i          i        i                                                              i      i     i




                                                OPINION

                                          No. 04-07-00615-CR

                                     Antonio Marcelo QUESADA,
                                              Appellant

                                                    v.

                                         The STATE of Texas,
                                               Appellee

                            From the County Court, Bandera County, Texas
                                      Trial Court No. 06-00716
                             Honorable Richard A. Evans, Judge Presiding

Opinion by:       Phylis J. Speedlin, Justice

Sitting:          Sandee Bryan Marion, Justice
                  Phylis J. Speedlin, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: March 18, 2009

REVERSED AND REMANDED

           Antonio Marcelo Quesada appeals his conviction and sentence for possession of marijuana,

arguing that the trial court erred in submitting the jury charge on punishment. We reverse and

remand for a new trial on punishment.

                                                BACKGROUND

           A jury found Quesada guilty of misdemeanor possession of marijuana, four ounces or less

but more than two ounces. TEX . HEALTH & SAFETY CODE ANN . § 481.121(a), (b)(2) (Vernon 2003).
                                                                                                   04-07-00615-CR

Such an offense is a Class A misdemeanor punishable by: “(1) a fine not to exceed $4,000; (2)

confinement in jail for a term not to exceed one year; or (3) both such fine and confinement.” TEX .

PENAL CODE ANN . § 12.21 (Vernon 2003). The punishment charge read, in pertinent part, as

follows:

       A person convicted of this offense is punishable by:

       (1) a Fine of not more than $4,000.00; and

       (2) confinement in jail for a term of not less than 72 hours to one (1) year. . . .

The verdict form similarly required the jury to assess both a fine and a term of confinement.1 The

jury recommended that punishment be assessed at a fine of $1,800 and a year of confinement in the

county jail, to be suspended and probated for 24 months. The trial court sentenced Quesada in

accordance with the jury’s recommendation. On appeal, Quesada argues that the jury charge stated

an incorrect range of punishment that imposed a minimum sentence where none was required by

statute, and further required the jury to both fine and incarcerate Quesada, without the option of

assessing one or the other.

                                                    DISCUSSION

       A Class A misdemeanor is punishable by either a fine or confinement, or both, yet the

punishment charge at issue unequivocally instructed the jury to assess both a fine and a term of

confinement. See TEX . PENAL CODE ANN . § 12.21. Accordingly, the trial court erred in submitting

a charge that instructed the jury to assess both a fine and a term of confinement when the Penal Code




       1
           …   The relevant portion of the verdict form reads:

                   (A) W e, the jury, find the Defendant should be punished as follows:
                           (1) a Fine in the amount of $ _______ and
                           (2) confinement in jail for a term of ______ days in the county jail.

                                                          -2-
                                                                                       04-07-00615-CR

clearly provides that the offense may be punishable by one or the other. See id. Further, the trial

court erred in instructing the jury that the term of confinement must be at least 72 hours. Because

Quesada did not object to the charge errors, we must determine whether the errors require reversal

under the traditional Almanza harm analysis, which requires Quesada to show that the error was so

egregious as to deprive him of a fair and impartial trial. See Almanza v. State, 686 S.W.2d 157, 171

(Tex. Crim. App. 1984). Egregious harm is present whenever a reviewing court finds that the case

for conviction or punishment “was actually made clearly and significantly more persuasive by the

error.” Saunders v. State, 817 S.W.2d 688, 692 (Tex. Crim. App. 1991). We review the entire

charge, the evidence, argument of counsel, and any other relevant information revealed by the record

of the trial as a whole to determine the degree of harm. Alamanza, 686 S.W.2d at 171.

       During closing argument on punishment, the State compounded the charge error by arguing

to the jury that “punishment is essentially a fine and jail time.” The State recommended that the jury

assess Quesada a year of jail, probated for 24 months, and a $4,000 fine. The charge likewise

instructed the jury to assess both a fine and a term of confinement of at least 72 hours. The State

now argues that Quesada has not been harmed because the jury assessed a “reasonable” punishment

within the lawful range. We recognize that egregious error generally does not occur when, despite

an erroneous instruction on the punishment range, the jury imposes a punishment within the lawful

range. See, e.g., Cartwright v. State, 833 S.W.2d 134, 136-37 (Tex. Crim. App. 1992) (holding that

although the trial court erred in permitting the jury to assess a fine greater than that allowed by

statute, appellant did not suffer egregious harm because the jury assessed a fine within the range

actually permitted by law). The instant case, however, differs in one distinct regard in that the

punishment charge failed to give the jury two options required by statute—to assess only a fine, or



                                                 -3-
                                                                                         04-07-00615-CR

only confinement up to one year; thus, the jury was precluded from considering the full range of

punishment options available to Quesada. See Evans v. State, 945 S.W.2d 153, 157 (Tex. App.—El

Paso 1997, no pet.) (holding that trial court’s failure to instruct the jury that it had the option of

confining the defendant in a community corrections facility constituted egregious harm, even though

the punishment assessed fell within the range permitted by statute).

        Similarly, in Coody v. State, the Fourteenth Court of Appeals determined that the appellant

suffered egregious harm when the trial court failed to include a less severe penalty alternative in the

punishment charge. Coody v. State, 812 S.W.2d 631, 634-35 (Tex. App.—Houston [14th Dist.]

1991), rev’d on other grounds, 818 S.W.2d 68 (Tex. Crim. App. 1991). The court stated:

        We cannot assume appellant was not harmed if the jury was instructed to assess more
        than the minimum term available under the law, and they assessed more than the
        minimum but a term within the correct range. Although punishment assessed fell
        within the lawful range instructed, it is not for this court to determine upon review
        that the jury might have assessed the same punishment had they been correctly
        instructed that the law holds the offense charged to deserve a range of punishment
        alternatives including the option for a less severe minimum sentence. Therefore we
        must conclude that appellant suffered egregious harm, for she was denied the
        opportunity to receive a sentence less harsh than the minimum the jury was instructed
        to impose.

Id. (emphasis in original; internal citations omitted). Likewise, the charge here failed to give the jury

the option of assessing the less severe minimum punishment of only a fine or only a term of

confinement, but not both. We conclude that the failure to correctly instruct the jury on the full

punishment range—including the minimum punishment options prescribed by statute—constitutes

egregious harm which deprived Quesada of a fair and impartial proceeding. Accordingly, Quesada’s

issue on appeal is sustained, and the cause is remanded to the trial court for a new trial on

punishment. See TEX . CODE CRIM . PROC. ANN . art. 44.29(b) (Vernon Supp. 2008).




                                                   -4-
                                                                                 04-07-00615-CR

                                       CONCLUSION

     We affirm the judgment of conviction but reverse and remand for a new trial on punishment.



                                                   Phylis J. Speedlin, Justice



PUBLISH




                                             -5-
