OPINION From the 452nd Judicial District Court, Menard County, Texas Trial Court No. 2021-02557 Honorable Stephen Ellis, Judge Presiding[1] Opinion by: Patricia O. Alvarez, Justice Sitting: Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice Lori I. Valenzuela, Justice Delivered and Filed: March 29, 2023 REVERSED AND REMANDED Crawford appeals from a second-degree felony conviction for assault on a peace officer. He argues that his indictment only authorized a conviction and sentence for a third-degree felony assault on a public servant. We review the record to determine whether Crawford was properly charged with, convicted of, and sentenced for assault on a peace officer. BACKGROUND Crawford was charged with felony assault after attacking two deputies who tried to arrest him. Deputies William Hagler and Michael Smith responded to Crawford’s home after his wife called 911 to report a domestic dispute between them. When the deputies entered the front room of the residence, they saw Crawford sitting on the floor in a corner. Deputy Smith noted that Crawford appeared intoxicated and was rocking back and forth. Crawford had two outstanding warrants for his arrest. Deputies Hagler and Smith announced to Crawford that they were there to arrest him for the warrants. Crawford became agitated and began yelling at the deputies that the warrants were fraudulent, that his charges had been dismissed, and that the FBI would arrest the deputies and the judge. The deputies then approached Crawford slowly and attempted to handcuff him, but Crawford continued to argue with them about his warrants. He kicked at the deputies and pushed their hands away. When Deputy Hagler grabbed Crawford’s arm, Crawford jumped up and pushed Deputy Hagler across the room. Deputy Smith tased Crawford, but the taser had no apparent effect. Crawford ran to the back of the house, and the deputies chased him. Deputy Smith tased Crawford again, but the shock still had no apparent effect. Crawford then threw a ladder at Deputy Smith’s chest and ran outside. Deputy Hagler tased Crawford again as he ran through the back door, but the tasing still showed no effect. Crawford ran to the front of the house where his pickup truck was parked. The deputies intercepted Crawford at his truck as he jumped in and tried to start the engine. The deputies grabbed Crawford. Crawford kicked Deputy Hagler several times, including in the stomach and groin areas. Deputy Hagler caught Crawford’s foot and pulled him out of his seat. Deputy Smith jumped on Crawford to hold him down and then called for backup. Two backup deputies heard the radio call for assistance and responded to the scene. One of the deputies tried to talk to Crawford, but Crawford continued to insist there were no warrants for his arrest, and he continued to resist arrest. One deputy drew his firearm on Crawford while Crawford clung to the wheel of his truck. Finally, all four deputies used their weight against Crawford. Crawford was placed in handcuffs and leg shackles and then transported to jail. Crawford was later charged with assaulting Deputies Hagler and Smith. At trial, the State went forward on one count only: the assault of Deputy Hagler. Crawford complained that the State was erroneously attempting to prosecute him for assaulting a peace officer, a second-degree felony. He argued that the indictment against him only charged him with assaulting a public servant, a third-degree felony. On this basis, he also objected to language in the jury charge that characterized his indicted offense as assaulting a peace officer. Crawford’s objections were overruled. He was convicted and sentenced to twelve years in prison. In this appeal, Crawford raises three issues: (1) the indictment authorized a conviction for assault on a public servant, a third-degree felony, and not assault on a peace officer, a second- degree felony; (2) the jury charge contained harmful error, but the jury’s verdict form only authorized a conviction for assault on a public servant; and (3) his prison sentence exceeded the range for a third-degree felony and was illegal. INDICTMENT A. Parties’ Arguments Regarding the indictment, Crawford argues that the State indicted him for assault on a public servant, and not assault on a peace officer, the charge he was convicted of and sentenced to. The State argues that Crawford had sufficient notice from the indictment that he was being charged with assault on a peace officer. If he did not, the State argues Crawford waived his claim when he failed to object to the reading of the charge at voir dire. B. Standard of Review Construction of an indictment is a matter of law that we review de novo. Brooks v. State, 382 S.W.3d 601, 604 (Tex. App.—Amarillo 2012, pet. ref’d) (citing State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004)). C. Law Where, as here, a defendant-appellant complains that he has been convicted of an offense that was not authorized by the language in the indictment, we examine the indictment to determine whether it alleged all the necessary elements to support the convicted offense and whether it did so in plain and intelligible words. See Teal v. State, 230 S.W.3d 172, 18384 (Tex. Crim. App. 2007) (Johnson, J., concurring) (citing Sutton v. State, 899 S.W.2d 682, 686 (Tex. Crim. App. 1995) (Overstreet, J., dissenting)); Kirk v. State, 643 S.W.2d 190, 194 (Tex. App.—Austin 1982, pet. ref’d); accord Smith v. State, 873 S.W.2d 66, 71 (Tex. App.—Tyler 1993, pet. ref’d). If there is a variance in the caption, the caption does not govern. Adams v. State, 222 S.W.3d 37, 53 (Tex. App.—Austin 2005, pet. ref’d) (citing Stansbury v. State, 128 Tex. Crim. App. 570, 82 S.W.2d 962, 964 (1935)). But see Kirkpatrick v. State, 279 S.W.3d 324, 329 (Tex. Crim. App. 2009) (using the heading of a defective indictment to confirm that the district court had subject-matter jurisdiction over the convicted offense). Ultimately, “the critical determination is whether the trial court (and reviewing appellate courts) and the defendant can identify what penal-code provision is alleged.” Enriquez v. State, No. 01-19-00423-CR, 2020 WL 4331404, at *3 (Tex. App.— Houston [1st Dist.] July 28, 2020, no pet.) (mem. op.) (citing Kirkpatrick, 279 S.W.3d at 328); accord Teal, 230 S.W.3d at 180. “And it is not sufficient to say that the accused knew with what offense he was charged. The inquiry must be whether the charge, in writing, furnished that information in plain and intelligible language.” Riney v. State, 28 S.W.3d 561, 565 (Tex. Crim. App. 2000) (citing Benoit v. State, 561 S.W.2d 810, 813 (Tex. Crim. App. 1977)). 1. Assault on a Peace Officer The convicted offense at issue in this case is assault on a peace officer, a second-degree felony. See TEX. PENAL CODE ANN. § 22.01(b2). The substantive elements are, in relevant part, as follows: 1) intentionally, knowingly, or recklessly, 2) cause injury, 3) to a peace officer, 4) that the accused knows is a peace officer, 5) while the peace officer is lawfully discharging an official duty. See TEX.PENAL CODE ANN. § 22.01(b2); Carson v. State, No. 11-19-00373-CR, 2021 WL 6141128, at *2 (Tex. App.—Eastland Dec. 30, 2021, no pet.) (mem. op., not designated for publication); Kelly v. State, No. 11-19-00331-CR, 2021 WL 5115492, at *2 (Tex. App.—Eastland Nov. 4, 2021, no pet.) (mem. op., not designated for publication). 2. Assault on a Public Servant The elements for assault on a public servant are the same, except they require the accused to know the victim is a public servant while the public servant is lawfully discharging an official duty. See TEX. PENAL CODE ANN. § 22.01(b)(1); Hall v. State, 158 S.W.3d 470, 473 (Tex. Crim. App. 2005). Assault on a public servant is a third-degree felony. See TEX. PENAL CODE ANN. § 22.01(b)(1); Hall, 158 S.W.3d at 472. 3. Invoking Statutory Language Under Texas Penal Code section 22.01 By definition, a peace officer is a public servant (though not vice versa). Compare TEX. PENAL CODE ANN. § 1.07(a)(36) and TEX. CODE CRIM. PROC. ANN. art. 2.12 with TEX. PENAL CODE ANN. § 1.07(a)(41); accord McIlvennia v. State, No. 03-14-00352-CR, 2016 WL 3361185, at *3 (Tex. App.—Austin June 10, 2016, pet. ref’d) (mem. op., not designated for publication). But more importantly, in the context of Texas Penal Code section 22.01, the terms “peace officer” and “public servant” invoke two separately defined and classified offenses. Compare TEX.PENAL CODE ANN. § 22.01(b)(1) with TEX. PENAL CODE ANN. § 22.01(b2). But cf. TEX. PENAL CODE ANN. § 22.02(b)(2)(B) (classifying aggravated assaults against all public servants as first-degree felonies). The Court of Criminal Appeals made a point in one case to correct language used by the appellate court and parties when referring to assault on a peace officer. See State v. Hatter, ___ S.W.3d___, No. PD-0823-21, 2023 WL 152194, at *1 n.1 (Tex. Crim. App. Jan. 11, 2023). In Hatter, the appellate court and parties had labeled the offense as an assault on a public servant. See id. But the indictment alleged that the accused “cause[d] bodily injury to S. Latham, hereinafter called the Complainant, a peace officer, by kicking the complainant with her foot, and at the time of the assault the defendant knew the complainant was a peace officer lawfully discharging an official duty.” Id. The Court of Criminal Appeals stated, “This language invokes assault on a peace officer, not assault on a public servant.” Id. 4. Practical Considerations in Construing an Indictment Construing an indictment requires us to make practical considerations, not technical ones. Brooks, 382 S.W.3d at 605 (citing Oliver v. State, 692 S.W.2d 712, 714 (Tex. Crim. App. 1985)); Smith, 873 S.W.2d at 72. One of those considerations is that the body of the charging instrument, i.e., the indictment, is the grand jury’s charge. See TEX.CODE CRIM.PROC.ANN. art. 21.01; Mason v. State, 598 S.W.3d 755, 785 n.31 (Tex. App.—Fort Worth 2020). So, if the heading above the grand jury’s charge differs from the charging language signed by the grand jury foreperson, the charging language in the body must control. See Stansbury v. State, 128 Tex. Crim. 570, 574 (1935). This is not a technical consideration. Rather, it is the most reliable way to construe the grand jury’s charging decision. See English v. State, 4 Tex. 125, 127 (1849). We will also not sua sponte consider a variance between the body of the charging instrument and the heading as a defect. See Thomason v. State, 892 S.W.2d 8, 11 (Tex. Crim. App. 1994); Starkey v. State, No. 02-18-00192-CR, 2019 WL 3819505, at *3 (Tex. App.—Fort Worth Aug. 15, 2019, pet. ref’d) (mem. op., not designated for publication). If the body of the charging instrument names all the elements of an offense, that is a facially complete indictment that an accused must be able to rely on. See Thomason, 892 S.W.2d at 11 (citing Fisher v. State, 887 S.W.2d 49, 55, 57 (Tex. Crim. App. 1994)). But see, e.g., Jenkins v. State, 592 S.W.3d 894, 900 (Tex. Crim. App. 2018) (holding that when an indictment potentially charges a felony but is defective, a court may refer to the indictment’s heading and other circumstances to determine whether the charging instrument effectively invokes felony jurisdiction). Another practical consideration is that a prosecutor maintains discretion in charging, including which charges to present to the grand jury. See Ex parte Legrand, 291 S.W.3d 31, 41 (Tex. App.—Houston [14th Dist.] 2009, pet. ref’d) (citing Neal v. State, 150 S.W.3d 169, 173 (Tex. Crim. App. 2004)); Gunville v. Gonzales, 508 S.W.3d 547, 565 (Tex. App.—El Paso 2016, no pet.). Therefore, we cannot conclude that every indictment invoking “public servant” language with a peace officer victim since September 1, 2017, is in fact a charge for assault on a peace officer.[2] See, e.g., Dixon v. State, No. 06-20-00123-CR, 2021 WL 6060981, at *1 (Tex. App.— Texarkana Dec. 22, 2021, pet. ref’d) (mem. op., not designated for publication) (affirming third- degree felony conviction for public assault on a public servant where victim was a peace officer). But see Enriquez v. State, No. 01-19-00423-CR, 2020 WL 4331404, at *4 (Tex. App.—Houston [1st Dist.] July 28, 2020, no pet.) (concluding that indictment for assault on a public servant where the victim was a peace officer supported conviction for second-degree felony). To draw that conclusion would lead us to make assumptions about an indictment and potentially undermine a charging decision. Contra Thomason, 892 S.W.2d at 11. Accordingly, in cases where a victim could be described as a public servant or a peace officer, the charging prosecutor and the grand jury must decide which to allege and state their choice clearly in the indictment so that the accused and the courts can identify which penal-code provision is being alleged. See Fenderson v. State, No. 03-20-00161-CR, 2021 WL 2231925, at *6 (Tex. App.—Austin June 3, 2021, no pet.) (mem. op., not designated for publication) (modifying judgment to clarify confusion between 22.01(b)(1) and 22.01(b-2)). Generally, tracking the statutory language is sufficient. See State v. Edmond, 933 S.W.2d 120, 128 (Tex. Crim. App. 1996) (citing DeVaughn v. State, 749 S.W.2d 62, 67 (Tex. Crim. App. 1988)). Whichever choice is made between “peace officer” and “public servant” when charging assault on someone in one of those roles, that choice will apply throughout the trial (barring any amendments). See Thomason, 892 S.W.2d at 11. D. Analysis Count One of Crawford’s indictment stated: The 452nd Judicial District Grand Jury for the County of MENARD, State of Texas, duly selected, impaneled, sworn, charged, and organized as such by the 452nd Judicial District Court for said County at the January 2021 Term of the said Court, upon their oaths present in and to said Court that in MENARD County, Texas, SHAWN EDWARD CRAWFORD, hereafter styled the Defendant, heretofore on or about April 10, 2021, did then and there intentionally, knowingly, and recklessly cause bodily injury to Burl Hagler, hereafter styled the complainant, by shoving Burl Hagler, by kicking Burl Hagler in the chest, or by kicking Burl Hagler in the groin, and the defendant knew that the complainant was a public servant, to wit: Menard County Deputy Sheriff, and the complainant was lawfully discharging an official duty, namely attempting to arrest Shawn Crawford. As argued by Crawford, the indictment does not state that he was charged with assaulting a peace officer. Instead, it alleges that Crawford assaulted a public servant who was working as a deputy sheriff at the time, “namely attempting to arrest Shawn Crawford.” As stated above, “public servant” is a statutorily defined term relevant to charging a third- degree felony assault. See TEX.PENALCODE ANN. §§1.07(a)(41); 22.01(b)(1). It is not a layman’s synonym for “peace officer.”[3] “Peace officer” is a term that invokes a second-degree assault. See TEX. PENAL CODE ANN. § 22.01(b-2); Hatter, 2023 WL 152194, at *1 n.1; Fenderson, 2021 WL 2231925, at *6. Crawford’s indictment indicates that the charged offense fell under Texas Penal Code section 22.01(b)(1), assault on a public servant, a third-degree felony. See TEX.PENAL CODE ANN. § 22.01(b)(1). We will not draw any additional inferences from the record, especially with no allegation of defect in the indictment. See Riney, 28 S.W.3d at 565. Most importantly, we cannot accept that “assault on a public servant” and “assault on a peace officer” will be used interchangeably, depending on the facts of the case, when these phrases now carry very different implications for defendants charged under Texas Penal Code section 22.01. Compare TEX.PENAL CODE ANN. § 12.33 with TEX. PENAL CODE ANN. § 12.34. Also, with no allegation of defect in the indictment, we decline to extend the reasoning from jurisdictional cusper cases such as Jenkins, Kirkpatrick, and Teal that require a defendant to submit any questions he has about the indictment ahead of trial or waive his objections. See Jenkins, 592 S.W.3d at 90103; Kirkpatrick, 279 S.W.3d at 329; Teal, 230 S.W.3d at 182. In Jenkins, the question before the court was whether a defective indictment that only listed the accused’s name in the indictment’s heading vested the trial court with personal jurisdiction over the accused. See Jenkins, 592 S.W.3d at 900. In Kirkpatrick and Teal, the question before the court was whether a defective indictment that omitted one element of an intended felony charge was sufficient to invoke felony jurisdiction. Kirkpatrick, 279 S.W.3d at 329; Teal, 230 S.W.3d at 182. That is not the type of question before us now. Rather, the question before us is how to reasonably construe which penal code is charged in an indictment where the indictment is unquestionably constitutional. See Thomason, 892 S.W.2d at 11. We also decline to adopt the State’s waiver argument, which attempts to draw a line between evidence admitted without objection and the State’s characterization of Crawford’s indictment as a second-degree felony during voir dire. The State argues that 1) because it announced at voir dire that Crawford was charged with a second-degree felony, and 2) Crawford did not object, that 3) Crawford waived his future argument that the indictment could not support his conviction. The argument fails for two reasons. First, if the indictment is facially complete for a third-degree felony, the State cannot simply elect for it to be read as a second-degree felony by announcing it at voir dire. See Thomason, 892 S.W.2d at 11. Second, a defendant may object to the State pursuing an unauthorized charge during trial, which Crawford did. See Teal, 230 S.W.3d at 184 (Johnson, J., concurring). We recognize that Crawford waited until the jury was impaneled to assert his belief that the indictment supported only a third-degree charge, but we do not believe that Crawford’s strategy amounts to “lying behind the log,” since, as stated, he is not challenging the indictment’s constitutional validity for the first time on appeal. See Lugo v. State, 299 S.W.3d 445, 454 (Tex. App.—Fort Worth 2009, pet. ref’d). Based on this record, we conclude that Crawford’s indictment was facially complete for assault on a public servant. Crawford’s first issue regarding his indictment is sustained. JURY CHARGE A. Parties’ Arguments In his second issue, Crawford first argues that errors in the jury charge caused egregious harm 1) by characterizing the charge against Crawford as an assault on a peace officer and 2) by providing a definition for “peace officer.” Crawford secondarily argues that the jury’s verdict only authorized conviction for assault on a public servant since the verdict form mirrored the indictment, i.e., it asked the jury to decide whether Crawford assaulted “a public servant, to-wit: a Menard County Sheriff’s Deputy.” The State did not specifically address this issue. B. Standard of Review We review a trial court’s jury charge for an abuse of discretion. See Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012); accord Sandoval v. State, No. 13-20-00099-CR, 2021 WL 2461033, at *2 (Tex. App.—Corpus Christi–Edinburg June 17, 2021, no pet.) (mem. op., not designated for publication). C. Law “A defendant may be tried only on the offenses alleged in the indictment.” Gore v. State, 332 S.W.3d 669, 673 (Tex. App.—Eastland 2010, no pet.) (citing Abdnor v. State, 871 S.W.2d 726, 728 (Tex. Crim. App. 1994)). Therefore, the jury charge must only include law applicable to the case. Green v. Texas, 476 S.W.3d 440, 445 (Tex. Crim. App. 2015) (citing TEX. CODE CRIM. PROC. art. 36.14); accord Sandoval, 2021 WL 2461033, at *2. When we review a jury charge, we first look for error. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005) (citing Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003)). A variance between the charge and the indictment would be an example of error. See Reed v. State, 117 S.W.3d 260, 265 (Tex. Crim. App. 2003)). If we find error, then we assess harm. See Ngo, 175 S.W.3d at 743 (citing Middleton, 125 S.W.3d at 453). Whether the appellant objected to an error in the jury charge will determine the level of harm that would require reversal. See id.; accord Jennings v. State, 302 S.W.3d 306, 311 (Tex. Crim. App. 2010). “Unobjected-to error is reviewed for ‘egregious harm,’ while objected-to error is reviewed for ‘some harm.’” Jennings, 302 S.W.3d at 311 (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984), superseded on other grounds by rule as stated in Rodriguez v. State, 758 S.W.2d 787 (Tex. Crim. App. 1988)). If there is error and it caused harm, then we evaluate the harm to decide whether reversal is warranted. See Almanza, 686 S.W.2d at 171. D. Analysis 1. Error As argued by Crawford, the jury charge mirrored the indictment in this case—with two exceptions. First, the introduction states: “The defendant, Shawn Edward Crawford, is accused of Assault of a Public Servant, to-wit: a peace officer.” Second, the instructions include the definition of “peace officer,” but without any indication as to what makes it applicable to the law of the case. Contra Green, 476 S.W.3d at 445. The inclusion of the term “peace officer” and its definition amount to an abuse of discretion in the jury charge. See id. The resulting variance between the indictment and the charge amounts to error. See Reed, 117 S.W.3d at 265. 2. Harm At the charge conference, Crawford objected to the characterization of his charge as an assault on a peace officer. He also submitted a proposed instruction on evaluating the lawfulness of Deputy Hagler’s conduct in discharging his official duties. The trial court denied Crawford’s requested instruction and concluded the day’s proceedings. The following day, the trial court read its charge; the parties gave closing arguments; and the trial court excused the jury to deliberate. The jury later returned with a verdict of guilty to the following charge, as written: “We, the jury, find the defendant, Shawn Edward Crawford, guilty of Assault of a Public Servant, to-wit: a Menard County Sheriff’s Deputy, as charged in the indictment.” Whatever harm may have resulted from the inclusion of the term “peace officer” and its definition in the jury charge was defused by the language of the verdict form, which referred only to a public servant. No harm resulted from the error in the jury charge because the jury convicted Crawford of assault on a public servant. See Almanza, 686 S.W.2d at 171. SENTENCE A. Parties’ Arguments In his third issue, Crawford alleges that his sentence was illegal because it exceeded the allowable sentence for a conviction of assault on a public servant, a third-degree felony. B. Standard of Review We review the legality of an appellant’s sentence de novo. See Yazdchi v. State, 428 S.W.3d 831, 837 (Tex. Crim. App. 2014); Kuhn v. State, 45 S.W.3d 207, 208 (Tex. App.— Texarkana 2001, pet. ref’d). C. Law The legal sentencing range for assault on a public servant, a third-degree felony, with no enhancement is two to ten years. See TEX.PENAL CODE ANN. §§ 22.01(b)(1), 12.34. “A sentence which is outside the maximum or minimum range of punishment is unauthorized by law and therefore illegal.” Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003); accord Ex parte Rich, 194 S.W.3d 508, 512 (Tex. Crim. App. 2006). “An illegal sentence is considered a void sentence.” See State v. Marroquin, 253 S.W.3d 783, 785 (Tex. App.—Amarillo 2007, no pet.) (citing Ex parte Seidel, 39 S.W.3d 221, 225 (Tex. Crim. App. 2001)). “[W]ith a void sentence, the only action available is to remand the case to the trial court for a new trial on the issue of punishment.” Id. (citing Ex parte Johnson, 697 S.W.2d 605, 607 (Tex. Crim. App. 1985)). D. Analysis Crawford was sentenced to twelve years in prison. His sentence exceeds the maximum allowable for assault on a public servant, a third-degree felony. See TEX. PENAL CODE ANN. §§ 22.01(b)(1), 12.34. Accordingly, the judgment against him is void. See Marroquin, 253 S.W.3d at 785. We sustain Crawford’s third issue and remand his case to the trial court for a new trial on the issue of punishment. CONCLUSION We conclude that the language in Crawford’s indictment and in the jury’s verdict form invoke a third-degree felony, assault on a public servant, rather than a second-degree felony, assault on a peace officer. Because Crawford was sentenced as a second-degree felony offender, the final judgment against him was illegal and void. We remand for a new punishment trial. Patricia O. Alvarez, Justice Publish
