                                 NO. 12-14-00019-CR

                         IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS

WILLIE WOMACK,                                  §      APPEAL FROM THE 3RD
APPELLANT

V.                                              §      JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                        §      ANDERSON COUNTY, TEXAS

                                 MEMORANDUM OPINION
       A jury convicted Appellant, Willie Womack, of the offense of assault on a public servant
and assessed his punishment at imprisonment for twenty years. Appellant presents two issues on
appeal related to the juvenile adjudication used to enhance his punishment. We reverse and
remand for a new trial on punishment.


                                         BACKGROUND
       Appellant assaulted correctional officer Dakota Acker in the Mark W. Michael Unit in
Anderson County, Texas. In the attack, Acker suffered a laceration to his left temple, contusions
to his right elbow and a finger of his left hand, and chipped upper incisors requiring dental
surgery to repair.
       While a juvenile, Appellant was found to have engaged in delinquent conduct, namely
aggravated sexual assault, criminal solicitation to commit aggravated robbery, criminal
solicitation to commit aggravated assault with a deadly weapon on a public servant, criminal
solicitation to commit escape, and retaliation. Thereafter, on October 20, 2000, a disposition
hearing was held, and Appellant was committed to the Texas Youth Commission under a
determinate sentence. The court sentenced Appellant to twenty-five years of imprisonment and
ordered him transferred to the Texas Department of Criminal Justice.
        Before Appellant’s trial for assault on the correctional officer, the State gave notice that it
intended to use his juvenile offenses to enhance his punishment. Appellant pleaded “not true” to
the enhancement allegation.           To prove the enhancement allegation, the State offered into
evidence a penitentiary packet containing the “Order to Transfer to the Institutional Division of
the Texas Department of Criminal Justice” that stated Appellant’s date of birth to be May 22,
1986. However, his fingerprint card in the same packet showed his date of birth as May 22,
1985.
        At the close of the punishment evidence, Appellant requested the trial court instruct the
jury, as follows:


        I think in addition to finding [the enhancement allegation] true, the – that it should also include,
        “and that the Defendant was adjudicated by a juvenile court under Texas Family Code” –Let’s see
        the statute. Has a section I believe it’s 54.03, “and that the child engaged in delinquent conduct on
        or after January 1st, 1996, constituting a felony offense for which the child was committed to the
        Texas Youth Commission,” I believe is what the statute says. And that conviction – let’s see if it
        says, “became final prior to the” – “the commission of the offense of assault on a public servant.”


        In opposition to Appellant’s requested instruction, the State argued that because
Appellant’s juvenile adjudication occurred on or before October 20, 2000 (the date of the
adjudication), “his juvenile adjudication statutorily became a final felony conviction before
Womack committed this offense in TDC.”
        The trial judge, however, was fully cognizant that a juvenile adjudication cannot be used
for enhancement unless the conduct occurred on or after January 1, 1996, the effective date of
the provisions of Section 12.42(f) of the penal code. The trial judge noted that the transfer order
showed Appellant’s date of birth as May 22, 1986. She reasoned that Appellant could not have
been ten years old and subject to the juvenile code until after January 1, 1996. Therefore, she
determined that Appellant could not have committed the delinquent acts before January 1, 1996.
        The trial court instructed the jury using the ordinary language for enhancement for a prior
felony conviction.


                  Now, if you find from the evidence beyond a reasonable doubt that the defendant
        WILLIE WOMACK is the same person who was finally convicted of the offense listed in the
        enhancement paragraph and that the conviction alleged in [the] enhancement paragraph became
        final prior to the offense in this case, then you will assess his punishment at confinement in the
        Texas Department of Criminal Justice for any term of not more than twenty years (20) or less than
        two years (2) and in addition to imprisonment, a fine not to exceed $10,000.00 may be imposed.




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         The jury found the enhancement allegation “true” and assessed Appellant’s punishment
at imprisonment for twenty years.


                                           JURY CHARGE
         In his second issue, Appellant insists that the trial court’s punishment charge failed to
instruct the jury properly under Texas Penal Code Section 12.42(f)–that before it can find the
enhancement allegation true, it must find that he engaged in the delinquent conduct forming the
basis of his prior juvenile adjudication on or after January 1, 1996.
Applicable Law
         The trial court is required to deliver to the jury “a written charge distinctly setting forth
the law applicable to the case.” TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007). “After
the introduction of [punishment] evidence has been concluded, . . . the court shall give such
additional written instructions as may be necessary. . . .” Id. art. 37.07 § 3(b) (West Supp. 2014).
A plea of “not true” forces the state to prove the enhancement allegations in the indictment
beyond a reasonable doubt. Kucha v. State, 686 S.W.2d 154, 155 (Tex. Crim. App. 1985) (en
banc).
         Errors in the jury charge are reviewed under a special harm standard and not under the
general harmless error standard set out in Rule 44.2 of the Texas Rules of Appellate Procedure.
Flores v. State, 224 S.W.3d 212, 212-13 (Tex. Crim. App. 2007). Error that is called to the trial
court’s attention requires reversal if the error caused “some” actual harm to the appellant;
unobjected to error will not result in reversal unless the error was so egregious as to deprive the
appellant of a fair and impartial trial. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App.
1984); Flores, 224 S.W.3d at 213. “In both situations, the actual degree of harm must be
assayed in the light of the entire jury charge, the state of the evidence, including the contested
issues and weight of probative evidence, the argument of counsel[,] and any other relevant
information revealed by the record of the trial as a whole.” Almanza, 686 S.W.2d at 171.
         To be subject to the juvenile code, one must be a “child” of ten years of age or older and
under seventeen years of age. TEX. FAM. CODE ANN. §§ 51.02(2)(A); 51.04(a) (West 2014). An
order of adjudication is not a conviction of a crime except as provided in section 51.13(d) of the
family code.     Id. § 51.13(a) (West 2014).       Section 51.13(d) provides that only a felony



                                                   3
adjudication in which a child engaged in conduct that occurred on or after January 1, 1996, can
be a final felony conviction for enhancement purposes. Id; TEX. PENAL CODE ANN. § 12.42(f)
(West Supp. 2014).
Discussion
       The critical inquiry in this case is when Appellant committed the acts for which he was
adjudicated. There is no evidence of when the conduct occurred, and the record contains
conflicting evidence regarding Appellant’s date of birth. According to the date of birth stated in
the transfer order, May 22, 1986, Appellant could not have been ten years old and subject to the
juvenile code until after January 1, 1996. It would, therefore, be safe to assume that Appellant
committed the delinquent conduct after January 1, 1996.
       However, according to Appellant’s birth date as shown on his fingerprint card, May 22,
1985, Appellant would have become ten years of age and subject to adjudication seven months
and nine days before the effective date of Section 12.42(f). Therefore, the possibility exists that
the conduct for which Appellant was adjudicated occurred during that period. In that event, his
adjudication could not be used for enhancement.
       In response to Appellant’s first issue challenging the sufficiency of the evidence, the
State argues that it is the jury’s province to resolve conflicts in the evidence. Both birth dates
were in evidence. The State contends the jury was free to choose the birth date, May 22, 1986,
which eliminated any possibility that the conduct occurred before January 1, 1996.
       However, the charge given by the trial judge foreclosed any consideration of the issue by
the jury. The jury was left unaware that there was an issue to decide. Without instruction by the
trial court, the jury could not have known that the decision as to the date of Appellant’s conduct
was a crucial question to be decided before they could find the enhancement to be true. Without
the court’s guidance, the jury could not possibly have understood that the date of Appellant’s
delinquent conduct was a fact of great consequence nor could they have appreciated the
evidentiary significance of the conflicting dates of birth.
       The trial court is required to deliver to the jury “a written charge distinctly setting forth
the law applicable to the case.” TEX. CODE CRIM. PROC. ANN. art. 36.14. The trial court erred in
failing to instruct the jury that before it could find the enhancement allegation “true” as a final
felony conviction, it must first find that Appellant was a child (as defined by Section 51.02(2) of




                                                  4
the family code) who engaged in the delinquent conduct for which he was adjudicated on or
before January 1, 1996.
         The State contends that by not bringing the conflict in the evidence to the court’s
attention, Appellant waived error. Although incorrect, Appellant’s requested instruction was
sufficient to direct the trial court’s attention to the omission in the charge, and it correctly set
forth the legal basis for his objection to the charge and for an instruction under Section 12.42(f)
of the penal code. See Mays v. State, 318 S.W.3d 368, 384 (Tex. Crim. App. 2010).
         “Some harm” is readily apparent. The jury found Appellant guilty of a third degree
felony. Properly instructed with the language of Section 12.42(f) of the penal code and with the
definition of a “child” in Section 51.02(2) of the family code, the jury could have returned a
finding of “not true.” In that case, the jury could have assessed no more than a ten year sentence,
only half of the sentence Appellant received. Appellant’s second issue is sustained.
         It is unnecessary that we address Appellant’s first issue because of our disposition of his
second issue. See TEX. R. APP. P. 47.1.


                                                   DISPOSITION
         We reverse the trial court’s judgment as to punishment, and remand the case for a new
trial on punishment.
                                                                               BILL BASS
                                                                                Justice


Opinion delivered September 17, 2014.
Panel consisted of Worthen, C.J., Hoyle, J., and Bass, Retired J., Twelfth Court of Appeals, sitting by assignment.




                                             (DO NOT PUBLISH)



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                                 COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                          JUDGMENT

                                      SEPTEMBER 17, 2014


                                        NO. 12-14-00019-CR


                                     WILLIE WOMACK,
                                          Appellant
                                             V.
                                    THE STATE OF TEXAS,
                                          Appellee


                                Appeal from the 3rd District Court
                         of Anderson County, Texas (Tr.Ct.No. 30692)

                      THIS CAUSE came to be heard on the appellate record and the briefs filed
herein, and the same being considered, because it is the opinion of this court that there was error
in the judgment of the court below, it is ORDERED, ADJUDGED and DECREED by this court
that the judgment be reversed and the cause remanded to the trial court for a new trial on
punishment; and that this decision be certified to the court below for observance.
                      Bill Bass, Justice.
                      Panel consisted of Worthen, C.J., Hoyle, J., and Bass, Retired J., Twelfth Court of
                      Appeals, sitting by assignment.
