Eric Bledsoe v. State ( 2015 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00450-CR
ERIC BLEDSOE APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY
TRIAL COURT NO. 1325173D
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DISSENTING OPINION
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I concur in the majority’s resolution of Appellant’s issues, but as to the
State’s cross-point, I cannot agree that a judgment must contain the sentencing
details in the statement of the offense. I therefore respectfully dissent from the
conscientious majority opinion.
In its cross-point, the State argues that the trial court’s judgment incorrectly
sets out the penal code provision for the offense of which Appellant was
convicted when the judgment states that the “Statute for [Appellant’s] Offense” is
penal code section “22.021(a)(2)(B)” and that the judgment incorrectly names the
offense for which Appellant was convicted as aggravated sexual assault of a
child. The State argues that the judgment should instead provide that Appellant
was convicted under penal code section 22.021(f) and that the name of the
offense set out in the judgment should be aggravated sexual assault of a child
under six years of age. Otherwise, the State argues, the experienced
professionals in the Texas penal system will not know. The majority appears to
agree. I believe the State is incorrect.
The State argues that its requested changes are mandated by the
importance of this information to prison officials for many years into the future.
The State may be correct that the information is important, but the State
confuses offense code provisions with punishment code provisions. The offense
for which Appellant was tried and convicted is aggravated sexual assault of a
child, as set out in penal code section 22.021(a)(1)(B)(i), (2)(B). 1 The name of
the offense for which Appellant was tried and convicted is not described in
section 22.021(f). 2 That subsection provides that “[t]he minimum term of
imprisonment for an offense under this section is increased to 25 years if . . . the
1
See Tex. Penal Code Ann. § 22.021(a)(1)(B)(i), (2)(B) (West Supp. 2014).
2
See id. § 22.021(f).
2
victim of the offense is younger than six years of age at the time the offense is
committed . . . .” 3 It is a punishment provision.
Additionally, the judgment specifically states that “Sex Offender
Registration Requirements apply to the Defendant. Tex. Code[] Crim. Proc.
chapter 62. The age of the victim at the time of the offense was Younger than 6
Years of Age.” Thus, the judgment correctly sets out the statute under which
Appellant was tried and convicted, sets out the name of the offense—aggravated
sexual assault of a child, notes that Appellant must register as a sex offender,
and provides ample notice of the fact that the child complainant was under six
years of age to the prison officials who will have to determine Appellant’s release
date. 4
Further, penal code section 22.021(f) does not prohibit parole for offenders
convicted of sexual assault of a child under six years of age. That prohibition is
found in government code section 508.145, which provides, “[An inmate] serving
a sentence for an offense under Section 22.021, Penal Code, that is punishable
under Subsection (f) of that section is not eligible for release on parole.” 5
3
Id.
4
See Tex. Code Crim. Proc. Ann. art. 42.01 (West Supp. 2014) (providing
requirements of judgment).
5
Tex. Gov’t Code Ann. § 508.145(a) (West 2012).
3
The majority states that
The State’s requested modification is warranted because it
was an element of the offense that the State was required to prove,
because it ensures proper calculation of [Appellant]’s sentence for
aggravated sexual assault of a child under six, and because
[Appellant] does not argue it would be improper.
Respectfully, the plain reading of the statute suggests that proof that the
complainant was a child younger than six is not an element of the offense of
aggravated sexual assault of a child that the State was required to prove to
establish Appellant’s guilt. A plain reading of the statute suggests that the State
was required to prove only that the complainant was a child under the age of
fourteen in order to prove Appellant’s guilt of the offense alleged in the
indictment, aggravated sexual assault of a child. Relying on the plain reading,
which we must, 6 the fact that the child is under six years of age is a punishment
issue, not an element of the offense.
The majority relies in part on an unpublished opinion, Leija-Balderas v.
State, 7 as authority for adding the punishment issue to the description of the
offense, yet the Leija-Balderas court deleted the notation on the judgment that
the child was five at the time the defendant committed the offense of aggravated
6
See Swearingen v. State, 303 S.W.3d 728, 732 (Tex. Crim. App. 2010)
(“As an appellate court, we must give effect to the plain meaning of the statute.”).
7
No. 05-14-00648-CR, 2015 WL 1454948 (Tex. App.—Dallas Mar. 27,
2015, pet. ref’d) (mem. op., not designated for publication).
4
sexual assault of a child under fourteen. 8 It appears that this unpublished
opinion stands, at least in part, for the proposition that the judgment should state
the offense of which a defendant was convicted, not descriptive details.
The judgment should provide the name of the offense that the State was
required to prove in the space for the name of the offense and the punishment
information in the space for punishment information. We have not mandated that
descriptive details be included in the statement of the offense in other kinds of
cases. By our decision to rewrite the judgment, we run the risk of increasing the
State’s burden of proof for conviction by requiring the State to prove not only the
elements of the offense as determined by the legislature, but also punishment
facts as essential elements of the offense. I therefore respectfully dissent from
the majority opinion.
/s/ Lee Ann Dauphinot
LEE ANN DAUPHINOT
JUSTICE
PUBLISH
DELIVERED: October 29, 2015
8
Id. at *1.
5