the 54th District Court McLennan County, Texas Trial Court
Chief Justice Gray, Justice Davis, and Justice Scoggins.
GRAY Chief Justice.
Jeffrey Foster was convicted of one count of Burglary of a
Habitation (Count I), three counts of Indecency with a Child
by Contact (Counts II, III, and IV), and one count of
Indecency with a Child by Exposure (Count V). See
Tex. Penal Code Ann. §§ 30.02; 21.11(a)(1);
21.11(a)(2)(B) (West 2011). He was sentenced to 30 years in
prison in Count I, 15 years in prison in each of Counts
II-IV, and 10 years in prison in Count V. Because the error
in the court's charge to the jury in the punishment phase
of the trial did not egregiously harm Foster, we affirm the
trial court's judgments regarding Counts II through
sole issue, Foster contends the trial court's inclusion
of special issues in the court's charge to the jury at
punishment caused him egregious harm. On each verdict form
regarding Counts II, III, IV, and V, the jury was asked
Do you find from the evidence beyond a reasonable doubt that
at the time of the commission of the offense, [specific
offense charged], as alleged in [corresponding count] of the
indictment, that M L M was a child under fourteen (14) years
jury answered, "We do, " each time the question was
asked. Prior to the verdict forms, the jury was instructed,
"it is the law in the State of Texas that if the victim
is under the age of fourteen (14) years at the time of the
offenses, the Defendant is not eligible for probation."
Foster does not take issue with this instruction.
of jury-charge error is reviewed using the procedure set out
in Almanza. Barrios v. State, 283 S.W.3d
348, 350 (Tex. Crim. App. 2009); Almanza v. State,
686 S.W.2d 157, 171 (Tex. Crim. App. 1985). All jury-charge
errors, including errors in the verdict form, are cognizable
on appeal under Almanza. Jennings v. State,
302 S.W.3d 306, 311 (Tex. Crim. App. 2010). If error is
found, we then analyze that error for harm. Middleton
v. State, 125 S.W.3d 450, 453 (Tex. Crim. App.
2003); Riggs v. State, 482 S.W.3d 270, 273 (Tex.
App.-Waco 2015, pet. ref'd).
contends that Texas law does not allow the submission of
special issues in criminal cases; thus, the trial court's
submission of the special issues in this case was error.
Article 37.07(1)(a) of the Code of Criminal Procedure
requires jury verdicts to be general. Tex. Code Crim. Proc.
Ann. art. 37.07(1)(a) (West 2006). There is no distinction in
the statute between a verdict on guilt/innocence or a verdict
on punishment. The Court of Criminal Appeals has said,
"as was stated in Stewart v. State, 686 S.W.2d
118, 124 (Tex.Cr.App. 1984), '[o]ther than the [death
penalty related findings] provisions in Article 37.071,
V.A.C.C.P., Texas jurisprudence has no authority allowing the
submission of special issues to a jury in a criminal
case.'" Harris v. State, 790 S.W.2d 568,
579 (Tex. Crim. App. 1989); Stewart v. State, 686
S.W.2d 118, 124 (Tex. Crim. App. 1984) (en banc). However,
the Court also stated that it did not mean "a special
issue could never be constitutionally necessary despite the
statutory prohibition of Article 37.07(1)(a)."
Harris, 790 S.W.2d at 579-80. Special issues have
been properly used for purposes of making an affirmative
finding regarding whether a deadly weapon was used in the
commission of an offense. See Hill v. State, 913
S.W.2d 581, 584 (Tex. Crim. App. 1996) (en banc).
State argues that the Court of Criminal Appeals has
authorized the use of special issues in the punishment phase
of the trial regarding probation eligibility. See Polk v.
State, 693 S.W.2d 391, 394 (Tex. Crim. App. 1985)
("Special issues are often submitted regarding
enhancement allegations and probation eligibility."). In
the case at hand, the age of M.L.M., the victim, was one
factor that could determine Foster's probation
eligibility. See former Tex. Code Crim. Proc. Ann.
art. 42.12, sec. 4(d) (repealed by Acts 2015, 84th Leg., ch.
770 (H.B. 2299) § 3.01, effective January 1, 2017).
Although the opinion in Polk seems to authorize the
type of special issue given here, the Court in Polk
was not called on to address whether the submission of a
special issue of the type given in this case was erroneous.
It addressed the methods in which a statutorily required
affirmative finding of a deadly weapon may be made.
Id. at 394. One of the methods authorized by the
Court was the submission of a special issue during the
punishment phase of the trial. Id. Unlike
Polk, here, there is no statutory requirement of an
affirmative finding that a child victim is under 14 years of
age at the time the offenses were committed. See
former Tex. Code Crim. Proc. Ann. art. 42.12, sec. 4(d)
(repealed by Acts 2015, 84th Leg., ch. 770 (H.B. 2299) §
3.01, effective January 1, 2017) ("a defendant is not
eligible for community supervision under this section if the
defendant…(5) is convicted of [indecency with a child]
if the victim of the offense was younger than 14 years of age
at the time the offense was committed…."). Thus,
we do not have the same situation as in Polk.
Further, the Court of Criminal Appeals has not addressed the
significance of its statement since the statement was made.
on the Court of Criminal Appeals' opinion in Harris
v. State, 790 S.W.2d 568 (Tex. Crim. App. 1989), we have
held that article 37.07(1)(a)'s language regarding
general verdicts is mandatory and that if a submitted special
issue is not "constitutionally necessary, " the
submission is erroneous. Moore v. State, No.
10-09-00386-CR, 2010 Tex.App. LEXIS 6762, at *4 (Tex.
App.-Waco Aug. 18, 2010, pet. ref'd). But, we have not
been presented with any authority, and we have found none,
that a submission of a special issue regarding the age of a
victim is "constitutionally ...