Traci Lee Alaniz v. the State of Texas ( 2022 )

Opinion filed July 14, 2022
In The
Eleventh Court of Appeals
__________
No. 11-19-00399-CR
__________
TRACI LEE ALANIZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 244th District Court
Ector County, Texas
Trial Court Cause No. C-19-0578-CR
OPINION
A grand jury indicted Appellant, Traci Lee Alaniz, with the murder of her
mother, Mary Lee Hensley. TEX. PENAL CODE ANN. § 19.02(b)(1), (3), (c).
Appellant pleaded guilty to the indicted offense and she proceeded to trial before a
jury on punishment. After considering the evidence, the jury assessed Appellant’s
punishment at eighty years’ imprisonment in the Institutional Division of the Texas
Department of Criminal Justice. The trial court sentenced Appellant accordingly on
December 11, 2019.
In a single issue, Appellant complains that the trial court erred when it
submitted in its punishment charge a fundamentally defective parole law instruction
that included abrogated statutory language. 1 Specifically, Appellant contends that
the complained-of instruction erroneously informed the jury that her period of
incarceration could be reduced by the amount of “good conduct time” awarded to
her by prison authorities. Appellant asserts that a new trial should be granted
because she was egregiously harmed by the trial court’s error. We affirm.2
I. Factual Background
The evidence presented during the punishment phase consisted of testimony
from law enforcement, medical personnel, and members of Hensley’s family.
On February 24, 2019, Matthew Chavez, who then was an officer with the
Odessa Police Department, was dispatched to the home where Appellant and
Hensley resided; upon his arrival he found Hensley deceased. He also noticed
1
Appellant’s first appointed appellate counsel submitted an Anders brief and filed a motion to
withdraw. See Anders v. California, 386 U.S. 738 (1967). After an independent review of the record, we
concluded that this appeal was not particularly amenable to disposition under Anders. We granted appellate
counsel’s motion to withdraw, abated this appeal, and remanded this cause to the trial court with instructions
to appoint other appellate counsel. New appellate counsel was directed to file a brief on the merits and
address (1) the issue that we have discussed in this opinion and (2) any other substantive issues that appellate
counsel deemed to be arguable. This appeal was reinstated after Appellant’s brief on the merits was filed.
2
Several of our sister courts of appeals have also addressed this issue, and each court has reached
the same result that we do today: although it is error to include the repealed “good conduct time” language
in the punishment charge, such error does not typically result in egregious harm. See, e.g., West v. State,
No. 10-20-00087-CR, 2022 WL 1105645 (Tex. App.—Waco April 13, 2022, no pet.) (mem. op., not
designated for publication); Jackson v. State, No. 03-20-00085-CR, 2022 WL 257451 (Tex. App.—Austin
Jan. 28, 2022, pet. ref’d) (mem. op., not designated for publication); Lewis v. State, No. 09-21-00082-CR,
2021 WL 6129129 (Tex. App.—Beaumont Dec. 29, 2021, no pet.) (mem. op., not designated for
publication); Holiness v. State, No. 06-21-00038-CR, 2021 WL 4483519 (Tex. App.—Texarkana Oct. 1,
2021, pet. ref’d) (mem. op., not designated for publication); Addison v. State, No. 05-18-01263-CR, 2020
WL 4251068 (Tex. App.—Dallas July 24, 2020, no pet.) (mem. op., not designated for publication);
Guerra v. State, No. 06-19-00239-CR, 2020 WL 3634390 (Tex. App.—Texarkana July 6, 2020, pet. ref’d)
(mem. op., not designated for publication).
2
bruising on Hensley’s face and hands. Officer Chavez interviewed Appellant at the
scene. According to Officer Chavez, Appellant informed him that Hensley was her
mother, that Hensley had Alzheimer’s disease, and that Hensley had fallen and
struck a patio table.
Ben Sawyer, a paramedic and fireman with the Odessa Fire Department, was
also at the scene on the same day; he saw lacerations and bruises on Hensley’s
clavicle and chest. Sawyer testified that Appellant told him she was Hensley’s
caretaker and that she had last seen Hensley alive thirty minutes before Sawyer
arrived on scene. Sawyer stated that he did not believe Appellant’s version of events.
Detective Justin Caid of the Odessa Police Department testified that he
observed bruising and scratching on Appellant at the scene. In a later interview with
Detective Caid at the Odessa police station, Appellant claimed that she never hit
Hensley. However, Appellant later admitted that she began frequently striking
Hensley about her body some three months before to relieve “the tension” that
Appellant was experiencing at the time. Concerning Hensley’s demise, Appellant
advised Detective Caid that Hensley had fallen the previous day and remained on
the floor because Appellant was unable to lift her. Appellant said that she did not
call 9-1-1 for twenty-four hours after Hensley fell. Eventually, Appellant admitted
to Detective Caid that she held a pillow over Hensley’s face and suffocated her.
Two family members testified—Mike Cowan, Hensley’s brother, and Tana
Pape, Appellant’s sister. Cowan testified that Appellant typically did not work and
could not keep a job, which he did not approve of, but that Hensley was partial to
and would defend Appellant. Cowan testified that, after Hensley developed
Alzheimer’s disease, he spoke with Appellant about the possibility of Hensley
moving to an assisted care facility. He said that Appellant isolated Hensley from the
other family members and made excuses as to why they could not see her.
According to Cowan, Appellant and Hensley lived on Hensley’s monthly social
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security allowance. Although Appellant would not have been homeless if Hensley
had moved into an assisted living home, Cowan stated that because Appellant at
times yelled at Hensley, he had told Appellant that she would be removed from
Henley’s residence if this abusive conduct persisted. Pape testified that Hensley and
Appellant had a codependent relationship and that Appellant had no self-worth.
Dr. Stacey Murthy, a medical examiner with the Tarrant County Medical
Examiner’s Office, performed Hensley’s autopsy. Dr. Murthy testified that she
found numerous injuries on Hensley’s face that were consistent with asphyxia or
smothering, which she determined to be the cause of Hensley’s death. Dr. Murthy
opined that asphyxia will typically cause one’s death in about five minutes.
Dr. Murthy concluded that Hensley’s death should be classified as a homicide.
II. Analysis
A. Standard of Review – Charge Error
Appellate review of alleged charge error is a two-step process. Kirsch v. State,
357 S.W.3d 645, 649 (Tex. Crim. App. 2012) (citing Abdnor v. State, 871 S.W.2d
726, 731 (Tex. Crim. App. 1994)). First, we must determine whether charge error
exists. Cortez v. State, 469 S.W.3d 593, 598 (Tex. Crim. App. 2015) (citing Kirsch,
357 S.W.3d at 649). Second, if error does exist, we must then conduct a harm
analysis to determine whether the error resulted in sufficient harm to require
reversal. Id.; Phillips v. State, 463 S.W.3d 59, 64–65 (Tex. Crim. App. 2015); Ngo v.
State, 175 S.W.3d 738, 743–44 (Tex. Crim. App. 2005); Ybarra v. State, 621 S.W.3d
371, 384 (Tex. App.—Eastland 2021, pet. ref’d).
Although “the jury is the exclusive judge of the facts,” it is “bound to receive
the law from the court and be governed thereby.” TEX. CODE CRIM. PROC. ANN.
art. 36.13 (West 2007). The purpose of the trial court’s charge is to “inform the jury
of the applicable law and guide them in its application to the case.” Delgado v. State,
235 S.W.3d 244, 249 (Tex. Crim. App. 2007) (quoting Hutch v. State, 922 S.W.2d
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166, 170 (Tex. Crim. App. 1996)). Charge error stems from the denial of a
defendant’s right to have the trial court provide the jury with instructions that
correctly set forth the “law applicable to the case.” Bell v. State, 635 S.W.3d 641,
645 (Tex. Crim. App. 2021) (quoting CRIM. PROC. art. 36.14). Therefore, because
the trial court is obligated to correctly instruct the jury on the law applicable to the
case, it is ultimately responsible for the accuracy of its charge and the accompanying
instructions. Mendez v. State, 545 S.W.3d 548, 552 (Tex. Crim. App. 2018) (citing
Delgado, 235 S.W.3d at 249). As such, when the charge is inaccurate, the trial court
errs, and the error is subject to a harm analysis. See Bell, 635 S.W.3d at 645.
B. Good Conduct Time and Parole Law Instruction – Article 37.07, § 4(a)
Article 37.07 of the Texas Code of Criminal Procedure sets out the parole law
instructions to be included in the trial court’s punishment charge. See CRIM. PROC.
art. 37.07, § 4(a)–(c) (West Supp. 2021). The particular parole law instruction to be
submitted is determined by the degree of felony offense for which the defendant has
been convicted at trial. In 2019, the Texas legislature amended Article 37.07, section
4(a) and repealed the specific language that referred to a defendant’s ability to
receive “good conduct time” which, under the previous version of Section 4(a) and
if awarded by prison authorities, could reduce the length of a defendant’s period of
incarceration if that defendant was convicted of, among others, a first-degree felony
offense. See Act of May 15, 2019, 86th Leg., R.S., ch. 260, § 1, 2019 Tex. Gen.
Laws 446 (codified at CRIM. PROC. art. 37.07, § 4(a)). The 2019 amendment to
Section 4(a) applies to any defendant who is sentenced on or after September 1,
2019, irrespective of when the charged offense was committed. See id. § 2. Here,
because Appellant was convicted of the first-degree felony offense of murder and
her sentence was imposed after September 1, 2019, specifically on December 11,
2019, the amended parole law instruction in Section 4(a) would apply.
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Appellant contends, and the State concedes, that the trial court was required
to submit the revised Section 4(a) parole law instruction in its punishment charge.
See CRIM. PROC. art. 37.07, § 4(a). The trial court failed to do so. Rather, the trial
court submitted, as noted below, the prior version of Section 4(a) that included the
repealed and now-removed “good conduct time” language:
Under the law applicable in this case, the Defendant, if sentenced to a
term of imprisonment, may earn time off the period of incarceration
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.
The trial court must follow and only submit the language set out in the controlling
statute verbatim; no deviation is permitted. See Luquis v. State, 72 S.W.3d 355, 363
(Tex. Crim. App. 2002); see also CRIM. PROC. art. 37.07, § 4(a) (noting the proper
parole law instruction to be given during the punishment phase of a trial in which
the jury is to assess the defendant’s punishment if the indicted offense is listed in
Article 42A.054(a), which includes murder). In this case, the trial court erred when
it did not submit in its punishment charge the revised parole law instruction as
required by Section 4(a).
C. Harm Analysis
Because we have determined that charge error exists, we must now conduct
the appropriate harm analysis. See Ngo, 175 S.W.3d at 743. Here, Appellant’s trial
counsel failed to object to the submission of the erroneous parole law instruction in
the punishment charge; therefore, we review the charge error under the Almanza
“egregious harm” standard. Madden v. State, 242 S.W.3d 504, 513 (Tex. Crim. App.
2007); see Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). When,
as in this case, the defendant or his trial counsel fails to assert an objection to the
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trial court’s charge, we will reverse only if the error was so egregious and created
such harm that the defendant was deprived of a fair and impartial trial. Villareal v.
State, 453 S.W.3d 429, 433 (Tex. Crim. App. 2015); Barrios v. State, 283 S.W.3d
348, 350 (Tex. Crim. App. 2009).
“Charge 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.”
Villareal, 453 S.W.3d at 433; Sanchez v. State, 209 S.W.3d 117, 121 (Tex. Crim.
App. 2006). “Egregious harm is a ‘high and difficult standard’ to meet, and such a
determination must be ‘borne out by the trial record.”’ Villareal, 453 S.W.3d at 433
(quoting Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013)). In our
egregious harm analysis, we examine the relevant portions of the record to determine
whether Appellant suffered actual, as opposed to theoretical, harm as a result of the
error. See Marshall v. State, 479 S.W.3d 840, 843 (Tex. Crim. App. 2016).
Egregious harm is only shown when the error “created such harm that [the appellant
was deprived of] ‘a fair and impartial trial.”’ Almanza, 686 S.W.2d at 171.
The Court of Criminal Appeals in Almanza identified the factors that a
reviewing court should consider when determining if charge error resulted in
egregious harm. See id. at 171. They are: (1) the charge itself; (2) the state of the
evidence, including the contested issues and the weight of the probative evidence;
(3) the arguments of counsel; and (4) any other relevant information revealed by the
trial record as a whole. Villareal, 453 S.W.3d at 433 (citing Almanza, 686 S.W.2d
at 171). These factors guide our harm analysis.
The first Almanza factor requires that we review the punishment charge in its
entirety. The Court of Criminal Appeals has stated that “the over-all purpose of the
[parole] instruction is to inform jurors of these concepts [of good conduct time or
parole] as a general proposition, but to prohibit the jury from using its notions of
[those concepts] in any calculus in assessing the appropriate punishment.” Luquis,
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72 S.W.3d at 360. Nevertheless, charge error may be ameliorated by the inclusion
of other instructions in the same charge. In this case, the punishment charge
informed the jury of the range of punishment for the offense of murder and further
instructed the jury that, in assessing Appellant’s punishment, the jury was not to
consider (1) the extent to which “good conduct time” could be awarded to or
forfeited by Appellant or (2) the manner in which the parole law could be applicable
to her. Unless the record indicates to the contrary, and in the case before us it does
not, we presume that the jury followed the trial court’s instructions. See Taylor v.
State, 332 S.W.3d 483, 492 (Tex. Crim. App. 2011); Luquis, 72 S.W.3d at 366
(citing Williams v. State, 937 S.W.2d 479, 490 (Tex. Crim. App. 1996)); Smith v.
State, 631 S.W.3d 484, 500 (Tex. App.—Eastland 2021, no pet.). Because we may
presume that the jury, in assessing Appellant’s punishment, did not consider how
“good conduct time” or the parole law might affect or be applied to Appellant, and
because it was unlikely the punishment charge, when considered in its entirety,
would either confuse, influence, or mislead the jury in that regard, we conclude that
the first Almanza factor does not weigh in favor of finding egregious harm. See, e.g.,
Addison v. State, No. 05-18-01263-CR, 2020 WL 4251068, at *4 (Tex. App.—
Dallas July 24, 2020, no pet.) (mem. op., not designated for publication); Guerra v.
State, No. 06-19-00239-CR, 2020 WL 3634390, at *9 (Tex. App.—Texarkana July
6, 2020, pet. ref’d) (mem. op., not designated for publication).
The second Almanza factor focuses on the evidence presented at trial. On
appeal, Appellant does not contend that the evidence is insufficient to support her
conviction. For the offense of murder, the punishment range is either imprisonment
for life or for a term of not less than five years but no more than ninety-nine years.
PENAL § 12.32(a) (West 2019). In this case, the State sought a life sentence. The
jury recommended a sentence of eighty years’ imprisonment. While it is true that
Appellant’s sentence is on the higher end of the punishment range for the convicted
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offense, the punishment evidence was compelling. See Igo v. State, 210 S.W.3d 645,
647 (Tex. Crim. App. 2006). Despite pleading guilty and accepting responsibility
for murdering Hensley, such an admission cannot excuse Appellant’s conduct. The
gravity of her actions was extreme, and the evidence presented to the jury during the
punishment phase detailed the gruesomeness of the offense, namely that it took
Appellant four or five minutes to smother and suffocate Hensley. Considering the
entire record, the jury could have reasonably concluded that an eighty-year sentence
was an appropriate punishment because of the violent manner in which Appellant
murdered her ill, elderly mother, particularly when faced with the possibility that
Hensley would soon no longer provide Appellant with a source of income or a home
in which to live. Therefore, we conclude that the state of the evidence does not
weigh in favor of finding egregious harm.
The third Almanza factor pertains to the arguments of trial counsel. Here, the
arguments of trial counsel did not exacerbate the charge error. In fact, the record
before us shows that neither Appellant’s trial counsel nor the State ever mentioned
or alluded to in their summations the subject of “good conduct time” or how
Appellant’s term of incarceration might have been affected by any award of “good
conduct time” that she might have received from prison authorities. See Luquis, 72
S.W.3d at 367; Atkinson v. State, 107 S.W.3d 856, 860 (Tex. App.—Dallas 2003, no
pet.). As such, this factor does not weigh in favor of finding egregious harm.
Finally, the fourth Almanza “catch-all” factor requires that we consider any
other relevant information in the record that would assist in our determination of
whether Appellant suffered egregious harm as a result of the charge error. See
Gelinas v. State, 398 S.W.3d 703, 707 (Tex. Crim. App. 2013); Almanza, 686
S.W.2d at 171. The record shows that, during its punishment deliberations, the jury
never inquired of or submitted any note or other form of communication to the trial
court regarding “good conduct time,” the parole law, or how either might apply to
9
or affect Appellant. See Lopez v. State, 314 S.W.3d 70, 73 (Tex. App.—Waco 2010,
no pet.). Despite this, Appellant refers to no evidence in the record, and we have
found none, that shows or suggests that the jury (1) was influenced, confused, or
misled by the instructions in the punishment charge or (2) even considered or
mentioned the application of “good conduct time” or the parole law during its
deliberations. See Hooper v. State, 255 S.W.3d 262, 272–73 (Tex. App.—Waco
2008, pet. ref’d). Further, Appellant does not point to, nor have we found, other
information in the record that would assist in our egregious-harm determination.
Because there is no other relevant information in the record before us that shows or
suggests that the jury’s punishment recommendation was influenced or affected by
the charge error, we conclude that the fourth Almanza factor does not weigh in favor
of finding egregious harm.
We hold that the trial court erred when it submitted in its punishment charge
the Section 4(a) instruction that included the abrogated “good conduct time”
language. However, we conclude that this error did not result in a level of egregious
harm such that Appellant was deprived of a fair and impartial trial. Accordingly, we
overrule Appellant’s sole issue on appeal.
III. This Court’s Ruling
We affirm the judgment of the trial court.
W. STACY TROTTER
JUSTICE
July 14, 2022
Publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
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