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noting that "[t]here was no jury note regarding parole or good-conduct time" and holding, "[W]e cannot say Appellant suffered egregious harm from the erroneous parole law instruction."
Summary of this case from Gonzales v. StateOpinion
No. 10-17-00037-CR
09-13-2017
DANIEL PAUL HAMMONS, Appellant v. THE STATE OF TEXAS, Appellee
From the 443rd District Court Ellis County, Texas
Trial Court No. 40729CR
MEMORANDUM OPINION
The jury convicted Daniel Hammons of two counts of sexual assault of a child. The jury found the enhancement paragraph to be true and assessed punishment at 75 years confinement for each count and a $10,000 fine. The trial court ordered the sentences to run consecutively. We affirm.
Background Facts
D.R.'s parents were friends with Appellant and his wife. The families spent a lot of time together and went on vacations together. D.R. stated that Appellant made inappropriate comments to her about her body and that he began touching her in a way that made her uncomfortable. D.R. began babysitting for Appellant's children, and Appellant would be at the house for a time before he left for work. D.R. stated that Appellant took her into the children's bedroom and forced her to have sex with him. D.R. further testified that Appellant forced her to perform oral sex on him. D.R. was able to describe a tattoo Appellant had on his penis.
Jury Charge
In the first issue, Appellant argues that the trial court erred in charging the jury during the punishment phase of the trial. A claim of jury-charge error is reviewed using the procedure set out in Almanza. Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985); Riggs v. State, 482 S.W.3d 270, 274 (Tex.App.-Waco 2016, pet. ref'd). If error is found, we then analyze that error for harm. Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003).
If an error was properly preserved by objection, reversal will be necessary if there is some harm to the accused from the error. Almanza v. State, 686 S.W.2d at 171. Conversely, if error was not preserved at trial by a proper objection, a reversal will be granted only if the charge error causes egregious harm, meaning the appellant did not receive a fair and impartial trial. Id. Jury-charge error is egregiously harmful if it affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory. Stuhler v. State, 218 S.W.3d 706, 719 (Tex. Crim. App. 2007); Sanchez v. State, 209 S.W.3d 117, 121 (Tex. Crim. App. 2006).
For both preserved and unpreserved charging error, the actual degree of harm must be assayed in light of the entire jury charge, the state of the evidence, including 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. Patrick v. State, 906 S.W.2d 481, 492 (Tex. Crim. App. 1995); Arline v. State, 721 S.W.2d 348, 351 (Tex. Crim. App. 1986). To obtain a reversal for jury-charge error, an appellant must have suffered actual harm, not merely theoretical harm. Sanchez v. State, 376 S.W.3d 767, 775 (Tex. Crim. App. 2012); Arline v. State, 721 S.W.2d at 352.
Appellant specifically argues that the trial court erred in charging the jury pursuant to Article 37.07 § 4(a) of the Code of Criminal Procedure. The trial court charged the jury:
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 plus any good conduct time earned equals one-fourth of the sentence imposed or 15 years, whichever is less. Eligibility for parole does not guarantee that parole will be granted.Pursuant to Article 37.07 § 4(a) of the Code of Criminal Procedure, the jury should have been charged:
Under the law applicable in this case, if the defendant is sentenced to a term of imprisonment, the defendant 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 the defendant may earn. If the defendant is sentenced to a term of less than four years, the defendant must serve at least two years before the defendant is eligible for parole. Eligibility for parole does not guarantee that parole will be granted.TEX. CODE CRIM. PROC. ANN. art. 37.07 § 4(a) (West Supp. 2016).
Appellant did not object to the trial court's charge on article 37.07 § 4(a). Accordingly, we will conduct our review using the above-described standard of review for egregious harm. In Hooper v. State, 255 S.W.3d 262 (Tex.App.-Waco 2008, pet. ref'd), this Court addressed the issue of egregious harm in the context of an erroneous parole law instruction. Lopez v. State, 314 S.W.3d 70, 73-74 (Tex.App.-Waco 2010, no pet.). We identified four relevant factors including: (1) the presumption that the jury followed the court's instructions; (2) whether there was a jury note regarding parole or good-conduct time; (3) whether the State emphasized the possibility of parole in argument; and (4) the severity of the defendant's sentence. Hooper v. State, 255 S.W.3d at 271-72; Lopez v. State, 314 S.W.3d at 73-74.
The trial court instructed the jury:
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.There is nothing in the record to overcome the presumption that the jury followed the court's instructions not to consider the extent to which good time may be awarded or forfeited by Appellant and not to consider the manner in which the parole law may be applied to Appellant. There was no jury note regarding parole or good-conduct time. The State did not mention parole or good-conduct time in its closing argument. The jury assessed Lopez's punishment at seventy-five years which was not extreme considering the facts of the case. Accordingly, we cannot say Appellant suffered egregious harm from the erroneous parole law instruction. See Igo v. State, 210 S.W.3d 645, 647 (Tex. Crim. App. 2006); Lopez v. State, 314 S.W.3d at 73-74.
Disproportionate Sentence
In the second and third issues, Appellant argues that his sentence is grossly disproportionate to the crime in violation of his rights pursuant to the Eighth Amendment of the United States Constitution and Article I Section 13 of the Texas Constitution. In order to preserve for appellate review a complaint that a sentence is grossly disproportionate, constituting cruel and unusual punishment, a defendant must present to the trial court a timely request, objection, or motion stating the specific grounds for the ruling desired. See TEX. R. APP. P. 33.1(a)(1); Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996); Noland v. State, 264 S.W.3d 144, 151 (Tex. App.—Houston [1st Dist.] 2007, pet. ref'd).
Appellant did not assert his disproportionate sentence claim at the sentencing hearing, and he did not include his claim of a disproportionate sentence in a motion for new trial. Appellant did not preserve his complaint for appellate review. TEX. R. APP. P. 33.1(a)(1); Noland v. State, 264 S.W.3d at 152. Moreover, Appellant's sentence falls within the statutory range. Punishment imposed within the statutory range is generally not subject to challenge for excessiveness. See Dale v. State, 170 S.W.3d 797, 799 (Tex. App.—Fort Worth 2005, no pet.). We overrule the second and third issues on appeal.
Conclusion
We affirm the trial court's judgment.
AL SCOGGINS
Justice Before Chief Justice Gray, Justice Davis, and Justice Scoggins
Affirmed
Opinion delivered and filed September 13, 2017
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