Christopher Lee Gaither v. State ( 2012 )

IN THE
TENTH COURT OF APPEALS
No. 10-11-00129-CR
CHRISTOPHER LEE GAITHER,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 54th District Court
McLennan County, Texas
Trial Court No. 2009-1606-C2
MEMORANDUM OPINION
Christopher Gaither appeals from a conviction for possession of cocaine less than
one gram, for which he was sentenced to ten years in prison based on a prior felony
conviction. TEX. HEALTH & SAFETY CODE ANN. § 481.115 (West 2010). Gaither complains
that the trial court erred by providing a misleading instruction regarding good conduct
time, erred in instructing the jury not to consider “sympathy” in assessing punishment,
and improperly assessed court appointed attorney’s fees. We find no error in the jury
charge as submitted. Because the evidence was legally insufficient to sustain the
assessment of attorney’s fees, we modify the judgment to delete the award of attorney’s
fees.
Parole Law and Good Time Jury Charge Instruction
Gaither complains in his first issue that the jury charge’s instructions regarding
parole and good time were erroneous in that the instruction allows the jury to consider
that a defendant might be released early but not on parole if sufficient good time is
accumulated. Gaither contends that the statutory language required to be set forth
pursuant to Code of Criminal Procedure article 37.07, section 4(a) in the jury charge is
insufficient and misleading.
Standard of Review for Charge Error
We must first determine whether the charges as submitted to the jury were
erroneous and if so, we must then analyze these complaints utilizing the standards set
forth in Almanza v. State. Allen v. State, 253 S.W.3d 260, 264 (Tex. Crim. App. 2008)
(citing Olivas v. State, 202 S.W.3d 137, 143-44 (Tex. Crim. App. 2006), citing Almanza v.
State, 686 S.W.2d 157 (Tex. Crim. App. 1985)). Under Almanza, unobjected-to jury
charge error will not result in reversal of a conviction in the absence of “egregious
harm.” Almanza, 686 S.W.2d at 171. Because Gaither did not object to the jury charge, if
there is error, we must determine whether the improper instruction caused egregious
harm to Gaither.
The Court of Criminal Appeals has determined that the instruction in question is
constitutional, mandatory, and has stated that the trial court is not authorized to alter
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the instruction from the precise language of article 37.07, section 4(a). See Luquis v. State,
72 S.W.3d 355, 363 (Tex. Crim. App. 2002) (“because the trial judge in this case
instructed the jury according to the legislative dictate expressed in article 37.07, section
4(a), he did not commit error.”). Gaither does not contend that the instruction did not
comply with the code of criminal procedure. Because the instruction tracked the
mandatory statutory language, and there is nothing in the record to suggest that the
jury was confused about the instruction as given or that it considered parole and good
time improperly, we do not find that the trial court’s instruction was erroneous. We
overrule issue one.
Sympathy
Gaither complains in his second issue that the trial court erred by instructing the
jury not to consider “sympathy” in its deliberations in the jury charge in the
punishment phase of his trial. Gaither did not object to the jury charge on this basis.
We have previously decided this issue against Gaither’s position and are not persuaded
to reconsider our ruling. See Lewis v. State, No. 10-09-00322-CR, 2011 Tex. App. LEXIS
6074 at *4 (Tex. App.—Waco Aug. 3, 2011, no pet.) (mem. op.) (not designated for
publication); Turner v. State, No. 10-09-00307-CR, 2011 Tex. App. LEXIS 6072 at *4, (Tex.
App.—Waco Aug. 3, 2011, no pet.) (mem. op.) (not designated for publication); Wilson
v. State, 267 S.W.3d 215, 219-20 (Tex. App.—Waco 2008, pet. ref’d). We overrule
Gaither’s second issue.
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Assessment of Attorney’s Fees
In his third issue, Gaither complains that the evidence was insufficient for the
trial court to have assessed attorney’s fees in the judgment. The State agrees that the
evidence was insufficient in this regard. The trial court determined that Gaither was
indigent during the proceedings and no evidence was presented of any change in that
status. In accordance with the opinion of the Court of Criminal Appeals in Mayer v.
State, 309 S.W.3d 552, 557 (Tex. Crim. App. 2010), we agree that the evidence was
insufficient and the judgment should be modified to delete these assessments. Gaither’s
third issue is sustained.
Conclusion
The evidence was legally insufficient for the trial court to have assessed
attorney’s fees in the judgment, therefore, that assessment is deleted and judgment is
rendered that the amount of costs owed by Gaither is $369.00. Having found no other
reversible error, we affirm the judgment as modified.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Modified, and Affirmed as Modified
Opinion delivered and filed June 27, 2012
Do not publish
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