Byrd, James Lee v. State ( 2006 )

Affirmed and Majority and Concurring Opinions filed January 26, 2006

Affirmed and Majority and Concurring Opinions filed January 26, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-04-00883-CR

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JAMES LEE BYRD, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 337th Judicial District

Harris County, Texas

Trial Court Cause No. 995,232

M A J O R I T Y   O P I N I O N

Appellant, James Lee Byrd, pled guilty to the murder of Brenida Johnson, and the jury assessed punishment at 99 years= confinement in the Texas Department of Criminal Justice, Institutional Division.  In two issues, appellant alleges the trial court erred in (1) admitting unfairly prejudicial medical records of the victim and (2) giving an ambiguous jury instruction on parole eligibility.  We affirm.

Factual and Procedural Background

Appellant and Johnson had been living together at the Skylane Apartments. Prior to the incident in this case, on June 29, 2003, police arrested appellant for assaulting Johnson. He pled guilty and was sentenced to 90 days in Harris County Jail.  After being released, sometime during the evening of August 26, 2003, the power to Johnson=s apartment was turned off twice.  According to testimony from her new boyfriend, James Daniel, Johnson suspected appellant turned off the power.  The next morning, August 27, Daniel told Johnson to stay in her apartment and call the police, and he would be there in a few minutes to drive her to work. Instead, Johnson left her apartment around 7:00 A.M. to walk to the bus stop to go to work.

According to appellant, he showed up to ride the bus with Johnson while she rode to work.  Before getting to the bus stop, appellant chased Johnson around a car while Johnson screamed for help.  Appellant eventually caught Johnson, sat on her, and repeatedly stabbed her with a knife appellant had stolen the night before.  Police arrived at the scene and arrested appellant.

Doctors treated Johnson at Ben Taub General Hospital for stab wounds to her chest, abdomen, arm, heel, and hands.  While doctors operated, Johnson received approximately ten liters of blood, twice what the human body holds.  Her prognosis was poor.  Because of the blood loss, she suffered significant brain damage, but she was not brain dead.  On October 29, Johnson was transferred to the Green Acres Convalescent Center in Beaumont in a permanent vegetative state.  On December 28, she went into full arrest and emergency room doctors pronounced her dead on arrival at Memorial Hermann Baptist Beaumont Hospital. The cause of death was multiple stab wounds and complications thereof. 

Appellant pled guilty to murder and elected for the jury to assess punishment. During the punishment hearing, the State admitted over 500 pages of medical records into evidence, including 340 pages of records from Johnson=s stay at the Green Acres Convalescent Center.  After hearing the evidence, the jury assessed punishment at 99 years= confinement in the Texas Department of Criminal Justice, Institutional Division. 

Discussion

I. Brenida Johnson=s Medical Records

In his first issue, appellant contends the trial court abused its discretion when it admitted Johnson=s medical records into evidence.  Appellant argues the admission of this large amount of records, containing intimate and disturbing details about the daily routine of Johnson=s life for several months before her death, inflamed the jury and was unfairly prejudicial to appellant.  To preserve error in admitting evidence, a party must make a timely and specific objection and obtain a ruling on that objection.^[1]  Tex. R. App. P. 33.1(a); Wilkerson v. State, 874 S.W.2d 127, 131 (Tex. App.CHouston [14th Dist.] 1994, pet. ref=d).

In this case, the State moved to admit State=s Exhibit 19 (340 pages of medical records from Green Acres Convalescent Center) and State=s Exhibit 20 (8 pages of medical records from Memorial Hermann Baptist Beaumont Hospital) into evidence.  Appellant made no objection to this evidence at trial.  Defense counsel clearly stated to the trial judge he did not have any objection to either exhibit.  Therefore, appellant preserved nothing for review, and we overrule this issue.

II. Jury Charge

In his second issue, appellant contends he was denied due process under the Fourteenth Amendment when the trial court gave a jury instruction during the punishment phase according to Article 37.07, Section 4. Appellant did not object to this jury instruction at trial.  In the absence of an objection, we will first determine whether the trial court erred in giving the Article 37.07, Section 4 jury instruction, and if we find error, we will review the complaint according to Almanza.^[2]  Jimenez v. State, 32 S.W.3d 233, 238B39 (Tex. Crim. App. 2000). 

Article 37.07, Section 4 instructs the jury on the mechanics of parole law and is a mandatory jury instruction.  Tex. Code Crim. Proc. Ann. art. 37.07, ' 4 (Vernon Supp. 2005); Luquis v. State, 72 S.W.3d 355, 363 (Tex. Crim. App. 2002).  Appellant argues the instruction is ambiguous and misleading as applied to him because it allows the jury to consider the existence of parole laws but also instructs them to not consider parole eligibility as it may apply to this particular defendant.  In essence, appellant contends this instruction tempts the jury into using parole law when determining a particular sentence.  Appellant argues there is a reasonable likelihood this jury was misled and violated the challenged instruction because they sent out a note during deliberations.  The note said:  AWhat=s the difference between a life sentence and a 99 [year] sentence? Specifically, regarding length of term.@  The trial court=s response was:  APlease refer to page 3 of the court=s charge and continue your deliberations.@ 

An appellate court may presume the jury will follow an instruction as given.  Luquis, 72 S.W.3d at 366; Williams v. State, 937 S.W.2d 479, 490 (Tex. Crim. App. 1996).  We will not find federal constitutional error unless we conclude there is a reasonable probability the jury was actually confused by the instruction.  Luquis, 72 S.W.3d at 366B67.  We presume this jury followed the trial judge=s instructions when first given and after it received the answer to its question. The presumption is rebuttable, but appellant points to no evidence in rebuttal.  See Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998). Absent any evidence on the issue, we will not engage in raw speculation regarding the conduct of the jurors. Nothing in the jury note alone leads us to conclude there was any confusion or misapplication of the law.  See id.; Graham v. State, 96 S.W.3d 658, 661 (Tex. App.CTexarkana 2003, pet. ref=d) (holding a question in a jury note alone is insufficient to rebut the presumption that jurors followed the instruction to not consider parole in its deliberations).  Finding no error, we overrule appellant=s second issue. 

Conclusion

Having reviewed and considered both issues presented by appellant, we affirm the judgment of the trial court. 

/s/         John S. Anderson

Justice

Judgment rendered and Majority and Concurring Opinions filed January 26, 2006.

Panel consists of Chief Justice Hedges and Justices Anderson and Frost. (Frost, J., Concurring).

Publish C Tex. R. App. P. 47.2(b).

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^[1]  In its brief, the State argues appellant did not preserve error because he does not direct this court to the proper place in the record where the complained of error may be found.  Appellant=s brief cites to CRII: 320-328 and State=s Exhibits 9-11. This citation was clearly in error because this portion of the record contains a limited number of pages of medical records and photographs of the crime scene.  Appellant=s brief does cite to the record at RR5: 53-54 where two exhibits containing medical records were admitted into evidence.  This record reference, along with appellant=s argument in his brief, is sufficient for this court to ascertain appellant=s first issue pertained to records created after Johnson=s transfer to the Green Acres Convalescent Center.  See Tex. R. App. P. 38.1(h). 

^[2]  Almanza v. State, 686 S.W.2d 157, 172 (Tex. Crim. App. 1984) (holding appellant bringing jury charge error complaint on appeal when no objection was made at trial must demonstrate the error caused egregious harm).