No. 04-05-00135-CR
Delivered and Filed: February 14, 2007. DO NOT PUBLISH.
From the 399th Judicial District Court, Bexar County, Texas, Trial Court No. 2003-CR-9086, Honorable Juanita A. Vasquez-Gardner, Judge Presiding.
Sandee Bryan Marion, Justice, Phylis J. Speedlin, Justice, Rebecca Simmons, Justice.
Opinion by: REBECCA SIMMONS, Justice.
AFFIRMED IN PART AND REVERSED IN PART On November 19, 2003, Appellant Ronald Mitchell was indicted on charges of aggravated sexual assault and indecency with a child. Mitchell was subsequently convicted on one count of aggravated sexual assault and one count of indecency with a child. The State's indictment included an enhancement paragraph for a prior conviction of sexual assault. The jury found the enhancement allegation true and assessed a life sentence in the Institutional Division of the Texas Department of Criminal Justice on each count. On October 5, 2005, Mitchell's appointed appellate counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967). On August 1, 2006, this court granted appellate counsel's motion to withdraw and ordered this appeal be withdrawn from submission and abated. The case was further remanded to the trial court for appointment of new appellate counsel. On August 4, 2006, Mitchell was appointed new appellate counsel by the trial court. Mitchell now asserts the trial court erred in failing to provide the proper jury instruction on punishment regarding the indecency count of the indictment, specifically that a finding of true subjected Mitchell to a mandatory life sentence for the crime of indecency with a child.
Jury Charge
Mitchell was convicted for the first degree felony of aggravated sexual assault of a child with an enhancement of a prior sexual assault committed in accordance with Tex. Penal Code Ann. § 22.011 (Vernon Supp. 2006). Under such, a defendant shall be punished by imprisonment for life. See Tex. Penal Code Ann. § 12.42(c)(2) (Vernon Supp. 2006). During the same trial, Mitchell's conviction for the second degree felony of indecency with a child by contact was enhanced with the same prior conviction. Therefore, Mitchell's indecency conviction required punishment in accordance with a first degree felony, that being imprisonment for life or for any term of not more than ninety-nine years or less than five years. Tex. Penal Code Ann. §§ 12.42(b) and 12.32 (Vernon 2003). In the trial court's charge on punishment, if the jury found the enhancement paragraph to be true, the jury was instructed that the only sentence available was a term of life on both counts. Accordingly, the trial court's charge is erroneous. We next consider any harm resulting therefrom. Almanza Error A defendant is generally required to object to the jury charge to preserve his complaint for appellate review. Vaughn v. State, 888 S.W.2d 62, 69 (Tex.App.-Houston [1st Dist.] 1994, no pet.). Absent an objection, Mitchell was required to show that the harm caused by the charge deprived him of a fair and impartial trial. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985). Furthermore, because Mitchell raises this issue for the first time on appeal, we will reverse only upon a finding of egregious harm. Id.; see also Arline v. State, 721 S.W.2d 348, 351 (Tex.Crim.App. 1986) (citing Almanza). Egregious harm errors are those affecting the very basis of the case, depriving the defendant of a valuable right, or vitally affecting a defensive theory. Almanza, 686 S.W.2d at 171. An appellate court reviews whether egregious harm occurred by reviewing "the error `in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel, and any other relevant information revealed by the record of the trial court as a whole.'" Skinner v. State, 956 S.W.2d 532, 544 (Tex.Crim.App. 1997) (quoting Almanza, 686 S.W.2d at 171). Analysis
This case is remarkably similar to Splawn v. State, 160 S.W.3d 103 (Tex.App.-Texarkana 2005, pet. ref'd), wherein Splawn was convicted of aggravated sexual assault and indecency with a child and subsequently sentenced to life in prison for the indecency with a child charge, a charge for which the statutory maximum was only twenty years. Accordingly, the appellate court held the "harm is obvious." Id. at 107. The court explained that the fact there were two different charges may well have influenced the jury's assessment of punishment on the lesser charge of indecency especially in light of the greater charge carrying a mandatory life sentence. Id. at 108. Because the court could not "know how the jury might have assessed punishment on the indecency conviction, if correctly charged on that offense," the appellate court remanded the indecency sentence to the trial court for a new punishment hearing. Id. We see our role as no different. The State contends that because the sentence assessed was within the permissible range of punishment for the offense, no harm results. This proposition contradicts the Court of Criminal Appeals' determinations in Uribe v. State, 688 S.W.2d 534 (Tex.Crim.App. 1985), overruled on other grounds, 833 S.W.2d 134 (Tex.Crim.App. 1992). The Uribe Court held that "the submission to the jury of a penalty range more severe than that authorized by law deprived appellants of a fair and impartial trial, even though the jury assessed punishment within the lawful range." Id. at 539. "[A]bsent evidence to the contrary, we presume the jury followed the law provided by the charge." Hutch v. State, 922 S.W.2d 166, 170 (Tex.Crim.App. 1996). The jury could not, therefore have considered the proper range of punishment. "The jury may well have assessed a lesser punishment had it considered that starting point or minimum sentence." Holt v. State, 899 S.W.2d 22, 24 (Tex.App.-Tyler 1995, no pet.). Accordingly, we cannot say what the jury would have done in light of the proper range of punishment. Mitchell's sole point of error is therefore sustained. Conclusion
Mitchell has raised no points of error with regard to his conviction or sentence on the simultaneously tried aggravated sexual assault charge. We, therefore, affirm Mitchell's aggravated sexual assault conviction and assessment of punishment and affirm the conviction on the indecency with a child. The portion of Mitchell's judgment assessing punishment for the indecency with a child conviction is reversed and remanded to the trial court for a new punishment hearing as to the indecency with a child conviction.