Williams, Larrlyon Deshun ( 2015 )

PD-0041-15
JANUARY 16, 2015
PDR No. ______________________
_________________________________________
In The Court of Criminal Appeals of Texas
_________________________________________
LARRLYON DESHUN WILLIAMS, Appellant
v.
THE STATE OF TEXAS, Appellee.
_________________________________________
On Appellant’s Petition for Discretionary Review
From the Fourteenth Court of Appeals,
Appeal No. 14-13-00156-CR,
On Appeal from the 240th District Court
of Fort Bend County Texas,
Cause No. 10-DCR-054992A.
_________________________________________
PETITION FOR DISCRETIONARY REVIEW
FOR APPELLANT, LARRLYON DESHUN WILLIAMS
_________________________________________
Oral Argument Requested
Cary M. Faden
77 Sugar Creek Center Blvd., Suite 230
Sugar Land, Texas 77478
Telephone: (281) 491-6182
Texas Bar No. 06768725
E-MAIL: caryfaden@aol.com
Attorney for Appellant
Table of Contents
Index of Authorities.......................................................................................................iv
Statement Regarding Oral Argument..............................................................................v
Statement of the Case.....................................................................................................vi
Procedural History of the Case......................................................................................vi
Ground for Discretionary Review...................................................................................2
GROUND ONE
THE FOURTEENTH COURT OF APPEALS ERRED IN
REFUSING TO CONDUCT A HARM ANALYSIS AND TO
APPLY THE LAW IN AFFIRMING APPELLANT’S
CONVICTION IN FINDING THE TRIAL COURT DID NOT
COMMIT ERROR IN PROVIDING A CORRECTED CHARGE
TO THE JURY AFTER DELIBERATIONS HAD BEGUN, THE
PREREQUISITES OF ARTICLE 36.16 OF THE TEXAS CODE
OF CRIMINAL PROCEDURE HAVING NOT BEEN MET.
Reasons to Grant Review in Support of Ground for Review.........................................2
Review is appropriate, under Tex. R. App. P. 66.3(a), because the Court
Of Appeals has rendered a decision, which is in conflict with the
decisions of another court of appeals on the same matter, namely:
Ground One: Allen v. State, 253 S.W.3d 260, 264 (Tex. Crim. App.
2008); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. .1985)
(op. on reh'g)); Bustillos v. State, 464 S.W.2d 118, 125 (Tex. Crim. App.
1971); Daniefi v. State, 848 S.W.2d 145, 147 (Tex. Crim. App. 1993);
Duc Vu v. State, 750 S.W.2d 8, 9 (Tex. App. - Texarkana 1988, pet.
ref'd); Garza v. State, 55 S.W.3d 74, 77 (Tex. App. - Corpus Christi
2001, pet. ref'd); Jimenez v. State, 32 S.W.3d 233, 237 (Tex. Crim. App.
2000); Loving v. State, 947 S.W.2d 615, 619 (Tex. App. - Austin 1997,
ii
no pet.); Moore v. State, 848 S.W.2d 920, 923 (Tex. App. - Houston [1st
Dist.] 1993, pet. ref'd); Murray v. State, 857 S.W.2d 806, 811 (Tex. App.
- Fort Worth 1993, pet. ref'd); Pennington v. State, 697 S.W.2d 387, 390
(Tex. Crim. App.1985); Posey v. State, 966 S.W.2d 57, 60 (Tex. Crim.
App. 1998); Roise v. State, 7 S.W.3d 225,242 (Tex. App.--Austin 1999,
pet. ref'd); Smith v. State, 898 S.W.2d 838, 854-55 (Tex. Crim. App.
1995); Taylor v. State, 332 S.W.3d 483, 489 (Tex. Crim. App. 2011);
Teamer v. State, 429 S.W.3d 164, 172 (Tex. App. - Houston [14th Dist.]
2014, no pet.); Williams v. State, 930 S.W.2d 898, 902 (Tex. App. -
Houston [1st Dist.] 1996, pet. ref'd); Vega v. State, 394 S.W.3d 514, 518
(Tex. Crim. App. 2013).
Review is proper, under Tex. R. App. P. 66.3 (b), because the Court Of
Appeals has rendered a decision, which encompasses an important
question of state law, which has not been, but should be, settled by this
Court.
Review is important, under Tex. R. App. P. 66.3(f), because the Court
Of Appeals has so far departed from the accepted and usual course of
judicial proceedings, as to call for an exercise of this Court’s power of
supervision.
Argument And Authorities In Support Of Ground For Review
One..................................................................................................................................3
Prayer for Relief............................................................................................................13
Certificate of Service.....................................................................................................14
iii
INDEX OF AUTHORITIES
CASES:
Allen v. State, 253 S.W.3d 260, 264 (Tex. Crim. App. 2008)..................................ii,2,4
Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. .1985) (op. on
reh'g))...................................................................................................................ii,2,4,10
Bustillos v. State, 464 S.W.2d 118, 125 (Tex. Crim. App. 1971)............................ii,2,5
Daniefi v. State, 848 S.W.2d 145, 147 (Tex. Crim. App. 1993)............................ii,2,12
Duc Vu v. State, 750 S.W.2d 8, 9 (Tex. App. - Texarkana 1988, pet. ref'd)............ii,2,9
Garza v. State, 55 S.W.3d 74, 77 (Tex. App. - Corpus Christi 2001, pet. ref'd)...ii,2,12
Jimenez v. State, 32 S.W.3d 233, 237 (Tex. Crim. App. 2000)..........................ii,2,4,10
Loving v. State, 947 S.W.2d 615, 619 (Tex. App. - Austin 1997, no pet.)..............ii,2,9
Moore v. State, 848 S.W.2d 920, 923 (Tex. App. - Houston [1st Dist.] 1993, pet.
ref'd).......................................................................................................................iii,2,11
Murray v. State, 857 S.W.2d 806, 811 (Tex. App. - Fort Worth 1993, pet.
ref'd).......................................................................................................................iii,2,11
Pennington v. State, 697 S.W.2d 387, 390 (Tex. Crim. App.1985).......................iii,2,9
Posey v. State, 966 S.W.2d 57, 60 (Tex. Crim. App. 1998).................................iii,2,4,6
Roise v. State, 7 S.W.3d 225,242 (Tex. App.--Austin 1999, pet. ref'd)................iii,2,12
Smith v. State, 898 S.W.2d 838, 854-55 (Tex. Crim. App. 1995).......................iii,3,5,6
Taylor v. State, 332 S.W.3d 483, 489 (Tex. Crim. App. 2011)..............................iii,2,4
iv
Teamer v. State, 429 S.W.3d 164, 172 (Tex. App.—Houston [14th Dist.] 2014, no
pet.)....................................................................................................................iii,3,5,6,7
Williams v. State, 930 S.W.2d 898, 902 (Tex. App. - Houston [1st Dist.] 1996, pet.
ref'd).........................................................................................................................iii,3,9
Vega v. State, 394 S.W.3d 514, 518 (Tex. Crim. App. 2013).................................iii,3,5
STATUES, CODES, AND RULES:
Tex. Code Crim. Proc. Ann. art. 36.14...........................................................................9
Tex. Code Crim. Proc. Ann. art. 36.15...........................................................................9
Tex. Code Crim. Proc. Ann. art. 36.16.............................................................4,5,7,9,12
Tex. Code Crim. Proc. Ann. art. 36.19 (West 2006)......................................................5
Tex. Gov't Code Ann. § 508.145(d)(1) (West 2012)......................................................6
Tex. R. App. P. 66.3(a).............................................................................................ii,2,3
Tex. R. App. P. 66.3(b)............................................................................................iii,2,3
Tex. R. App. P. 66.3(f).........................................................................................iii,2,3,4
Tex. R. App. P. 68.2......................................................................................................vii
Tex. R. App. P. 68.4(c)...................................................................................................v
STATEMENT REGARDING ORAL ARGUMENT
Pursuant to Tex. R. App. P. 68.4(c), counsel respectfully requests oral
argument. Oral argument would be helpful in the event this petition for discretionary
review is granted. This appeal involves questions of law, questions of fact, public
v
policy and procedure which cannot be adequately addressed, analyzed and evaluated
through written communication alone. Oral argument is essential to emphasize the
unique characteristics of these questions and to address the unforeseeable exigencies
arising during the Court’s consideration of this appeal.
STATEMENT OF THE CASE
On November 26, 2012, Larrlyon Deshun Williams, Appellant, was indicted
for the first degree felony offense of aggravated assault. (1 CR at 9). The offense was
alleged to have occurred on or about May 22, 2010. (1 CR at 9). On January 16, 2013,
Appellant pleaded not guilty to the indictment. (4 RR at 9-12). After a jury trial, the
jury assessed Appellant’s punishment at confinement in the Texas Department of
Criminal Justice-Institutional Division for a period of forty-five (45) years, with a
$10,000.00 fine. (1 CR at 65). On February 6, 2013, Appellant timely filed his notice
of appeal. (1 CR at 76).
PROCEDURAL HISTORY OF THE CASE
On November 25, 2014, the Fourteenth Court of Appeals affirmed Appellant’s
conviction. Williams v. State, No. 14-13-00156-CR, slip op. at 1-16 (Tex. App.–
Houston [14th Dist.], November 25, 2014, pet. pending). On December 4, 2014,
Appellant timely filed his motion for rehearing. The Fourteenth Court Of Appeals
overruled and denied Appellant’s Motion For Rehearing on December 23, 2014. On
vi
January 12, 2015, Appellant timely filed this Petition For Discretionary Review with
the Clerk of the Court Of Criminal Appeals. TEX. R. APP. P. 4.1 and 68.2.
vii
PDR No. ______________________
_________________________________________
In The Court of Criminal Appeals of Texas
_________________________________________
LARRLYON DESHUN WILLIAMS, Appellant
v.
THE STATE OF TEXAS, Appellee.
_________________________________________
On Appellant’s Petition for Discretionary Review
From the Fourteenth Court of Appeals,
Appeal No. 14-13-00156-CR,
On Appeal from the 240th District Court
of Fort Bend County Texas,
Cause No. 10-DCR-054992A.
_________________________________________
PETITION FOR DISCRETIONARY REVIEW
FOR APPELLANT, LARRLYON DESHUN WILLIAMS
_________________________________________
TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:
COMES NOW Appellant, Larrlyon Deshun Williams, by and through his
attorney of record, Cary M. Faden, and files this petition for discretionary review of
the November 25, 2014, decision of the Fourteenth Court of Appeals of Texas in
1
Will. v. State, No. 14-13-00156-CR, slip op. at 1-16 (Tex. App. – Houston [14th
Dist.], November 25, 2014, pet. pending); and would respectfully show the Court
following:
GROUNDS FOR REVIEW
GROUND ONE
THE FOURTEENTH COURT OF APPEALS ERRED IN
REFUSING TO CONDUCT A HARM ANALYSIS AND TO
APPLY THE LAW IN AFFIRMING APPELLANT’S
CONVICTION IN FINDING THE TRIAL COURT DID NOT
COMMIT ERROR IN PROVIDING A CORRECTED CHARGE
TO THE JURY AFTER DELIBERATIONS HAD BEGUN, THE
PREREQUISITES OF ARTICLE 36.16 OF THE TEXAS CODE
OF CRIMINAL PROCEDURE HAVING NOT BEEN MET.
REASONS TO GRANT REVIEW IN SUPPORT OF GROUNDS FOR REVIEW
Review is appropriate, under Tex. R. App. P. 66.3(a), because the Court
Of Appeals has rendered a decision, which is in conflict with the
decisions of another court of appeals on the same matter, namely:
Ground One: Allen v. State, 253 S.W.3d 260, 264 (Tex. Crim. App.
2008); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. .1985)
(op. on reh'g)); Bustillos v. State, 464 S.W.2d 118, 125 (Tex. Crim. App.
1971); Daniefi v. State, 848 S.W.2d 145, 147 (Tex. Crim. App. 1993);
Duc Vu v. State, 750 S.W.2d 8, 9 (Tex. App. - Texarkana 1988, pet.
ref'd); Garza v. State, 55 S.W.3d 74, 77 (Tex. App. - Corpus Christi
2001, pet. ref'd); Jimenez v. State, 32 S.W.3d 233, 237 (Tex. Crim. App.
2000); Loving v. State, 947 S.W.2d 615, 619 (Tex. App. - Austin 1997,
no pet.); Moore v. State, 848 S.W.2d 920, 923 (Tex. App. - Houston [1st
Dist.] 1993, pet. ref'd); Murray v. State, 857 S.W.2d 806, 811 (Tex. App.
- Fort Worth 1993, pet. ref'd); Pennington v. State, 697 S.W.2d 387, 390
(Tex. Crim. App.1985); Posey v. State, 966 S.W.2d 57, 60 (Tex. Crim.
App. 1998); Roise v. State, 7 S.W.3d 225,242 (Tex. App.--Austin 1999,
2
pet. ref'd); Smith v. State, 898 S.W.2d 838, 854-55 (Tex. Crim. App.
1995); Taylor v. State, 332 S.W.3d 483, 489 (Tex. Crim. App. 2011);
Teamer v. State, 429 S.W.3d 164, 172 (Tex. App. - Houston [14th Dist.]
2014, no pet.); Williams v. State, 930 S.W.2d 898, 902 (Tex. App. -
Houston [1st Dist.] 1996, pet. ref'd); Vega v. State, 394 S.W.3d 514, 518
(Tex. Crim. App. 2013).
Review is proper, under Tex. R. App. P. 66.3 (b), because the Court Of
Appeals has rendered a decision, which encompasses an important
question of state law, which has not been, but should be, settled by this
Court.
Review is important, under TEX. R. APP. P. 66.3(f), because the Court
Of Appeals has so far departed from the accepted and usual course of
judicial proceedings, as to call for an exercise of this Court’s power of
supervision.
ARGUMENT AND AUTHORITIES IN SUPPORT OF
GROUND FOR REVIEW ONE
In its November 25, 2014, opinion, the Fourteenth Court Of Appeals affirmed
Appellant’s conviction in finding the trial court did not commit error by providing a
corrected jury charge to the jury after deliberations had begun because the
prerequisites of Article 36.16 of the Texas Code of Criminal Procedure had not been
met and refused to conduct a harm analysis.
This Court should review this issue, and review is appropriate, under Tex. R.
App. P. 66.3(a), because the Court Of Appeals has rendered a decision, which is in
conflict with the decisions of another court of appeals on the same matter; and review
is appropriate, under Tex. R. App. P. 66.3 (d), because the Court Of Appeals appears
3
to have misconstrued a statute, rule, regulation, or ordinance; and review is important,
under Tex. R. App. P. 66.3(f), because the Court Of Appeals has so far departed from
the accepted and usual course of judicial proceedings, as to call for an exercise of this
Court’s power of supervision.
The Fourteenth Court Of Appeals stated in its opinion: Article 36.19 of the
Code of Criminal Procedure provides separate standards of review for preserved and
unpreserved errors relating to the jury charge. Jimenez v. State, 32 S.W.3d 233, 237
(Tex. Crim. App. 2000). If an error was the subject of a timely objection in the trial
court, reversal is required if the error "was calculated to injure the rights of the
defendant"—that is, the defendant suffered "some harm." Id. If there was no
objection, we will reverse only if it appears from the record that appellant was denied
a "fair and impartial trial," and therefore suffered "egregious harm." Taylor v. State,
332 S.W.3d 483, 489 (Tex. Crim. App. 2011) (quoting Almanza v. State, 686 S.W.2d
157, 171 (Tex. Crim. App. .1985) (op. on reh'g)). Egregious harm occurs when the
error "affects the very basis of the case, deprives the defendant of a valuable right, or
vitally affects a defensive theory." Allen v. State, 253 S.W.3d 260, 264 (Tex. Crim.
App. 2008).
Neither standard of harm applies, however, unless there is error in the jury
charge. Posey v. State, 966 S.W.2d 57, 60 (Tex. Crim. App. 1998). Disregarding a
4
requirement of Article 36.16 is an error to which these standards apply. Id.; see Tex.
Code Crim. Proc. Ann. art. 36.19 (West 2006); Teamer v. State, 429 S.W.3d 164, 172
(Tex. App.—Houston [14th Dist.] 2014, no pet.). Accordingly, we begin by
considering whether the trial court complied with Article 36.16.
Appellant asserts that providing a corrected jury charge was erroneous because
Article 36.16, with certain express exceptions not applicable here, precludes the trial
court from amending the charge after closing arguments have ended. See Tex. Code
Crim. Proc. Ann. art. 36.16 (West 2006) (providing that after jury arguments begin,
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"). The Court of Criminal Appeals has construed
Article 36.16 to accommodate the trial court's post-argument correction of an
erroneous charge, however. See Smith v. State, 898 S.W.2d 838, 854-55 (Tex. Crim.
App. 1995); Bustillos v. State, 464 S.W.2d 118, 125 (Tex. Crim. App. 1971) ("[T]he
court may before verdict withdraw and correct its charge if convinced an erroneous
charge has been given."); Teamer, 429 S.W.3d at 172-73; see also Vega v. State, 394
S.W.3d 514, 518 (Tex. Crim. App. 2013) ("The trial judge is ultimately responsible
for the accuracy of the jury charge and accompanying instructions.") (internal
quotation marks omitted).
5
In this case, the trial court mistakenly omitted some language in its jury charge
during the punishment phase. The charge informed the jurors that if they sentenced
appellant to a term of imprisonment, he would not be eligible for parole until he
served one-half of the imposed prison sentence. The instruction was incomplete.
Section 508.145 of the Texas Government Code provides that an individual is not
eligible for parole until the time served equals one-half of the sentence imposed or
30 years, whichever is less. Tex. Gov't Code Ann. § 508.145(d)(1) (West 2012)
(emphasis added). Because, as appellant's trial counsel conceded, the court corrected
an erroneous charge, the court did not err by providing the corrected instruction after
deliberations had begun. See Smith, 898 S.W.2d at 854-55; Teamer, 429 S.W.3d at
172-73. Given the lack of an error, we need not examine whether appellant suffered
any harm as a result of the trial court's correction. Posey, 966 S.W.2d at 60. The
Fourteenth Court overruled appellant's second issue.
Appellant contended the trial court prepared a punishment charge that neither
the State nor appellant objected to the charge. (15 RR at 4-5). After deliberating for
a hours, the jury sending out no notes, the Court proposed a supplemental charge that
included a charge on the issue relating to the number of years to be served regarding
parole law. The State had no objection, but appellant did. Appellant's Counsel: “After
hours of deliberations the Court, THE COURT: We are here now outside the
6
presence of the jury. The jury has been deliberating for some time. However, the
Court has found that there was an omission in some boilerplate language for the
charge as it was originally given to the jury; specifically, the words "for 30 years,
whichever is less" was omitted in subparagraph 3 of paragraph iii in the previous
charge. I propose to bring the jury back into the jury room, tell them to disregard
subparagraph 3 in paragraph iii of the previous charge and to follow the instructions
contained below as the new subparagraph 3 in paragraph iii of the charge: "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. Eligibility of parole does not guarantee that parole
will be granted. It cannot accurately be predicted how the parole law and good
conduct time might be applied to this defendant if he's sentenced to a term of
prisonment, because application of these laws will depend upon decisions made by
prison and parole authorities." That is the proposed correction that I intend to make
on the charge and submit it to the jury. Is there any objection by the State. MS.
VINSON: None from the State, Your Honor. THE COURT: Mr. Diaz? MR. DIAZ:
Yes. I think I -- for purposes of the record, I do have to make an objection under
Article 36.16 of the Code of Criminal Procedure and on three down after the
7
argument. It begins: "No further charge shall be given to the jury unless required by
the improper argument of counsel or the request of the jurors or unless the judge shall
in his discretion permit the introduction of other testimony. And in the event of such
further charge, the defendant or his counsel shall have the right to present objection
in the same manner as described in Article 36.15," which refers to the requested
special charges. THE COURT: Do you agree that the phrase "or 30 years, whichever
is less" is improperly omitted from the current charge? MR. DIAZ: I do, Judge. But
I don't know if that's what they're hung up on right now. THE COURT: I'm not
addressing what they're hung up on. They have been out several hours deliberating.
But my question is, simply, Do you -- do you agree that the language "for 30 years,
whichever is less" should have been included in the charge as originally read to the
jury. MR. DIAZ: I think that's correct, Judge. THE COURT: All right. And as I'm
reading it now, those -- although I'm replacing the whole paragraph so that it's in
context, those are the only words that are actually different in this replacement
instruction than the jury has in its hands right now. Do you agree with that? MR.
DIAZ: Yes. THE COURT: All right. So you're objecting to me giving any corrected
charge, period? MR. DIAZ: Because the prerequisites have not been met – THE
COURT: All right. MR. DIAZ: -- according to 36.16. THE COURT: It appears to the
Court that, it having inadvertently come to the Court's attention that those words were
8
omitted from the original charge, it would be improper for me not to bring the jury
back in and give them that additional instruction so that they will have the correct law
as it relates to parole, to use for whatever purposes they need to use it in their
deliberations. There will be no additional -- is anybody requesting any additional
argument on that? MS. VINSON: No, Judge. No other comments or statements. MR.
DIAZ: No, Judge. (Jury enters courtroom), Court’s supplemental charge is read,
(Jury retired for deliberations). (16 RR at 4-9).”
There was no additional argument by both sides, the supplemental charge was
submitted to the jury. Shortly thereafter, the jury announced it had reached a verdict.
To preserve jury charge error, the defendant's objection must be specific and clear
enough to apprise the trial court of the nature of the objection. TEX. CODE CRIM.
PROC. art. 36.14; TEX. R. APP. P. 33.1(a)(1)(A); Pennington v. State, 697 S.W.2d
387, 390 (Tex. Crim. App.1985); Williams v. State, 930 S.W.2d 898, 902 (Tex. App. -
Houston [1st Dist.] 1996, pet. ref'd). If a specific objection to a charge is not raised
at trial, it is not preserved for appeal. Calicult v. State, 503 S.W.2d 574,576 n. 3 (Tex.
Crim. App.1974); Loving v. State, 947 S.W.2d 615, 619 (Tex. App. - Austin 1997, no
pet.); Duc Vu v. State, 750 S.W.2d 8, 9 (Tex. App. - Texarkana 1988, pet. ref'd).
Reviewing this record, appellant did make a clear and specific objection to
apprise the trial court of the nature of the objection, and make objections to the charge
9
specifically on article 36.16 grounds. However, because appellant has complained of
jury charge error, our inquiry cannot end here. Appellant contends the trial court's
submission of the supplemental charge constitutes reversible charge error under
Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984). It is well-settled that an
appellant who complains on appeal of an unobjected-to, non-constitutional jury
charge error will obtain a reversal only if the error is so egregious and created such
harm that he has not had a fair and impartial trial. Jimenez v. State, 32 S.W.3d 233,
235 (Tex. Crim. App.2000); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App.
1984). Appellant argues that, even though he did object to the charge although non-
specifically on article 36.16 grounds, the submission of the supplemental charge was
error under that article, and its submission to the jury constitutes egregious error.
The only conclusion is the submission of the supplemental charge was error
under article 36.16. None of the prerequisites of the article was met in this case; the
jury did not request further instructions, and there had been neither improper
argument nor any new testimony adduced after the original charge was given. The
only conclusion is that the erroneous submission of the parole law charge, after the
jury had begun to deliberate, egregiously harmed appellant by depriving him of a
valuable right--his right to representation by counsel.
Appellant's trial counsel could have requested the inclusion of the parole law
10
charge, but he made a tactical decision not to do so. In his closing argument, counsel
stressed that, see closing statement. (15 RR at 32-33). Trial counsel made no
specific reference to any number of years. The jury had sent no notes. The trial
court's decision to supplement the charge with the parole law charge effectively
overroded the professional judgment of appellant's counsel. See Murray v. State, 857
S.W.2d 806, 811 (Tex. App. - Fort Worth 1993, pet. ref'd) (supplemental charge
adding a definition of "in the course of theft" to include an attempt to flee violated
appellant's right to counsel).
Furthermore, the supplemental charge vitally affected a defensive theory. In his
closing argument, appellant's counsel pursued two theories: (1) that appellant was a
party, and that the State was “trying to take these actions of Kazzaz and transfer them
over to Larrlyon and impact your emotion,” and (2) that appellant did not use a
firearm. To convict appellant of aggravated assault of a public servant, the jury was
required to disbelieve appellant's defensive theories. When the judge gave the
supplemental instruction, it must have seemed to the jury as if he was answering
defense counsel's arguments. From then on, it was as if counsel's opponent was not
the prosecutor, but the judge. That denied appellant a fair trial. Moore v. State, 848
S.W.2d 920, 923 (Tex. App. - Houston [1st Dist.] 1993, pet. ref'd) (holding a
supplemental charge adding a charge on the law of parties denied appellant a fair
11
trial). The trial court's supplementation of the charge to add a parole law charge after
deliberation had begun and the jurors had not sent out any notes constitutes egregious
error. The judgment of the trial court should be reversed, and the case is remanded for
a new trial. Additionally, Appellant asserts that the trial court, by providing the
definition of a parole law charge, emphasized the conviction unduly, informed the
jury about the specific facts of the case, and commented on the weight of the
evidence.
When the trial judge responds substantively to a jury question during
deliberations, that communication essentially amounts to an additional or
supplemental jury instruction. Daniefi v. State, 848 S.W.2d 145, 147 (Tex. Crim.
App. 1993). A trial court has broad discretion in submitting proper definitions to the
jury. Roise v. State, 7 S.W.3d 225,242 (Tex. App.--Austin 1999, pet. ref'd). A trial
court is allowed to give a supplemental instruction if requested by the jury. See Garza
v. State, 55 S.W.3d 74, 77 (Tex. App. - Corpus Christi 2001, pet. ref'd) (stating that,
if prerequisites of article 36.16 are met, court may give supplemental charge); Tex.
Code Crim. Proc. Ann. art. 36.16 (Vernon Supp. 2004). This case is not analogous to
providing the jury with a statutorily correct definition.
Appellant is in dispute with the Fourteenth Court’s opinion issued and requests
that this Court consider this Petition For Discretionary Review. Appellant urges this
12
Petition based upon the fact that this Court attempts to address the issues as briefed.
The Court Of Appeals lack of cited case law has departed from the accepted and usual
course of judicial proceedings and the case law cited by Appellant in his Petition For
Discretionary Review, as to call for an exercise of this Court’s power of supervision.
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Appellant, Larrlyon Deshun
Williams, prays that the Court grant the Petition For Discretionary Review for
Appellant, order briefing on this cause, and set it for submission at the earliest
possible date. Moreover, upon submission and review of the appellate record and the
briefs and arguments of counsel, the Court issue an opinion resolving this conflict so
that the bench and bar of this state will know how to address and dispose of similar
issues in the future.
Respectfully submitted,
/s/CARY M. FADEN
Cary M. Faden
SBN 06768725
Counsel for Appellant
77 Sugar Creek Center Blvd., Suite 230
Sugar Land, Texas 77478
Telephone: (281) 491-6182
Facsimile: (281) 491-0049
E-Mail: caryfaden@aol.com
Attorney For Appellant
13
CERTIFICATE OF COMPLIANCE, T.R.A.P., RULE 9.4(3)
In accordance with TEX. R. APP. P. 9.4(3), I Cary M. Faden, certify that this
is a computer generated document and I state that the number of words in this
document is approximately 4,447 words. I am relying on the word count of the
computer program used to prepare this document.
/s/CARY M. FADEN
Cary M. Faden
CERTIFICATE OF SERVICE
In accordance with Tex. R. App. P. 9.5, I, Cary M. Faden, certify that a true and
correct copy of the foregoing Petition For Discretionary Review has been served, by
U.S. Mail, upon Larrlyon Deshun Williams, to the attorney for the State Of Texas,
John F. Healey, Jr., District Attorney, Appellate Division, 301 Jackson Street, Room
101, Richmond, Texas 77469, to the State Of Texas Prosecuting Attorney, Lisa C.
McMinn, P. O. Box 13046, Captiol Station, Austin, Texas 78711 on this the 12th day
of January, 2015.
/s/CARY M. FADEN
Cary M. Faden
14
November 25, 2014
JUDGMENT
Mire Iirrturternifir Court of Apprats
LARRLYON DESHUN WILLIAMS, Appellant
NO. 14-13-00149-CR
NO. 14-13-00150-CR
NO. 14-13-00156-CR V.
THE STATE OF TEXAS, Appellee
This cause was heard on the transcript of the record of the court below.
Having considered the record, this Court holds that there was no error in the
judgment. The Court orders the judgment AFFIRMED.
We further order this decision certified below for observance.
Affirmed and Opinion filed November 25, 2014.
In The
Nottricent4 Trani of Appeato
NO. 14-13-00149-CR
NO. 14-13-00150-CR
NO. 14-13-00156-CR
LARRLYON DESHUN WILLIAMS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 240th District Court
Fort Bend County, Texas
Trial Court Cause Nos. 10-DCR-054995A, 11-DCR-056930A, 10-DCR-
054992A
OPINION
These three appeals, which we consolidate into one, stem from a bank
robbery followed by a car chase and gunfight. Appellant Larrlyon Deshun
Williams was convicted of aggravated robbery, aggravated assault, and aggravated
assault of a public servant. In his first issue, appellant challenges the legal
sufficiency of the evidence to support his convictions. We hold the evidence was
legally sufficient to convict appellant of each offense under the law of parties. In
his second issue, appellant contends the trial court violated Article 36.16 of the
Texas Code of Criminal Procedure when it submitted a corrected punishment
charge to the jury after it had begun deliberating. We hold the trial court did not
err in correcting the erroneous charge. Appellant raises a third issue solely with
regard to his conviction for aggravated assault with a deadly weapon, contending
that the trial court erred by including a conspiracy instruction in the jury charge.
We hold that because there was legally sufficient evidence to convict appellant as a
co-conspirator, the court did not err by including the instruction. We therefore
affirm the trial court's judgment.
BACKGROUND
On the morning of May 22, 2010, Mouafad Kazzaz robbed a Bank of
America located in Sugar Land, Texas. The State offered evidence that appellant
was his getaway driver.
Dorothy Donovan, the bank manager, testified that Kazzaz walked into the
bank, pulled out a gun, pointed it at her chest, and announced, "Nobody move. No
alarms. I'll shoot you." She testified that she feared imminent bodily injury and
death. Kazzaz handed the bank tellers a bag and instructed them to fill it quickly.
He threatened to shoot them if they did not comply. During the heist, Kazzaz had
a bluetooth device in his ear, allowing him to communicate with individuals
outside the bank. Kazzaz made off with approximately $76,000. After Kazzaz left
the bank, Karen Emert, one of the bank tellers, observed Kazzaz stop next to a
nearby store and then enter a plain white van.
Deputy Charles Scott learned of the bank robbery through the radio in his
car. As he was driving south on Highway 99, Scott saw a white van traveling
north. He testified that he made eye contact with the driver, and that the driver
continued staring in his direction after they passed each other. Scott then turned
2
around in the hope of conducting a traffic stop. Because the van's speed increased
significantly, Scott had to pursue at a rate exceeding 100 miles per hour. Once he
caught up to the van, Scott checked the license plate and found that it was
registered to a four-door car. Scott kept following the van and activated his car's
overhead lights. The van headed down an isolated road, slowed down, and
eventually came to a sudden stop. The rear doors then flew open and Kazzaz
began shooting a gun at Scott. Scott took cover in his police car but nonetheless
was hit in his head and arm. At some point Kazzaz stopped firing, and Scott
realized the van had left the scene. He notified dispatch that he had been injured
and provided the direction the van had fled. Scott was subsequently flown to a
hospital. As a result of the shooting, he suffered permanent nerve damage to his
fingers, and his left arm is now disabled. There is a bullet lodged behind his left
eye that may cause him to lose his eyesight.
The van was spotted by several officers and a chase ensued, with shots being
fired at the officers pursuing the vehicle. Arwen McGaw was driving several
members of her family to brunch when she saw the white van headed in her
direction. She heard a loud sound and decided to pull over because she thought
one of the tires of her truck had been punctured. She then began feeling pain in her
abdomen and left leg. McGaw had been struck by a stray bullet fired from the van.
She was taken to the hospital and three inches of her intestine were removed
during surgery. She suffered permanent nerve damage.
Eventually the van entered a dead-end cul-de-sac. After another exchange
of gunfire with the officers, the assailants attempted to flee. The driver rammed
the van into an iron fence and it bounced off, striking an officer's car. The van
then stopped, however, because its internal computer shut down the fuel system.
Appellant exited the driver's side door. He asked the officers not to shoot and
3
surrendered. One of the deputies on the scene heard noise emanating from the van
and fired six more rounds into the vehicle. Appellant then opened the back doors
of the van, and Kazzaz was found dead.
Kim Oreskovich, a crime scene investigator for the Fort Bend County
Sheriff's Office, testified that a rifle case and two duffle bags were found inside the
van. One of the duffle bags contained weapons, magazines, and ammunition. It
also contained different skin creams, fake mustaches, and fake hair. She termed
those items a "robber's kit." Several guns were recovered from the van, including
an AK-47. One of the guns was found underneath the passenger seat. Two cell
phones and a bluetooth earpiece were also recovered from the scene. One cell
phone was found inside the van and one was found in the grass right outside.
Many casings were also recovered, which Oreskovich stated was consistent with
the use of an AK-47. The money from the robbery was found inside a cooler,
which had been tied down. An extra license plate with tape attached to the back
side was also found. Two different license plate numbers for the van had been
reported during the chase.
The police investigation revealed that appellant had been at that particular
Bank of America branch two days before the robbery, and that calls between the
two cell phones had occurred during the heist. Another vehicle, appellant's Chevy
Suburban, was also searched. One casing was found inside the vehicle, and police
determined that the casing matched one of the guns recovered from the white van.
Appellant was subsequently indicted for aggravated robbery, aggravated
assault of a police officer, and aggravated assault with a deadly weapon. The jury
convicted appellant of all three offenses. During the punishment phase, the trial
court discovered it had mistakenly omitted a few words from the jury charge
regarding the availability of parole. The court decided to correct the charge even
4
though the jury had already begun deliberating. Appellant objected to the
correction on the grounds that none of the instances in which a trial court may
provide additional charges to the jury under Texas Code of Criminal Procedure
Article 36.16 had been met. Appellant conceded, however, that the charge
originally given by the court was incorrect. The court asked if either of the parties
desired additional argument, and both the state and appellant declined. Appellant
was subsequently sentenced to two 45-year prison terms, one 30-year prison term,
and assessed two fines of $10,000. This appeal followed.
ANALYSIS
I. There is legally sufficient evidence that appellant was a party to the
offenses.
Appellant challenges the sufficiency of the evidence that he was guilty of the
aggravated robbery, aggravated assault with a deadly weapon, and aggravated
assault of a public servant. Appellant asserts that the evidence implicating him
was completely contradictory because none of the officers observed him firing a
gun, and none of the bank employees saw him in the bank the day of the robbery.
We note at the outset that appellant has not challenged the legal sufficiency of the
evidence that Kazzaz committed these offenses, but solely the sufficiency of the
evidence that he was also guilty of the offenses.
A. Standard of review
We review evidentiary sufficiency challenges under the standard set forth in
Jackson v. Virginia. See Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App.
2010). The reviewing court must consider the evidence in the light most favorable
to the verdict and determine whether a rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia,
5
443 U.S. 307, 319 (1979); Anderson v. State, 416 S.W.3d 884, 888 (Tex. Crim.
App. 2013).
The jury is the sole judge of the credibility of witnesses and the weight to
afford testimony. Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App.
2012). The jury may reasonably infer facts from the evidence presented, credit the
witnesses it chooses, disbelieve any or all of the evidence or testimony proffered,
and weigh the evidence as it sees fit. See Canfield v. State, 429 S.W.3d 54, 65
(Tex. App.—Houston [1st Dist.] 2014, pet. ref' d). When the record supports
conflicting inferences, the reviewing court presumes the trier of fact resolved the
conflicts in favor of the State and defers to that determination. Clayton v. State,
235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
When the charge authorizes the jury to convict the defendant on more than
one theory, as it did in this case, the verdict of guilt will be upheld if the evidence
is sufficient on any theory authorized by the jury charge. Guevara v. State, 152
S.W.3d 45, 49 (Tex. Crim. App. 2004). Our role on appeal is simply to ensure that
the evidence reasonably supports the jury's verdict. Montgomery, 369 S.W.3d at
192.
B. Party liability
The law of parties in the Texas Penal Code defines when a person may be
held criminally responsible for the conduct of another. The statue provides that
each party to an offense may be charged with the offense. Tex. Penal Code Ann.
§ 7.01(b) (West 2011). Under section 7.02(a)(2), a person is criminally
responsible for an offense committed by the conduct of another if, acting with
intent to promote or assist the commission of the offense, he solicits, encourages,
directs, aids, or attempts to aid the other person to commit the offense. Tex. Penal
Code Ann. § 7.02(a)(2) (West 2011). Section 7.02(b) provides:
6
If, in the attempt to carry out a conspiracy to commit one felony,
another felony is committed by one of the conspirators, all
conspirators are guilty of the felony actually committed, though
having no intent to commit it, if the offense was committed in
furtherance of the unlawful purpose and was one that should have
been anticipated as a result of the carrying out of the conspiracy.
Tex. Penal Code Ann. § 7.02(b) (West 2011).
In determining whether the accused participated as a party, the court may
examine the "events occurring before, during and after the commission of the
offense and may rely on actions of the defendant which show an understanding and
common design to do the prohibited act." Cordova v. State, 698 S.W.2d 107, 111
(Tex. Crim. App. 1985). Each fact need not point directly and independently to the
guilt of the appellant, as long as the cumulative force of all the incriminating
circumstances is sufficient to support the conviction. See Johnson v. State, 871
S.W.2d 183, 186 (Tex. Crim. App. 1993). Circumstantial evidence is as probative
as direct evidence in establishing the guilt of an actor, and circumstantial evidence
alone can be sufficient to establish guilt. Guevara, 152 S.W.3d at 49.
C. The evidence is legally sufficient to find that appellant was a party
to the aggravated robbery.
Viewed in the light most favorable to the verdict, we hold the evidence is
legally sufficient for a rational trier of fact to find that appellant was a party to the
aggravated robbery. A person commits robbery if, in the course of committing
theft and with intent to obtain or maintain control of the property, he intentionally
or knowingly threatens or places another in fear of imminent bodily injury or
death. Tex. Penal Code Ann. § 29.02(a)(2) (West 2011). A person commits theft
if he unlawfully appropriates property with intent to deprive the owner of it. Tex.
Penal Code Ann. § 31.03(a) (West 2011). Appropriation is unlawful if it is without
the owner's effective consent. Tex. Penal Code Ann. § 31.03(b)(1) (West 2011).
7
A person commits aggravated robbery if he uses or exhibits a deadly weapon
during the commission of a robbery. Tex. Penal Code Ann. § 29.03(a)(2) (West
2011). A firearm is per se a deadly weapon. Tex. Penal Code Ann.
§ 1.407(a)(17)(A) (West 2011).
As noted above, appellant does not dispute that there is sufficient evidence
Kazzaz committed an aggravated robbery at the bank. Although appellant
contends the evidence concerning his own guilt was completely contradictory, our
role is not to resolve conflicts in the evidence. Clayton, 235 S.W.3d at 778.
Instead, we presume the jury resolved conflicts in favor of the verdict. Id.
Evidence of events before, during, and after the commission of the offense—
detailed above—shows that appellant visited the bank two days prior to the
robbery. A call between the two cell phones found at the scene occurred during
the heist, and a witness testified that Kazzaz was wearing a bluetooth earpiece.
Appellant also exited the driver's side of the vehicle after the chase ended,
supporting a fmding that he acted as the getaway driver. See Hooper v. State, 255
S.W.3d 262, 266 (Tex. App.—Waco 2008, pet ref d). These facts alone are
sufficient for a rational juror to fmd beyond a reasonable doubt that appellant aided
the commission of the aggravated robbery with the requisite intent. See Guevara,
152 S.W.3d at 49.
Moreover, the police found an extra license plate inside the van and two
different license plate numbers were reported by officers during the pursuit. This
evidence indicates either that appellant changed the license plates or that Kazzaz
changed them while appellant remained as driver rather than taking advantage of
an opportunity to leave. In either event, a rational jury could conclude that
appellant was a willing participant in the robbery and subsequent escape.
8
Although appellant correctly notes that none of the evidence establishes that
he used or exhibited a weapon or threatened an individual during the commission
of the offense, such facts need not be demonstrated in order to establish guilt under
the law of parties. Indeed, the Legislature abolished the distinction between
accomplices and principals, allowing each party to an offense to be charged with
the offense. See Tex. Penal Code Ann. § 7.01(c) (West 2011). Thus, to uphold
appellant's conviction, the evidence is sufficient if as here, it permits a rational
juror to conclude beyond a reasonable doubt that appellant was a party to the
offense. Tex. Penal Code Ann. § 7.01(b).
D. The evidence was legally sufficient to find appellant was a party to
the aggravated assault with a deadly weapon.
With regard to appellant's conviction for aggravated assault of McGaw with
a deadly weapon, we consider whether a rational jury could have convicted
appellant as a party to a secondary offense under section 7.02(b). For a defendant
to be found guilty under that section, the jury must find that the defendant was part
of a conspiracy to commit one felony, that a co-conspirator committed a second
felony in attempting to carry out the conspiracy, and that the second felony was
committed in furtherance of the unlawful purpose and was one that should have
been anticipated as a result of carrying out the conspiracy. Tex. Penal Code
§ 7.02(b). We examine the totality of the circumstances to determine whether, on
the facts of each case, a particular offense committed by a co-conspirator was
"reasonably foreseeable" within the scope of the unlawful agreement. Anderson v.
State, 416 S.W.3d 884, 889 (Tex. Crim. App. 2013).
A person commits assault if he intentionally, knowingly, or recklessly
causes bodily injury to another. Tex. Penal Code Ann. § 22.01(a)(1) (West 2011).
A person commits aggravated assault if he uses or exhibits a deadly weapon during
9
the commission of the assault. Tex. Penal Code Ann. § 22.02(a)(2) (West 2011).
Aggravated assault constitutes a first-degree felony if the actor is in a motor
vehicle, knowingly discharges a firearm at or in the direction of a vehicle, is
reckless as to whether the vehicle is occupied, and causes serious bodily injury to
any person. Tex. Penal Code Atm. § 22.02(b)(3) (West 2011).
In Hooper v. State, the defendant challenged his conviction of aggravated
assault of a public servant on legal sufficiency grounds. Hooper v. State, 214
S.W.3d 9, 11 (Tex. Crim. App. 2007). When apprehended, the defendant was
driving a car that had fled the scene of a robbery. Id at 12. The car was spotted by
a game warden, who had to drive at a speed exceeding 100 miles per hour to catch
up. Id The car slowed down, pulled over, and came to a complete stop. Id One
of the occupants exited the car and fired a shot at the warden before fleeing into the
woods nearby. Id. The defendant remained at the scene, never tried to escape, had
no weapons on him, and never gave the officers any trouble. Id Nevertheless, he
was convicted by a jury under the law of parties. Id. at 11.
On remand from the Court of Criminal Appeals, the court of appeals held
that, viewing the evidence in the light most favorable to the verdict, being the
driver of a getaway car when it was pulled over permitted an inference that the
defendant was also driving the getaway car at the scene of the robbery that had
occurred thirty minutes earlier. Hooper v. State, 255 S.W.3d 262, 266 (Tex.
App.—Waco 2008, pet. ref d). The court observed that a rational juror could infer
that as the getaway driver, the defendant knew that the other passengers were
going to rob the store and that they were armed. Id. From this evidence, a juror
could infer that the defendant conspired to commit aggravated robbery and that he
should have anticipated one of his co-conspirator's aggravated assault of the game
warden during the getaway. Id In accordance with the Court of Criminal
10
Appeals' prior decision in the case, the court of appeals thus held that these
multiple, reasonable inferences, when considered with the cumulative force of the
direct and circumstantial evidence, were legally sufficient for a rational juror to
find beyond a reasonable doubt that appellant was a party to the aggravated assault
of a public servant under the conspiracy theory of liability. Id.
Considering the totality of the circumstances and the multiple, reasonable
inferences that can be drawn therefrom, we hold the evidence in this case was
likewise legally sufficient for a rational jury to find beyond a reasonable doubt that
appellant and Kazzaz conspired to rob the bank, that the assault of McGaw was
committed in furtherance of the unlawful purpose, and that appellant should have
anticipated the assault as a result of carrying out the conspiracy. Appellant's visit
to the bank two days prior to the robbery, his exit from the driver's side of the
getaway van, and the recovery of two cell phones that were communicating during
the robbery are sufficient facts for a rational jury to conclude that appellant and
Kazzaz conspired to rob the bank. Appellant does not dispute that Kazzaz
committed the first-degree felony of aggravated assault of McGaw with a deadly
weapon. Furthermore, a jury could easily find that this offense was committed in
furtherance of the unlawful purpose because, as in Hooper, it occurred as Kazzaz
and appellant were attempting to evade arrest by law enforcement officers.
Additionally, a juror could conclude that appellant, as the getaway driver, knew
Kazzaz was armed with a deadly weapon and that the van contained multiple
firearms—among them an AK-47—and numerous rounds of ammunition. See
Hooper, 214 S.W.3d at 15 (holding juries are permitted to draw multiple,
reasonable inferences from the evidence as long as each inference is supported by
evidence presented at trial);see also Hooper, 255 S.W.3d at 266. Thus, a rational
11
juror could find appellant should reasonably have foreseen that the aggravated
assault might follow as a result of carrying out the conspiracy.
We do not suggest that every time two or more individuals conspire to
commit a robbery, they should anticipate an aggravated assault of an innocent
bystander will occur. But the numerous guns involved in this case evidence "a
plan fraught with risks of violence." Galvana-Cerna v. State, 01-12-00324-CR,
2014 WL 4335597 at * 7 (Tex. App.—Houston [1st Dist.] Aug. 29, 2014, no pet.).
Accordingly, a rational jury could have found appellant criminally responsible for
the aggravated assault with a deadly weapon beyond a reasonable doubt.
E. The evidence was legally sufficient to find appellant was a party to
the aggravated assault of a police officer.
We likewise hold the evidence was legally sufficient to convict appellant of
aggravated assault of a public servant under the law of parties. Aggravated assault
is a first-degree felony if committed against a person the actor knows is a public
servant and the public servant is lawfully discharging an official duty. Tex. Penal
Code Ann. § 22.02(b)(2)(B) (West 2011). Under the law, an actor is presumed to
have known the person was a public servant if the public servant was wearing a
distinctive uniform or badge indicating that person's employment as a public
servant. Tex. Penal Code Aim. § 22.02(c) (West 2011).
The evidence detailed above supports a finding by a rational jury that
appellant acted with the intent to aid the commission of the offense and did in fact
aid the commission of the offense. The driver of the van traveled to an isolated
area and came to a sudden stop before Kazzaz opened the rear doors and fired at
Scott. The driver then drove the van away from the scene. Because appellant
exited the driver's side door when he was apprehended, there is sufficient evidence
for a rational juror to conclude that appellant was driving the van when Kazzaz
12
committed the offense. Consequently, the evidence is legally sufficient to support
appellant's conviction as a party under section 7.02(a)(2). Additionally, as shown
by our discussion of the Hooper case above, there was legally sufficient evidence
for a rational jury to find appellant criminally responsible for the secondary offense
of aggravated assault of a public servant as a co-conspirator under section 7.02(b).
We therefore overrule appellant's legal sufficiency challenges.
II. The trial court did not err in correcting a charge error.
In his second issue, appellant contends that the trial court erred by providing
a corrected charge to the jury after deliberations had begun because the
prerequisites of Article 36.16 of the Texas Code of Criminal Procedure had not
been met.
Article 36.19 of the Code of Criminal Procedure provides separate standards
of review for preserved and unpreserved errors relating to the jury charge. Jimenez
v. State, 32 S.W.3d 233, 237 (Tex. Crim. App. 2000). If an error was the subject
of a timely objection in the trial court, reversal is required if the error "was
calculated to injure the rights of the defendant"—that is, the defendant suffered
"some harm." Id. If there was no objection, we will reverse only if it appears from
the record that appellant was denied a "fair and impartial trial," and therefore
suffered "egregious harm." Taylor v. State, 332 S.W.3d 483, 489 (Tex. Crim. App.
2011) (quoting Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. .1985)
(op. on reh'g)). Egregious harm occurs when the error "affects the very basis of
the case, deprives the defendant of a valuable right, or vitally affects a defensive
theory." Allen v. State, 253 S.W.3d 260, 264 (Tex. Crim. App. 2008).
Neither standard of harm applies, however, unless there is error in the jury
charge. Posey v. State, 966 S.W.2d 57, 60 (Tex. Crim. App. 1998). Disregarding a
requirement of Article 36.16 is an error to which these standards apply. Id; see
13
Tex. Code Crim. Proc. Ann. art. 36.19 (West 2006); Teamer v. State, 429 S.W.3d
164, 172 (Tex. App.—Houston [14th Dist.] 2014, no pet.). Accordingly, we begin
by considering whether the trial court complied with Article 36.16.
Appellant asserts that providing a corrected jury charge was erroneous
because Article 36.16, with certain express exceptions not applicable here,
precludes the trial court from amending the charge after closing arguments have
ended. See Tex. Code Crim. Proc. Ann. art. 36.16 (West 2006) (providing that
after jury arguments begin, 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"). The
Court of Criminal Appeals has construed Article 36.16 to accommodate the trial
court's post-argument correction of an erroneous charge, however. See Smith v.
State, 898 S.W.2d 838, 854-55 (Tex. Crim. App. 1995); Bustillos v. State, 464
S.W.2d 118, 125 (Tex. Crim. App. 1971) ("[T]he court may before verdict
withdraw and correct its charge if convinced an erroneous charge has been
given."); Teamer, 429 S.W.3d at 172-73; see also Vega v. State, 394 S.W.3d 514,
518 (Tex. Crim. App. 2013) ("The trial judge is ultimately responsible for the
accuracy of the jury charge and accompanying instructions.") (internal quotation
marks omitted).
In this case, the trial court mistakenly omitted some language in its jury
charge during the punishment phase. The charge informed the jurors that if they
sentenced appellant to a term of imprisonment, he would not be eligible for parole
until he served one-half of the imposed prison sentence. The instruction was
incomplete. Section 508.145 of the Texas Government Code' provides that an
1 The section is applicable to inmates serving a sentence for aggravated robbery or inmates who
were convicted as a party to an offense in which a deadly weapon was used or exhibited if they
knew that a deadly weapon would be used or exhibited. See Tex. Gov't Code Ann.
14
individual is not eligible for parole until the time served equals one-half of the
sentence imposed or 30 years, whichever is less. Tex. Gov't Code Ann.
§ 508.145(d)(1) (West 2012) (emphasis added). Because, as appellant's trial
counsel conceded, the court corrected an erroneous charge, the court did not err by
providing the corrected instruction after deliberations had begun. See Smith, 898
S.W.2d at 854-55; Teamer, 429 S.W.3d at 172-73. Given the lack of an error, we
need not examine whether appellant suffered any harm as a result of the trial
court's correction. Posey, 966 S.W.2d at 60. We overrule appellant's second
issue.
HI. The trial court did not err by including a conspiracy instruction in its
jury charge.
Appellant challenges his conviction for aggravated assault with a deadly
weapon on a third ground, asserting that the trial court erred by instructing the jury
on co-conspirator liability. An instruction on the law of parties may be given to
the jury whenever there is sufficient evidence to support a jury verdict that the
defendant is criminally responsible under the law of parties. Gilmore v. State, 397
S.W.3d 226, 244 (Tex. App.—Fort Worth 2012, pet ref d). Because we have held
that the evidence was legally sufficient to support a finding that appellant was
criminally responsible for the aggravated assault as a co-conspirator under the law
of parties, we overrule this issue.
§ 508.145(d)(1).
15
CONCLUSION
Having overruled appellant's issues, we affirm the trial court's judgment.
/s/ J. Brett Busby
Justice
Panel consists of Justices Boyce, Busby, and Wise.
Publish — TEX. R. APP. P. 47.2(b).
16