James Odell Mayes, Jr. v. State ( 2010 )

Opinion issued July 8, 2010

In The

Court of Appeals

For The

First District of Texas

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NO. 01-09-00118-CR

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James Odell Mayes, Jr., Appellant

V.

The State of Texas, Appellee

On Appeal from the 185th District Court

Harris County, Texas

Trial Court Case No. 1112629

MEMORANDUM  OPINION

          A jury convicted appellant, James Odell Mayes, Jr., of sexual assault of a child.[1]  The jury assessed punishment at five years’ community supervision.  In three issues, appellant contends that the trial court erred in failing to grant a new trial based on the trial court’s (1) erroneous rejection of the jury’s original punishment verdict; (2) erroneous statement to the jury that the minimum sentence for the offense was five years; and (3) failure to assess the term of punishment originally provided by the jury.

          We affirm.

BACKGROUND

          On January 23, 2007, the complainant, S.W., a sixteen-year-old girl, alleged that appellant had sexually assaulted her in 2003 when he was her seventh grade teacher at Children’s First Academy in Houston, Texas.  The complainant made her outcry to Marilyn Gambrell, a consultant hired by the North Forest Independent School District, who reported the allegation to the school district’s police department.  Members of the police department investigated the allegation and obtained an indictment against appellant on August 3, 2007.  Appellant’s trial began on December 1, 2008, and a jury convicted him of sexual assault of a child.

          The punishment phase of appellant’s trial began on December 8, 2008.  After the witness testimony and the arguments by the State and the defense, the jury deliberated on appellant’s punishment.  The jury charge stated:

Our statutes provide that the punishment for sexual assault shall be by confinement in the institutional division of the Texas Department of Criminal Justice for not less than two years nor more than twenty years . . . .

. . . .

The defendant has filed a sworn motion for community supervision herein, alleging that he has never before been convicted of a felony in this State or any other State. Our statute provides that where the Jury finds the defendant guilty and the punishment assessed by the Jury shall not exceed ten years’ imprisonment in the institutional division of the Texas Department of Criminal Justice, and the Jury shall find in their verdict that the defendant has never before been convicted of a felony in this or any other state, the Jury may recommend that the defendant be granted community supervision.

. . . .

If community supervision is recommended by the Jury, the minimum period of supervision is five years and the maximum period of supervision is ten years.

Appellant did not object to this part of the charge.  During deliberations, the members of the jury sent the trial court several notes indicating that they did not want to sentence appellant to prison and that they wanted to impose the least restrictive terms on his community supervision, and they asked, “Is the number of years we fill out in choice #3 the # of years for probation?”  In response to the last question, the trial court referred the members of the jury to the charge.

After deliberating, the jury signed the punishment option in the charge that read, “We, the Jury, having found the defendant James Odell Mayes, guilty of sexual assault, assess his punishment at confinement in the institutional division of the Texas Department of Criminal Justice for ___ years and further find that the defendant has never before been convicted of a felony in this state or any other state and recommend community supervision of the sentence.”  The jury put “two” into the space in which they were to indicate how many years appellant was to be confined.  In response, the following conversation occurred:

(At the bench, on the record)

Trial court:           It’s not right. I can’t take this verdict because it says 2 years, not 5 years.

Prosecutor:           That’s right. It’s an illegal verdict.

Trial court:           That’s an illegal verdict. I have to send them back.  It’s not the right punishment range.

Defense counsel:   Right.

(End of discussion at bench)

Trial court:           Madam Foreman, I cannot accept this verdict because it does not comport with the parameters set out by the Legislature as indicated in the charge. So, I have to send you back to continue your deliberations.

The trial court sent the jury back to resume its deliberations at 4:56 p.m.  At 5:08 p.m. the jury presented a verdict, and the foreperson said, “I think we got it right this time.”  The jury presented the same verdict form, but changed the amount of time appellant would be confined to five years with the recommendation that appellant be placed on community supervision.  Appellant made no objection to the verdict at this time, and the trial court entered a judgment. 

          Appellant filed a “Motion for New Trial or in Arrest of Judgment and to Correct Sentence.” Appellant argued that the trial court’s decision to reject the jury’s first verdict and send the jury back for deliberations constituted error.  The trial court did not rule on the motion for a new trial, and it was overruled by operation of law.

ANALYSIS

          In his first three issues, appellant contends that the trial court erred in not granting his motion for a new trial based on its erroneous rejection of the jury’s original punishment and its instruction to the jury, which stated that five years was the minimum sentence that could be imposed on him if community supervision was recommended.

A. Standard of Review

We review a trial court’s denial of a motion for new trial for an abuse of discretion.  State v. Herndon, 215 S.W.3d 901, 906–07 (Tex. Crim. App. 2007). A trial court abuses its discretion when its decision is arbitrary, unreasonable, and made without reference to guiding rules or principles.  See Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh’g).

To preserve an issue for appellate review, the trial record must reflect that the appellant made a timely objection stating the specific legal basis for the objection.  Tex. R. App. P. 33.1(a)(1)(A); Tex. R. Evid. 103(a)(1); Layton v. State, 280 S.W.3d 235, 238–39 (Tex. Crim. App. 2009).  Usually, a defendant procedurally defaults on a claim of error when he fails to raise it in the trial court.  Saldano v. State, 70 S.W.3d 873, 886–87 (Tex. Crim. App. 2002). However, certain fundamental errors may be raised for the first time on appeal.  Marin v. State, 851 S.W.2d 275, 279–80 (Tex. Crim. App. 1993).  There are, however, relatively few rights that must be affirmatively waived and may therefore be raised on appeal without first registering an objection at trial.  Id; see also Hardeman v. State, 1 S.W.3d 689, 690 (Tex. Crim. App. 1999) (noting that if opportunity to object was afforded appellant and he failed to object, he cannot use later motion for new trial to preserve error).

B. Analysis

Article 42.12 of the Code of Criminal Procedure governs whether a defendant may receive community supervision as a part of his sentence and the limitations on a defendant’s community supervision.  See Tex. Code Crim. Proc. Ann. art. 42.12 (Vernon 2003).

Under article 42.12, § 4(a),

A jury that imposes confinement as punishment for an offense may recommend to the judge that the judge suspend the imposition of the sentence and place the defendant on community supervision.  A judge shall suspend imposition of the sentence and place the defendant on community supervision if the jury makes that recommendation in the verdict.

Id. art. 42.12, § 4(a).  Article 42.12, section 4(b) provides, “If the jury recommends to the judge that the judge place the defendant on community supervision, the judge shall place the defendant on community supervision for any period permitted under Section 3(b) or 3(c) of this article, as appropriate.”  Id. art. 42.12, § 4(b).  Section 3(b) provides, except as provided by [Section 3](f), “In a felony case the minimum period of community supervision is the same as the minimum term of imprisonment applicable to the offense . . . .”  Id. art. 42.12, § 3(b).  Section 3(f) provides, “The minimum period of community supervision for a felony described by Section 13B(b) is five years and the maximum period of supervision is 10 years.”  Id. at art. 42.12, § 3(f).  The felonies described by section 13B(b)(2) include Penal Code section 22.011, under which appellant was indicted.  See id.  art. 42.12, § 13B(b)(2).

          Here, the charge properly instructed the jury on the foregoing law.[2]  The jury initially returned a verdict sentencing appellant to two years and recommending community supervision.  This verdict was illegal under article 42.12.  See Tex. Code Crim. Proc. art. 42.12, §§ 3(b), (f); Tex. Penal Code Ann. § 22.011 (Vernon 2003).  The trial court properly declared the verdict illegal and sent the jury back to continue its deliberations under the charge.  The jury returned with a proper verdict sentencing appellant to the minimum sentence available under article 42.12 for a recommendation of community supervision for an offense under section 22.011 of the Penal Code.  Appellant did not object to the trial court’s instruction that the jury follow the law.  There is no indication that the trial court’s instruction constituted fundamental error.  Rather, the instruction was correct on the law.  The trial court did not err.

We overrule appellant’s issues on appeal.

CONCLUSION

           We affirm the ruling of the trial court.

                                                                   Evelyn V. Keyes

                                                                   Justice

Panel consists of Justices Keyes, Hanks, and Higley.

Do not publish.   Tex. R. App. P. 47.2(b).

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[1]               See Tex. Penal Code Ann. § 22.011 (Vernon 2003) (providing elements for sexual assault of child).

[2]               Appellant mistakenly construes Arnold v. State, 115 S.W.3d 757 (Tex. App.—Austin 2003, no pet.), as supporting his argument.  In Arnold, the court of appeals held that the trial court “erred by telling the jury that the ‘minimum sentence for probation is five years,’” when article 42.13 provided that the minimum period for community supervision for child sex offenders was five years.  Id. at 760.  The appellate court noted, “The period of supervision is not a sentence.  The sentence is the term of incarceration that is suspended on the jury’s recommendation.”  Id. at 760 n.4.  The trial court in Arnold also erred by not requiring the jury to assess a prison term before recommending supervision and by, instead, imposing the prison term itself. Id.  Article 42.12 requires that the jury first impose confinement and then recommend probation.  See Tex. Code Crim. Proc. art. § 42.12 (a), (b).  The Arnold court found the errors to be harmless, however, because the jury did not recommend community supervision. 115 S.W.3d at 760.  Here, the trial court merely sent the jury back to read the charge again when it mistakenly originally assessed a punishment below the minimum sentence required for a recommendation of community supervision. There was no error.