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Date: 12-16-2020
Case Style:
Joel Engobo Mambe v. The State of Texas
Case Number:
02-19-00318-CR
Judge: Per Curiam
Court: Court of Appeals
Second Appellate District of Texas
at Fort Worth
Plaintiff's Attorney: Joseph W. Spence
Defendant's Attorney:
OR
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Description:
Fort Worth, Texas - Criminal defense atty represented defendant Joel Engobo Mambe with a Aggravated Sexual Assault charge.
Mambe’s three cases stemmed from the June 2018 aggravated kidnapping,
aggravated robbery, and aggravated sexual assault of a college student. The
presentence investigation report considered in the sentencing hearing shows that
Mambe took the complainant from her apartment complex parking lot at gunpoint
and forced her to drive to a bank to withdraw money for him; to another apartment
complex parking lot where he forced her to perform oral sex on him; to a
convenience store where he used her debit card to buy some items; and finally to a
third apartment complex where he got out of the car, taking her debit card with him.
Mambe was later arrested.
2
Because the facts are not at issue in this appeal, we omit a detailed recitation of
the evidence.
4
This case concerns Mambe’s sexual crimes against the complainant. The grand
jury indicted him on two counts, charging that Mambe
without the [complainant’s] consent . . . , by compelling [her] to submit
or participate by the use of physical force or violence, intentionally or
knowingly caused [his] sexual organ . . . to contact [her] mouth . . . , and
[he] used or exhibited a deadly weapon, namely a firearm, in the course
of the same criminal episode,
Count Two: And . . . [Mambe] . . . without the [complainant’s]
consent . . . , by compelling [her] to submit or participate by threatening
to use force or violence against [her], and the complainant believed [that
Mambe] had the present ability to execute the threat, intentionally or
knowingly caused [his] sexual organ to contact [her] mouth . . . , and
[Mambe] used or exhibited a deadly weapon, namely a firearm, in the
course of the same criminal episode[.]
No record was taken of the guilty-plea hearing. In his open-plea papers, which
show that the State was proceeding on Count One, Mambe judicially confessed to
committing the acts “alleged in the indictment.” In the sentencing hearing, the trial
court stated, “Let the record reflect that on April the 24th of this year [(2019),
Mambe] came to court and pled . . . to the offense[] of aggravated . . . sexual assault.”
The written judgment reflects a conviction and sentence for aggravated sexual assault.
II. DISCUSSION
A. Mambe’s Conviction and Sentence
After Mambe appealed, this court requested supplemental briefing. We were
concerned that the indictment, by alleging contact of Mambe’s sexual organ with the
adult complainant’s mouth instead of alleging penetration of her mouth by his sexual
organ, appeared not to charge aggravated sexual assault (or, for that matter, sexual
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assault). We were therefore also concerned that Mambe did not judicially admit or
plead guilty to aggravated sexual assault and that he could not have been properly
convicted of that unindicted offense.
Mambe contends in his second issue that his aggravated sexual assault
conviction is void because the indictment charged aggravated assault, not aggravated
sexual assault, and that his sentence, which falls outside the range of punishment for a
second-degree felony, is also void. When an 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. Thomason v. State, 892 S.W.2d 8, 11 (Tex. Crim.
App. 1994). Both Penal Code Section 22.011(a)(1)(B) (governing sexual assault by
penetration of the mouth of a complainant who is seventeen or older with a
defendant’s sexual organ) and Section 22.021(a)(1)(A)(ii) (governing aggravated sexual
assault by penetration of the mouth of a complainant who is seventeen or older with a
defendant’s sexual organ) require penetration, not mere contact. Tex. Penal Code
Ann. §§ 22.011(a)(1)(B), 22.021(a)(1)(A)(ii); cf. Metcalf v. State, 597 S.W.3d 847,
857 (Tex. Crim. App. 2020) (holding sexual assault is a nature-of-conduct offense);
Gonzalez v. State, 304 S.W.3d 838, 848–49 (Tex. Crim. App. 2010) (holding aggravated
sexual assault is a nature-of-conduct offense). Contact of a defendant’s sexual organ
with an adult complainant’s mouth is not a sexual assault under the statutes.
3 Thus,
3
Indecent assault was not yet an offense when Mambe committed his crimes.
See Tex. Penal Code Ann. § 22.012 (effective September 1, 2019).
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the indictment did not charge aggravated sexual assault (or sexual assault) and did not
authorize a conviction for either, see Sierra v. State, 501 S.W.3d 179, 185 (Tex. App.—
Houston [1st Dist.] 2016, no pet.) (holding indictment alleging burglary by
concealment did not authorize burglary of a habitation). The trial court therefore
erred by convicting Mambe of aggravated sexual assault. See Thomason, 892 S.W.2d at
11.
What crime did Mambe plead guilty to? When Mambe judicially confessed and
pled guilty to committing the acts alleged in the indictment, he admitted contact, not
penetration. Mambe maintains that the indictment alleged and that he pled guilty to
simple assault by contact, aggravated by the use or exhibition of a deadly weapon. The
State agrees, and we so hold. See Tex. Penal Code Ann. §§ 22.01(a)(3), 22.02(a)(2).
Aggravated assault is a second-degree felony. Id. § 22.02(b). The maximum term of
confinement for a second-degree felony is twenty years. Id. § 12.33(a).
Mambe’s sixty-year sentence is outside the permissible range for a seconddegree felony; it is therefore illegal and void. See Mizell v. State, 119 S.W.3d 804,
806 (Tex. Crim. App. 2003); Ex parte Pena, 71 S.W.3d 336, 336 n.2 (Tex. Crim. App.
2002). When a defendant pleads guilty without the benefit of a bargain and the trial
court assesses a punishment unauthorized by law, the proper remedy is to remand the
case to the trial court for the proper assessment of punishment. Levy v. State,
818 S.W.2d 801, 803 (Tex. Crim. App. 1991). The parties agree that we should
remand this case to the trial court for a new punishment hearing. Because the
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aggravated sexual assault conviction and the sixty-year sentence are not authorized by
the indictment, we sustain Mambe’s second issue.
B. Costs
In his first issue, Mambe contends that the trial court should not have imposed
costs in this case because when cases are tried together, only one assessment of costs
is permitted. The trial court assessed costs in all three of Mambe’s cases instead of
assessing them in only one case. As we explained in our opinion disposing of
Mambe’s other two cases,
By statute, “(i)n a single criminal action in which a defendant is
convicted of two or more offenses . . . , the court may assess each court
cost or fee only once against the defendant.” Tex. Code Crim. Proc.
Ann. art. 102.073(a). The phrase “a single criminal action” used in the
statute includes a trial on multiple offenses, like the one in this case,
regardless of whether the offenses were committed in a single criminal
episode. Guerin v. State, Nos. 02-18-00509-CR, 02-18-00510-CR,
2019 WL 4010361, at *1 (Tex. App.—Fort Worth Aug. 26, 2019, no
pet.) (mem. op., not designated for publication); see Hernandez v. State,
Nos. 02-17-00300-CR, 02-17-00301-CR, 02-17-00302-CR,
2018 WL 2346970, at *3 (Tex. App.—Fort Worth May 24, 2018, pet.
ref’d) (mem. op., not designated for publication).
“When a trial court erroneously assesses court costs for multiple
convictions tried in a single proceeding, we retain the court costs for the
offense of the highest category.” Guerin, 2019 WL 4010361, at *1 (citing
Tex. Code Crim. Proc. Ann. art. 102.073(b)).
Mambe, 2020 WL 2071943, at *1. We sustain Mambe’s first issue. We retained the
costs for the first-degree felony with the lowest cause number, trial court cause
number 1550888D (appellate cause number 02-19-00317-CR). Id. at *2. Accordingly,
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in this case, we modify the trial court’s judgment to remove the previously assessed
court costs. See id.
Outcome: Having sustained Mambe’s two issues, we modify and affirm as modified in
part, and we reverse and remand in part. We modify the trial court’s judgment (1) to
delete Mambe’s conviction for aggravated sexual assault and to replace it with a
conviction for aggravated assault and (2) to remove the assessed court costs. We
affirm those portions of the judgment as modified. We reverse the trial court’s
judgment as to sentencing and remand this case to the trial court solely to conduct a
new punishment hearing and to sentence Mambe within the permissible range for his
second-degree-felony conviction for aggravated assault.
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Defendant's Experts:
Comments: