Kim E. Johnson v. State ( 2005 )

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-04-00134-CR

______________________________

MISTY DAWN ROGERS, Appellant

 

V.

 

THE STATE OF TEXAS, Appellee

---

                                              

On Appeal from the 124th Judicial District Court

Gregg County, Texas

Trial Court No. 31,679-B

---

                                                 

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Ross

MEMORANDUM OPINION

          Appellant, Misty Dawn Rogers, has filed a motion asking this Court to dismiss her appeal. Pursuant to Tex. R. App. P. 42.2, her motion is granted.

          Accordingly, we dismiss her appeal.

 

                                                                           Donald R. Ross

                                                                           Justice

Date Submitted:      September 27, 2004

Date Decided:         September 28, 2004

Do Not Publish

lt as set out in a different section of the Texas Penal Code--because the victim is now alleged to have been under fourteen years of age. See Tex. Penal Code Ann. § 22.021(a)(1)(A), (B) (Vernon Supp. 2006). Second, as the trial court properly noted before allowing the State's proposed change, the amendment increases the applicable punishment range from that provided for second-degree felony offenses to that provided for first-degree felony offenses. Compare Tex. Penal Code Ann. § 22.011(f) and § 22.021(e). Because the change constituted an erroneous amendment, we must now determine whether the error was harmful.

(2) The Error Harmed Aubrey's Substantial Rights

Before 1997, a violation of Article 28.10 of the Texas Code of Criminal Procedure required automatic reversal of the conviction, without regard to harm analysis. See, e.g., Sodipo, 815 S.W.2d at 556; Hilton, 879 S.W.2d at 79; Brown, 843 S.W.2d at 711. But beginning September 1, 1997, the effective date of the new Rules of Appellate Procedure, the general rule regarding harm analysis changed. See Curry v. State, 1 S.W.3d 175, 178 (Tex. App.--El Paso 1999), aff'd, 30 S.W.3d 394 (Tex. Crim. App. 2000). The current rule provides,

(a) Constitutional Error. If the appellate record in a criminal case reveals constitutional error that is subject to harmless error review, the court of appeals must reverse a judgment of conviction or punishment unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment.

(b) Other Errors. Any other error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.

Tex. R. App. P. 44.2. Errors no longer result in automatic reversal. Instead, the reviewing court must classify the error and conduct the appropriate harm analysis.

The error in this case stems from a violation of a procedural statute, not a violation of a constitutional requirement. The appropriate standard of harm analysis is under Rule 44.2(b). Cf. Craig v. State, No. 06-02-00151-CR, 2003 Tex. App. LEXIS 4788, at *12-13 (Tex. App.--Texarkana June 6, 2003, no pet.) (mem. op., not designated for publication). Under Rule 44.2(b), we are to disregard all nonconstitutional errors that do not affect an accused's substantial rights. To do this, we must decide whether the error had a substantial or injurious effect on the jury's verdict. Llamas v. State, 12 S.W.3d 469, 471 n.2 (Tex. Crim. App. 2000). "A criminal conviction should not be overturned for non-constitutional error if the appellate court, after examining the record as a whole, has fair assurance that the error did not influence the jury, or had but a slight effect." Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998); see also King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997).

Given the record before us, the erroneous amendment had a significant effect on the jury's verdict and the resulting judgment. The amendment raised the offense from a second- to a first-degree felony. After the jury found Aubrey guilty under the erroneously amended indictment, it assessed Aubrey's sentence at thirty years' imprisonment--ten years more than the maximum sentence he faced before the State's improper amendment. The trial court sentenced him accordingly. Such error clearly had much more than a slight effect. Accordingly, we sustain Aubrey's point of error.

In Curry, the Eighth Court of Appeals held the trial court erred by permitting the State to amend the indictment over the accused's objection after trial had begun. 1 S.W.3d at 180-81. But because Curry had also challenged the legal sufficiency of the evidence to support the underlying conviction--and because sustaining such a challenge would result in an acquittal--the El Paso Court of Appeals also assessed the legal sufficiency of the evidence. ⁽⁴⁾

In this case, Aubrey has neither challenged the legal sufficiency of the evidence to support a conviction for either sexual assault or aggravated sexual assault, nor does he raise any other issues that, if sustained, would require a judgment of acquittal. The appropriate disposition of this case is remand for a new trial.

Because the error resulted in harm to Aubrey's substantial rights, and because such error occurred during the guilt/innocence phase of the trial, we reverse the trial court's judgment and remand the case for a new trial under the original charge, ⁽⁵⁾ in accordance with this opinion. See id. at 181.

Josh R. Morriss, III

Chief Justice

Date Submitted: October 16, 2006

Date Decided: October 31, 2006

Do Not Publish

1. The indictment alleged Aubrey committed a criminal offense by "intentionally or knowingly caus[ing] the penetration of the sexual organ of [A.H.], a child who was then and there younger than 17 years of age and not the spouse of the defendant, by defendant's finger." Such conduct is prohibited by Texas' general sexual assault statute. See Tex. Penal Code Ann. § 22.011(a)(2)(A) (offense criminalized), § 22.011(c)(1) (Vernon Supp. 2006) (defining "child" as "person younger than 17 years of age who is not the spouse of the actor"). Sexual assault is a second-degree felony, punishable by imprisonment of between two and twenty years, a fine of not more than $10,000.00, or both imprisonment and a fine. Tex. Penal Code Ann. § 12.33 (Vernon 2003), § 22.011(f) (Vernon Supp. 2006). Sexual assault becomes a first-degree felony if it is alleged and shown that the victim was a person whom the accused was prohibited from marrying (or purporting to marry) under the statute outlawing bigamy. Tex. Penal Code Ann. § 22.011(e) (Vernon Supp. 2006). The original indictment in this case contained no such enhancement allegation. Therefore, the offense, as originally charged, was a second-degree felony. Cf. Garcia v. State, 911 S.W.2d 866, 869-70 (Tex. App.--El Paso 1995, no pet.) (indictment failed to allege aggravating factors; trial court erred in entering conviction for aggravated sexual assault; judgment reformed to sexual assault).

2. During its voir dire, the State appears to have used the terms "aggravated sexual assault," "child sexual assault," and "sexual assault" interchangeably. But the State did, during voir dire, suggest the applicable punishment range for Aubrey's crime was up to, and including, imprisonment for life.

3. See Tex. Penal Code Ann. § 22.021 (Vernon Supp. 2006).

4. On further appeal of Curry to the Texas Court of Criminal Appeals, that court ruled a legal sufficiency review should be made against the hypothetically correct jury charge based on the original charge, not based on the erroneously amended one. Curry, 30 S.W.3d at 404.

5. See Nichols v. State, 52 S.W.3d 501, 504-05 (Tex. App.--Dallas 2001, no pet.) (erroneous amendment of charge, retrial on unamended charge).