Jose Concepcion Garcia v. The State of Texas--Appeal from 402nd District Court of Wood County

NOS. 12-07-00207-CR

12-07-00208-CR

12-07-00209-CR

12-07-00210-CR

12-07-00211-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

JOSE CONCEPCION GARCIA, APPEAL FROM THE 402ND

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE WOOD COUNTY, TEXAS

MEMORANDUM OPINION

Jose Concepcion Garcia appeals his conviction for four counts of aggravated sexual assault of a child and one count of indecency with a child. In his sole issue, Appellant argues that the trial court reversibly erred by failing to include in the jury charge a parole instruction required by article 37.07 of the Texas Code of Criminal Procedure. We affirm.

Background

Appellant was charged by indictment with four counts of aggravated sexual assault of a child and one count of indecency with a child. The victims were three prepubescent brothers, all grandchildren of Appellant. The charges related to five instances of sexual misconduct perpetrated upon the children by Appellant. One child testified that he remembered Appellant molesting him when he was only five years old.

Appellant pleaded not guilty and was tried before a jury. The jury found Appellant guilty on all five counts. The jury assessed punishment at life imprisonment for each of the aggravated sexual assault counts and twenty years of imprisonment for the indecency count. This appeal followed.

Parole Instruction

Appellant claims that the trial court erred by failing to include in the jury charge a parole instruction required by article 37.07 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 37.07 (Vernon Supp. 2007).1 Section 4 of article 37.07 sets forth the circumstances under which a parole instruction is required. Id. 4. The instruction in question would have informed the jury of the formula used by the State to calculate when a person is eligible to be considered for parole. Id. For purposes of our analysis, we have assumed that such an instruction was required.

Article 36.19 of the Texas Code of Criminal Procedure governs the appeal of charge errors. Tex. Code Crim. Proc. Ann. art. 36.19 (Vernon 2006). Article 36.19 reads as follows:

Whenever it appears by the record in any criminal action upon appeal that any requirement of Articles 36.14, 36.15, 36.16, 36.17 and 36.18 has been disregarded, the judgment shall not be reversed unless . . . it appears from the record that the defendant has not had a fair and impartial trial.

 Id. A trial court s disregard of a statutory provision referenced in article 36.19 is an omission that does not require a timely objection or request. Huizar v. State, 12 S.W.3d 479, 483 (Tex. Crim. App. 2000). Should such an error occur, we reverse only if the error is so egregious and created such harm that the defendant has not had a fair and impartial trial (the egregious harm standard of review). See Posey v. State, 966 S.W.2d 57, 61 n.9 (Tex. Crim. App. 1998); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). We evaluate the issue of harm 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. Almanza, 686 S.W.2d at 171.

Appellant affirmatively stated at trial that he had no objection to the charge as given to the jury. Therefore, Appellant failed to preserve error, if any. See Ly v. State, 943 S.W.2d 218, 221 (Tex. App. Houston [1st Dist.] 1997, pet. ref d) ( [A] defendant who affirmatively states no objection to a jury charge at trial may not challenge on appeal any error in that jury charge. ); see Tex. Code Crim. Proc. Ann. arts. 36.14 (Vernon 2007); 36.15 (Vernon 2006). As noted by the First District Court of Appeals, [a]n appellant should not be allowed to affirmatively approve a jury charge, perhaps for sound strategic reasons, and then attack the charge on appeal. Ly, 943 S.W.2d at 221.

Pursuant to article 36.14, the trial court was required to deliver a charge setting forth the law applicable to the case. See Tex. Code Crim. Proc. Ann. art. 36.14. Article 36.14 is one of the statutory provisions referenced in article 36.19. Tex. Code Crim. Proc. Ann. art. 36.19. As such, if a parole instruction is part of the law applicable to the case, its omission is reviewable, despite a lack of preservation, pursuant to article 36.19. See Huizar, 12 S.W.3d at 483.

Article 37.07, section 4 instructs the jury on the mechanics of parole law, and any instruction set forth in that section is a mandatory jury instruction when a defendant is tried for a criminal offense listed therein. See Byrd v. State, 192 S.W.3d 69, 71 (Tex. App. Houston [14th Dist.] 2006, pet. ref d) ( Article 37.07, Section 4 instructs the jury on the mechanics of parole law and is a mandatory jury instruction. ). Therefore, an article 37.07 parole instruction, where required, is law applicable to the case. See Roberts v. State, 849 S.W.2d 407, 409 (Tex. App. Fort Worth 1993, pet. ref d) (holding that an article 37.07 parole instruction was law applicable to the case under article 36.14). We have assumed, without deciding, that a parole instruction was required by article 37.07 in this case. As such, we shall review the trial court s alleged error for egregious harm. See Posey, 966 S.W.2d at 61 n.9; Almanza, 686 S.W.2d at 171.

The Fort Worth court of appeals addressed a similar issue of egregious harm in Roberts v. State. See Roberts, 849 S.W.2d 407, 409-10. In Roberts, the court noted that [t]he purpose of this review is to illuminate the actual, not just theoretical, harm to the accused. Id. at 410. The court reasoned that

[p]arole instructions were designed to increase jury sentences. . . . The instructions inform the jury how good conduct time combines with actual time served to determine parole eligibility. . . . The State, not the appellant, benefits from the instructions. . . . Thus, it is hard to see how not giving a charge meant to increase the length of a sentence harms Roberts.

Id.

Here, Appellant cites no evidence in the record that the jury considered the issue of parole in determining Appellant s punishment. Instead, the sole basis of Appellant s harm argument is as follows:

In . . . Appellant s case[,] the evidence consisted of the outcry witness who testified that [a child] told him that . . . Appellant had fondled [the child s] and [another child s] genitals. . . . [These two children merely] testified that . . . Appellant [ ]did nasty things[ ] to them. . . . The only testimony that is sufficient to sustain the convictions came from [a third child]. [The child] testified that . . . Appellant had fondled [the child s] genitals and performed oral sex on all three of [the children.] . . . The record does not reveal the age of . . . Appellant; however, since he was the victim[s ] grandfather, one can presume he is middle-aged. Yet, in spite of this weak evidence, the jury assessed the maximum sentences on all counts against a middle aged individual. Appellant submits this is evidence of egregious harm.

Again, parole instructions were designed to increase jury sentences. Id. Also, the assessed punishment in question, without more, does not indicate whether the jury considered parole. It simply shows that the jury assessed the maximum punishments. Absent any meaningful citation to the record regarding this issue, we will not engage in raw speculation regarding the conduct of the jurors. See Byrd, 192 S.W.3d at 72. We hold that Appellant s egregious harm argument is not sufficient to warrant a determination that egregious harm occurred.2 See Almanza, 686 S.W.2d at 171.

As an alternative argument, Appellant asserts that we should apply a different standard of review, alleging that Appellant had a constitutional right to a parole instruction. However, all charge error that has not been preserved is, where reviewable, governed by the egregious harm standard. See Posey, 966 S.W.2d at 60 (discussing the Almanza framework for reviewing charge error). We overrule Appellant s sole issue. See Roberts, 849 S.W.2d at 410.

Disposition

We affirm the judgment of the trial court.

BRIAN HOYLE

Justice

Opinion delivered February 29, 2008.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)

1 Because it is unnecessary to do otherwise, we have cited to only the most current version of the statute in this opinion.

2 Neither the State nor Appellant has the burden to prove or disprove harm from charge error. Ovalle v. State, 13 S.W.3d 774, 787 (Tex. Crim. App. 2000). Instead, it is our duty to assess harm from the context of the error. Id. However, the party making the argument still must suggest, in light of the record, how prejudice may or may not have occurred and provide us with a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record. Tex. R. App. P. 38.1(h); Ovalle, 13 S.W.3d at 787.