Opinion
No. 05-15-01399-CR
03-09-2017
QUAVIZE LEJUANTE JONES, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 2 Dallas County, Texas
Trial Court Cause No. F-1476520-I
MEMORANDUM OPINION
Before Justices Lang, Myers, and Evans
Opinion by Justice Lang
A jury convicted Quavize Lejuante Jones of murdering his girlfriend, Marietta Shaw. After finding two punishment-enhancement paragraphs true, the jury assessed a life sentence. In a single issue, Jones asserts he is entitled to a new punishment hearing because the application paragraph of the jury charge failed to instruct the jury to find the enhancement allegations true only if it found "sequential prior felony convictions." We affirm the trial court's judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
The facts are undisputed. Jones killed Shaw by stabbing her multiple times in her upper body and head. In charging him with murder, the State alleged two punishment-enhancement paragraphs. Both paragraphs alleged final convictions for the felony offense of possession of a controlled substance. The second paragraph alleged an April 11, 2007 conviction. The first paragraph alleged a November 19, 2008 conviction for an offense committed after the April 2007 conviction became final. Following the guilt/innocence phase of trial, Jones pleaded not true to the enhancement paragraphs, but the judgments of the convictions were admitted into evidence.
Relevant to the appeal, the jury was charged as follows:
The punishment authorized for the offense of murder is confinement in the Institutional Division of the Texas Department of Criminal Justice for life or for a term of years not more than 99 years or not less than 5 years. In addition, you may impose a fine not to exceed $10,000.
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The indictment in this case contains two enhancement allegations. In the first enhancement paragraph, it is alleged that prior to the commission of the offense for which you have convicted the defendant, the defendant was finally convicted of the felony offense of possession of a controlled substance in the Criminal District Court No. 5 of Dallas County, Texas, in Cause Number F08-56908, on the 19th day of November, 2008.
To this allegation, the defendant has entered a plea of "Not True."
In the second enhancement paragraph, it is alleged that prior to the commission of the aforesaid offense set forth in the first enhancement paragraph, the defendant was finally convicted of the felony offense of possession of a controlled substance in the 283rd Judicial District Court of Dallas County, Texas, in Cause Number F06-67694, on the 11th day of April, 2007.
To this allegation, the defendant has entered a plea of "Not True." It now becomes your duty under the law to determine whether these allegations are true or not true, and to determine the punishment which should be assessed against the defendant.
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If . . . you do find beyond a reasonable doubt that this defendant is the same person who was convicted as alleged in the first and second enhancement paragraphs in the indictment, then you will find the enhancement allegations to be true and you will assess the defendant's punishment at confinement in the Institutional Division Texas Department of Criminal Justice for life or any term not less than 25 years nor more than 99 years.
JURY CHARGE ERROR
Although Jones lodged no objection to the charge at trial, he complains now of the application paragraph. Relying on Rice v. State, 746 S.W.2d 356 (Tex. App.—Fort Worth 1988, pet. ref'd), Jones asserts the paragraph was improper because it should have instructed the jury to assess punishment in the identified range only if it found the second previous felony conviction was for an offense that occurred subsequent to the first previous felony conviction having become final. In response, the State asserts, among other arguments, that Jones suffered no harm from any error in the charge.
A. Applicable Law
The purpose of the jury charge is to instruct the jurors on the law applicable to the case and to guide them in their application of the law to the facts. See Hutch v. State, 922 S.W.3d 166, 170 (Tex. Crim. App. 1996) (quoting Williams v. State, 547 S.W.2d 18, 20 (Tex. Crim. App. 1977)). To that end, a jury charge consists of abstract paragraphs, which set forth relevant concepts, terms, and law, and application paragraphs, which apply the relevant law, definitions, and principles to the facts and authorize the conviction or punishment. See Vasquez v. State, 389 S.W.3d 361, 366 (Tex. Crim. App. 2012); Crenshaw v. State, 378 S.W.3d 460, 466 (Tex. Crim. App, 2012). A punishment charge that does not properly instruct the jury on the full range of punishment is improper. See Tubert v. State, 875 S.W.2d 323, 324-25 (Tex. Crim. App. 1994).
Murder is a first degree felony unless the death was caused "under the immediate influence of sudden passion arising from an adequate cause," in which case it is a second degree felony. See TEX. PENAL CODE ANN. § 19.02(c),(d) (West 2011). As a first degree felony, murder is punishable by imprisonment for life or for any term of not more than ninety-nine years or less than five years and a fine not to exceed $10,000. See TEX. PENAL CODE ANN. § 12.32. However, if the State proves the defendant has been finally convicted of two felony offenses, and the second conviction is for an offense that was committed subsequent to the first conviction becoming final, the minimum punishment range of five years is increased to twenty-five years and no fine may be imposed. See id. § 12.42(d) (West Supp. 2016); Jordan v. State, 256 S.W.3d 286, 290-91 (Tex. Crim. App. 2008).
B. Standard of Review
In reviewing alleged jury charge error, an appellate court begins by examining the charge to determine if error exists. Price v. State, 457 S.W.3d 437, 440 (Tex. Crim. App. 2015). If the appellate court determines error occurred, the court then analyzes whether harm resulted from the error. See id. The degree of harm necessary for reversal is determined based on whether error was properly preserved at trial by objection or request for instruction. See id. When, as here, no objection or request was made, the error will result in reversal only upon a showing of egregious harm, that is, upon a showing the defendant did not have "a fair and impartial trial." Id. (quoting Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g)). Errors meeting this standard "affect 'the very basis of the case,' 'deprive the defendant of a valuable right,' or 'vitally affect a defensive theory.'" Ngo v. State, 175 S.W.3d 738, 750 (Tex. Crim. App. 2005) (quoting Hutch, 922 S.W.2d at 171). In assessing harm, the appellate court considers the entire record, including the charge, the state of the evidence, the contested issues, and the parties' arguments. See State v. Ambrose, 487 S.W.3d 587, 598 (Tex. Crim. App. 2016).
C. Application of Law to Facts
In Rice, 746 S.W.3d 356, the case upon which Jones relies, appellant pleaded not true to two enhancement paragraphs. Id. at 359. The charge contained multiple application paragraphs, at least one of which recited the allegations in the enhancement paragraphs of the indictment. See id. However, the application paragraph authorizing punishment did not set out the details and sequencing of the convictions alleged in the enhancement paragraphs. Id. at 359-60. The Fort Worth Court of Appeals concluded the jury charge was improper, but the error was harmless in light of evidence admitted at punishment showing the sequencing of the convictions and no argument by Rice against the merits of the enhancement allegations. Id. at 360-61.
In relying on Rice and urging he is entitled to a new punishment hearing, Jones does not acknowledge the Rice court found the charge error harmless, and he does not argue he was harmed. Yet, a review of the record here shows, as the State contends and like the record in Rice, that no harm occurred.
For the jury to find the enhancement paragraphs true, as it did, it necessarily had to find, based on the instructions in the complained-of application paragraph, that Jones was "the same person who was convicted as alleged in the first and second enhancement paragraphs in the indictment." The record reflects the prosecutor read verbatim to the jury the portion of the indictment alleging the enhancement paragraphs. Further, as stated, the judgments of convictions were admitted into evidence. These exhibits demonstrated the second previous felony conviction was for an offense that occurred subsequent to the first previous felony conviction having become final. No evidence to the contrary was admitted. Given the record before us, we conclude any error in the charge did not egregiously harm Jones. We decide Jones's sole issue against him.
II. CONCLUSION
Having decided Jones's sole issue against him, we affirm the trial court's judgment.
/Douglas S. Lang/
DOUGLAS S. LANG
JUSTICE Do Not Publish
TEX. R. APP. P. 47.2(b)
151399F.U05
JUDGMENT
On Appeal from the Criminal District Court No. 2, Dallas County, Texas
Trial Court Cause No. F-1476520-I.
Opinion delivered by Justice Lang. Justices Myers and Evans participating.
Based on the Court's opinion of this date, we AFFIRM the trial court's judgment. Judgment entered this 9th day of March, 2017.