in Re: Matthews & Associates and Geoffrey C. Sansom, P.C.

In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-11-00118-CV ______________________________ IN RE: MATTHEWS & ASSOCIATES AND GEOFFREY C. SANSOM, P.C. Original Mandamus Proceeding Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Justice Carter MEMORANDUM OPINION Matthews & Associates and Geoffrey C. Sansom, P.C., Relators in this case, have filed a motion seeking to dismiss their petition for writ of mandamus. The motion is granted. We dismiss the petition for writ of mandamus. Jack Carter Justice Date Submitted: November 28, 2011 Date Decided: November 29, 2011 ew Roman', serif"> Error occurs when a jury charge fails to directly apply the law to the facts. Harris v. State, 522 S.W.2d 199, 202 (Tex. Crim. App. 1975). More specifically, when a jury charge fails to set out the details and sequencing of prior convictions used for sentence enhancement in the application paragraph of the charge, the charge is improper. Rice v. State, 746 S.W.2d 356, 360 (Tex. App.—Fort Worth 1988, pet. ref'd); Morales v. State, 659 S.W.2d 867, 868 (Tex. App.—El Paso 1983, no pet.). Likewise, it is error to misstate the punishment range within which the jury must assess punishment for a defendant. Stein v. State, 515 S.W.2d 104, 108 (Tex. Crim. App. 1974). Here, the jury was instructed to assess punishment for McNatt within the range of twenty-five to ninety-nine years or life if it found McNatt had "been convicted of two prior felony convictions, one having become final before the commission of the second offense," but the charge failed to specify the prior felony convictions for which McNatt's sentence could be enhanced. The punishment charge makes only general references to convictions that may be used for enhancement purposes by simply referring to the indictment: the charge (1) states "the indictment alleges that the defendant has previously been convicted of prior felony offenses" and (2) asks the jury to determine whether McNatt was "the same person who was convicted of another offense listed in the indictment." There are a number of problems with that formulation of the charge. First, it does not identify and sequence, in the charge, the convictions from which the jury may choose. Second, in referring to convictions alleged in the indictment, it might very well mislead the jury into finding two enhancing convictions from the two, nonsequenced, convictions alleged in Count II of the indictment—which could count as only one enhancement conviction. Third, referring generally to the indictment would allow the jury to include any of the eight offenses listed in Count I of the indictment—the jurisdictional portion—without guidance on which of those are felonies, which of them were used for jurisdictional purposes, and which one was the one the trial court had authorized for use as an enhancement conviction—the one we have determined was not properly noticed. It logically follows from the charge's failure to specify enhancement convictions that the charge also misstated the available punishment range. Even had the State properly notified McNatt of its intent to further enhance his punishment beyond the twenty-year maximum punishment supported by the indictment, this jury charge would have failed to apply the law to the facts since it referred only generally to the indictment, which, standing alone, contained enhancement allegations under which, effectively, McNatt could be sentenced only to between two and twenty years. Having determined that the charge to the jury contained error, we would normally be required to move on to the second step of our analysis. See Mann, 964 S.W.2d at 641; Abdnor, 871 S.W.2d at 731–32. Here, since McNatt properly preserved error with respect to the complained-of error, we would be required to determine whether the error caused McNatt some harm. See Almanza, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh'g). But, since we have previously found harmful error in the failure to give proper notice of the second enhancing conviction—and are, therefore, reversing and remanding for a new punishment trial—we need not assess harm from this jury charge error. 3. At a New Punishment Trial, the State is Limited to Enhancing McNatt's Sentence Using the One Properly-Noticed Prior Conviction When we find error at the punishment stage of the trial, we may remand the case to the trial court for the proper assessment of punishment. See Tex. Code Crim. Proc. Ann. art. 44.29(b) (Vernon Supp. 2004–2005); Levy v. State, 818 S.W.2d 801, 803 (Tex. Crim. App. 1991). The question remains whether, on remand, the State will be allowed to give new notice of additional enhancement convictions or will be limited to enhancing McNatt's sentence using the one alleged prior conviction set out in the indictment. We hold it is so limited. When a court of appeals reverses and remands a case to the trial court without instructions to render a specific judgment, the effect is to restore the parties to the same situation as that in which they were before the appeal. Musgrove v. State, 82 S.W.3d 34, 37 (Tex. App.—San Antonio 2002, pet. ref'd). Before the appeal, the enhancement notice to McNatt was insufficient to enhance his sentence beyond a maximum of twenty years' confinement. On remand, that limitation remains. Conclusion We reverse the trial court's judgment as to punishment and remand the case to the trial court for a new trial on punishment within the range of two to twenty years' confinement. Because the other points of error are dispositive, we do not address McNatt's point of error concerning his motion for continuance. Josh R. Morriss, III Chief Justice Date Submitted: September 29, 2004 Date Decided: November 17, 2004 Publish