Puente v. State
Puente v. State
Opinion of the Court
OPINION
delivered the opinion of the Court
In this aggravated sexual-assault case, the State moved to amend the indictment,
PROCEDURAL POSTURE
The appellant was charged by indictment with the felony offense of aggravated sexual assault of a child for “THE PENETRATION OF THE ANUS of [J.C.], a child younger than six years of age ... WITH FINGER.” This allegation charged the appellant with a first-degree felony offense,
However, neither the indictment itself nor a copy of it was actually amended in accordance with the agreement of the parties. Instead, the prosecutor manually struck certain language from the written judicial confession contained in the “Waiver of Constitutional Rights, Agreement to
On direct appeal, the appellant argued that his twenty-one year prison sentence was illegal because unauthorized. He argued that the amendment to the judicial confession constituted a valid amendment to the indictment and that, as thus amended, namely, by striking the language “a child younger than six years of age,” the indictment alleged only the second-degree felony offense of sexual assault of a child under Section 22.011(a)(2)(A) of the Penal Code, which carries a maximum sentence of twenty years.
The court of appeals agreed. In its unpublished opinion, however, the court of appeals misread the record, as follows:
On October 21, 2008, the State submitted the amendment to the indictment by*356 physically striking through the words “a child younger than six years of age” on a copy of the indictment. Appellant did not object to the amendment. The trial court subsequently approved the amendment. Therefore, the indictment was properly amended.7
Finding that this amendment to the indictment had the effect of reducing the charge against the appellant to the second-degree offense of sexual assault, the court of appeals concluded that the appellant’s sentence was indeed unauthorized, and therefore, illegal.
ANALYSIS
A person commits sexual assault if, inter alia, the person “intentionally or knowingly ... causes the penetration of the anus ... of a child by any means,” a child being “a person younger than 17 years of age[.]”
But a victim who is younger than six years of age is also, by definition, younger than fourteen years of age. Sexual assault of a fourteen-year-old is, in essence, a lesser-included offense of sexual assault of a six-year-old. Therefore, the original indictment was already, without the necessity of an amendment, sufficient to authorize conviction for the unenhanced first-degree felony of sexual assault of a child younger than fourteen years of age.
Articles 28.10 and 28.11 of the Code of Criminal Procedure allow for the possibility of amending an indictment and supply the procedure to be followed for successful amendment.
It is acceptable for the State to proffer, for the trial court’s approval, its amended version of a photocopy of the original indictment. If approved, the amended photocopy of the original indictment need only be incorporated into the record under the direction of the court, pursuant to Article 28.11, with the knowledge and affirmative assent of the defense. This version of the indictment would then become the “official” indictment in the case, and it would continue*358 to state, presumably in “plain and intelligible” language, the nature and cause of the accusation.21
The Court in Riney then noted that Ward would “continue[ ] to stand for the proposition that ‘[njeither the motion [to amend] itself nor the trial judge’s granting thereof is an amendment; rather the two comprise the authorization for the eventual amendment of the charging instrument pursuant to Article 28.10.’ ”
Our holding in Riney did not necessarily rule out the possibility that there could be other valid methods to amend an indictment. We need not decide that question today. Regardless of whether there may be legitimate ways to amend an indictment other than to make changes directly to the original indictment or to place an amended duplicate into the record, we do not believe that manual changes to a written judicial confession should suffice under any circumstances. A judicial confession in a guilty plea, even when it is reduced to writing, is decidedly not a charging instrument, nor may it serve as a reasonable facsimile for one. Its purpose is altogether different than that of a criminal pleading. A written judicial confession provides evidentiary support for a plea of guilty to the charges alleged in the indictment or to some lesser included offense of that which is alleged in the indictment.
CONCLUSION
We hold that the State’s request to amend the indictment and the trial court’s granting that request did not serve to amend the indictment where alterations were made solely to the written judicial confession. Therefore, the appellant’s sentence was authorized, and the court of appeals erred in vacating the trial court’s judgment. We reverse the judgment of the court of appeals and reinstate the judgment of the trial court.
HERVEY, J. filed a concurring opinion in which KELLER, P.J., and KEASLER, J., joined.
. Puente v. State, No. 14-08-01011-CR, 2010 WL 26534 (Tex.App.-Houston [14th Dist.] January 7, 2010) (mem.op.) (Slip op. at 6) (not designated for publication).
. Tex Code Crim. Proc. arts. 28.10 & 28.11.
. See Tex Penal Code § 22.021(a)(l)(B)(i), (a)(2)(B), & (e) ("A person commits an offense ... if the person ... intentionally or knowingly ... causes the penetration of the anus ... of a child by any means ... and ... if ... the victim is younger than 14 years of age[.] * * * An offense under this section is a felony of the first degree.”).
. See Tex. Penal Code § 22.021(f)(1) ("The minimum term of imprisonment for an offense under this section is increased to 25 years if ... the victim of the offense is younger than six years of age at the time the offense is commiltedf.]”).
. See Tex Code Crim. Proc. art. 28.11 ("All amendments of an indictment or information shall be made with the leave of the court and under its direction.”).
. The appellant is mistaken that the indictment as thus amended would have alleged the second-degree felony offense of sexual assault of a child. Had the indictment actually been amended as reflected in the alteration to the judicial confession, it would have alleged that the appellant "did ... unlawfully, intentionally and knowingly cause THE PENETRATION OF THE ANUS of J.C., ... WITH FINGER.” This language fails to allege a complete offense, because it alleges neither that the actor lacked the victim's consent nor that the victim was younger than seventeen. See Tex. Penal Code § 22.011(a) & (c)(1). Therefore, had the indictment been amended as reflected in the judicial confession, and the appellant had objected to it under Tex.Code Crim. Proc. art. 1.14(b), it would have supported neither a conviction for aggravated sexual assault of a child nor a conviction for sexual assault of a child.
One adjudged guilty of a second-degree felony offense of sexual assault of a child faces a prison sentence for "any term of not more than 20 years or less than 2 years.” Tex. Penal Code § 12.33(a). The appellant argues that, in order to effectuate the true intent of the parties, the amendment should have struck only the words "younger than six years of age.” By also striking the words “a child,” he maintains, the amendment had the effect of alleging only the second-degree felony of sexual assault. We note, however, that, even had the words "a child” not been struck, the amendment would still have alleged only a second-degree sexual assault. Penetration of the anus of a "child” only amounts to a sexual assault unless it can be shown that the “child” is also younger than fourteen years of age. See Texas Penal Code § 22.011(a)(2)(A) & (c)(1) ("A person commits an offense if the person ... intentionally or knowingly ... causes the penetration of the anus ... of a child by any means[.] * * * In this section ... "Child” means a person younger than 17 years of age[.]”). The best way for the parties to have changed the allegation to allow the appellant to plead guilty in exchange for a twenty-one-year sentence would have been simply to strike the word "six” and replace it with the word "fourteen.” See Texas Penal Code § 22.021(a)(2)(B) (intentional or knowing penetration of a child’s anus is an aggravated offense if "the victim is younger than 14 years of age[J”). This would have raised the sexual assault of a child to a first-degree aggravated sexual assault, but would not have subjected the appellant to the mandatory twenty-five-year minimum term of imprisonment.
. Puente v. State, supra (Slip op. at 6) (emphasis added).
. Id. (Slip op. at 6-7). The court of appeals explained:
A sentence that is outside the maximum or minimum range of punishment is unauthorized by law and therefore illegal. Mizell v. State, 119 S.W.3d 804, 806 (Tex.Crim.App. 2003) (en banc); Ex parte Seidel, 39 S.W.3d 221, 225 n. 4 (Tex.Crim.App. 2001) (en banc). A defendant may obtain relief from an unauthorized sentence on direct appeal or by a writ of habeas corpus. Mizell, 119 S.W.3d at 806. Appellant was sentenced to confinement for 21 years. Because the amended indictment only alleged the offense of sexual assault, the maximum penalty appellant could have been sentenced to is confinement for 20 years. See Tex. Penal Code Ann. §§ 12.33(a), 22.011(f). Therefore, appellant's sentence is illegal. See Mizell, 119 S.W.3d at 806; Ex parte Seidel, 39 S.W.3d at 225 n. 4. When punishment pursuant to a negotiated plea agreement exceeds the statutory maximum, the proper relief is to return the parties to their respective positions before the guilty plea was entered. Ex parte Rich, 194 S.W.3d 508, 515 (Tex.Crim.App. 2006); Ex parte Beck, 922 S.W.2d 181, 182 (Tex.Crim.App. 1996) (per curiam).
Id. (Slip op. at 7).
. Id. (Slip op. at 8).
. Tex Penal Code §§ 22.011(a)(2)(A) & (c)(1).
. Tex Penal Code §§ 12.33(a) & 22.011(f).
. Tex Penal Code §§ 22.021(a)(1)(B)(i), (2)(B).
. Tex. Penal Code §§ 12.31 & 22.021(e).
. Tex. Penal Code §§ 22.021(e), (f)(1).
. See Allison v. State, 618 S.W.2d 763, 764-65 (Tex.Crim.App. 1981) (indictment alleging burglary of a habitation will authorize conviction for lesser-included offense of burglary of a building without necessity of an amendment to the indictment); Hardie v. State, 79 S.W.3d 625, 631-32 (Tex.App.-Waco 2002, pet. ref'd) (indictment need not be amended or altered at all to support conviction for lesser-included offense).
. Because we will hold that the indictment was in fact not amended, we need not address whether the court of appeals should nevertheless have affirmed the trial court's judgment on some other basis such as estoppel. The State has argued alternatively that the appellant, having agreed with the State to amend the indictment in a way that would support a twenty-one-year sentence, should now be es-topped from arguing that his sentence is illegal because no such amendment was successfully accomplished. Our disposition makes it unnecessary to resolve this alternative argument.
. TexCode Crim. Proc arts. 28.10, 28.11.
. Riney v. State, 28 S.W.3d 561 (Tex.Crim.App. 2000).
. Ward v. State, 829 S.W.2d 787 (Tex.Crim.App. 1992), overruled in part by Riney v. State, 28 S.W.3d 561 (Tex.Crim.App. 2000).
. Riney, 28 S.W.3d at 566.
. Id. at 566.
. See, e.g., Menefee v. State, 287 S.W.3d 9, 13 (Tex.Crim.App. 2009) (a "sworn written statement” acknowledging guilt of the charged offense is one form of permissible evidence that may be entered in support of guilty plea in a felony case to satisfy the statutory requirement, under Tex Code Crim Proc. art. 1.15, that the State introduce evidence substantiating guilt).
Concurring Opinion
concurring in which KELLER, P.J., and HERVEY, J., joined.
I would hold that Julio Cesar Puente is estopped from challenging his sentence as illegal.
. See Rhodes v. State, 240 S.W.3d 882, 891 (Tex.Crim.App. 2007) (observing that estoppel by contract bars a party who accepts benefits under a contract from questioning the contract's existence, validity, or effect).
Concurring Opinion
concurring in which KELLER, P.J., and KEASLER, J., joined.
I join Judge Keasler’s concurring opinion and agree that the court of appeals should not have even addressed the merits of appellant’s claim. I would find it unnecessary to decide whether the indictment in this case was amended also because, even if it were amended, appellant engaged in a course of conduct that had the effect of waiving any requirement of an allegation in the indictment of “a child younger than fourteen years of age.” See Joseph v. State, 309 S.W.3d 20, 24-26 (Tex.Crim.App. 2010) (in absence of express and explicit waiver of Miranda rights, totality of circumstances may show voluntary waiver of these rights); Trejo v. State, 280 S.W.3d 258, 263 (Tex.Crim.App. 2009) (Keller, P.J., concurring in the judgment) (“unless waived, an indictment is necessary to vest the trial court with personal jurisdiction in a felony case”).
With these comments, I concur in the Court’s judgment.
Reference
- Full Case Name
- Julio Cesar PUENTE, Appellant, v. the STATE of Texas
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- 22 cases
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- Published