John Austin Garrett v. the State of Texas ( 2023 )

Affirmed and Majority and Dissenting Opinions filed August 10, 2023.
In The
Fourteenth Court of Appeals
NO. 14-22-00328-CR
JOHN AUSTIN GARRETT, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 506th Judicial District Court
Waller County, Texas
Trial Court Cause No. 21-02-17562
DISSENTING OPINION
This appeal is about the punishment range, specifically the minimum
sentence, either 5 or 25 years. It is not about whether appellant sexually assaulted
the complainant.
There is legally-sufficient evidence that appellant committed aggravated
sexual assault, which is a felony of the first degree punishable by imprisonment for
life or for any term of not more than 99 years or less than 5 years. Tex. Penal Code
Ann. § 22.021(a)(1)(A)(B), (2)(B) (aggravated sexual assault of victim younger than
14 years of age), (e) (first-degree felony), § 12.32 (first degree felony punishment).
Appellant does not argue the legal insufficiency of two of the three charged acts.
The State could have charged appellant with aggravated sexual assault with
the same punishment range as continuous sexual abuse of a young child. There was
evidence that appellant provided the complainant with alcohol during all three
charges acts. But although the State charged appellant with aggravated sexual
assault, the State did not charge appellant with the intent of facilitating commission
of the offense, administering or providing to the complainant “any substance capable
of impairing the victim’s ability to appraise the nature of the act or to resist the act.”
Compare Tex. Penal Code Ann. § 21.02(h) (offense of continuous sexual abuse of a
young child is punishable by imprisonment for life or for any term of not more than
99 years or less than 25 years ) with Tex. Penal Code Ann. § 22.021(f)(2) (minimum
term of imprisonment for aggravated sexual assault increased to 25 years due to
Penal Code section 22.021(a)(2)(A)(vi) (with intent of facilitating commission of
offense, administers or provides to victim of offense any substance capable of
impairing victim’s ability to appraise nature of act or to resist act)).
From the majority’s recitation of the evidence, it is clear to me there is simply
no legally-sufficient evidence of an act of sexual abuse in December 2017. Because
I agree that issue two should be overruled, I would sustain issue one, render
judgment on the lesser-included offense of aggravated sexual assault of a victim
younger than 14 years of age, and remand the case to the trial court for a new
punishment hearing. See Tex. Code Crim. Proc. Ann. art. 44.25(b).
2
I dissent to this court’s judgment.
/s/ Charles A. Spain
Justice
Panel consists of Chief Justice Christopher and Justices Jewell and Spain.
Publish — Tex. R. App. P. 47.2(b).
3