Brenda Fuqua Daniell v. The State of Texas--Appeal from 66th District Court of Hill County

AFFIRMED 29 NOVEMBER 1990

NO. 10-90-012-CR

Trial Court

# 29,256

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

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BRENDA FUQUA DANIELL,

Appellant

v.

THE STATE OF TEXAS,

Appellee

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From 66th Judicial District Court

Hill County, Texas

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O P I N I O N

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This is an appeal by defendant Daniell from her conviction for delivery of marihuana of less than 4 ounces but more than one-fourth ounce for which she was assessed 2 years in the Texas Department of Corrections and a $2,000 fine.

Defendant delivered to Deputy Brookhart a .95 ounce of marihuana at her father's house near Malone on May 18, 1989. Brookhart then paid her father $90. Deputy Brookhart was working at the time "under cover". As noted, defendant was convicted and assessed 2 years in TDC and a $2,000 fine.

Defendant appeals on 1 point: The trial court erred when it instructed the jury during deliberations on punishment that, "I know of no local correctional facilities available in Hill County but there may be such facilities available in nearby counties".

Defendant was found guilty by the jury at the conclusion of the guilt-innocence phase of the trial.

The trial court charged the jury on punishment phase: "The punishment authorized for this offense is confinement in the Texas Department of Corrections for any term not less than 2 years nor more than 10 years or confinement in a community correctional facility for any term of not more than 1 year. In addition to imprisonment, "[you] may assess a fine not to exceed $10,000."

The trial court further instructed the jury that they could recommend probation if the punishment was assessed at imprisonment of not more than 10 years.

While the jury was deliberating on punishment they sent the trial court a written note, "Please advise us concerning which local correctional facilities are available. We need to have more information". Over defense counsel's objection the court instructed the jury, "I know of no local correctional facilities in Hill County, but there may be such facilities available in nearby counties". Defense counsel objected to this answer and suggested a substitute reply, "During your deliberations, you are not to consider or discuss in which particular facility this defendant may be required to serve any confinement you may assess at a local correctional facility", which suggested substitute reply the court rejected.

The jury then deliberated further and sent another note inquiring whether the jury would be allowed to make a statement concerning the reasons behind the sentence. The court then responded, "you may do so orally in open court".

The jury thereafter returned its verdict of 2 years in TDC and a $2,000 fine. The jury was polled and then made the following statement: "We would like the defendant to understand our reason for imposing this sentence. Not only do we feel it necessary to take a firm stand against illegal drugs but we believe this penalty will give her the opportunity to develop skills that will improve the quality of her life".

Defendant asserts the trial court's reply to the jury's question concerning local correctional facilities was an introduction of testimony after the conclusion of argument and was calculated to discourage the jurors to assess confinement in a community correctional facility rather than confinement in TDC; thus denying defendant a fair and impartial trial.

The determination as to whether or not additional instructions are to be given rests largely in the discretion of the court. 23 Tex.Jur.3d, Sec. 2764.

In Halliburton v. State, Ct.Crim.Appls, 578 S.W.2d 726, the jury sent the court a note asking whether 2 sentences would run concurrently. The court responded "Yes" after explaining if an accused is found guilty of more than one offense arising out of the same episode. The Court of Criminal Appeals found there was no showing that the jury's consideration of the information supplied by the court worked to the detriment of the defendant; and held that they would not presume harm. The court stated, "the policy of the law should require juries to make informed and intelligent decisions based on every piece of information legally available".

And Watson v. State, CA (Houston 14), 728 S.W.2d 109, holds the record must demonstrate harm before error, if any, is reversible. To the same effect is McGowan v. State, Ct.Crim.Appls, 664 S.W.2d 355.

Not only is no harm shown by the record in the trial court's additional instruction, "I know of no local correctional facilities available in Hill County, but there may be such facilities available in nearby counties", but in light of the jury's explanation as to why they returned the sentence that they did, it is demonstrated that no harm was done by the court's instruction.

Defendant's point is overruled.

AFFIRMED

FRANK G. McDONALD

DO NOT PUBLISH Chief Justice (Retired)

[Participating: Chief Justice Thomas, Justice James (Retired) and Chief Justice McDonald (Retired)]