Craig Jonathan Warner v. State ( 2008 )


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  •       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
    ON REMAND
    NO. 03-04-00203-CR
    NO. 03-04-00270-CR
    Craig Jonathan Warner, Appellant
    v.
    The State of Texas, Appellee
    FROM THE DISTRICT COURT OF LAMPASAS COUNTY, 27TH JUDICIAL DISTRICT
    NOS. 7410 & 7411, HONORABLE JOE CARROLL, JUDGE PRESIDING
    MEMORANDUM OPINION
    In each of these causes, appellant Craig Jonathan Warner was convicted by a jury for
    the aggravated sexual assault of a child under the age of fourteen. See Tex. Penal Code Ann.
    § 22.021 (West Supp. 2007). Each indictment contained a single count, but that count contained
    three paragraphs alleging three different statutory offenses under section 22.021: penetration of the
    complainant’s sexual organ by appellant’s finger (section 22.021(a)(1)(B)(i)), contact between the
    complainant’s sexual organ and appellant’s mouth (section 22.021(a)(1)(B)(iii)), and contact
    between the complainant’s anus and appellant’s sexual organ (section 22.021(a)(1)(B)(iv)). The trial
    court’s charge permitted the jurors to return a general verdict convicting appellant for aggravated
    sexual assault without requiring them to agree as to the specific offense committed. On original
    submission, we agreed with appellant that this was charge error that violated his right to a unanimous
    jury verdict. Warner v. State, Nos. 03-04-00203-CR & 03-04-00270-CR, 2005 Tex. App. LEXIS
    7790, at *10-11 (Tex. App.—Austin Sep. 22, 2005) (mem. op., not designated for publication); see
    Ngo v. State, 
    175 S.W.3d 738
    , 749 (Tex. Crim. App. 2005); Vick v. State, 
    991 S.W.2d 830
    , 833
    (Tex. Crim. App. 1999). Appellant had not objected to the charge on this ground, however, and we
    concluded that the error did not cause appellant egregious harm. See 
    Ngo, 175 S.W.3d at 749
    ; see
    also Jimenez v. State, 
    32 S.W.3d 233
    , 238-39 (Tex. Crim. App. 2000); Almanza v. State, 
    686 S.W.2d 157
    , 171 (Tex. Crim. App. 1985) (op. on reh’g). Accordingly, we affirmed the judgments of
    conviction.
    In the course of our harm analysis on original submission, we referred to the court of
    criminal appeals’s statement in Dickey v. State, 
    22 S.W.3d 490
    , 492 (Tex. Crim. App. 1999), that
    it is the appellant’s burden to prove that he suffered some actual, rather than merely theoretical, harm
    from the charge error. We failed to take into account the court of criminal appeals’s holding in
    Ovalle v. State, 
    13 S.W.3d 774
    , 787 (Tex. Crim. App. 2000), that rejected the concept of burdens
    of proof in Almanza harm analysis. On appellant’s petitions for discretionary review in these causes,
    the court of criminal appeals “affirm[ed] that burdens of proof or persuasion have no place in a harm
    analysis conducted under Almanza” and sustained appellant’s ground for review complaining that
    we had erroneously placed on him the burden of proving harm. Warner v. State, Nos. PD-1680-05
    & PD-1681-05, 2008 Tex. Crim. App. LEXIS 217, at *11 (Tex. Crim. App. Feb. 13, 2008). The
    court vacated our judgment and remanded the causes to us to again review the record, giving
    consideration to the fact that neither party has a burden to show harm. 
    Id. 2 The
    court of criminal appeals overruled appellant’s second ground for review, by
    which he complained that we had failed to consider five specific factors that he claimed would
    support a finding of egregious harm. The court discussed each factor individually and held in each
    instance that there was no error in our having failed to address it. 
    Id., at *11-15.
    Therefore, the court
    of criminal appeals found no error in the scope of our harmless error review. The error lay entirely
    in our having placed the burden on appellant to show harm.
    We will not lengthen this opinion by repeating the factual summary or the harm
    analysis that can be found in our original opinion. Having reconsidered the record and without
    placing any burden of persuasion on either appellant or the State, we again conclude, for the reasons
    stated in our original opinion, that the harm alleged by appellant as a result of the charge error was
    entirely theoretical. Appellant did not suffer actual, egregious harm because the jury could have
    given effect to his defensive theory and acquitted him under the instructions given and because
    the evidence is sufficient to support all the allegations in the indictments. See Martinez v. State,
    
    212 S.W.3d 411
    , 420-21 (Tex. App.—Austin 2006, pet. ref’d).
    The judgments of conviction are affirmed.
    ___________________________________________
    Jan P. Patterson, Justice
    Before Chief Justice Law, Justices Patterson and Puryear
    Affirmed on Remand
    Filed: April 2, 2008
    Do Not Publish
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