Shawn Lewis Smith v. The State of Texas--Appeal from 220th District Court of Bosque County

IN THE

TENTH COURT OF APPEALS

No. 10-95-020-CR

SHAWN LEWIS SMITH,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 220th District Court

Bosque County, Texas

Trial Court # 91-09-11521bccr

O P I N I O N

Shawn Lewis Smith was indicted in 1991 in Bosque County for four counts of aggravated assault, each alleging the use of a deadly weapon. One count was severed before trial. A jury found Smith guilty on the remaining three counts and assessed ten years' confinement and a $500 fine. At sentencing, // the court ordered that the sentence begin after Smith completed a prior sentence on a burglary conviction from another county. Smith complains of error in three respects: (1) in submitting a single punishment verdict form to the jury; (2) in "stacking" the sentence; and (3) in giving an "additional instruction" to the jury during its deliberations. We will reverse and remand for a new punishment hearing.

Smith and his wife, Denise, were at a park in Bosque County when an argument between them arose, and he hit her and knocked her down. David Tatum, a member of a nearby group, intervened in the argument, and Smith attacked him. Tatum fell, and Smith continued to kick him. Mark Herzog, another member of the group, intervened, and Smith hit him with a "tire tool" and threatened him with a shotgun. The court charged the jury on each of the three alleged assaults and on Smith's claim of self-defense. The jury found him guilty of all three counts. At the punishment hearing, the court submitted a single form for the jury to return its decision on punishment. Smith says this was improper.

Section 3.03 of the Penal Code provides:

When the accused is found guilty of more than one offense arising out of the same criminal episode prosecuted in a single criminal action, sentence for each offense for which he has been found guilty shall be pronounced. Such sentences shall run concurrently.

Tex. Penal Code Ann. 3.03 (Vernon 1994). The statute contemplates separate sentences for separate offenses even when, as here, the offenses were prosecuted in a single criminal action. Neither party contends that the offenses of which Smith was found guilty did not arise out of the same criminal episode.

Smith says that, by submitting a single punishment form, "the court effectively required the jury to cumulate the punishment of incarceration it would have imposed had a separate punishment verdict been submitted for each of the counts of conviction." He points to the State's final argument asking the jury to impose ten years, the "full range of punishment," because Smith had been found guilty of three counts of aggravated assault. He further says that, when a jury is required to effectively cumulate punishments by the use of a single verdict form, a defendant is denied the quid pro quo for consolidating offenses for prosecution. See id.

Citing Paul J. McClung, Jury Charges for Texas Criminal Practice 229 (1992), the State asserts that the practice is proper or, alternatively, that Smith did not suffer egregious harm. Its argument centers around Smith's right to a severance of offenses joined for prosecution. See id. 3.04 (Vernon 1994). Had Smith moved for a severance, it argues, he would have been liable for twenty years in prison instead of ten, presumably because the court would have had discretion to "stack" two ten-year sentences, i.e., run them consecutively, instead of being compelled to run them concurrently. See id. Thus, it says Smith benefitted from his decision not to seek a severance and should not be heard to say he has been harmed.

Neither party can be shown to be right. Smith's argument assumes he would have received less than ten years per offense if the jury had been required to consider the punishments separately. The State's argument assumes he would have received the maximum in each case if a severance had been requested and granted.

At the sentencing hearing, the court said:

Mr. Smith, it is the judgment of this court, based on the jury verdict, that you are guilty of the three counts of aggravated assault as alleged in counts one, three and four of the indictment, and with that finding the Court will further find that you did use a deadly weapon in the commission of that -- of those offenses.

Sentence will be pronounced in accordance with the jury verdict at ten years confinement in the Institutional Division of the Texas Department of Criminal Justice.

You will be given the jail credits as we have discussed toward the performance of that, then the balance will be ordered served after you have completed your sentence in Cause Number 219-80122-88, styled the State versus Shawn Lewis Smith out of the 219th Judicial District Court of Collin County, Texas.

Five hundred dollar fine is assessed. . . .

Thus, the court pronounced one sentence of ten years.

When construing a statute, a court must focus on the literal text of the statute. Iglehart v. State, 837 S.W.2d 122, 126 (Tex. Crim. App. 1992); Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991). When the literal text of a statute is clear, the court must give effect to the plain meaning of the text. Id. In the face of a statute as clear as section 3.03, we have a duty to apply it literally. See id; Tex. Penal Code Ann. 3.03. To "sentence for each offense," the court must know what punishment has been assessed for "each offense." The Code of Criminal Procedure provides that punishment "shall be assessed on each count on which a finding of guilty has been returned." Tex. Code Crim. Proc. Ann. art. 37.07, 2(c) (Vernon 1981).

Smith did not object to the charge. Unobjected-to charge error results in reversal only if the accused suffered "egregious harm." Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (on rehearing).

This case is similar to Cline v. State, where, after a finding of guilt on two counts of arson, the court submitted a charge on punishment that "allowed for a finding of only one punishment for the entire episode." See Cline v. State, 770 S.W.2d 844, 846 (Tex. App. Texarkana 1989, no pet.). The Texarkana court held the submission of only one form for the verdict was error, found egregious harm, and remanded for a new punishment hearing. Id. at 847.

We will follow the reasoning in Cline. See id. at 846-47. Because the court did not cause the jury to assess a punishment for each offense, we find that Smith has suffered egregious harm. See Almanza, 686 S.W.2d at 171. We sustain point one.

Because there may be additional considerations at a new punishment hearing, we will not address Smith's second point concerning the propriety of the court's determination that the sentence should begin after he completes the sentence he received in Collin County.

The third point complains of an instruction the judge sent to the jury. During its deliberations on guilt-innocence, the jury advised the court that it had agreed on two of the counts and inquired whether a mistrial would result if it could not agree on the remaining count. Over Smith's objection, the court answered, "No." Smith says this constituted an additional instruction that was beyond the scope of article 36.14 of the Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 36.14 (Vernon Supp. 1995). The State says (1) the court had a duty to answer the question under article 36.27 and (2) the instruction was a correct statement of law. See id. art. 36.27 (Vernon 1981). The State cites a similar situation in Dory v. State, where the court answered "Yes" after the jury asked if they could vote "only on count #2 and not on count #3?" See Dory v. State, 646 S.W.2d 648, 652 (Tex. App. Fort Worth 1983, pet. ref'd). Although decided prior to the adoption of the harmless-error rule now present in the appellate rules, the Dory court appears to have determined that the error, if any, was harmless. Id.; Tex. R. App. P. 81(b)(2).

Here, the counts were being tried together, and the sentences for any counts on which he might be found guilty would run concurrently. See Tex. Penal Code Ann. 3.03. Because of this, we do not believe he was harmed by the court's answer to the jury's inquiry. // We overrule point three.

Having found error, we reverse the judgment and remand the case for further proceedings. Because the error occurred at the punishment stage, the reversal will result in a new trial as to punishment only. See Tex. Code Crim. Proc. Ann. art. 44.29(b) (Vernon Supp. 1995).

BILL VANCE

Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Reversed and remanded

Opinion delivered and filed August 23, 1995

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