Opinion
NO. 01-10-00507-CRNO. 01-10-00508-CR
02-16-2012
JOHNNY ELANJICKAL, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 400th District Court
Fort Bend County, Texas
Trial Court Case Nos. 50354 & 50405
MEMORANDUM OPINION
Johnny Elanjickal was convicted by a jury of the offenses of possession of 3, 4-methylenedioxy methamphetamine and cocaine. The jury assessed punishment at seven years' confinement for both offenses, concurrent. In one point of error, Elanjickal contends the trial court's answers to questions from the jury were improper and a comment on the weight of the evidence. We affirm.
Trial court case number 50354 and appellate case number 01-10-00507-CR. Texas Controlled Substances Act, TEX. HEALTH & SAFETY CODE ANN. § 481.103(a)(1), .116(a), (c) (West 2010) (controlled substance weighing one gram or more but less than four grams).
Trial court case number 50405 and appellate case number 01-10-00508-CR. Texas Controlled Substances Act, TEX. HEALTH & SAFETY CODE ANN. § 481.102(3)(D), .115(a), (c) (West 2010) (controlled substance weighing one gram or more but less than four grams).
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Background
After the jury convicted Elanjickal of both offenses and both sides closed on the punishment phase, the jury sent a note asking two questions:
THE COURT: Let the record reflect that we have a note from the jury in which the jury poses two questions. Question 1 is: "Are the two verdicts consecutive or concurrent?" Question 2: "Will the time spent," paren, "about six months," close excuse me, "about 16 months," close paren, "apply to the sentence?"
And the Court proposes to respond to the questions as follows: "Members of the jury: In response to your first question, the sentences that you assess will run concurrent. In response to your second question, in all criminal cases, the judge of the court in which the defendant was convicted shall give the defendant credit on his sentence for the time that the defendant has spent in jail in said cause from the time of his arrest and confinement until his sentence by the trial court."
. . . .
Does the State have any objections to these responses? [STATE]: No, Your Honor.
[DEFENSE COUNSEL]: Yes, we do. . . . There's no way that this jury, with respect to sentencing, is going to not assess something at the maximum or the higher range of punishment as a result of the
two instructions the Court intends on giving them. It's a comment on the weight of the evidence.
. . . .
THE COURT: Refresh my recollection. Was it not the Defendant who basically volunteered the information about the time spent in jail?
[DEFENSE COUNSEL]: I don't remember specifically if he
volunteered it, Judge, but it's out there. It's in record.
THE COURT: Well, my point is I don't think it was brought out by State. I think it was brought out by the Defendant.
. . . .
THE COURT: Which prompted this question in the first place. Does the State want to respond to his objections?
[STATE]: . . . .
Further, Judge, there was an issue brought up about whether one or both of these instructions would be a comment on the weight of the evidence. Simply, neither is a comment on the weight of the evidence, because they don't comment on an element of an offense we're in punishment at this point nor do they assume the truth of the controverted issue. It's very clear from the Code of Criminal Procedure, specifically 42.03, that Mr. Elanjickal is required to get credit for the 16 months or so he has been in jail. Furthermore, it's also clear from the Code of Criminal Procedure that the sentences are to run consecutively in this case, and because there's no issue -- concurrently. Did I say consecutively? I apologize, concurrently. And because neither of those are at issue, there's no controverted issue. It would not be a comment on the weight of the evidence as such.
. . . .
THE COURT: Defendant's objections are overruled. The response will go to the jury.
Discussion
On appeal, Elanjickal contends that because the jury charge makes no mention of the application of accumulated jail time credit, "Clearly the absence of an instruction regarding jail time credit and the jury's inquiry of it dictates the existence of an error in the charge." Elanjickal then claims that the trial court's answer was a comment on the weight of the evidence, citing to Code of Criminal Procedure article 36.14. TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007) ("judge shall . . . deliver to the jury . . . a written charge . . . not expressing any opinion as to the weight of the evidence").
Elanjickal testified during the punishment phase about the amount of time he had served in jail: "I need to exercise self-control. I need to also learn how to respond better to those type of situations. There's not many people - I've learned, being in jail for 16 months currently, yeah, there's people who do things that I don't agree with, but that doesn't mean I should go and hit them or argue with them." (Emphasis added). Elanjickal cites no authority for the proposition that the trial court's answer would constitute a comment on the weight of the evidence, and we know of none.
Elanjickal also contends that the trial court should not have instructed the jury, citing Banks v. State, 503 S.W.2d 582 (Tex. Crim. App. 1974). Banks involved a question from the jury regarding how long a sentence the defendant would have to serve for a prior conviction in which his probation had been revoked. Id. at 586. In that case, the trial court refused to instruct the jury further. Id. The current appeals, however, do not involve a prior conviction, and the trial court here gave a correct statement of the law—that the defendant will be given credit on his sentence for the time the defendant has spent in jail for the case. See TEX. CODE CRIM. PROC. ANN. art. 42.03, § 2(a) (West Supp. 2011).
We hold that Elanjickal has not demonstrated on appeal that the trial court's answer to the jury was erroneous. Consequently, there is no need for us to conduct a harm analysis. See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984 & 1985). We overrule Elanjickal's sole point of error.
Conclusion
We affirm the judgments of the trial court.
Jim Sharp
Justice
Panel consists of Justices Jennings, Sharp, and Brown.
Do not publish. TEX. R. APP. P. 47.2(b).