Opinion
Nos. 05-07-01587-CR, 05-07-01588-CR
Opinion Issued March 31, 2009. DO NOT PUBLISH TEX. R. APP. P. 47.
On Appeal from the 195th Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F06-37523-UN F07-33267-SN.
Before Justices WRIGHT, O'NEILL, and LANG.
MEMORANDUM OPINION
Kadaron Jauron Sledge appeals his convictions for aggravated sexual assault of a child. After appellant pleaded guilty, the jury assessed punishment at 60 years' confinement in each case. In three issues, appellant contends (1) the trial court erred by admitting certain evidence, and (2) the jury charge in each case is fundamentally defective. We overrule appellant's issues and affirm the trial court's judgments. In his first issue, appellant contends the trial court erred by admitting State's Exhibit 3. Appellant, citing Johnson v. United States, 333 U.S. 10 (1948), maintains the police's warrantless entry into his home without probable cause was in violation of the Fourth Amendment. The record, however, belies appellant's claim. At a hearing outside the presence of the jury, Detective James Hallum testified an unknown individual telephoned Hallum and arranged for an interview the following day. Appellant came to the police station the next day and gave a written statement admitting to sexually abusing J.C. and A.L. Hallum did not arrest appellant that day but continued to investigate. Hallum gave the following explanation about his continued investigation and how he obtained the complained-of evidence:
[I] went to the residence where [appellant] had been living and met with him there. And he gave consent and we went into the residence, because he stated that-he had stated that there were some items that he used during the offenses and said that-I just wanted to see if there was anything left in the house. He allowed me to do so. And he told me one location where some of the stuff had been-he kept it up in the attic. And he allowed me in the house, and we found the one item that I seized.Hallum further explained that appellant climbed into the "attic and said, `this is the only one that's left' and then actually brought it down physically from the attic" and handed a dildo to Hallum. Appellant did not dispute Hallum's testimony, but argued only that the complained-of evidence should not be admitted because Hallum had time to obtain a search warrant and did not do so. Because the record shows appellant voluntarily consented to Hallum's entry into appellant's home and voluntarily produced the complained-of evidence to Hallum, we conclude appellant's argument regarding an improper search lacks merit. We overrule appellant's first issue. In his second and third issues, appellant contends the punishment charges are fundamentally defective. In particular, appellant argues the punishment charges state the offenses are sexual assault of a child less than 14 rather than aggravated sexual assault of a child as alleged in the indictment. Appellant also argues that because the trial court failed to instruct the jury to find appellant guilty, it never found him guilty. In reviewing a claim of jury charge error, we follow a two-step process. First, we decide if error exists, and if so, we determine if the error caused the defendant to suffer sufficient harm to require reversal. Hutch v. State, 922 S.W.2d 166, 170-71 (Tex.Crim.App. 1996). Here, appellant did not object to the charges; thus, if error is shown, he is entitled to reversal only if he suffered egregious harm. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984) (op. on reh'g). Egregious harm consists of errors that affect the very basis of the case or that deprive the defendant of a vital right, vitally affect a defensive theory, or make the case for conviction or punishment clearly and significantly more persuasive. Saunders v. State, 817 S.W.2d 688, 692 (Tex.Crim.App. 1991). In making this determination, we examine the entire charge, the state of the evidence, including contested issues, arguments of counsel, and any other relevant information. Almanza, 686 S.W.2d at 171. The first two paragraphs of the charges read as follows: The defendant, Kadaron Jauron Sledge, has pled guilty to the offense of aggravated sexual assault of a child of a child (sic), as charged in the indictment. Notwithstanding the Court's admonition regarding his right to have the jury determine guilt, he has persisted in that plea. The Court finds that the evidence presented has, as a matter of law, proved beyond a reasonable doubt that the defendant is guilty of aggravated sexual assault of a child of a child (sic), as charged in the indictment. You will not therefore, concern yourselves with determining the innocence or guilt of the defendant, but shall limit your deliberations to the question of punishment, which it is now your duty to assess. The punishment authorized for the offense of sexual assault of a child is imprisonment in the Institutional division of the Texas Department of Criminal Justice for any term not more than life or 99 years or less than 5 years. In addition, a fine not to exceed $10,000 may be imposed. The indictments charged appellant with the first-degree felony offense of aggravated sexual assault of a child under 14 years of age. See Tex. Penal Code Ann. § 22.021 (Vernon Supp. 2008). The first paragraph properly refers to the offense of aggravated sexual assault of a child, and the second paragraph sets forth the proper punishment range for that offense. Further, the verdict forms properly refer to the offenses as aggravated sexual assault of a child. Even if we assume the trial court erred by omitting the word aggravated in the second paragraphs, we cannot conclude appellant was egregiously harmed. Appellant does not explain how he was egregiously harmed, nor does he provide any explanation, argument, or analysis as to how the jury may have been confused by the trial court's omission. Looking at the charge as a whole and after reviewing the record, we fail to see how the jury could have been confused. With respect to appellant's contention the charges are fundamentally defective because the trial court failed to instruct the jury to find him guilty, we likewise disagree. Courts have long held that when a defendant has entered a guilty plea to a felony before the jury, there remains no issue of guilt for the factfinder to determine; the trial court in its charge properly instructs the jury to return a verdict of guilty, charges the jury on the law as to the punishment issues, and then instructs them to decide only those issues. Holland v. State, 761 S.W.2d 307, 313 (Tex.Crim.App. 1988); see also Fairfield v. State, 610 S.W.2d 771, 780 (Tex.Crim.App. 1981). In this case, the trial court instructed the jury that appellant had pleaded guilty to the offenses and that it had found the evidence sufficient to prove appellant had committed the offenses. Even if we assume the trial court erred by instructing the jury in its charge that the trial court had found the evidence sufficient to support appellant's convictions, we again conclude appellant was not egregiously harmed. The verdict forms from which the jury could choose all require that the jury find the defendant guilty. Thus, we cannot agree with appellant that the jury never found him guilty after entering his pleas of guilty. Because the trial court effectively instructed the jury on appellant's guilt, and the available verdict forms required them to make a finding of guilt, we cannot conclude appellant was egregiously harmed. We overrule appellant's second and third issues. Accordingly, we affirm the trial court's judgments.
The complained-of portions of the charges are the same, therefore, we, like appellant, address these issues together.