Affirmed and Memorandum Opinion filed August 22, 2013.

In The

Fourteenth Court of Appeals

NO. 14-12-00907-CR

RONALD GUILBEAUX, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court

Jefferson County, Texas

Trial Court Cause No. 11-12335

M E M O R A N D U M O P I N I O N

A jury convicted appellant Ronald Guilbeaux of aggravated sexual assault of 

a child. The trial court assessed punishment at fifty years’ confinement. Appellant 

asserts that the trial court erred in determining the range of punishment for this 

offense and that, by applying an incorrect range of punishment, the trial court 

failed to consider the full range of punishment for the charged offense and violated 

appellant’s due process rights. We affirm.
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I. FACTUAL AND PROCEDURAL BACKGROUND

Appellant was charged with the offense of aggravated sexual assault of a 

child younger than fourteen years of age. See Tex. Penal Code § 22.021(a)(2)(B). 

The indictment alleged that the complainant was younger than fourteen years of 

age but did not allege that the complainant was younger than six years of age at the 

time the offense was committed. The minimum term of imprisonment for this 

offense increases to twenty-five years if the victim of the offense was younger than 

six years of age at the time the offense was committed. See id. § 22.021(f)(1).

At the beginning of the guilt/innocence phase, the trial court confirmed with 

appellant that he wanted the trial court to assess punishment. Appellant’s counsel 

agreed with the trial court that if the complainant was younger than six years of 

age, then the minimum term of imprisonment for this offense increases to twentyfive years. In open court, appellant stated that he had discussed the range of 

punishment with his lawyer, and appellant’s lawyer stated that, under the Texas 

Penal Code, if convicted, appellant would face a minimum punishment of twentyfive years’ confinement. Appellant’s counsel also stated that the complainant was 

five years old at the time of the alleged offense. 

After the jury found appellant guilty, appellant obtained new counsel. At the 

punishment hearing, appellant’s new counsel objected that the minimum 

punishment for this offense should be five years’ confinement, because the 

indictment did not allege that the complainant was younger than six years of age 

when the offense was committed. The trial court stated that there was no dispute 

that the complainant was younger than six years of age when the offense was 

committed and that appellant had notice before trial that the minimum punishment 

would be twenty-five years’ confinement if he were found guilty. At the end of the 

punishment hearing, the trial court assessed punishment at fifty years’ 
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confinement, indicating that, even if the minimum punishment had been five years’ 

confinement, the trial court would have assessed the same punishment.

II. ISSUE AND ANALYSIS

A person commits aggravated sexual assault of a child if the person sexually 

assaults another and the victim is younger than fourteen years of age at the time of 

the offense. See Tex. Penal Code § 22.021(a)(2)(B). This offense is prescribed as a 

felony of the first degree, which is punishable by life imprisonment or by any term 

between five and ninety-nine years. See id. §§ 12.32(a), 22.021(e). If the victim is 

younger than six years of age when the offense was committed, however, the 

minimum term of imprisonment is increased to twenty-five years. See id.

§ 22.021(f)(1). On appeal, appellant asserts two arguments under a single appellate 

issue: (1) the trial court erred in determining the range of punishment for this 

offense; and (2) by applying an incorrect range of punishment, the trial court failed 

to consider the full range of punishment for the charged offense and violated 

appellant’s due process rights.

As to the second argument, appellant failed to preserve error by voicing this 

constitutional complaint in the trial court.1 See Teixeira v. State, 89 S.W.3d 190, 

192 (Tex. App.—Texarkana 2002, pet. ref’d) (holding that, to preserve error as to 

alleged violation of due process by trial court’s failure to consider full range of 

punishment, complaint must be asserted in the trial court). Accordingly, appellant 

waived this complaint.

As to the first argument, appellant asserts that the trial court had to 

determine the range of punishment based on the allegations of the indictment, and 

because the indictment contained no allegation that the complainant was younger 

 

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Even if appellant had preserved error, we would conclude that the trial court did not violate 

appellant’s due process rights. 
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than six years of age when the offense was committed, the trial court should have 

determined that the minimum punishment for this offense was five years’ 

confinement. Appellant’s argument is without merit. An indictment must allege 

―everything necessary to be proven to sustain a conviction in the guilt/innocence 

phase.‖ Sharp v. State, 707 S.W.2d 611, 624 (Tex. Crim. App. 1986) (emphasis in 

original). In this case, the State had the burden of proving that appellant sexually 

assaulted a child younger than fourteen years of age at the time of the offense. See 

Tex. Penal Code § 22.021(a)(2)(B). The offense does not include an additional 

element that the victim was younger than six years of age when the offense was 

committed. Because this younger age of the complainant affects the range of 

punishment for the offense, rather than the proof needed to convict, the younger 

age did not need to be expressly alleged in the indictment. See Brooks v. State, 957 

S.W.2d 30, 33–34 (Tex. Crim. App. 1997) (holding that enhancement allegations 

do not need to be specified in the indictment, provided that the defendant received 

other forms of notice). Therefore, the second argument lacks merit.

For the foregoing reasons, we overrule appellant’s appellate issue and affirm 

the trial court’s judgment.

/s/ Kem Thompson Frost

Justice

Panel consists of Justices Frost, Brown, and Donovan.

Do Not Publish — Tex. R. App. P. 47.2(b).