James Lang v. State of Texas

James Lang v. State IN THE TENTH COURT OF APPEALS No. 10-00-347-CR JAMES LANG, Appellant v. THE STATE OF TEXAS, Appellee From the 82nd District Court Falls County, Texas Trial Court # 7285 MEMORANDUM OPINION James Lang was convicted of sexually assaulting his niece’s 14 year old friend. The jury assessed punishment at 10 years in prison and assessed a fine of $10,000. The jury also determined that the term of imprisonment should be suspended and recommended that he be placed on community supervision for 10 years. Lang brings two issues on appeal: 1) he was egregiously harmed by a verdict form which did not allow the jury the option of probating his fine; and 2) he was denied effective assistance of counsel at punishment. We reverse and remand for a new punishment hearing. In his first issue, Lang contends the jury should have been given the option to probate his fine as well as his imprisonment. He concedes that his trial attorney did not object to this deficiency in the punishment charge. An independent basis for reversal arises if the error, even though not timely objected to, is so egregious and creates such harm that it deprives the accused of a "fair and impartial trial." Almanza v. State, 686 S.W.2d 157, 172 (Tex. Crim. App. 1985). A term of imprisonment and a fine may be suspended “in whole or in part.” Tex. Code Crim. Proc. Ann. art. 42.12, sec. 2(2)(B) (Vernon Supp. 2002). Cf. Rohret v. State, 41 S.W.3d 218 (Tex. App.—Dallas 2001, no pet.) (statute authorized jury to suspend fine and impose confinement). The trial court committed error when it did not provide the jury with the opportunity to probate a fine in the charge on punishment. The question now becomes whether the error deprived Lang of a fair and impartial trial. After reviewing the charge and record, we are not convinced that Lang was not deprived of a fair and impartial trial on punishment. The State does not argue to the contrary. Lang’s first issue is sustained. Our disposition of Lang’s first issue makes a review of his second issue unnecessary because it does not provide any greater relief. Having sustained his first issue, the trial court’s judgment of conviction is affirmed, but we reverse the trial court’s judgment as to punishment. This cause is remanded for a new trial on punishment. PER CURIAM Before Chief Justice Davis, Justice Vance, and Justice Gray Affirmed in part; reversed and remanded in part Opinion delivered and filed August 28, 2002 Do not publish [CR25]