Mosley, Kasy Lee v. The State of Texas--Appeal from 178th District Court of Harris County

Affirmed and Opinion filed May 17, 2005

Affirmed and Opinion filed May 17, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-03-01247-CR

NO. 14-03-01248-CR

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KASY LEE MOSLEY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 262nd District Court

Harris County, Texas

Trial Court Cause Nos. 915,838 & 915,839

O P I N I O N

Appellant Kasy Lee Mosley was charged by indictment with the offenses of aggravated sexual assault and robbery. Appellant pled guilty to both charges and elected to have the jury assess punishment. The jury assessed punishment at twenty-five years= imprisonment for aggravated sexual assault and twenty years= imprisonment for robbery, to run concurrently, and to be served in the Texas Department of Criminal Justice, Institutional Division. Asserting two points of error, appellant contends: (1) the trial court erred when it failed to include required statutory language concerning good conduct in the aggravated sexual assault jury charge; and (2) the trial court erred when it gave an improper supplemental charge to the jury in response to a jury question during deliberations when such charge was not necessary to the jury=s resolution of the issues and resulted in prejudice. We affirm.

Background

On the evening of June 21, 2002, appellant and his friend approached two young men, the complainants, outside a movie theater and asked for directions. After a brief conversation, appellant and his friend began hitting, kicking, and choking the complainants. Appellant and his friend ordered the complainants to surrender their wallets and car keys and threatened to shoot them if they did not comply. The complainants were forced into a pickup truck, and for the next few hours, were driven to numerous ATM machines and required to withdraw money. Meanwhile, appellant threatened to kill the complainants unless they performed oral sex on one another, and they complied. After several withdrawals from the ATM machine, the bank denied any further withdrawals from the account. The complainants were then driven to an undeveloped subdivision, ordered out of the vehicle, and listened to appellant and his friend contemplate whether they would be murdered. Shortly thereafter, the complainants were ordered back into the vehicle where one of them was forced to perform oral sex on appellant.

Thereafter, one of the complainants, in an attempt to escape, told the attackers he could get into a safe at a local grocery store. Appellant=s friend drove appellant and the complainants back to the movie theater, dropped them off, and left. Appellant rode with the complainants in one of their cars to the grocery store. Upon their arrival, the complainant who conjured up the plan entered the store while appellant and the other complainant waited. Once inside, the complainant called the police. The police arrived soon thereafter and arrested appellant.

I. Jury Charge Error

A. Is There Error in the Charge?

In his first point of error, appellant contends the trial court erred during the punishment stage because the aggravated sexual assault charge failed to instruct the jury on good conduct language required by statute. See Tex. Code Crim. Proc. Ann. art. 37.07, ' 4(a) (Vernon Supp. 2004). Texas Code of Criminal Procedure article 37.07, section 4(a) requires a trial court to include a jury instruction on parole eligibility and good conduct time in cases where the punishment is to be assessed by the jury and the convicted offense is listed in article 42.12, section 3g(a)(1). Appellant=s conviction for aggravated sexual assault falls into this category. See Tex. Code Crim. Proc. Ann. art. 42.12, ' 3g(a)(1)(E) (Vernon Supp. 2004); Tex. Pen. Code Ann. ' 22.021 (Vernon 2003). The trial court is bound to comply with mandatory language of a statute. Edwards v. State, 10 S.W.3d 699, 702 (Tex. App.CHouston [14th Dist.] 1999), pet. dism=d, improvidently granted, 67 S.W.3d 228 (Tex. Crim. App. 2002) (per curiam).

The jury charge mandated by 37.07, section 4(a) is as follows:[1]

 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.

 [i]t 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 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 the parole law may be applied to this particular defendant.

See Tex. Code Crim. Proc. Ann. art. 37.07, ' 4(a) (Vernon Supp. 2004). Because the jury charge omitted some of the mandatory language in article 37.07, section 4(a), an error occurred. See Luquis v. State, 72 S.W.3d 355, 363 (Tex. Crim. App. 2002).

  B.  Harm Analysis

Because appellant failed to object to the excluded good conduct language, we may reverse only if appellant was so egregiously harmed that he did not receive a fair and impartial trial. See Jimenez v. State, 32 S.W.3d 233, 236B39 (Tex. Crim. App. 2000); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). We assess harm in light of the entire jury charge, the state of the evidence, the argument of counsel, and any other relevant information revealed by the record as a whole. See Almanza, 686 S.W.2d at 171.

Appellant contends the error resulted in a substantial probability that members of the jury misunderstood the law because, unlike the aggravated sexual assault charge, the robbery charge specifically provided that the minimum calculation for parole eligibility would include actual time served plus good conduct time. Appellant argues the jury was left with the strong and incorrect inference that good conduct time would affect the calculation of his sentence because the aggravated sexual assault charge did not affirmatively tell the jury good conduct time would not be counted. Further, appellant argues the jury was clearly concerned with the actual amount of time he would serve given that they asked whether the sentences would run consecutively or concurrently. Appellant contends the trial court=s response to the jury that the sentences would run concurrently only compounded the injury. We disagree.

The court=s charge in the application paragraphs for robbery and aggravated sexual assault instructs the jury not to consider the manner in which the parole law may be applied to this particular defendant. Absent evidence to the contrary, we must presume the jury followed and understood these instructions. See Williams v. State, 937 S.W.2d 479, 490 (Tex. Crim. App. 1996); Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim. App. 1996); Cf. Stokes v. State, 74 S.W.3d 48, 51 (Tex. App.CTexarkana 2002, pet. ref=d) (holding appellant was not egregiously harmed because the charge instructed the jury not to discuss the potential amount of jail time). Neither the prosecutor nor defense attorney discussed good conduct time or urged the jury to assess a greater or lesser sentence based upon any potential good conduct time credit; and the jury did not send out any notes indicating or expressing confusion about the possible application of good conduct time to appellant. Because we presume the jury followed the jury charge instructions, the jury did not consider application of parole law in reaching a punishment decision.

While it was error to include only a part of the mandatory 37.07, section 4(a) instruction in the charge, the unique status of appellant=s conviction of aggravated sexual assault precludes a finding of harm. A defendant convicted of aggravated sexual assault under Texas Penal Code section 22.011 does not accrue good conduct time for purposes of release on mandatory supervision. See Tex. Gov=t Code Ann. ' 508.149(a)(8) (Vernon 2004). Accordingly, omitting a portion of the mandatory charge relating to good conduct time constituted a correct statement of appellant=s incarceration status. Appellant was not harmed.

Similarly, nothing in the record reflects that appellant was harmed by the un-objected-to jury instruction. The punishment for aggravated sexual assault ranges between five to 99 years or life and a fine of no more than $10,000. Tex. Pen. Code Ann. ' 12.32 (Vernon 2003). Even in light of appellant=s egregious conduct for which he was convicted, he nevertheless received twenty-five years= imprisonment, a sentence at the lower end of the punishment range. Under these circumstances, we cannot conclude appellant suffered egregious harm. We overrule appellant=s first point of error.

  II. Jury Instruction on Concurrent Sentencing 

In his second point of error, appellant contends the trial court erred by giving an improper supplemental charge to the jury. Specifically, appellant asserts the court=s response to a jury question during deliberations was not necessary to the jury=s resolution of the issues and resulted in prejudice.

During punishment deliberations, the jury sent a note to the judge stating, A[n]otwithstanding what we find as appropriate punishment (i.e. imprisonment or probation), would the sentences run concurrently for the two charges?@ The trial judge=s response stated in writing,A[t]he answer to your question is yes. Please continue your deliberations.@ The jury subsequently assessed appellant=s punishment at twenty-five years= imprisonment for aggravated sexual assault and twenty years= imprisonment for robbery. Appellant argues the trial judge=s response to the jury note was not necessary and resulted in prejudice.

In Haliburton v. State, the Court of Criminal Appeals held there was no harm and no abuse of discretion when the trial court submitted an instruction informing the jury that sentences would run concurrently. 578 S.W.2d 726, 728B29 (Tex. Crim. App. [Panel Op.] 1979). In McGowan v. State, the Court of Criminal Appeals held appellant demonstrated no harm when the trial court informed the jury the sentences would run concurrently because the sentences did in fact run concurrently. 664 S.W.2d 355, 358B59 (Tex. Crim. App. 1984). In holding there was no harm, the court stated

Our examination of the record does not reflect any harm to appellant that might be traced to the additional charge. The record before us shows only that the jury was concerned with concurrent sentencing and requested information from the court. There is no showing that the jury=s consideration of the information supplied by the court worked to the detriment of appellant. (footnote omitted).

Further, we are unable to presume harm in this situation. Knowledge that the sentence would run concurrently is a two-edged sword, the information could have been used to increase the punishment or, just as easily, used to reduce the number of years to avoid excessive punishment. We cannot determine from the record which path the jury took and, with these alternatives, harm will not be presumed. (footnote omitted).

McGowan, 664 S.W.2d at 359 (quoting Haliburton, 578 S.W.2d at 728).

As in Haliburton and McGowan, the charge in this case instructed the jury that sentences would run concurrently and this is precisely how appellant was sentenced. Detriment to appellant will not be presumed in the absence of any demonstrable harm. See McGowan, 644 S.W.2d at 359 (citing Haliburton, 578 S.W.2d at 728). Thus, appellant has not demonstrated any error warranting a reversal of the trial court=s judgment. See Tex. Code Crim. Proc. Ann. art. 36.19 (Vernon 1981). Accordingly, we overrule appellant=s second point of error.

We affirm the judgment of the trial court.

/s/ John S. Anderson

Justice

Judgment rendered and Opinion filed May 17, 2005.

Panel consists of Justices Anderson, Hudson, and Frost.

Do Not Publish C Tex. R. App. P. 47.2(b).

[1] The actual language included in appellant=s jury charge is in bold; the omitted 37.07, section 4 language is in italics.