Opinion
No. 05-15-00865-CR
02-05-2016
GILBERT GUZMAN, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 2 Dallas County, Texas
Trial Court Cause No. F14-72087-I
MEMORANDUM OPINION
Before Chief Justice Wright and Justices Myers and Brown
Opinion by Chief Justice Wright
Gilbert Guzman was charged by indictment with burglary of a habitation with intent to commit assault. Following a trial, the jury found appellant guilty of assault, as included in the indictment. The jury assessed punishment, enhanced by two prior felony convictions, at forty years' imprisonment. In two issues on appeal, appellant contends the forty-year sentence is void because appellant was convicted only of class A misdemeanor assault and the trial court erred in submitting the prior assault family violence conviction to the jury in the punishment charge when it was an element of the offense that was not pleaded in the indictment, thereby allowing enhancement of the punishment range. The State filed a brief conceding appellant was convicted only of a class A misdemeanor and that the forty-year sentence was outside the punishment range.
We have reviewed the record and agree appellant was convicted of a class A misdemeanor offense and the sentence is void. We modify the trial court's judgment to reflect appellant was convicted of the class A misdemeanor offense of assault. We reverse the trial court's judgment as to punishment and remand for a new punishment hearing.
To convict appellant of third-degree felony assault involving family violence, the State had to plead and prove appellant (1) knowingly, intentionally, or recklessly caused bodily injury; (2) to another; (3) with whom appellant had a dating relationship, was a family member, or was a member of the household; and (4) appellant had a prior conviction for assault involving family violence. See TEX. PENAL CODE ANN. § 22.01((a)(1), (b)(2)(B) (West Supp. 2015). Thus, the State had to plead and prove at the guilt phase of trial both that the current assault involved family violence and that appellant had a previous conviction for an assault involving family violence. See Wingfield v. State, ___ S.W.3d ___, 2015 WL 7567701, at * 1 (Tex. App.—Amarillo 2015, pet. filed); Reyes v. State, 314 S.W.3d 74, 81 (Tex. App.—San Antonio 201, no pet.); see also Cuellar v. State, No. 05-11-01700-CR, 2013 WL 3952043, at * 4-5 (Tex. App.—Dallas Aug. 1, 2013, no pet.) (not designated for publication).
In this case, appellant was originally indicted for burglary of a habitation with intent to commit a felony other than theft, namely "assault family violence impede breathing/circulation." The State filed a motion to strike the words "family violence impede breathing/circulation and felony other than theft, namely." The indictment, as amended, alleged burglary of a habitation with intent to commit assault. The jury found appellant guilty of the lesser included offense of assault. The State concedes it did not prove beyond a reasonable doubt at the guilt phase that appellant and the complaining witness were in a dating relationship, family members, or members of a household, nor was the jury instructed to find such beyond a reasonable doubt. The State also concedes the punishment charge did not require the jury to find a prior family violence conviction beyond a reasonable doubt. Thus, even if it had been submitted in the guilt phase charge, it would not have resulted in a conviction for third-degree felony assault. Because the jury did not find the elements necessary to convict appellant of a third-degree felony family violence assault, appellant was convicted only of a class A misdemeanor assault.
The punishment range for a class A misdemeanor is confinement in jail for a period not to exceed one year, a fine not to exceed $4,000, or both. See TEX. PENAL CODE ANN. § 12.21 (West 2011). With the prior felony convictions, the punishment range for a class A misdemeanor is confinement in jail for a period of ninety days to one year, a fine not to exceed $4,000, or both. See id. § 12.43(a). Appellant's forty-year sentence is outside the punishment range and thus is void. We sustain appellant's issue as to the degree of the offense for which he was convicted and the punishment assessed.
We modify the trial court's judgment to show appellant was convicted of class A misdemeanor assault causing bodily injury pursuant to Texas Penal Code section 22.01(a)(1). We reverse the trial court's judgment as to punishment and remand for a new punishment hearing.
/Carolyn Wright/
CAROLYN WRIGHT
CHIEF JUSTICE Do Not Publish
TEX. R. APP. P. 47
150865F.U05
JUDGMENT
On Appeal from the Criminal District Court No. 2, Dallas County, Texas
Trial Court Cause No. F14-72087-I.
Opinion delivered by Chief Justice Wright, Justices Myers and Brown participating.
Based on the Court's opinion of this date, we MODIFY the trial court's judgment to show appellant was convicted of class A misdemeanor assault causing bodily injury pursuant to Texas Penal Code section 22.01(a)(1).
We REVERSE the trial court's judgment as to punishment and REMAND the cause to the trial court for a new punishment hearing pursuant to article 44.29(b) of the Texas Code of Criminal Procedure. Judgment entered February 5, 2016.