Opinion
No. 05-16-00538-CR
05-30-2017
STEPHEN MESHELL, Appellant v. STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 7 Dallas County, Texas
Trial Court Cause No. F12-48317-Y
MEMORANDUM OPINION
Before Justices Fillmore, Whitehill, and Boatright
Opinion by Justice Boatright
A jury convicted appellant of indecency with a child by sexual contact and sentenced him to four years in prison. Before sentencing, the trial court submitted a punishment charge to the jury. The charge that is in the record is not signed by the trial court. At trial, appellant did not object to the charge. On appeal, he argues that the court's failure to sign the charge is evidence of egregious error, and he asks us to remand the case for a new trial on punishment. We affirm.
"The general charge given by the court and all special charges given or refused shall be certified by the judge and filed among the papers in the case." TEX. CODE CRIM. PROC. art. 36.17 (West 2006). A trial judge's failure to sign a punishment charge is error. Nolan v. State, 39 S.W.3d 697, 698 (Tex. App.—Houston [1st Dist.] 2001, no pet.). If an appellant does not object to a charging error during trial, an appellate court may reverse only if the error is so egregious and creates such harm that it deprives the accused of a fair and impartial trial. Almanza v. State, 686 S.W.2d 157, 172 (Tex. Crim. App. 1984). The failure to preserve charge error is not a bar to appellate review, but rather, it establishes the degree of harm necessary for reversal. Warner v. State, 245 S.W.3d 458, 461 (Tex. Crim. App. 2008).
In his brief, appellant argues that the trial court's missing signature is evidence that the punishment charge in the record is incorrect, because a judge would be unlikely to certify a charge that he thought was incorrect. Appellant then reasons that, because the charge in the record is likely incorrect, the jury very likely used an incorrect charge in deliberations. He concludes that this deprived him of a fair and impartial trial, which was egregious error and grounds for reversal.
In determining whether there is egregious error, we examine the harm caused in light of the entire jury charge, the state of the evidence, the argument of counsel, and any other relevant information in the record. Id. The record shows that when the trial court read the charge to the jury during the punishment phase of the trial, appellant's counsel asked to approach the bench, then had a sidebar conversation with the judge and opposing counsel. After the sidebar, the trial court noted on the record that what he had previously read aloud "was a slight mistake" which he would get corrected. The court thanked appellant's counsel for bringing the mistake to his attention. The trial court then read a portion of the charge, noting language he would add to it later: "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 two years, that's the difference, whichever is less. . . ." The charge that is in the record contains the handwritten words "or 2 years" inserted between the words "one half of the sentence imposed" and "whichever is less." Because the charge in the record contains the hand-written, additional words the trial court had identified as those that corrected his "slight mistake," the record indicates that the trial court considered the charge in the record to be the correct one.
Other record evidence supports that conclusion. During closing argument, appellant's counsel told the jury, "I'm sorry, you know, we're all experienced, but sometimes there is a type-o and we miss something," then he explained that, if his client "gets sentenced to two years, he's required by law to serve two years flat, day for day. He's not eligible for parole until he serves flat, day for day, one half of any sentence that you give, and the Judge is absolutely correct. . . ." The fact that appellant's counsel said the judge's reference to "two years" in the charge was "absolutely correct" shows that the judge would not have been so worried about his insertion of that reference into the charge in the record that he would refuse to sign it.
Appellant does not argue that the lack of a signature is egregious error. Nor does he contest his guilt or the severity of his sentence on appeal. His argument rests solely on the notion that the lack of the trial judge's signature on the charge indicates that the judge thought the charge in the record was incorrect. The charge, the parties' arguments, and all other record evidence indicate that the trial court thought the punishment charge included in the record was correct. His failure to sign the charge is not evidence of egregious error.
We overrule appellant's sole issue and affirm the trial court's judgment.
/Jason Boatright/
JASON BOATRIGHT
JUSTICE DO NOT PUBLISH
TEX. R. APP. P. 47 160538F.U05
JUDGMENT
STEPHEN CRAIG MESHELL, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the Criminal District Court No. 7, Dallas County, Texas
Trial Court Cause No. F-1248317-Y.
Opinion delivered by Justice Boatright. Justices Fillmore and Whitehill participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 30th day of May, 2017.