Opinion
No. 05-14-01468-CR
03-02-2016
CLARENCE RAY HINES, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 7 Dallas County, Texas
Trial Court Cause No. F13-71067-Y
MEMORANDUM OPINION
Before Justices Francis, Lang-Miers, and Myers
Opinion by Justice Lang-Miers
Clarence Ray Hines was charged by indictment with aggravated assault with a deadly weapon. The indictment further alleged that the assault involved family violence. Following a trial, the jury found appellant guilty of assault, as included in the indictment. At punishment, the jury found appellant had a previous conviction for assault involving family violence and assessed punishment at ten years' imprisonment. On appeal, appellant asserts the ten-year sentence is void because it is outside the punishment range for the class A misdemeanor assault offense on which he was convicted. The State filed a brief conceding appellant was convicted only of a class A misdemeanor and that the ten-year sentence is outside the punishment range.
We have reviewed the record and agree appellant was convicted of a class A misdemeanor offense and the ten-year 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. ref'd); Reyes v. State, 314 S.W.3d 74, 81 (Tex. App.—San Antonio 2010, 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 aggravated assault with a deadly weapon, and that appellant had a dating relationship with the complaining witness and was a member of her family and household. The jury found appellant guilty of the lesser included offense of assault. The State concedes the jury was not asked at the guilt phase of trial to make a finding that appellant had a previous conviction for assault involving family violence, nor did the State prove such. The State further concedes that it could not elevate the offense on which appellant was convicted by proving additional elements at punishment. The State agrees that that jury found appellant guilty only of the class A misdemeanor assault, and the ten-year sentence range is outside the punishment range for a class A misdemeanor. Both parties ask that we reverse as to punishment and remand for new sentencing.
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). Appellant's ten-year sentence is outside the punishment range and thus is void. We sustain appellant's first issue.
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.
Appellant raised other issues seeking modification of the trial court's judgment to correct clerical errors. Because of our disposition of appellant's first issue, we do not address his remaining issues. See TEX. R. APP. P. 47.1. --------
/Elizabeth Lang-Miers/
ELIZABETH LANG-MIERS
JUSTICE Do Not Publish
TEX. R. APP. P. 47 141468F.U05
JUDGMENT
On Appeal from the Criminal District Court No. 7, Dallas County, Texas
Trial Court Cause No. F13-71067-Y.
Opinion delivered by Justice Lang-Miers, Justices Francis and Myers 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 this 2nd day of March, 2016.