Briones v. State

Full title: JOSE NIEVES BRIONES, Appellant, v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Jul 15, 2005

No. 05-04-00238-CR (Tex. App. Jul. 15, 2005)

Opinion

No. 05-04-00238-CR

Opinion Filed July 15, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the 195th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F02-55740-MN. Affirm.

Before Justices O'NEILL, RICHTER, and FRANCIS.

OPINION

MARTIN RICHTER, Justice.

Jose Nieves Briones appeals his mandatory life sentence for aggravated sexual assault of a child younger than fourteen years of age, arguing in a single issue that he was egregiously harmed by an unobjected-to erroneous parole instruction in the punishment charge. We affirm.

Background

The indictment in this case alleged an enhancement paragraph for a prior conviction for indecency with a child. Although Briones admitted during the guilt-innocence phase that he had been previously convicted of indecency, he pleaded not true to the enhancement paragraph during the punishment phase. To prove the prior conviction, the State admitted a certified copy of the prior judgment and sentence and had a fingerprint expert testify that the fingerprints in that judgment matched Briones's fingerprints. In addition, the victim of the prior offense testified about the offense and identified Briones as the person who had touched her inappropriately. Briones did not testify and his sole witness, his wife, testified only about the economic impact Briones's imprisonment would have on the family. In accordance with section 12.42 of the penal code, which requires a defendant convicted of aggravated sexual assault to be sentenced to life in prison if he has previously been convicted of indecency with a child, the jury was instructed to assess punishment at life in prison if it found the enhancement paragraph true. See Tex. Pen. Code Ann. § 12.42(c)(2) (Vernon Supp. 2004-05). The jury was then instructed on parole law in accordance with section 4(a) of article 37.07 of the Texas Code of Criminal Procedure. That section provides specific language which must be included in the charge when a defendant has been convicted of certain offenses, including aggravated sexual assault. See Tex. Code Crim. Proc. Ann. arts. 37.07, § 4(a), 42.12, § 3g(a)(1)(E) (Vernon Supp. 2004-05); Luquis v. State, 72 S.W.3d 355, 363 (Tex.Crim.App. 2002). Failure to include that language verbatim is error. See Luquis, 72 S.W.3d at 363. Instead of repeating verbatim the statutory language, however, the instructions given to the jury here deviated slightly. Those deviations form the basis of Briones's complaint. The parole law instructions given to the jury were as follows

If you find that the defendant has not been previously convicted of indecency with a child, or you have a reasonable doubt thereof, 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.

If you find that the defendant has not previously been convicted of indecency with a child, or if you have a reasonable doubt thereof, the defendant will not be 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 he may earn.

If you find beyond a reasonable doubt that the defendant has previously been finally convicted of indecency with a child, he will not be eligible for release on parole until the actual calendar time served, without consideration of good conduct time, equals 35 calendar years.

Eligibility for parole does not guarantee that parole will be granted. It cannot be accurately 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. (emphasis added).

These instructions omit a mandatory sentence concerning the effect on parole eligibility if the sentence is less than four years, presumably because having been convicted of aggravated sexual assault, a first degree felony, the minimum sentence Briones could receive was five years. See Tex. Code Crim. Proc. Ann. art. 37.07, § 4(a); Tex. Pen. Code Ann. §§ 12.32, 22.021(e) (Vernon 2003 Supp. 2004-05). Additionally, these instructions differentiate between the effect on Briones's eligibility for parole and good conduct time if found previously convicted of indecency with a child and if not by (1) using the italicized prefatory language in paragraphs one and three above, instead of the required words "under the law applicable in this case" and (2) adding paragraph four, which is not part of the section 4(a) instructions. See Tex. Code Crim. Proc. Ann. art. 37.07, § 4(a); Tex. Gov't Code Ann. § 508.145(c) (Vernon 2004). Briones did not object at trial to these instructions, and the jury, finding Briones had been previously convicted of indecency, assessed the mandatory life sentence. Briones now argues he was egregiously harmed by these instructions.

Discussion

We examine jury charge error under the standards set forth in Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App. 1984). When reviewing a challenge to the jury charge, we must first determine whether error actually exists in the charge. See Arline v. State, 721 S.W.2d 348, 351 (Tex.Crim.App. 1986). If we find error and, as in this case, error has not been properly preserved, we will reverse the conviction only if the error is so egregious and created such harm that the appellant was denied a fair and impartial trial. Arline, 721 S.W.2d at 352; Almanza, 686 S.W.2d at 171. We assess the actual degree of harm in light of the charge as a whole, 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, 686 S.W.2d at 171. Here, the State concedes the instructions given to the jury deviate from the required language and thus, error occurred. We agree. The language in section 4(a) is mandatory. See Luquis, 72 S.W.3d at 363. The State argues, however, that the error was harmless. Again, we agree. The potential harm from the complained-of portions of the parole instructions given to the jury is that the jury assessed the mandatory life sentence because Briones would not be eligible for parole until he had served thirty-five years in prison. However, as part of the parole instructions, the jury was also charged not to consider how the parole law might be applied to Briones, and we presume the jury followed this instruction absent evidence to the contrary which does not exist here. See Ross v. State, 133 S.W.3d 618, 624 (Tex.Crim.App. 2004). Moreover, the jury was properly instructed, prior to the parole law instructions, to assess the mandatory life sentence if it found Briones has been previously convicted of indecency with a child, and the evidence in support of that instruction was overwhelming. Given the charge as a whole and the state of evidence, we conclude the complained-of portions of the instructions did not egregiously harm Briones. We resolve his sole issue against him. We affirm the trial court's judgment.