Juan Carlos Jasso v. The State of Texas--Appeal from 124th District Court of Gregg County

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-06-00021-CR
______________________________
JUAN JASSO, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 124th Judicial District Court
Gregg County, Texas
Trial Court No. 33283-B
Before Morriss, C.J., Ross and Carter, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION

While fleeing the White Oak, Texas, police, Juan Jasso fired multiple shots at his pursuers from a handgun. After being apprehended, Jasso pled guilty to the offense of aggravated assault on a public servant, and the issue of his punishment was submitted to a jury. In the process, Jasso signed a stipulation of evidence, which was admitted into evidence without objection, wherein Jasso admitted he used or exhibited a deadly weapon (a firearm) during the commission of that crime. The jury assessed punishment at eighty years' imprisonment. Jasso now appeals, raising three points of error. We overrule each issue and affirm the trial court's judgment.

In his first issue, Jasso contends the trial court committed error by instructing the jury regarding parole using language that failed to track the statutory instruction. "The function of the jury charge is to instruct the jury on applying the law to the facts." Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994). "[A]n erroneous or an incomplete jury charge jeopardizes a defendant's right to jury trial because it fails to properly guide the jury in its fact-finding function." Id. "An erroneous or incomplete jury charge, however, does not result in automatic reversal of a conviction." Id. Instead, Article 36.19 of the Texas Code of Criminal Procedure outlines the path this Court should follow to review error in the charge: "[F]irst, the court must determine whether error actually exists in the charge, and second, the court must determine whether sufficient harm resulted from the error to require reversal." Abdnor, 871 S.W.2d at 731-32 (discussing Tex. Code Crim. Proc. Ann. art. 36.19 (Vernon 1981), and referencing Gibson v. State, 726 S.W.2d 129, 132 (Tex. Crim. App. 1987); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh'g)). The subsequent evaluation of whether "sufficient harm" shall be found to require reversal "depends upon whether appellant objected." Abdnor, 871 S.W.2d at 732. "Where there has been a timely objection made at trial, an appellate court will search only for 'some harm.'" Id. "By contrast, where the error is urged for the first time on appeal, a reviewing court will search for 'egregious harm.'" Id. (citing Arline v. State, 721 S.W.2d 348, 351 (Tex. Crim. App. 1986); Almanza, 686 S.W.2d at 171). "Egregious harm consists of errors affecting the very basis of the case or that deprive the defendant of a valuable right, vitally affect a defensive theory, or make the case for conviction or punishment clearly and significantly more persuasive." Blumenstetter v. State, 135 S.W.3d 234, 240 (Tex. App.--Texarkana 2004, no pet.). The degree of harm demonstrated by the appellant must be actual, not merely theoretical. Almanza, 686 S.W.2d at 174; Taylor v. State, 146 S.W.3d 801, 804 (Tex. App.--Texarkana 2004, pet. ref'd).

For cases involving what are called "3g offenses," (1) a list which includes crimes during the commission of which a firearm is used or exhibited, a trial court is required to issue the following instructions to the jury during the punishment phase of the trial:

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 the 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.

 

Tex. Code Crim. Proc. Ann. art. 37.07, 4(a) (Vernon 2006) (emphasis added). In this case, of the five above-quoted paragraphs from the statute, the trial court's instruction relocated the third paragraph into the fifth position and omitted from that paragraph the language which is italicized above. Because the charge given does not match the required charge exactly, the jury charge contains error. On appeal, Jasso complains only regarding the omission of the phrase "or 30 years, whichever is less."

Jasso did not object to this oversight when given the opportunity by the trial court. He is, therefore, required to show egregious harm under Almanza. Jasso's brief on appeal does not point us to any location in the record demonstrating actual harm, as is required by Almanza. Instead, Jasso argues that he suffered egregious harm because the State argued vigorously for a life sentence and because the jury sent out notes to the trial court asking whether Jasso would become eligible for parole if given a life sentence.

After reviewing the record, we conclude that neither the State's argument nor the jury's questions affirmatively demonstrate Jasso suffered egregious harm as a result of the incomplete parole instruction. At best, Jasso's argument concerns theoretical harm; but Almanza clearly states the harm must be actual and must be evidenced in the record--a conjectural or theoretical impact is insufficient. The trial court also specifically instructed the jury, both orally and in writing, that the jury should not consider how parole might affect the actual term of Jasso's confinement, if any. Jasso has directed our attention to nothing in the record that affirmatively shows this error vitally affected his defensive theory or made the case for punishment more significant. In light of the entire record, we conclude that the omission of the thirty-year alternative language concerning when Jasso might be eligible for parole did not vitally affect any defensive theory nor make the case for punishment more significant. Therefore, any harm Jasso suffered from this omission was not egregious. (2) We overrule Jasso's first point of error. (3)

In his second point of error, Jasso contends the trial court erroneously instructed the jury regarding the affirmative findings that Jasso used or exhibited a deadly weapon during the commission of his crime. The trial court's jury charge contained the instruction that Jasso would not become eligible for parole until he had served half his sentence. This is the proper instruction to be given in 3g (deadly weapon) cases when accompanied by the additional "or 30 years, whichever is less" language (which was omitted in this case). Jasso contends, however, that this instruction was erroneous because the jury had not yet made an affirmative finding that he used or exhibited a deadly weapon.

It is true that the jury had not yet been asked to make an affirmative finding regarding the deadly weapon allegation by the time the trial court gave the (incomplete) 3g parole instruction. See Tex. Code Crim. Proc. Ann. art. 37.07, 4. Instead, the trial court submitted both the deadly weapon issue and the verdict form regarding punishment within the same set of instructions. Jasso also correctly notes that the trial court's jury charge did not include an alternative parole instruction for non-3g offenses, which might have been appropriate had the jury been entitled to find against the State's claim that Jasso used or exhibited a deadly weapon in this case. See Tex. Code Crim. Proc. Ann. art. 37.07, 4(b). Jasso asserts that the lack of these alternative, non-3g parole instructions necessarily caused egregious harm because it failed to inform the jury about the consequences of the deadly weapon finding.

Jasso's argument assumes that the lack of an alternative instruction was erroneous. We conclude it was not, and reach this decision because Jasso had already affirmatively admitted (several times) that he used a firearm during his crime. The indictment against Jasso included a deadly weapon allegation. The State read the indictment in the jury's presence, including the deadly weapon allegation, and Jasso affirmatively admitted the entirety of the indictment's allegations. The record reflects that the trial court then accepted Jasso's guilty plea. The trial court also admitted into evidence, without objection from Jasso, the latter's written confession, a document in which Jasso admitted he used or exhibited a deadly weapon during his crime.

In McIntosh v. State, the appellant argued that the trial court erred by not submitting a special issue to the jury during punishment on whether he used or exhibited a deadly weapon during the commission of his crime. 855 S.W.2d 753, 770-71 (Tex. App.--Dallas 1993, pet. ref'd). The Fifth Court of Appeals disagreed. Our sister court held that, once the jury found McIntosh guilty of murder "as charged in the indictment," it was unnecessary for the trial court to submit the deadly weapon issue to the jury. Id. at 771. The court further stated, "Any harm failing to condition the special issue . . . was not so egregious as to deny McIntosh a fair trial." Id. (referencing Luken v. State, 780 S.W.2d 264, 268-69 (Tex. Crim. App. 1989)).

The reasoning in McIntosh applies with equal force here: Once Jasso entered his guilty plea to the totality of the indictment, the submission of a deadly weapon instruction became superfluous. Jasso's plea to both the criminal offense and the indictment's deadly weapon allegation had been accepted by the trial court. As no deadly weapon instruction and separate finding was even required to be submitted to the jury, it follows that an alternative parole instruction under Section 4(b) of Article 37.07 was not required. Cf. id. No error has been shown. We overrule Jasso's second point of error.

In his third point of error, Jasso contends the trial court erred "in asking the jury to find whether or not the Appellant used or exhibited a deadly weapon without requiring the State to prove this fact beyond a reasonable doubt." The jury found Jasso guilty as charged in the indictment based on his plea of guilty to the entirety of the indictment's allegations. The indictment included language regarding Jasso's use of a deadly weapon, specifically a firearm, during the commission of his crime. Jasso's written stipulation, admitted into evidence without objection, also includes a confession that Jasso used or exhibited a deadly weapon during his crime.

As stated above, once Jasso pled guilty to the entirety of the indictment's allegations, the trial court's act of requiring the jury to make an affirmative deadly weapon finding became superfluous. That empowered the trial court to enter such a finding on its own without submitting the issue to the jury, just as the court was empowered to make a formal finding of guilt based on Jasso's guilty plea. Cf. McIntosh, 855 S.W.2d at 771; and see Hill v. State, 913 S.W.2d 581, 586 (Tex. Crim. App. 1996) (deadly weapon issue should be submitted during guilt/innocence); Blackwell v. State, 818 S.W.2d 134, 140 (Tex. App.--Waco 1991, pet. ref'd) (fact-finder effectively made deadly weapon finding when it found appellant guilty as charged in indictment). No reversible error has been shown.

Alternatively, Jasso failed to object to this alleged error in the trial court's charge. Absent an objection at trial, Jasso must demonstrate he suffered egregious harm on appeal. Almanza, 686 S.W.2d at 171. Jasso's brief on appeal makes no effort to demonstrate the asserted error had an actual, rather than merely theoretical, effect on his substantial rights. Accordingly, Jasso has inadequately briefed this issue and it is thereby waived.

For the reasons stated, we overrule Jasso's three points of error and affirm the trial court's judgment.

 

Josh R. Morriss, III

Chief Justice

 

Date Submitted: November 15, 2006

Date Decided: November 16, 2006

 

Do Not Publish

1. See Tex. Code Crim. Proc. Ann. art. 42.12, 3g(a)(2) (Vernon Supp. 2006).

2. Accord Vanschoyck v. State, 189 S.W.3d 333, 336-39 (Tex. App.--Texarkana 2006, pet. ref'd) (absence of parole instruction did not cause egregious harm; Legislature's purpose in requiring parole instruction was to increase sentences, not lessen them in defendant's favor); Newman v. State, 49 S.W.3d 577, 580-82 (Tex. App.--Beaumont 2001, pet. ref'd) (erroneous parole instruction did not cause egregious harm); Shavers v. State, 985 S.W.2d 284, 290-92 (Tex. App.--Beaumont 1999, pet. ref'd) (based on entire jury charge, certain mitigating instructions, state of evidence, and argument of counsel, erroneous parole instruction did not cause egregious harm); Ray v. State, 764 S.W.2d 406, 413-14 (Tex. App.--Houston [14th Dist.] 1988, pet. ref'd) (jury received curative instruction not to consider how parole might be applied to length of actual sentence served; egregious harm not shown); Herring v. State, 738 S.W.2d 18, 20 (Tex. App.--Austin 1987, pet. ref'd, untimely filed) (erroneous parole instruction was favorable to defendant in leading jury to believe he would not become eligible for parole until after he had served larger portion of sentence than in fact was case).

3. Recently, we decided a case in which both the jury charge and a response to a jury note were erroneous as to parole. See Villarreal v. State, No. 06-05-00212-CR, 2006 Tex. App. LEXIS 8945 (Tex. App.--Texarkana Oct. 17, 2006, no pet. h.). We held in Villarreal that the complete omission of parole instructions in the jury charge was not egregiously harmful, but that the incorrect response to the jury note, given without following the prescribed procedure for responding to jury notes, see Tex. Code Crim. Proc. Ann. art. 36.27 (Vernon 2006), and in light of a life sentence assessed after a forceful jury argument for such a sentence, constituted egregious harm. Villarreal is distinguishable from the case before us in that: (A) here, the only complained-of omission is the language concerning the thirty-year maximum sentence to be served before parole eligibility, while, in Villarreal, the challenge on appeal was both to the complete failure to give a parole instruction and to the incorrect answer to the jury note; and (B) here, the jury was also instructed not to consider how parole law may be applied to Jasso, while, in Villarreal, there was no such instruction. See Villarreal, 2006 Tex. App. LEXIS 8945, at *15-18.