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Foster v. State

Court of Appeals of Texas, Tenth District

September 13, 2017

SEAN JEFFREY FOSTER, Appellant
v.
THE STATE OF TEXAS, Appellee

         From the 54th District Court McLennan County, Texas Trial Court No. 2015-102-C2

          Before Chief Justice Gray, Justice Davis, and Justice Scoggins.

          OPINION

          TOM GRAY Chief Justice.

         Sean 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 V.[1]

         Jury Charge Error

         In his 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 of age?

         The 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.

         A claim 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).

         Error

         Foster 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).

         The 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. [2]

         Relying 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).[3] 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 ...


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