No. 13-03-245-CR
Opinion Delivered and Filed July 1, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On appeal from the 405th District Court of Galveston County, Texas.
Before Justices YAñEZ, RODRIGUEZ, and GARZA.
Opinion by Justice RODRIGUEZ.
Appellant, Shaun Tremain Matthews, was tried before a jury and convicted of aggravated assault with a deadly weapon. See Tex. Pen. Code Ann. § 22.02 (Vernon Supp. 2004). The indictment included an enhancement paragraph alleging a prior felony conviction. The jury imposed a sentence of life imprisonment. The trial court has certified that this case "is not a plea-bargain case, and the Defendant has the right of appeal." See Tex.R.App.P. 25.2(a)(2). By one issue, appellant contends that the trial court erred in amending the jury charge during jury deliberations. We affirm.
I. FACTS
As this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for it. See Tex.R.App.P. 47.4. II. STANDARD OF REVIEW
In cases where the appellant alleges error in relation to the trial court's charge, the standard of review is determined by article 36.19 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 36.19 (Vernon 1981). When a defendant properly objects to the charge, as in this case, the standard is whether "the error appearing from the record was calculated to injure the rights of the defendant" or whether there was some harm. Trevino v. State, 100 S.W.3d 232, 242 (Tex.Crim.App. 2003) (per curiam) (citing Tex. Code Crim. Proc. Ann. art. 36.19 (Vernon 1981); Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985)). Appellant contends that the trial court's amendment of the jury charge during jury deliberations constitutes reversible error. We first decide whether the trial judge was authorized to amend the jury charge during jury deliberations in light of the language contained in article 36.16. See Tex. Code Crim. Proc. Ann. art. 36.16 (Vernon 1981); Moore v. State, 848 S.W.2d 920, 922 (Tex. App.-Houston [1st Dist.] 1993, pet. ref'd). If the amendment is found to be in error, we must then "decide whether the error was harmful." Moore, 848 S.W.2d at 922. III. AMENDMENT OF JURY CHARGE
The final jury charge is governed by article 36.16 of the code of criminal procedure which provides, in pertinent part: "After the argument begins no further charge shall be given to the jury unless required by the improper argument of counsel or the request of the jury, or unless the judge shall, in his discretion, permit the introduction of other testimony. . . ." Tex. Code Crim. Proc. Ann. art. 36.16 (Vernon 1981). In this case, the trial court amended the charge after the jury began deliberations without the occurrence of any of the events set out in article 36.16. The Texas Court of Criminal Appeals has held on several occasions that the trial court has the right to withdraw and correct a charge before verdict once it finds that the charge given to the jury is erroneous. In Chambers v. State, the court of criminal appeals stated that "a court's amending [its] charge in order to correctly state the law" does not constitute reversible error. Chambers v. State, 379 S.W.2d 907, 908 (Tex.Crim. App. 1964) (citing Nowlin v. State, 76 Tex.Crim. 480 (Tex.Crim.App. 1915); Holt v. State, 49 Tex.Crim. 282 (Tex.Crim. App. 1898)). In Bustillos v. State, the court clarified the rule set forth in Chambers by stating that "the court may before verdict withdraw and correct its charge if convinced an erroneous charge has been given." Bustillos v. State, 464 S.W.2d 118, 125 (Tex.Crim.App. 1971). The court affirmed this position in Smith v. State by allowing an erroneous jury charge to be amended even after deliberations had begun. Smith v. State, 898 S.W.2d 838, 854-55 (Tex.Crim.App. 1995). Guided by Bustillos, we found in Morlett v. State that a "court could, before verdict, withdraw and correct its charge if convinced that a[n] erroneous charge had been given." Morlett v. State, 656 S.W.2d 603, 606 (Tex. App.-Corpus Christi 1983, no pet.). Bustillos was also followed by the Dallas Court of Appeals which found "[t]he court may, after arguments have begun but before the verdict, withdraw and correct its charge if the court is convinced that an erroneous charge has been given." Gaines v. State, 710 S.W.2d 630, 633 (Tex. App.-Dallas 1986, no pet.). Appellant attempts to distinguish Bustillos and Gaines by pointing out that the amendment to the charge in each case was made before deliberations had begun. However, contrary to appellant's contention, both Bustillos and Gaines make clear that a charge may be amended at any time prior to the verdict. Bustillos, 464 S.W.2d at 125; Gaines, 710 S.W.2d at 633. Neither Bustillos nor Gaines require that the amendment be made before the commencement of jury deliberations. Bustillos, 464 S.W.2d at 125; Gaines, 710 S.W.2d at 633. Appellant also attempts to distinguish Smith, where the amendment was made after deliberations had begun, based on the fact that the appellant in Smith did not object to the change in the jury charge. Smith, 898 S.W.2d at 854. However, this was not a fact that the court of criminal appeals relied on in reaching its conclusion. In support of its argument that the trial court erred in amending the jury charge, appellant cites to Murray v. State, 857 S.W.2d 806, 807-08 (Tex. App.-Fort Worth 1993, pet. ref'd). In Murray, the appellant's conviction was reversed based on the trial court's amendment of the jury charge after deliberations had begun. Id. The court's primary reason for reversing the case was that "changing the charge after jury argument was tantamount to denying him jury argument. . . ." Id. at 808. The amendment made to the jury charge in Murray directly undercut the theory of the appellant's closing argument, essentially denying him a "fair trial." Id. at 808-09. We find, however, that the facts of Murray are distinguishable. Unlike Murray, the amendment of the jury charge in this case in no way served to refute the closing arguments made by counsel for appellant. The trial court's correction of an erroneous charge in order to comply with the requirements that have been set forth by the Texas Legislature cannot be deemed to have denied the appellant a fair trial. The amendment did not serve to negate the theory of appellant's closing arguments, and hence this case is distinguishable from Murray. Furthermore, the Texas Court of Criminal Appeals addressed Murray in deciding Smith. Smith, 898 S.W.2d at 855. It found that "[a]rticle 36.16 of the Texas Code of Criminal Procedure has been interpreted to permit a trial court to withdraw and correct its charge if convinced an erroneous charge has been given" and that "this has remained the law in Texas" even in light of the Murray decision. Id. at 855-56. We find, therefore, that the trial judge was authorized to amend the erroneous jury charge during jury deliberations. Thus, the trial court did not err. Appellant's sole issue is overruled. IV. CONCLUSION
Accordingly, the judgment of the trial court is affirmed.