ACCEPTED 05-14-00192-CR FIFTH COURT OF APPEALS DALLAS, TEXAS 1/12/2015 3:19:56 PM LISA MATZ CLERK
The State requests oral argument only if Appellant Argues.
No. 05-14-00192-CR RECEIVED IN 5th COURT OF APPEALS DALLAS, TEXAS IN THE COURT OF APPEALS 1/12/2015 3:19:56 PM LISA MATZ FOR THE FIFTH DISTRICT OF TEXAS Clerk AT DALLAS
RITO DUENAS, APPELLANT vs. THE STATE OF TEXAS, APPELLEE
On appeal from the Criminal District Court No. 7 of Dallas County, Texas In Cause No. F13-54251
STATE’S BRIEF
Counsel of Record: SUSAN HAWK LAURA ANNE COATS CRIMINAL DISTRICT ATTORNEY ASSISTANT DISTRICT ATTORNEY DALLAS COUNTY, TEXAS STATE BAR NO. 00790476 FRANK CROWLEY COURTS BUILDING 133 N. RIVERFRONT BOULEVARD, LB-19 DALLAS, TEXAS 75207-4399 (214) 653-3625 (214) 653-3643 fax LAURA.COATS@dallascounty.org
Attorneys for the State of Texas TABLE OF CONTENTS
STATE’S BRIEF ....................................................................................................... i
TABLE OF CONTENTS ............................................................................... ii INDEX OF AUTHORITIES ......................................................................... iii
STATEMENT OF THE CASE .......................................................................1 STATEMENT OF FACTS ..............................................................................1
SUMMARY OF ARGUMENT .......................................................................4
ARGUMENT ...................................................................................................4
RESPONSE TO APPELLANT’S FIRST ISSUE ...............................................4
RESPONSE TO APPELLANT’S SECOND ISSUE..........................................9
RESPONSE TO APPELLANT’S THIRD ISSUE ...........................................12
RESPONSE TO APPELLANT’S FOURTH ISSUE........................................14
PRAYER........................................................................................................19 CERTIFICATE OF SERVICE ......................................................................19 CERTIFICATE OF WORD COMPLIANCE ...............................................20
ii INDEX OF AUTHORITIES
Federal Cases
Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ........9, 10 Lockhart v. Nelson, 488 U.S. 33 (1988) ....................................................................9
State Cases
Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985)(op. on reh’g) ...... 14, 15
Bazanes v. State, 310 S.W.3d 32 (Tex. App.—Fort Worth 2010, pet. ref’d) ..........11
Bell v. Texas Dep't of Criminal Justice-Institutional Div., 962 S.W.2d 156 (Tex. App. – Houston [14th Dist.] 1998, no pet).............................................................5
Bourque v. State, 156 S.W.3d 675 (Tex. App.—Dallas 2005, pet. ref’d) ...............13 Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) ........................................9 Chen v. State, 410 S.W.3d 394 (Tex. App.—Houston [1st Dist.] 2013, pet. ref’d) ...7
Couchman v. State, 3 S.W.3d 155 (Tex. App.—Fort Worth 1999, pet. ref’d) ........11 Eastep v. State, 941 S.W.2d 130 (Tex. Crim. App. 1997), overruled on other grounds by Reney v. State, 28 S.W.3d 561 (Tex. Crim. App. 2000) .................7, 8 Goines v. State, No. 05-06-00441-CR, 2006 Tex. App. LEXIS 10166 (Tex. App.— Dallas Nov. 28 2006, no pet.) (not designated for publication) ...........................15 Hubert v. State, No. 05-12-01084-CR, 2014 Tex. App. LEXIS 2467, 32 (Tex. App.—Dallas Mar. 4, 2014)(not designated for publication) ..............................17 Hutch v. State, 922 S.W.2d 166 (Tex. Crim. App. 1996) ........................................17
Johnson v. State, 967 S.W.2d 410 (Tex. Crim. App. 1998) ......................................9
Lemasurier v. State, 91 S.W.3d 987 (Tex. App.—Fort Worth 2002, pet. ref’d).....14 Luquis v. State, 72 S.W.3d 355 (Tex. Crim. App. 2002)............................ 15, 16, 18 Marroquin v. State, 746 S.W.2d 747 (Tex. Crim. App. 1988) ..................................9
iii Michell v. State, 381 S.W.3d 554 (Tex. App.—Eastland 2012, no pet.) ...................8
Reyna v. State, 168 S.W.3d 173 (Tex. Crim. App. 2005)........................................12
Russell v. State, 341 S.W.3d 526 (Tex. App.—Fort Worth 2011, no pet.) .............12
Saunders v. State, 817 S.W.2d 688 (Tex. Crim. App. 1991) ...................................15
Shavers v. State, 985 S.W.2d 284 (Tex. App.—Beaumont 1999, pet. ref’d) ..........17 Smith v. State, 721 S.W.2d 844 (Tex. Crim. App. 1986) ........................................12
State v. Mercado, 972 S.W.2d 75 (Tex. Crim. App. 1998) .....................................13
Stuhler v. State, 218 S.W.3d 706 (Tex. Crim. App. 2007) ......................................17
Taylor v. State, 106 S.W.3d 827 (Tex. App. – Dallas 2003, no pet) .......................10 Trevino v. State, 174 S.W.3d 925 (Tex. App.—Corpus Christi 2005, pet. ref’d) ...12
Voelkel v. State, 501 S.W.2d 313 (Tex. Crim. App. 1973)........................................7 Wilkins v. State, 05-12-00333-CR, 2013 Tex. App. LEXIS 8512 (Tex. App.— Dallas July 10, 2013, no pet.) (not designated for publication). ..........................12
Young v. State, 283 S.W.3d 854 (Tex. Crim. App. 2009), cert. denied, 130 S.Ct. 1015 (2009) ..........................................................................................................10
State Statutes
Tex. Code Crim. Proc. Ann. art. 28.11 (West 2006) .................................................7
Tex. Code Crim. Proc. Ann. art. 37.07, § 4(a) (West Supp. 2013) .........................16 Tex. Code. Crim. Proc. Ann. art. 28.10 (West 2006) ................................................7
Tex. Const. art. I, § 10................................................................................................7
Tex. Gov’t Code § 24.024 (West 2012)...................................................................13
Tex. Gov’t Code § 508.145 (West Supp. 2014) ......................................................16
Tex. Penal Code Ann. § 12.33 (West 2011) ............................................................17
iv Tex. Penal Code Ann. § 21.02(c)(2) (West Supp. 2013) ...........................................8
Tex. Penal Code Ann. § 21.11 (a)(1) (West 2011) ..................................................10
Tex. Penal Code Ann. § 21.11 (c)(1) (West 2011) ..................................................10
State Rules
Tex. R. App. P. 33.1 (a)(1) ......................................................................................12
Tex. R. App. P. 38(h) .................................................................................................5
v TO THE HONORABLE COURT OF APPEALS:
The State of Texas submits this brief in reply to the brief of appellant, Rito
Duenas.
STATEMENT OF THE CASE
Appellant pled not guilty, and a jury convicted him of indecency with a
child. (CR: 49). The jury set punishment at eight years’ imprisonment. (CR: 51).
STATEMENT OF FACTS
Complainant C.H. lived with her grandmother, father, step-mother, and five
younger siblings. (RR6: 19-20). Appellant, C.H.’s grandmother’s brother,
traveled regularly between Mexico and Dallas and would stay with the family
when he was in town. (RR6: 65-66, 112-14). The children thought appellant was
really fun. (RR6: 25). He would bring them presents when he came into town,
would take them to McDonald’s and Chuck E Cheese, and played board games
with them. (RR6: 25).
When C.H. was in the second grade, appellant began to touch her sexually.
(RR6: 30). On one occasion, C.H. was playing with her siblings when appellant
called her into another room and gave her a coloring book and crayons. (RR6: 30).
Her step-sister K.P. came into the room where appellant and C.H. were coloring a
picture together and asked C.H. to come back and play with the rest of them.
(RR6: 30). C.H. refused, wanting to stay and finish coloring the picture with
1 appellant. (RR6: 30). After K.P. left the room, appellant separated C.H.’s legs,
and slid his hand down between her legs, and touched her on her ―chocho‖ over
her clothes. (RR6: 31). Appellant rubbed her ―chocho‖ with his hand. (RR6: 31).
C.H. used the word ―chocho‖ to name her sexual organ. (RR6: 28). At first the
rubbing tickled and then it made C.H. feel uncomfortable so she rejoined K.P. and
her other siblings. (RR6: 31, 33).
Incidents of similar touching continued until the spring break when C.H. was
in the fourth grade. (RR6: 34). It happened more than ten times when she was still
in second grade. (RR6: 38). Appellant would tell C.H. not to tell anyone about
what he was doing and, after he touched her, he would give her money. (RR6: 39).
Appellant would touch his own ―chochito‖ while he was touching her. (RR6: 70).
C.H. finally told her step-sister K.P., who was a year younger than her, about
appellant touching her. (RR6: 20-21, 39-40, 58). K.P. told her that what appellant
was doing was bad and came up with a plan of hiding the money appellant would
give C.H. in a jar until they could find a way to tell one of their parents. (RR6: 39-
40). K.P. protected C.H. from appellant and would not leave them alone together.
(RR6: 40-41, 58-59).
During spring break, when C.H. was in fourth grade, the family went
camping. (RR6: 41). C.H. and K.P. decided that it would be a good time to tell
2 their parents about what had been going on between C.H. and appellant. (RR6: 41,
60).
One night, when they were around the campfire, Arlen Sanchez, K.P.’s
mother and C.H.’s step-mother, asked each of the children if they had any
problems they wanted to talk about. (RR6: 41-42). When asked, C.H. told Arlen
that she had something she wanted to tell her. (RR6: 68). Arlen could tell by
C.H.’s expression that it was something serious and asked her if she would prefer
to speak privately. (RR6: 68). Arlen and C.H. moved a little away from the others
and C.H. told her that appellant had been touching her ―chochito‖ and that it had
been going on since she was in the second grade. (RR6: 42, 60-61, 68-70). Arlen
was very upset by what C.H. told her. (RR6: 42-43, 60-61). Arlen told C.H.’s
father and, when they returned home, they reported it to the police and took C.H. to
be forensically interviewed. (RR6: 71, 85-86).
Appellant testified at the guilt phase of trial. (RR6: 111). He denied having
any sexual contact with C.H. (RR6: 116).
3 SUMMARY OF ARGUMENT
The State’s abandonment of language in the indictment which had the effect
of reducing the offense to a lesser included offense did not constitute an
amendment and did not trigger the requirements of article 28.10 of the Code of
Criminal Procedure. The evidence was legally sufficient to support the verdict.
By failing to challenge the trial court’s jurisdiction prior to trial, appellant has
waived any error with regards to the transfer of the case to the trial court. Finally,
the trial court correctly included the statutorily required instructions regarding
good conduct time. Further, appellant has failed to show egregious harm.
ARGUMENT
RESPONSE TO APPELLANT’S FIRST ISSUE
The State properly abandoned a portion of the indictment, reducing it to a lesser included offense.
In his first issue for review, appellant contends that because the State failed
to comply with the requirements of articles 28.10 and 28.11 of the Code of
Criminal Procedure when it amended the indictment, the amendment was void.
Further, appellant contends, that because the indictment was not amended, the
evidence at trial was legally insufficient when measured against a hypothetically
correct jury charge. Appellant is incorrect.
4 Multifarious Issues
Appellant has raised more than one separate and distinct complaint within a
single issue. Specifically, appellant challenges both the validity of the State’s
amendment of the indictment and the sufficiency of the evidence in a single
argument. Appellant’s issue for review is multifarious and fails to present properly
his complaints for appellate review. Tex. R. App. P. 38(h). This Court may
disregard this point of error. See Bell v. Texas Dep't of Criminal
Justice-Institutional Div., 962 S.W.2d 156, 158 n.1 (Tex. App. – Houston [14th
Dist.] 1998, no pet).
The Facts at Issue
Prior to jury selection, the following occurred:
The Court: Okay. It is my understanding that you are charged with sexual abuse on a child. Is that your understanding?
Appellant: Yes, I’ve been told.
The Court: And that is continual sexual abuse of a - -
Defense Counsel: No, the State is amending the Indictment.
The Court: I was getting there, Mr. Jamison.
Defense Counsel: The State has just amended the Indictment and I understand that they are charging him with second-degree indecency by contact.
The Court: Is that right, Mr. Wiles? 5 The State: The State is going to abandon certain language in the Indictment which would lead to the lesser-included offense of second degree indecency with a child.
Defense Counsel: There is no objection from the defense to that.
(RR5: 4-5) (emphasis added).
Appellant was arraigned on the offense of indecency with a child, the jury
was read the indictment for indecency with a child and, at the close of evidence,
charged on the offense of indecency with a child. (RR5: 6-7; RR6: 14-15, 122-23).
The State Properly Abandoned Portions of the Indictment
Appellant contends that the State improperly attempted to amend the
indictment without complying with the statutory requirements set out in the Texas
Code of Criminal Procedure. Therefore, appellant contends, the amendments were
void and had no effect. Further, appellant asserts that, because the amendment was
void, the evidence at trial was legally insufficient to support the verdict when
measured against a hypothetically correct jury charge for the original indictment.
Because the State merely abandoned language in the indictment in order to reduce
the originally charged offense of continuous sexual abuse of a child to indecency
with a child, its actions did not constitute an amendment and appellant’s argument
has no merit.
6 Article I, Section 10 of the Texas Constitution guarantees an accused the
right to be informed of the nature and cause of the accusation against him in a
criminal prosecution. Tex. Const. art. I, § 10. It has long been held that this
information must come from the face of the charging instrument. Voelkel v. State,
501 S.W.2d 313, 315 (Tex. Crim. App. 1973).
An amendment is an alteration to the charging instrument which affects the
substance of the charging instrument. Eastep v. State, 941 S.W.2d 130, 132 (Tex.
Crim. App. 1997), overruled on other grounds by Reney v. State, 28 S.W.3d 561
(Tex. Crim. App. 2000). Article 28.10 of the Code of Criminal Procedure controls
the procedure for amending a charging instrument prior to and at the time of trial.
Tex. Code. Crim. Proc. Ann. art. 28.10 (West 2006). Article 28.11 dictates that
amendment of the charging instrument shall be made with the leave of the court
and under its direction. Tex. Code Crim. Proc. Ann. art. 28.11 (West 2006).
However, an abandonment of a portion of the charging instrument by the
State does not affect its substance and does not trigger the procedural requirements
of articles 28.10 or 28.11. Chen v. State, 410 S.W.3d 394, 396 (Tex. App.—
Houston [1st Dist.] 2013, pet. ref’d). The Court of Criminal Appeals has identified
three situations where an alteration of the charging instrument does not amount to
an amendment: (1) abandonment of one or more ways or means of committing an
offense; (2) alteration of the charging instrument where the affect of the alteration
7 is to reduce the prosecution to that of a lesser included offense; and (3)
abandonment of surplusage. Eastep, 941 S.W.2d at 133-34 (emphasis added).
Surplusage is unnecessary language not legally essential to constitute the offense
alleged in the charging instrument. Id.
As stated by the prosecution at the pre-trial hearing, it abandoned elements
of the indictment in order to reduce it from continuous sexual abuse with
underlying alleged offenses of indecency with a child by contact to simple
indecency with a child by contact. (RR5: 5). Most forms of indecency with a
child by contact are lesser included offenses of continuous sexual abuse.1 Michell
v. State, 381 S.W.3d 554, 555-56 (Tex. App.—Eastland 2012, no pet.). This
abandonment of the greater for the lesser included offense did not trigger the
statutory requirements for amending the indictment. Therefore, appellant was
correctly charged on the lesser included offense and, as set out pursuant to
appellant’s second issue, the evidence was sufficient to support his conviction for
the offense of indecency with a child by contact as charged. Appellant’s first issue
has no merit and should be overruled.
1 Section 21.02 of the Penal Code (Continuous Sexual Abuse) excludes indecency with a child by touching of the breast of a child as an element of continuous sexual abuse. Tex. Penal Code Ann. § 21.02(c)(2) (West Supp. 2013). 8 RESPONSE TO APPELLANT’S SECOND ISSUE
The evidence is legally sufficient to support the conviction.
In his second issue, appellant contends that the evidence is legally
insufficient to support his conviction. Specifically, appellant asserts that there was
no evidence to support the element that he acted with the specific intent to arouse
or gratify his sexual desire. Appellant is incorrect.
Standard of Review
―The Jackson v. Virginia legal-sufficiency standard is the only standard that
a reviewing court should apply in determining whether the evidence is sufficient to
support each element of a criminal offense that the State is required to prove
beyond a reasonable doubt.‖ Brooks v. State, 323 S.W.3d 893,895 (Tex. Crim.
App. 2010). When a claim is made that the evidence is legally insufficient, this
Court’s standard of review is whether, after viewing the evidence in the light most
favorable to the verdict, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307,319, 99 S.Ct. 2781, 61 L.Ed.2d 560,573 (1979); Marroquin v. State, 746
S.W.2d 747,750 (Tex. Crim. App. 1988). Appellate courts conducting a sufficiency
review consider all of the evidence, whether or not properly admitted. Lockhart v.
Nelson, 488 U.S. 33,41-42 (1988); Johnson v. State, 967 S.W.2d 410,411-12 (Tex.
Crim. App. 1998); Taylor v. State, 106 S.W.3d 827,830 (Tex. App. – Dallas 2003, 9 no pet). Further, such a review recognizes that it is within the fact finder’s
exclusive realm ―to resolve conflicts in testimony, to weigh the evidence, and to
draw reasonable inferences from basic to ultimate facts.‖ Young v. State, 283
S.W.3d 854,861 (Tex. Crim. App. 2009), cert. denied, 130 S.Ct. 1015 (2009)
(citing Jackson, 443 U.S. at 317-19). The evidence in this case is sufficient to
show that Appellant committed this offense as alleged in the indictment.
Indecency with a Child
A person commits the offense of indecency with a child if, with a child
younger than seventeen years and not the person’s spouse, the person engages in
sexual contact with the child. Tex. Penal Code Ann. § 21.11 (a)(1) (West 2011).
―Sexual contact‖ means any touching by a person, including touching through
clothing, or the anus, breast, or any part of the genitals of a child if committed with
the intent to arouse or gratify the sexual desire of any person. Tex. Penal Code
Ann. § 21.11 (c)(1) (West 2011).
Application of the Law to the Facts
The State alleged that appellant committed the offense by ―contact between
the hand of defendant and the genitals of complainant with the intent to arouse and
gratify the sexual desire of defendant . . .‖ (RR6: 14). Appellant contends that
there was no evidence to show that he acted with the intent to arouse or gratify his
sexual desire. The specific intent for the offense of indecency with a child may be
10 inferred from a defendant’s conduct, his remarks, and all of the surrounding
circumstances. Bazanes v. State, 310 S.W.3d 32, 40 (Tex. App.—Fort Worth
2010, pet. ref’d). An oral expression of intent is not required, the conduct itself is
enough to infer intent. Id. A complainant’s testimony alone is sufficient to
support a conviction for indecency with a child. Id. Intent can also be inferred
from the defendant’s conduct after the incident. Couchman v. State, 3 S.W.3d 155,
163 (Tex. App.—Fort Worth 1999, pet. ref’d).
Appellant would separate C.H. from the other people in the house and give
her special presents before touching her genitals with his hands. (RR6: 29-31).
Appellant would separate C.H.’s legs, slide his hand down between her legs, and
touch and rub her on her ―chocho‖ over her clothes. (RR6: 31). The touching
made C.H. uncomfortable and she did not like it. (RR6: 31, 33, 37-38, 40, 42).
Appellant would touch his own ―chochito‖ while he was touching her. (RR6: 70).
Appellant would tell C.H. not to tell anyone about what he was doing and, after he
touched her, he would give her money. (RR6: 38-39).
The jury, as the sole judges of the credibility of the witnesses and the weight
to be given their testimony, could have reasonably inferred from appellant’s
conduct before, during, and after the incidents that he was acting with the intent to
arouse and gratify his sexual desire. See e.g. Wilkins v. State, 05-12-00333-CR,
2013 Tex. App. LEXIS 8512, at *11 (Tex. App.—Dallas July 10, 2013, no pet.)
11 (not designated for publication). Viewing all of the evidence in the light most
favorable to the verdict, the evidence is legally sufficient to support the jury’s
finding of guilt on the offense of indecency with a child by contact. Appellant’s
second issue should be overruled.
RESPONSE TO APPELLANT’S THIRD ISSUE
By failing to challenge jurisdiction in the trial court, appellant has waived the issue on appeal.
In his third issue, appellant contends that the trial court lacked jurisdiction
over the case and, therefore, the judgment is void. Specifically, appellant contends
that the case was not properly transferred into the Criminal District Court No. 7.
Appellant’s argument has no merit.
There are two bodies of law at play here. The first involves preservation. It
is ―axiomatic‖ that an issue on appeal must first be brought to the trial court’s
attention. Russell v. State, 341 S.W.3d 526, 527 (Tex. App.—Fort Worth 2011, no
pet.). The complaint must be timely, and it may be made in a request, objection, or
motion. See Tex. R. App. P. 33.1 (a)(1). Without first giving the trial court the
opportunity to cure the error, even constitutional errors are forfeit. Trevino v.
State, 174 S.W.3d 925, 927 (Tex. App.—Corpus Christi 2005, pet. ref’d) (citing
Smith v. State, 721 S.W.2d 844, 855 (Tex. Crim. App. 1986)). To the Court of
Criminal Appeals, preservation comes down to ―party responsibility.‖ See Reyna
v. State, 168 S.W.3d 173, 177 (Tex. Crim. App. 2005). The rule applies ―to any 12 appealing party equally[,]‖ whether the accused or the State. State v. Mercado,
972 S.W.2d 75, 77 (Tex. Crim. App. 1998). This duty falls on the complaining
party alone.
The second body of law involves transferring cases. In counties with two or
more district courts, the trial judges enjoy wide discretion to assign cases for trial
and to distribute their courts’ workload. See Tex. Gov’t Code § 24.024 (West
2012). This includes the power to transfer cases between themselves. Id. Before
transferring a case, the first judge should enter a transfer order to ensure good
recordkeeping. Id. But failing that, any actions from the second judge are not
void—they are merely subject to a jurisdictional objection. Id.
Still, a transfer order is not necessary before the indictment is filed. Bourque
v. State, 156 S.W.3d 675, 678 (Tex. App.—Dallas 2005, pet. ref’d). Thus, one
district court may impanel a grand jury, and a resulting indictment may be filed in
any other court in the county with concurrent jurisdiction. Id. Before the
indictment is filed, the case does not appear in any court’s docket—it is not
transferred, so no transfer order is required. Id.
Appellant did not raise any objection to the court below presiding over his
trial. None of Appellant’s filings raise this complaint. If he ever objected during
the proceedings, the State has not found it and Appellant has not cited it. Because
this objection concerns procedure rather than jurisdiction, Appellant failed to
13 preserve this issue for appellate review when he failed to object. Lemasurier v.
State, 91 S.W.3d 987, 899–900 (Tex. App.—Fort Worth 2002, pet. ref’d). And as
Appellant’s brief acknowledges, the ―authority is against his position‖ on
preservation. (App. Br. p. 40). This Court should overrule appellant’s third issue.
RESPONSE TO APPELLANT’S FOURTH ISSUE
The trial court did not err when it instructed the jury about good conduct time.
In his fourth issue, appellant contends that the trial court erred by instructing
the jury with regards to good conduct time. Appellant is incorrect.
A claim of jury charge error is reviewed under the standard set forth in
Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985)(op. on reh’g). The
reviewing court must first determine if an error occurred. If error does exist, the
court then determines if the error caused sufficient harm to warrant reversal. Id.
The extent of harm requiring a reversal is controlled by whether the error was
properly preserved at trial. Id.
Without an objection to the charge, a reversal is only warranted if the record
shows that the error was so egregiously harmful that the defendant was denied a
fair and impartial trial. Id. at 171. Examples of egregious harm include errors
affecting the case’s foundation, denying the defendant a valuable right,
significantly affecting a defensive theory, or making the case for guilt or 14 punishment clearly and substantially more compelling. Saunders v. State, 817
S.W.2d 688, 692 (Tex. Crim. App. 1991). A reviewing court must consider the
jury charge in its entirety, the state of the evidence, the arguments of counsel and
any other relevant information from the entire record. Almanza, 686 S.W.2d at
171.
The Law
A person convicted of indecency with a child is not eligible for good-
conduct time credit to be considered in the calculation of parole eligibility. See
Tex. Gov’t Code § 508.145 (West Supp. 2013). However, a trial court does not
commit error when it instructs the jury, as required, on the availability of good
conduct time, even if the defendant is not eligible for such credit. See Luquis v.
State, 72 S.W.3d 355 (Tex. Crim. App. 2002); see also Goines v. State, No. 05-06-
00441-CR, 2006 Tex. App. LEXIS 10166 (Tex. App.—Dallas Nov. 28 2006, no
pet.) (not designated for publication).
Application to the Facts
Appellant argues that the trial court erred in instructing the jury on good
conduct time because he is not eligible for his good conduct time to be included in
the time he must serve to reach parole eligibility. The trial court gave the
following instruction during the punishment phase:
Under the law applicable in this case, the defendant, if sentenced to a term of imprisonment, may earn time off the period of incarceration 15 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. Eligibility for parole does not guarantee that parole will be granted.
It cannot be accurately 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 parole law may be applied to this particular defendant.
(CR: 37-38).
The trial court explicitly informed the jury that Appellant was not eligible
for parole until he had served one-half of the sentence. Tex. Gov’t Code § 508.145
(West Supp. 2014). It is well settled that the trial court was statutorily required to
generally instruct the jury on the concept of good conduct time. Tex. Code Crim.
Proc. Ann. art. 37.07, § 4(a) (West Supp. 2013); see also Luquis, 72 S.W.3d at 363
(―The Texas Legislature enacted legislation that requires the trial judge to instruct
16 the jury in the precise wording that the statute recites. Article 37.07, section 4(a)
sets out, verbatim, the words that the trial judge is to use. There are even quotation
marks around the wording of the instruction.
The trial court complied, verbatim, with the requirements of article 37.07,
section 4(a) and instructed the jury not to consider how the concept of good time
credit might apply to appellant. But cf. Hubert v. State, No. 05-12-01084-CR,
2014 Tex. App. LEXIS 2467, 32 (Tex. App.—Dallas Mar. 4, 2014)(not designated
for publication) (emphasis added) (―We agree that the parole eligibility instruction
given by the trial court was erroneous since it did not comply with article 37.07,
section 4(a), of the code of criminal procedure.‖).
Even if the instruction was given in error, Appellant did not make an
objection and has failed to show that he suffered egregious harm. Stuhler v. State,
218 S.W.3d 706, 719 (Tex. Crim. App. 2007) (citing Hutch v. State, 922 S.W.2d
166, 171 (Tex. Crim. App. 1996) (―Jury-charge error is egregiously harmful if it
affects the very basis of the case, deprives the defendant of a valuable right, or
vitally affects a defensive theory.‖). Here, the jury sentenced Appellant to eight
years’ imprisonment, less than the maximum of twenty years that was permitted by
law. Tex. Penal Code Ann. § 12.33 (West 2011); see also Shavers v. State, 985
S.W.2d 284, 292 (Tex. App.—Beaumont 1999, pet. ref’d).
17 As in Luquis, there is no indication in the record that the jury disregarded the
trial court’s instruction not to apply the law of parole or good conduct credit to
Appellant’s case. Luquis, 72 S.W.3d at 367. Neither the State nor counsel for
Appellant discussed the law of parole or good conduct credit during voir dire or
jury argument. (RR6: 162-66). Thus, assuming arguendo that the trial court’s
instruction was erroneous, Appellant has failed to demonstrate that he suffered
egregious harm requiring the reversal of his conviction. Accordingly, Appellant’s
fourth point of error must be overruled.
18 PRAYER
The State prays that this Honorable Court will affirm the judgment of the trial
court.
Respectfully submitted,
Susan Hawk Laura Anne Coats Criminal District Attorney Assistant District Attorney Dallas County, Texas State Bar No. 00790476 Frank Crowley Courts Building 133 N. Riverfront Blvd., LB-19 Dallas, Texas 75207-4399 (214) 653-3625 (214) 653-3643 fax
CERTIFICATE OF SERVICE
I hereby certify that a true copy of the foregoing brief was served on Allan Fishburb, Counsel for Appellant, 701 Commerce Street, Suite 400, Dallas, TX 75202 by first class mail and by email at allanfishburn@yahoo.com on January 12, 2015.
Laura Anne Coats
19 CERTIFICATE OF WORD COMPLIANCE
I further certify that this document contains 4,242 words, inclusive of all contents except for the Table of Contents and Index of Authorities, according to Microsoft Word, which was used to prepare the brief. See Tex. R. App. P. 73.3; Tex. R. App. P. 73.1(f).
__________________________________ LAURA ANNE COATS