Opinion
No. 05-16-00930-CR
10-31-2017
DAVID DEWAYNE WRIGHT JR., Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 6 Dallas County, Texas
Trial Court Cause No. F-1476080-X
MEMORANDUM OPINION
Before Justices Lang, Evans, and Schenck
Opinion by Justice Lang
Following a plea of not guilty, appellant David Dewayne Wright Jr. was convicted by a jury of murder. Punishment was assessed by the jury at thirty-five years' imprisonment.
In a single issue on appeal, appellant contends "the charge of the [trial] court at punishment was fundamentally defective in that it incorrectly instructed the jury on appellant's eligibility to seek parole to his detriment in the sentence assessed." We decide appellant's issue against him. The trial court's judgment is affirmed.
I. FACTUAL AND PROCEDURAL CONTEXT
At trial, appellant did not dispute that he intentionally and knowingly caused the death of the complainant, Barry Lynn Johnson Jr., by shooting him with a firearm. However, appellant (1) claimed the defense of "necessity" and (2) alternatively, contended he acted under the immediate influence of sudden passion arising from an adequate cause. Appellant testified during the guilt/innocence phase of trial that several days before the incident in question, he saw Johnson outside of a Dallas convenience store and complimented him on a gold chain he was wearing. According to appellant, Johnson "just got to crazy" and started shooting a firearm. Appellant "took off running." Appellant stated that a few days later, he and Johnson were again outside the same convenience store and Johnson again "just started shooting." Appellant again ran away. At that point, appellant felt like Johnson "was going to try to kill me whenever he seen me." On the date of the incident in question, appellant visited the same convenience store and brought his gun to protect himself. When he arrived at the store, he saw Johnson in front of the store and "just panicked." He believed Johnson had a gun. Appellant "came up" behind Johnson's vehicle, shot Johnson in the back, then ran away and threw the gun "like, in some woods or something." Appellant stated that when he later spoke to police about the incident, he lied to them and told them he was not involved in the shooting because he "didn't want to come to jail."
Officer Chris Cooley of the Dallas Police Department testified that at approximately 9:40 p.m. on the date of the incident in question, he responded to a 9-1-1 call respecting a shooting at a convenience store in southeast Dallas. When he arrived at the scene, he saw Johnson's dead body lying on the ground between an SUV and a pickup truck. Cooley stated he spoke to witnesses and viewed a video recording from the store's surveillance camera. He stated the video recording showed Johnson walking out of the store carrying sodas he had purchased. According to Cooley, as Johnson headed toward his pickup truck, he was "distracted" by something "off in the corner." Cooley testified that at that point, "a male steps out from behind the pickup and fires shots directly into the deceased." Johnson was shot four times, in his back, buttocks, and through the back of his left arm and into his chest. Based on fingerprints lifted from the outside of a vehicle at the scene, appellant was subsequently arrested and charged with the murder of Johnson. Further, Cooley testified a loaded semiautomatic rifle was found inside Johnson's truck.
The video recording described by Cooley was played for the jury. Also, several witnesses testified they heard the gunshots in question, saw Johnson collapse, and saw the shooter run away.
After the jury found appellant guilty, the punishment phase of trial commenced. The charge of the court as to punishment instructed the jury that if they found appellant did not act while under the immediate influence of sudden passion arising from an adequate cause, they were to assess punishment at confinement "for life, or any term of not more than 99 years or less than 5 years" and, in addition, "a fine not to exceed $10,000 may be imposed." Further, the charge stated in part,
Under the law applicable in this case, the defendant, if sentenced to a term of imprisonment, may earn time off the sentence 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. It cannot accurately be predicted how the parole law and good conduct time might be applied to this defendant if he is sentenced to a term of imprisonment, because the application of these laws will depend on decisions made by prison and parole authorities.
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.
. . . .
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 are no concern of yours.
During closing argument, appellant's trial counsel stated in part,
To try to figure out and second guess what a parole board may do, how the laws of the State of Texas may change, don't do it. I have been doing this for a long time, and I have given up figuring out what they are going to try to do, and there is just no way. Whatever you think is appropriate, put that the number down, and assume that he will serve each and every day of it. That's the only logical way to approach it.
The jury found appellant did not act under the immediate influence of sudden passion arising from an adequate cause and assessed punishment as described above. This appeal timely followed.
II. ERROR IN PUNISHMENT CHARGE
A. Standard of Review
Our first duty in analyzing alleged jury charge error is to decide whether error exists. See, e.g., Cortez v. State, 469 S.W.3d 593, 598 (Tex. Crim. App. 2015); Duenas v. State, No. 05-14-00192-CR, 2015 WL 1243345, at *6 (Tex. App.-Dallas Mar. 16, 2015, no pet.) (mem. op., not designated for publication) (citing Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012)). If error exists, we must determine whether the error caused sufficient harm to warrant reversal. See, e.g., Marshall v. State, 479 S.W.3d 840, 843 (Tex. Crim. App. 2016); Duenas, 2015 WL 1243345, at *6 (citing Ngo v. State, 175 S.W.3d 738, 743-44 (Tex. Crim. App. 2005)). "Where, as here, the defendant did not raise a timely objection to the jury instructions, reversal is required only if the error was fundamental in the sense that it was so egregious and created such harm that the defendant was deprived of a fair and impartial trial." Villarreal v. State, 453 S.W.3d 429, 433 (Tex. Crim. App. 2015); Duenas, 2015 WL 1243345, at *6. Error is egregiously harmful if it affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory. See, e.g., Nava v. State, 415 S.W.3d 289, 298 (Tex. Crim. App. 2013); Hubert v. State, No. 05-12-01084-CR, 2014 WL 1022324, at *13 (Tex. App.-Dallas Mar. 4, 2014, pet. ref'd) (not designated for publication) (citing Stuhler v. State, 218 S.W.3d 706, 719 (Tex. Crim. App. 2007)). In making this determination, we examine (1) the entire charge; (2) the state of the evidence, including contested issues and weight of the evidence; (3) arguments of counsel; and (4) any other relevant information. See, e.g., Arrington v. State, 451 S.W.3d 834, 840 (Tex. Crim. App. 2015); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). Egregious harm is a "high and difficult standard" to meet, and such a determination must be "borne out by the trial record." Villarreal, 453 S.W.3d at 433 (citing Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013)). Further, we will not reverse a conviction unless the defendant has suffered "actual rather than theoretical harm." Id. (citing Cosio v. State, 353 S.W.3d 766, 777 (Tex. Crim. App. 2011)).
B. Applicable Law
Article 37.07 of the Texas Code of Criminal Procedure states in part that when a jury has found a defendant guilty of the offense of which appellant was convicted in this case and punishment is to be assessed by the jury, the trial court shall charge the jury in writing as follows:
Under the law applicable in this case, if the defendant is sentenced to a term of imprisonment, the defendant 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 the defendant may earn. . . . Eligibility for parole does not guarantee that parole will be granted.TEX. CODE CRIM. PROC. ANN. art. 37.07, § 4(a) (West Supp. 2016).
C. Application of Law to Facts
Appellant asserts that during the punishment phase of trial, the jury (1) "was instructed that appellant was entitled to receive good time on any sentence assessed which could reduce the length of incarceration" and (2) "was not instructed that in fact appellant's parole eligibility would be determined by actual time served and the sentence would not be reduced by any good time awarded." According to appellant, "the jury assessed a lengthy sentence thinking that the time served could be reduced by good time awarded for parole purposes," and "[i]f the jury had been properly instructed that appellant would have to serve one-half of the sentence assessed without the award of good time credits they may well have assessed a shorter sentence." Further, appellant argues that "considering that [he] received a lengthy sentence, the incorrect parole instruction actually given was egregiously harmful to him."
The State agrees that the punishment charge in question was erroneous because it omitted an instruction required by article 37.07. However, the State asserts "there is nothing in the record to support appellant's claim that the court's failure to include the unrequested parole eligibility instruction in the jury charge prevented him from receiving a fair and impartial trial or caused egregious harm."
Although the jury charge in question erroneously described parole eligibility, consideration of the relevant factors described above does not lead us to a conclusion of egregious harm. See Igo v. State, 210 S.W.3d 645, 647-48 (Tex. Crim. App. 2006); Hogan v. State, 440 S.W.3d 211 (Tex. App.—Houston [14th Dist.] 2013, pet. ref'd). First, as to the "entire charge," the record shows that, in addition to the instruction complained of by appellant, the charge instructed the jury that it was (1) "not to consider the extent to which good conduct time may be awarded to or forfeited by this particular defendant," (2) "not to consider the manner in which the parole law may be applied to this particular defendant," and (3) "not to discuss among yourselves how long the defendant will be required to serve any sentence you decide to impose" because "[s]uch matters come within the exclusive jurisdiction of the Board of Pardons and Paroles and are no concern of yours." "Absent evidence to the contrary, we presume jurors understood and followed the trial court's instructions in the jury charge." Duenas, 2015 WL 1243345, at *8 (citing Taylor v. State, 332 S.W.3d 483, 492 (Tex. Crim. App. 2011)). "Nothing in the record suggests that the jury discussed, considered or tried to apply (despite the judicial admonition not to apply) what they were told about good conduct time and parole." Hubert, 2014 WL 1022324, at *14.
Second, as to the "state of the evidence," (1) appellant did not dispute that he shot Johnson in the back multiple times, threw the gun in "some woods," and lied to police about his involvement in the shooting, and (2) the jury viewed a video recording of the shooting. Thus, "[t]he record provides a basis for the jury's assessment of punishment without suggesting harm from the erroneous charge." Duenas, 2015 WL 1243345, at *8; see Hubert, 2014 WL 1022324, at *14.
Third, we consider "arguments of counsel." The record shows (1) the prosecution did not mention parole in its argument and (2) counsel for appellant stated in part during closing argument that the jury should not try to "second guess what a parole board may do," but rather, should select a length of confinement they felt was "appropriate" and "assume that [appellant] will serve each and every day of it." Thus, this factor mitigates against a finding of egregious harm. See Hogan, 440 S.W.3d at 218 (no egregious harm from erroneous parole instruction where "parole was not mentioned by the prosecution during sentencing and was only mentioned by the defense to explain that the jury is not to consider the manner in which parole law might apply to appellant").
Finally, as to "other relevant information," we consider appellant's argument that he "received a lengthy sentence." See Duenas, 2015 WL 1243345, at *9 (considering severity of punishment as "other relevant information"). As described above, the jury (1) was instructed that they were to assess punishment at confinement "for life, or any term of not more than 99 years or less than 5 years" and, in addition, "a fine not to exceed $10,000 may be imposed," and (2) assessed punishment at thirty-five years' imprisonment and no fine. Thus, appellant received less than one-half of the maximum sentence allowed. We cannot conclude that sentence demonstrates egregious harm. See Hogan, 440 S.W.3d at 218 (no egregious harm respecting erroneous parole instruction where maximum punishment for offense was life sentence and appellant was sentenced to thirty years' imprisonment).
After considering the relevant factors, we conclude the record before us does not show appellant was egregiously harmed by the jury charge error in question. We decide against appellant on his issue.
III. CONCLUSION
We decide appellant's sole issue against him. The trial court's judgment is affirmed.
/Douglas S. Lang/
DOUGLAS S. LANG
JUSTICE Do Not Publish
TEX. R. APP. P. 47.2(b)
160930F.U05
JUDGMENT
On Appeal from the Criminal District Court No. 6, Dallas County, Texas
Trial Court Cause No. F-1476080-X.
Opinion delivered by Justice Lang, Justices Evans and Schenck participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 31st day of October, 2017.