Opinion
Nos. 05-04-00894-CR, 05-04-00895-CR
Opinion Filed July 11, 2005. DO NOT PUBLISH. Tex.R.App.P.47.
On Appeal from Criminal District Court No. 5, Dallas County, Texas, Trial Court Cause Nos. F03-36257-L, F03-36261-L. Affirmed as Modified; Affirmed.
OPINION
In these cases, a jury convicted Steven Carroll Hatfield of aggravated sexual assault of a child and assessed life sentences. In two points of error, appellant contends (1) the trial court did not include the statutorily mandated instruction in the both jury charges and (2) the judgment in cause number 05-04-00894-CR incorrectly states the offense date. We modify the judgment in cause number 05-04-00894-CR to show the offense date was October 28, 1993 and affirm as modified. We affirm the trial court's judgment in cause number 05-04-00895-CR.
BACKGROUND
The complainant, C. H, her sister (J.H.), her brother (S.H.), C.H.'s mother (A.H.), and her father (appellant) lived together until C.H. was eighteen years old. C.H. testified that appellant began inappropriately touching her at her sixth birthday party. The sexual touching eventually escalated to sexual intercourse and continued until C.H. moved out of the family residence when she was eighteen. C.H. was twenty years old at the time of trial.THE JURY CHARGE
In his first point of error, appellant contends the trial court did not include the complete parole law jury instruction as mandated by article 37.07 of the code of criminal procedure. See Tex. Code Crim. Proc. Ann. art. 37.07, § 4(a) (Vernon Supp. 2004-05). Appellant concedes he did not object to the charge at trial, but contends the error is so egregious that this Court should reverse the punishment portion of the trial and return this cause to the trial court for a new punishment hearing. The State responds that appellant "forfeited any error" because he did not object and affirmatively stated that he had "no objections and no requests." And, alternatively, appellant suffered no egregious harm by the trial court's instructions.1. Standard of Review
When reviewing jury charge error, we must first determine if error actually exists in the jury charge and if we find error, whether that error actually harmed appellant. See Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985) (op. on reh'g). If a defendant does not object to the jury charge, he must show he suffered actual, egregious harm. See id. We deem an affirmative statement of no objection as equivalent to a failure to object and we reverse only if the error resulted in egregious harm. See Bluitt v. State, 137 S.W.3d 51, 53 (Tex.Crim.App. 2004). To establish egregious harm, it is not essential to show direct evidence of harm. Stokes v. State, 74 S.W.3d 48, 50 (Tex.App.-Texarkana 2002, pet. ref'd). Rather, the failure to instruct must result in appellant's not receiving a fair and impartial trial. See Huizar v. State, 12 S.W.3d 479, 485 (Tex.Crim.App. 2000) (op. on reh'g); Almanza, 686 S.W.2d at 172.2. Applicable Law
The Texas Code of Criminal Procedure requires the trial court to include a jury instruction on parole eligibility and "good conduct time" when the jury assesses punishment and the charged offense is listed in article 42.12, section 3g(a)(1). See Tex. Code Crim. Proc. Ann. art. 37.07, § 4(a). Aggravated sexual assault is a 3g(a)(1) offense. See id. art. 42.12, § 3g(a)(1)(E). In such cases, the trial court must charge the jury as follows:Under the law applicable in this case, 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.
Under the law applicable in this case, if the defendant is sentenced to a term of imprisonment, he will not become 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 the defendant is sentenced to a term of less than four years, he must serve at least two years before he is eligible for parole. Eligibility for parole does not guarantee that parole will be granted.
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.Id. art. 37.07, § 4(a). The statute requires the trial court use this precise language. See Luquis v. State, 72 S.W.3d 355, 363 (Tex.Crim.App. 2002). The article 37.07, section 4 instruction informs the jury of how good-conduct time combines with actual time served to determine parole eligibility. See Grigsby v. State, 833 S.W.2d 573, 576 (Tex.App.-Dallas 1992, pet. ref'd). The parole law instruction was designed to increase the sentences assessed by juries and the instruction benefits the State, not defendants. See id.
3. Application of Law to Facts
Although the article 37.07, section 4(a) mandate applies to appellant's conviction for aggravated sexual assault, the trial court completely omitted the statutory language from the jury charge. Instead, the trial court submitted the following:You are further instructed that in determining the punishment in this case, you are not to discuss among yourselves how long the defendant will be required to serve any sentence you decide to impose. Such matters come within the exclusive jurisdiction of the Board of Pardons and Paroles and the Governor of the State of Texas, and are no concern of yours.Appellant neither objected to this included language nor to the omission of the mandated jury charge. Rather, he affirmatively stated he had "[n]o objection and no requests." Nevertheless, the trial court erred by not including the instruction on parole eligibility in its punishment charge. We, therefore, review the record to determine if appellant was egregiously harmed by the omission of the jury instruction. See Bluitt, 137 S.W.3d at 53. Appellant does not identify any actual harm he suffered as a result of the omission. Instead, he states that `the trial court's failure to instruct the jury as mandated . . . caused [a]ppellant egregious harm." Appellant cites us to no evidence in the record that shows the instruction given or the trial court's omission of the instruction on good time and parole resulted in appellant's not receiving a fair and impartial trial. On the briefs and the record before us, the trial court's omission of the "good conduct time" language from the jury charge was harmless. We overrule appellant's first point of error.