When Jimmy Joe Williams was convicted of aggravated assault, the trial judge suspended imposition of sentence and placed him on ten years' probation, despite his ineligibility for probation. The trial judge later revoked Williams's probation and sentenced him to ten years in prison. Can Williams successfully complain about the unlawful grant of probation in a habeas corpus application? We conclude that he cannot.

The trial judge entered a deadly weapon finding in the judgment suspending Williams's sentence and placing him on community supervision (probation). This finding rendered Williams ineligible for probation. ⁽¹⁾ The trial judge later revoked Williams's probation.

Williams filed this post-conviction application for a writ of habeas corpus under Art. 11.07. To present a cognizable claim, he must show a jurisdictional defect in the convicting court or the denial of a fundamental or constitutional right. ⁽²⁾ He argues that the illegal probation order rendered his sentence illegal and, under Heath v. State, ⁽³⁾ he is entitled to habeas relief. We filed and set this case to reexamine Heath.

In Heath, the defendant was granted probation despite the fact that he was statutorily ineligible. ⁽⁴⁾ Later, the trial court revoked his probation and sentenced him to eight years in prison. ⁽⁵⁾ On appeal, he argued that the order granting probation and the sentence imposed after revocation were both "void." ⁽⁶⁾ He had not raised either argument in the trial court. We stated that "a defect which renders a sentence void may be raised at any time" so the defendant was "not barred from complaining of the void sentence" for the first time on appeal. ⁽⁷⁾ On rehearing, the State argued that the defendant was estopped from complaining about his illegally-granted probation because he agreed to it in a plea bargain. ⁽⁸⁾ We disagreed and denied the motion for rehearing. ⁽⁹⁾

Heath raised two distinct claims. He complained about the order granting him probation, and he complained about the sentence imposed upon revocation. We incorrectly addressed both claims as though they were one. In doing so, we extended a rule regarding sentences to a defendant's claim regarding a probation order. But illegal sentences and unauthorized probation orders are two different things.

In Speth v. State, ⁽¹⁰⁾ we explained that "community supervision is not a sentence or even a part of a sentence." ⁽¹¹⁾ Because of this, the illegal granting of community supervision should not be governed by a rule which applies to illegal sentences. Williams fails to show any entitlement to relief under Heath because the trial court's unauthorized probation order did not constitute an illegal sentence.

We still must consider whether the unlawful grant of probation entitles Williams to habeas relief. We conclude that it does not. To prevail in habeas, an applicant must show harm. ⁽¹²⁾ That is, he must prove by a preponderance of the evidence that the error contributed to his conviction or punishment. ⁽¹³⁾ Williams alleges that, had he known that the offense was one which is not eligible for probation, he "may not have plead [guilty] at all." This speculative assertion is insufficient to establish by a preponderance of the evidence that the illegal grant of probation contributed to the voluntariness of Williams's plea. Indeed, since he received probation anyway, eligible or not, it is hard to imagine how the illegality of that probation affected the voluntariness of his plea. In any event, it certainly did not contribute to his conviction or punishment. Rather, it did just the opposite - detracted from his punishment by allowing him a suspended sentence when he was not entitled to one. Williams fails to show that he was harmed by the illegal grant of probation.

We conclude that the Heath court erred to extend a doctrine of law regarding sentences to facts involving a probation order. We specifically disavow Heath's conclusion that an unlawful grant of probation constitutes an illegal or void sentence. In addition, we conclude that Williams fails to show any entitlement to habeas relief because he fails to prove that he was harmed by the unlawful grant of probation.

Relief is denied.

DATE DELIVERED: April 11, 2001

PUBLISH

1. See Tex. Code Crim. Proc. Art. 42.12, § 3g.

2. Ex parte Lockett, 956 S.W.2d 41, 42 (Tex. Crim. App. 1997).

3. 817 S.W.2d 335 (Tex. Crim. App. 1991).

4. Id. at 336.

5. Ibid.

6. Ibid.

7. Ibid.

8. Id. at 338 (op. on reh'g) (plurality op.).

9. Id. at 340.

10. 6 S.W.3d 530 (Tex. Crim. App. 1999), cert. denied, 529 U.S. __, 120 S.Ct. 1720, 146 L.Ed.2d 642 (2000).

11. Id. at 532.

12. Ex parte Tovar, 901 S.W.2d 484, 486 (Tex. Crim. App. 1995).

13. Ex parte Fierro, 934 S.W.2d 370, 375 (Tex. Crim. App. 1996).