Opinion
No. 06-04-00143-CR
Submitted: June 28, 2005.
Decided: August 18, 2005. DO NOT PUBLISH.
On Appeal from the 124th Judicial District Court, Gregg County, Texas, Trial Court No. 31709-B.
Before MORRISS, C.J., ROSS and CARTER, JJ.
MEMORANDUM OPINION
When Henry Lee Givens struck his common-law wife, Detosha Cox, in the mouth during an argument, it was not the first time he had hit her or some other woman. Having previously been convicted for assaulting Cox, Givens stood trial for third-degree felony assault causing bodily injury to a family member. After a Gregg County jury convicted Givens and recommended a sentence of ten years' confinement, the trial court sentenced him accordingly. On appeal, Givens asserts that the trial court's charge to the jury erroneously contained an instruction that the jury could consider extraneous offenses for the purpose of determining Givens' intent and that the trial court egregiously harmed him in responding to a jury note during jury deliberations on Givens' punishment. We hold (1) the trial court's charge was proper, and (2) the trial court's response to the jury note was not egregiously harmful. Therefore, we affirm the trial court's judgment. (1) The Trial Court's Charge Was Proper During trial, evidence was introduced that Givens had assaulted Cox on numerous other occasions and that she had obtained a protective order against him. Cox also testified that Givens had written "kill" in fingernail polish on her mirror and that he had stuck a knife in her coffee table holding a note saying he was not playing. The trial court charged the jury that it could consider evidence of extraneous offenses only if it found beyond a reasonable doubt that Givens had committed the offenses and, if so, could consider that evidence only to determine Givens' intent. Givens did not object to the charge. Because no objection was made to the charge, no error was preserved. Therefore, we are to reverse only if there was error in the charge that resulted in egregious harm. Almanza v. State, 686 S.W.2d at 172. We first examine the record to determine whether any error occurred. Here, the instruction was a proper statement of law. See Ex parte Varelas, 45 S.W.3d 627, 631-32 (Tex.Crim.App. 2001). Evidence of Givens' other bad acts was admitted in trial; and, to prove the offense charged, the State had to show he caused injury to Cox intentionally, knowingly, or recklessly. See Tex. Pen. Code Ann. § 22.01 (Vernon Supp. 2004-2005). The instruction was not erroneous. Even if the instruction had been erroneous, we do not see how a proper statement of law could deny Givens a "fair and impartial trial," "go to the very basis of the case," "deprive the defendant of a `valuable right,'" or "vitally affect his defensive theory." See Almanza, 686 S.W.2d at 172. We overrule Givens' first point of error. (2) The Trial Court's Response to the Jury Note Was Not Egregiously Harmful While deliberating on Givens' punishment, the jury sent a note to the trial court asking, "What happens if he is fined and he can't pay?" The trial court wrote beneath the jurors' question, "NOTHING!" Givens argues that the trial court's answer "essentially told the jury to disregard one-half of the range of punishment" and amounted to an improper judicial comment on the weight of the evidence. According to Givens, the trial court's "emphatic" answer to the jury's note "conveyed the trial court's feelings on punishment." By using all capital letters and the exclamation point, the trial court unnecessarily emphasized its response and may have communicated more than the word "nothing," alone, would communicate. Conduct by a trial court constitutes a comment on the weight of the evidence if the comment is reasonably calculated to either benefit the State or to prejudice the rights of the defendant. Marks v. State, 617 S.W.2d 250, 252 (Tex.Crim.App. 1981). While the trial court's emphatic response could have been meant to communicate frustration with the jury question itself, it could also be understood to disfavor a fine and thus favor imprisonment, the two main options available to the jury in assessing Givens' punishment. Therefore, we will review it as error. The reporter's record contains no contemporaneous discussion concerning the jury's note, the trial court's answer to it, or any objection to the answer. Therefore, we will presume that the trial court's response to the note was in open court, in Givens' presence, and that he had an opportunity to object. See Green v. State, 912 S.W.2d 189, 192-93 (Tex.Crim.App. 1995). Where the trial court responds substantively to a jury question during deliberations, that communication essentially amounts to an additional or supplemental jury instruction. Brooks v. State, 967 S.W.2d 946, 950 (Tex.App.-Austin 1998, no pet.). Stating that "nothing" would happen to Givens if a fine were not paid is essentially a statement of law and thus an instruction to the jury. Even if such is the case and even if it is error, such judicial statement must be met with a timely objection by the defendant. Id. Where not objected to, an appellant's claim of error in the jury charge must demonstrate egregious harm. Almanza, 686 S.W.2d at 172; Brooks, 967 S.W.2d at 950 (citing Skinner v. State, 956 S.W.2d 532, 544 (Tex.Crim.App. 1997)). Both parties address this issue as one that calls for an Almanza egregious-harm analysis. We agree and, therefore, consider whether the trial court's response denied Givens a "fair and impartial trial," went "to the very basis of the case," "deprive[d him] of a `valuable right,'" or "vitally affect[ed] his defensive theory." See Almanza, 686 S.W.2d at 172. We hold it did not. Givens testified at the punishment phase that he had previously pled guilty to another assault, a family violence charge involving another girlfriend, and that he had made his living selling drugs. Cox testified Givens had not had a job in the five years she had known him, and Givens himself testified that he made his living selling crack cocaine. The record contains evidence of numerous prior offenses admitted to by Givens on the stand and the testimony of Cox regarding Givens' beating her on more than twenty occasions. Givens was not eligible for community supervision. Evidence was admitted of his 1996 conviction for unauthorized use of a vehicle. He does not claim, and we see no record, that he filed an application for community supervision or an affidavit that he was eligible for such. See Tex. Code Crim. Proc. Ann. art. 42.12, § 4(e) (Vernon Supp. 2004-2005). Therefore, on Givens' conviction, some period of incarceration was required. Evidence was also adduced of his seven other misdemeanor convictions. Evidence was introduced of his unruly behavior in the county jail including spitting on jailers, his combative nature which required restraints, trying to hang himself with a shoe lace, and possession of marihuana in jail. In closing arguments, neither counsel for Givens nor the State made any mention of imposing a fine as part of Givens' punishment. Givens' attorney did elicit testimony from Cox, during the punishment trial, that she did not want Givens to go to prison and that she was not afraid of him. To the jury, however, Givens' counsel asked for a sentence of four years, the State, ten. The trial court's response to the jury's note did not cause Givens egregious harm: the court's response did not vitally affect his defensive theory or go to the basis of the punishment trial. Almanza, 686 S.W.2d at 171. As a fine was never addressed by Givens, the trial court's answer did not directly affect the essential dispute in the case, or disturb the basis of the defense theory. See Brooks, 967 S.W.2d 950. Givens was not egregiously harmed. We affirm the judgment of the trial court.
Egregious harm results from errors that deny a defendant a "fair and impartial trial," "go to the very basis of the case," "deprive the defendant of a `valuable right,'" or "vitally affect his defensive theory." Almanza v. State, 686 S.W.2d 157, 172 (Tex.Crim. Ap. 1985) (op. on reh'g.). To determine whether there was egregious harm, we consider (1) the entire jury charge, (2) the evidence on contested issues and the weight of probative evidence, (3) counsel's argument, and (4) any other relevant information in the record. Bailey v. State, 867 S.W.2d 42, 43 (Tex.Crim.App. 1993); Taylor v. State, 146 S.W.3d 801, 810 (Tex.App.-Texarkana 2004, pet. ref'd). However, there must be some error in the court's charge before we begin the Almanza harm analysis.
Ordinarily, the preferred response is to instruct the jury to refer to the court's charge, or answer in a more subdued tone. See Guzman v. State, No. 04-03-00548-CR, 2004 Tex. App. LEXIS 8594 (Tex.App.-San Antonio, Sept. 29, 2004, pet. granted) (not designated for publication) (jury sent note asking trial court who would pay fine; trial court's written response: "Ladies and gentlemen, I am not allowed to answer your questions. Simply read the charge and follow the law and instructions in the charge. Continue your deliberations. Thank you.").
After the trial court accepted the punishment verdict and received no objection from either side, it addressed the earlier question from the jury regarding the nonpayment of a fine. No objection was made at that time. Even if we were not to presume Givens had an opportunity to object at the time of the trial court's initial response, he must have objected at this later time — when he should have known of the trial court's response — to preserve error. See Boatwright v. State, 933 S.W.2d 309, 311 (Tex.App.-Houston [14th Dist.] 1996, no pet.) (defendant required to object when learning of need to object).
As in Green, where the trial court responded to a jury note, "[witness] never used the term `emotional problems!'" the court here directly answered the jury's question. "The trial court responded to a narrow and straightforward jury question with a narrow and straightforward answer that was responsive to the question asked." Green, 912 S.W.2d at 192.
While questioning Cox, Givens' attorney said, "Although we know — we know Henry's going to the pen, is that something you want to see?"