Opinion
06-23-00146-CR
03-08-2024
GREGORY GLENN PARKER, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish
Date Submitted: February 1, 2024
On Appeal from the 276th District Court Marion County, Texas Trial Court No. F15503-A
Before Stevens, C.J., van Cleef and Rambin, JJ.
MEMORANDUM OPINION
Scott E. Stevens Chief Justice.
On July 18, 2023, a Marion County jury convicted Gregory Glenn Parker of burglary of a building. See Tex. Penal Code Ann. § 30.02(c)(1). After Parker pled true to the State's punishment enhancement allegations, the jury assessed a sentence of sixteen years' imprisonment, and the trial court adjudicated Parker guilty and sentenced him in accordance with the jury's verdict.
On appeal, Parker raises two bases for reversal: (1) the trial court committed egregious error when it failed to include an extraneous-offense instruction during punishment, and (2) the punishment charge should have admonished the jury that Parker's failure to testify could not be used against him. Because we find no error, we affirm the trial court's judgment.
I. No Extraneous-Offense Instruction Was Necessary
Parker claims the jury was not properly instructed during punishment regarding Article 37.07 of the Texas Code of Criminal Procedure. Parker had two prior felony convictions and claims the jury should have been instructed that the State was required to "prove [those] extraneous offenses beyond a reasonable doubt" before considering them during punishment. On review, we find that the trial court was not required to instruct the jury on this standard from Article 37.07 for Parker's two prior felony convictions.
A. Parker's Prior Felony Convictions
Article 37.07 allows for the admission of evidence "of an extraneous crime or bad act" during punishment "that is shown beyond a reasonable doubt by evidence to have been committed by the defendant." Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1). In Parker's case, during punishment, two of his prior convictions were offered to the jury without objection:
[By the State]: State's 30 is in Cause Number F14545, and it is judgment of conviction by jury of The State of Texas versus Gregory Glenn Parker that was on August 12, 2014, in the 276th Judicial District Court of Marion County, Texas, finding Gregory Glenn Parker guilty and assessing punishment of two years' confinement in the Institutional Division of the Texas Department of Criminal Justice.
State's 31, which is Cause Number F14094, State of Texas versus Gregory Glenn Parker, in the 115th Judicial District Court of Marion County, Texas, date of judgment 7/26/2010, which is a judgment revoking community supervision, sentenced to Institutional Division, for the offense of unlawful possession of firearm by a felon. Date of judgment is 7/26/2010. And attached to State's 31 is also a judgment of conviction by Court from March 8, 2010, for that offense, placing Gregory Glenn Parker on probation for two years.
Both of those were felony convictions: (1) cause number F14545 was a conviction for assault against a public servant under Section 22.01(b)(1) of the Texas Penal Code, and (2) cause number F14094 was a conviction for unlawful possession of a firearm by a felon under Section 46.04 of the Texas Penal Code. See Tex. Penal Code Ann. §§ 22.01(b)(1), 46.04 (Supp). These convictions were presented to the jury during punishment without an instruction that they be proven beyond a reasonable doubt.
B. A Limiting Instruction Was Not Required
Parker claims Article 37.07 requires "a limiting instruction to the jury" or an included instruction that those convictions should only "be considered if the jury believed them beyond a reasonable doubt." We find that no such instruction was required. Under Article 37.07, at punishment, evidence of Parker's "prior criminal record" is admissible at sentencing. Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1).
There is no qualification in this provision that a conviction be proven beyond a reasonable doubt. See Bluitt v. State, 137 S.W.3d 51, 54 (Tex. Crim. App. 2004) (recognizing that, "[i]n any final conviction, the evidence was subjected to judicial testing of guilt with a standard of proof beyond a reasonable doubt, and the burden of proof was met"). As stated in Bluitt, "[t]he critical issue is that testing of the proof because "[i]f an offense has been subject to such scrutiny and the burden of proof has been met, . . . it is part of a defendant's criminal record, and Art. 37.03, § 3, does not require further proof of guilt beyond a reasonable doubt." Id. Thus, no beyond-a-reasonable-doubt instruction is required for those prior convictions, and we find no jury-charge error on this issue.
II. No Instruction Was Required on Parker's Silence at Punishment
During the punishment phase of trial, Parker did not testify. The trial court did not instruct the jury as a part of the charge at the punishment phase that Parker's failure to testify could not be used against him. There is also no dispute that Parker's trial counsel did not request such an instruction be given during the punishment phase of the trial.
Despite his trial counsel's failure to request such an instruction during the punishment phase of his trial, in his second point on appeal, Parker claims that "[i]t was error not to admonish the jury" of his "Fifth Amendment privilege to remain silent and to not consider that when assessing punishment." Parker also claims that he was "egregiously harmed" by the jury-charge error and that his conviction should be reversed under the analysis in Alcoser v. State, 663 S.W.3d 160 (Tex. Crim. App. 2022), which applied the Almanza egregious-harm standard to jury-charge error. On review, we find that by not requesting this instruction, it was waived, and the Almanza egregious-harm analysis does not apply to these facts.
Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984).
A. Parker Forfeited Any Charge Error
While the jury could have been instructed on Parker's silence at the punishment phase of his trial and could have been instructed to "not draw an[] adverse inference" from that silence, such an instruction needed to be requested. Beathard v. State, 767 S.W.2d 423, 432 (Tex. Crim. App. 1989) (recognizing that, because the "right against self-incrimination extended to the punishment phase of trial," the defendant "was entitled to a 'no-adverse-inference' instruction upon timely request").
Here, Parker waived his right to this instruction because this request was not made to the trial court. See Tex. R. App. P. 33.1(a); see also Lee v. State, 766 S.W.2d 375, 376 (Tex. App - Texarkana 1989, no pet.) (finding "Lee ha[d] waived any error in connection with the requested instruction" because "Lee made no objection to the absence of an instruction on entrapment when the charge was given to the jury").
B. Almanza Harm Analysis Does Not Apply
Because there was no request for a "no-adverse-inferences" instruction during punishment and this issue was waived, the next issue is whether a harm analysis is required. In general, under the precedent in Almanza, where there is jury-charge error and no objection was made at the trial court level, a reversal may be merited where the harm is egregious. See Almanza, 686 S.W.2d at 171 (op. on reh'g); see also Alcoser, 663 S.W.3d at 165 (applying the harm analysis of Almanza). There is no charge error where the trial counsel chose not to request an instruction on a defensive theory. See Posey v. State, 966 S.W.2d 57, 62 (Tex. Crim. App. 1998). In such a situation, the trial court will not sua sponte include such an instruction without a request from trial counsel. Id. Further, the egregious harm standard from Almanza does not apply. See Carroll v. State, 266 S.W.3d 1, 3 n.2 (Tex. App-Waco 2008, pet. refd) (recognizing "[i]n cases governed by Posey, the egregious harm standard of Almanza does not apply").
A defensive theory includes whether a "no-adverse-inferences" instruction should be given. See Michaelwicz v. State, 186 S.W.3d 601, 624 (Tex. App-Austin 2006, pet. ref d) (applying Posey to a "no-adverse-inferences" instruction and finding no harm analysis required). Accordingly, pursuant to Posey, because Parker did not request a "no-adverse-inferences" instruction at trial and because such an instruction was on a defensive theory, the trial court was not required to sua sponte submit that instruction to the jury, there was no charge error, and the egregious-harm analysis from Almanza does not apply.
III. Conclusion
We affirm the trial court's judgment.