                                        In The
                                   Court of Appeals
                          Seventh District of Texas at Amarillo
                                    ________________________

                                         No. 07-14-00375-CR
                                    ________________________

                                CALEB LOGAN HART, APPELLANT

                                                    V.

                                THE STATE OF TEXAS, APPELLEE



                                 On Appeal from the 31st District Court
                                         Gray County, Texas
                     Trial Court No. 9666; Honorable Steven R. Emmert, Presiding


                                           September 21, 2015

                        ORDER FOR SUPPLEMENTAL BRIEFING
                        Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


        The judgment entered in this case1 adjudicates Appellant, Caleb Logan Hart,

guilty of the offense of prohibited sexual conduct, a second degree felony. 2 In our




        1
        This case is a companion case to four other appeals involving sexually-related offenses, to-wit:
cause numbers 07-14-00371-CR, 07-14-00372-CR, 07-14-00373-CR, and 07-14-00374-CR.
        2
            See TEX. PENAL CODE ANN. § 25.02(a)(1), (c) (West 2011).
review of the record in this case, we have discovered a previously unassigned,

potentially meritorious issue concerning the legality of the sentence imposed.3


        In this case, Appellant was indicted for “intentionally or knowingly engag[ing] in

sexual intercourse with A.H., a person [Appellant] knew to be, without regard to

legitimacy, [Appellant’s] niece . . . .” See TEX. PENAL CODE ANN. § 25.02(a)(5). Except

for circumstances not applicable to this case, an offense under this subsection is a

felony of the third degree. See id. at 25.02(c). Here, the Court’s Charge on Punishment

provides, Appellant “has been found guilty by you of the offense of PROHIBITED

SEXUAL CONDUCT WITH ANCESTOR OR DESCENDANT, a felony of the Second

Degree.” The charge further instructs the jury that the range of punishment applicable

to Appellant’s offense is “confinement . . . for not less than 2 years nor more than 20

years.”


        While the offense of prohibited sexual conduct with an actor’s ancestor or

descendant by blood or adoption is indeed a second degree felony, id. at § 25.02(a)(1),

(c), that is not the offense applicable in this case. Appellant was charged and convicted

of the offense of prohibited sexual conduct with his niece, a third degree felony. Id. at

(a)(5), (c). Punishment for a third degree felony is “any term of not more than 10 years

or less than 2 years.” Id. at § 12.34(a). Because Appellant was assessed punishment

as a second degree felony when he should have been sentenced as a third degree

felony, it appears as though the trial court has committed fundamental error by imposing

an illegal sentence.

        3
         Appellate courts are free to review unassigned error. See Sanchez v. State, 209 S.W.3d 117,
121 (Tex. Crim. App. 2006). Where, as here, the issue is that of an illegal sentence, preservation of error
was not required in the trial court. See Mizell v. State, 119 S.W.3d 804, 806 n.6 (Tex. Crim. App. 2006).

                                                    2
       In the interest of justice and in fairness to all parties, this court hereby assigns

the issue of an illegal sentence as error and directs both parties to file additional

briefing.   Appellant is granted thirty days from the date of this order to file a

supplemental brief and the State is granted thirty days from the date that Appellant’s

supplemental brief is filed to file a reply brief.


       It is so ordered.


                                                       Per Curiam


Do not publish.




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