in Re Dale Allen Hamer ( 2002 )

In re Dale Allen Hamer

  IN THE

TENTH COURT OF APPEALS

No. 10-02-165-CR

IN RE DALE ALLEN HAMER

Original Proceeding

                                                                                                               Â

MEMORANDUM OPINION

                                                                                                               Â

      Dale Allen Hamer has filed a petition for writ of mandamus with this Court. According to the petition, Hamer has been convicted of a felony offense and desires forensic DNA testing under the provisions of chapter 64 of the Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. arts. 64.01-.05 (Vernon Supp. 2002). Hamer seeks a writ of mandamus from this Court“ordering and directing [the District Attorney of Johnson County] to follow state law.”

      This Court does not have jurisdiction to issue a writ of mandamus against a district attorney. See Garner v. Gately, 909 S.W.2d 61, 62 (Tex. App.—Waco 1995, orig. proceeding); Tex. Gov. Code. Ann. § 22.221 (Vernon Supp. 2002). Accordingly, we deny the petition.

 

                                                                         PER CURIAM

Before Chief Justice Davis,

      Justice Vance, and

      Justice Gray

Petition denied

Opinion delivered and filed July 3, 2002

Do not publish

[CR25]

pan style='font-family:Palatino'>Now if you find from the evidence beyond a reasonable doubt that on or about the 25th day of August, 1991, in McLennan County, Texas, the defendant, Gilberto Mata, Sr., did then and there, intentionally or knowingly engage in sexual contact with [T.G.] by touching the genitals of [T.G.], a child younger than seventeen years of age and not the spouse of the defendant, then you will find the defendant guilty of the offense of Indecency with a Child, as alleged in Count 1 of the indictment.

 

[Emphasis added].

 

Count 2 in the charge reads:

Now if you find from the evidence beyond a reasonable doubt that on or about the 25th day of September, 1991, in McLennan County, Texas, the defendant, Gilberto Mata, Sr., did then and there, intentionally or knowingly cause the sexual organ of [T.G.], a child who was then and there younger than 14 years of age and not the spouse of the defendant, to contact or be penetrated by the sexual organ of the defendant, then you will find the defendant guilty of the offense of Aggravated Sexual Assault, as alleged in Count 2 of the indictment.

 

[Emphasis added].

 

  We will assume error and assess whether harm occurred.  An unpreserved complaint about a charge error in a criminal case is reviewed for “egregious harm.”  Almanza v. State, 686 S.W.2d 157, 171-72 (Tex. Crim. App. 1985) (op. on reh’g).  Because no objection to the charge was made, Mata must show that he suffered egregious harm, a difficult standard that is determined on a case-by-case basis.  Ellison v. State, 86 S.W.3d 226, 227 (Tex. Crim. App. 2002).  Errors that result in egregious harm are those that affect “the very basis of the case,” deprive the defendant of a “valuable right,” or “vitally affect a defensive theory.”  Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996) (citing Almanza, 686 S.W.2d at 172).  The harm to Mata must be actual, not just theoretical.  Almanza, 686 S.W.2d at 174.  In deciding whether egregious harm exists, we look at (1) the charge itself, (2) the state of the evidence, including contested issues, (3) the arguments of counsel, and (4) any other relevant information revealed by the record of the trial as a whole.  Hutch, 922 S.W.2d at 171.

            The evidence was uncontested that T.G. was both a child as defined in the charge and not Mata’s spouse.  T.G. testified that her date of birth was August 25, 1985, that her mother had left her to live with Mata and his wife when T.G. was six years old, and that Mata took on the role of father and grandfather.  Further, the charge defined “child” as “a person younger than seventeen (17) years of age who is not the spouse of the actor.”  We hold that Mata has not suffered egregious harm. Issues one through ten are overruled.

Sentencing Issues

            The trial court “stacked” the three twenty-year sentences on counts 8, 9, and 10, ordering them to be served consecutively.  Relying on Villescas v. State, 189 S.W.3d 290 (Tex. Crim. App. 2006), issue eleven complains that Mata’s constitutional rights to due process and due course of law were violated because he was not given pretrial notice of the State’s intent to seek consecutive sentences.  Villescas does not address the issue of notice of sentence cumulation.

This court and others have addressed this issue, holding that the statutes (Tex. Code Crim. Proc. Ann. art. 42.08 (Vernon 2006); Tex. Pen. Code Ann. § 3.03(b)(2)(A) (Vernon Supp. 2006)) do not require the giving of notice or that those statutes are the notice.  Tyson v. State, 172 S.W.3d 172, 176 (Tex. App.—Fort Worth 2005, pet. ref’d); see also Millslagle v. State, 150 S.W.3d 781, 784-85 (Tex. App.—Austin 2004, pet. dism’d); Miller v. State, 2005 WL 1654754, at *1 (Tex. App.—Waco July 13, 2005, no pet.)  (mem. op.) (not designated for publication); Levine v. State, 2001 WL 43052, at *2-3 (Tex. App.—Amarillo, Jan. 16, 2001, no pet.) (not designated for publication).  Accordingly, we overrule issue eleven.

Issues twelve and thirteen assert that the trial court’s cumulation order violated Mata’s Sixth Amendment right to a jury trial and that section 3.03(b)(2)(A) is unconstitutional on its face and as applied on that same basis.  The Court of Criminal Appeals recently addressed an almost identical complaint and held there was no constitutional infirmity.  Barrow v. State, 207 S.W.3d 377, 379-82 (Tex. Crim. App. 2006).  Despite the developing case law in this area in the United States Supreme Court,[1] we are constrained to follow Barrow.  Issues twelve and thirteen are overruled.

 

 

Having overruled all of Mata’s issues, we affirm the trial court’s judgment.

 

 

BILL VANCE

Justice

 

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

(Chief Justice Gray concurs in the judgment, but not the opinion, of the Court without a separate opinion.)

Affirmed

Opinion delivered and filed March 14, 2007

Do not publish

[CRPM]

---

[1]               See, e.g., Cunningham v. California, --- U.S. ---, 127 S. Ct. 856, 2007 WL 135687 (Jan. 22, 2007); United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005); Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004); Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002); Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).