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Texas Court of Criminal Appeals Clarifies Interpretation of Aggravating Provisions of Section 22.01(b)(2)(A) and (B), Charging One Provision at Guilt Phase Doesn’t Confer Jurisdiction to Argue Other Provision at Sentencing Phase

The Court’s opinion was issued in response to a petition for discretionary review filed by the State. The review came after an appellate court vacated the sentence of Harold Wayne Holoman.

Holoman was charged with simple assault under Section 22.01(a)(1) of the Texas Penal Code for an offense that occurred in 2013. The indictment alleged the offense was committed against a member of Holoman’s household and that the offense was perpetrated by impeding the victim’s breathing or blood circulation by applying pressure to her throat or neck, which enhanced the offense from a misdemeanor to a third degree felony under Section 22.01(b)(2)(B).

A jury found Holoman did cause injury to a member of his household, but it declined to find he did so by impeding her breath or blood. That guilt phase verdict allowed only a conviction for a Class A misdemeanor for assault.

Before trial, Holoman elected to allow the court to assess punishment. In a separate pleading, the State gave notice that it intended to present evidence of four prior felony convictions involving assault on a family member to enhance the primary Class A misdemeanor offense for which he was convicted to a third-degree felony under Section 22.01(b)(2)(A), after having failed in its attempt to do so at the guilt phase under Section 22.01(b)(2)(B). Over Holoman’s objection at sentencing, the trial court agreed to enhance the offense as requested by the State. It also used two prior convictions to enhance the punishment range under Section 12.42(d) of the Texas Penal Code to life imprisonment or a term of between 25 and 99 years. Holoman was sentenced to 25 years in prison.

On appeal, Holoman argued it was error to use one of his prior assault on a family member charges at the penalty phase of trial to raise the level of the offense from a Class A misdemeanor to a third-degree felony. The State conceded that “in the usual case,” a prior assault on a family member conviction alleged pursuant to Section 22.01(b)(2)(A) is jurisdictional. It argued, however, that jurisdiction was established by it alleging Holoman impeded the victim’s breath or blood, which allowed it to use the prior conviction to become available as an enhancement vehicle at the punishment phase. That is, subject-matter jurisdiction was conferred by alleging violation of Section 22.01(b)(2)(B) in the charging instrument, but having failed to prove it at the guilt phase, jurisdiction was nevertheless conferred so that the State could attempt to prove facts to establish a violation of Section 22.01(b)(2)(A) at the penalty phase, the State argued.

The court of appeals rejected the State’s flexible interpretation of Section 22.01(b)(2)(A) and reversed the sentence. The State sought and was granted discretionary review in the Court of Criminal Appeals.

The Court noted that alleging an assault on a family member or assault by impeding breath or blood operates to raise a simple assault on a family member to the status of a third-degree felony. The Court explained that alleging either provision at issue “will suffice to invoke the district court’s felony jurisdiction.” But the Court added that it had already “declared that a jurisdictional aggravating fact will be considered elemental, not punishment-only.” Olivia v. State, 548 S.W.3d 518 (Tex. Crim. App. 2018). Section 22.01(b)(2)(A) “bears more of the hallmarks of an elemental aggravating fact than a punishment-issue aggravating fact,” the Court wrote.

Accordingly, the Court affirmed the judgment of the court of appeals. See: Holoman v. State, 620 S.W.3d 141 (Tex. Crim. App. 2021). 

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