THE STATE OF TEXAS, Appellant v. JOSEPH GEORGE KARAMVELLIL, Appellee

DISMISS and Opinion Filed December 9, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-08-00549-CR
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THE STATE OF TEXAS, Appellant
V.
JOSEPH GEORGE KARAMVELLIL, Appellee
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On Appeal from the 292nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F07-34274-HV
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MEMORANDUM OPINION
Before Justices Wright, Lang-Miers, and Mazzant
Opinion By Justice Wright
        In this appeal, the State of Texas contends the one-year sentence assessed by the trial court after convicting Joseph George Karamvellil for misdemeanor assault is illegal. In a single issue, the State generally contends the sentence is illegal because (1) the trial court lacked authority to act as a fact finder after it refused to follow the plea bargain agreement for the third-degree felony assault appellee was indicted for; and (2) the trial court erred by concluding the evidence was insufficient to prove appellee's prior convictions involving family violence. For the following reasons, we conclude we lack jurisdiction over the State's complaints and affirm the trial court's judgment.
 
 
Background
 
        The State charged appellee with assault family violence and alleged appellee had two prior convictions “against a person who was a member of the said defendant's family and household and with whom the said defendant had a dating relationship.” The State and appellee entered into a plea bargain agreement in which appellee agreed to admit his guilt in exchange for a two-year sentence. At the plea hearing, appellee entered a plea of guilty and the State introduced appellee's judicial confession in which appellee admitted he had committed the offense as alleged in the indictment. After the trial judge determined appellee was aware of the consequences of his plea, the State and appellee rested and closed. The trial court then stated:
        The indictment and your confession reference the offense of assault, a Class A misdemeanor. That offense is raised to a third- degree felony if you have a previous conviction for an offense against a family member. And that offense was under Chapter 22 of the Penal Code, Chapter 19 of the Penal Code, Section 20.03, 21.04, and 20.11 of the Penal Code.
        Since the indictment does not contain such an allegation, since the State's proof does not establish this allegation, the only evidence presented is that you are guilty of a Class A misdemeanor assault and I will find you guilty of a Class A misdemeanor assault.
The trial court then denied the State's request to reopen the evidence, but continued the trial to allow the State to “bring me evidence that allows me to reopen a case after a verdict of guilty has been rendered.” Twelve days later, the State reurged its motion to reopen and also asked the trial court to reject the plea agreement and allow the State to withdraw from the plea agreement. The trial court denied the State's requests stating “Jeopardy is attached. I can't do anything to this.” The trial court then sentenced appellee to confinement for one year. This State's appeal followed.
 
Discussion
        We begin our discussion by determining whether the State has invoked this Court's jurisdiction. Article 44.01(b) of the Texas Code of Criminal Procedure gives the State the right “to appeal a sentence in a case on the ground that the sentence is illegal.” Tex. Code Crim. Proc. Ann. art. 44.01(b) (Vernon Supp. 2008). The State is allowed to appeal “a sentence not when a sentence is illegal, but on the ground that it is illegal.” State v. Ross, 953 S.W.2d 748, 750 (Tex. Crim. App. 1997). The sentence “is that part of the judgment, or order revoking a suspension of the imposition of a sentence, that orders that the punishment be carried into execution in the manner prescribed by law.” Tex. Code Crim. Proc. Ann. art. 42.02 (Vernon 2006); State v. Kersh, 127 S.W.3d 775, 777 (Tex. Crim. App. 2004); Ross, 953 S.W.2d at 750. Factors that merely affect these facts are not part of the sentence. Ross, 953 S.W.2d at 750. For example, the offense for which a defendant is convicted or a deadly weapon finding impact the sentence, but are not part of the sentence and may not be appealed by the State. See Ross, 953 S.W.2d at 750-51.
        A sentence is considered to be illegal if it is outside either the maximum or minimum range of punishment. See Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003). The sentence in this case, as reflected in the written judgment, is not illegal on its face; confinement for one year falls within the punishment range for misdemeanor assault. See Tex. Penal Code Ann. §§ 12.21, 22.01(b) (Vernon 2003 & Supp. 2008). The State's allegations that the trial court was not authorized to reject the plea agreement, force the State to proceed to a trial before the court, and then find appellee guilty of the lesser-included offense of misdemeanor assault are “not appealing the sentence, but the procedure leading to the assessment of punishment.” See State v. Baize, 981 S.W.2d 204, 206 (Tex. Crim. App. 1998). Therefore, we do not have jurisdiction to address these allegations. See id.
        Alternatively, the State, relying on Kersh, maintains the sentence is illegal because the allegations in the indictment of appellant's prior convictions involving family violence are the “functional equivalent of enhancement allegations.” See Kersh, 127 S.W.3d at 778 (finding enhancement allegations used to sentence defendant pursuant to habitual-offender provisions of penal code are part of sentence, and State may appeal trial court's failure to consider such findings when assessing punishment).
        A statute may present prior convictions as either enhancement provisions or as an element of an offense. Calton v. State, 176 S.W.3d 231, 232 (Tex. Crim. App. 2005). If the statute presents the prior conviction as an element of the offense, it must be proven at the guilt phase of the trial. In contrast, a prior conviction alleged for enhancement is “not really a component element of the primary offense.” Id. at 233. An enhancement “increases the punishment range to a certain range above that ordinarily prescribed for the indicted crime.” Id. It does not change the offense, or the degree of the offense.” Id. There can be no enhancement until a person is first convicted of an offense of a certain degree. Id.
        Here, appellee was indicted for third-degree assault pursuant to section 22.01(b)(2) of the penal code. A person commits assault if they intentionally, knowingly, or recklessly cause bodily injury to another, including the person's spouse. Tex. Penal Code Ann. § 22.01(a)(1) (Vernon Supp. 2008). Such an offense is a Class A misdemeanor, except that the offense is a felony of the third degree if committed against:
a person whose relationship to or association with the defendant is described by Section 71.0021(b), 71.003, or 71.005, Family Code, if it is shown on the trial of the offense that the defendant has been previously convicted of an offense under this chapter, Chapter 19, or Section 20.03, 20.04, or 21.11 against a person whose relationship to or association with the defendant is described by Section 71.0021(b), 71.003, or 71.005, Family Code[.]
 
Tex. Penal Code Ann. § 22.01(b)(2) (Vernon Supp. 2008).
        Section 22.01 defines third-degree assault as occurring when the actor has committed assault against a person whose relationship to or association with the defendant is described by section 71.0021(b), 71.003, or 71.005 of the family code family member and has been previously convicted of an offense under chapter 19, or section 20.03, 20.04, or 21.11 of the penal code against a person whose relationship to or association with the defendant is described by section 71.0021(b), 71.003, or 71.005 of the family code. Thus, a conviction for third-degree felony assault cannot occur unless the prior conviction is proven and it must be proven at the guilt phase of the trial. See Calton, 176 S.W.3d at 234 (determining proof of prior conviction for evading arrest is an element of third-degree felony evading arrest and must be proven at guilt phase of trial); Sheppard v. State, 5 S.W.3d 338, 340 (Tex. App.-Texarkana 1999, no pet.) (although prior convictions for assault, family violence, are elements of offense of third-degree felony assault, dates of convictions for prior convictions are not elements of offense). Because the prior convictions are elements of the offense and not enhancements elevating punishment without changing the degree of the offense, Kersh is inapplicable in this case. Further, because the prior convictions are elements of the offense, the State's complaint is not about an illegal sentence but rather is a challenge to the sufficiency of the evidence supporting appellant's conviction. Such a complaint is not authorized by article 44.01(b).         The State's allegations in this appeal are complaints about the procedure leading to the assessment of punishment and the sufficiency of the evidence to support appellant's conviction. Because the State does not appeal on the ground that the sentence is illegal, we lack jurisdiction to consider the State's complaints.
        Accordingly, we dismiss this appeal for want of jurisdiction.
 
 
                                                          
                                                          CAROLYN WRIGHT
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
080549F.U05