                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-10-00159-CR


GRADY SHAWN BROWN                                                      APPELLANT

                                         V.

THE STATE OF TEXAS                                                           STATE


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    FROM THE COUNTY CRIMINAL COURT NO. 1 OF DENTON COUNTY

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                         MEMORANDUM OPINION1
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                                   I. Introduction

      Appellant Grady Shawn Brown appeals his 365-day jail sentence assessed

by a jury following his assault-family violence conviction. In two points, Appellant

asserts that the trial court‘s failure to submit a supplemental charge instruction in

response to a jury question caused him egregious harm. We affirm.



      1
       See Tex. R. App. P. 47.4.
                      II. Factual and Procedural Background

         Appellant pleaded not guilty to Class A misdemeanor assault against a

family member, and a jury trial ensued. Viewed in the light most favorable to the

verdict, the evidence reveals that Appellant would not allow his wife, Trisha

Brown, to go anywhere outside the home without him. On August 28, 2009,

Appellant noticed that Trisha was not at home and went looking for her in his

truck.       When Appellant found Trisha, he ordered her into his truck and

immediately ―backhanded‖ her, causing her to ―see red.‖ At home, Appellant

punched Trisha in the face with his fist ―over and over and over again‖ until her

eyesight began ―closing in‖ and ―[i]t all went black.‖             Trisha regained

consciousness when Appellant struck her in the jaw. Appellant also hit Trisha in

the back of the head with a blunt object that felt like a broomstick. The jury found

Appellant guilty of assault-family violence.2

         Appellant elected to have the jury assess punishment. Trisha testified that

Appellant had assaulted her approximately six times in the six months they had

been married.      One prior assault left a permanent scar above her eye.        On

another occasion, Appellant beat Trisha with a pool cue until she could barely

walk. Appellant often threatened he would harm Trisha‘s family if she ever left

him. Appellant presented evidence that he had never before been convicted of a

felony and was therefore eligible to be placed on community supervision. During


         2
         See Tex. Penal Code Ann. ' 22.01(a)(1) (West 2011).


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closing arguments, Appellant‘s counsel asked the jury to place Appellant on

community supervision. The State asked the jury to give Appellant the maximum

sentence of one year‘s confinement.

      The court‘s punishment charge instructed the jury that ―[o]ur law provides

that where a person is charged with this type of offense, and the Jury finds him

guilty, he may be granted community supervision if the Jury finds that such

person has never before been convicted of a felony.‖ The court also instructed:

            Community supervision means the placement of a defendant
      by a court under a continuum of programs and sanctions, with
      conditions imposed by the court of a specified period during which a
      sentence of confinement or confinement and fine is probated and
      the imposition of sentence is suspended in whole or in part.

The court‘s charge provided the jury with the following punishment options: (1)

impose jail time for a number of days not to exceed 365, (2) impose a fine in an

amount not to exceed $4,000, (3) impose jail time and a fine, (4) impose jail time

and recommend community supervision, (5) impose jail time and a fine and

recommend community supervision, and (6) impose jail time and a fine and

recommend community supervision but suspend only jail time.          The charge

instructed the jury to ―unanimously agree[] upon a verdict‖ and to ―certify [the]

verdict to the court by using the appropriate form attached hereto.‖       During

deliberations, the jury sent out the following note:

      We would like to know if we could add a probate period after a ____
      up to 365 days in jail of up to 365 days of community
      watch/probation as well as court mandated coun[se]ling/anger
      management.



                                          3
Without objection from either party, the trial court responded: ―Please be guided

by the court‘s charge. These are the only options that you have.‖ The jury

assessed Appellant‘s punishment at 365 days in the county jail and did not

recommend community supervision.              The trial court sentenced Appellant

accordingly. The trial court dismissed the jury and stated:

      You had the question about — I think it was kind of like adding
      probation to the end of a jail term. And what I can do as a judge, up
      to six months into a jail term, I can bring somebody back, and if I —
      if I want to, I can place them on probation at that point. I cannot wait
      until the entire sentence has been performed and then place them
      on probation. I don’t have the ability to do that. And it‘s kind of like
      a shock probation in a sense. Sometimes a judge will send
      someone to jail for a period of time, in essence — in hope that it will
      shock the defendant‘s system and teach them a lesson, and then
      place them on probation to see if they‘re willing to live up to it. And if
      they can‘t live up to those terms and conditions, then they can send
      them back to jail for the remainder of the sentence. But that‘s about
      the only option that I have as a judge. Okay?

[Emphasis added.]

                               III. Discussion

      In his first point, Appellant asserts that the trial court erred under article

36.16 of the code of criminal procedure in failing to submit a supplemental

instruction setting out possible probation conditions, including that the trial court

could impose jail time as a condition of probation. Appellant contends that the

jury‘s note indicated that it was considering probation and that it was asking

whether jail time could be required as a condition of probation. In his second

point, Appellant acknowledges that he did not object to the trial court‘s response

to the jury‘s note but asserts that the omission of a supplemental jury charge was


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egregiously harmful and that reversal is required under Almanza v. State, 686

S.W.2d 157 (Tex. Crim. App. 1984) (op. on reh‘g).

      Even though Appellant did not object to the trial court‘s response, we must

determine whether jury-charge error occurred because all jury-charge error must

be considered, whether or not an objection to the charge was made.             See

Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003); see also Ngo v.

State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005); Williams v. State, 307

S.W.3d 862, 867 (Tex. App.—Fort Worth 2010, no pet.). Only if we find error, do

we consider whether an objection to the charge was made and analyze that error

for harm under Almanza.3 Ngo, 175 S.W.3d at 743; Middleton, 125 S.W.3d at

453. The Almanza harm standard does not apply unless ―the record first shows

that any requirement of various statutory provisions referenced in Article 36.19

‗has been disregarded.‘‖4 Posey, 966 S.W.2d at 60.


      3
        Almanza is based on the court of criminal appeals‘s interpretation of
article 36.19 and its statutory predecessors, which the court has construed as
separately containing the ―harm‖ standards for both ―fundamental error and
ordinary reversible error‖ in jury charges. Posey v. State, 966 S.W.2d 57, 60
(Tex. Crim. App. 1998) (citing Almanza, 686 S.W.2d at 171).
      4
      Article 36.19 provides:

             Whenever it appears by the record in any criminal action upon
      appeal that any requirement of Articles 36.14, 36.15, 36.16, 36.17
      and 36.18 has been disregarded, the judgment shall not be reversed
      unless the error appearing from the record was calculated to injure
      the rights of defendant, or unless it appears from the record that the
      defendant has not had a fair and impartial trial.

Tex. Code Crim. Proc. Ann. art. 36.19 (West 2006).

                                        5
      Under article 36.14, a trial court must instruct the jury on the law applicable

to the case. See Tex. Code Crim. Proc. Ann. art. 36.14 (West 2007); Villarreal v.

State, 286 S.W.3d 321, 329 (Tex. Crim. App.), cert. denied, 130 S. Ct. 515

(2009). Under article 36.16, a trial court may give a supplemental instruction if

requested by the jury. See Tex. Code Crim. Proc. Ann. art. 36.16 (West 2006);

Daniell v. State, 848 S.W.2d 145, 147 (Tex. Crim. App. 1993); Guajardo v. State,

176 S.W.3d 402, 406 (Tex. App.—Houston [1st Dist.] 2004, pet. ref‘d). If the jury

requests additional instructions that are not proper, however, the court should

refer the jury to the court‘s charge. See Ash v. State, 930 S.W.2d 192, 195–96

(Tex. App.—Dallas 1996, no pet.) (discussing additional charge instructions in

the context of article 36.27) (citing Gamblin v. State, 476 S.W.2d 18, 20 (Tex.

Crim. App. 1972)); Ishmael v. State, 688 S.W.2d 252, 262 (Tex. App.—Fort

Worth 1985, pet. ref‘d).

      Here, the trial court provided the jury the option of recommending

community supervision, and Appellant acknowledges that the trial court was not

required to enumerate the possible terms and conditions of probation in its

original punishment charge. He asserts, however, that ―upon receipt of the jury‘s

note the trial court was undoubtedly aware that the jury was considering

probation if jail time could be assessed in addition thereto‖ and that the trial court

erred in not supplementing the charge with possible conditions of probation,

including the possibility of jail time as a condition of probation. We disagree with

Appellant‘s characterization of the jury‘s note.


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      We agree with the State that the jury‘s note asked whether the jury could

add a term of probation on top of a term of confinement.5            This is not a

punishment option that juries are authorized to assess. See Tex. Penal Code

Ann. ' 12.21 (West 2011);6 Tex. Code Crim. Proc. Ann. art. 42.12, ' 4(a) (West

Supp. 2010).7 While article 42.12, section 7 (providing for what is known as

―shock probation‖) comes the closest to addressing the jury‘s question, it is not a

consideration for the jury in deciding whether to recommend community

supervision. See Tex. Code Crim. Proc. Ann. art. 42.12, ' 7 (West Supp. 2010).8

Indeed, as the trial court explained to the jury,

             [A]s a judge, up to six months into a jail term, I can bring
      somebody back, and if I — if I want to, I can place them on probation
      at that point. I cannot wait until the entire sentence has been
      performed and then place them on probation. I don‘t have the ability
      to do that.




      5
      The trial court similarly characterized the jury‘s question as ―kind of like
adding probation to the end of a jail term.‖
      6
       ―An individual adjudged guilty of a Class A misdemeanor shall be
punished by: (1) a fine not to exceed $4,000; (2) confinement in jail for a term not
to exceed one year; or (3) both such fine and confinement.‖ Id.
      7
       ―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.‖ Id.
      8
       During the first 180 days after sentencing a defendant to confinement for
a misdemeanor conviction, the trial court retains jurisdiction to suspend further
execution of the sentence and place the defendant on community supervision.
Id.


                                          7
The record supports the trial court‘s understanding that the jury‘s note was

asking about an unavailable punishment option and included matters the jury

should not have been considering. Because the trial court may only instruct the

jury on the applicable law, it properly referred the jury back to the original

punishment charge.

      Even assuming that the jury note could be interpreted the way Appellant

suggests—i.e., that the jury was asking whether it could impose jail time as a

condition of probation—no charge error existed. The trial court‘s charge provided

the jury with six options that, generally speaking, included two main options—

sentencing Appellant to jail time or recommending community supervision.

Consistent with the law, the court‘s charge instructed that the trial court would set

the conditions of community supervision if the jury recommended community

supervision. See Tex. Code Crim. Proc. Ann. art. 42.12, § 11(a) (West Supp.


2010); Dellinger v. State, 872 S.W.2d 49, 51 (Tex. App.—Fort Worth 1994, pet.

ref‘d) (holding that a jury recommending probation has no voice in the decision

concerning confinement). It is well-settled that a trial court is not required to list

the conditions of community supervision in its punishment charge. See Sanchez

v. State, 243 S.W.3d 57, 69–70 (Tex. App.—Houston [1st Dist.] 2007, pet. ref‘d);

Cagle v. State, 23 S.W.3d 590, 594–95 (Tex. App.—Fort Worth 2000, pet. ref‘d)

(op. on reh‘g) (citing Yarbrough v. State, 742 S.W.2d 62, 64 (Tex. App.—Dallas

1987), pet. dism’d, improvidently granted, 779 S.W.2d 844, 845 (Tex. Crim. App.



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1989)).     It follows therefore that a trial court does not err by not delineating

community-supervision      conditions   in       a   supplemental   charge   instruction,

especially in the instant situation because the note did not clearly ask about such

conditions and because Appellant did not specifically request that the instruction

be given.

      Appellant argues, however, that article 36.16 specifically directs a trial

court to supplement its charge upon the jury‘s request. See Tex. Code Crim.

Proc. Ann. art. 36.16 (providing in part that after the charge is read and closing

arguments have begun, ―no further charge shall be given to the jury unless

required by the improper argument of counsel or the request of the jury‖). We do

not read article 36.16 as requiring a trial court to submit a supplemental

instruction in every instance that a jury requests additional information. 9 See

Mauricio v. State, 293 S.W.3d 756, 759 (Tex. App.—San Antonio 2009, no pet.)

(declining to accept appellant‘s argument that trial court was required under

article 36.16 to submit a supplemental instruction containing a ―reasonable

doubt‖ definition simply because the jury requested it). The only other authority



      9
        The court of criminal appeals and at least two sister courts describe the
article 36.16 language Appellant relies on in permissive rather than mandatory
terms. See Daniell, 848 S.W.2d at 147 (noting that under article 36.16, an
additional charge may be given after arguments at the request of the jury);
Guajardo, 176 S.W.3d at 406 (―A trial court is allowed to give a supplemental
instruction if requested by the jury.‖); Garza v. State, 55 S.W.3d 74, 77 (Tex.
App.––Corpus Christi 2001, pet. ref‘d) (stating that if prerequisites of article 36.16
are met, a supplemental charge may be given).


                                             9
Appellant cites to—Herrera v. State, 848 S.W.2d 244 (Tex. App.—San Antonio

1993, no pet.)—is not dispositive.

      In Herrera, the State provided the jury with a confusing definition of

probation during jury selection, and the punishment charge did not define

probation or list any possible probationary conditions.      Id. at 247.    During

deliberations, the jury sent a note to the trial court asking, ―What exactly is the

meaning of probation? What happens to someone who is placed on probation?‖

Id. The trial court responded over the defendant‘s objection: ―You have all the

law the Court can give you. Please continue your deliberations.‖ Id. On appeal,

the San Antonio court concluded that the trial court erred in refusing to

supplement the charge with a definition of probation and that some harm

resulted. Id. at 247–48.

      In the instant case, the trial court provided the statutory definition of

community supervision as well as other instructions that allowed the jury to

properly consider Appellant‘s request for community supervision. Additionally, as

a sister court has noted, Herrera arguably conflicts with Yarbrough to the extent

Yarbrough indicates there is no requirement to include probation conditions in the

charge. See Musachia v. State, Nos. 14-02-00314-CR, 14-02-00315-CR, 14-02-

00316-CR, 2003 WL 21229557, at *13 (Tex. App.—Houston [14th Dist.] May 29,

2003, pet. ref‘d) (not designated for publication). Moreover, the only published

case to cite Herrera relies on it for the proposition that omission of probation

conditions from a jury charge is not fundamental error. See Cortez v. State, 955


                                        10
S.W.2d 382, 384 (Tex. App.—San Antonio 1997, no pet.). Thus, article 36.16 did

not require a supplemental instruction in this case.

      For all of the above reasons, we conclude that there was no jury-charge

error in this case, and therefore, we do not conduct a harm analysis.     See

Williams, 307 S.W.3d at 867–68. We overrule both of Appellant‘s points.

                                 IV. Conclusion

      Having overruled Appellant‘s two points, we affirm the trial court‘s

judgment.




                                                   ANNE GARDNER
                                                   JUSTICE

PANEL: GARDNER, MEIER, and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: August 31, 2011




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