Opinion
NO. 01-17-00570-CR
04-05-2018
RYAN DEAN JOHNSON, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 40th District Court Ellis County, Texas
Trial Court Case No. 41491CR
Pursuant to its docket equalization authority, the Supreme Court of Texas transferred this appeal to this Court. See Misc. Docket No. 17-9066 (Tex. June 20, 2017); see also TEX. GOV'T CODE ANN. § 73.001 (Vernon 2013) (authorizing transfer of cases).
MEMORANDUM OPINION
A jury found appellant, Ryan Dean Johnson, guilty of the felony offense of evading arrest, or detention, in a motor vehicle. After finding true the allegation in an enhancement paragraph that he had previously been convicted of a felony offense, the jury assessed his punishment at confinement for ten years. In his sole issue, appellant contends that the trial court erred in instructing the jury during the punishment phase of trial.
See TEX. PENAL CODE ANN. § 38.04(a), (b)(2) (Vernon 2017).
We affirm.
Background
Sarah Stephenson testified that on August 13, 2016, her husband and daughter went fishing at a pond near Auger Road, a narrow dirt road in Ellis County, Texas. Her husband then called Stephenson to tell her that a car was "out there" "in the middle of nowhere" and he was scared to walk passed it with their daughter. Stephenson told her husband to call for emergency assistance, and she drove out to Auger Road. When Stephenson arrived, she saw a brown car "just sitting there," but she could not see anyone inside it. Stephenson stayed in her car and waited for law enforcement officers to arrive. Upon their arrival, two officers approached Stephenson's car, and she told them that she did not know who was in the brown car. One of the officers then approached the brown car, made a motion for the driver to roll down the window, and shook his head. The officer then "pulled his gun out," and the car "took off."
Midlothian Police Department ("MPD") Corporal L. Barber testified that while on patrol on August 13, 2016, he was dispatched to Auger Road, a largely unused dirt road with little traffic, after "a male called in and said that [he] and his daughter w[ere] being prevented from walking down a roadway" because of a parked car. Upon arrival, Barber saw two cars, Stephenson's car and a black car. Barber exited his patrol car and walked up to Stephenson's car. After speaking to her, he walked up to the black car, approaching it on the driver's side, while another MPD officer approached the passenger's side of the car. Barber saw, in the front seat of the car, which was running, appellant naked and masturbating, as he looked down the road at the man and his daughter. When Barber knocked on the car's window, appellant saw him and "reached over to the right-hand side of the car." Because Barber did not know what appellant was reaching for, he "drew [his] duty weapon" and said, "[D]on't do it." Although Barber did not point his firearm directly at appellant, appellant "put the car in drive and drove off" at a high rate of speed. Barber then returned to his patrol car and began pursuing appellant.
Corporal Barber further testified that as he pursued appellant, his patrol car's emergency overhead lights were activated, and after he left Auger Road and pursued appellant into a higher-volume traffic area, he activated his patrol car's siren. In an attempt to slow appellant's car down, MPD officers used "[s]top sticks," i.e., three to four foot long sticks with spikes designed to deflate the tires of a car. However, even after driving over the stop sticks, on two separate occasions, appellant continued driving. Eventually, "Texas Parks and Wildlife [used] two trucks with big push bar bumpers" to engage in "a PIT maneuver." And after several attempts, appellant's car eventually stopped. Barber noted that at one point during the pursuit, appellant's car "rolled back and hit one of [MPD's] patrol cars."
Corporal Barber noted that other law enforcement officers that joined in the pursuit of appellant's car also activated their patrol cars' emergency overhead lights and sirens.
Appellant testified that although his car was stopped in the middle of Auger Road, other cars had room to drive around his car. He explained that his car was stopped on Auger Road because he had just finished having sex with his girlfriend, who had left the car, ten or fifteen minutes before law enforcement officers arrived, to walk home. According to appellant, he was not masturbating while sitting in his car, and he was about to get dressed and leave.
Appellant further testified that he did not see "a man and his daughter . . . down the road," he never saw Stephenson or her car, and the first time that he saw a law enforcement officer that day was in his review mirror when a patrol car was parked behind his car. The officer's patrol car did not have its emergency overhead lights activated. And at that time, appellant had his shirt on, but he had not pulled up his pants. As the officer approached appellant's car, he drew his firearm, pointed it at appellant, and tapped on the driver's side window. The officer did not tell appellant that he was under arrest, and he did not try to detain him. Thus, appellant, who was embarrassed and scared, decided to leave to get his mother at her place of work. When the officer pursued appellant on Auger Road, he had his patrol car's emergency overhead lights activated, and he turned on the patrol car's siren. Appellant was eventually "bumped off the road."
According to appellant, he did not stop his car, despite being pursued by law enforcement officers, because he had been given antibiotics at a hospital earlier in the day and after having sex with his girlfriend, his mind had gone "blank." Appellant also noted that he was confused and tested positive for marijuana use at the hospital where he was taken after the pursuit. Appellant further stated, "I'm not saying I shouldn't be held guilty because I know I did do it."
Standard of Review
We review complaints of jury-charge error under a two-step process, considering first whether error exists. Wooten v. State, 400 S.W.3d 601, 606 (Tex. Crim. App. 2013); Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). If error does exist, we then review the record to determine whether the error caused sufficient harm to require reversal. Wooten, 400 S.W.3d at 606. If the defendant preserved error by timely objecting to the charge, an appellate court will reverse if the defendant demonstrates that he suffered some harm as a result of the error. Sakil v. State, 287 S.W.3d 23, 25-26 (Tex. Crim. App. 2009). If the defendant did not object at trial, we will reverse only if the error was so egregious and created such harm that the defendant did not receive a fair and impartial trial. Id. at 26.
Jury Charge Error
In his sole issue, appellant argues that the trial court erred in instructing the jury, during the punishment phase of trial, under Texas Code of Criminal Procedure article 37.07, section 4(b), because it was not applicable to the instant case and the trial court was required to instruct the jury under article 37.07, section 4(c). See TEX. CODE CRIM. PROC. ANN. art. 37.07, § 4(b), (c) (Vernon Supp. 2017). He further asserts that he suffered egregious harm.
Article 37.07, section 4 requires that the trial court's instructions to the jury during the punishment phase of trial contain information on parole law. See id. art. 37.07, § 4; Taylor v. State, 233 S.W.3d 356, 359 (Tex. Crim. App. 2007); Spencer v. State, 460 S.W.3d 180, 183 (Tex. App.—Eastland 2015, pet. ref'd); Allen v. State, 951 S.W.2d 925, 926 (Tex. App.—San Antonio 1997, pet. ref'd). Generally, such instructions explain the concepts of good conduct time and parole, state the defendant's eligibility for parole in terms of calendar years or sentence portion, and state that no one can predict whether parole or good time might be applied to a defendant. See TEX. CODE CRIM. PROC. ANN. art. 37.07, § 4; Luquis v. State, 72 S.W.3d 355, 360, 366 (Tex. Crim. App. 2002). On appeal, we presume that the jury followed the instructions given by the trial court. Luquis, 72 S.W.3d at 366 & n.36.
Article 37.07, section 4(b) states:
In the penalty phase of the trial of a felony case in which the punishment is to be assessed by the jury rather than the court, if the offense is punishable as a felony of the first degree, if a prior conviction has been alleged for enhancement of punishment as provided by Section 12.42(b), (c)(1) or (2), or (d), Penal Code, or if the offense is a felony not designated as a capital felony or a felony of the first, second, or third degree and the maximum term of imprisonment that may be imposed for the offense is longer than 60 years, unless the offense of which the jury has found the defendant guilty is an offense that is punishable under Section 21.02(h), Penal Code, or is listed in Article 42A.054(a) or the judgment contains an affirmative finding under Article 42A.054(c) or (d), the court shall charge the jury in writing as follows:
"Under the law applicable in this case, the defendant, if sentenced to a term of imprisonment, may earn time off the period of incarceration imposed through the award of good conduct time. Prison authorities may award good conduct time to a prisoner who exhibits good behavior, diligence in carrying out prison work assignments, and attempts at rehabilitation. If a prisoner engages in misconduct, prison authorities may also take away all or part of any good conduct time earned by the prisoner.["]
"It is also possible that the length of time for which the defendant will be imprisoned might be reduced by the award of parole.["]
"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.["]
"It cannot accurately be predicted how the parole law and good conduct time might be applied to this defendant if he is sentenced to a term of imprisonment, because the application of these laws will depend on decisions made by prison and parole authorities.["]TEX. CODE CRIM. PROC. ANN. art. 37.07, § 4(b) (emphasis added). In contrast, article 37.07, section 4(c) states:
"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."
In the penalty phase of the trial of a felony case in which the punishment is to be assessed by the jury rather than the court, if the offense is punishable as a felony of the second or third degree, if a prior conviction has been alleged for enhancement as provided by Section 12.42(a), Penal Code, or if the offense is a felony not designated as a capital felony or a felony of the first, second, or third degree and the maximum term of imprisonment that may be imposed for the offense is 60 years or less, unless the offense of which the jury has found the defendant guilty is listed in Article 42A.054(a) or the judgment contains an affirmative finding under Article 42A.054(c) or (d), the court shall charge the jury in writing as follows:
"Under the law applicable in this case, the defendant, if sentenced to a term of imprisonment, may earn time off the period of incarceration imposed through the award of good conduct time. Prison authorities may award good conduct time to a prisoner who exhibits good behavior, diligence in carrying out prison work assignments, and attempts at rehabilitation. If a prisoner engages in misconduct, prison authorities may also take away all or part of any good conduct time earned by the prisoner.["]
"It is also possible that the length of time for which the defendant will be imprisoned might be reduced by the award of parole.["]
"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. Eligibility for parole does not guarantee that parole will be granted.["]Id. art. 37.07, § 4(c) (emphasis added).
"It cannot accurately be predicted how the parole law and good conduct time might be applied to this defendant if he is sentenced to a term of imprisonment, because the application of these laws will depend on decisions made by prison and parole authorities.["]
"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."
Here, the trial court instructed the jury related to parole law as follows:
Under the law applicable in this case, the defendant, if sentenced to a term of imprisonment, may earn time off the period of incarceration imposed through the award of good conduct time. Prison authorities may award good conduct time to a prisoner who exhibits good behavior, diligence in carrying out prison work assignments, and attempts at rehabilitation. If a prisoner engages in misconduct, prison authorities may also take away all or part of any good conduct time earned by the prisoner.
It is also possible that the length of time for which the defendant will be imprisoned might be reduced by the award of parole.
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.
It cannot accurately be predicted how the parole law and good conduct time might be applied to this defendant if he is sentenced to a term of imprisonment, because the application of these laws will depend on decisions made by prison and parole authorities.(Emphasis added.)
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.
On appeal, the State concedes that the trial court erred in instructing the jury pursuant to article 37.07, section 4(b). Cf. Maxie v. State, No. 06-12-00140-CR, 2013 WL 839144, at *3 (Tex. App.—Texarkana Mar. 6, 2013, no pet.) (mem. op., not designated for publication) (explaining why article 37.07, section 4(c), rather than section 4(b), applied to case); Bishop v. State, No. 02-10-00319-CR, 2012 WL 171278, at *7 (Tex. App.—Fort Worth Jan. 19, 2012, pet. ref'd) (mem. op., not designated for publication) (jury should be instructed under article 37.07, section 4(c) during punishment of second or third-degree felony, when prior conviction alleged as enhancement). However, the State argues that because appellant did not object to the trial court's charge, he is required to show egregious harm, which he cannot do. See Allen, 951 S.W.2d at 927 (parole instruction mandatory and erroneous instruction subject to harm analysis).
As previously noted, if jury-charge error does exist, we review the record to determine whether the error caused sufficient harm to require reversal. Wooten, 400 S.W.3d at 606; see also Allen, 951 S.W.2d at 927. When, as here, a defendant does not object at trial to the charge error, we will reverse only if the error was so egregious and created such harm that the defendant did not receive a fair and impartial trial. Sakil, 287 S.W.3d at 26; see also Taylor v. State, 332 S.W.3d 483, 489 (Tex. Crim. App. 2011) (egregious harm difficult standard to prove). We look to the actual degree 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 v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). Errors that result in egregious harm are those that "affect the very basis of the case, deprive the defendant of a valuable right, vitally affect the defensive theory, or make a case for conviction clearly and significantly more persuasive." Taylor, 332 S.W.3d at 490. Appellant must show that he suffered actual rather than theoretical harm. Cosio v. State, 353 S.W.3d 766, 777 (Tex. Crim. App. 2011).
Appellant concedes in his brief, and the record reflects, that he did not object, during the punishment phase of trial, to the trial court's charge to the jury.
Notably, there is only one substantive difference between the instruction given by the trial court, pursuant to article 37.07, section 4(b) in the instant case, and the correct instruction required under article 37.07, section 4(c). See Waters v. State, 743 S.W.2d 753, 757 (Tex. App.—San Antonio 1987, no pet.); see also Maxie, 2013 WL 839144, at *4. Article 37.07, section 4(b) provides that the trial court should instruct the jury that a defendant 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." TEX. CODE CRIM. PROC. ANN. art. 37.07, § 4(b) (emphasis added). In contrast, section 4(c) includes the same language, but omits the phrase "or 15 years, whichever is less." Compare id. art. 37.07, § 4(b), with id. art. 37.07, § 4(c); see also Waters, 743 S.W.2d at 757; Maxie, 2013 WL 839144, at *4.
Appellant was convicted of the third-degree felony offense of evading arrest, or detention, in a motor vehicle, which was enhanced to a second-degree felony offense. See TEX. PENAL CODE ANN. § 12.42(a) (Vernon Supp. 2017), § 38.04(a), (b)(2) (Vernon 2017). The maximum punishment for a second-degree felony offense is confinement for twenty years, while the maximum punishment for a third-degree felony offense is confinement for ten years. See id. §§ 12.33(a), 12.34(a) (Vernon 2011). Thus, the additional language, i.e., "or 15 years, whichever is less," contained in the article 37.07, section 4(b) instruction, and included in the trial court's instruction to the jury in the instant case, is irrelevant because one-fourth of any sentence for a second- or third-degree-felony-offense is less than fifteen years. See Maxie, 2013 WL 839144, at *4. In other words, appellant is unable to demonstrate that any harm came from the inclusion of the "or 15 years, whichever is less" language in the trial court's instruction, because one-fourth of any sentence imposed in this case would have been less than fifteen years. See Waters, 743 S.W.2d at 757; see also Maxie, 2013 WL 839144, at *4.
Further, the trial court's charge to the jury instructed it "not to consider the extent to which good conduct time may be awarded to or forfeited by [appellant]" and "not to consider the manner in which the parole law may be applied to [appellant]." See Igo v. State, 210 S.W.3d 645, 647 (Tex. Crim. App. 2006) (determining no egregious harm where trial court's jury instruction "contained the standard curative language admonishing the jury not to consider the extent to which the parole law might be applied to the defendant"); see also McGee v. State, No. 11-13-00124-CR, 2015 WL 3799362, at *7 (Tex. App.—Eastland June 11, 2015, no pet.) (mem. op., not designated for publication) ("These instructions were mitigating and curative of the erroneous instructions because they instructed the jury that one cannot predict how parole law and good conduct time might be applied to [the defendant]."); Jones v. State, No. 11-10-00373-CR, 2012 WL 3537809, at *2 (Tex. App.—Eastland Aug. 16, 2012, pet. ref'd) (mem. op., not designated for publication). Further, neither appellant's counsel nor the State made any reference to parole law during closing argument. See Igo, 210 S.W.3d at 647; see also McGee, 2015 WL 3799362, at *7; Jones, 2012 WL 3537809, at *2. And there is no indication that the jury did not follow the trial court's curative instruction to "not . . . consider the manner in which the parole law may be applied to [appellant]." See Luquis, 72 S.W.3d at 366-68; see also McGee, 2015 WL 3799362, at *7; Jones, 2012 WL 3537809, at *2.
Additionally, during the punishment phase of trial, the State presented evidence of appellant's eight prior convictions. See Luquis, 72 S.W.3d at 367-68 (noting defendant's "prior criminal record"). And although appellant's counsel, during closing argument, requested a sentence "not to exceed . . . five years," he also implored the jury not to "consider anything over 10 [years]." The jury sentenced appellant to confinement for ten years, which is less than the maximum allowed under the law and in accord with appellant's counsel's request. See Shavers v. State, 985 S.W.2d 284, 292 (Tex. App—Beaumont 1999, pet. ref'd) (considering assessment of less than maximum punishment as mitigating factor in egregious harm analysis of parole-law-instruction error).
Considering the record as a whole, the entire jury charge, the state of the evidence against appellant, and the arguments of counsel, we hold that appellant was not egregiously harmed by the trial court's err in instructing the jury pursuant to Texas Code of Criminal Procedure article 37.07, section 4(b).
We overrule appellant's sole issue.
Conclusion
We affirm the judgment of the trial court.
Terry Jennings
Justice Panel consists of Justices Jennings, Keyes, and Higley. Do not publish. TEX. R. APP. P. 47.2(b).