Antonio Lee Grey v. the State of Texas
Docket 04-25-00079-CR
Court of record · Indexed in NoticeRegistry archive · AI-enriched for research
- Filed
- Jurisdiction
- Texas
- Court
- Texas Court of Appeals, 4th District (San Antonio)
- Type
- Lead Opinion
- Case type
- Criminal Appeal
- Disposition
- Affirmed in Part, Reversed in Part
- Docket
- 04-25-00079-CR
Appeal from a revocation of deferred adjudication and subsequent adjudication of guilt and punishment in a criminal prosecution
Summary
The court reviewed Antonio Lee Grey’s appeal after the trial court revoked his community supervision, adjudicated him guilty of attempted assault of a family/household member with a prior conviction, and sentenced him to four years’ imprisonment. The State conceded the sentence was illegal because attempted assault (as an attempt to a third-degree felony) is a state jail felony with a statutory maximum of two years. The court held the sentence exceeded the authorized range, reversed the punishment portion of the judgment, remanded for a new punishment hearing within the proper statutory range, and otherwise affirmed the conviction.
Issues Decided
- Whether the four-year prison sentence imposed after adjudication was within the lawful statutory punishment range for attempted assault of a family/household member with a prior conviction.
- Whether the appropriate remedy for an unauthorized sentence after a plea of nolo contendere is to leave the guilt finding intact and remand for a new punishment hearing.
Court's Reasoning
The court applied statutes that treat an attempted offense as one category lower than the completed offense, making attempted assault with a prior conviction a state jail felony with a maximum of two years. Because Grey received four years, his sentence exceeded the statutory maximum and was therefore unauthorized. Precedent requires that when punishment is unauthorized following a plea without a plea bargain, the conviction remains and the case is remanded for a proper punishment hearing within the statutory range.
Authorities Cited
- Texas Penal Code § 15.01(d)
- Texas Penal Code § 22.01(b)(2)(A)
- Texas Penal Code § 12.35(a)
- Mizell v. State119 S.W.3d 804 (Tex. Crim. App. 2003)
- Ex parte Rich194 S.W.3d 508 (Tex. Crim. App. 2006)
- Levy v. State818 S.W.2d 801 (Tex. Crim. App. 1991)
Parties
- Appellant
- Antonio Lee Grey
- Appellee
- The State of Texas
- Judge
- Benjamin Robertson
- Judge
- Adrian A. Spears II
Key Dates
- Offense plea/deferred adjudication
- 2021-06-14
- State's motion to adjudicate filed
- 2024-08-27
- Trial court adjudication and sentence
- 2025-01-28
- Court of Appeals decision filed
- 2026-04-15
What You Should Do Next
- 1
Prepare for new punishment hearing
Defense counsel should review mitigation evidence and present arguments aimed at a sentence within the state jail felony range; the prosecutor should prepare aggravating evidence if seeking a higher sentence within that range.
- 2
Confirm procedural scheduling
Contact the trial court clerk to obtain the date and requirements for the remanded punishment hearing and ensure timely filings or motions are submitted.
- 3
Consider post-judgment motions
Either party may evaluate whether to file a motion for rehearing in the appellate court or other post-judgment relief consistent with appellate rules.
Frequently Asked Questions
- What did the appeals court decide?
- The court found Grey’s four-year sentence was illegal because attempted assault with a prior conviction is a state jail felony with a two-year maximum, so it reversed the punishment portion of the judgment and remanded for a new punishment hearing.
- Does this change the finding of guilt?
- No. The court left the adjudication of guilt intact and only reversed the portion imposing punishment.
- Who is affected by the decision?
- Antonio Lee Grey is directly affected; the trial court must hold a new sentencing hearing within the correct statutory range. The decision also reinforces how attempted offenses are categorized for sentencing in similar cases.
- What will happen at the new punishment hearing?
- The trial court will reassess punishment but must impose a sentence within the state jail felony range (not more than two years). The court may consider the same evidence and recommendations presented previously.
- Can the State or Grey appeal this decision?
- The opinion does not address further appeals, but either party could seek rehearing or pursue further appellate review if authorized by law.
The above suggestions and answers are AI-generated for informational purposes only. They may contain errors. NoticeRegistry assumes no responsibility for their accuracy. Consult a qualified attorney before relying on them.
Full Filing Text
Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-25-00079-CR
Antonio Lee GREY,
Appellant
v.
The STATE of Texas,
Appellee
From the 226th Judicial District Court, Bexar County, Texas
Trial Court No. 2021CR0075
Honorable Benjamin Robertson, Judge Presiding
Opinion by: Adrian A. Spears II, Justice
Sitting: Lori I. Valenzuela, Justice
Adrian A. Spears II, Justice
H. Todd McCray, Justice
Delivered and Filed: April 15, 2026
AFFIRMED IN PART; REVERSED IN PART
On June 14, 2021, after pleading nolo contendere to having committed attempted assault
of a family/household member with a previous conviction, Antonio Lee Grey was placed on
deferred adjudication community supervision for a period of four years. On August 27, 2024, the
State filed a motion to enter adjudication of guilt and revoke community supervision. At the
revocation hearing, Grey pled true to having violated a condition of his community supervision.
04-25-00079-CR
On January 28, 2025, the trial court granted the State’s motion to revoke, adjudicated Grey guilty,
and sentenced Grey to four years of imprisonment. Grey appealed.
In his brief, Grey argues that his sentence is illegal because it is outside the maximum
punishment range for a state jail felony. Thus, Grey prays that we reverse his sentence and remand
for re-sentencing within the statutory range for the offense of attempted assault of a family/
household member with a previous conviction. In its brief, the State concedes that Grey’s sentence
is illegal. The State explains that while, traditionally, assault of a family/household member with
a previous conviction is a third-degree felony, attempted assault of a family/household member
with a previous conviction is a state jail felony, which has a maximum punishment of two years’
confinement. See TEX. PENAL CODE § 15.01(d) (providing that an offense alleging criminal attempt
is “one category lower than the offense attempted”); id. § 22.01(b)(2)(A) (providing that assault
of a family/household member with a previous conviction is a felony of the third degree); see also
id. § 12.35 (a) (providing for range of punishment for state jail felony to be “confinement in a state
jail for any term of not more than two years or less than 180 days”). Thus, the State agrees this
cause should be remanded for a new punishment hearing.
“A sentence that is outside the maximum or minimum range of punishment is unauthorized
by law and therefore illegal.” Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003). “When
an appellate court finds error at the punishment stage of the trial, the case may be remanded to the
trial court for the proper assessment of punishment.” Ex parte Rich, 194 S.W.3d 508, 514 (Tex.
Crim. App. 2006) (citing Levy v. State, 818 S.W.2d 801, 803 (Tex. Crim. App. 1991)). “In cases
in which a defendant enters a plea of guilty or nolo contendere without the benefit of a plea bargain
and the trial judge assesses a punishment not authorized by law, the appropriate remedy is to allow
the finding of guilt to remain and to remand the case for a new punishment hearing.” Id. (citing
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04-25-00079-CR
Levy, 818 S.W.2d at 803); see also Adair v. State, 673 S.W.3d 348, 350 (Tex. App.—Corpus
Christi-Edinburg 2023, no pet.) (holding that appellant’s sentence was illegal because it was
outside the range of punishment, and remanding the cause for a new punishment hearing within
the statutory range). We conclude Grey’s sentence is illegal because it exceeds the statutory range
for a state jail felony. We therefore reverse the trial court’s judgment imposing punishment and
remand the cause for a new punishment hearing. In all other respects, we affirm the judgment of
the trial court.
Adrian A. Spears II, Justice
DO NOT PUBLISH
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