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Opinion issued November 15, 2007
In The
Court of Appeals
For The
First District of Texas
NO. 01-06-00830-CR
JOSE EDUARDO LOVO, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 184th District Court
Harris County, Texas
Trial Court Cause No. 1043004
MEMORANDUM OPINION
Appellant, Jose Eduardo Lovo, pleaded guilty, without an agreed punishment recommendation by the State, to aggravated sexual assault of his own child, and the jury assessed his punishment at 35 years in prison. See Tex. Pen. Code Ann. § 22.021(a)(1)(B)(i), (2)(B) (Vernon 2003). We determine whether the trial court’s instruction to find appellant guilty based on his guilty plea to the jury constituted error. We affirm.
Background
On the morning that trial was set to begin, appellant informed the trial court that he wished to enter a guilty plea before the jury. Appellant pleaded guilty, and the trial court proceeded with the punishment phase of the trial. The State put on testimony to show the elements of the crime. The complainant testified about the first time that she was sexually assaulted: after having seen her father and his girlfriend have sex, she returned to sleep, only to wake up to the pain of her father’s penetrating her sexually while his girlfriend was washing up. The complainant had been pulled to the edge of the bed, her younger sister still asleep next to her in the bedroom that they shared with their father and his girlfriend. The complainant was nine years old. After the June 1, 2000 sexual assault, appellant engaged in sex with his daughter again when she was 10, 11 or 12, and 14 years old. During the last sexual assault, appellant showed his daughter a pornographic videotape before forcing her to the floor, despite her vocal protests and attempts to push him off.
Instructed Guilty Verdict
In his sole point of error, appellant contends that the trial court erred in instructing the jury to find him guilty in the absence of his waiver of a jury trial at guilt-innocence. Appellant’s complaint on appeal is not directed at jury-charge error so much as it is directed at the trial court’s allegedly usurping the jury’s function of finding appellant guilty by instructing it to do so. Appellant contends that this constituted structural error.
Appellant argues that the trial court failed to comply with article 1.15 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 1.15. (Vernon 2005). The State points out that article 1.15 governs guilty pleas to the court, whereas article 26.14 is the provision applicable to guilty pleas to the jury:
JURY ON PLEA OF GUILTY. Where a defendant in a case of felony persists in pleading guilty . . . if the punishment is not absolutely fixed by law, a jury shall be impaneled to assess the punishment and evidence may be heard to enable them to decide thereupon, unless the defendant in accordance with Articles 1.13 or 37.07 shall have waived his right to trial by jury.
Id. art. 26.14 (Vernon 1989) (emphasis added). In Holland v. State, the Court of Criminal Appeals stated:
It is well established in a felony case where a defendant has entered a guilty plea before the jury, because there remains no issue of guilt to be determined, it is proper for the trial judge in his charge to instruct the jury to return a verdict of guilty, charge the jury . . . as to the punishment issues and then instruct them to decide only those issues.
Id., 761 S.W.2d 307, 313 (Tex. Crim. App. 1988). Furthermore, “a combination instructed verdict and charge on punishment” is not error. Id. After a guilty plea, the trial is “unitary” and merges into the punishment phase. Houston v. State, 201 S.W.3d 212, 221 (Tex. App.—Houston [14th Dist.] 2006, no pet.) (citing Carroll v. State, 975 S.W.2d 630, 632 (Tex. Crim. App. 1998)).
Because this case involved a guilty plea to the jury, the trial court did not err in instructing the jury to find appellant guilty based on his plea and to proceed to determine punishment. We overrule appellant’s sole point of error.
Conclusion
We affirm the judgment of the trial court.
Tim Taft
Justice
Panel consists of Justices Taft, Hanks, and Higley.
Do not publish. See Tex. R. App. P. 47.2(b).
Document Info
Docket Number: 01-06-00830-CR
Filed Date: 11/15/2007
Precedential Status: Precedential
Modified Date: 9/3/2015