Opinion issued October 8, 2019.




                                    In The

                             Court of Appeals
                                   For The

                         First District of Texas
                           ————————————
                             NO. 01-18-00669-CR
                          ———————————
                        EDDIE RANDLE, Appellant
                                       V.
                     THE STATE OF TEXAS, Appellee


                  On Appeal from the 405th District Court
                         Galveston County, Texas
                     Trial Court Case No. 17-CR-1399


                        MEMORANDUM OPINION

     A jury convicted appellant, Eddie Randle, of aggravated assault with a deadly

weapon and assessed his punishment at nine years’ incarceration. On appeal,

appellant contends that he suffered egregious harm because an incorrect jury
instruction omitted the possibility of assessing a fine. Specifically, appellant argues

that egregious harm occurred because the error deprived the jury of the ability to

substitute a fine for a less severe prison sentence.

      We affirm the trial court’s judgment.

                                     Background

      It is undisputed that appellant stabbed the complainant with a knife. The issues

raised at trial were whether appellant acted in self-defense and where the stabbing

took place. Appellant stated that the stabbing occurred inside his house while the

State countered that it occurred outside. After two hours of deliberations, the jury

sent a note asking whether the driveway was part of the house. An hour after

receiving a reply from the trial court, the jury sent a second note informing the court

that they were unable to reach a unanimous verdict. The trial court instructed the

jury to continue deliberating. The jury ultimately found appellant guilty of the

charged offense, aggravated assault with a deadly weapon.

      During the punishment phase, appellant pleaded “true” to the enhancement

paragraph alleging that he had previously been convicted of the felony offense of

aggravated assault with a deadly weapon. Appellant was sentenced to seven years’

incarceration for that offense. The State also offered evidence of appellant’s other

prior convictions.




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      After both sides rested, the trial court read the punishment charge to the jury.

No objection was raised. Although the charge omitted any instruction regarding the

possibility of a fine, the verdict form contained blank spaces allowing the jury to

assess a fine against appellant as part of his punishment, in addition to confinement.

The trial court also verbally instructed the jury that it could impose a fine of up to

ten thousand dollars in addition to prison time. During closing argument, appellant’s

counsel asked the jury to disregard the fine because appellant was not a man of

means, and the State told the jury that it was not asking them to assess a fine against

appellant as part of his punishment. After the jury sent a note to the trial court

indicating that they were having difficulty reaching a unanimous verdict, the trial

court instructed the jury to continue deliberating. The jury subsequently assessed

appellant’s punishment at nine years’ incarceration and a fine of $“0.”

                                 Jury Charge Error

      In his sole issue, appellant argues that the jury charge was erroneous because

it failed to instruct the jury on the full range of punishment, i.e., it did not instruct

the jury that it could assess a fine against appellant of up to ten thousand dollars as

part of his punishment. Appellant did not object to the charge at trial.

A.    Standard of Review and Applicable Law

      When a defendant does not object to an incorrect charge, reversal is required

if the error results in egregious harm. Almanza v. State, 686 S.W.2d 157, 171 (Tex.


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Crim. App. 1984). An error is egregious if it results in a defendant receiving a trial

that is not fair and impartial. Id. Egregious harm occurs when the incorrect jury

charge affected the basis of the case, deprived the defendant of a valuable right, or

vitally affected a theory of the defense. De la Luz Torres v. State, 570 S.W.3d 874,

880 (Tex. App.—Houston [1st Dist.] 2018, pet. ref’d). The analysis involves looking

at four factors: (1) the entire jury charge; (2) the state of the evidence, including

contested issues and the weight of the probative evidence; (3) the arguments of

counsel; and (4) any other relevant information from the trial record. Id. (citing

Villareal v. State, 453 S.W.3d 429, 433 (Tex. Crim. App. 2015)). Almanza harm

analysis is done on a case-by-case basis. Cartwright v. State, 833 S.W.2d 134, 137

(Tex. Crim. App. 1992). Harm is generally not egregious when the punishment given

is within the lawful range and the jury was not precluded from imposing a lesser

fine. Id. at 136.

       Aggravated assault with a deadly weapon is a second-degree felony. TEX.

PENAL CODE § 22.02(b). With one enhancement paragraph, the punishment is

elevated to a first-degree felony. Id. § 12.42(b). The punishment range for a

first-degree felony is five to ninety-nine years, or life in prison, and a fine of up to

ten thousand dollars. Id. § 12.32.




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B.    Almanza Harm Analysis

      1.     Entirety of the Charge

      To evaluate if egregious harm occurred, we first look to the jury charge itself.

The written jury instructions were incorrect as they omitted reference to the

possibility of a fine. However, this error was mitigated by the trial court’s accurate

verbal instruction that the jury could impose a fine of up to ten thousand dollars. The

harm was further attenuated because the verdict form included a blank space for the

jury to assess a fine. Finally, we can infer the jury saw the blank because the jury

wrote “0” in the space. Thus, the jury charge, taken as a whole, strongly suggests

that the jury understood the possibility of assessing a fine. This weighs against

finding egregious harm.

      2.     Arguments of Counsel

      We also consider the arguments of counsel. In their closing arguments during

the punishment phase, the State and appellant’s counsel referred to the possibility of

a fine. Furthermore, both argued against assessing a fine. Counsels’ combined

accurate representations of the law in conjunction with the trial court’s verbal

instructions favor a finding of no egregious harm. See Gelinas v. State, 398 S.W.3d

703, 708 (Tex. Crim. App. 2013) (holding arguments of counsel weighed

“significantly in favor of a finding of no egregious harm” when both sides argued

correct law to jury); see also Ashton v. State, 526 S.W.3d 490, 500–01 (Tex. App.—


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Houston [1st Dist.] 2017, pet ref’d) (indicating that arguments of counsel

ameliorating charge error weigh against finding of egregious harm). Counsels’

arguments appear to have been heeded as the jury affirmatively chose to not impose

a fine. This also raises the strong possibility that even if there had been no error in

the charge, the jury would not have assessed a fine based on counsels’ arguments.

Thus, this factor also weighs against finding egregious harm.

      3.     Other Relevant Information in the Record

      Appellant argues that the jury’s notes to the court during guilt/innocence and

punishment deliberations indicate that the jury struggled to reach unanimous verdicts

and is evidence that the jury might have been willing to consider imposing a fine in

exchange for reducing the length of appellant’s sentence. There is nothing to suggest

that the jury might have considered this trade-off had the written charge been correct.

The jury could have just as easily believed that assessing no fine was to appellant’s

advantage. This factor does not weigh in favor of finding egregious harm.

      4.     Conclusion

      No factor weighs in favor of finding egregious harm. After reviewing the

record in its entirety, we cannot say that appellant was egregiously harmed by the

absence of a written instruction regarding the fine.

      We overrule appellant’s sole issue.




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                                   Conclusion

      We affirm the trial court’s judgment.




                                              Russell Lloyd
                                              Justice


Panel consists of Justices Lloyd, Goodman, and Landau.

Do Not Publish. TEX. R. APP. P. 47.2(b).




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