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

                   DISSENTING OPINION
      This court should modify the trial court’s judgment to reflect that appellant’s
conviction for attempt to commit escape is a second-degree felony and affirm the
judgment as modified.     Under his second issue, appellant asserts that he was
convicted of attempt to commit the third-degree felony of escape, which is a state-
jail felony rather than the third-degree felony reflected in the trial court’s
judgment. Appellant’s punishment for the attempt-to-commit-escape offense was
assessed at ten years’ confinement. Because the maximum punishment for a state-
jail felony is two years’ confinement, appellant argues that his sentence is outside
the statutory range of punishment and therefore void and illegal. This court agrees,
reverses appellant’s sentence as to this offense, and remands for a new punishment
hearing.1

       Appellant does not assert that the evidence is legally insufficient to support
any of his convictions. If appellant had challenged the legal sufficiency of the
evidence supporting his conviction for attempt to commit escape, this court would
consider all the evidence in the light most favorable to the jury’s verdict and
determine whether, based on the evidence and reasonable inferences therefrom, a
rational jury could have found the essential elements of the offense beyond a
reasonable doubt. See Anderson v. State, 416 S.W.3d 884, 888 (Tex. Crim. App.
2013). The essential elements of the offense would be those of a hypothetically
correct jury charge: “‘one that accurately sets out the law, is authorized by the
indictment, does not unnecessarily increase the State’s burden of proof or
unnecessarily restrict the State’s theories of liability, and adequately describes the
particular offense for which the defendant was tried.’” Id. at 889 (quoting Malik v.
State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).

       If this court would use the Malik standard to determine the elements of
appellant’s offense in assessing the sufficiency of the evidence to support his
conviction, this court likewise should use the Malik standard in determining the

1
  In his second issue, appellant also asserts that this court should correct a clerical error in the
trial court’s judgment, namely the reflection that appellant’s two convictions for assault on a
public officer are second-degree felonies rather than third-degree felonies. In his first issue,
appellant asserts that the trial court violated his right to a fair trial by taking several actions. The
majority is correct to overrule appellant’s first issue and to sustain appellant’s second issue as to
his convictions for assault on a public officer.


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elements of appellant’s offense in assessing the offense level of his conviction for
attempt to commit escape.

      A person commits the offense of escape if he escapes from custody when he
is under arrest for, lawfully detained for, charged with, or convicted of an offense.
Tex. Penal Code § 38.06(a)(1) (West 2014). Escape is a first-degree felony if, to
effect his escape, the actor “uses or threatens to use a deadly weapon.” Id. §
38.06(e). Escape is a third-degree felony if the actor “is under arrest for, charged
with, or convicted of a felony.” Id. § 38.06(c).

      A person commits the offense of attempted escape if, with specific intent to
commit the offense of escape, he does an act amounting to more than mere
preparation that tends but fails to effect the commission of the offense of escape.
Id. § 15.01(a). If a person attempts an offense that may be aggravated, his conduct
constitutes an attempt to commit the aggravated offense if an element that
aggravates the offense accompanies the attempt.        Id. § 15.01(b).    An attempt
offense is one offense category lower than the offense attempted, and if the offense
attempted is state jail felony, the attempt offense is a Class A misdemeanor. Id.
§ 15.01(d).

      In the third count of the indictment, appellant was charged with the
following offense:

      . . . that JAMES MUSGROVE . . . did then and there, with the
      specific intent to commit the offense of escape from the custody of
      [two correctional officers], do an act, to-wit: 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.


      A firearm is, per se, a deadly weapon. See id. § 1.07(a)(17)(A) (West 2014);
Simpson v. State, 227 S.W.3d 855, 861 (Tex. App.—Houston [14th Dist.] 2007, no
                                          3
pet.). If, as alleged, appellant tried to gain control of a firearm, then appellant
threatened to use a deadly weapon. See Tex. Penal Code §§ 38.06(a),(e). Thus,
under this count, appellant was charged with attempt to commit the first-degree
felony of escape. See Tex. Penal Code §§ 38.06(a),(e); 15.01(a),(b), (d). The jury
found appellant guilty as charged in this count of the indictment.

       Under a hypothetically correct jury charge, the jury would have been asked
whether appellant committed the offense of attempt to commit the first-degree
felony of escape. Therefore, as requested by the State, this court should overrule
the second issue as to the offense of attempt to commit escape, modify the trial
court’s judgment to reflect that appellant’s two convictions for assault on a public
officer are third-degree felonies and his conviction for attempt to commit escape is
a second-degree felony, and affirm the judgment as modified.2 Because the court
reverses the judgment as to the conviction for attempt to commit escape and
remands for a new punishment hearing, I respectfully dissent.




                                          /s/       Kem Thompson Frost
                                                    Chief Justice


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



2
  In his third issue, appellant asserts that his sentence for attempted escape was improperly
enhanced by the same prior conviction that was used as an essential element of the charged
offense. Presuming error as to the third issue, appellant suffered no harm because he was
convicted of a second-degree felony.


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