|
|
In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-11-00023-CR
______________________________
GLEN MORRIS BROWN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 114th Judicial District Court
Smith County, Texas
Trial Court No. 114-1288-10
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION
Glen Morris Brown[1] entered an open plea of guilty to the first degree felony offense of possession of a controlled substance, cocaine with intent to deliver, in an amount of 4 grams or more but less than 200 grams.[2] The trial court sentenced Brown to thirty years’ imprisonment and ordered Brown pay a reimbursement fee of $140.00 to the Texas Department of Public Safety.
Brown has filed a single brief for each of three appeals challenging the reimbursement order in the trial court’s judgment in each of the three cases for which he was convicted. For the reasons we state in our opinion issued in cause number 06-11-00022-CR, we find there was insufficient evidence for the trial court to assess the reimbursement fee, and we modify the judgment to strike that provision.
As modified, we affirm the trial court’s judgment and sentence.
Jack Carter
Justice
Date Submitted: July 11, 2011
Date Decided: August 2, 2011
Do Not Publish
[1]Originally appealed to the Twelfth Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See Tex. Gov’t Code Ann. § 73.001 (West 2005). We are unaware of any conflict between precedent of the Twelfth Court of Appeals and that of this Court on any relevant issue. See Tex. R. App. P. 41.3.
[2]In the same proceeding, Brown pled guilty to two state jail felony charges of manufacture or delivery of a controlled substance, cocaine, less than one gram (our cause numbers 06-11-00022-CR and 06-11-00024-CR). See generally Tex. Health & Safety Code Ann. § 481.112 (West 2010). Brown has filed a single brief raising the same issue in all three cases; we reach the same result in those other two cases, released today in separate opinions bearing those cause numbers.
s New Roman">
I think you get the point. It's any combination. Six of you can think one manner; six of you can think the other; eight, two, whatever. You can be unanimous on all of them, all right?
So when you go back there, don't get hung up on that.
But I think what the evidence shows y'all, beyond a reasonable doubt, is that beyond a reasonable doubt, beyond it, based upon what you've heard, that that man touched her genitals and her breasts, based upon the evidence you've heard.
Later, during rebuttal argument, immediately after he thanked the jury for its time and its attention, a different prosecutor commenced with the following:
And I'm going to start off with the charge, because I think the charge is important. You're going to go back there, and you're going to look at it.
When you look at Paragraph 4, that's the application paragraph, y'all can just get rid of anus. There's no evidence in the case that he touched her anus. . . . So y'all get rid of anus.
And the only thing you're left with is genitals or breasts. And like Mr. Vance said earlier, ten of you can say, "I believe beyond a reasonable doubt that he touched her genitals." Two of you can say, "I believe beyond a reasonable doubt that he touched her breasts." And it doesn't matter. We just need one.
All twelve of you could believe beyond a reasonable doubt, with the credible evidence in this case, that he touched her genitals and that he touched her breasts, that's fine, too.
In other words, the State repeatedly urged the jurors to do precisely what they were prohibited by the constitution from doing: arriving at a nonunanimous verdict, making this an error which goes to "the very basis of the case." Warner, 245 S.W.3d at 462. Since the caselaw instructs us time and again to look to the entire case, including jury argument, (9) to determine whether egregious error has occurred, we must do so. Had this strategy not been pursued by the State in jury argument, then the argument could more easily have been made that the harm suffered by Hines was only theoretical and not actual. See Arline v. State, 721 S.W.2d 348, 352 (Tex. Crim. App. 1986); Almanza, 686 S.W. 2d at 174. However, in order for us to conclude that the error was harmless in this case, we must first determine that the members of the jury either did not hear or simply ignored the State's repeated arguments and pleas to arrive at a nonunanimous verdict. See Mathonican v. State, 194 S.W.3d 59, 66 (Tex. App.--Texarkana 2006, no pet.). We cannot do so. The State, by twice emphasizing the very point which was in error, exponentially magnified the error contained in the charge and converted it from theoretical harm into actual harm.
The point of error is sustained.
We reverse the judgment and remand the case to the trial court for a new trial.
Bailey C. Moseley
Justice
Date Submitted: September 29, 2008
Date Decided: October 23, 2008
Publish
1. Pseudonyms are used in the identification of each of the minors involved, including those
who are witnesses.
2. The enhancement used by the State showed that Hines had been previously convicted of
burglary.
3. This list is illustrative, rather than exhaustive, and extraneous-offense evidence may be
admissible when a defendant raises a defensive issue that negates one of the elements of the offense.
Martin v. State, 173 S.W.3d 463, 466 (Tex. Crim. App. 2005).
4. U.S. Const. amends. IV, XIV; Tex. Const. art. I, §§ 11a, 14.
5. Tex. Code Crim. Proc. Ann. art. 28.10 (Vernon 2006).
6. U.S. Const. amends. V, XIV; Tex. Const. art. I, § 10; Tex. Code Crim. Proc. Ann. art.
1.05 (Vernon 2006).
7. This contrasts with the situation in which the defendant raises a proper objection at trial; in
that circumstance, reversal is required if this error was calculated to injure the defendant. Almanza,
686 S.W.2d at 171; Aguilar v. State, 914 S.W.2d 649, 651 (Tex. App.--Texarkana 1996, no pet.).
The presence of any harm, regardless of degree, is sufficient to require reversal. Abdnor, 871 S.W.2d
at 732. There is no burden of proof on the defendant, our determination is simply made from a
review of the record. Ngo, 175 S.W.3d 738; see Warner v. State, 245 S.W.3d 458 (Tex. Crim. App.
2008).
8. Although both the indictment and the charge to the jury mentioned the touching of the anus,
there was never any evidence that Hines had ever touched the child's anus.
9. Warner, 245 S.W.3d at 465; Sanchez v. State, 209 S.W.3d 117, 121 (Tex. Crim. App. 2006);
Ngo, 175 S.W.3d at 750; Almanza, 686 S.W.2d at 171.