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Opinion filed September 11, 2008
In The
Eleventh Court of Appeals
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No. 11-07-00214-CR
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DONALD RAY CASMIRE, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court
Jefferson County, Texas
Trial Court Cause No. 99229
M E M O R A N D U M O P I N I O N
The jury convicted Donald Ray Casmire of burglary of a habitation, found the enhancement allegation to be true, and assessed his punishment at confinement for fifty years. We affirm.
Background Facts
The State originally alleged four prior felony convictions in the indictment: a 1998 burglary of a building, a 1998 attempted burglary of a habitation, and two 1998 burglaries of habitations. The State abandoned all but one of the burglary of a habitation convictions. The State offered appellant a plea bargain agreement in which it agreed to a punishment cap of confinement for twenty years and for the punishment for this offense to run concurrent with any punishment assessed as a result of any parole revocation that might occur. Appellant rejected the State=s offer.
There is no challenge to the sufficiency of the evidence. Port Arthur Police Officer J. Fontenette testified that he was dispatched to a burglary in progress. Officer Fontenette entered the home and found appellant hiding underneath a mattress in a spare bedroom. David Frank testified that he lived in the home, that appellant was living with his father next door to Frank=s home, that a window in the front of Frank=s home had been broken, that his home had been Aransacked,@ and that he had not given appellant permission to enter his home.
Issues on Appeal
Appellant has briefed two issues on appeal. First, appellant contends that the trial court erred by striking a potential juror for cause over appellant=s objection. Next, appellant contends that the trial court Acommitted egregious error@ by failing to comply with Tex. Code Crim. Proc. Ann. art. 37.07 (Vernon Supp. 2007) when it responded to a note from the jury during deliberations on punishment.
Jury Selection
During voir dire, Venireman No. 12 requested a bench conference to discuss his reservations about serving as a juror. At the conference, the following occurred:
VENIREMAN NO. 12: In my childhood, at the time I was [a] teenager, I used to burglarize a lot in the neighborhood and never did get caught. But I just can=t see myself being on a jury on B on this court right here.
THE COURT: Because what?
VENIREMAN NO. 12: Of my past, you know. Because I never did get caught and I couldn=t judge a guy that=s got caught. And if he did get caught, if he=s guilty or not, you know, I don=t think I could play a role in that part.
THE COURT: You feel that you would have a hard time being fair and impartial for the State or the defense if you were a juror?
VENIREMAN NO. 12: Yes, sir.
Venireman No. 12 further stated that he did not think he could make a Agood judgment@ as to punishment and that he would not want to give anyone the penalty of confinement for ninety-nine years. When the trial court asked him if he felt that his personal experience would influence his ability to be fair and impartial, Venireman No. 12 answered that he thought that it would.
The State challenged Venireman No. 12 for cause. Appellant objected on the ground that Venireman No. 12 had not disqualified himself. The trial court granted the State=s challenge.
The appellate court gives considerable deference to the trial court=s decision to excuse a member of the venire panel for cause because the trial court is in the best position to evaluate the member=s statements and demeanor. King v. State, 29 S.W.3d 556, 568 (Tex. Crim. App. 2000). The totality of the voir dire testimony must be considered; and, absent an abuse of discretion, the trial court=s decision will not be reversed. Id.
Appellant contends on appeal that Venireman No. 12 never affirmatively stated that he could not consider the full range of punishment and that, therefore, the trial court abused its discretion. We disagree.
When Venireman No. 12=s entire testimony is reviewed, it is clear that his prior teenage activities were interfering with his ability to be fair and impartial. He stated that he did not believe he could consider the full range of punishment under any set of circumstances. As the court stated in King, the trial court was in the best position to evaluate Venireman No. 12=s answers and his demeanor. Id. The record before this court does not support appellant=s arguments. The first issue is overruled.
Instructions to the Jury and Jury Deliberations at the Punishment Phase
No objection was raised to the omission of an instruction concerning parole law in the jury charge. The existence of parole law was not mentioned during closing argument. During its deliberation, the jury sent out a note asking what was the Adefinition of life sentence in years.@ Both the State and appellant stated that they had no objection to the trial court=s answer that ATexas law does not equate a life sentence to a particular amount of years.@
Appellant contends that the jury=s note shows that it was considering the application of parole law in the absence of a proper instruction in the charge under Article 37.07. Appellant argues that this establishes egregious harm and, therefore, reversible error.
When an objection is not raised to the charge, the entire record of the trial must be reviewed to determine if the error is so egregious and created such harm that the defendant has not had a fair and impartial trial. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). If so, then reversible error has occurred. Id.
Parole law was not mentioned during the trial. Evidence of appellant=s prior convictions for burglary, for attempted burglary, and for two offenses of burglary of a habitation were admitted into evidence. In three of these offenses, appellant had either been placed on community supervision and then revoked or had had the adjudication of his guilt initially deferred, been placed on community supervision, and then later been adjudicated guilty. Appellant admitted to the jury that he had both a criminal record and a drug problem. He testified that he had only gone next door to Frank=s home to shut an open window. Appellant also testified that it was completely impossible for him to have ransacked the home because he was not inside long enough. Appellant stated that the officers were not lying when they testified how they found him inside the spare bedroom. After the jury found him guilty, appellant asked for leniency in its assessment of punishment. The State made no recommendation as to the length of sentence.
We do not find that the omission of the parole law instruction created egregious harm that denied appellant a fair and impartial trial. The second issue is overruled.
This Court=s Holding
The judgment of the trial court is affirmed.
TERRY McCALL
JUSTICE
September 11, 2008
Do not publish. See Tex. R. App. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.