Luis Ruiz Sierra v. StateLuis Ruiz Sierra v. State
Case Information
*1 Opinion issued August 4, 2016
In The
Court of Appeals
For The First District of Texas ————————————
NO. 01-14-00493-CR
——————————— LUIS RUIZ SIERRA, Appellant V.
THE STATE OF TEXAS, Appellee
On Appeal from the 182nd District Court
Hаrris County, Texas Trial Court Case No. 1396147 O P I N I O N
Luis Ruiz Sierra pleaded guilty to burglary of a habitation with intent to commit sexual assault. See T ENAL ODE § 30.02. The trial court classified the offense as a first-degree felony and sentenced Sierra to a 30-year prison term. See id. §§ 12.32, 30.02(d). On appeal, Sierra challenges this as an illegal sentence, *2 arguing that the indictment charged him with burglary under Penal Code section 30.02(a), which is a second-degree felony with a maximum sentence of 20 years. See id. §§ 12.33, 30.02(c)(2).
Burglary is classified аs a first-degree felony when “the premises are a habitation” and “any party to the offense entered the habitation with intent to commit a felony other than felony theft or committed or attempted to commit a felоny other than felony theft.” Id. § 30.02(d). Because the indictment alleged burglary by concealment with intent to commit sexual assault, as opposed to burglary by entry, Sierra was charged with a second-degree felony offense, not a first-degree felony. Compare T ENAL ODE § 30.02(a) with id. § 30.02(d). Accordingly, we reverse and remand for resentencing.
Background
One night, after consuming drugs and alcohol, appellant Luis Ruiz Sierra entered the complainant’s apartment while she was out to walk her dogs. He later сlaimed that he blacked out after taking a pill from a friend. Sierra hid in the shower but left the bathroom light on. Upon discovering Sierra, the complainant screamed, and he choked her until she passed out. Sierra removed hеr pants and underwear. The police entered the apartment and pulled Sierra away from the complainant. According to the police, Sierra stated afterward that he intended to have sex with the complainant.
Sierra was indicted for burglary. The indictment charged: Luis Ruiz Sierra . . . did then and there unlawfully, with intent to commit a felony, namely SEXUAL ASSAULT, remain concealed in a habitation owned by [the complainant], a person having a greater right to possession of the habitation than the Defendant . . . without the effective consent of the Complainant, namely, without consent of any kind.
Sierra pleaded guilty without negotiating a recommended sentence. The pleа paperwork stated that he was pleading guilty to “burglary of a habitation with intent to commit sexual assault” and noted that the potential sentencing range was “5 years to 99 years or life.” The State submitted a presentencing rеport describing the incident.
Sierra waived trial by jury. The court held a punishment hearing, and both Sierra and the complainant testified. The court assessed punishment at 30 years in prison, and Sierra did not object. Sierra appealed, and his original appointed lawyer filed an Anders brief. This court struck the brief, granted the motion to withdraw, then abated and remanded the case to the trial court for the appointment of new counsel to address all arguable grounds on appeal. See Sierra v. State , No. 01-14- 00493-CR (Tex. App.—Houston [1st Dist.] May 28, 2015) (abatement order). We review Sierra’s new brief on the merits.
Analysis
In his sole issue, Sierra argues that the court’s sentence exceeded the permissible punishment range beсause he was indicted for burglary as a second- *4 degree felony. See T EX . P ENAL C ODE § 30.02(a), (c)(2). The State responds that the burglary statute’s reference to “any party” implicates party liability in the first- degree category of the offense. See id. § 30.02(d). The statute provides:
An offense under this seсtion is a felony of the first degree if:
(1) the premises are a habitation; and (2) any party to the offense entered the habitation with intent to commit a felony other than felony theft or committed or attempted to commit a felony other than felony theft.
Id . (emphasis suppliеd). The State argues that because party liability does not need to be charged in the indictment and the evidence supported first-degree burglary, the sentence was not illegal.
The Texas Constitution guarantees defendants the right to indictment by a grand jury for all felony offenses. T EX . C ONST . art. I, § 10; Riney v. State , 28 S.W.3d 561, 564 (Tex. Crim. App. 2000). The indictment serves a dual purpose of protecting citizens against arbitrary accusations by the government and providing a defendant notice of the сharged offense so he may prepare an effective defense. Riney , 28 S.W.3d at 565. The accused is not required to look elsewhere than the indictment for notice, and “it is not sufficient to say that the accused knew with what offеnse he was charged.” Id.
To give proper notice, the indictment must state the offense charged in plain
and intelligible language.
See
T ODE C RIM . ROC . art. 21.02(7);
Riney
, 28
*5
S.W.3d at 565. In most cases, a charging instrument that tracks the statutory text of
an offense provides sufficient notice.
State v. Barbernell
, 257 S.W.3d 248, 251
(Tex. Crim. App. 2008). When “an indictment facially charges a complete offense,
it is reasonable to presume the State intended to charge the offense alleged, and
none other.”
Thomason v. State
, 892 S.W.2d 8, 11 (Tex. Crim. App. 1994).
Therefоre, when the indictment charges a complete offense, “the State is held to
the offense charged in the indictment, regardless of whether the State intended to
charge that offense.”
Id.
;
see also Rodriguez v. State
, 18 S.W.3d 228, 232 (Tex.
Crim. App. 2000) (conviction not authоrized on theory not alleged in charging
instrument). When analyzing the sufficiency of an indictment, “the critical
determination is whether the trial court (and reviewing appellate courts) and the
defendant can identify what penal-cоde provision is alleged.”
Kirkpatrick v. State
,
“A sentence that is outside the maximum or minimum range of punishment
is unauthorized by law and therefore illegal.”
Mizell v. State
,
A burglary may be committed in three distinct ways: (1) intentionally or knowingly entering a building or habitation that is not open to the public without the consent of the owner and with the intent to commit a felony or theft, T EX . P ENAL C ODE § 30.02(a)(1); (2) intentionally or knowingly remaining concealed in a building or habitation without consent of the owner with the intent to commit a felony or theft, id . § 30.02(a)(2); or (3) intentionally and knowingly entering a building or habitation withоut consent of the owner and committing or attempting to commit a felony or theft, id . § 30.02(a)(3). See DeVaughn v. State , 749 S.W.2d 62, 64–65 (Tex. Crim. App. 1988).
In this case, the indictment charged Sierra with “remain[ing] concealed in a habitation” with intent to commit the felony of sexual assault. The indictment therefore tracked the language of Penal Code section 30.02(a)(2), which applies when the defendant “ remains concealed , with intent to commit a felony, theft, or an assault, in a building or habitation.” T ENAL ODE § 30.02(a)(2) (emphasis supplied). In contrast, to qualify as a first-degree felony, section 30.02(d) requires that: (1) “the premises are a habitation” and (2) “any party to the offense entered the habitation with intent to commit a felony other than felony theft or committed *7 or attempted to commit a felony other than felony theft.” Id. § 30.02(d) (emphasis supplied).
It is undisputed that the indictment did not charge Sierra with entеring the
habitation with intent to commit a felony.
See DeVaughn
,
The State argues that even though the indictment did not charge the required elements for the first-degree felony version of burglаry, the trial court was nonetheless authorized to render judgment under that section of the statute. The State relies upon section 30.02(d)’s use of the term “any party,” and suggests that this imputes the “law of parties” into the statute. See T ENAL ODE §§ 7.01, 7.02.
Under section 7.01 of the Texas Penal Code, a “person is criminally
responsible as a party to an offense if the offense is committed by his own conduct,
by the conduct of another for which he is criminally responsible, or by both.”
*8
Id.
§ 7.01(a). Sectiоn 7.02 is entitled “Criminal Responsibility for Conduct of
Another” and establishes a defendant’s responsibility for conduct of a third party
or as a result of a conspiracy.
Id.
§ 7.02. The law of parties as established by
section 7.02 generally apрlies to accomplices or party-conspirators.
See Zamora v.
State
,
Because Sierra qualifies as a “party” to his own offense under section 7.01(a), the State claims that it did not need to charge the enhanced version of the offense in the indictment. Instead, the State contends it could simply prove the enhancement through evidence as a matter of party liability.
The State is correct that “the law of parties may be applied to a case even
though no such allegation is contained in the indictment.”
Montoya v. State
, 810
S.W.2d 160, 165 (Tex. Crim. App. 1989);
see also Marable v. State
, 85 S.W.3d
287, 287 (Tex. Crim. App. 2002);
Murkledove v. State
, 437 S.W.3d 17, 21–22
(Tex. App.—Fort Worth 2014, pet. denied). However, the rule that the law of
parties need not be alleged in the indictment applies to the manner and means of
committing an offense, rather than the indictment’s function of providing notice in
plain and intelligible language about what offense is being charged.
See Hayes v.
State
,
This rule does not relieve the State from the necessity of charging the correct
offense in the indictment.
Cf. Kirkpatrick
,
In this case, Sierra was a “party” to his own offense, as acknowledged under
section 7.01. However, even if the law of parties were to apply under sections 7.01
and 30.02(d), the State still would be required to allege a commission of a first-
degree felony in the indictment in order to authorize a conviction under that section
of the statute.
See Kirkpatrick
,
The indictment in this case did not authorize a conviction under
section 30.02(d). The crime charged in the indictmеnt was burglary by
concealment with intent to commit a felony under section 30.02(a), which is a
second-degree felony with a maximum sentence of 20 years of imprisonment.
See
T ENAL ODE § 12.33. Therefore, the trial court’s sentence of 30 years of
imprisоnment was illegal, unauthorized, and void.
See Mizell
,
Conclusion
We reverse the trial court’s sentence and remand for assessment of punishment under Penal Code section 30.02(a).
Michael Massengale Justice
Panel consists of Justices Higley, Bland, and Massengale.
Publish. T R. A PP . P. 47.2(b).