Bradley v. State

45 S.W.3d 221, 2001 Tex. App. LEXIS 1611, 2001 WL 225639

• Court: Court of Appeals of Texas
• Decided: March 2, 2001
• Docket: 01-99-00837-CR, 01-99-00840-CR
• Status: Published

Opinions

OPINION

COHEN, Justice.

Appellant was charged in two indictments with aggravated assault of two public servants. After a single trial, a jury convicted appellant of both offenses and, after appellant pled true to two felony enhancement paragraphs, assessed punishment at 38 years in prison. We affirm the judgments.

Background

On July 18, 1998, Houston Police Officer Kamyk was in uniform investigating an unrelated crime and approached appellant’s parked car. When he approached to question the occupants, appellant sped away, running a stop sign and fleeing through a residential area at speeds up to 70 miles per hour. Officer Kamyk chased the car until it crashed into a wall. Two passengers then fled. The officer, with his weapon drawn, grabbed appellant through the front passenger-side door and ordered appellant out. Appellant cursed the officer, put the car “calmly” into reverse as if in a “planned and meditated” way, and drove backward rapidly. The officer managed to break free from the moving car’s door, but appellant then u-turned, sped back, and hit the officer with his front fender, throwing the officer over the car’s hood. As Officer Kamyk tried to get up, appellant came back, trying to run him over, even though the officer testified appellant could have avoided him. Officer Kamyk had to dive out of the car’s way. He got to his car and chased appellant.

More officers, including Officer Munoz, arrived and chased appellant, who was speeding recklessly. Officer Munoz was also in uniform. Appellant’s car went into a spin until it hit a bridge abutment. Appellant stopped for a second, then started up and rammed head on into Office Munoz’s ear at a high speed. Officer Munoz testified appellant could have avoided hitting him, and both officers thought appellant rammed Officer Munoz intentionally. The first impact caused massive damage to the front of appellant’s car. Appellant then fled on foot, throwing Officer Kamyk out of his way. Officer Munoz caught up to appellant, who then punched Officer Munoz’s head several times. Officer Ka-myk then arrived, and appellant struggled violently with both officers, trying to wrest Officer Kamyk’s gun from the holster. Officer Kamyk sprayed appellant with pepper spray, but to no effect. Appellant, still fighting and struggling, was finally subdued by four or five officers. The officers testified appellant never screamed in pain, and one said appellant admitted he ran because he did not want to go to jail. Officers Munoz and Kamyk testified they were terrified, felt panicked, or feared for their lives. Officer Munoz suffered a painful shoulder injury and missed work because of it.

Appellant denied that he had any passengers, was in the mall parking lot, sped away from Officer Kamyk, crashed into a wall, threw Officer Kamyk out of the way, attacked any officer with a car, or admitted he ran to avoid jail. He testified instead that he did nothing wrong, Officer Kamyk began following his car nonetheless, appellant pulled over when the officer put on his siren, another police car arrived and collided with appellant’s car, Officer Kamyk beat appellant with a baton, both officers (later joined by three others) began beating him, the pepper spray blinded him, he was screaming for help, and the officers tried unsuccessfully to throw him in the bayou. Appellant and his common-law wife also testified that the car appellant drove could not drive as fast as the officers had claimed.

During the guilt-innocence stage of trial, the jury learned appellant had been convicted three times of theft (two misdemeanors and a felony) and once each for the felonies of burglary and cocaine possession. During the punishment stage of trial, the juiy learned appellant had been convicted in addition of cocaine possession, for which he had received probation, misdemeanor marihuana possession, and misdemeanor carrying a weapon. His four misdemeanor sentences ranged from 15 to 90 days, and his four felony sentences ranged from probation (three times with two revocations) to 10 years. The total time assessed in jail and prison on these crimes exceeded 16 years. The jury also learned appellant had a history of disciplinary problems in prison, including guilty findings or pending charges on assaults of other inmates (more than one incident), trafficking prescription medication, destroying county property, using abusive language, exhibiting disruptive conduct (more than one incident), refusing to obey orders (more than one incident), being in an unauthorized location, and fighting. A sheriffs sergeant in the inmate disciplinary division testified that less than two percent of inmates have disciplinary action taken against them.

Constitutionality of Code of Criminal Procedure Article 37.07, Section 4(a)

In his sole issue, appellant claims the jury instruction that his sentence might be reduced through award of good-conduct time was unconstitutional as applied to him because he was not eligible for such a reduction. See Tex. Gov’t Code Ann. 508.149(a)(7) (Vernon Supp.2001); Tex. Penal Code Ann. § 22.02(b)(1) (Vernon 1994). We agree.

The trial judge charged the jury in accordance with mandatory Code of Criminal Procedure article 37.07, section 4(a):

Under the law applicable in this case, the defendant, if sentenced to a term of imprisonment, may earn time off the period of incarceration imposed through the award of good conduct time. Prison authorities may award good conduct time to a prisoner who exhibits good behavior, diligence in carrying out prison work assignments, and attempts at rehabilitation. If a prisoner engages in misconduct, prison authorities may also take away all or part of any good conduct time earned by the prisoner.

It is also possible that the length of time for which the defendant will be imprisoned might be reduced by the award of parole.

Under the law applicable in this case, if the defendant is sentenced to a term of imprisonment, he will not become eligible for parole until the actual time served equals one-half of the sentence imposed or 30 years, whichever is less, without consideration of any good conduct time he may earn. If the defendant is sentenced to a term of less than four years, he must serve at least two years before he is eligible for parole. Eligibility for parole does not guarantee that parole will be granted.

It cannot accurately be predicted how the parole law and good conduct time might be applied to this defendant if he is sentenced to a term of imprisonment, because the application of these laws will depend on decisions made by prison and parole authorities.

You may consider the existence of the parole law and good conduct time. However, you are not to consider the extent to which good conduct time may be awarded to or forfeited by this particular defendant. You are not to consider the manner in which the parole law may be applied to this particular defendant.

(Emphasis added.) Appellant did not object to this instruction.

This Court has previously held that article 37.07, section 4(a)’s reference to good-conduct time violates state due course of law and federal due process when applied to defendants, like appellant, who are not eligible for it. See Jimenez v. State, 992 S.W.2d 633, 637-38 (Tex.App.—Houston [1st Dist.] 1999) (“Jimenez I”), aff'd on other grounds, 32 S.W.3d 233 (Tex.Crim.App.2000) (“Jimenez II”) (designated for publication) (affirming harmless-error analysis, without deciding whether statute was unconstitutional as applied); see also Tex. Gov’t Code Ann. 508.149(a)(7) (appellant’s offense disqualifies him from mandatory supervision). Other courts of appeals have disagreed.¹ The State asks us to overrule Jimenez I. We decline. Based on Jimenez I, we hold the charge was unconstitutional as applied to appellant.

We follow Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1984), and review the whole record for egregious harm.² Jimenez II, 32 S.W.3d at 237-38. The jury was instructed not to consider how good-conduct time might affect appellant. We presume it followed this instruction. See Williams v. State, 937 S.W.2d 479, 490 (Tex.Crim.App.1996). Appellant points to no evidence, such as jury notes or testimony, that would contradict this presumption. See id.; Jimenez I, 992 S.W.2d . While the jury assessed 38 years in prison, the punishment range was 25 to 99 years or life because of appellant’s two prior felony convictions. See Tex. Penal Code Ann. § 12.41(d) (Vernon Supp.2001). The State once mentioned good-time conduct in closing, after noting appellant’s lengthy criminal history and disciplinary offenses and crimes in prison:

You have somebody who has a criminal history from 1987 to 1995, as far as convictions, and then, in '98, assaults two police officers. And then we put him in jail; and while he’s in jail, he commits all these other violations. You know, he doesn’t care unless he’s sitting here in front of a jury deciding his fate; and that’s the truth. He does not care. I want you to go back there, and I want you to decide what you think is right. And just remember, ladies and gentlemen, that in here they talk about — they talk about good time credit. And I think you can agree people can be rehabilitated in prison; so consider that. How much time does he need to be rehabilitated? How much time do we want to pass before Mr. Bradley’s back on the street, doing whatever he wants to do? That’s what you need to decide.

(Emphasis added.) While this reference weighs in favor of finding harm, nothing shows the statement confused the jury or that the jury disobeyed the judge’s instructions not to consider good-conduct time. See Jimenez I, 992 S.W.2d at 638. Moreover, the jury gave appellant a punishment only 13 years above the minimum — despite the serious, prolonged, and repeated violence of his attack on several officers; his long criminal history of four felonies and four misdemeanors; his continued crimes in prison; and the jury’s implicit conclusion that he perjured himself at trial — when it could have assessed up to life imprisonment.

Accordingly, we hold appellant did not show egregious harm. See Martinez v. State, 969 S.W.2d 497, 501-02 (Tex.App.—Austin 1998, no pet.) (after holding the good-conduct-time instruction was not unconstitutional, concluding it would not have been harmful under 44.2(a) even if it were unconstitutional, although the State mentioned parole once in closing, when the jury was instructed not to consider parole or good-conduct time, nothing showed the instruction confused the jury, and the crime was heinous); Jimenez I, 992 S.W.2d at 638-39 (considering similar factors in concluding error was harmless, although the instruction was not mentioned in closing arguments); see also Green v. State, 839 S.W.2d 935, 946 (Tex.App.—Waco 1992, pet. ref'd).

We overrule appellant’s sole issue.

We affirm the judgments.

JENNINGS, J., concurring.

1 . See Cagle v. State, 23 S.W.3d 590, 593-94 (Tex.App.—Fort Worth 2000, pet. filed); Edwards v. State, 10 S.W.3d 699, 705 (Tex.App.—Houston [14th Dist.] 1999, pet. granted); Luquis v. State, 997 S.W.2d 442, 443-44 (Tex.App.—Beaumont 1999, pet. granted); Hyde v. State, 970 S.W.2d 81, 89-90 (Tex. App.—Austin 1998, pet. ref'd); Martinez v. State, 969 S.W.2d 497, 500-01 (Tex.App.—Austin 1998, no pet.); see also Boston v. State, 965 S.W.2d 546, 549-50 (Tex.App.—Houston [14th Dist.] 1997, pet. ref'd); Garcia v. State, 911 S.W.2d 866, 868-69 (Tex.App.—El Paso 1995, no pet.).

2 . Appellant's brief asks us to apply the harmless-error rule for constitutional error, but the Court of Criminal Appeals has since held we must apply the Almanza standard when this error is unobjected to. Jimenez II, 32 S.W.3d at 237-38. On the other hand, Jimenez II also forecloses the State's argument that Al-manza does not apply and that appellant's constitutional challenge is thereby waived for lack of objection. See id.