NO. 12-14-00019-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

WILLIE WOMACK, 

APPELLANT

V.

THE STATE OF TEXAS,

APPELLEE

§

§

§

APPEAL FROM THE 3RD

JUDICIAL DISTRICT COURT

ANDERSON COUNTY, TEXAS

MEMORANDUM OPINION

A jury convicted Appellant, Willie Womack, of the offense of assault on a public servant 

and assessed his punishment at imprisonment for twenty years. Appellant presents two issues on 

appeal related to the juvenile adjudication used to enhance his punishment. We reverse and 

remand for a new trial on punishment.

BACKGROUND

Appellant assaulted correctional officer Dakota Acker in the Mark W. Michael Unit in 

Anderson County, Texas. In the attack, Acker suffered a laceration to his left temple, contusions 

to his right elbow and a finger of his left hand, and chipped upper incisors requiring dental 

surgery to repair.

While a juvenile, Appellant was found to have engaged in delinquent conduct, namely 

aggravated sexual assault, criminal solicitation to commit aggravated robbery, criminal 

solicitation to commit aggravated assault with a deadly weapon on a public servant, criminal 

solicitation to commit escape, and retaliation. Thereafter, on October 20, 2000, a disposition 

hearing was held, and Appellant was committed to the Texas Youth Commission under a 

determinate sentence. The court sentenced Appellant to twenty-five years of imprisonment and 

ordered him transferred to the Texas Department of Criminal Justice.
2

Before Appellant’s trial for assault on the correctional officer, the State gave notice that it 

intended to use his juvenile offenses to enhance his punishment. Appellant pleaded “not true” to 

the enhancement allegation. To prove the enhancement allegation, the State offered into 

evidence a penitentiary packet containing the “Order to Transfer to the Institutional Division of 

the Texas Department of Criminal Justice” that stated Appellant’s date of birth to be May 22, 

1986. However, his fingerprint card in the same packet showed his date of birth as May 22, 

1985.

At the close of the punishment evidence, Appellant requested the trial court instruct the 

jury, as follows:

I think in addition to finding [the enhancement allegation] true, the – that it should also include, 

“and that the Defendant was adjudicated by a juvenile court under Texas Family Code” –Let’s see 

the statute. Has a section I believe it’s 54.03, “and that the child engaged in delinquent conduct on 

or after January 1st, 1996, constituting a felony offense for which the child was committed to the 

Texas Youth Commission,” I believe is what the statute says. And that conviction – let’s see if it 

says, “became final prior to the” – “the commission of the offense of assault on a public servant.”

In opposition to Appellant’s requested instruction, the State argued that because 

Appellant’s juvenile adjudication occurred on or before October 20, 2000 (the date of the 

adjudication), “his juvenile adjudication statutorily became a final felony conviction before 

Womack committed this offense in TDC.”

The trial judge, however, was fully cognizant that a juvenile adjudication cannot be used 

for enhancement unless the conduct occurred on or after January 1, 1996, the effective date of 

the provisions of Section 12.42(f) of the penal code. The trial judge noted that the transfer order 

showed Appellant’s date of birth as May 22, 1986. She reasoned that Appellant could not have 

been ten years old and subject to the juvenile code until after January 1, 1996. Therefore, she 

determined that Appellant could not have committed the delinquent acts before January 1, 1996.

The trial court instructed the jury using the ordinary language for enhancement for a prior 

felony conviction.

Now, if you find from the evidence beyond a reasonable doubt that the defendant 

WILLIE WOMACK is the same person who was finally convicted of the offense listed in the 

enhancement paragraph and that the conviction alleged in [the] enhancement paragraph became 

final prior to the offense in this case, then you will assess his punishment at confinement in the 

Texas Department of Criminal Justice for any term of not more than twenty years (20) or less than 

two years (2) and in addition to imprisonment, a fine not to exceed $10,000.00 may be imposed.
3

The jury found the enhancement allegation “true” and assessed Appellant’s punishment 

at imprisonment for twenty years.

JURY CHARGE

In his second issue, Appellant insists that the trial court’s punishment charge failed to 

instruct the jury properly under Texas Penal Code Section 12.42(f)–that before it can find the 

enhancement allegation true, it must find that he engaged in the delinquent conduct forming the 

basis of his prior juvenile adjudication on or after January 1, 1996.

Applicable Law

The trial court is required to deliver to the jury “a written charge distinctly setting forth 

the law applicable to the case.” TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007). “After 

the introduction of [punishment] evidence has been concluded, . . . the court shall give such 

additional written instructions as may be necessary. . . .” Id. art. 37.07 § 3(b) (West Supp. 2014). 

A plea of “not true” forces the state to prove the enhancement allegations in the indictment 

beyond a reasonable doubt. Kucha v. State, 686 S.W.2d 154, 155 (Tex. Crim. App. 1985) (en 

banc).

Errors in the jury charge are reviewed under a special harm standard and not under the 

general harmless error standard set out in Rule 44.2 of the Texas Rules of Appellate Procedure. 

Flores v. State, 224 S.W.3d 212, 212-13 (Tex. Crim. App. 2007). Error that is called to the trial 

court’s attention requires reversal if the error caused “some” actual harm to the appellant; 

unobjected to error will not result in reversal unless the error was so egregious as to deprive the 

appellant of a fair and impartial trial. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 

1984); Flores, 224 S.W.3d at 213. “In both situations, the actual degree of harm must be 

assayed in the light of the entire jury charge, the state of the evidence, including the contested 

issues and weight of probative evidence, the argument of counsel[,] and any other relevant 

information revealed by the record of the trial as a whole.” Almanza, 686 S.W.2d at 171.

To be subject to the juvenile code, one must be a “child” of ten years of age or older and 

under seventeen years of age. TEX. FAM. CODE ANN. §§ 51.02(2)(A); 51.04(a) (West 2014). An 

order of adjudication is not a conviction of a crime except as provided in section 51.13(d) of the 

family code. Id. § 51.13(a) (West 2014). Section 51.13(d) provides that only a felony 
4

adjudication in which a child engaged in conduct that occurred on or after January 1, 1996, can 

be a final felony conviction for enhancement purposes. Id; TEX. PENAL CODE ANN. § 12.42(f) 

(West Supp. 2014).

Discussion

The critical inquiry in this case is when Appellant committed the acts for which he was 

adjudicated. There is no evidence of when the conduct occurred, and the record contains 

conflicting evidence regarding Appellant’s date of birth. According to the date of birth stated in 

the transfer order, May 22, 1986, Appellant could not have been ten years old and subject to the 

juvenile code until after January 1, 1996. It would, therefore, be safe to assume that Appellant 

committed the delinquent conduct after January 1, 1996.

However, according to Appellant’s birth date as shown on his fingerprint card, May 22, 

1985, Appellant would have become ten years of age and subject to adjudication seven months 

and nine days before the effective date of Section 12.42(f). Therefore, the possibility exists that 

the conduct for which Appellant was adjudicated occurred during that period. In that event, his 

adjudication could not be used for enhancement.

In response to Appellant’s first issue challenging the sufficiency of the evidence, the 

State argues that it is the jury’s province to resolve conflicts in the evidence. Both birth dates 

were in evidence. The State contends the jury was free to choose the birth date, May 22, 1986, 

which eliminated any possibility that the conduct occurred before January 1, 1996.

However, the charge given by the trial judge foreclosed any consideration of the issue by 

the jury. The jury was left unaware that there was an issue to decide. Without instruction by the 

trial court, the jury could not have known that the decision as to the date of Appellant’s conduct 

was a crucial question to be decided before they could find the enhancement to be true. Without 

the court’s guidance, the jury could not possibly have understood that the date of Appellant’s 

delinquent conduct was a fact of great consequence nor could they have appreciated the 

evidentiary significance of the conflicting dates of birth.

The trial court is required to deliver to the jury “a written charge distinctly setting forth 

the law applicable to the case.” TEX. CODE CRIM. PROC. ANN. art. 36.14. The trial court erred in 

failing to instruct the jury that before it could find the enhancement allegation “true” as a final 

felony conviction, it must first find that Appellant was a child (as defined by Section 51.02(2) of 
5

the family code) who engaged in the delinquent conduct for which he was adjudicated on or 

before January 1, 1996.

The State contends that by not bringing the conflict in the evidence to the court’s 

attention, Appellant waived error. Although incorrect, Appellant’s requested instruction was 

sufficient to direct the trial court’s attention to the omission in the charge, and it correctly set 

forth the legal basis for his objection to the charge and for an instruction under Section 12.42(f) 

of the penal code. See Mays v. State, 318 S.W.3d 368, 384 (Tex. Crim. App. 2010). 

“Some harm” is readily apparent. The jury found Appellant guilty of a third degree 

felony. Properly instructed with the language of Section 12.42(f) of the penal code and with the 

definition of a “child” in Section 51.02(2) of the family code, the jury could have returned a 

finding of “not true.” In that case, the jury could have assessed no more than a ten year sentence, 

only half of the sentence Appellant received. Appellant’s second issue is sustained.

It is unnecessary that we address Appellant’s first issue because of our disposition of his 

second issue. See TEX. R. APP. P. 47.1.

DISPOSITION

We reverse the trial court’s judgment as to punishment, and remand the case for a new 

trial on punishment.

BILL BASS

Justice

Opinion delivered September 17, 2014.

Panel consisted of Worthen, C.J., Hoyle, J., and Bass, Retired J., Twelfth Court of Appeals, sitting by assignment.

(DO NOT PUBLISH)
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

SEPTEMBER 17, 2014

NO. 12-14-00019-CR

WILLIE WOMACK,

Appellant

V.

THE STATE OF TEXAS,

Appellee

Appeal from the 3rd District Court 

of Anderson County, Texas (Tr.Ct.No. 30692)

THIS CAUSE came to be heard on the appellate record and the briefs filed 

herein, and the same being considered, because it is the opinion of this court that there was error 

in the judgment of the court below, it is ORDERED, ADJUDGED and DECREED by this court 

that the judgment be reversed and the cause remanded to the trial court for a new trial on 

punishment; and that this decision be certified to the court below for observance.

Bill Bass, Justice.

Panel consisted of Worthen, C.J., Hoyle, J., and Bass, Retired J., Twelfth Court of

Appeals, sitting by assignment.