Jeffrey Arlen Quinn v. State ( 2015 )

ACCEPTED
12-14-00263-CR
TWELFTH COURT OF APPEALS
TYLER, TEXAS
9/3/2015 9:24:31 AM
Pam Estes
CLERK
No. 12-14-00263-CR
In the Court of Appeals
9/3/2015
Twelfth District of Texas
Tyler, Texas
JEFFREY ARLEN QUINN
Appellant
v.
THE STATE OF TEXAS
Appellee
No. C·20,818
In the 3 rd Judicial District Court
of Henderson County, Texas
STATE'S APPELLEE BRIEF
R. Scott McKee
District Attorney
Henderson County, Texas
Mark W. Hall
Assistant District Attorney
Henderson County, Texas
TBC No. 00789337
109 W. Corsicana, Ste. 103
Athens, Texas 75751
Tel: 903-675-6100
Fax: 903-675-6196
ORAL ARGUMENT WAIVED
TABLE OF CONTENTS
PAGE
Table of Contents ii
Statement Regarding Oral Argument iii
Identification of Parties 111
Index of Authorities IV
Statement of the Case
Issue Presented
Statement of Facts 1
Summary of the Argument 1
Argument 2
Prayer 9
Certificate of Service 10
11
STATEMENT REGARDING ORAL ARGUMENT
Pursuant to TEX. R. APP. P. 39, the State waives oral argument.
IDENTIFICATION OF THE PARTIES
Pursuant to TEX. R. APP. P. 38.2 (a), a complete list of the names of all
interested parties is provided below so that the members of this Honorable Court may at
once determine whether they are qualified to serve or should recuse themselves from
participating in the decision of the case.
Counsel for the State:
R. Scott McKee - District Attorney of Henderson County
Mark W. Hall- Assistant District Attorney on appeal
Mark W. Hall Assistant District Attorney at trial
Nancy Rumar - Assistant District Attorney at trial
Appellant or Criminal Defendant:
Jeffrey Arlen Quinn
Counsel for Appellant:
John L. Youngblood - Counsel on Appeal
Samuel Smith - Counsel at trial
Trial Judge:
Hon. Mark Calhoon
iii
INDEX OF AUTHORITIES
CASES PAGE
Abdnor v. State 871 S.W.2d 726,731 (Tex.Crim.App. 1994) ..................................... .2,3
Almanza v. State, 686 S.W.2d 157, 174 (Tex.Crim.App. 1984) .................................... 3,4
Blumenstetter v. State, 135 S.W.3d 234,240 (Tex.App.-Texarkana 2004, no pet.) ...............3
Gigsby v. State, 833 S.W.2d 573, 575 (Tex.App. Dallas 1992) .................................... 2
Hutch v. State, 922 S.W.2d 166, 172 (Tex.Crim.App. 1996) ....................................... .3
Jasso v. State, 2006QL 3361463 (Tex.App. Texarkana 2006 pet.Refd) ........................ 8
Olivas v. State, 202 S.W.3d 137 (Tex.Crim.App. 2006) ............................................. 3
Ruiz v. State, 753 S.W.2d 681 (Tex.Crim.App. 1988) ................................................ 8
Solis v. State 792 S.W. 2d 95,98 (Tex.Crim.App. 1990) ............................................ .4
Taylor v. State, 146 S.W.3d 801 (Tex.App. Texarkana 2004, pet. Refd)...................... 3
Will. v. State, 851 S.W.2d 282, 287 (Tex.Crim.App. 1993) ................................... .4
STATUTES AND RULES PAGE
Code Crim.Proc. Article 37.07(4)(a) ....................................................................2
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TO THE HONORABLE JUDGES OF SAID COURT
STATEMENT OF THE CASE
Appellee is satisfied with Appellant's statement of the case.
ISSUE PRESENTED
The trial court committed reversible error when it submitted an
incorrect charge on punishment to the jury in violation of Texas
Code of Criminal Procedure, Article 37.07(4)(a) because the jury
was not instructed that it could not accurately be predicted how
the good conduct time and parole laws would be calculated and
that they could not consider the effects of good conduct time and
parole in Appellant'S case.
STATEMENT OF THE FACTS
Appellee is satisfied with Appellant's statement of the facts.
SUMMARY OF THE ARGUMENT
Appellant's sole point of error complains of the absence of a significant portion the jury
instructions relating to the issue of parole set forth in the Texas Code of Criminal Procedure
Article 37.07(4)(a). Although the failure to include the omitted language was error, the Court
must find that such error arose to the level of "egregious harm" (as opposed to some harm) due
to the Appellant's failure to object to the omission at trial, and that this harm was actual as
opposed to merely theoretical, in order to reverse the sentence of the jury and order a new trial
on punishment.
The erroneous instruction did not deprive appellant of an essential right, vitally affect a
defensive theory, or make the case for punishment "clearly and significantly more persuasive"
which is required to establish egregious harm.
The Appellant is unable to show actual harm, and instead is relying completely upon a
theoretical harm that he speculates he has suffered. He has shown no indication or evidence that
suggests he was sentenced more harshly than he would have been, had the jury received a proper
instruction.
The increased burden on Appellant to show that he suffered egregious harm as a result of
the missing language in the charge, in light of the lack of actual harm shown, is fatal to his claim
and request for a new trial on punishment.
Finally, this court does not have the benefit of the information that a motion and hearing
for a new trial could have provided since none was filed, which could have ferreted out any juror
misconduct regarding deliberations among the jury as to the effect of parole eligibility. Because
of this, the Appellant can only theorize as to the jury's motivation and reasons for assessing the
number of years to which they sentenced Appellant, which was below the maximum available.
STATE'S RESPONSE TO THE ISSUE PRESENTED
The trial court did not commit reversible error when it submitted
an incorrect charge on punishment regarding parole as set forth in
CCP Art. 37.07(4)(a), as the appellant did not show that harm, if
any, sustained by him was so egregious that he was denied a fair and
impartial trial.
ARGUMENT
This appeal raises one issue which only deals with an error at the punishment stage of
trial, and does not implicate the gUilty verdict handed down by the jury.
Appellant correctly points out that a significant portion of the parole instructions outlined
in Code Crim. Proc. Article 37.07(4)(a) were not set forth in the Charge of the Court.
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Specifically, that the charge failed "to include language stating that the Defendant must serve a
minimum of two years if he is sentenced to a term of four years or less". Second, that the
instruction failed to instruct the jury that it "cannot accurately be predicted how the laws would
be applied in this case." Lastly, that it failed to instruct the jury that they were "not to consider
the manner in which the parole law may be applied to this particular defendant."
The State agrees that the failure to include these statutory instructions as to parole
eligibility was error. Gigsby v. State, 833 S.W.2d 573,575 (Tex.App. Dallas 1992). However,
that fact alone does not mandate a reversal of the punishment phase of trial. An erroneous or
incomplete jury charge does not result in automatic reversal of the conviction or punishment,
Abdnor v. State 871 S.W.2d 726, 731 (Tex.Crim.App. 1994), and the level of scrutiny applied
by the reviewing court depends upon whether an objection to the charge was made at trial.
Appellant admits that there was no objection made by Appellant's counsel at trial
regarding the missing language in the charge.
STANDARD OF REVIEW
When a jury charge error is not raised, objected to or preserved at trial, a much greater
degree of harm is required for reversaL Olivas v. State, 202 S.W.3d 137 (Tex.Crim.App. 2006).
The burden on Appellant becomes one to show that he suffered "egregious harm" from the
incorrect jury charge as opposed to "some harm". Abdnor at 732.
"Egregious harm consists of errors affecting the very basis of the case or that deprive the
defendant of a valuable right, vitally affect a defensive theory, or make the case for conviction or
punishment clearly and significantly more persuasive." Blumenstetter v. State, 135 S.W.3d 234,
240 (Tex.App.-Texarkana 2004, no pet.).
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Furthermore, the degree of harm shown by Appellant must be actual, not merely
theoretical. Almanza v. State, 686 S.W.2d 157, 174 (Tex.Crim.App. 1984); Taylor v. State, 146
S.W.3d 801 (Tex.App. Texarkana 2004, pet. Refd). The Court there stated, "We will
examine 'any ... part of the record as a whole which may illuminate the actual, not just
theoretical, harm to the accused." Almanza at 174.
In effect, it is not enough to merely speculate what the jury was thinking in regard to
parole eligibility, if they considered it at all. But if they did, there must be some specific,
identifiable harm that Appellant can identify that was an actual result from improper
consideration of the parole laws by the jury.
The court in Hutch v. State, 922 S.W.2d 166, 172 (Tex.Crim.App. 1996), acknowledged
that "egregious harm is a difficult standard to prove and such a determination must be done on a
case-by case basis." Where the erroneous instruction relates only to some of the State's
evidence, the stronger the other evidence of guilt, (or in this case, the State would argue, the
stronger the punishment evidence), the less likely egregious harm is to have resulted. Solis v.
State 792 S.W. 2d 95,98 (Tex.Crim.App. 1990).
RELEVANCY OF THE PUNISHMENT ASSESSED
If, as here, the error involved assessment of punishment, the question seems to be
whether the Appellant was wrongfully assessed a more severe penalty. See Williams v. State, 851
S.W.2d 282, 287 (Tex.Crim.App. 1993). One of the factors that the courts have considered in
determining "egregious harm" in similar cases is when the jury imposes the maximum sentence,
which was not done here. The maximum available was 20 years, and they chose to impose a
seventeen year sentence instead. Given that, it is no more than unsupported speculation by the
Appellant to say that the reason the jury assessed a 17 year sentence was because they were
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attempting to discern the effect of possible parole. Appellant does attempt to argue that a jury
note sent regarding a statement made by the prosecutor is indication of the jury improperly
considering parole, it is a tangential and speculative argument and best and not supported by any
actual evidence.
In addition to considering the actual sentence imposed, the Court in Almanza made clear
that, "In determining whether Appellant was deprived of a fair and impartial trial, we review 'the
entire jury charge, the state of the evidence, including the contested issues and weight of
probative evidence, the argument of counsel and any other relevant information (emphasis mine)
revealed by the record of the trial as a whole." Almanza @ 171.
OTHER RELEVANT INFORMATION
In this case, "other relevant information" and evidence presented during the punishment
phase of the trial included the unobjected-to introduction of certified copies of Appellant's prior
criminal convictions beginning as a juvenile and continuing into adulthood. Those convictions
were as follows:
Cause No. Date of Conviction Offense convicted
J-1004-D 10/10/97 Burglary of a Habitation
02-0100CL 5/9/03 Assault Family Violence
03-1807CL 12129/03 Criminal Trespass
B-12,217 Possession of a Controlled Substance
C-16,452 7/16/08 Assault Family Violence w/ prior
2008-0464CL 7/16/08 Evading Arrest or Detention
2008-0463CL 7/16/08 Deadly Conduct
2008-0903CL 2/11/08 Assault causing bodily injury
C,16,959 9121/09 ManufacturelDelivery of a Cont. Sub.
C,19,939 3/18/13 Tampering w/ Evidence
RR4 @ 39-40
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In addition to the knowledge of Appellant's extensive criminal history, the jury was also
able to rely upon the evidence introduced during the guilt-innocence stage of the trial to assess
the proper punishment. That evidence showed, by testimony and lengthy in-car videos recording
the chase and subsequent capture of the suspects, the harrowing and dangerous nature of the
actions taken by Appellant to elude capture. This included testimony and visual evidence of the
following:
• Appellant was travelling at speeds in excess of 100 mph. (RR 2 @ 113)
• Appellant's route while evading passed community softball and soccer fields.
(RR 2 @ 112).
• Appellant's route while evading passed through residential neighborhoods.
(RR 2 @ 114)
• Because much of the route of evasion was unmarked two-lane county roads, other
vehicles were forced off the road to avoid collision. (RR @ 172)
• Driving at an excessive speed toward a T-Intersection occupied by law enforcement
on the ground directly in his path of travel. (RR 3 @ 150)
• Putting Appellant and his female passenger in danger of being shot as they
approached the intersection in which the officers had to scramble to get out of the
way. (RR 3 @ 150)
• Causing the female passenger to believe that they had run over a child during the
evasion. (RR 4 @ 10 referring)
• Running through stop signs intersecting a major highway without regard for crossing
traffic. (RR @ 120)
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• Failing to negotiate a turn and crashing out in a residential neighborhood. (RR @
135)
• Having previously been convicted for evading and other assaultive behavior. (RR 4
@ 39-40)
Appellant complains that the charge failed to inform the jury that "any sentence four
years or less would require serving at least two years". However, the jury was instructed in the
charge that the Appellant would not be eligible for parole until the actual time served equaled
one-half the sentence imposed, which makes the particular clause complained of, irrelevant in
light of the sentence assessed. It would also negate an argument that the jury believed appellant
would be free on parole in less than 8+ years. This fact benefits the defendant, in that they
would know that he would not be out in a few years if given a high end sentence.
ARGUMENT OF STATE'S COUNSEL
Appellant argues that the state made specific references to parole in closing that resulted
in a jury note that said, "Please clarify Ms. Rumar's statement, 'Anything less than 10­
15 years is a freebie.'" This question is not clear on its face that the jury was attempting to
determine the application of the parole law in this case. The statement made by the prosecutor
says nothing about parole and it is pure conjecture on the part of the Appellant to assert that they
were attempting to gauge the application of parole to the sentence.
The note did not reveal improper conduct by, or confusion among, the jurors regarding
the erroneous instruction on parole eligibility. It is just as plausible and perhaps more so, to
construe their note as an attempt to analyze whether a lesser sentence would run concurrently
with his prior, and therefore not add anything to his term of incarceration (since Rumar had
mentioned that he still had ten to do on the prior). It would also be reasonable to assume that the
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prosecutor was simply saying something to the effect of, "He's already received a sentence of x
amount of years, why would you give him anything less than that this time?"
Further, it is not an unreasonable deduction from the prosecutor's comments that she was
attempting to highlight the fact that, even while being on parole and facing an additional ten
years of imprisonment, the appellant was still willing to violate the law; that a potential parole
violation was not a deterrent. The fact is, we cannot determine what was in the jurors mind
based on the note received.
None of the arguments of state prosecutors referred to by Appellant were arguably related
to what effect the parole laws would have in this case. It is clear that Prosecutors were
attempting to show that Appellant had been involved in criminal activity most of his life,
beginning as a juvenile, and throughout his adulthood.
Jasso v. State, 2006QL 3361463 (Tex.App. - Texarkana 2006 pet. refd) Ref'd) was a
case where the jury were obviously trying to discern the effects of parole. But even there, the
Court did not find that "actual harm" had resulted. In that case, the appellant argued that he
suffered egregious harm in part because the jury sent out notes to the trial court asking whether
Jasso would become eligible for parole if given a life sentence. Id. at 2.
The Court said that "at best Jasso's argument concerns theoretical harm but Almanza
clearly states the harm must be actual and must be evidenced in the record - a conjectural or
theoretical impact is insufficient." Id. at 2.
None of the specific statements referred to by appellant in this case amount to a direct
comment on parole, as it applied to this case. Those statements were as follows:
1. The defendant served "short three years and something later ... he was paroled"
2. "You know, he had 15 years a few years ago, four years ago, that didn't stop him."
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3. Another thing is I want you to think about is, he's on a 15 years sentence out on
parole. Anything 15 years or less, on this offense, is a freebie."
Consideration must be given to the degree to which the parties during trial stressed the
matter with regard to which the jury charge erred. Egregious harm is more likely to be found if
that matter was stressed and the evidence on it was conflicting and close. Ruiz v. State, 753
S.W.2d 681 (Tex.Crim.App. 1988)
These comments made during closing argument by prosecutors, relied on by Appellant to
show harm, can only be remotely construed as urging the jury to consider the possibility of
parole, when viewed in context made.
PRAYER
Wherefore, premises considered, the State prays, for the reasons set forth in this brief,
that the judgment and sentence in this case be affirmed.
Respectfully Submitted,
~AiJ-difJ
Mark W. Hall
Assistant District Attorney
109 W. Corsicana, Ste. 103
Athens, Texas 75751
Telephone (903) 675-6100
Facsimile: (903) 675-6196
SBN 00789337
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CERTIFICATE OF SERVICE
This is to certify that a copy of the foregoing brief of the State has been emailed the
Appellant's attorney of record, John Youngblood, on the25 ~y of August, 2015.
Mark W. Hall
Assistant District Attorney
CERTIFICATE OF COMPLIANCE
I, Mark W. Hall, attorney for Appellee, the State of Texas, hereby certify that pursuant to
Texas Rule of Appellate Procedure 9.4 (3), that Appellee's brief filed herein contains 2885
words.
~-d2
Mark W. Hall
Assistant District Attorney
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