                                 NO. 12-09-00313-CR

                       IN THE COURT OF APPEALS

          TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS

JIMMIE HOWARD FOXWORTH,                        §              APPEAL FROM THE 217TH
APPELLANT

V.                                             §              JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                       §              ANGELINA COUNTY, TEXAS

                                   MEMORANDUM OPINION
       A jury found Appellant Jimmie Howard Foxworth guilty of aggravated assault of a child
and assessed his punishment at imprisonment for sixty years. Appellant alleged ineffective
assistance of counsel in a posttrial application for writ of habeas corpus. The Texas Court of
Criminal Appeals granted the writ and remanded the case to the trial court for a new trial on
punishment. At the new trial on punishment, the jury assessed Appellant’s punishment at
imprisonment for thirty-five years. Appellant raises four issues on appeal. We affirm.




                           REQUEST FOR COMPLETE LIST OF
                    COMMUNITY SUPERVISION REQUIREMENTS IN CHARGE
       Appellant was eligible for community supervision. Appellant requested in writing that
all statutory supervision conditions be provided to the jury so that, according to his brief, the jury
would have a ―complete list of community supervision requirements.‖              The court’s charge
included ten of the basic conditions of community supervision under article 42.12, section 11 of
the Texas Code of Criminal Procedure, see TEX. CODE CRIM. PROC. ANN. art. 42.12, § 11(a)(1)–
(9), (13) (Vernon Supp. 2009), together with the general condition, ―any other appropriate terms
or conditions that the court may deem appropriate.‖ The charge did not include twelve other
applicable conditions set out in article 42.12, section 11 that Appellant requested to be included
in the charge. Appellant particularly complains of the trial court’s failure to instruct the jury
regarding the provisions of article 42.12, section 9A(c). That section provides the judge shall
direct that sex offenders be evaluated to determine the appropriateness of and course of conduct
necessary for the defendant’s treatment, specialized supervision, or rehabilitation. Id. art. 42.12,
§ 9A(c) (Vernon Supp. 2009). Appellant further complains of the trial court’s omission from the
charge the requirements of article 42.12, section 13B that apply to persons placed on community
supervision after conviction for offenses against children. See id. art. 42.12, § 13B (Vernon
Supp. 2009). Appellant also requested an instruction regarding the application of community
service to his case under article 42.12, section 16. See id. art. 42.12, § 16 (Vernon Supp. 2009).
Applicable Law
       A trial court is not required to submit the statutory terms of community supervision in its
charge on punishment. Sanchez v. State, 243 S.W.3d 57, 69 (Tex. App.—Houston [1st Dist.]
2007, pet. ref’d). The failure to enumerate all of the terms and conditions is not considered
harmful to the accused. Id. at 69–70. ―Although the jury has no authority to set the terms and
conditions, it is helpful to enumerate in the court’s charge the community supervision terms and
conditions which the court may impose if community supervision is recommended by the jury.‖
Wade v. State, 951 S.W.2d 886, 893 (Tex. App.—Waco 1997, pet. ref’d).
Discussion
       Appellant argues he was harmed by the trial court’s refusal to instruct the jury on all the
law applicable to the case. The trial court’s failure to charge the jury regarding the severe
restrictions on sex offenders placed on community supervision, he contends, undermined the
relevance of the testimony regarding those conditions and his counsel’s argument for community
supervision that relied on them.
       Overwhelming authority supports the State’s position that the exhaustive recitation of
community supervision terms requested by Appellant is not required. See, e.g., Sanchez, 243
S.W.3d at 69-70. As Appellant acknowledges, his testimony dealt with the possible terms and
conditions of community supervision that could be ordered by the trial court in the event the jury
recommended community supervision. Appellant also called a community supervision officer
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who supervised sex offenders placed on community supervision. She discussed some of the
terms and conditions of community supervision required of convicted sex offenders in Angelina
County. In final argument, Appellant’s counsel discussed potential conditions of community
supervision including those not included in the court’s charge. We believe that the court’s
charge, the testimony, and argument of counsel sufficiently informed the jury about the
conditions of community supervision applicable to sex offenders for it to render a proper verdict.
Even assuming the trial court erred in failing to enumerate in its charge the conditions requested,
we do not believe that omission was calculated to injure the rights of Appellant in view of the
record as a whole. See Almanza v. State, 686 S.W.2d 157, 171-72 (Tex. Crim. App. 1984).
Error, if any, was harmless. Appellant’s first issue is overruled.


                                    CHALLENGES FOR CAUSE
       In his second issue, Appellant contends the trial court erred in denying his challenge for
cause of venire members Duirden and Turner. During the examination of the panel, both
Duirden and Turner indicated that someone close to them had been victims of sexual assault.
When Duirden was questioned individually, the judge asked him if he could be impartial and
base his decision on the evidence. Duirden responded, ―I think so.‖ His great niece had been a
victim of child abuse six months before, but he told the court he thought he could set the
experience aside.    When Appellant’s counsel asked him if there might be a problem, he
answered, ―Once the evidence is presented, maybe.‖
       Turner had two close family members who had been victims of sexual assault. When
questioned if he would bring the emotions engendered by that experience into his service as a
juror, he answered affirmatively. Turner indicated that he could consider the full range of
punishment, and that he could assess a punishment based on the evidence.
       The trial court denied Appellant’s challenge for cause, and Appellant used two
peremptory challenges to remove Duirden and Turner from the panel.
Applicable Law
       A defendant may challenge any prospective juror who has a bias or prejudice against any
part of the law upon which he is entitled to rely. Sells v. State, 121 S.W.3d 748, 759 (Tex. Crim.
App. 2003). An appellate court should examine the entire record to determine if there is
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sufficient evidence to support the trial court’s ruling. Id. The test is whether the bias or
prejudice would substantially impair the prospective juror’s ability to carry out his oath and
instructions in accordance with the law. Id. Before a prospective juror may be excused for
cause on this basis, the law must be explained to the prospective juror, and he must be asked if
he can follow that law regardless of his personal views. Id. The proponent of a challenge for
cause has the burden of establishing that his challenge is proper. Id. The proponent does not
meet his burden until he has shown that the panel member understood the requirements of the
law and could not overcome that bias or prejudice sufficiently to follow it. Id.
       When a venireperson vacillates or equivocates on his ability to follow the law, the
reviewing court must defer to the trial court’s judgment. Brown v. State, 913 S.W.2d 577, 580
(Tex. Crim. App. 1996); Roberts v. State, 139 S.W.3d 1, 3 (Tex. App.—Tyler 2003, pet. ref’d).
       Duirden told the court that he believed he could be impartial and base his decision on the
evidence, although he conceded that it might be a problem to lay aside his experience once he
had heard the evidence. Moore told the court that he believed he could consider the full range of
punishment. When questioned by Appellant’s counsel, Moore said that he would do his best but
could not guarantee that his personal feelings would not affect his judgment. From the cold
record, both Duirden’s and Moore’s responses must be characterized as somewhat equivocal.
The trial judge, however, observed their demeanor and the tenor of their responses, an advantage
denied a reviewing court. Therefore, we must defer to the trial court’s judgment. See Brown,
913 S.W.3d at 580. Appellant’s second issue is overruled.




     EVIDENCE OF PRIOR CONVICTION UNDER THE FEDERAL YOUTH CORRECTIONS ACT
       In his third issue, Appellant complains the trial court erred in allowing evidence of his
conviction under the Federal Youth Corrections Act for interstate transport of a stolen vehicle.
See 18 U.S.C. §§ 5005-5026 (repealed 1984). He also argues that at the time of his commitment,
a commitment under the act was not a ―sentence of confinement.‖
       In his motion in limine, Appellant asked the trial court to exclude any evidence of his
conviction under the act. When he was seventeen, Appellant stole a vehicle in Washington State
and drove it across the state line. He was arrested, and was given jail time and a probated
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sentence. His case was dismissed upon completion of his probation.
          Prior to Appellant’s testimony, the trial court held a hearing outside the presence of the
jury to consider Appellant’s objection to the admission of evidence of his conviction under the
Federal Youth Corrections Act. The trial court found the evidence relevant to the issue of
punishment and admissible. Appellant then argued that the prejudicial effect of evidence of the
conviction substantially outweighed its probative value.                       The court overruled Appellant’s
objection.
          Appellant testified before the jury that he had never been convicted of a felony in any
state and that he was eligible for community supervision. On cross examination, the prosecutor
questioned Appellant regarding his commitment for an indefinite term for treatment and
supervision under the Federal Youth Corrections Act for stealing cars.
Standard of Review and Applicable Law
          A trial court’s decision to admit or exclude evidence is reviewed for abuse of discretion.
Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001). A trial court does not abuse its
discretion as long as its decision to admit or exclude evidence is ―within the zone of reasonable
disagreement.‖ Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on
reh’g).
          In addition to the rules of evidence, Texas Code of Criminal Procedure article 37.07,
section 3 governs the admission of evidence at the punishment stage. It states, in pertinent part,
as follows:




          Sec. 3. Evidence of prior criminal record in all criminal cases after a finding of guilty.

          (a)(1) Regardless of the plea and whether the punishment be assessed by the judge or the jury,
          evidence may be offered by the state and the defendant as to any matter the court deems relevant
          to sentencing, including but not limited to the prior criminal record of the defendant, his general
          reputation, his character, an opinion regarding his character, the circumstances of the offense for
          which he is being tried, and, notwithstanding Rules 404 and 405, Texas Rules of Evidence, any
          other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by
          evidence to have been committed by the defendant or for which he could be held criminally
          responsible, regardless of whether he has previously been charged with or finally convicted of the
          crime or act. A court may consider as a factor in mitigating punishment the conduct of a
          defendant while participating in a program under Chapter 17 as a condition of release on bail.
          Additionally, notwithstanding Rule 609(d), Texas Rules of Evidence, and subject to Subsection
          (h), evidence may be offered by the state and the defendant of an adjudication of delinquency
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       based on a violation by the defendant of a penal law of the grade of:
        (A) a felony; or
        (B) a misdemeanor punishable by confinement in jail.


TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1) (Vernon Supp. 2009).
       Evidence relevant to the issue of punishment is evidence ―helpful to the jury in
determining the appropriate sentence for a particular defendant in a particular case.‖ Rogers v.
State, 991 S.W.2d 263, 265 (Tex. Crim. App. 1999). Relevant evidence ―may be excluded if its
probative value is substantially outweighed by the danger of unfair prejudice. . . .‖ TEX. R. EVID.
403. ―Unfair prejudice does not . . . mean that the evidence injures the [defendant’s] case.‖
Rogers, 991 S.W.2d at 266. Rather it refers to ―an undue tendency to suggest decision on an
improper basis, commonly, though not necessarily, an emotional one.‖ Id.
Discussion
       Texas appellate courts have held admissible, during the punishment phase, a deferred
adjudication order, Brown v. State, 716 S.W.2d 939, 949 (Tex. Crim. App. 1986), a case
previously dismissed, Clewis v. State, 222 S.W.3d 460, 464 (Tex. App.–Tyler 2007, pet. ref’d),
evidence of four prior unadjudicated juvenile offenses, Strasser v. State, 81 S.W.3d 468, 469
(Tex. App.–Eastland 2002, pet. ref’d), an out-of-state juvenile conviction, Montes v. State, 870
S.W.2d 643, 648-49 (Tex. App.—El Paso 1994, no pet.), and a completed probation after
deferred adjudication, Verrett v. State, 648 S.W.2d 712 (Tex. App.–Beaumont 1982, pet. ref’d).
For purposes of admissibility at the punishment phase, we see no distinction between these
sentences and Appellant’s 1970 conviction under the Federal Youth Corrections Act. The trial
court did not err in concluding that Appellant’s 1970 conviction under the Federal Youth
Corrections Act was relevant to the jury’s determination of an appropriate punishment and
admissible under article 37.07, section 3(a).
       Moreover, we do not believe the probative value of the evidence of the conviction was
substantially outweighed by the danger of unfair prejudice to Appellant. The trial court did not
abuse its discretion in overruling Appellant’s rule 403 objection. Appellant’s third issue is
overruled.




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                                      RANGE OF PUNISHMENT
       In his first trial, the jury assessed Appellant’s punishment at imprisonment for sixty
years. The court’s charge in the second trial permitted the jury to assess a punishment at any
term of years not less than five nor more than ninety-nine, or life. Appellant claims that in
submitting an instruction that allowed the jury to assess a punishment greater than he received in
his first trial, the trial court ―denied [him] a fair trial under Article I, §§ 10, 13, 19 of the Texas
Constitution, Fifth and Sixth Amendments of the United States Constitution and Articles 1.04
and 1.05 of the Texas Code of Criminal Procedure.‖
       In North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969), the
Supreme Court placed limitations on the imposition of higher sentences by judges on retrials
following reversals of prior convictions. The court held due process requires that convicted
defendants be freed of the fear of a higher sentence on retrial as punishment for successfully
exercising their right to appeal. Id., 395 U.S. at 725, 89 S. Ct. at 2080. In order to guard against
vindictiveness in the resentencing process, the Court concluded that ―whenever a judge imposes
a more severe sentence upon a defendant after a new trial, the reasons for his doing so must
affirmatively appear.‖ Id., 395 U.S. at 726, 89 S. Ct. at 2081. The Court further concluded that
those reasons must be based upon ―objective information concerning identifiable conduct on the
part of the defendant occurring after the time of the original sentencing proceeding.‖ Id.
       However, in Chaffin v. Stynchcombe, 412 U.S. 17, 93 S. Ct. 1977, 36 L. Ed. 2d 714
(1973), the Supreme Court refused to extend the Pearce rationale to jury sentencing. It reasoned
that a jury would not know the prior sentence, ―the first prerequisite of a retaliatory penalty.‖
Id., 412 U.S. at 26, 93 S. Ct. at 1982. Further, in the second trial, the punishment is not assessed
by the same judicial authority whose handling of the first trial required reversal. Id., 412 U.S. at
27, 93 S. Ct. at 1983. The Court in Chaffin concluded that the rendition of a higher sentence by
a jury upon retrial does not ―offend the due process clause so long as the jury is not informed of
the prior sentence and the second sentence is not otherwise shown to be a product of
vindictiveness.‖ Id., 412 U.S. at 36, 93 S. Ct. at 1987; see also Fairris v. State, 515 S.W.2d 921,
923 (Tex. Crim. App. 1974).
       The record does not indicate that the jury was informed of Appellant’s sentence in his
first trial. Nor is there any showing of vindictiveness by judge or jury during the second trial on
                                                  7
punishment. The jury assessed a penalty of imprisonment for thirty-five years, significantly
lower than the sixty years assessed in his first trial. Appellant’s claims are groundless, and his
fourth issue is overruled.


                                                   DISPOSITION
         The judgment is affirmed.
                                                                         BILL BASS
                                                                            Justice




Opinion delivered September 1, 2010.
Panel consisted of Worthen, C. J., Hoyle, J., and Bass, Retired J., Twelfth Court of Appeals, sitting by assignment.




                                             (DO NOT PUBLISH)




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