Lee Yates, Sr. v. The State of Texas--Appeal from 81st Judicial District Court of Wilson County

MEMORANDUM OPINION

No. 04-01-00588-CR

Lee YATES, Sr.,
Appellant
v.
The STATE of Texas,
Appellee
From the 81st Judicial District Court, Wilson County, Texas
Trial Court No. 01-03-045-CRW
Honorable Stella Saxon, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Catherine Stone, Justice

Paul W. Green, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: January 8, 2003

AFFIRMED

Lee Yates, Sr. ("Yates") was convicted of manslaughter and sentenced by a jury to twenty years confinement. On appeal, Yates contends: (1) the trial court was not authorized to enter a deadly weapon finding; (2) the trial court abused its discretion in denying Yates's motion for new trial; and (3) the jury charge contained an erroneous definition and did not include the mandatory instruction on parole law. We modify the trial court's judgment to delete the deadly weapon finding and affirm the trial court's judgment as modified.

Background

The victim and Yates's wife worked together. The victim gave Yates's wife a ride home from work around 2:00 a.m. Evidence was introduced to show that the victim and Yates's wife were having an affair. Yates shot the victim through the windshield as the victim sat in his truck. Yates contended that he shot the victim in self-defense as the victim was reaching under his seat for a weapon.

Deadly Weapon Finding

In his first point of error, Yates contends that the trial court was not authorized to enter a deadly weapon finding in the judgment. Since Polk v. State, 693 S.W.2d 391, 393 (Tex. Crim. App. 1985), "it has been very well-settled that in a jury trial, a trial court is authorized to enter a deadly weapon affirmative finding in three situations: where the jury has 1) found guilt as alleged in the indictment and the deadly weapon has been specifically plead as such using 'deadly weapon' nomenclature in the indictment; 2) found guilt as alleged in the indictment but, though not specifically plead as a deadly weapon, the weapon plead is per se a deadly weapon; or 3) affirmatively answered a special issue on deadly weapon use." Davis v. State, 897 S.W.2d 791, 793 (Tex. Crim. App. 1995). In this case, the jury found Yates guilty of the offense of manslaughter; however, "the verdict made no reference to a deadly weapon nor did it refer back to the indictment." Id. Under these circumstances, the trial court was not authorized to include a deadly weapon finding in the judgment. See id.; see also Pickens v. State, 921 S.W.2d 774, 777 (Tex. App.--El Paso 1996, no pet.). Accordingly, we sustain Yates's first point of error, and "we order the affirmative finding stricken from the judgment and reform the judgment by deleting the improper finding." Davis, 897 S.W.2d at 794.

Motion for New Trial

In his second point of error, Yates contends that the trial court abused its discretion in denying his motion for new trial. Yates filed a motion for new trial alleging juror misconduct on the basis that one of the jurors misstated the parole law during deliberations. Yates attached an affidavit of another juror to his motion for new trial stating that the jury was told that Yates would be required to serve one-third of his sentence. The juror further stated that if she had known Yates would be required to serve one-half of his sentence before being eligible for parole, she would not have agreed to assess a twenty-year sentence.

We review the trial court's denial of Yates's motion for new trial under an abuse of discretion standard. Salazar v. State, 38 S.W.3d 141, 148 (Tex. Crim. App. 2001). Rule 606(b) of the Texas Rules of Evidence only permits jurors to testify about outside influences and to rebut a claim of disqualification. Tex. R. Evid. 606(b); In re S.P., 9 S.W.3d 304, 308 (Tex. App.--San Antonio 1999, no pet.). Information gathered by a juror and introduced to the jury is not an outside influence. In re S.P., 9 S.W.3d at 309. "An outside influence must emanate from outside the jury and its deliberations, such as a non-juror introducing information to the jury." Id. Accordingly, Rule 606(b) precluded the trial court from considering the affidavit attached to Yates's motion for new trial, and the trial court did not abuse its discretion in denying Yates's motion for new trial. See Tex. R. Evid. 606(b) (precluding admission of juror's affidavit regarding deliberations into evidence).

Yates contends that the Texas Court of Criminal Appeals has not yet determined whether Rule 606(b) as it was amended in 1998 precludes a trial court from finding a jury's discussion of parole law to be reversible error under the precedent of Sneed v. State, 670 S.W.2d 262 (Tex. Crim. App. 1984). However, in Salazar, the Texas Court of Criminal Appeals only addressed the merits of a motion for new trial claiming that jurors had improperly discussed parole law after it noted that "both parties withdrew their 606(b) objections, leaving the testimony and affidavits of the jurors available for our consideration in determining whether reversible error occurred." 38 S.W.3d at 147. This indicates that the court would not have considered the testimony and affidavits if the objection had not been withdrawn. Yates's second point of error is overruled.

Jury Charge

Yates's third and fourth points of error contend that the jury charge was erroneous because it: (1) erroneously defined the culpable mental state for manslaughter; and (2) failed to include the mandatory instruction regarding parole law. Yates conceded that no objection was made to the charge on either of these bases.

Culpable Mental State

The following three "conduct elements" can be involved in any given offense: (1) the nature of the conduct; (2) the result of the conduct; and (3) the circumstances surrounding the conduct. McQueen v. State, 781 S.W.2d 600, 603 (Tex. Crim. App. 1989). The "conduct element" of the offense is the element to which the culpable mental state must apply. Cook v. State, 884 S.W.2d 485, 487 (Tex. Crim. App. 1994). When a defendant is charged with a "result of the conduct" offense, he is entitled to have the abstract definitions of the culpable mental states limited to the result only language. Barcenes v. State, 940 S.W.2d 739, 743 (Tex. App.--San Antonio 1997, pet. ref'd).

The definitional portion of the jury charge in the instant case tracked the language of section 6.03(c) of the Texas Penal Code, defining "recklessly" or "reckless" as follows:

A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances to be viewed from the defendant's standpoint.

Tex. Pen. Code Ann. 6.03(c) (Vernon 1994). All homicides, including manslaughter, are "result of the conduct" offenses. See Graham v. State, 657 S.W.2d 99, 101 (Tex. Crim. App. 1983). Accordingly, the trial court erred in not limiting the definition of reckless to the result of Yates's conduct. See Barcenes, 940 S.W.2d at 743-44. Because Yates failed to object to the jury charge, the error only requires reversal if it results in egregious harm or is so harmful that Yates was denied a fair and impartial trial. Patrick v. State, 906 S.W.2d 481, 492 (Tex. Crim. App. 1995).

"In assessing harm from the inclusion of improper elements in the definitions of culpable mental states, we 'may consider the degree, if any, to which the culpable mental states were limited by the application portions of the jury charge.'" Barcenes, 940 S.W.2d at 744 (quoting Hughes v. State, 897 S.W.2d 285, 296 (Tex. Crim. App. 1994)). Although the definition in the instant charge included alternative conduct elements, the application paragraph specified that Yates had to have recklessly caused the victim's death. "Thus the facts, as applied to the law in the application paragraph, pointed the jury to the proper result oriented culpable mental state portion of the definition[]." Barcenes, 940 S.W.2d at 744. Consequently, the error in failing to limit the definition did not result in egregious harm. Yates's third point of error is overruled.

Parole Law Instruction

The trial court erred in failing to include in the jury charge a parole law instruction as required by article 37.03 , section 4 of the Texas Code of Criminal Procedure. See Luquis v. State, 72 S.W.3d 355, 363 (Tex. Crim. App. 2002). Because Yates failed to object, however, he must show that the absence of the instruction resulted in egregious harm. Patrick v. State, 906 S.W.2d at 492. During the course of its deliberations, the jury sent the following note:

(1) What are the terms of paroll [sic]?

(2) How much time must be served before being eligible for paroll [sic]?

The trial court responded in writing as follows:

Ladies and Gentlemen of the Jury:

During your deliberations, you are not consider or discuss the Indeterminate Sentence Law or the possible actions of the Board of Pardons and Paroles, or how long the defendant will be required to serve the punishment which you assess.

Because Rule 606(b) prevents us from inquiring into a jury's deliberations, a finding of harm in view of the instruction given by the trial court in response to the jury's note would be "mere speculation." Williams v. State, 975 S.W.2d 375, 378 (Tex. App.--Waco 1998, pet. ref'd); Myres v. State, 866 S.W.2d 673, 674 (Tex. App.--Houston [1st Dist.] 1993, pet. ref'd). Furthermore, we must presume that the jury followed the court's instructions and did not consider parole. Williams, 975 S.W.2d at 378; Myres, 866 S.W.2d at 674. Although Yates seeks to rely on the affidavit attached to his motion for new trial as evidence that the jury considered the parole law, we have already explained why this court cannot consider that affidavit as evidence. Yates's fourth point of error is overruled.

Conclusion

The trial court's judgment is modified to delete the deadly weapon finding. As modified, the trial court's judgment is affirmed.

Catherine Stone, Justice

DO NOT PUBLISH