11th Court of Appeals
Eastland, Texas
Opinion
Laura Leann Ford
Appellant
Vs. No. 11-02-00315-CR C Appeal from Taylor County
State of Texas
Appellee
Laura Leann Ford entered an open plea of guilty to the charge of intoxicated manslaughter. See TEX. PENAL CODE ANN. ' 49.08 (Vernon 2003). The jury convicted appellant and assessed her punishment at confinement for a term of 17 years in the Institutional Division of the Texas Department of Criminal Justice. The jury also made an affirmative finding that appellant used or exhibited a deadly weapon, to-wit: an automobile, during the commission of the offense. See TEX. CODE CRIM. PRO. ANN. art. 42.12, ' 3g(a)(2) (Vernon Supp. 2003); TEX. GOV=T CODE ANN. ' 508.145(d) (Vernon Supp. 2003). Appellant raises three issues on appeal, challenging the punishment imposed by the jury. We affirm.
Appellant=s first issue addresses the manner in which the trial court responded to a note from the jury. The clerk=s record contains a note signed by the presiding juror which asks the following question: “If we assess X number of years plus one day will the defendant be required to serve the full number of years in order to serve the extra ‘day?’” The trial court responded to the note as follows: “Ladies and Gentlemen: I cannot answer any questions about how much time the defendant will be required to serve. You must rely on the instructions in the charge.”
Appellant contends that the trial court erred by failing to comply with the procedural requirements of TEX. CODE CRIM. PRO. ANN. art. 36.27 (Vernon 1981) when it responded to the jury=s note. Article 36.27 provides, among other things, that the trial court shall:
[A]nswer any such communication [from the jury] in writing, and before giving such answer to the jury shall use reasonable diligence to secure the presence of the defendant and his counsel, and shall first submit the question and also submit his answer to the same to the defendant or his counsel or objections and exceptions, in the same manner as any other written instructions are submitted to such counsel, before the court gives such answer to the jury, but if he is unable to secure the presence of the defendant and his counsel, then he shall proceed to answer the same as he deems proper. The written instruction or answer to the communication shall be read in open court unless expressly waived by the defendant.
Assuming, without deciding, that the trial court failed to comply with Article 36.27 or that appellant preserved error regarding her contention, the trial court did not commit reversible error with respect to the jury=s note.[1] The Court of Criminal Appeals has held that, where the communication between the court and the jury does not amount to additional instructions, noncompliance with the provisions
of Article 36.27 does not constitute reversible error. McFarland v. State, 928 S.W.2d 482, 517‑18 (Tex.Cr.App.1996), cert. den=d, 519 U.S. 1119 (1997). The trial court=s response of A[y]ou must rely on the instructions in the charge@ does not constitute an additional instruction. McFarland v. State, supra at 517-518; Nacol v. State, 590 S.W.2d 481, 486 (Tex.Cr.App.1979)(jury instructed: AYou are only to consider what is contained in the charge@). Appellant=s first issue is overruled.
In her second issue, appellant attacks the affirmative deadly weapon finding by arguing that the State failed to provide sufficient notice of its intent to seek the finding. An accused is entitled to notice from the State that the use and exhibition of a deadly weapon will be a fact issue at the time of the prosecution. Ex parte Brooks, 847 S.W.2d 247, 248 (Tex.Cr.App.1993). The notice or the State=s pleadings must be in writing. Ex parte Brooks, supra at 248. The written notice given may be independent of the indictment. Ex parte Patterson, 740 S.W.2d 766, 773-74 (Tex.Cr.App.1987). The record reflects that the State provided appellant with sufficient notice of its intent to seek an affirmative deadly weapon finding. The indictment charged appellant with the following conduct: “[Appellant] did then and there by accident and mistake while operating a motor vehicle in a public place while intoxicated, and by reason of that intoxication caused the death of an individual.” An allegation in an indictment charging a defendant with causing the death of an individual by the use of a motor vehicle gives sufficient notice of the State=s intent to seek a deadly weapon finding. Ex parte McKithan, 838 S.W.2d 560, 561 (Tex.Cr.App.1992)(reviewing an indictment alleging involuntary manslaughter by driving while intoxicated). Additionally, appellant=s trial counsel stated in open court that the State had provided appellant with written notice of its intent to seek a deadly weapon finding prior to trial. Furthermore, appellant executed a sworn stipulation of evidence prior to trial wherein she acknowledged using and exhibiting a motor vehicle as a deadly weapon during the commission of the offense. Appellant=s second issue is overruled.
Appellant contends in her third issue that the trial court erred in failing to instruct the jury on the State=s burden of proof for extraneous offenses even though she did not request the instruction. Appellant directs the court=s attention to the following items of extraneous offense evidence offered by the State: (1) testimony elicited from appellant=s probation officer about appellant=s use of marihuana while on probation for a previous offense; and (2) testimony elicited from appellant=s father-in-law regarding her alleged drug and alcohol abuse and instances of physical abuse of her children.
A trial court must submit a charge setting forth “the law applicable to the case.” TEX. CODE CRIM. PRO. ANN. art. 36.14 (Vernon Supp. 2003). The law applicable to the case concerning extraneous crimes requires proof beyond a reasonable doubt and an instruction to that effect regardless of whether the instruction is requested. See TEX. CODE CRIM. PRO. ANN. art. 37.07, ' 3 (Vernon Supp. 2003); Huizar v. State, 12 S.W.3d 479, 484 (Tex.Cr.App.2000). Failing to give this instruction constitutes statutory error and, thus, requires analysis under Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App.1985). Huizar v. State, supra at 482‑83.
Under Almanza, the reviewing court must first ascertain whether the error was preserved by objection at trial. Almanza v. State, supra at 171. An unpreserved complaint will not constitute reversible error unless the error was so damaging that the defendant was denied “a fair and impartial trial.” Arline v. State, 721 S.W.2d 348, 351 (Tex.Cr.App.1986). Thus, a defendant can only obtain a reversal if the error caused “egregious” harm to the defendant. Arline v. State, supra at 351. In reviewing any alleged harm against a defendant, the court must consider the impact of the omission of the instruction rather than the impact of the admission of the extraneous offense evidence. Ellison v. State, 86 S.W.3d 226, 228 (Tex.Cr.App.2002). A court must measure the degree of harm in “light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information.” Almanza v. State, supra at 171.
Appellant=s conviction arises out of a one-vehicle automobile accident occurring in a rural area late at night. The accident occurred as appellant was driving the decedent home from a bar in the decedent=s car. Appellant and the decedent were the only occupants of the car. The police officers that investigated the accident testified that the vehicle first collided with a pipe fence after it ran off of the highway. It then struck a clump of mesquite trees and a road sign. The vehicle came to a stop 311 feet from the point that it left the highway. The officers did not find any skid marks indicating that the vehicle=s brakes were applied at any point in the collision.
The passenger=s side of the car sustained severe damage as a result of the accident. The driver=s side of the car remained intact. Prior to the arrival of other persons at the accident scene, appellant moved the decedent=s body from the passenger=s side of the car to the driver=s side of the car. Appellant then left the scene of the accident.
A group of teenagers, who were the first to pass by, discovered the wrecked car. They did not observe either of the occupants during their initial inspection of the car. They subsequently located the decedent=s body on the ground by the driver=s side of the car. As the teenagers waited for the arrival of the investigating officers, appellant returned to the accident scene. Upon her arrival, appellant accused the teenagers of killing the decedent. One of the teenagers later overheard appellant say that an unknown male was driving the decedent=s car at the time of the accident. When questioned by the investigating officers, appellant denied being in the car at the time of the accident. She appeared to be intoxicated at the accident scene. She also appeared to have cuts and bruises consistent with being in a recent automobile collision.
Appellant testified in her own behalf at trial in the hopes of obtaining a probated sentence. She admitted to driving the car at the time of the accident. She further admitted to moving the decedent=s body after the accident.[2] She also admitted to lying to the police about the accident. Appellant asserted that she was remorseful and that probation would be an appropriate sentence. She requested probation because she needed to care for her three young children.
The State countered appellant=s request for a probated sentence by presenting evidence that appellant had failed to comply with the terms and conditions of a prior probated sentence. Appellant was on probation at the time of the accident for a misdemeanor marihuana charge. Appellant=s probation officers testified that she committed numerous violations of the terms and conditions of her probation. One of the violations included testing positive for marihuana while on probation. Appellant admitted to using marihuana while on probation.
The State called appellant=s father-in-law as a rebuttal witness to counter appellant=s contentions regarding the need to care for her children. The father-in-law testified that appellant and his stepson met each other while both were patients in a drug abuse center. He had observed appellant under the influence of alcohol and illicit drugs on several occasions while in the presence of her children. He also testified that he had observed appellant being violent with her children. Appellant admitted to being the subject of an investigation by Child Protective Services regarding the care of her children.
We conclude that the omission of the extraneous offense instruction from the charge did not cause egregious harm. Appellant admitted committing many of the instances of extraneous conduct discussed at trial. Furthermore, the prosecutor placed little emphasis on the extraneous offense testimony in his closing argument. Appellant=s third issue is overruled.
The judgment of the trial court is affirmed.
W. G. ARNOT, III
CHIEF JUSTICE
September 25, 2003
Do not publish. See TEX.R.APP.P. 47.2(b).
Panel consists of: Arnot, C.J., and
Wright, J., and McCall, J.
[1]The reporter=s record does not contain any reference to the jury=s note. Furthermore, appellant did not bring the alleged error to the trial court=s attention at any time.
[2]Appellant testified that she moved the body to the driver=s side of the car because the available moonlight was brighter on the driver=s side.