      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-04-00136-CR



                                     Wayne Rich, Appellant

                                                   v.

                                  The State of Texas, Appellee




     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT
      NO. 2032448, HONORABLE CHARLES F. CAMPBELL, JR., JUDGE PRESIDING



                            MEMORANDUM OPINION


               A jury convicted appellant Wayne Rich of attempted murder, assessing punishment

of twenty years’ imprisonment and a $10,000 fine. See Tex. Pen. Code Ann. §§ 15.01, 19.02 (West

2003). In one issue, appellant contends that the trial court committed reversible error in answering

two jury questions, arguing that those answers were improper supplemental jury instructions. We

affirm the trial court’s judgment of conviction.

               The underlying facts are not in question. However, because the circumstances of the

offense are relevant to sentencing considerations, we will provide a brief recitation of the facts.

Appellant is HIV positive and had been under the care of Dr. David Wright for several years. Dr.

Wright is a family practice physician with a large HIV/AIDS practice who offices in a medical

professional building that is part of the Brackenridge Hospital Complex. On June 26, 2003,

appellant went to an appointment with Dr. Wright armed with a .44 caliber revolver and a sawed-off
.410 shotgun. When the doctor entered the exam room, appellant pointed the revolver at him. The

doctor seized the barrel of the gun and struggled with appellant. During the struggle, the revolver

discharged, shooting a bullet through the wall into Wright’s office, but no one was injured by the

shot. Two other people ran into the exam room and helped Wright subdue appellant and take the

gun away. Appellant said he had planned to shoot Wright with the handgun and then turn the

shotgun on himself.

               Before trial, appellant filed an unsworn application for community supervision,1

reciting that he had never been convicted of a felony. See Tex. Code Crim. Proc. Ann. art. 42.12,

§ 4(e) (West Supp 2004-05) (to be eligible for community supervision, defendant must file sworn

motion stating that he has no prior felony convictions). During voir dire, defense counsel told the

court outside of the jury’s presence that appellant had been in trouble in Maryland in the 1970’s but

could not remember whether he had been convicted of a felony. The prosecutor stated that he had

tried unsuccessfully to get appellant’s Maryland records, saying, “their record keeping is just

horrible, and these are really old cases.” The prosecutor said he was “fine with submitting the issue

of probation to the jury,” but warned that if he later got records showing a felony conviction, he

would “be either filing perjury or some kind of offense for a falsity on the Court.”

               The State presented no evidence regarding appellant’s prior criminal record, and

appellant did not file a sworn application for probation or testify that he had no prior felony

convictions. After the State rested at the punishment stage and outside of the jury’s presence,




       1
         “Community supervision” and “probation” refer to the same sentencing option and are used
interchangeably. Ballard v. State, 126 S.W.3d 919, 919 n.1 (Tex. Crim. App. 2004).

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defense counsel asked the trial court to take judicial notice of appellant’s application for probation.

The court replied that appellant had the burden of showing by a preponderance of the evidence that

he was eligible for probation, see Speth v. State, 6 S.W.3d 530, 533 (Tex. Crim. App. 1999), and

said, “Me taking judicial notice that it is filed proves only that it is filed.” When the jury returned

to the courtroom, however, the trial court took judicial notice that appellant had filed an application

for probation; the State did not object to the trial court’s statement. The jury charge made no

mention of probation and did not give the jury the option of recommending probation.

               Despite the fact that the issue of probation was not submitted to the jury, defense

counsel said in his closing argument, “We filed an application for probation, but I think I would be

insulting all of you if I beat my fist on the jury rail here and said that probation was going to be

justice in this case because it is not.” Counsel argued against the imposition of the maximum

possible punishment, saying, “In this case, you are not presented with any evidence of a criminal

history, a rap sheet on Wayne Rich. You don’t have some hardened criminal here.” The prosecutor

then began his rebuttal argument, saying:


       The punishment range in this case, members of the jury, is from two years to 20 years
       in prison. As you know, someone is not eligible for probation if they have ever been
       convicted of a felony either in this state or another state. That is the only time a
       person can have probation submitted to a jury, if they have never been convicted of
       a felony in this state or another state. You do not have probation as an option
       available to you, and as a jury you can make reasonable inferences from the evidence.


Appellant did not object to this statement.

               The statements by defense counsel and the prosecution apparently confused the jury,

which during deliberations sent the trial court a note asking first, “Should we infer the defendant has

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had a prior felony conviction because the prosecution said he is not eligible for probation because

probation is not available to someone who has a prior felony here or in another state?” The trial

court answered this question, “It simply means that no proof was presented that the defendant was

eligible for probation.” The jury’s second question was, “What is filed for community supervision?”

The court answered, “The law requires that a motion for community supervision/probation be filed

prior to trial. As pointed out in No. 1 above, there is no evidence that the defendant is eligible for

probation.” Appellant did not object to the trial court’s answers but asked the court to instruct the

jury that “there is no evidence that he is ineligible for probation and there’s no evidence that he has

a felony conviction.” The trial court denied that request.

               On appeal, appellant argues that the trial court’s response improperly instructed the

jury on a factual, rather than legal, matter. He argues that the answers had the effect of reinforcing

the prosecutor’s improper suggestion that appellant had a prior felony conviction, thus contributing

to the jury’s decision to impose the maximum punishment available.

               When a trial court makes a substantive response to a jury question during jury

deliberations, the court’s communication amounts to an additional or supplemental jury instruction.

Daniell v. State, 848 S.W.2d 145, 147 (Tex. Crim. App. 1993); see Tex. Code Crim. Proc. Ann. art.

36.16 (West 1981). In determining whether such an instruction was proper, we use the general rules

governing jury instructions. Daniell, 848 S.W.2d at 147. If the instruction properly could have been

given in the original charge, it may be given as a supplemental instruction. Id. (quoting Allaben v.

State, 418 S.W.2d 517, 521 (Tex. Crim. App. 1967)). A trial court is to provide the jury with a

charge setting out the law applicable to the case, Tex. Code Crim. Proc. Ann. art. 36.14 (West Supp.



                                                  4
2004-05), but it is not authorized to give instructions with regard to factual matters. Daniell, 848

S.W.2d at 147. However, when the evidence requires a particular finding as a matter of law or

requires the court to call the jury’s attention to certain evidence, the jury charge should include such

an instruction. See Atkinson v. State, 923 S.W.2d 21, 24-25 (Tex. Crim. App. 1996) (court may have

to point out evidence giving rise to statutory presumption or limited to a certain purpose).

               In its answers to the jury’s questions, the court told them twice that there was no

evidence that appellant was eligible for probation. This was clearly an instruction on a factual matter

that was not required as a matter of law. We are constrained by Daniell to hold that the supplemental

instruction was error.

               Error in supplemental jury instructions is controlled by code of criminal procedure

article 36.19 and the opinion in Almanza v. State. Id. at 148 n.4; see Tex. Code Crim. Proc. Ann.

art. 36.19 (West 1981); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on

reh’g). When, as here, there is jury charge error to which no proper objection was made at trial,

reversal is required only if the error was so egregious and created such harm that the defendant “has

not had a fair and impartial trial.” Almanza, 686 S.W.2d at 171 (quoting art. 36.19). “[E]rrors which

result in egregious harm are those which affect ‘the very basis of the case,’ deprive the defendant of

a ‘valuable right,’ or ‘vitally affect a defensive theory.’” Hutch v. State, 922 S.W.2d 166, 171 (Tex.

Crim. App. 1996). “[T]he actual degree of harm must be assayed in light of 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 revealed by the record of the trial as a




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whole.” Almanza, 686 S.W.2d at 171. The harm to the accused must be actual, not just theoretical.

Id. at 174.

               The supplemental instructions at issue here were the culmination of a series of events

at trial. First, appellant’s counsel asked the court to acknowledge in the jury’s presence that

appellant had filed an application for probation even though the application was not sworn and did

not establish appellant’s eligibility for probation. Then, in his argument, counsel attempted to use

the probation non-issue to appellant’s advantage by drawing the jury’s attention to the probation

application and portraying himself as the voice of reason by acknowledging that probation would

not be a just result in this case. This argument, of course, omitted the fact that the application for

probation was legally ineffective and misleadingly implied that appellant was eligible for probation.

The prosecutor then responded to defense counsel’s argument with his own misleading argument that

invited the jury to infer that appellant had a previous felony conviction.

               The trial court was thus faced with a situation in which improper inferences invited

by both parties during argument had obviously confused the jury. The court responded to the jury’s

questions by attempting to explain that the issue of probation had not been raised, while at the same

time avoiding the suggestion that appellant either did or did not have a criminal record. Although

the court’s supplemental instructions violated article 36.16 as construed in Daniell, the real harm to

appellant came from the prosecutor’s improper argument suggesting that appellant had a criminal

record. This argument, to which appellant did not object, was itself a response to defense counsel’s

improper argument suggesting that appellant was eligible for probation. The court’s instructions

were an attempt to refocus the jury on the true issues in the case and stop further speculation by the



                                                  6
jury regarding facts not in evidence. We conclude that, under the circumstances, the supplemental

instructions were more curative than prejudicial to appellant.

                In light the circumstances in which the challenged instructions were given and

considering the facts of the offense, the error in the court’s charge did not affect the very core of the

case. See Hutch, 922 S.W.2d at 171; and see Atkinson, 923 S.W.2d at 25 (jury instruction drawn so

as to submit an issue without suggesting resolution; “[t]hat is the best that can be expected of any

jury instruction under our law”); Ewing v. State, 549 S.W.2d 392, 395 (Tex. Crim. App. 1977);

Johnson v. State, 987 S.W.2d 79, 88 (Tex. App.—Houston [14th Dist.] 1998, pet. ref’d). Appellant

has not shown egregious harm.

                We overrule appellant’s sole point of error and affirm the trial court’s judgment.




                                                __________________________________________

                                                Jan P. Patterson, Justice

Before Chief Justice Law, Justices Patterson and Puryear

Affirmed

Filed: June 23, 2005

Do Not Publish




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