Straight v. State

515 S.W.3d 553, 2017 WL 641432, 2017 Tex. App. LEXIS 1341
CourtCourt of Appeals of Texas
DecidedFebruary 16, 2017
DocketNO. 14-15-00801-CR
StatusPublished
Cited by31 cases

This text of 515 S.W.3d 553 (Straight v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Straight v. State, 515 S.W.3d 553, 2017 WL 641432, 2017 Tex. App. LEXIS 1341 (Tex. Ct. App. 2017).

Opinion

OPINION

Martha Hill Jamison, Justice

Appellant Melvin Straight challenges his conviction for evading arrest, complaining in four issues that the trial court erred in paraphrasing instead of reading the entire jury charge to the jury and that appellant received ineffective assistance of counsel. Given that appellant has not shown that he was egregiously harmed by the trial court’s failure to read the jury charge or harmed by his counsel’s performance, we affirm.

Background

Officer Grossbard was patrolling for suspicious activity in a high crime area in Houston, Texas, where he saw appellant walking in the street. Appellant walked up to the outside of a gate in front of an apartment complex, and another man walked up to the inside of the gate. They looked around and “did some type of hand-to-hand exchange” through the bars of the fence. Seeing this exchange, Grossbard suspected a narcotics transaction, so he approached appellant and asked for identification. Appellant squeezed through a gap in the gate and ran into the complex. Grossbard lost sight of appellant but found a cellphone where appellant had been. The phone had images of appellant on it.

Grossbard radioed undercover officers with a description of appellant. After the officers arrived on the scene, they watched the apartment complex and saw appellant approximately 15 minutes later. An officer commanded him: “Houston Police, Stop!” But appellant ran. The officer pulled out his weapon and ordered appellant to turn around. Appellant then complied. After appellant was taken into custody, Grossbard asked appellant if the phone was his. He admitted that he had dropped the phone. Grossbard found $1,500 in cash on appellant.

The jury found appellant guilty of evading arrest, with a prior evading arrest conviction.1 During the punishment phase of trial, the State presented evidence that appellant previously had been convicted for a number of misdemeanor and felony offenses. After finding two enhancement paragraphs true, the jury sentenced appellant to five years, six months of incarceration.2

Discussion

Appellant contends that the trial court erred in paraphrasing the jury charge to the jury and that appellant received ineffective assistance of counsel. We first address appellant’s third and fourth issues complaining of jury charge error because they dispense with one of appellant’s ineffective assistance claims. We then review appellant’s ineffective assistance claims, raised in his first two issues, in two catego-[560]*560ríes: those raised in appellant’s motion for new trial and those raised for the first time on appeal. We do this because different standards of review apply for each category.

I. No Egregious Harm in Paraphrasing Jury Charge

Appellant contends in his third and fourth issues that the trial court erred in paraphrasing portions of the jury charge instead of reading the entire charge to the jury. The parties agree that the trial court violated the requirements of the statutory scheme in failing to read the entire charge to the jury. Appellant also acknowledges that his counsel did not object to this. We conclude that the trial court erred in failing to read the entire charge to the jury, but appellant was required and failed to establish that he was egregiously harmed by such error.

The trial court is required to deliver to the jury “a written charge distinctly setting forth the law applicable to the case” and “[bjefore said charge is read to the jury,” the trial court must give the parties an opportunity to present any objections to the charge. Tex. Code Crim. Proc. art. 36.14. After objections are made by the parties, “the judge shall read his charge to the jury as finally written.” Id. art. 36.16. When the trial court fails to comply with this requirement, “the judgment shall not be reversed unless the error appearing from the record was calculated to injure the rights of defendant, or unless it appears from the record that the defendant has not had a fair and impartial trial.” Id. art. 36.19. Absent a trial objection, however, we may not reverse a con-vietion for the trial court’s failure to read the charge without a showing of egregious harm.3 See Casanova v. State, 383 S.W.3d 530, 541 n.40 (Tex. Crim. App. 2012).

The trial judge read the first two pages of the charge while the jury apparently read along.4 Then the trial judge explained to the jury in his own words that appellant was charged with evading arrest as a second offender. Starting on page three of the six-page charge, the trial court paraphrased the charge while presumably the jury looked at it. Appellant complains about three specific areas when the trial court paraphrased the charge, involving the presumption of innocence, appellant’s choice not to testify, and the law governing the jury’s deliberations:

• The trial judge said, “Because [appellant is] presumed to be not guilty, he has nothing to prove in this case.” The charge reads, “The law does not require a defendant to prove his innocence or produce any evidence at all.”
• The trial judge said that appellant’s failure to testify “is no indication of guilt at his trial.”5 The charge reads that the jury could not “take [appellant’s failure to testify] into consideration for any purpose whatsoever as a circumstance against him.”
• The trial judge said, “By reaching a verdict, you follow the law contained in the Court’s charge today.” The charge reads, “[T]he law you shall receive in these written instructions, and you must be governed thereby.”

We first discuss appellant’s argument that the trial court’s paraphrasing amount[561]*561ed to a constitutionally deficient instruction on reasonable doubt. Next, we discuss whether appellant established he was egregiously harmed by the trial court’s failure to read the entire charge.

A. Reasonable Doubt Instruction Not Constitutionally Deficient

According to appellant, the trial court’s oral statements regarding reasonable doubt amounted to a constitutionally deficient instruction that requires reversal without a showing of harm. Thus, contends appellant, he does not have to establish harm to attain a reversal of his conviction. Appellant relies on the Supreme Court’s decision in Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993) for this proposition. The jury instructions in that case, which involved a trial for first-degree murder, included an unconstitutional definition of “reasonable doubt.”6 Id. at 276-77, 113 S.Ct. 2078. The Supreme Court held that such an unconstitutional “reasonable doubt” instruction amounted to a “structural defect[ ] in the constitution of the trial mechanism, which deified] analysis by ‘harmless error’ standards.” Id. at 281, 113 S.Ct. 2078.

Appellant argues that the trial court, in paraphrasing the charge, failed to instruct the jury that appellant did not have to produce any evidence because the burden of proof rests exclusively on the State and failed to instruct the jury that appellant’s failure to testify could not be used against him. We disagree.

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Cite This Page — Counsel Stack

Bluebook (online)
515 S.W.3d 553, 2017 WL 641432, 2017 Tex. App. LEXIS 1341, Counsel Stack Legal Research, https://law.counselstack.com/opinion/straight-v-state-texapp-2017.