Edward Wayne Kincheon v. State ( 2008 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-07-00180-CR
Edward Wayne Kincheon, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT
NO. D-1-DC-06-301791, HONORABLE BOB PERKINS, JUDGE PRESIDING
MEMORANDUM OPINION
Edward Wayne Kincheon appeals from his conviction by a jury of three counts
of aggravated sexual assault of a child and three counts of indecency with a child by exposure. See
Tex. Penal Code Ann. §§ 21.11 (West 2003) (indecency by exposure); 22.021 (West Supp. 2007)
(aggravated sexual assault). The jury acquitted him of one count of aggravated sexual assault of a
child. These charges arose out of appellant’s acts with regard to a single child and were tried
together. The jury assessed twenty-five year sentences for each of the three sexual assault counts and
five-year sentences for each of the three indecency counts. In a single point of error on appeal, he
challenges an instruction given by the trial court that the sentences would run concurrently. We
affirm the judgment of conviction.
After the jury rendered its verdict and prior to commencement of the sentencing phase
of the trial, the trial judge confirmed that appellant had made an application for probation. He then
advised the jury:
Ladies and gentlemen of the jury, let me state to you right now—this will be
part of the jury charge tomorrow, but I will say this to you right now because I know
people are curious about this sort of thing.
Because of the fact that we have tried all of these counts together, whatever
punishment you mete out in these cases as to these six counts that you found him
guilty on, all of these sentences will run concurrently with each other.
So, for instance, if you were to say—if you were to give probation to the
defendant, then all of those probations would run at the same time. On the other
hand, if you were to give penitentiary time to the defendant, all of those sentences
will run at the same time because we have tried all of these cases together.
If we were trying them one at a time or something like that, well, then you
would run into a situation where these sentences could be stacked, but that would not
be the case here.
Appellant’s counsel did not object. The court then recessed until the next morning for the sentencing
phase to proceed.
At the close of the evidence of the sentencing phase, the trial court delivered the
charge to the jury. The charge included the following instructions:
Probation must be granted by the court if the jury recommend[s] it in their
verdict. If you do not desire to recommend probation you will say nothing about it
in your verdict.
All the punishment you assess will run concurrent since all these allegations
were tried at the same time.
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Appellant’s counsel did not object to the instruction. In closing argument, he urged the jury to give
appellant probation or, in the alternative, a split sentence, giving him probation on some counts and
a prison sentence on others. He explained eligibility for parole as set forth in the jury charge. The
jury asked no questions during its deliberations. After the jury assessed the sentences, the trial court
sentenced the appellant as recommended by the jury and stated that the sentences would
run concurrently.
On appeal, appellant argues that because the trial judge had the discretion to “stack”
the sentences, the trial court’s instruction to the jury regarding concurrent sentencing was
a misstatement of law. Acknowledging that his counsel did not object to the charge, appellant
recognizes that he must demonstrate egregious harm. See Almanza v. State, 686 S.W.2d 157, 172
(Tex. Crim. App. 1984). He urges that the error “undoubtedly led to the imposition of a longer
sentence for the defendant.”
The rule for instructions regarding concurrent and consecutive sentencing is
controlled by McGowan v. State, 664 S.W.2d 355, 358-59 (Tex. Crim. App. 1984), which held that
the instruction did not constitute reversible error. Here, regardless of the fact that the court had
discretion to choose to run the sentences consecutively,1 the court elected not to do so. The court
advised the parties and instructed the jury that the sentences would run concurrently and, indeed, that
is how appellant was sentenced. Id. (where the trial court answered juror questions—over
1
Whether multiple sentences run concurrently or consecutively is a matter left to the trial
court’s discretion. Barrow v. State, 207 S.W.3d 377, 380 (Tex. Crim. App. 2006); see also
Tex. Penal Code Ann. § 3.03 (West Supp. 2007); Tex. Code Crim. Proc. Ann. art. 42.08
(West 2006); see generally State v. Crook, No. PD-0001-07, 2008 Tex. Crim. App. LEXIS 157
(Tex. Crim. App. Feb. 6, 2008).
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defendant’s objection—by telling the jury that there would be separate sentences and they would
run concurrently, appellant was not harmed where the court “instructed the jury that the sentence
would run concurrently and indeed that is how appellant was sentenced”). Based on a policy that
“the law should require juries to make informed and intelligent decisions based on every piece of
information available,” we cannot say the trial court abused its discretion in giving this instruction
to the jury. See Haliburton v. State, 578 S.W.2d 726, 728-29 (Tex. Crim. App. 1979) (trial court
does not err in giving instruction concerning whether sentences will run concurrently); see also
Gordon v. State, 633 S.W.2d 872, 879 (Tex. Crim. App. 1982); Dickson v. State, 986 S.W.2d 799,
804 (Tex. App.—Waco 1999, pet. ref’d).
In any event, appellant has failed to demonstrate harm, much less egregious harm.
In Haliburton, the court of criminal appeals reasoned:
[W]e are unable to presume harm in this situation. Knowledge that the sentences
would run concurrently is a two-edged sword. The information could have been used
to increase the punishment or, just as easily, used to reduce the number of years to
avoid excessive punishment. We cannot determine from the record which path the
jury took and, with these alternatives, harm will not be presumed.
578 S.W.2d at 728; see McGowan, 664 S.W.2d at 358. As in Haliburton and McGowan, we will
not presume appellant was harmed.
We overrule appellant’s point of error and affirm the judgment of conviction.
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__________________________________________
Jan P. Patterson, Justice
Before Justices Patterson, Puryear and Henson
Affirmed
Filed: February 13, 2008
Do Not Publish
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