                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                               NO. 02-14-00450-CR


ERIC BLEDSOE                                                            APPELLANT

                                         V.

THE STATE OF TEXAS                                                            STATE


                                      ----------

     FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY
                   TRIAL COURT NO. 1325173D

                                      ----------

                           DISSENTING OPINION

                                      ----------

      I concur in the majority’s resolution of Appellant’s issues, but as to the

State’s cross-point, I cannot agree that a judgment must contain the sentencing

details in the statement of the offense. I therefore respectfully dissent from the

conscientious majority opinion.

      In its cross-point, the State argues that the trial court’s judgment incorrectly

sets out the penal code provision for the offense of which Appellant was
convicted when the judgment states that the “Statute for [Appellant’s] Offense” is

penal code section “22.021(a)(2)(B)” and that the judgment incorrectly names the

offense for which Appellant was convicted as aggravated sexual assault of a

child. The State argues that the judgment should instead provide that Appellant

was convicted under penal code section 22.021(f) and that the name of the

offense set out in the judgment should be aggravated sexual assault of a child

under six years of age.         Otherwise, the State argues, the experienced

professionals in the Texas penal system will not know. The majority appears to

agree. I believe the State is incorrect.

      The State argues that its requested changes are mandated by the

importance of this information to prison officials for many years into the future.

The State may be correct that the information is important, but the State

confuses offense code provisions with punishment code provisions. The offense

for which Appellant was tried and convicted is aggravated sexual assault of a

child, as set out in penal code section 22.021(a)(1)(B)(i), (2)(B). 1 The name of

the offense for which Appellant was tried and convicted is not described in

section 22.021(f). 2   That subsection provides that “[t]he minimum term of

imprisonment for an offense under this section is increased to 25 years if . . . the




      1
       See Tex. Penal Code Ann. § 22.021(a)(1)(B)(i), (2)(B) (West Supp. 2014).
      2
       See id. § 22.021(f).


                                           2
victim of the offense is younger than six years of age at the time the offense is

committed . . . .” 3 It is a punishment provision.

          Additionally,   the   judgment   specifically   states   that   “Sex   Offender

Registration Requirements apply to the Defendant.             Tex. Code[] Crim. Proc.

chapter 62. The age of the victim at the time of the offense was Younger than 6

Years of Age.” Thus, the judgment correctly sets out the statute under which

Appellant was tried and convicted, sets out the name of the offense—aggravated

sexual assault of a child, notes that Appellant must register as a sex offender,

and provides ample notice of the fact that the child complainant was under six

years of age to the prison officials who will have to determine Appellant’s release

date. 4

          Further, penal code section 22.021(f) does not prohibit parole for offenders

convicted of sexual assault of a child under six years of age. That prohibition is

found in government code section 508.145, which provides, “[An inmate] serving

a sentence for an offense under Section 22.021, Penal Code, that is punishable

under Subsection (f) of that section is not eligible for release on parole.” 5




          3
          Id.
          4
       See Tex. Code Crim. Proc. Ann. art. 42.01 (West Supp. 2014) (providing
requirements of judgment).
          5
          Tex. Gov’t Code Ann. § 508.145(a) (West 2012).


                                             3
      The majority states that

            The State’s requested modification is warranted because it
      was an element of the offense that the State was required to prove,
      because it ensures proper calculation of [Appellant]’s sentence for
      aggravated sexual assault of a child under six, and because
      [Appellant] does not argue it would be improper.

      Respectfully, the plain reading of the statute suggests that proof that the

complainant was a child younger than six is not an element of the offense of

aggravated sexual assault of a child that the State was required to prove to

establish Appellant’s guilt. A plain reading of the statute suggests that the State

was required to prove only that the complainant was a child under the age of

fourteen in order to prove Appellant’s guilt of the offense alleged in the

indictment, aggravated sexual assault of a child. Relying on the plain reading,

which we must, 6 the fact that the child is under six years of age is a punishment

issue, not an element of the offense.

      The majority relies in part on an unpublished opinion, Leija-Balderas v.

State, 7 as authority for adding the punishment issue to the description of the

offense, yet the Leija-Balderas court deleted the notation on the judgment that

the child was five at the time the defendant committed the offense of aggravated




      6
       See Swearingen v. State, 303 S.W.3d 728, 732 (Tex. Crim. App. 2010)
(“As an appellate court, we must give effect to the plain meaning of the statute.”).
      7
       No. 05-14-00648-CR, 2015 WL 1454948 (Tex. App.—Dallas Mar. 27,
2015, pet. ref’d) (mem. op., not designated for publication).


                                         4
sexual assault of a child under fourteen. 8     It appears that this unpublished

opinion stands, at least in part, for the proposition that the judgment should state

the offense of which a defendant was convicted, not descriptive details.

      The judgment should provide the name of the offense that the State was

required to prove in the space for the name of the offense and the punishment

information in the space for punishment information. We have not mandated that

descriptive details be included in the statement of the offense in other kinds of

cases. By our decision to rewrite the judgment, we run the risk of increasing the

State’s burden of proof for conviction by requiring the State to prove not only the

elements of the offense as determined by the legislature, but also punishment

facts as essential elements of the offense. I therefore respectfully dissent from

the majority opinion.

                                                   /s/ Lee Ann Dauphinot

                                                   LEE ANN DAUPHINOT
                                                   JUSTICE

PUBLISH

DELIVERED: October 29, 2015




      8
       Id. at *1.


                                         5
