Affirmed and Memorandum Opinion filed August 22, 2013.




                                      In The

                    Fourteenth Court of Appeals

                              NO. 14-12-00907-CR

                      RONALD GUILBEAUX, Appellant

                                        V.
                       THE STATE OF TEXAS, Appellee

                  On Appeal from the Criminal District Court
                          Jefferson County, Texas
                       Trial Court Cause No. 11-12335

                         MEMORANDUM OPINION

      A jury convicted appellant Ronald Guilbeaux of aggravated sexual assault of
a child. The trial court assessed punishment at fifty years’ confinement. Appellant
asserts that the trial court erred in determining the range of punishment for this
offense and that, by applying an incorrect range of punishment, the trial court
failed to consider the full range of punishment for the charged offense and violated
appellant’s due process rights. We affirm.
                   I. FACTUAL AND PROCEDURAL BACKGROUND

      Appellant was charged with the offense of aggravated sexual assault of a
child younger than fourteen years of age. See Tex. Penal Code § 22.021(a)(2)(B).
The indictment alleged that the complainant was younger than fourteen years of
age but did not allege that the complainant was younger than six years of age at the
time the offense was committed. The minimum term of imprisonment for this
offense increases to twenty-five years if the victim of the offense was younger than
six years of age at the time the offense was committed. See id. § 22.021(f)(1).

      At the beginning of the guilt/innocence phase, the trial court confirmed with
appellant that he wanted the trial court to assess punishment. Appellant’s counsel
agreed with the trial court that if the complainant was younger than six years of
age, then the minimum term of imprisonment for this offense increases to twenty-
five years. In open court, appellant stated that he had discussed the range of
punishment with his lawyer, and appellant’s lawyer stated that, under the Texas
Penal Code, if convicted, appellant would face a minimum punishment of twenty-
five years’ confinement. Appellant’s counsel also stated that the complainant was
five years old at the time of the alleged offense.

      After the jury found appellant guilty, appellant obtained new counsel. At the
punishment hearing, appellant’s new counsel objected that the minimum
punishment for this offense should be five years’ confinement, because the
indictment did not allege that the complainant was younger than six years of age
when the offense was committed. The trial court stated that there was no dispute
that the complainant was younger than six years of age when the offense was
committed and that appellant had notice before trial that the minimum punishment
would be twenty-five years’ confinement if he were found guilty. At the end of the
punishment hearing, the trial court assessed punishment at fifty years’

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confinement, indicating that, even if the minimum punishment had been five years’
confinement, the trial court would have assessed the same punishment.

                                 II. ISSUE AND ANALYSIS

       A person commits aggravated sexual assault of a child if the person sexually
assaults another and the victim is younger than fourteen years of age at the time of
the offense. See Tex. Penal Code § 22.021(a)(2)(B). This offense is prescribed as a
felony of the first degree, which is punishable by life imprisonment or by any term
between five and ninety-nine years. See id. §§ 12.32(a), 22.021(e). If the victim is
younger than six years of age when the offense was committed, however, the
minimum term of imprisonment is increased to twenty-five years. See id.
§ 22.021(f)(1). On appeal, appellant asserts two arguments under a single appellate
issue: (1) the trial court erred in determining the range of punishment for this
offense; and (2) by applying an incorrect range of punishment, the trial court failed
to consider the full range of punishment for the charged offense and violated
appellant’s due process rights.

       As to the second argument, appellant failed to preserve error by voicing this
constitutional complaint in the trial court.1 See Teixeira v. State, 89 S.W.3d 190,
192 (Tex. App.—Texarkana 2002, pet. ref’d) (holding that, to preserve error as to
alleged violation of due process by trial court’s failure to consider full range of
punishment, complaint must be asserted in the trial court). Accordingly, appellant
waived this complaint.

       As to the first argument, appellant asserts that the trial court had to
determine the range of punishment based on the allegations of the indictment, and
because the indictment contained no allegation that the complainant was younger
1
  Even if appellant had preserved error, we would conclude that the trial court did not violate
appellant’s due process rights.

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than six years of age when the offense was committed, the trial court should have
determined that the minimum punishment for this offense was five years’
confinement. Appellant’s argument is without merit. An indictment must allege
―everything necessary to be proven to sustain a conviction in the guilt/innocence
phase.‖ Sharp v. State, 707 S.W.2d 611, 624 (Tex. Crim. App. 1986) (emphasis in
original). In this case, the State had the burden of proving that appellant sexually
assaulted a child younger than fourteen years of age at the time of the offense. See
Tex. Penal Code § 22.021(a)(2)(B). The offense does not include an additional
element that the victim was younger than six years of age when the offense was
committed. Because this younger age of the complainant affects the range of
punishment for the offense, rather than the proof needed to convict, the younger
age did not need to be expressly alleged in the indictment. See Brooks v. State, 957
S.W.2d 30, 33–34 (Tex. Crim. App. 1997) (holding that enhancement allegations
do not need to be specified in the indictment, provided that the defendant received
other forms of notice). Therefore, the second argument lacks merit.

      For the foregoing reasons, we overrule appellant’s appellate issue and affirm
the trial court’s judgment.




                                      /s/       Kem Thompson Frost
                                                Justice


Panel consists of Justices Frost, Brown, and Donovan.
Do Not Publish — Tex. R. App. P. 47.2(b).




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