Arevalo v. State

959 S.W.2d 373, 1998 Tex. App. LEXIS 95, 1998 WL 9501

• Court: Court of Appeals of Texas
• Decided: January 8, 1998
• Docket: 01-94-00088-CR
• Status: Published

Opinions

ON REMAND FROM THE TEXAS COURT OF CRIMINAL APPEALS

TAFT, Justice.

A jury found appellant, Esteban Arevalo, guilty of sexual assault and aggravated sexual assault. The trial court, having found true the enhancement paragraph alleging a prior conviction for aggravated rape, assessed punishment at 75 years in prison.¹ On appeal, we affirmed the trial court’s judgment. Arevalo v. State, 918 S.W.2d 46 (Tex.App.—Houston [1st Dist.] 1996). The Court of Criminal Appeals vacated this Court’s judgment and remanded for us to address:. (1) whether there was some evidence in the record that appellant was guilty only of sexual assault under count one; and (2) whether submission of the lesser included offense was harmless error as to count two. Arevalo v. State, 943 S.W.2d 887, 890 (Tex.Crim.App.1997). Because appellant conceded there was evidence appellant was guilty of the lesser included offense under both counts, we affirm the trial court’s judgment as reformed.

Appellant was charged with two counts of aggravated sexual assault. Each count relied upon three alternative, aggravating factors: (1) “by acts and words placed Complainant in fear that death and serious bodily injury would be imminently inflicted on Complainant”; (2) “by acts and words occurring in the presence of the Complainant threatened to cause death and serious bodily injury to Complainant”; and (3) “did then and there in the course of the same criminal episode use and exhibit a deadly weapon, to wit, a knife, in that the manner of its use and intended use was capable of causing death and serious bodily injury.” Upon closer examination of appellant’s objection to the trial court’s submission of lesser included offenses, we observe appellant conceded there was conflicting evidence regarding two of the three alternative, aggravating factors:

Next objection is that we object to the inclusion of a lesser included offense because although we have — there has been some type of disagreement — or, let’s say, as to the evidence, at least, a conflict in the evidence as to whether or not one or [sic] the first or second of the aggravating circumstances are present. There has been no issue as to the existence of a knife with regard to this offense; and that in and of itself is an aggravating circumstance that will sustain the finding of aggravated sexual assault. Since there is no conflict as to the presence of a knife at the scene of this offense, there can be no finding of a lesser included offense. This simply is offered by the State as a compromise verdict in case the jury has a question as to the evidence, but there has been no testimony, no cross-examination which would deny the presence of the knife to the exclusion of the other elements of the offense. Therefore, we would urge this Court that the evidence does not support the inclusion of a lesser included offense in this jury charge.

(Emphasis added). Because appellant’s objection conceded there was evidence appellant was guilty only of the lesser included offense in regard to two of the three alternative, aggravating circumstances, it was not error for the trial court to submit the lesser included offenses. Even if there had been no evidence controverting the use and exhibition of a deadly weapon, namely, a knife, appellant’s concession of the existence of evidence controverting the other two aggravating circumstances justified the submission of the lesser-included-offense instructions.

Therefore, we overrule appellant’s third point of error regarding both counts one and two without having to perform a harmless error analysis.

We affirm 'the trial court’s judgment as reformed to show punishments of 75-years confinement for both counts.

TAFT, J., concurs.

1 . The judgment reflects only one sentence of 75 years. The court reporter’s record reflects, however, that the trial court sentenced appellant to 75 years on each count. Having the necessary data and evidence before us for reformation, we reform the judgment.to reflect sentences of 75 years in both counts. See Tex.R.App. P. 43.2(b); Tamez v. State, 620 S.W.2d 586, 590 (Tex.Crim.App.1981).