### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-02-00593-CR

Eddie Joseph Arnold, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT

NO. 9014182, HONORABLE TOM BLACKWELL, JUDGE PRESIDING

O P I N I O N

A jury found appellant Eddie Joseph Arnold guilty of sexually assaulting a child and

assessed punishment at six years’ imprisonment. Tex. Pen. Code Ann. § 22.011 (West 2003). In

three issues, appellant urges that the punishment charge and verdict forms were erroneous and

prevented the jury from considering the full range of punishment. We will affirm the conviction.

Legal Background

To clarify the iss ues presented, we briefly review the statute governing juryrecommended community supervision. If the jury assesses a term of imprisonment of ten years or

less, and if the defen dant is otherwise eligible, the jury may recommend that the sentence be

suspended and the defendant be placed on community supervision. Tex. Code Crim. Proc. Ann. art.2

42.12, § 4(a), (d), (e) (West Supp. 2003). If the jury recommends community supervision, the court

determines the length of the supervisory period, subject to certain statutory guidelines. I d

. art. 42.12,

§ 4(b). One of these guidelines provides that the minimum period of supervision for a person

convicted of a sexual offense against a child is five years. Id . art. 42.12, § 3(b), (f).

Factual Background

Appellant was tried on a two-count indictment alleging sex ual assault of a child

(count one) and indecency with a child by contact (count two). The jury found appellant guilty on

both counts. The next day, before testimony was heard on punishment, the court and attorneys

reviewed the draft punishment charge. Mistakenly believing that article 42.12, section 4(b) required

the court to fix both the term of imprisonment to be probated and the period of supervision to be

imposed, the court amended a portion of the charge dealing with community supervision to read as

follows (we indicate the language stricken):

In this case the defendant has filed, before trial, his sworn motion in which

he prays that in the event he is convicted that he be granted community supervision.

If t he punishment assessed b y you is not more than ten years confinement and you

further find that he has not ever been convicted of a felony in this or any other state,

you may recommend the sent ence be suspended and the defendant placed on

community supervision.

The court made corresponding alterations to the community supervision verdict forms:

We, the jury having found the defendant, Eddie Joseph Arnold III, Guilty of

Sexual Assault of a Child, assess his punishment at confinement in the Institutional

Division of the Texas De partment of Criminal Justice f or

_______ years ; and we

further assess a fine of $ ____________ .1 The community supervision verdict form for the indecency with a child count was similarly

altered.

2 Elsewhere in the charge, the court properly instructed t he jury that the range of punishment

applicable to both offenses included imprisonment for a term of two to twenty years. S ee Tex. Pen.

Code Ann. § 12.33 (West 2003) (second-degree felony punishment).

3 Failure to object to charge error does not preclude a defendant from asserting it as fundamental

error. S ee Almanza v. State

, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g). The State

does not argue that the asserted errors were not preserved.

3 We further find that the defendant has never been convicted of a felony in this

or in any othe r State and we recommend that the sentence be suspended and the

defendant placed on community supervision.[ 1 ]

With regard to the prison term to be assessed should the jury recommend community supervision,

the charge ins tructed the jury, “The maximum sentence for probation is ten years. The minimum

sentence for probation is five years.” As the court later explained when discussing the verdict forms

with the jury, “If this [community supervision] is your verdict, it will result in the judge assessing

the punishment of 5 to 10 years probation, 5, 6, 7, 8, 9, 10, one of them.” 2 By this, we assume the

court meant that if the jury recommended community supervision, the court would assess a term of

imprisonment between five and ten years, probated. Appellant did not object to the charge, the

verdict forms, or the court’s explanation of the forms. 3

The jury assessed appellant’s punishment for the sexual assault at imprisonment for

six years and did not recommend community supervision. For the indecency with a child count,

however, the jury did recommend community su pervision. Thus, the foreperson signed the4

community supervision verdict form and the jury did not assess a term of imprisonment for that

offense.

The court signed two judgments, one for each count. The judgment for count one

(sexual assault of a child), which is now before us, imposes the six-year prison term assessed by the

jury. The judgment for count two (indecency with a child) imposed a ten-year prison term (assessed

by the court) probated (on the jury’s recommendation) for t en years. Later, on the defendant’s

motion, the court set aside the indecency with a child conviction on d ouble jeopardy grounds.

Therefore, that judgment is not before us in this appeal.

Discussion

Appellant contends the court err ed by instructing the jury that the “minimum sentence

for probation is f

ive years.” He further contends the verdict forms were defective in that they did

not allow the jury to determine the prison term if it recommended community supervision. He urges

that the cumulative effect of these errors prevented the jury from con sidering the full range of

punishment. He argues: “This instruction had the effect of misleading the jury into believing a

[prison] term of less than five years could not be probated. Since [the jury] couldn’t fix the term of

punishment on the verdict form it may have been the reason they chose six years (one over their

perceived minimum) and no probation.”

We agree with appellant that there were errors in both the jury charge and the verdict

forms. The court correctly instructed the jury that the range of punishment for both offenses

included two to twenty years in prison, but then erred by telling the jury that the “minimum sentence

for probation is five years.” What article 42.12 provides is that the minimum period of community4 The period of supervision is not a sentence. The sentence is the term of incarceration that is

suspended on the jury’s recommendation. S ee Tex. Code Crim. Proc. Ann. art. 42.12, § 4(a) (West

Supp. 2003); see also id . art. 42.02.

5 supervision for child sex offenders is five years. S ee id

. art. 42.12, § 3(f). 4 The court also erred by

not requiring the jury to assess a prison term before recommending community supervision, and by

assuming that task for itself. Under article 42.12, the jury first “imposes confinement as

punishment” and then recommends that the defendant be placed on community supervision; the court

merely sets the period of supervision. See id . art. 42.12, § 4(a), (b).

Under the circumstances, t hese errors in the charge and the verdict forms were not

so egregious as to deny appellant a fair and impartial trial and did not otherwise affect appellant’s

substantial rights. S ee Almanza v. State

, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g)

(test for fundamental charge error); Tex. R. App. P. 44.2(b) (general reversible error rule). The only

judgment on appeal is the conviction for sexual assault of a child. The jury was properly instructed

that the range of punishment for this offe nse was two to twenty years in prison. The jury, not the

court, assessed the six-year term of imprisonment. Because the jury did not recommend community

supervision for this offense, none of the errors in the charge and verdict forms relating to community

supervision came into play. We are not persuaded by appellant’s suggestion that the errors in

question somehow influenced the jury’s punishment determination with regard to the sexual assault

of fense, or caused the jury not to recommend community supervision. If the jury had wanted to

recommend community supervision for the sexual assault offense, it would have used that verdict5 Because the indecency with a child conviction is not before us, we do not consider the effect

of the court’s errors on that judgment.

6 form, as it did in recommending community supervision for the indecency with a child offense. 5 We

hold that appellant’s three issues do not present reversible error.

The community supervision statute is long, complex, and often amended, and it can

c onfuse even the most experienced judge or lawyer. In this cause, the trial court’s errors do not

require that its judgment be reversed. The judgment of conviction is therefore affirmed.

__________________________________________

David Puryear, Justice

Before Chief Justice Law, Justices B. A. Smith and Puryear

Affirmed

Filed: August 29, 2003

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