Turner v. State

726 S.W.2d 140, 1987 Tex. Crim. App. LEXIS 540

• Court: Court of Criminal Appeals of Texas
• Decided: March 11, 1987
• Docket: 046-86
• Status: Published

Opinions

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

DUNCAN, Judge.

Appellant was convicted by a jury of the offense of aggravated sexual assault of a child, as alleged in the indictment. V.T. C.A. Penal Code, Sec. 22.021(a)(5) (1983). Thereafter, the jury assessed his punishment at confinement in the Texas Department of Corrections for a term of forty-five (45) years.

The Beaumont Court of Appeals reversed appellant’s conviction, holding that the trial court, over the appellant’s objection, had erred by instructing the jury “that the defendant may be convicted if you believe ... that he committed the offense alleged in the indictment within a period of three (3) years preceding the filing of the indictment.” The Court of Appeals concluded that this instruction was improper because it permitted the jury to convict the defendant for an offense that may have occurred prior to the effective date of the penal code provisions that made such conduct a criminal offense. The Court of Appeals also decided that the error was reversible under Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App.1985) because it had resulted in “some harm” to the accused and accordingly reversed the judgment and remanded the cause to the trial court. 701 S.W.2d 932.

In the Court of Appeals the State claimed that the appellant failed to properly preserve error. Accordingly, we granted the State’s petition for discretionary review to determine whether the appellant preserved the claimed error and if he did whether the Court of Appeals properly applied the standard established in Almanza v. State, Id. Because we have concluded that the appellant failed to properly preserve the asserted error it is unnecessary to review the Court of Appeals’ application of Almanza v. State, Id.

Appellant was charged with aggravated sexual assault of a child under V.T.C.A. Penal Code, Secs. 22.011 and 22.021. The complainant was the appellant’s stepdaughter at the time of the offense. At the time of trial she was thirteen (13) years old. The complainant testified during the trial that the appellant had sexually molested her on numerous occasions, prior and in addition to the date of the offense as alleged in the indictment: December 2, 1983.

In his brief before the Court of Appeals the appellant asserted that the complainant’s testimony was controverted at trial as to the date of the offense. Further, because of the court’s instruction, the jury was permitted to consider other dates when the appellant had sexually assaulted his stepdaughter in reaching their guilty verdict. In summary, the appellant’s ground of error before the Court of Appeals was as follows: if the jury did not believe the complainant as to the December 2, 1983, date of the offense and nevertheless found the defendant guilty because of a previous offense, then because that previous offense would have occurred prior to the effective date of Y.T.C.A. Penal Code, Sec. 22.-011(a)(2)(A),¹ his conviction would be based upon an ex post facto law, prohibited by the Texas Constitution.²

On direct appeal, the Court of Appeals tersely stated that the “appellant objected to the charge for the reason that it permits the jury to find the defendant guilty of an offense not charged in the indictment.” Afterwards the court proceeded to apply the standard established by this Court in Almanza v State, supra,³ and concluded there had been “some harm” to the defendant.

A review of an erroneous jury charge under Almanza v. State, supra can be predicated upon a timely and specific objection to the trial court that there is error in the charge.⁴ In the case at bar there was no proper objection to the charge made in the trial court. In fact, what occurred is that the trial judge read the appellant’s written objection into the record, which was as follows:

“COMES NOW WILLIAM TURNER and files this his objection to the charge to the jury on the ground that it fails to apply the law to the facts of this case and permits the jury to find the defendant guilty of an offense not charged in the indictment.”

The court then commented: “it is denied.” Other than that, the charge was approved. We posit that such an objection is too vague and ambiguous to preserve error for appeal.⁵

As quoted in footnote 4, Art. 36.14, V.A. C.C.P. specifically states that the defendant shall “distinctly specify” each ground of the objection. This requirement must also be timely made prior to the submission of the charge to the jury in order to give the trial court notice of any defect, allowing it an opportunity to remedy the defect at that time. Appellant’s objection in this case clearly does not inform the court of any specific defect.

In Bilbrey v. State, 594 S.W.2d 754 (Tex.Cr.App.1980) the Court reviewed an objection at trial to a jury charge stating merely that “[the court’s charge] fails to adequately [sic] apply the law to the facts.” Id. at 756. The Court held that such an objection was not specific enough to apprise the court of the complaint. This Court has not departed from that reasoning. Thus, it has repeatedly stated that an objection at trial merely stating that the court’s charge fails to apply the law to the facts is inadequate to preserve error for appellate review. Hackbarth v. State, 617 S.W.2d 944, 947 (Tex.Cr.App.1981); Wells v. State, 634 5.W.2d 868 (Tex.Cr.App.1982).

In the case at bar the wording of appellant’s objection is far too general and ambiguous. One speculative interpretation of his trial objection is that the jury could convict the appellant of an entirely different offense than set forth in the indictment, such as robbery. Another interpretation, as derived from the appellant’s brief, is that the jury found him guilty of an offense committed prior to the effective date of Sec. 22.011, V.A.P.C., which was September 1,1983. Assuming his objection was valid, this argument fails because Sec. 22.011 expressly states that the predecessor statute shall continue to be effective for any offenses committed prior to the effective date of Sec. 22.011.⁶ The predecessor statute in this case was V.T.C.A. Penal Code, Sec. 21.09(a) (1974) which stated:

“A person commits an offense if he has sexual intercourse with a female not his wife and she is younger than 17 years.”

Applying this statute to the offense it is clear that the State has met each element of its burden of proof in finding the defendant guilty of the offense cited in the indictment.⁷ Thus, there was not an ex post facto prosecution.

Given that appellant’s objection was too general and ambiguous to properly apprise the trial court of any defects in the charge we cannot consider the question of whether there was “some harm” to the appellant as a result of the error in the jury charge as complained of on appeal. Rather, the judgment of the Court of Appeals is reversed and this cause is remanded for the Court of Appeals to consider appellant’s remaining grounds of error.

CLINTON, J., dissents.

1 . September 1, 1983, Acts 1983, 68th Leg., p. 5312, ch. 977, Sec. 3.

2 . No bill of attainder, ex post facto, retroactive on any law impairing the obligation of contrasts, shall be made. Tex. Constitution, Art. 1, Sec. 16; Donohue v. State, 602 S.W.2d 265 (Tex. Cr.App.1980).

3 . “If the error in the charge was the subject of a timely objection in the trial court, then reversal is required if the error is calculated to injure the rights of defendant,” which means no more than that there must be some harm to the accused from the error. In other words, an error which has been properly preserved by objection will call for reversal as long as the error is not harmless. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Cr.App.1984).

4 . Art. 36.14, V.A.C.C.P., states in pertinent part:

"Before said charge is read to the jury, the defendant or his counsel shall have a reasonable time to examine the same and he shall present his objections thereto in writing, distinctly specifying each ground of objec-tion_” (Emphasis added.)

5 . It is appropriate to observe that after the appellant was convicted he filed the same written objection to the court’s charge on punishment, except in the title to the written objection he interlined the word "Punishment.” What actually happened was the appellant merely submitted two copies of the same objection to the court complaining of error in the jury charge as to guilt-innocence and punishment.

6 . "An offense committed before the effective date of this Act is covered by the law in effect when the offense was committed, and the former law is continued for this purpose." V.T.C.A. Penal Code, Sec. 22.011.

7 . The indictment returned by the grand jury in April of 1984 states in pertinent part that [the defendant, WILLIAM CHARLES TURNER], "did then and there sexually assault Sharon Es-chette, hereafter styled the Complainant, a person younger than seventeen (17) years of age and not the Defendant’s spouse, by intentionally and knowingly causing the penetration of the vagina of the Complainant by inserting his penis; and the Complainant was then and there younger than fourteen (14) years of age.”