in the Matter of C.C., a Juvenile ( 2023 )

In the
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-22-00057-CV
IN THE MATTER OF C.C., A JUVENILE
On Appeal from the County Court at Law
Harrison County, Texas
Trial Court No. 5078-J
Before Stevens, C.J., van Cleef and Rambin, JJ.
Memorandum Opinion by Justice van Cleef
MEMORANDUM OPINION
In 2020, the State filed a petition alleging that C.C. engaged in delinquent conduct. In
2022, when he was eighteen, C.C. pled true to the allegations in the State’s petition and
stipulated that he had engaged in delinquent conduct by committing three counts of aggravated
sexual assault of a child and one count of unlawful restraint. See TEX. PENAL CODE ANN.
§§ 20.02, 22.021. A grand jury approved the State’s request to seek a determinate sentence,1 and
following a jury trial on punishment, the trial court committed C.C. to the Texas Juvenile Justice
Department (TJJD) for a period of twenty-one years for each count of aggravated sexual assault
and eight months for unlawful restraint.
On appeal, C.C. argues that the trial court erred by failing to conduct a hearing on his
motion for new trial and by submitting a jury charge containing an incorrect parole law
instruction. We find that C.C. failed to preserve his first point of error because his motion for
new trial was not properly presented to the trial court. While we agree with C.C.’s argument
claiming jury-charge error, we find that he was not egregiously harmed by such error. As a
result, we affirm the trial court’s judgment.
I. C.C. Failed to Preserve His First Point of Error
C.C. filed a timely motion for new trial claiming ineffective assistance of counsel and
disproportionate sentencing. Because the motion for new trial raised matters not determinable
from the record, C.C. requested a hearing on the motion; however, it was overruled by operation
of law. C.C. argues that the trial court erred by failing to conduct a hearing on his motion for
1
See TEX. FAM. CODE ANN. § 53.045.
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new trial. The State argues that C.C. failed to preserve this complaint because his motion for
new trial was not properly presented to the trial court. We agree.
Juvenile proceedings are quasi-criminal in nature. See In re C.O.S., 988 S.W.2d 760, 765
(Tex. 1999); In re D.B., 457 S.W.3d 536, 538 n.2 (Tex. App.—Texarkana 2015, no pet.). For
this reason, certain aspects of juvenile proceedings are governed by the same rules that apply in
criminal cases. “A motion for new trial seeking to vacate an adjudication is . . . governed by
Rule 21, Texas Rule of Appellate Procedure.” TEX. FAM. CODE ANN. § 56.01(b-1)(2). Under
Rule 21, titled “New Trials in Criminal Cases,” the motion for new trial must be presented “to
the trial court within 10 days of filing it.” TEX. R. APP. P. 21.6. As a result, “[t]he Texas Court
of Criminal Appeals ‘consistently has held the filing of a motion for new trial alone is not
sufficient to show “presentment”’ and does not preserve an issue for appellate review in the
absence of a showing that the trial court has seen the motion.” Navarro v. State, 588 S.W.3d
689, 691 (Tex. App.—Texarkana 2019, no pet.) (quoting Carranza v. State, 960 S.W.2d 76, 78
(Tex. Crim. App. 1998); see Colone v. State, 573 S.W.3d 249, 259 (Tex. Crim. App. 2019)
(“[T]he mere filing of a ‘certificate of presentment’ will not suffice to establish that a motion for
new trial and request for a hearing has been presented to the trial court.”). Consequently,
complaints raised in a motion for new trial in juvenile cases are not preserved unless properly
presented. See In re C.A.G., 410 S.W.3d 923, 924 (Tex. App.—El Paso 2013, no pet.).
“The purpose of the presentment rule is ‘to put the trial court on actual notice that a
defendant desires the trial court to take some action on the motion for new trial such as a ruling
or a hearing on it.’” Navarro, 588 S.W.3d at 691 (quoting Stokes v. State, 277 S.W.3d 20, 21
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(Tex. Crim. App. 2009) (quoting Carranza, 960 S.W.2d at 78)); see Rozell v. State, 176 S.W.3d
228, 230 (Tex. Crim. App. 2005) (“We have held that to present a motion in the context of a
motion for new trial, the defendant must give the trial court actual notice that he timely filed a
motion for new trial and requests a hearing on the motion for new trial.”).
From our review of the appellate record, we find nothing demonstrating that C.C.’s
motion for new trial was presented to the trial court. The motion was delivered “to the Office of
the County Court at Law,” there is no notation on the motion indicating that the trial court saw it,
and there is no docket entry showing that the motion, which was overruled by operation of law,
was brought to the trial court’s attention. See Navarro, 588 S.W.3d at 691 (finding
disproportionate sentencing claim was not preserved by an unpresented motion for new trial);
Hernandez v. State, 84 S.W.3d 26, 33 (Tex. App.—Texarkana 2002, pet. ref’d). As a result, we
find C.C.’s first point of error unpreserved and overrule it.
II. C.C. Was Not Egregiously Harmed by Jury-Charge Error
In his second point, C.C. complains of jury-charge error. “We employ a two-step process
in our review of alleged jury-charge error.” Murrieta v. State, 578 S.W.3d 552, 554 (Tex.
App.—Texarkana 2019, no pet.) (citing Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App.
1994)). “Initially, we determine whether error occurred and then evaluate whether sufficient
harm resulted from the error to require reversal.” Id. (quoting Wilson v. State, 391 S.W.3d 131,
138 (Tex. App.—Texarkana 2012, no pet.) (citing Abdnor, 871 S.W.2d at 731–32)). “[T]he jury
is the exclusive judge of the facts, but it is bound to receive the law from the court and be
governed thereby.” Id. (quoting TEX. CODE CRIM. PROC. ANN. art. 36.13). The purpose of a jury
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charge is to instruct the jury on the applicable law, and a charge must include an accurate
statement of the law. See TEX. CODE CRIM. PROC. ANN. art. 36.14.
A. The Jury-Charge Error
In 2019, the Texas Legislature amended Article 37.07, Section 4, subsections (a) through
(c), of the Texas Code of Criminal Procedure. Act of May 15, 2019, 86th Leg., R.S., ch. 260,
§ 1, 2019 Tex. Gen. Laws 446, 446–48 (codified at TEX. CODE CRIM. PROC. art. 37.07, § 4(a)–(c)
(Supp.)). Those amendments apply to any defendant sentenced on or after September 1, 2019.
See Act of May 15, 2019, 86th Leg., R.S., ch. 260, § 3, 2019 Tex. Gen. Laws 446, 448. C.C.
argues that the trial court erred by using an outdated version of the good conduct time and parole
instructions found in Section 4(a) of Article 37.07.
The current version of Section 4(a) of Article 37.07 reads, in relevant part,
“The length of time for which a defendant is imprisoned may be reduced by the
award of parole.
“Under the law applicable in this case, if the defendant is sentenced to a term of
imprisonment, the defendant will not become eligible for parole until the actual
time served equals one-half of the sentence imposed or 30 years, whichever is
less. If the defendant is sentenced to a term of less than four years, the defendant
must serve at least two years before the defendant is eligible for parole.
Eligibility for parole does not guarantee that parole will be granted.
“It cannot accurately be predicted how the parole law might be applied to this
defendant if sentenced to a term of imprisonment, because the application of that
law will depend on decisions made by parole authorities.
“You may consider the existence of the parole law. You are not to consider the
manner in which the parole law may be applied to this particular defendant.”
TEX. CODE CRIM. PROC. ANN. art. 37.07, § 4(a) (Supp.). There is no reference to good conduct
time in the current version of Section 4(a). See id. Yet, the trial court included references to
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good conduct time in the following portion of the jury charge, which we italicize to highlight any
meaningful deviation from the statutory language:
Under the law applicable in this case, the juvenile, if sentenced to a term of
imprisonment, may earn time off the sentence 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.
It is also possible that the length of time for which the Juvenile will be
imprisoned might be reduced by the award of parole.
It cannot accurately be predicted how the parole law and good conduct
time might be applied to this Juvenile if he is sentenced to a term of
imprisonment, because the application of these laws will depend on decisions
made by prison and parole authorities.
You may consider the existence of the parole law and good conduct time.
However, you are not to consider the extent to which good conduct time may be
awarded to or forfeited by this particular Juvenile. You are not to consider the
manner in which the parole law may be applied to this particular Juvenile.
Under a determinate sentence, whether you recommend commitment to a
criminal justice facility or community supervision, a separate hearing shall be
held by the judge before the juvenile’s nineteenth birthday, to decide whether to
transfer the juvenile into the custody of an adult criminal court. For community
supervision, if the request for transfer is granted, the county’s adult probation
department would supervise the juvenile for the remainder of his or her
probation. For commitment to the Texas Department of Juvenile Justice, if the
request for transfer is granted, the judge will then decide whether the youth
should be transferred to adult prison to complete his or her sentence or whether
the youth can be safely released on parole without putting the public safety at
risk.
(Emphasis added).
The State concedes that the trial court erred by including outdated language on good
conduct time. Because it deviated from the statutory language, the jury charge was erroneous.
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B. C.C. Was Not Egregiously Harmed
Although the State concedes jury-charge error, it argues that C.C. was not egregiously
harmed by the error. We agree.
“The level of harm necessary to require reversal due to jury charge error is dependent
upon whether the appellant properly objected to the error.” Murrieta, 578 S.W.3d at 555 (citing
Abdnor, 871 S.W.2d at 732). Here, “because [C.C.] did not object to the charge, we will not
reverse” the judgment “unless the record shows the error resulted in egregious harm, Ngo v.
State, 175 S.W.3d 738, 743–44 (Tex. Crim. App. 2005) (citing Almanza v. State, 686 S.W.2d
157, 171 (Tex. Crim. App. 1984) (op. on reh’g)), such that he did not receive a fair and impartial
trial.” Id. (citing Almanza, 686 S.W.2d at 171; Loun v. State, 273 S.W.3d 406, 416 (Tex. App.—
Texarkana 2008, no pet.)).
“Jury-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.” Id. (quoting Stuhler v.
State, 218 S.W.3d 706, 719 (Tex. Crim. App. 2007)). “In making this determination, we review
‘the entire jury charge, the state of the evidence, the argument of counsel, and any other relevant
information in the record as a whole.’” Id. (quoting Villarreal v. State, 205 S.W.3d 103, 106
(Tex. App.—Texarkana 2006, pet. dism’d, untimely filed) (citing Almanza, 686 S.W.2d at 171)).
“Direct evidence of harm is not required to establish egregious harm.” Id. (citing Hutch v. State,
922 S.W.2d 166, 171 (Tex. Crim. App. 1996)).
In reviewing the entire jury charge, we note that the third and fourth paragraphs of the
charge stated above instructed the jury that it was not possible to predict how parole law and
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good conduct time might be applied to C.C. and that they were not to consider the extent to
which it might be awarded or forfeited. “We presume the jury followed the instructions given in
the charge.” Murrieta, 578 S.W.3d at 556 (citing Thrift v. State, 176 S.W.3d 221, 224 (Tex.
Crim. App. 2005); Luquis v. State, 72 S.W.3d 355, 366 (Tex. Crim. App. 2002)). “A curative
instruction, in combination with other factors, may cure any error.” Id. (citing Igo v. State, 210
S.W.3d 645, 647 (Tex. Crim. App. 2006)); see Taylor v. State, 332 S.W.3d 483, 492 (Tex. Crim.
App. 2011) (observing that it is presumed jury followed court’s instructions).
Even so, C.C. argues that the jury charge demonstrated egregious harm because “[a]n
accurately instructed jury would know that, whatever sentence it imposed, C.C. would be
required to serve half of that sentence before he would even be eligible for parole.” C.C.’s
argument does not apply to juvenile cases, and we find that the last paragraph of the trial court’s
charge correctly informed the jury of C.C.’s parole eligibility. “Once a juvenile attains the age
of nineteen, the TJJD loses control over that juvenile.” In re D.O.R., No. 06-20-00036-CV, 2021
WL 115772, at *1 (Tex. App.—Texarkana Jan. 13, 2021, no pet.) (mem. op.) (quoting In re
M.C., 502 S.W.3d 852, 855 (Tex. App.—Texarkana 2016, pet. denied) (citing TEX. HUM. RES.
CODE ANN. § 245.151(e))). Yet, under the Texas Human Resources Code, “the department may
not release the child under supervision without approval of the juvenile court that entered the
order of commitment unless the child has served at least” three years of his sentence in the TJJD.
TEX. HUM. RES. CODE ANN. § 245.051(c)(2). Here, C.C. would not complete the required three-
year period of confinement by his nineteenth birthday. Accordingly, if given a “determinate
sentence, the trial court [w]ould either release [C.C.] to parole under TDCJ[]’s supervision or
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transfer him to TDCJ[] for continued confinement.” In re D.O.R., 2021 WL 115772, at *1 (third
and fourth alterations in original) (quoting In re M.C., 502 S.W.3d at 855). “[A] transfer/release
hearing conducted under Section 54.11 is a ‘second chance hearing’ that gives juveniles—who
have previously been sentenced to a determinate number of years—a second chance to persuade
the court that they should not be imprisoned.” Id. (alteration in original) (quoting In re A.V., No.
11-18-00135-CV, 2020 WL 2836432, at *2 (Tex. App.—Eastland May 29, 2020, no pet.) (mem.
op.) (quoting In re D.L., 198 S.W.3d 228, 230 (Tex. App.—San Antonio 2006, pet. denied))).
The last paragraph discussed the second-chance hearing and properly informed the jury that the
issue of parole would be raised at that hearing. Consequently, we reject C.C.’s argument that the
jury charge contained any other error or otherwise demonstrated egregious harm.
As for the state of evidence, C.C. admitted that he unlawfully restrained B.W., a child,
and that he intentionally and knowingly (1) “cause[d] the penetration of the vagina of B.W
. . . with [his] sexual organ,” (2) “cause[d] the sexual organ of B.W. . . . to make contact with
[his] mouth,” and “cause[d] the sexual organ of B.W . . . to contact [his] sexual organ.” At trial,
twelve-year-old B.W. testified that C.C.’s abuse began when she was five or six years old. B.W.
said that C.C. would confine her to a room and would not let her leave until he either performed
oral sex on her, penetrated her anus with his fingers, or penetrated her anus or vagina with his
penis. B.W. said that C.C. committed each of those acts and that at least one act was committed
against her weekly for four years. C.C. admitted his offenses against B.W. at trial.2 As a result,
the state of the evidence was strong and weighs against finding egregious harm.
2
C.C. argued that B.W. fabricated the number of times he had abused her.
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Next, C.C. argues that the following portion of the State’s argument “took advantage of
the misleading instruction and used it to urge the jury to assess a harsher sentence”:
[B.W.] deserves to have the opportunity to finish her childhood, to finish growing
up and reach the age of 18 without having to worry about [C.C]. Not having to
worry about him being in a restaurant or on the streets or avoiding places where
he might be. [B.W.] deserves the chance to finally be a kid. And the only way
she’s going to get that is by incarceration. That’s why we would ask that when
you sentence [C.C.], that you would sentence him to no less than 25 years. So
that way there’s no possibility of him getting out before she reaches 18.
The State’s argument was made in response to C.C.’s plea for probation, and we see nothing in
this argument suggesting the imposition of a harsher sentence based on jury-charge error as
opposed to the facts of the case before the jury. Also, neither good conduct time nor parole was
mentioned during closing arguments. As a result, we find nothing in the jury argument that
would support a finding of egregious harm.
Last, there is nothing else in the record indicating that the jury considered the application
of good conduct time. There were no jury notes regarding good conduct time and nothing in the
record supports a conclusion that it was applied in the assessment of C.C.’s sentence. See
Murrieta, 578 S.W.3d at 556. Even so, C.C. argues that harsh punishment was unwarranted
because he had no prior criminal history, received sex-offender treatment, and expressed remorse
for his actions, which began when he was eleven years old. While C.C. had no prior criminal
history, the jury heard of many extraneous acts of sexual abuse committed against B.W. over the
course of four years and was entitled to consider those extraneous acts in setting punishment.
Moreover, the jury assessed eight months’ confinement for unlawful restraint, and the jury’s
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verdict for each count of aggravated sexual assault of B.W. fell well below the maximum
sentence for each offense and assessed less punishment than the State recommended.
After reviewing the entire jury charge, the state of the evidence, the argument of counsel,
and the remaining record, we conclude that C.C. was not egregiously harmed by the jury-charge
error on punishment. Accordingly, we overrule his last point of error.
III. Conclusion
We affirm the trial court’s judgment.
Charles van Cleef
Justice
Date Submitted: January 26, 2023
Date Decided: February 10, 2023
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