Zarco, Andrew v. The State of Texas--Appeal from 339th District Court of Harris County

Affirmed and Majority and Concurring Opinion filed December 21, 2006

Affirmed and Majority and Concurring Opinion filed December 21, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-04-01125-CR

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ANDREW ZARCO, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 339th District Court

Harris County, Texas

Trial Court Cause No. 986138

C O N C U R R I N G O P I N I O N

I concur in the result, but because I respectfully disagree with the majority=s emphasis on A.C.=s credibility, I write separately to address the egregious harm analysis.

Egregious harm must be assayed Ain 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 v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). Thus, analysis of harm necessarily requires an in-depth, record-intensive review in which it is appropriate to consider the strength of the testimony. However, this court should not have independently determined that A.C.=s behavior was consistent with her claims. Instead, this court should have analyzed the effect of the instruction=s omission, and not only the evidence at issue. See Ellison v. State, 97 S.W.3d 698, 701 (Tex. App.CTexarkana 2003, no pet.). When no proper objection was made at trial, charge error does not require reversal unless it is so egregious that the defendant was denied a fair and impartial trial. Almanza, 686 S.W.2d at 171. Thus, we review the record as a whole to Ailluminate the actual, not just theoretical, harm to the accused.@ Id. at 174. Errors that result in egregious harm are those which affect Athe very basis of the case,@ deprive the defendant of a Avaluable right,@ or Avitally affect a defensive theory.@ Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996) (en banc) (quoting Almanza, 686 S.W.2d at 172).

I agree with the majority=s conclusion that the charge error did not result in egregious harm. First, the charge error did not affect Athe very basis of the case@ during the punishment phase of trial. This is a theoretical injury not supported by the record. During the punishment phase, the State introduced no new evidence, and suggested no specific punishment. The State did not emphasize extraneous offenses, but stated only the following:

Now, in assessing punishment, it=s your dutyCit=s within your judgment to decide what=s the best punishment for Andrew Zarco under these circumstances, under all the facts you=ve heard. And basically you=ve heard all of the facts of the case. There=s no additional evidence of prior convictions or felony cases, but what you can look to in deciding this is the facts of this particular case.

And just some things to think about. How many times it was done, how it was done, the types of things that were done to the victim. I mean, all of that you can take into consideration.

[emphasis added]. As the majority pointed out, the State spent most of its argument discussing the charge. Appellant does not dispute the sufficiency of the evidence to sustain his conviction, and the punishment assessed was at the low end of the statutory range of punishment. See Bolden v. State, 73 S.W.3d 428, 432 (Tex. App.CHouston [1st Dist.] 2002, pet. ref=d) (holding that egregious harm was not shown by the omission of a reasonable doubt instruction in the punishment phase where the evidence of the appellant=s guilt for the charged offense was not Adebatable@ and the punishment assessed was at the low end of the range of punishment). Thus, the extraneous offenses, while referenced somewhat ambiguously in a single sentence of the prosecution=s argument during the punishment phase, did not form Athe very basis@ of the case.[1]

The charge error also did not affect appellant=s valuable rights. Specifically, the appellant argues that the jury was more likely to impose imprisonment rather than probation as a result of the charge error. But A[t]he granting of community supervision is a privilege, not a right . . . .@ Speth v. State, 6 S.W.3d 530, 533 (Tex. Crim. App. 1999) (en banc) (emphasis in original); see also Flores v. State, 904 S.W.2d 129, 130 (Tex. Crim. App. 1995) (en banc) (stating Athere is no fundamental right to receive probation@); Kelly v. State, 483 S.W.2d 467, 469 (Tex. Crim. App. 1972) (AIt should be remembered that a defendant is not entitled to probation as a matter of right . . . .@). The jury was correctly instructed on the range of punishment it could consider, and I presume the jury followed this instruction. See Hutch, 922 S.W.2d at 171B72.

Additionally, the charge error did not Avitally affect a defensive theory.@ The defense argument that probation was appropriate was supported by the testimony of two witnesses who testified that if the appellant was given probation, they would help him successfully complete it. However, testimony that the appellant might receive assistance in completing probation is not necessarily evidence that probation is an adequate or appropriate punishment or deterrent in the case.[2] Here, Detective Silva testified that appellant claimed A.C., who was between six and eight years old at the time, Atrie[d] to be sexy,@ and wore skimpy clothing. If the jury construed these statements as an indication that appellant placed some blame on A.C. for appellant=s own conduct, such a belief could account for the jury=s failure to recommend community supervision even in the absence of extraneous offense evidence. See Pickett v. State, No. 05-98-01174-CR, 1999 WL 793397, at *1 (Tex. App.CDallas Oct. 6, 1999, no pet.) (not designated for publication) (affirming the revocation of a sex offender=s probation where the offender did not progress in a treatment program but instead Acontinued to minimize the offense and blame the victim@).

Although I would focus more on the effect of the error and less on A.C.=s credibility, I concur in the majority=s holding that the charge error does not require reversal. On this record and for the reasons discussed above, no egregious harm has been shown.

/s/ Eva M. Guzman

Justice

Judgment rendered and Majority and Concurring Opinions filed December 21, 2006.

Panel consists of Justices Fowler, Edelman, and Guzman. (Fowler, J., Majority).

PublishC Tex. R. App. P. 47.2(b).

[1] To the extent that extraneous offenses form a part of the guilt/innocence phase of trial, the offenses were considered only in connection with a proper instruction. Although the statement in the punishment phase can be construed as a request that the jury consider all allegations of extraneous offenses as well as the charged offense, it can also be interpreted as suggesting that the jury consider only acts that actually Awere done,@and were not merely unproven allegations.

[2] It is also noteworthy that one of these witnesses was appellant=s mother, who testified in the guilt/innocence phase of trial that the abuse could not have occurred in the small house as alleged because she kept her bedroom door open and would have overheard it. Nevertheless, the jury found that the appellant did commit the charged offense. The jury may have decided that appellant=s mother was not credible, or may have found that she was simply unaware of the abuse occurring in her own home. Either conclusion could lead the jury to conclude that appellant would not have his mother=s support and supervision in completing probation.