Affirmed, as Modified, in Part, Reversed and Remanded, in Part, and
Majority and Dissenting Opinions filed March 4, 2014.




                                            In The

                        Fourteenth Court of Appeals

                                    NO. 14-13-00039-CR

                            JAMES MUSGROVE, Appellant
                                               V.

                           THE STATE OF TEXAS, Appellee

                        On Appeal from the 23rd District Court
                              Brazoria County, Texas
                            Trial Court Cause No. 68992

                         MAJORITY                   OPINION


      In three issues, appellant James Musgrove challenges his felony convictions
for two counts of assault on a public servant and one count of attempted escape.1
We affirm the judgment of the trial court, as modified, with regard to appellant’s
assault convictions, and reverse the judgment as to appellant’s attempted escape

      1
          See Tex. Penal Code §§ 15.01, 22.01(b)(1), 38.06.
conviction for a new punishment trial.

                                         Background

          While in custody of the Texas Department of Criminal Justice (TDCJ),
appearing in a court on a matter not relevant to this appeal, appellant allegedly
assaulted two correctional officers and attempted to escape. Appellant and the two
officers were the only people in the courtroom at the time. Appellant and one
officer, who was unarmed,2 were at the counsel table when appellant allegedly
showed the officer a piece of paper to distract him and punched him, momentarily
stunning him. Appellant then ran to the other officer, who was near the door of the
courtroom, and struggled with her in an attempt to take her pistol, which was
secured in her holster. The first officer then joined in the struggle, and at some
point, all three fell to the ground.3 Within minutes, the first officer was able to
secure appellant with assistance from a third officer who entered the courtroom to
assist.

          Appellant was indicted and tried for two counts of assault on a public
servant and one count of attempted escape in the same courtroom where he
allegedly committed these offenses. He represented himself. At the time, he was
in TDCJ’s custody serving sentences for other felony offenses. Appellant filed two
pretrial motions complaining that the conditions of his confinement would prevent
him from receiving a fair trial because TDCJ, among other things, allegedly
(1) confiscated his legal work and files, writing instruments, envelopes, postage,
items used for personal hygiene, and medications; (2) deprived him of sleep, food,

          2
         TDCJ’s safety protocol in the courtroom requires the correctional officer nearest to an
inmate to be unarmed to reduce the chances of the inmate acquiring a firearm.
          3
        When the first officer joined the struggle, appellant had a “scissor lock” with his legs
wrapped around the second officer, and appellant had his hand on her pistol. Both of the officers
and appellant were injured. At trial, appellant argued that he acted in self-defense.

                                               2
water, showering, and shaving; and (3) housed him in a facility at a distance from
the courthouse that doubled his transport time and contributed to his sleep
deprivation.4

       During pretrial matters, appellant again complained that TDCJ confiscated
most of his legal files, including transcripts of testimony from state witnesses.5
The trial court instructed the State’s investigator to call the head warden at the unit
where appellant was housed and “ask . . . if it’s possible to . . . give [appellant his
legal files] when he gets back today and he be allowed to bring [them] every day to
court through this trial.” Appellant responded, “[W]hen I return to the unit, . . . if
they give me the property, that works great . . . but then . . . they order me to pack
it and inventory it again at about 7:00 o’clock.” He also renewed his objection to
TDCJ’s failure to allow him to shower or shave before trial. The trial court
responded, “I’m not trying [TDCJ] on how they should or should not handle an
inmate. What they do, I’m not going to interfere. I’m not going to set up a new set
of rules for you or anything else. The rules are what the rules are.” Appellant
renewed these objections twice during trial, reiterating that he was denied access to
legal materials after a certain time at night and was not allowed to shower or shave
during the course of the three-day trial.

       The trial court determined it would not be necessary to restrain appellant
during trial but took several security precautions, which included requiring
appellant’s investigator or standby counsel (in lieu of appellant) to approach
witnesses with exhibits or documents, requiring correctional officers to stand

       4
          At the time of trial, appellant was housed in a high security facility. He was classified
as a violent offender and an escape risk due to his alleged commission of the above-referenced
offenses.
       5
        Appellant indicated the transcripts were the court reporter’s record from his prior trial,
during which appellant allegedly committed the offenses for which he was convicted in this case.

                                                3
between appellant and the jury, and requiring appellant to stand behind a podium
during closing arguments.        With regard to approaching witnesses, appellant
objected on the basis that the State should be required to follow the same
procedure: “It’s important that [the jury] not see me following a procedure that [the
State’s counsel] is not. So, if a document is being passed to the witness, I would
simply ask [the State] to follow the same procedure.” Appellant argued applying a
different standard to him than the State would undermine the presumption of his
innocence in front of the jury. Counsel for the State responded, “[O]ur position is
there is nothing on record to indicate that . . . I’m violent . . . . And so, that doesn’t
mean we need to be treated the same, that I have to be hamstrung because of his
past conduct.”

      The trial court overruled the objection, but stated,

      And it may be better since I’m going to explain that you have
      assistance of counsel and that you’re representing yourself, that if
      counsel approached with the exhibit, the document, to show them to
      the witness, there is virtually no difference in what is going on. In
      essence, you have two attorneys and they got one.

      Appellant objected to the trial court requiring correctional officers to step
between him and the jury when the jury entered or exited the courtroom, as
demonstrated in the following colloquy:

      [Appellant:]         Is it possible for me to move someplace where,
                           you know, the [TDCJ] escorts aren’t standing
                           between me and everybody . . . when they come
                           by?

      THE COURT:           Absolutely. They’re going to stands [sic] between
                           you and the jury every time they come in and out.

      [Appellant:]         Can I move someplace like behind the table or
                           something?


                                            4
      THE COURT:          I don’t care if you want to put [standby counsel]
                          over there. You’re on the corner. That doesn’t
                          bother me.

      [Appellant:]        Because right now as it’s being done it’s like a
                          mad rush where the [TDCJ] people are running
                          over to . . . quick[ly] surround me. It looks a little
                          bit obvious.
      [The State:]        I want the record to be clear.

      THE COURT:          One, I don’t think it looks obvious at all because
                          they are getting their stuff together and the guards
                          are merely taking one, maybe two, steps
                          forward. . . . . [B]ut if you and [standby counsel]
                          want to change seats, that’s up to y’all.
      [Appellant:]        I think it would work better.
      On the third day of trial, appellant requested to be treated similarly to the
State’s counsel during closing argument: “I . . . want the jury not to have a vast
difference in perception between [the State’s counsel] and me because this . . . goes
to the heart of the presumption of innocence, particularly at this stage [during] the
closing argument for guilt or innocence.” The trial court stated, “I’m not going to
limit the State’s ability to argue a case because your history got you incarcerated,”
but agreed to let appellant stand behind a podium “6 to 8 feet, maybe 10, tops,
from the jury,” which was “3 or 4 feet” further away from the jury than the State’s
counsel was allowed to be. Appellant responded, “Well, that will help me look
like a professional.”

      The jury found appellant guilty as to all three offenses, sentenced him to 20
years’ imprisonment for each count of assault and 10 years’ imprisonment for the
attempted escape, and assessed a $10,000 fine for each offense. The trial court
entered judgment ordering the three sentences to run concurrently. Appellant filed
a motion for new trial, complaining, among other things, that he was deprived of a
                                          5
fair trial because of (1) his limited access to legal materials and having to appear at
trial unwashed and unshaven, (2) the placement of correctional officers between
him and the jurors, and (3) the ability of the State to move freely about the
courtroom when appellant could not. After an evidentiary hearing, the trial court
denied the motion.

                                      Discussion
         In three issues, appellant complains that the trial court violated his right to a
fair trial, that the judgment against him reflects an incorrect offense level as to each
count for which he was convicted, and that his conviction for attempted escape was
improperly enhanced.

         I.    Right to Fair Trial

         In his first issue, appellant argues the trial court violated his right to a fair
trial6 by (1) allowing the State to confiscate his legal work and present him
unwashed and unshaven for trial and (2) requiring appellant to adhere to different
procedures than the State in front of the jury, thereby destroying the presumption
of his innocence. The State argues appellant did not preserve these complaints for
appellate review, and even if he had, the trial court was entitled to take precautions
to ensure the safety of everyone in the courtroom. We first address preservation of
error.

               A. Preservation of Error

         To preserve error for appeal, a party is required to make a timely request,
objection, or motion to the trial court and obtain an express or implied ruling on


         6
          A fair trial is guaranteed by federal due process principles mandated by the Fourteenth
Amendment of the United States Constitution and the due course of law rights identified in
Article I, Section 19, of the Texas Constitution. Benefield v. State, 389 S.W.3d 564, 571 (Tex.
App.—Houston [14th Dist.] 2012, no pet.).

                                               6
the request.    Tex. R. App. P. 33.1.         Appellant filed two pretrial motions
complaining that TDCJ confiscated his legal work and files, which allegedly
deprived him of the ability to prepare for trial. Before trial, appellant again
complained that TDCJ had confiscated his legal files. The trial court instructed the
State’s investigator to call the TDCJ warden in charge of the unit where appellant
was housed to ascertain whether appellant could have his legal files returned to
him and could bring them to trial each day. However, appellant responded that
even when he was given access to his legal materials, they were confiscated each
evening at 7:00 p.m. The trial court stated it would not interfere with TDCJ’s
procedures regarding the handling of its inmates. Appellant renewed his objection
that he was denied access to legal materials twice during trial and in his motion for
new trial. Both objections were overruled, and the trial court denied the motion for
new trial. We conclude appellant preserved error on this objection by obtaining an
adverse ruling from the trial court.

      Appellant also complained during pretrial matters that TDCJ had not
allowed him to shower or shave before trial. He renewed these objections twice
during trial and in his motion for new trial, complaining that he was never allowed
to shower or shave during the course of the three-day trial.         The trial court
overruled the objections. Thus, appellant preserved error as to this complaint.

      With regard to the court’s ruling that appellant could not approach
witnesses, appellant objected on the basis that the State was not required to follow
the same procedure and applying a different procedure to appellant would
undermine the presumption of his innocence.          The trial court overruled this
objection. Appellant also raised the issue in his motion for new trial. Thus,
appellant also preserved this issue for appeal.

      Appellant did not object at trial to the trial court’s requiring officers to

                                          7
surround appellant when the jury entered or exited the courtroom.                        Instead,
appellant asked if he could move so that the officers were not standing between
him and the jury. The trial court allowed appellant to move further away from the
jury by switching places with his standby counsel.7 Appellant lodged no further
objections during trial to his location in juxtaposition to the officers. We conclude
that appellant has not preserved this complaint for appeal.

       Appellant requested at trial to be treated similarly to the State’s counsel
during closing argument. The trial court allowed appellant to stand behind a
podium “6 to 8 feet, maybe 10, tops, from the jury,” whereas the State’s counsel
was allowed to approach the jury during argument. Appellant responded that he
would “look like a professional” behind the podium and did not object to this
arrangement. Thus, he has not preserved this complaint for appeal.

       We turn to the merits of the complaints that appellant preserved for appeal.

               B. Preparation for Trial

       Appellant complains that he was unable to adequately prepare for trial
because his “legal work was confiscated for lengthy periods both before and during
trial.” A defendant is entitled to represent himself under the Sixth Amendment of
the United States Constitution.           Faretta v. California, 422 U.S. 806 (1975).
Further, as the Supreme Court held in Bounds v. State, the fundamental
constitutional right of access to the courts requires prison authorities to assist
inmates in the preparation and filing of meaningful legal papers by providing
prisoners with adequate law libraries or adequate assistance from persons trained in
the law. Johnson v. State, 257 S.W.3d 778, 780 (Tex. App.—Texarkana 2008, pet.
ref’d) (citing Bounds v. Smith, 430 U.S. 817, 828 (1977), overruled on other
       7
         The trial court stated, “[I]f you and [standby counsel] want to change seats, that’s up to
ya’ll.” Appellant responded, “I think it would work better.”

                                                8
grounds by Lewis v. Casey, 518 U.S. 343 (1996)). However, the concomitant
rights to self-representation and access to the courts are not coupled with an
unfettered right of access to legal resources. See, e.g., Dunn v. State, 819 S.W.2d
510, 525 (Tex. Crim. App. 1991) (noting trial court with concerns about potential
delays caused by an exaggerated use of library facility can deny the accused access
to legal resources and holding pro se defendant was not entitled to paralegal
assistance) (citing Scarbrough v. State, 777 S.W.2d 83, 93 (Tex. Crim. App. 1989)
(holding trial court must admonish person asserting right of self-representation that
he has no right to standby counsel)).

       Bounds and progeny generally involve pro se defendants complaining of
limited or no access to legal resources such as a law library. We find the facts of
this case—in which appellant complains of limited access to his legal materials—
to be sufficiently analogous. In Lewis v. Casey, the Supreme Court explained that
Bounds “did not create an abstract, freestanding right to a law library” and “does
not guarantee inmates the wherewithal to transform themselves into litigating
engines.” 518 U.S. at 351, 355. Further, the Court held that an inmate who claims
to have suffered a deprivation of access to legal resources must show that he has
suffered an actual injury. Id. at 351. Along these lines, many federal circuit
courts, including the Fifth Circuit, have held that a prisoner who knowingly and
voluntarily waives appointed representation by counsel in a criminal proceeding is
not entitled to access to legal resources in preparing his defense. Johnson, 257
S.W.3d at 780.8


       8
          See also United States v. Whittington, No. 03–50150, 269 Fed. App’x 388 (5th Cir.
2008) (“[H]aving rejected the assistance of court-appointed counsel, [a defendant] ha[s] no
constitutional right to access a law library in preparing the pro se defense of his criminal trial.”)
(quoting Degrate v. Godwin, 84 F.3d 768, 769 (5th Cir. 1996) (per curiam) (alterations in
original)); United States v. Smith, 907 F.2d 42, 45 (6th Cir. 1990) (holding state not required to
provide access to a law library to defendants wishing to represent themselves); United States ex
                                                 9
       Here, appellant was provided with appointed counsel. He instead elected to
proceed pro se. The State was required only to provide appointed counsel or
access to legal resources. See id. at 781. Once appellant rejected the offer of
appointed counsel and elected to represent himself, the State was not required to
provide appellant access to legal materials to prepare his defense.                         See id.
Regardless, the trial court instructed appointed counsel to assist as standby counsel.
Thus, appellant had standby counsel as a ready resource, and it is clear from the
record that appellant took advantage of that opportunity.9

       Moreover, appellant has not demonstrated an actual injury attributable to a
lack of time or opportunity to prepare for trial. Appellant contends only that his
“legal work was confiscated for lengthy periods both before and after trial.”
Appellant does not state how much more time he needed, requested, or was refused
to prepare for trial.10 Appellant has not demonstrated that he was deprived of a fair
trial due to his inability to have unfettered access to his legal materials.


rel. George v. Lane, 718 F.2d 226, 233 (7th Cir. 1983) (holding state was not required to offer a
defendant law library access once it offered the defendant assistance of counsel, which the
defendant declined); United States v. Wilson, 690 F.2d 1267, 1271 (9th Cir. 1982) (holding
prisoner’s Sixth Amendment right to self-representation does not include right to conduct
research at government’s expense); United States v. Chatman, 584 F.2d 1358, 1360 (4th Cir.
1978) (holding obligation to provide access to courts was satisfied by offering defendant the
assistance of counsel).
       9
          Standby counsel assisted appellant with subpoenaing witnesses and reviewing the
State’s case file, among other things.
       10
          Appellant stated during pretrial matters, “[W]hen I return to the unit . . . if they give me
the property, that works great. [B]ut then that next night they . . . order me to pack it an
inventory it again at about 7 o’clock.” On the second day of trial, appellant told the trial court,
“[A]t approximately 8:30 last night I arrived at the unit. Approximately 10:00 p.m. legal work
was provided. Approximately 3:00 a.m. legal work was taken . . . . I was returned to the Court
and at 7:30 a.m. legal work was returned.” On the last day of trial, appellant stated, “Last night I
was not allowed access to any of the legal work left in the unit. I returned to court at 7:00
o’clock this morning. Legal work was returned.” These objections do not indicate how much
more time appellant needed, requested, or was refused to prepare for trial. They instead show
appellant had access to his legal materials, albeit not unfettered.

                                                 10
               C. Appellant’s Physical Appearance at Trial

       Appellant complains that he was not allowed to shower or shave during the
course of the three-day trial and asserts this deprived him of a fair trial by eroding
the jury’s perception of his presumed innocence. In support of this argument,
Appellant cites cases holding it is unfair to try a defendant in prison clothing or
while he is shackled.11 However, the inability to shower and shave, by itself, while
possibly portraying an unprofessional appearance, would not badge someone as a
criminal in the jury’s eyes in the same way as wearing a prison uniform or being
shackled. See United States v. Casey, 540 F.2d 811, 816-17 (5th Cir. 1976)
(finding, “[r]egardless of the merits,” any prejudice arising from denial of
continuance for defendant to shower and change clothes12 was harmless and
distinguishing case “[a]s to the merits,” from those holding it is unfair to try a
defendant in prison garb, because “no constitutional violation occurs so long as
[the defendant’s] dress does not badge him as a criminal, in the jury’s eyes, as is
the case with prison uniforms”).

       Moreover, the record does not reflect that appellant looked disheveled,
unkempt, or unclean in front of the jury. He was wearing civilian clothes, and the
State’s counsel described appellant’s beard as a “5 o’clock shadow.”13 The record

       11
           See Estelle v. Williams, 425 U.S. 501, 505 (1976) (“The defendant’s [jail] clothing is so
likely to be a continuing influence throughout the trial that . . . an unacceptable risk is presented
of impermissible factors coming into play.”); Oliver v. State, 999 S.W.2d 596, 599 (Tex. App.—
Houston [14th Dist.] 1999, pet. ref’d) (“If the presumption of innocence is to be meaningfully
embraced, a defendant must not be presented to the jury in physical restraints, jail clothing or
other indicia of guilt.”).
       12
           The trial court described defendant as “dressed in light green polo shirt and trousers”
and “not in as bad shape as you say he is in.” United States v. Casey, 540 F.2d 811, 816 n.16
(5th Cir. 1976).
       13
            The State’s counsel stated, “I would like to put on the record . . . , Mr. Musgrove does
have . . . a 5:00 o’clock shadow or a very short little bit, but I think he looks presentable. I don’t
think he looks like a street person.” The trial court also noted appellant “had a clean shirt on
                                                 11
does not indicate otherwise.14 We are unable to conclude on this record that
appellant’s inability to shower and shave adversely affected his appearance before
the jury to an extent that would deprive him of a fair trial. See Bell v. State, No.
PD-0087-12, 2013 WL 5221060, at *4 (Tex. Crim. App. Sept. 18, 2013) (refusing
to conclude that it was reasonably probable that jury heard rattling of defendant’s
shackle chain: such conclusion would have been purely speculative based on the
record).

             D. Inconsistent Procedures for Approaching Witnesses

       Appellant complains that he was not allowed to approach witnesses with
documents or exhibits, while the State’s counsel “was permitted to move through
the courtroom freely.” Appellant contends this disparate treatment “convey[ed] the
impression that [appellant] is dangerous,” thereby encouraging the jury to conclude
that appellant was guilty of the charged offenses.

       The trial court’s decision to require the defendant to use standby counsel to
approach witnesses was within its discretion. See Martinez v. State, 644 S.W.2d
104, 111 (Tex. App.—San Antonio 1982, no pet.) (“The trial judge has broad
discretion to manage the trial and to deal with the many unexpected situations
which arise at trial, therefore the reviewing court will be reluctant to interfere
absent a clear showing of abuse of discretion.”); see also Johnson v. State, 583
S.W.2d 399, 405 (Tex. Crim. App. 1979) (“A trial judge necessarily has broad
discretion to deal with the many unexpected situations which arise during trial.”);
Shaver v. State, 306 S.W.2d 128, 130 (Tex. Crim. App. 1957) (“The trial judge is
vested with wide discretion as to the conduct of the trial in matters such as the

each day.”
       14
           At the hearing on appellant’s motion for new trial, appellant disputed the
characterization of his unshaven face as a 5 o’clock shadow, but admitted that he had not
requested a picture of his beard at trial to be included in the record.

                                           12
seating arrangement, and it rests upon the appellant, in order to complain upon
appeal in regard to such, to show an abuse of such discretion.”). Our role is not to
second-guess the trial court’s discretion in controlling the courtroom and ensuring
the safety of the litigants, participants, and witnesses in attendance. Bell v. State,
356 S.W.3d 528, 536 (Tex. App.—Texarkana 2011), aff’d, No. PD-0087-12, 2013
WL 5221060 (Tex. Crim. App. Sept. 13, 2013). If a criminal defendant has acted
in a manner providing justification for restraints, it is well within the trial court’s
sound discretion to order him restrained during trial. Id. However, a trial court
abuses its discretion when it restrains a criminal defendant without setting forth
reasons on the record, specific to that defendant, supporting its decision to restrain
the defendant.15 Id.

       Here, appellant was not restrained in any traditional manner, such as by
shackling. He merely was precluded from approaching the witnesses. The court
articulated, outside the presence of the jury, two reasons for imposing this
restriction: (1) the court was concerned for the jury’s safety and the security of the
courtroom based on appellant’s history of allegedly committing violent crimes and
(2) the courtroom was small.16 The trial court made this decision in light of the
following facts: (1) appellant was accused of assaulting two officers and
attempting to escape, (2) the case was being tried in the courtroom where the
offenses purportedly occurred, (3) appellant previously had been convicted of
violent crimes, and (4) TDCJ considered appellant to be a high risk for escape and


       15
          The use of restraints such as shackles cannot be justified based on a general appeal to
the need for courtroom security or simple reference to the severity of the charged offense. Bell,
356 at 535. Thus, shackling is called for only in rare circumstances, and the record must detail
the grounds for such action. Id. at 536.
       16
          Addressing appellant, the trial court noted, “I have a limited amount of space here. I
can’t keep a bunch of people up here at the bench in a crowded scenario, with some of the
history that I understand that you have, and expect us to be secure.”

                                               13
was housing him in a high security unit.

      There is no indication that the jury’s perception of appellant was influenced
by this procedure. The trial court in fact noted the procedure might be beneficial
for appellant:

      [I]t may be better since I’m going to explain that you have assistance
      of counsel and that you’re representing yourself, that if counsel
      approaches with the exhibit, the document, to show them to the
      witness, there is virtually no difference in what is going on. In
      essence, you have two attorneys and [the State has] one.

The trial court also explained to the jury that appellant was representing himself
with assistance from counsel.

      We conclude this procedure was an unobtrusive means to keep the
courtroom secure and the proceedings orderly. There is no indication on this
record that the jury had a basis to perceive appellant any differently than the State
based on this procedure. On this record, we cannot conclude that the trial court
abused its discretion in preventing appellant, but not the State, from approaching
witnesses during trial. See, e.g., Ruckman v. State, 109 S.W.3d 524, 532 (Tex.
App.—Tyler 2000, pet. ref’d) (holding trial court did not abuse discretion in
allowing State’s counsel to wear lapel pin in support of children when defense
counsel did not wear one).

      We overrule appellant’s first issue.

      II.    Improper Offense Levels and Range of Punishment

      We discuss appellant’s second and third issues together, because they both
complain of errors in the trial court’s judgment with regard to the offense levels at
which appellant was convicted and the proper ranges of punishment. As set forth
below, we modify the judgment for the two assault counts to reflect the proper


                                           14
offense levels and reverse the judgment for attempted escape for a new punishment
trial.

                  A. Offense Level for Assaults

         Appellant argues the trial court erroneously rendered judgment against him
for two counts of assault on a public servant as second-degree felonies when the
judgment should reflect that these were third-degree felonies. The State agrees.

         The jury found appellant guilty of two counts of assault of a public servant,
which is a third-degree felony. See Tex. Penal Code § 22.01(a)-(b)(1). The trial
court properly enhanced the range of appellant’s punishment as to these
convictions based on appellant’s prior convictions, but erroneously reflected in the
judgment a second-degree offense. See id. § 12.42(a).17 Although Penal Code
section 12.42 increases the range of punishment applicable to the primary offense,
it does not increase the severity level or grade of the primary offense. Ford v.
State, 334 S.W.3d 230, 234 (Tex. Crim. App. 2011). Thus, the trial court erred in
entering judgment against appellant on his assault convictions as second-degree
felonies, and the judgment should reflect that appellant was convicted of two
counts of assault on a public officer as third-degree felonies. We modify the
judgment accordingly. See Garza v. State, 298 S.W.3d 837, 845 (Tex. App.—
Amarillo 2009, no pet.) (modifying judgment to reflect correct offense level).

                  B. Offense Level for Attempted Escape

         Appellant further argues that the trial court erroneously rendered judgment
against him for attempted escape as a third-degree felony while the jury charge
authorized the jury only to find appellant guilty of attempted escape as a state-jail
felony. The State, argues, to the contrary, that the jury charge authorized the jury

         17
              The enhanced punishment was in the equivalent range for second-degree felonies.

                                                  15
to find appellant guilty of attempted escape as either a second- or third-degree
felony.

       A person commits escape if he escapes from custody when, as relevant here,
he is under arrest for, lawfully detained for, charged with, or convicted of an
offense. Tex. Penal Code § 38.06(a)(1). Escape is a first-degree felony if the
offender “uses or threatens to use a deadly weapon,” a second-degree felony if the
offender “causes bodily injury,” or a third-degree felony if the offender “is under
arrest for, charged with, or convicted of a felony.” Id. § 38.06(c)-(e). An attempt
reduces the offense category one degree lower than the offense attempted. Id.
§ 15.01(d).

       The jury charge includes the following instruction: “Our law provides that a
person commits the offense of escape if he escapes from custody when he is
convicted of a felony offense.” The charge, consistent with the indictment, further
authorized the jury to find appellant guilty of attempted escape if it found that
appellant

       with the specific intent to commit the offense of escape from the
       custody of [two correctional officers] tried to gain control of a firearm
       which was in the possession of [one of the officers], which amounted
       to more than mere preparation that tended but failed to effect the
       commission of the offense intended.18

       Appellant argues the jury found appellant guilty of attempted escape as a
state-jail felony because the charge does not include the element of “causing bodily
injury,” which would have been necessary to convict appellant of attempted escape
as a third-degree felony. The trial judge is required to deliver to the jury a “written
charge distinctly setting forth the law applicable to the case.” Tex. Code Crim.

       18
          This language in the jury charge tracks the language in the indictment. The indictment
does not include the definition of escape that was included in the jury charge.

                                              16
Proc. art. 36.14; Margraves v. State, 56 S.W.3d 673, 681 (Tex. App.—Houston
[14th Dist.] 2001, no pet.). The purpose of the charge is to inform the jury of the
applicable law and to guide it in applying the law to the facts of the case. Id. A
charge that adequately protects an accused’s rights, although not applying the law
to the facts as preferred by him, is sufficient if the jury could have acquitted him
under it, had they believed his version of the facts. Id. A jury charge that tracks
the language of a particular statute is a proper charge on the statutory issue. Id.

       The State argues that the jury found appellant guilty of attempted escape as a
second-degree felony, which, as relevant here, would require a finding that
appellant “use[d] or threaten[ed] to use a deadly weapon.” See Tex. Penal Code
§§ 15.01(d), 38.06(e)(2).        Here, the jury charge does not track the statutory
language applicable to second-degree attempted escape because it does not include
the language “uses or threatens to use a deadly weapon.” See Tex. Penal Code
§ 38.06(e)(2). However, the State argues that the jury’s finding that appellant
“tried to gain control of a firearm” is equivalent to a finding that he “use[d] or
threaten[ed] to use a deadly weapon.” We disagree.

       In construing a jury charge, we examine the charge as a whole instead of a
series of isolated and unrelated statements. Vasquez v. State, 389 S.W.3d 361, 366
(Tex. Crim. App. 2012). Even if we were to hold that “trying to gain control of a
firearm” is equivalent to “us[ing] or threaten[ing] to use a deadly weapon,” we
would have to ignore the definition of “escape” in the charge, which required the
jury to find that appellant was in custody for a felony offense when he attempted to
escape. This definition is consistent with the statutory definition of attempted
escape as a state-jail felony.19 Moreover, during the charge conference, the State’s

       19
          Attempted escape is a state-jail felony when the offender “is under arrest for, charged
with, or convicted of a felony.” Tex. Penal Code §§ 15.01(d), 38.06(c)(1).

                                               17
counsel conceded that he did not seek a finding that appellant used or threatened to
use a deadly weapon in the commission of the offense.20                            The trial court
accordingly did not enter a deadly weapon affirmative finding.21 We conclude the
jury charge does not include a finding that appellant used or threatened to use a
deadly weapon, as required to convict appellant of attempted escape as a second-
degree felony.

       The State alternatively argues that the trial court correctly entered judgment
against appellant for attempted escape as a third-degree felony because the jury
found that during “the criminal episode, [a]ppellant caused bodily injury to two
public servants.” Although the jury found appellant guilty of two counts of assault
on a public servant and found that appellant “cause[d] bodily injury” to each
officer, the jury did not find that appellant did so “to effect his escape,” as required
for attempted escape to be a third-degree felony. Tex. Penal Code §§ 15.01(d),
38.06(d) (assigning offense level when “the actor to effect his escape causes bodily
injury”) (emphasis added). Thus, the jury’s findings of guilt as to assault do not
support a conviction for attempted escape as a third-degree felony.


       20
          THE COURT: You did not allege deadly weapon in . . . Counts One and Two
       [the assaults]; so, I would think that’s the simple charge. . . . Your Count 3 is
       escape that you allege. And I don’t have it in front of me.
       [State’s Counsel]: I did not. . . . Well, I alleged that he tried to gain possession of
       the gun. I didn’t allege—
       THE COURT: But it's not—you—I think you’re back to a simple assault.
       [State’s Counsel]: Right.
       21
           In a jury trial, a trial court is authorized to enter a deadly weapon affirmative finding in
three situations: when the jury has (1) found guilt as alleged in the indictment and the deadly
weapon has been specifically pleaded as such using “deadly weapon” nomenclature in the
indictment; (2) found guilt as alleged in the indictment but, though not specifically pleaded as a
deadly weapon, the weapon pleaded is per se a deadly weapon; or (3) affirmatively answered a
special issue on deadly weapon use. Sanders v. State, 25 S.W.3d 854, 856 (Tex. App.—Houston
[14th Dist.] 2000), pet. dism’d, 56 S.W.3d 52 (Tex. Crim. App. 2001).

                                                 18
       Accordingly, we conclude the trial court erred in rendering judgment against
appellant for attempted escape as a third-degree felony. We discuss the proper
disposition of the case below.

              C. Enhancement

       In his third issue, appellant argues his sentence for attempted escape was
improperly enhanced by the same prior conviction that was used as an essential
element of the charged offense. We agree.

       The use of a prior conviction to prove an essential element of an offense bars
the subsequent use of that prior conviction in the same indictment for enhancement
purposes. Wisdom v. State, 708 S.W.2d 840, 845 (Tex. Crim. App. 1986). As set
forth above, the jury found that appellant was “in custody for a felony offense”
when he attempted to escape. Being “under arrest for, charged with, or convicted
of a felony at the time” one commits the offense is an essential element of
attempted escape as a state-jail felony.           See Tex. Penal Code §§ 15.01(d),
38.06(c)(1) (emphasis added); see also McWilliams v. State, 782 S.W.2d 871,
874-75 (Tex. Crim. App. 1990). During the guilt-innocence phase of the trial, the
State presented evidence only of appellant’s 1992 felony conviction for burglary of
a habitation. The State improperly relied on the same prior conviction to enhance
appellant’s punishment to the applicable range for a third-degree offense.22 See


       22
          To establish a prior conviction for sentence enhancement purposes, the State must
prove beyond a reasonable doubt that the prior conviction exists and the defendant is linked to
that conviction. Flowers v. State, 220 S.W.3d 919, 921 (Tex. Crim. App. 2007). When the State
seeks to enhance a defendant’s sentence for the primary offense by alleging he has a prior
conviction and there is no indication in the record that the defendant pleaded “true,” the
factfinder must decide whether the State met its burden by entering a finding that the
enhancement allegation is either true or not true. Jordan v. State, 256 S.W.3d 286, 291
(Tex.Crim.App.2008). Appellant pleaded “true” to the burglary conviction, but did not plead
“true” to any other prior convictions, and the jury did not make an affirmative finding that
appellant had other prior convictions.

                                              19
McWilliams, 782 S.W.2d at 875-76. The jury sentenced appellant to ten years’
imprisonment; whereas, the range of punishment for a state-jail felony is 180 days’
to two years’ jail time. Tex. Penal Code § 12.35(a). A sentence outside the
prescribed punishment range is void and illegal. Baker v. State, 278 S.W.3d 923,
926 (Tex. App.—Houston [14th Dist.] 2009, pet. ref’d). When reversible error
occurs in the punishment phase of trial, the appellant is entitled to a new
punishment trial. Tex. Code Crim. Proc. art. 44.29(b); see also Baker, 278 S.W.3d
at 927.

      We sustain appellant’s third issue. We reverse the trial court’s judgment as
to appellant’s conviction for attempted escape and remand that conviction for a
new punishment trial.

                                   Conclusion

      We affirm, as modified, the judgment of the trial court with regard to
appellant’s assault convictions. We modify the judgment to provide that appellant
was convicted of two third-degree felony counts of assault on a public servant. We
reverse the judgment as to appellant’s attempted escape conviction and remand that
conviction for a new punishment trial.




                                         /s/    Martha Hill Jamison
                                                Justice



Panel consists of Chief Justice Frost and Justices Boyce and Jamison. (Frost, CJ.,
files dissent).
Publish — TEX. R. APP. P. 47.2(b).


                                           20
