct appeal or by a writ of habeas corpus. (8) Traditionally, the State could seek mandamus relief to rectify an illegal or unauthorized sentence. (9) In these instances, the State could even seek a resentencing by filing a motion to reopen punishment in the trial court, long after that court had lost plenary jurisdiction over the case. (10) There has never been anything in Texas law that prevented any court with jurisdiction over a criminal case from noticing and correcting an illegal sentence.

In 1987, the State obtained a limited right to appeal certain trial court orders and rulings when the Texas Legislature enacted article 44.01 of the Code of Criminal Procedure. (11) One of the orders or rulings that the State may appeal is an illegal sentence. (12) For example, if a jury or trial court imposes a sentence of 30 days in jail after convicting a defendant of murder, the State may appeal that sentence because it is below the statutory minimum of five years imprisonment. (13) The defendant, happy with the ultimate outcome in the case, is willing to quietly forego his right of appeal and serve his illegal sentence. (14) If the State wishes to appeal that sentence, it must timely file a notice of appeal to invoke the jurisdiction of the appellate courts. (15) Thus, under article 44.01(b), it is the State which initiates an appeal "on the ground that the sentence is illegal," (16) and it must properly invoke the jurisdiction of the appellate court, even though the defendant has not done so.

But that did not happen in this case. Here, appellant did appeal his two convictions and thus the appellate court had jurisdiction over the cases. Once an appellate court has jurisdiction over a particular case, it has "a broad scope of review and revision" over that case. (17) Even before the State obtained a statutory right to appeal an illegal sentence, the courts of this state could always take notice of an illegal sentence when the defendant appealed on any basis. (18) Article 44.01(b) has not done away with that ability or that duty, it has simply provided a statutory mechanism by which the State may initiate the appeal of an illegal sentence.

Because the State was not required to file a notice of appeal pursuant to article 44.01(b) before it could point out appellant's illegal sentence to the court of appeals, we need not today decide whether the State must file a notice of appeal before it raises a cross-point or cross-appeal under article 44.01(c). Therefore, we dismiss appellant's first ground for review as improvidently granted, and we affirm the decision of the court of appeals.

Cochran, J.

Delivered: November 5, 2003.


1. Specifically, we granted the following grounds for review: