Opinion
NO. 14-16-00268-CR
06-20-2017
AUDELIO Y. TREVINO, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 338th District Court Harris County, Texas
Trial Court Cause No. 1460282
MEMORANDUM OPINION
A jury found appellant, Audelio Y. Trevino, guilty of injury to a child and assessed his punishment at twenty years' confinement. In two issues, appellant claims that the trial court committed error in the jury charge on punishment by (1) giving the jury an incomplete definition of community supervision; and (2) failing to give the jury an instruction on reasonable doubt for extraneous offenses. We affirm.
I. BACKGROUND
Myranda Cole and appellant have a son, David, and a daughter, Mary. David was born in November 2013, and Mary was born in October 2014. At the time Mary was born, Myranda was living with her grandmother, Sharon Cole. Appellant was living with his parents, but moved in with Myranda and Sharon in November 2014.
During the afternoon of December 24, 2014, Myranda and Sharon went to the grocery store. Appellant was alone with the children for no more than an hour while Myranda and Sharon were gone.
When Myranda and Sharon returned from the store, appellant told Myranda that Mary was "breathing funny." Myranda observed that Mary was "gasping," was "clammy," was "trembling," and was not "focusing with her eyes." Myranda fed Mary several times, but Mary was not able to keep anything down. Early the following morning, Mary's wrist and foot started to "twitch." Later, when Mary's entire body was "twitching," Myranda believed that Mary was having a seizure and she and appellant took Mary to the emergency room.
Dr. Rebecca Girardet, who is board certified in general pediatrics and child abuse pediatrics, opined that Mary suffered from shaken baby syndrome. Mary had multiple hemorrhages in both retinas, a "fresh, subdural blood in the back of the brain" on both sides, and an "older subdural blood over the front of the brain on both sides." Furthermore, a large portion of Mary's brain tissue was dying, and later MRIs showed the brain was gone in those areas and spinal fluid filled in the space in place of the brain tissue. Dr. Girardet also testified that Mary had an acute fracture on the left, first rib, probably caused by squeezing when Mary was picked up.
Appellant testified that he was tossing Mary up in the air and catching her, "spinning her two or three times," and dancing with her. Appellant claimed that he never meant to harm Mary. After Children's Protective Services (CPS) became involved, appellant researched shaken baby syndrome.
Dr. Girardet testified that appellant's description of his interaction with Mary could not have led to Mary's injuries because the manner in which he allegedly handled Mary would not equal the force required for Mary to sustain her injuries. Mary had to have been "shaken very forcefully." According to Dr. Girardet, gently handling a child does not cause the types of injuries Mary sustained.
Dr. Girardet further testified that Mary has a depression in her skull where there is no brain tissue underneath it, is "developmentally delayed," and is fed through a gastrostomy tube. Because of the injuries Mary sustained, she is "not going to be as smart of a kid as she originally started to be."
Appellant was charged with injury to a child. The jury convicted appellant of injury to a child, as charged in the indictment, and assessed punishment at twenty years' in prison. Appellant appeals his sentence in two issues in this appeal. Appellant contends that the trial court committed error in the jury charge on punishment by (1) giving the jury an incomplete definition of community supervision; and (2) failing to give the jury a reasonable doubt instruction on extraneous offenses.
II. JURY CHARGE ON PUNISHMENT
When we review a claim of jury-charge error, we first determine whether there is error in the charge. Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009). "[W]e review alleged charge error by considering two questions: (1) whether error existed in the charge; and (2) whether sufficient harm resulted from the error to compel reversal." Ngo v. State, 175 S.W.3d 738, 744 (Tex. Crim. App. 2005). Error that has been properly preserved must be reversed unless it is harmless. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). Error that has not been properly preserved is reversible only if it was so serious that the defendant did not have a "fair and impartial trial." Id. In other words, if a defendant has preserved his claim of jury-charge error, we must reverse if the defendant suffered "some harm" to his rights, but if the defendant has not preserved his claim, we must reverse only if the defendant suffered "egregious harm." Ngo, 175 S.W.3d at 743-44; Almanza, 686 S.W.2d at 171.
A. Conditions of Community Supervision
In his first issue, appellant complains that the trial court did not list all the conditions of supervision that could be imposed. Specifically, appellant asserts the examples of conditions of community supervision listed in the jury charge are the least onerous.
The trial court determines the conditions of community supervision to impose on a defendant. Tex. Code Crim. Proc. Ann. art. 42.12 § 1 (West Supp. 2016). The trial court is not required to list every possible condition of community supervision that it might impose. Preston v. State, 756 S.W.2d 22, 26 (Tex. App.—Houston [14th Dist.] 1998, pet. ref'd). Indeed, the trial court is not required to include conditions of community supervision in the jury charge. Croft v. State, 148 S.W.3d 533, 539 (Tex. App.—Houston [14th Dist.] 2004, no pet.); Cortez v. State, 955 S.W.2d 382, 384 (Tex. App.—San Antonio 1997, no pet.).
In the charge the trial court instructed the jury that if the jury recommended community supervision, the trial court "may impose the following conditions, among others[.]" The charge then listed nine specific conditions of community supervision, which were not exclusive, and the trial court was not restricted to imposing only or all of those conditions. See Tex. Code Crim. Proc. Ann. art. 42.12 § 11(a) (providing that conditions of community supervision imposed on the defendant "may include, but shall not be limited to" the enumerated conditions).
We hold it was not error for the trial court not to include all possible conditions the trial court could impose if appellant were sentenced to community supervision. See Wade v. State, 951 S.W.2d 886, 893 (Tex. App.—Waco 1997, pet. ref'd) (holding that the trial court did not err by not including a complete list of statutory terms and conditions of community supervision in jury charge); Murdock v. State, 840 S.W.2d 558, 570 (Tex. App.—Texarkana 1992), vacated on other grounds, 845 S.W.2d 915 (Tex. Crim. App. 1993) (per curiam) (holding that the trial court did not err by not including all the conditions of probation that the court could impose). Appellant's first issue is overruled.
B. Reasonable-Doubt Instruction
In his second issue, appellant asserts that the trial court erred by omitting a reasonable-doubt instruction for extraneous offenses as required by article 37.07, section 3(a)(1) of the Texas Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (West Supp. 2016). Article 37.07, section 3(a)(1) sets forth a non-exhaustive list of evidence that may be offered during the punishment phase of the trial. Id. As relevant to appellant's complaint, article 37.07, section 3(a)(1) provides the following:
[E]vidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including but not limited to . . . any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally
responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act.Id.
Appellant relies on Huizar v. State, in which the Court of Criminal Appeals held that article 37.07, section 3 requires the trial court to give the jury a reasonable-doubt instruction sua sponte when evidence of prior extraneous offenses or bad acts is introduced at sentencing. See 12 S.W.3d 479, 484 (Tex. Crim. App. 2000). Appellant, however, failed to cite Bluitt v. State, which clarified the type of evidence requiring a reasonable-doubt instruction. See 137 S.W.3d 51, 54 (Tex. Crim. App. 2004).
Article 37.03, section 3 requires that the jury be given a reasonable-doubt instruction only for unadjudicated offenses or bad acts. Id. When the State offers evidence of a prior conviction, a reasonable-doubt instruction is not required because "the very fact of conviction is evidence that the burden of proving guilt beyond a reasonable doubt has already been met in a prior proceeding." Id. With respect to probation, "the defendant has plead guilty or been found guilty by a judge or jury." Id. "In any deferred adjudication, the defendant has plead guilty, and the court has found sufficient evidence to support a finding of guilty." Id. Thus, in cases of convictions, probation, and deferred adjudication, no further proof of guilt is required. Id. Giving a reasonable-doubt instruction "is a useless act if no unadjudicated offenses have been introduced." Id.
Deputy Diane Medina, a latent fingerprint examiner with the Harris County Sheriff's Office, took appellant's right thumb print before the commencement of the punishment phase of trial. Medina testified the print she took from appellant matched the prints on the copies of the orders of his deferred adjudication for theft and accident involving an injury, the judgment adjudicating his guilt for theft, and the judgment of his conviction for possession of marijuana.
We conclude that the trial court did not err by failing to give the reasonable-doubt instruction because all the evidence as to appellant's "criminal behavior was in the form of prior offenses which had been subjected to judicial testing under the proper burden and the burden had been met." See id. Appellant's second issue is overruled.
Having overruled both of appellant's issues, we affirm the trial court's judgment.
/s/ John Donovan
Justice Panel consists of Chief Justice Frost and Justices Donovan and Wise.
Do Not Publish — TEX. R. APP. P. 47.2(b).