Christopher Lynn Schlapia v. The State of Texas--Appeal from County Court of Navarro County

IN THE

TENTH COURT OF APPEALS

No. 10-96-173-CR

CHRISTOPHER LYNN SCHLAPIA,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the County Court

Navarro County, Texas

Trial Court # 42565

O P I N I O N

A jury convicted and assessed punishment against Christopher Lynn Schlapia for Driving While Intoxicated, first offense. Schlapia now appeals claiming that the trial court committed reversible error in submitting an erroneous charge. Also, Schlapia asserts that double jeopardy attached after the jury returned a verdict based on the erroneous charge and before the trial court submitted a corrected charge to the jury. Finally, Schlapia complains that the trial court erred in imposing additional conditions on his sentence beyond what the jury recommended. Because double jeopardy did not attach and the trial court did not commit error requiring reversal, we affirm.

After the jury found Schlapia guilty, the trial court presented the punishment charge to the State's attorney and Schlapia's defense counsel for review. Neither party made any objections to that charge. Thereafter, the trial court instructed the jury that punishment in this case ranged from confinement for "a period of not less than 72 hours or more than two years, and by a fine of not less than $100 nor more than $2,000." The jury then returned a verdict, which recommended 365 days in jail, probated, and a $1,000 fine. Before accepting this verdict, the trial court realized the recommended punishment exceeded the permissible range. After denying Schlapia's motion for mistrial, the trial court instructed the jury that the correct punishment for this offense ranged from "confinement in the Navarro County Jail for a period of not more than six months and by a fine of not more than $2,000." The jury then returned a verdict recommending 180 days in jail, probated, and a $500 fine.

In his first point, Schlapia contends that recharging the jury on the correct punishment range after accepting an erroneous verdict is double jeopardy. The broad premise underlying double jeopardy protection is that the State should not be able to subject an individual to embarrassment and anxiety by repeated attempts to convict. Ortiz v. State, 933 S.W.2d 102, 105 (Tex. Crim. App. 1996). Once jeopardy attaches, as it did in this case when the jury was empaneled and sworn, a defendant is entitled to have his or her case decided by that jury unless the defendant consents to a retrial. Matter of S.G., Jr., 935 S.W.2d 919, 924 (Tex. App. San Antonio 1996, pet. dism'd w.o.j.). But if the defendant does not consent, double jeopardy requires that his or her culpability be determined in a single proceeding before the jury first selected to try him or her, unless it becomes manifestly necessary to terminate the proceeding before a verdict is returned in order to assure fairness or efficiency in the trial process. Bauder v. State, 921 S.W.2d 696, 698 (Tex. Crim. App. 1996).

Contrary to Schlapia's contention, the record shows that the trial court did not accept the punishment verdict from the incorrect charge initially submitted. Before accepting the punishment assessed by the jury, the trial court realized that the punishment exceeded the appropriate range. After the court gave a corrected charge, the same jury, which was first empaneled and sworn, assessed Schlapia's punishment. The recharging of the jury to assess the correct punishment does not amount to double jeopardy. Although the jury had to return two punishment verdicts in this case, Schlapia never faced more than a single proceeding for this charge. Therefore, we overrule his first point.

Schlapia's second point claims that the trial court committed reversible error in submitting an erroneous charge beyond the range of punishment. When the defendant fails to object concerning error in the charge, the case will be reversed only if the defendant suffered egregious harm. Cartwright v. State, 833 S.W.2d 134, 136-37 (Tex. Crim. App. 1992); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984); Tamez v. State, 865 S.W.2d 518, 520 (Tex. App. Corpus Christi 1993, pet. ref'd). We search for actual, not just theoretical, harm to the defendant. Williams v. State, 851 S.W.2d 282, 287 (Tex. Crim. App. 1993). The actual degree of harm must be evaluated in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole. Id.; Almanza, 686 S.W.2d at 171.

In this case, the charge incorrectly instructed the jury on the maximum punishment that could be given Schlapia. Initially, the trial court instructed the jury that Schlapia could be imprisoned for up to two years. However, the correct maximum confinement Schlapia faced was six months. The maximum fine of $2,000 remained the same. After the trial court corrected the charge, the jury assessed punishment within the correct punishment range and lowered the imposed fine from $1,000 to $500. Based on the facts of this case, we cannot say that Schlapia suffered egregious actual harm. Thus, we overrule his second point.

Schlapia's third point complains the trial court erred by imposing a sentence that exceeded the one recommended by the jury. In addition to the jury's assessed punishment, the trial court added to Schlapia's sentence $202 in court costs, 20 days in the county jail, 90 days driver's license suspension, and an ignition interlock device installed on Schlapia's car. In examining the conditions of community supervision imposed on a defendant, we must determine whether the trial court abused its discretion. LeBlanc v. State, 908 S.W.2d 573, 574 (Tex. App. Fort Worth 1995, no pet.); Dellinger v. State, 872 S.W.2d 49, 51 (Tex. App. Fort Worth 1994, pet. ref'd). A condition of community supervision is invalid if it contains all of the following characteristics: (1) it has no relationship to the crime; (2) it relates to conduct that is not in itself criminal; and (3) it forbids or requires conduct that is not reasonably related to the future criminality of the defendant or does not serve the statutory ends of community supervision. LeBlanc, 908 S.W.2d at 574-75.

The trial court may impose any reasonable condition that is designed to protect or restore to the community, or punish, rehabilitate, or reform the defendant, including a condition that the defendant pay all court costs whether a fine is assessed or not. Tex. Code Crim. Proc. Ann. art. 42.12 11(a)(8) (Vernon Supp. 1997). The trial court may also order the defendant to submit to a period of confinement in the county jail as a condition of community supervision. Id. art. 42.12 12(a). Additionally, when the trial court places a defendant younger than 21 years of age on probation for driving while intoxicated, the court must order the suspension of the defendant's driver's license for 90 days and require as a condition of community supervision that the defendant not operate a vehicle unless it is equipped with a device such as the ignition interlock device. Id. art. 42.12 13(m). Schlapia was 19 years of age at the time of trial. We do not find that the trial court abused its discretion in imposing these conditions on Schlapia's community supervision. LeBlanc, 908 S.W.2d at 574-75. Therefore, we overrule Schlapia's third point.

We affirm the judgment.

REX D. DAVIS

Chief Justice

Before Chief Justice Davis,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed June 11, 1997.

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