holding that trial court’s erroneous denial of defendant’s right to elect to have either court or jury assess punishment was harmless error under Rule 44.2(b)
How later courts described this case
- holding that trial court’s erroneous denial of defendant’s right to elect to have either court or jury assess punishment was harmless error under Rule 44.2(b)
Written by the judges who cited it.
The opinion
Opinion issued February 19, 2015
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-14-00635-CR
———————————
JAMES DANIEL BOONE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 253rd District Court
Chambers County, Texas
Trial Court Case No. 13035
MEMORANDUM OPINION
A jury convicted appellant James Daniel Boone of the state jail felony
offense of evading arrest or detention while using a motor vehicle and the trial
court assessed his punishment at ten years’ confinement. This Court affirmed
Boone’s conviction, but reversed the portion of the judgment assessing punishment
and remanded for a new punishment hearing. See Boone v. State, No. 01–09–
01020–CR, 2010 WL 3928533 (Tex. App.—Houston [1st Dist.] Oct. 7, 2010, pet.
ref’d) (mem. op., not designated for publication). In a single issue, Boone argues
that the trial court erred by denying his request to have a jury assess his
punishment on remand. We affirm.
If a court of appeals or the Court of Criminal Appeals reverses and remands
for errors in the punishment phase only, the trial court shall commence the new
trial as if a finding of guilt had been returned and proceed to the punishment stage
of the trial. See TEX. CODE CRIM. PROC. ANN. art § 44.29(b) (West Supp. 2014). “If
the defendant elects, the court shall empanel a jury for the sentencing stage of the
trial in the same manner as a jury is empaneled by the court for other trials before
the court.” Id. Therefore, a defendant has the option to elect to have the court or a
jury assess his punishment on remand. Easton v. State, 920 S.W.2d 747, 751 (Tex.
App.—Houston [1st Dist.] 1996, no pet.); see also Johnson v. State, 995 S.W.2d
926, 928 (Tex. App.—Waco 1999, no pet.). A defendant may elect to have a jury
assess his punishment after remand, notwithstanding his previous election in the
original trial. Saldana v. State, 826 S.W.2d 948, 951 (Tex. Crim. App. 1992);
Johnson, 995 S.W.2d at 929.
A defendant’s right to have a jury assess his punishment, however, is a
statutory right, the denial of which is subject to non-constitutional harm analysis
2
under Texas Rule of Appellate Procedure 44.2(b). See TEX. R. APP. P. 44.2(b);
Johnson, 995 S.W.2d at 929 (holding that trial court’s erroneous denial of
defendant’s right to elect to have either court or jury assess punishment was
harmless error under Rule 44.2(b)). In considering harm, we review the entire
record to determine whether the error had more than a slight influence on the
verdict. Johnson, 995 S.W.2d at 929. If we find that it did, we must conclude that
the error affected the defendant’s substantial rights in such a way as to require a
new trial. Id. Otherwise, we disregard the error. Id.
Here, Boone elected for the jury to assess his punishment on remand, and
orally reiterated his request immediately prior to the commencement of the
hearing. The trial court denied Boone’s request and, after hearing testimony and
arguments of counsel, assessed Boone’s punishment at 180 days confinement—the
statutory minimum for a state jail felony—and gave Boone credit for time served.1
Although the trial court’s denial of his request was error, see Saldana, 826 S.W.2d
at 951, in light of the record, including the aforementioned facts, we cannot say
that the error affected Boone’s substantial rights in such a way as to require a new
punishment hearing. He could not have received anything less from a jury. See
1
Boone, who is currently serving two life sentences for aggravated assault, was not
eligible for a probated sentence in this case. See Boone v. State, Nos. 01–04–
00870–CR, 01–04–00871–CR, 01–04–00882–CR, 2005 WL 1474454, at *4 (Tex.
App.—Houston [1st Dist.] June 23, 2005, no pet.) (mem. op., not designated for
publication) (affirming Boone’s convictions for aggravated assault and aggravated
assault of public servant).
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Johnson, 995 S.W.2d at 929. Thus, we disregard the error. Id. We overrule
Boone’s sole issue.
Conclusion
We affirm the trial court’s judgment.
Russell Lloyd
Justice
Panel consists of Chief Justice Radack and Justices Brown and Lloyd.
Do not publish. TEX. R. APP. P. 47.2(b).
4