Opinion issued October 23, 2003
In The
Court of Appeals
For The
First District of Texas
NO. 01-00-00798–CR
WALTER HAMPTON, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 183rd District Court
Harris County, Texas
Trial Court Cause No. 829,055
MEMORANDUM OPINION ON REMAND
Appellant was charged with aggravated sexual assault. The jury instead convicted him of sexual assault, a lesser-included offense that had been submitted to the jury at the State’s request and over appellant’s objection. Upon appellant’s plea of true to two felony enhancement allegations, the trial court sentenced him to 40 years’ confinement. On December 6, 2001, we affirmed the judgment of the trial court. Hampton v. State, 66 S.W.3d 430 (Tex. App.—Houston [1st Dist.] 2001). The Court of Criminal Appeals granted appellant’s sole ground for review, which challenged this Court’s conclusion that the State was entitled to a jury instruction on the lesser-included offense of sexual assault. 109 S.W.3d 437, 438-49 (Tex. Crim. App. 2003). The Court held that the lesser-included-offense instruction of sexual assault was not warranted by the evidence, reversed our decision, and remanded for us to conduct a harmless error analysis. Id. at 441-42. We reverse and remand.
Harm Analysis
The Court of Criminal Appeals reversed and remanded the cause to this Court for a determination of harm pursuant to Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985). Harm occurs when a defendant is found guilty of a lesser offense in the absence of any evidence he is guilty only of the lesser offense. See Arevalo v. State, 987 S.W.2d 164, 166 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d) (op. on second remand). Such harm occurred here because appellant was found guilty of the lesser offense.
Accordingly, we reverse and remand for a new trial on the offense of sexual assault, even though appellant claims that he should not have received a jury instruction on sexual assault. We recognize the dissent’s statement that this disposition “creates such illogical results.” Hampton, 109 S.W.3d at 442 (Keller, P.J. dissenting). Conclusion
The judgment of the trial court is reversed and the cause is remanded for a new trial on the offense of sexual assault.
Adele Hedges
Justice
Panel consists of Justices Hedges, Nuchia, and Higley.
Do not publish. Tex. R. App. P. 47.4.