Hampton v. State

Full title: WALTER HAMPTON, JR., Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, First District, Houston

Date published: Oct 23, 2003

No. 01-00-00798-CR (Tex. App. Oct. 23, 2003)

Opinion

No. 01-00-00798-CR

Opinion issued October 23, 2003. DO NOT PUBLISH. Tex.R.App.P. 47.4.

On Appeal from the 183rd District Court, Harris County, Texas, Trial Court Cause No. 829,055.

Shawna L. Reagin, Houston, for Appellant. John B. Holmes, District Attorney, Bridget Holloway, Assistant District Attorney, Harris County, Houston, for Appellee.

Panel consists of Justices HEDGES, NUCHIA, and HIGLEY.

MEMORANDUM OPINION ON REMAND

ADELE HEDGES, Justice.

Appellant was charged with aggravated sexual assault. The jury instead convicted him of sexual assault, a lesser-included offense that had been submitted to the jury at the State's request and over appellant's objection. Upon appellant's plea of true to two felony enhancement allegations, the trial court sentenced him to 40 years' confinement. On December 6, 2001, we affirmed the judgment of the trial court. Hampton v. State , 66 S.W.3d 430 (Tex.App.-Houston [1st Dist.] 2001). The Court of Criminal Appeals granted appellant's sole ground for review, which challenged this Court's conclusion that the State was entitled to a jury instruction on the lesser-included offense of sexual assault. 109 S.W.3d 437, 438-49 (Tex.Crim.App. 2003). The Court held that the lesser-included-offense instruction of sexual assault was not warranted by the evidence, reversed our decision, and remanded for us to conduct a harmless error analysis. Id . at 441-42. We reverse and remand.

Harm Analysis

The Court of Criminal Appeals reversed and remanded the cause to this Court for a determination of harm pursuant to Almanza v. State , 686 S.W.2d 157 (Tex.Crim.App. 1985). Harm occurs when a defendant is found guilty of a lesser offense in the absence of any evidence he is guilty only of the lesser offense. See Arevalo v. State , 987 S.W.2d 164, 166 (Tex.App.-Houston [1st Dist.] 1999, pet. ref'd) (op. on second remand). Such harm occurred here because appellant was found guilty of the lesser offense. Accordingly, we reverse and remand for a new trial on the offense of sexual assault, even though appellant claims that he should not have received a jury instruction on sexual assault. We recognize the dissent's statement that this disposition "creates such illogical results." Hampton , 109 S.W.3d at 442 (Keller, P.J. dissenting). Conclusion The judgment of the trial court is reversed and the cause is remanded for a new trial on the offense of sexual assault.