                                   NO. 12-17-00364-CR

                           IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                      TYLER, TEXAS

 HAROLD WAYNE HOLOMAN,                            §      APPEAL FROM THE 349TH
 APPELLANT

 V.                                               §      JUDICIAL DISTRICT COURT

 THE STATE OF TEXAS,
 APPELLEE                                         §      ANDERSON COUNTY, TEXAS

                                   MEMORANDUM OPINION
       The State filed a motion for rehearing of our August 8, 2018 opinion. We overrule the motion
for rehearing, withdraw our opinion and judgment of August, 2018, and substitute the following
opinion and corresponding judgment in their place.
       Harold Wayne Holoman appeals his conviction for felony assault family violence. In two
issues, he argues that the evidence is insufficient to support his conviction and his sentence is
unlawful because it exceeds the maximum punishment authorized by statute.                We sustain
Appellant’s second issue, reform the judgment, and remand for a new punishment hearing.


                                          BACKGROUND
       Appellant was charged by indictment with assault family violence against Melissa Bostic, a
member of Appellant’s household. The indictment alleged that Appellant impeded Bostic’s normal
breathing or circulation of blood by applying pressure to her neck. Prior to trial, the State filed a
written notice to seek a higher punishment range based upon prior felony convictions. The notice
alleged that Appellant had prior convictions for felony drug possession and felony assault family
violence. Subsequently, Appellant pleaded “not guilty” and the case proceeded to a jury trial.
       The jury acquitted Appellant of the indicted offense, but returned a verdict of “guilty” on the
lesser included offense of assault family violence. Appellant elected to have the trial court assess
his punishment. The trial court found the enhancement allegations “true” and sentenced him to
twenty-five years of imprisonment. This appeal followed.


                                           SUFFICIENCY OF THE EVIDENCE
       In Appellant’s first issue, he argues that the evidence is “insufficient to support a felony
assault causing bodily injury/family violence with previous conviction.”
Discussion
       Appellant’s specific complaint regarding the sufficiency of the evidence is that the State
failed to prove that Appellant had a previous conviction for assault family violence. In Texas, it is
generally a Class A misdemeanor when a person “intentionally, knowingly, or recklessly causes
bodily injury to another, including the person’s spouse.” TEX. PENAL CODE ANN. § 22.01 (a)(1)(b)
(West Supp. 2017).       However, it is a felony of the third degree if a person commits the offense
against a person whose relationship to or association with the defendant is described by Section
71.0021(b) (dating relationship), 71.003 (family member), or 71.005 (member of the same
household), 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; or
       (B) the offense is committed by intentionally, knowingly, or recklessly impeding the normal breathing
       or circulation of the blood of the person by applying pressure to the person’s throat or neck by blocking
       the person’s nose or mouth.



Id. § 22.01(b)(2)(A), (B); see also TEX. FAMILY CODE ANN. §§ 71.0021(b) (West Supp. 2017);
71.003 (West 2014); 71.005 (West 2014).
       Here, Appellant was charged with third degree felony assault family violence by impeding
breath or blood, not by having a previous conviction for family violence. Id. § 22.01(b)(2(B). The
trial court instructed the jury on the lesser included offense of assault family violence as follows:


                Unless you so find beyond a reasonable doubt, or if you have a reasonable doubt thereof, you
       will acquit the defendant of the felony offense of assault family violence by impeding the breath or
       blood, as alleged in the indictment, and you shall next consider the lesser-included offense of assault
       causing bodily injury family violence.
                Now, if you find from the evidence beyond a reasonable doubt that on or about the 1st day
       of October, 2013, in Anderson County, Texas, the defendant, Harold Wayne Holoman, did
       intentionally, knowingly, or recklessly cause bodily injury to Melinda Bostic, a member of the



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       defendant's family or member of the defendant’s household or person with whom the defendant has
       or had had a dating relationship as described by Section 71.003 or 71.005 or 71.0021(b), Family Code,
       then you will find the defendant guilty of the lesser-included offense of assault causing bodily injury
       family violence.


       The jury acquitted Appellant of assault family violence by impeding breathing, but found
Appellant “guilty” of the lesser included charge of assault family violence. Thus, based on the
language of the court’s charge to the jury, it is clear that Appellant was convicted of misdemeanor
assault family violence. See Id. § 22.01 (a)(1)(b). Because misdemeanor assault family violence
does not require proof of a previous conviction. Appellant’s contention that the evidence is
insufficient to support felony assault causing bodily injury/family violence with previous conviction
is without merit. We overrule Appellant’s first issue.


                                             ILLEGAL SENTENCE
       In Appellant’s second issue, he argues that his sentence is illegal because his sentence
exceeds the punishment allowed by statute for misdemeanor assault family violence. We agree.
Discussion
       In this case, Appellant was charged with assault family violence by impeding breath or blood,
a third degree felony. Id. § 22.01(b)(2(B). However, the jury acquitted Appellant of the indicted
offense, but found him “guilty” of “assault causing bodily injury family violence, a lesser-included
charge of the indictment.” As discussed earlier, the record demonstrates that the jury found
Appellant “guilty” of misdemeanor assault family violence. Further, the State did not offer any
evidence of Appellant’s prior assault family violence convictions at the guilt/innocence stage of trial,
nor did the jury make a finding that Appellant had a previous conviction for assault family violence.
Thus, we conclude that Appellant was convicted of a Class A misdemeanor. See id. § 22.01(a)(1)(b).
The punishment for a Class A misdemeanor is a fine not to exceed $4,000, confinement in jail for a
term not to exceed one year, or both. Id. § 12.21 (1)-(3) (West 2011).
       On original submission, the State argued that it proved Appellant had a previous assault
family violence conviction which enhanced his conviction to a third degree felony. Further, the
State argued that it proved Appellant had two prior sequential, final felony convictions which
subjected Appellant to the habitual felony punishment statute, and therefore, Appellant’s sentence
is within range. See id. § 12.42 (d) (West Supp. 2017). We disagreed because the habitual offender




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statute under which Appellant was sentenced applies only to persons convicted of felony level
offenses, which Appellant was not. See generally id. § 12.42.
         For the first time on rehearing, the State directs our attention to the Court of Criminal
Appeals’ recent decision in Oliva v. State for the contention that the prior conviction provision in
Section 22.01(b)(2)(A) should be considered as a punishment issue and not an element of the
offense. 548 S.W.3d 518 (Tex. Crim. App. 2018).1 In Oliva, the Court held that Section 49.09(a),
which prescribes that the existence of a prior conviction elevates a second DWI offense from a Class
B misdemeanor to a Class A misdemeanor, is a punishment issue. Id. at 534; see TEX. PENAL CODE
ANN. § 49.09(a) (West Supp. 2017). The court held that the DWI statutory scheme was ambiguous
and relied on several textual and nontextual factors in arriving at its holding. Oliva, 548 S.W. 3d at
523-34. In so doing, the court noted that the language used in the single prior conviction DWI statute
is substantially identical to the felony DWI statute, but the jurisdictional nature of the prior
convictions for felony DWI converted them from punishment issues to elements of the offense.
Specifically, the court stated:


         Under this view, the jurisdictional nature of the two-prior conviction provision for felony DWI
         converts what would otherwise be a punishment issue into an element of the offense. Because the
         single prior-conviction provision for misdemeanor DWI is not jurisdictional, that conversion does not
         occur, so the provision retains its character as prescribing a punishment issue .



Id. at 533; see also TEX. PENAL CODE ANN. §§ 49.04; 49.09 (West Supp. 2017).
         Here, the State concedes that “in the usual case, a prior family violence conviction is one of
the ‘jurisdictional’ priors; it enhances what is otherwise a Class A assault to a third-degree felony.”
However, it argues that because Appellant was charged with assault family violence by impeding
breath or blood, a felony offense which vested the district court with jurisdiction, the prior family
violence conviction was not jurisdictional and could properly be considered at the punishment phase
of trial. We reject this argument. It is axiomatic that the prior conviction provision in Section
22.01(b)(2)(A) is either an element of the offense of felony assault family violence with a previous


         1
            There is a split of authority among our sister courts as to whether a prior family violence conviction is an
element of the offense or a sentence enhancement. Compare Sheppard v. State, 5 S.W.3d 338, 340 (Tex. App.—
Texarkana 1999, no pet.) (treating prior conviction for family violence as an essential element of the felony assault
offense) with State v. Cagle, 77 S.W.3d 344, 347 n.2 (Tex. App.-Houston [14th Dist.] 2002, pet. ref’d) (treating prior
conviction for family violence as a sentence enhancement instead of an element of the offense because of the operative
statutory language in Section 22.01(b)(2)).



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conviction, or serves to enhance the punishment of a misdemeanor assault family violence, not both.
We hold the prior conviction requirement for assault family violence is an element of felony assault
family violence under Section 22.01(a)(1)(A) and is required to be proven at the guilt phase of trial.
See Oliva, 548 S.W.3d at 533.
         Because the State offered no proof of Appellant’s prior conviction for family violence at the
guilt phase of trial, Appellant was found guilty of misdemeanor assault family violence; thus, his
sentence of twenty five years confinement is outside the applicable range of punishment. See TEX.
PENAL. CODE ANN. §§ 12.21(1)-(3); 22.01(a)(1)(b). A sentence that is outside the maximum or
minimum range of punishment is unauthorized by law and therefore illegal. Mizell v. State, 119
S.W.3d 804, 806 (Tex. Crim. App. 2003) (sentence outside maximum range of punishment for that
offense is illegal); 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.”) Therefore, we hold that the trial court erred in pronouncing a void
and illegal sentence in this case. Appellant’s second issue is sustained.


                                               DISPOSITION
         Having the necessary data and information to correct the trial court’s judgment, we modify
the judgment to reflect that Appellant was convicted of Class A misdemeanor assault family
violence. See Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet. ref’d). Further,
we remand the case to trial court for a new punishment hearing consistent with this opinion. See
id.; see also Mizell, 119 S.W.3d at 806; Speth, 6 S.W.3d at 532-33.
                                                                  GREG NEELEY
                                                                     Justice

Opinion delivered November 5, 2018.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                              (DO NOT PUBLISH)


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                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                         NOVEMBER 5, 2018


                                         NO. 12-17-00364-CR


                                 HAROLD WAYNE HOLOMAN,
                                         Appellant
                                            V.
                                   THE STATE OF TEXAS,
                                         Appellee


                                Appeal from the 349th District Court
                    of Anderson County, Texas (Tr.Ct.No. 349CR-15-32178)

                       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 modified to reflect that Appellant was convicted of Class A misdemeanor
assault family violence. It is further ORDERED, ADJUDGED and DECREED that this case be
remanded to the trial court for a new punishment hearing consistent with this opinion; and that
this decision be certified to the court below for observance.
                    Greg Neeley, Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
