Opinion issued February 19, 2015




                                     In The

                             Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                             NO. 01-14-00635-CR
                           ———————————
                    JAMES DANIEL BOONE, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 253rd District Court
                         Chambers County, Texas
                        Trial Court Case No. 13035


                       MEMORANDUM OPINION

      A jury convicted appellant James Daniel Boone of the state jail felony

offense of evading arrest or detention while using a motor vehicle and the trial

court assessed his punishment at ten years’ confinement. This Court affirmed

Boone’s conviction, but reversed the portion of the judgment assessing punishment
and remanded for a new punishment hearing. See Boone v. State, No. 01–09–

01020–CR, 2010 WL 3928533 (Tex. App.—Houston [1st Dist.] Oct. 7, 2010, pet.

ref’d) (mem. op., not designated for publication). In a single issue, Boone argues

that the trial court erred by denying his request to have a jury assess his

punishment on remand. We affirm.

      If a court of appeals or the Court of Criminal Appeals reverses and remands

for errors in the punishment phase only, the trial court shall commence the new

trial as if a finding of guilt had been returned and proceed to the punishment stage

of the trial. See TEX. CODE CRIM. PROC. ANN. art § 44.29(b) (West Supp. 2014). “If

the defendant elects, the court shall empanel a jury for the sentencing stage of the

trial in the same manner as a jury is empaneled by the court for other trials before

the court.” Id. Therefore, a defendant has the option to elect to have the court or a

jury assess his punishment on remand. Easton v. State, 920 S.W.2d 747, 751 (Tex.

App.—Houston [1st Dist.] 1996, no pet.); see also Johnson v. State, 995 S.W.2d

926, 928 (Tex. App.—Waco 1999, no pet.). A defendant may elect to have a jury

assess his punishment after remand, notwithstanding his previous election in the

original trial. Saldana v. State, 826 S.W.2d 948, 951 (Tex. Crim. App. 1992);

Johnson, 995 S.W.2d at 929.

      A defendant’s right to have a jury assess his punishment, however, is a

statutory right, the denial of which is subject to non-constitutional harm analysis



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under Texas Rule of Appellate Procedure 44.2(b). See TEX. R. APP. P. 44.2(b);

Johnson, 995 S.W.2d at 929 (holding that trial court’s erroneous denial of

defendant’s right to elect to have either court or jury assess punishment was

harmless error under Rule 44.2(b)). In considering harm, we review the entire

record to determine whether the error had more than a slight influence on the

verdict. Johnson, 995 S.W.2d at 929. If we find that it did, we must conclude that

the error affected the defendant’s substantial rights in such a way as to require a

new trial. Id. Otherwise, we disregard the error. Id.

      Here, Boone elected for the jury to assess his punishment on remand, and

orally reiterated his request immediately prior to the commencement of the

hearing. The trial court denied Boone’s request and, after hearing testimony and

arguments of counsel, assessed Boone’s punishment at 180 days confinement—the

statutory minimum for a state jail felony—and gave Boone credit for time served.1

Although the trial court’s denial of his request was error, see Saldana, 826 S.W.2d

at 951, in light of the record, including the aforementioned facts, we cannot say

that the error affected Boone’s substantial rights in such a way as to require a new

punishment hearing. He could not have received anything less from a jury. See

1
      Boone, who is currently serving two life sentences for aggravated assault, was not
      eligible for a probated sentence in this case. See Boone v. State, Nos. 01–04–
      00870–CR, 01–04–00871–CR, 01–04–00882–CR, 2005 WL 1474454, at *4 (Tex.
      App.—Houston [1st Dist.] June 23, 2005, no pet.) (mem. op., not designated for
      publication) (affirming Boone’s convictions for aggravated assault and aggravated
      assault of public servant).

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Johnson, 995 S.W.2d at 929. Thus, we disregard the error. Id. We overrule

Boone’s sole issue.

                                   Conclusion

      We affirm the trial court’s judgment.




                                               Russell Lloyd
                                               Justice


Panel consists of Chief Justice Radack and Justices Brown and Lloyd.

Do not publish. TEX. R. APP. P. 47.2(b).




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