                                      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
       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. Appellant subsequently pleaded “not guilty” to the charged offense 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
Texas Family Code Section 71.0021(b) (dating relationship), Section 71.003 (family member),
or Section 71.005 (member of the same household) 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. FAM. 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. TEX. PENAL
CODE ANN. § 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
       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),




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         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 breath, 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 that
offense, and found him “guilty” of “assault causing bodily injury family violence, a lesser-
included charge of the indictment.” As previously discussed, 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).
         The State argues that it proved Appellant had a previous assault family violence
conviction which enhanced his conviction to a third degree felony. Further, the State argues 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 disagree. The habitual offender statute under which
Appellant was sentenced applies only to persons convicted of felony level offenses.                       See



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generally id. § 12.42. Appellant, however, was convicted of a misdemeanor offense, not a
felony offense. Thus, the habitual offender statute does not apply.
         Moreover, proof of a prior conviction for assault family violence is required to raise the
underlying misdemeanor offense to a third degree felony offense. See id. § 22.01(b)(2)(A), see
also Olivas v. State, No. 08-11-00081-CR, 2013 WL 1182208, at *4 (Tex. App.—El Paso Mar.
20, 2013, no pet.) (op., not designated for publication) (citing Calton v. State, 176 S.W.3d 231,
232-33 (Tex. Crim. App. 2005) (recognizing that enhancement serves to increase punishment
range but not to change degree of offense.)). Therefore, the State was required to prove the
existence of a prior assault family violence conviction at the guilt phase of the trial. Luna v.
State, 402 S.W.3d 849, 852 (Tex. App.—Amarillo 2013, no pet.) (State must prove existence of
prior conviction for assault family violence during guilt phase of trial to convict appellant of
third degree assault family violence); see also Calton, 176 S.W.3d at 234.1 Yet, the State did not
present any evidence to prove Appellant’s prior conviction at the guilt stage of trial.
         Thus, because Appellant was found guilty of misdemeanor assault family violence, 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.

          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)); see also Zavala v. State, No. 03–05–00051–CR, 2007 WL
135979, at *1 n.2 (Tex. App.—Austin Jan. 22, 2007, no pet.) (mem. op., not designated for publication)
(recognizing split between Sheppard and Cagle). After Cagle, the Texas Court of Criminal Appeals decided
Calton, where it concluded that proving the existence of a prior conviction for evading arrest was an element of the
crime categorized as “third degree evading arrest” and had to be established during the guilt phase of the trial as part
of the state’s burden. Calton, 176 S.W.3d at 234. The Amarillo Court of Appeals relied on Calton in holding that
the State was required to prove the existence of a prior conviction for assault family violence at the guilt phase of
trial in a prosecution for third degree assault family violence with previous conviction. Luna, 402 S.W.3d at 851.
Given the court of criminal appeals’s holding in Calton, we agree with the Amarillo Court’s reasoning in Luna.


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                                              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 the trial court for a new punishment hearing consistent
with this opinion. See id.; see also Mizell, 119 S.W.3d at 806; see also Speth, 6 S.W.3d at 532-
33.

                                                                GREG NEELEY
                                                                   Justice

Opinion delivered August 8, 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

                                            AUGUST 8, 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 and remand this case 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.
