                                  In The
                             Court of Appeals
                    Seventh District of Texas at Amarillo

                                  No. 07-12-00476-CR


                          JOE DANIEL LUNA, APPELLANT

                                           V.

                         THE STATE OF TEXAS, APPELLEE

                         On Appeal from the 242nd District Court
                                   Hale County, Texas
            Trial Court No. B19083-1203, Honorable Edward Lee Self, Presiding

                                     May 28, 2013

                                      OPINION
               Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

      Joe Daniel Luna appeals his conviction for assault and alleges that he was

improperly punished. We reform, reverse and remand.

      Background

      Here, the jury found appellant guilty of class A misdemeanor assault during the

guilt phase of the trial. However, during punishment, the State sought to elevate the

crime into a felony of the third degree by presenting evidence that appellant had

previously been convicted of assaulting a family member. Because the jury ultimately
found (in answer to the trial court's instructions during punishment) that appellant had

committed the aforementioned prior offense, appellant was convicted of and sentenced

for committing a third degree felony.     Now we are being asked if that was proper.

Specifically, appellant contends that before he could be convicted for the felony, the

State had to prove the existence of the prior offense as part of its case-in-chief during

the guilt phase of the trial. We agree.

       Discussion

       Statute provides that a person commits an offense if he “intentionally, knowingly,

or recklessly causes bodily injury to another, including the person’s spouse.”      TEX.

PENAL CODE ANN. § 22.01(a) (West 2011). Normally, the crime is considered a Class A

misdemeanor, “except . . . the offense is a felony of the third degree if the offense is

committed against: . . . (2) 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: (A) 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, 21.11, or 25.11

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.” Id. § 22.01(b)(2)(A) (emphasis

added). No one disputes that the prior offense averred in the charge on punishment

was of the ilk itemized in section 22.01(b)(2)(A). So, we are left simply to determine

whether it had to be proven during the guilt phase of the trial, as opposed to the

punishment phase, before the crime could be considered a third degree felony.

       In Calton v. State, 176 S.W.3d 231 (Tex. Crim. App. 2005), the Court of Criminal

Appeals was asked to resolve a like contention involving a similarly structured statute.



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There, the accused was charged with evading arrest or detention and the operative

statute, in effect at the time the Court issued its opinion, provided that:

       (a) A person commits an offense if he intentionally flees from a person he
       knows is a peace officer attempting to lawfully arrest or detain him.

       (b) An offense under this section is a Class B misdemeanor, except that
           the offense is:

          (1) a state jail felony if the actor uses a vehicle while the actor is in
              flight and the actor has not been previously convicted under this
              section;

          (2) a felony of the third degree if;

              (A) the actor uses a vehicle while the actor is in flight and the actor
                  has been previously convicted under this section. . . .


TEX. PENAL CODE ANN. § 38.04 (West 2001). Upon looking at the statutory verbiage, the

Court encountered “nothing ambiguous about the” language.              Calton v. State, 176

S.W.3d at 234. “It defines third-degree evading arrest as occurring when the actor has

previously been convicted of evading arrest. A conviction for this offense cannot occur

until this element is proved.” Id. In other words, it concluded that proving the existence

of a prior conviction for evading arrest was an element of the crime categorized as

“third-degree evading arrest.” More importantly, that element (i.e. the prior conviction)

had to be established, according to the Court, during the guilt phase of the trial as part

of the State's burden. Id.

       Section 22.01(b)(2)(A) can be read no differently than § 38.04. The former, like

the latter, initially classifies the offense as a misdemeanor, then specifies that it is a

felony if the accused was previously convicted of some other specified offense. So, we

are compelled to hold that unless the State proved the existence of the prior conviction



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during the guilt phase of the trial, appellant could not be convicted of third-degree felony

assault here. Accord, Olivas v. State, No. 08-11-00081-CR, 2013 Tex. App. LEXIS 3052,

at *9 (Tex. App.–El Paso March 20, 2013, no pet.) (not designated for publication)

(stating that “[b]ecause an alleged prior conviction of family-violence assault is required

to raise the underlying misdemeanor offense to a third-degree felony offense, we do not

agree that the prior conviction is merely a punishment enhancement”). And, that did not

happen.

       Because the State failed to carry its burden of proof, the trial court erred

convicting appellant for felony assault. Thus, the judgment is reformed to reflect that

the offense for which he was convicted was a class A misdemeanor. We also reverse

that portion of the judgment by which appellant was sentenced to ten years

imprisonment and fined $5000 for the punishment exceeds that attributable to a class A

misdemeanor.     So, the cause is remanded to the trial court for a new punishment

hearing.   See Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003) (stating a

sentence outside the maximum range of punishment for that offense is illegal); see also

Speth v. State, 6 S.W.3d 530, 532-33 (Tex. Crim. App.1999) (“[A] defendant has an

absolute and nonwaivable right to be sentenced within the proper range of punishment

established by the Legislature”).



                                                 Brian Quinn
                                                 Chief Justice
Publish.




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