The State of Texas v. David Harris--Appeal from 346th District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

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THE STATE OF TEXAS, ) No. 08-04-00139-CR

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Appellant, ) Appeal from

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v. ) 346th District Court

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DAVID HARRIS, ) of El Paso County, Texas

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Appellee. ) (TC# 20020D05384)

O P I N I O N

The State of Texas appeals from a judgment imposing a sentence which it contends is illegal. See Tex.Code Crim.Proc.Ann. art. 44.01(b)(Vernon Pamph. 2004-05). David Harris, Appellee, also filed a notice of appeal but he has not raised any cross-points on appeal. A jury found Harris guilty of aggravated sexual assault. Although the State proved that Harris had previously been convicted of sexual assault of a child and had two other felony convictions, the trial court refused to impose a mandatory life sentence. We reverse.

FACTUAL SUMMARY

A grand jury indicted Harris for aggravated sexual assault of a child younger than fourteen years of age. The indictment did not include any enhancement paragraphs. Prior to trial, the State filed a written notice of enhancement served it on defense counsel. The notice reflected that the State intended to enhance the range of punishment with three prior convictions: a 1984 sexual assault of a child conviction (Hutchinson County), a 1986 burglary of a building conviction (Swisher County), and a 1989 burglary of a habitation conviction (Brazoria County). The jury found Harris guilty of aggravated sexual assault of a child younger than fourteen years of age as alleged in the indictment. Harris had previously elected that his punishment be determined by the court.

During the punishment phase, the State introduced into evidence three pen packets proving the prior convictions alleged in its notice of enhancement. Harris stipulated that he was the person convicted of the offenses shown by the pen packets. During closing argument, the State contended that the court should impose a mandatory life sentence pursuant to Section 12.42 of the Texas Penal Code due to Harris s prior conviction of sexual assault of a child. The court articulated his belief that he could not impose a mandatory life sentence because the enhancement paragraphs were not contained within the indictment. The following day, at the conclusion of the punishment phase, the trial court found that the pen packets substantiated the allegations set forth in the notice of enhancement and it found the enhancement allegations true. The court then refused to impose a mandatory life sentence and sentenced Harris to a twenty-six years instead. Both the State and Harris filed timely notices of appeal.

ILLEGAL SENTENCE

In its sole issue on appeal, the State complains that the trial court was required to impose a mandatory life sentence. It contends and that the lesser sentence is illegal since it falls outside the punishment fixed by law. Section 12.42 of the Texas Penal Code provides that a defendant shall be punished by imprisonment in the institutional division for life if the defendant is convicted of an offense under Section 22.021 or 22.011 of the Penal Code, and the defendant has been previously convicted of an offense under Section 21.11, 22.011, 22.021, or 25.02 of the Penal Code. Tex.Penal Code Ann. 12.42(c)(2)(A)(i), (c)(2)(B)(ii)(Vernon Supp. 2004-05). The language of Section 12.42(c)(2) is mandatory. When analyzing a similar provision found in Section 12.42, the Court of Criminal Appeals has held that the statutory language expresses the legislative intent that upon proof of certain criteria, the statute dictates mandatory operation. See State v. Allen, 865 S.W.2d 472, 474 (Tex.Crim.App. 1993)(analyzing mandatory life sentence provision found in a former version of Section 12.42(d), the habitual offender statute). Once a finding of true as to the enhancement paragraphs has been made, the punishment is absolutely fixed by law. See id. The same analysis applies to Section 12.42(c)(2).

The evidence at trial established, and the trial court expressly found, that Harris had previously been convicted of sexual assault of a child, which is an offense under Section 22.011. // Because Harris was convicted in the instant case of an offense under Section 22.021, his punishment was fixed by law and the trial court had no discretion to impose a lesser sentence.

Harris concedes that the State is not required to include enhancement allegations in the indictment. In Brooks v. State, 957 S.W.2d 30, 33 (Tex.Crim.App. 1997), the Court of Criminal Appeals clarified that convictions used as enhancements must be pled in writing in order to give the defendant notice, but they need not be included in the indictment. The State s written notice of enhancement constitutes a pleading and therefore satisfies Brooks. Harris argues that the notice was inadequate because there is a variance between the date of the prior sexual conviction alleged in the enhancement pleading and the pen packet. Harris concedes that the claimed variance is not fatal but argues nonetheless that it served to confer discretion on the court to disregard the mandatory life sentence.

The first paragraph of the State s notice of enhancement alleged that prior to the commission of the primary offense, Harris had been convicted of sexual assault of a child on November 19, 1984 in the 316th District Court of Hutchinson County, Texas, in cause number 639, and that conviction became final prior to the commission of the primary offense. The pen packet pertaining to this conviction (State s Exhibit 3) reflects that Harris entered a plea of guilty on November 19, 1984 and was placed on probation. His probation was revoked on September 17, 1985. The State correctly alleged the date of conviction as November 19, 1984 and further proved that the conviction became final on September 17, 1985, a date prior to the commission of the instant offense. There is no variance between the enhancement allegation and the proof.

Even if a variance existed, it would not have been fatal because Harris has not made any claim of surprise. In fact, he stipulated that he was the person convicted of sexual assault of a child as shown by State s Exhibit 3. It is not necessary to allege prior convictions for the purpose of enhancement with the same particularity which must be used in charging on the primary offense. Freda v. State, 704 S.W.2d 41, 42 (Tex.Crim.App. 1986). The purpose of the doctrine of variance is to avoid surprise. See Plessinger v. State, 536 S.W.2d 380, 381 (Tex.Crim.App. 1976). Variances between an enhancement allegation and the proof in regard to cause numbers, courts, and dates of conviction have all been held to be immaterial. See Freda, 704 S.W.2d at 42-43.

Harris also argues that the trial court had discretion to ignore the mandatory life sentence because the sentence is disproportionate to the offense. He claims that since he was only seventeen years old when the prior offense was committed, a mandatory life sentence would have violated the constitutional prohibition against cruel and unusual punishment. Harris did not raise this argument in the trial court nor did he present evidence of sentences in similar cases for comparison. See McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992); Smedley v. State, 99 S.W.3d 317, 319 (Tex.App.--Texarkana 2003, no pet.); Simmons v. State, 944 S.W.2d 11, 15 (Tex.App.--Tyler 1996, pet. ref d). The issue could not have served as the basis for the court s decision. Because the trial court found the enhancement allegation true, Harris s punishment became absolutely fixed by law pursuant to the mandatory terms of Section 12.42(c)(2), and the court had no discretion to impose a lesser sentence. The State s sole issue on appeal is sustained. We reverse the sentence and that portion of the judgment assessing punishment at imprisonment for a term of twenty-six years. We remand the cause to the trial court for imposition of the mandatory life sentence.

August 16, 2005

ANN CRAWFORD McCLURE, Justice

Before Barajas, C.J., McClure, and Chew, JJ.

(Do Not Publish)