                                      In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                             ___________________

                              NO. 09-12-00511-CR
                             ___________________

                       LARAY MALONE JR., Appellant

                                        V.

                  THE STATE OF TEXAS, Appellee
__________________________________________ ________________________

                On Appeal from the 435th District Court
                      Montgomery County, Texas
                    Trial Cause No. 12-08-08899 CR
__________________________________________ ________________________

                          MEMORANDUM TO CLERK

      You are directed to make the following corrections in the Opinion dated

June 26, 2013:

      On page 11, in the first line, change the phrase “Stoddard also testified that

she is a clinical psychologist, and she” to read “Clinical psychologist Paul

Hamilton testified that he”. On the same page, in the same paragraph, change the

two references of the name “Stoddard” to “Hamilton”.



                                         1
      On page 11, in the second line of the second paragraph, change “Stoddard’s”

to “Hamilton’s”.

      You will give notice of these corrections of the original opinion by sending a

copy of corrected page 11, accompanied by this memorandum, to all interested

parties who received a copy of the original opinion.

      Entered this the 1st day of July, 2013.

                                                   PER CURIAM




                                         2
                                       In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                              ___________________

                               NO. 09-12-00511-CR
                              ___________________

                       LARAY MALONE JR., Appellant

                                         V.

                  THE STATE OF TEXAS, Appellee
__________________________________________ ________________________

                On Appeal from the 435th District Court
                      Montgomery County, Texas
                    Trial Cause No. 12-08-08899 CR
__________________________________________ ________________________

                                     OPINION

      A jury convicted appellant Laray Malone Jr. as a habitual felony offender of

violating a civil commitment order and assessed punishment at confinement for

life. See Tex. Health & Safety Code Ann. § 841.085 (West 2010). In three issues,

Malone contends (1) the trial court admitted evidence in violation of the rule in

Old Chief, (2) his right to a fair trial was violated by language in the jury charge,

and (3) evidence admitted in violation of the Sixth Amendment requires reversal or

acquittal. We affirm the trial court’s judgment of conviction.

                                          1
                                 BACKGROUND

      Myra Stoddard, a former employee of the Office of Violent Sexual Offender

Management (“OVSOM”), testified that she served OVSOM as case manager for

the Travis County area, and one of her chief responsibilities was supervising

individuals who had been civilly committed as sexually violent predators. In 2010,

Stoddard was assigned to supervise Malone, and she met with Malone to review

the judgment, order of commitment, and all of the supervision rules and

agreements concerning his treatment activities. According to Stoddard, item

number four of the commitment order required Malone to “exactingly participate

in and comply with the specific course of treatment by the Council and [to] comply

with all written requirements of the Council and case manager.”

      Stoddard explained that Malone had also signed the supervision

requirements, indicating that he understood the requirements as they had been read

and explained to him. In addition, Stoddard explained that she read the Treatment

Behavior Contract Requirements to Malone on February 26, 2010, but he refused

to sign it. Stoddard testified that condition thirty-eight of the Treatment Behavior

Contract Requirements required Malone to cooperate with authority figures,

including the treatment provider and supervising officer. According to Stoddard,

she also reviewed the Agreement Regarding Therapeutic Activities with Malone

                                         2
and read the document to him, but Malone refused to sign the document. Stoddard

explained that the Agreement Regarding Therapeutic Activities required Malone to

follow the rules of his treatment provider, and stated that if Malone did not follow

the rules of civil commitment, including supervision and treatment, he might be

discharged from the treatment program. According to Stoddard, when Malone

refused to sign the documents, he told her he was not going to participate in the

civil commitment program. Malone was convicted of violating the order of civil

commitment in Travis County on February 26, 2010, and he received a sentence of

two years of confinement pursuant to the trial court’s judgment, which was signed

on August 23, 2010.

      When Stoddard received notice that Malone was to be discharged from

prison on March 1, 2012, she coordinated with the Texas Department of Criminal

Justice (“TDCJ”) to provide transportation for Malone upon his discharge.

According to Stoddard, the transport officer, Wesley Warner, was to contact TDCJ

to pick Malone up and transport Malone to the halfway house on March 1.

Stoddard explained that after she learned that the transportation she arranged for

Malone was unsuccessful, she notified the program specialist, and a warrant was

requested for Malone to be arrested for noncompliance.



                                         3
      Captain Kenneth Simmons of TDCJ testified that on March 1, 2012, he was

assigned to the Walls unit in Huntsville, and his responsibilities included

coordinating discharged or released inmates. Simmons explained that inmates who

are being released but have been civilly committed require special instructions and

dispositions upon their release, including transportation to a halfway house facility.

Simmons coordinated Malone’s release with Warner. Simmons testified that he

informed Malone that Warner was there to transport him, and that Malone

immediately said, “I’m not accepting any civil commitment. I’m not being

transported anywhere. I’m discharging.” According to Simmons, Malone said,

“I’m not going with anybody unless a uniformed deputy shows up.” Simmons

explained that when Warner told Malone that Warner was there to transport

Malone, Malone said “I’m not going.” Simmons testified that deputies from the

Montgomery County Sheriff’s Department arrived and took Malone into custody.

      Warner, a retired employee of TDCJ, testified that he contracted with

OVSOM to serve as a transport driver for the civil commitment program for

sexually violent predators and was under contract with OVSOM to transport civilly

committed individuals. Warner received notice that he was to transport Malone to a

halfway house in Travis County on March 1. Warner explained that when he

arrived at the Walls unit and asked Malone if he was ready to go, Malone calmly

                                          4
said, “I’m not going.” Warner testified that because he is not a commissioned

peace officer, he could not use restraints or force Malone to go, so Warner

departed from the Walls unit without Malone.

      Malone filed a pre-trial motion to suppress, in which he alleged that

OVSOM violated his rights under the Sixth Amendment by questioning him

without his attorney present and after he had invoked his right to counsel. After

conducting a hearing on Malone’s motion, the trial court overruled the motion and

allowed MacNair to testify at trial.

      Barbara MacNair of OVSOM testified that she was assigned to supervise

Malone while Malone was incarcerated. MacNair explained that because she was

required to give Malone reporting instructions in case he was released from jail so

that he would know to contact her or to go to his halfway house facility, she met

with Malone at the Montgomery County jail. Malone’s counsel objected to all

testimony from MacNair stemming from her interview of Malone at the jail on the

grounds that the interview violated Malone’s Sixth Amendment right to counsel,

and counsel obtained a running objection.

      MacNair explained that she uses a form to provide the required reporting

instructions. MacNair testified that she read the form to Malone verbatim and

signed it, but that Malone refused to sign the form. According to MacNair, she

                                        5
wrote “refused to sign” on the form and dated it. Counsel renewed his objection,

contending that the document was “taken in violation of [Malone’s] Sixth

Amendment right to counsel which he had invoked.” The trial court overruled the

objection and admitted the form into evidence.

      MacNair explained that after Malone refused to sign the form, she filed an

addendum to the warrant, in which she alleged that Malone’s failure to sign the

document violated the agreement regarding therapeutic activity. On cross-

examination, MacNair testified that she was aware when she visited Malone that a

violation of civil commitment order case was pending against him. MacNair

explained that she did not go to the jail to collect evidence against Malone; rather,

the purpose of her trip was to provide Malone with reporting instructions.

      After MacNair’s visit, Malone was re-indicted on August 21, 2012, and

paragraph three, which alleged that Malone “violated Requirement #4 of the

Agreement Regarding Therapeutic Activity, in that on or about July 18, 2012,

defendant refused to sign his reporting instructions[,]” was added to the indictment.

The first paragraph of the indictment alleged that Malone “violated Order #4 of the

Order of Civil Commitment in that on or about March 1, 2012, defendant refused

to be transported to his assigned halfway house for treatment[,]” and the second

paragraph alleged that Malone “violated Requirement #38 of the Treatment

                                         6
Behavior Contract in that on or about March 1, 2012, defendant refused to

cooperate with Wesley Warner, an authority figure contracted by the [OVSOM] to

transport defendant to his assigned halfway house for treatment[.]”

      During the State’s closing, the prosecutor began his argument by stating as

follows:

      We start with the Judgment and the Order of Commitment. And the
      reason we start there is very simple: [i]f we had come in here on
      Monday morning and told you that we were going to prosecute
      somebody for refusing to get in a car, for refusing to obey some
      person’s orders, or for refusing to sign a piece of paper, you would
      have looked at me like I was crazy.

The State made no other reference in its closing argument to Malone’s refusal to

sign the documents. The State focused the majority of its closing argument on

Malone’s refusal to cooperate with being transferred to the halfway house. During

closing argument, defense counsel extensively discussed the charge that stemmed

from Malone’s refusal to sign a document during MacNair’s visit and argued that

the jury should not consider the evidence from MacNair:

      The third allegation which was added, you’ll notice those allegations
      were for March 1st. I became counsel in March, represented Mr.
      Malone for that period. And in July Ms. MacNair went to the jail. And
      that’s the next allegation, that on July 18, 2012, the [d]efendant
      refused to sign his reporting instructions. And there’s a document
      admitted into evidence where she wrote on the bottom he refused to
      sign the instructions. And you’ll recall I objected at that point. I said
      that that’s a violation of the Sixth Amendment. When I represent
      somebody, [I] tell them not to speak to anybody about the case; I send
                                         7
letters to the Sheriff, to the jail, and to the District Attorney’s office
informing them of my representation and to not send anyone to speak
to them. If that’s not a violation of the Sixth Amendment, when you
get home today take out your Constitution, take your Sharpie and
mark out the Sixth Amendment because it means nothing. If that’s not
a violation one does not exist.

       And the Judge, in response to my objection, has given you an
instruction, and that’s Paragraph VI. And that’s an important
instruction. That instruction says: “You are instructed that no evidence
obtained by an officer or other person” – okay? They’re going to get
up here and say she was an investigator, she wasn’t a deputy, she
didn’t know, that wasn’t her intent, none of that matters. If somebody
goes in there and elicits incriminating evidence from somebody
represented by counsel it is definitionally . . . a violation of the Sixth
Amendment. Okay? And what the Judge instructs you is no evidence
obtained by any other person in violation of any provision of the
Constitution of Texas or the United states shall be admitted into
evidence against the accused on the trial of any criminal case.

      Then it follows: “If you believe or have a reasonable doubt
thereof that the evidence in question was obtained in violation of any
provision of the Constitution . . . then in such event you will wholly
disregard such evidence and not consider it as any evidence
whatsoever.” I think that you can reach no other conclusion tha[n] it
was taken in violation of the Sixth Amendment. That’s what you’re
sworn to uphold, and that’s what we’re asking you to do in this
instance. You may not like it. You may not want to. But . . . if the
Sixth Amendment doesn’t mean anything to Laray Malone, it means
nothing to you, your children, your grandchildren, or anybody else
from this day forward. It’s up to you to abide by it, and to do so you
do not consider any evidence that came from Barbara MacNair.
...

       The other allegation is the one that I think is the violation of the
Sixth Amendment, which I think that you should disregard all the
evidence that came from Ms. MacNair because I represented him,
instructed him not to talk to anybody about the case, and she visited
                                    8
      him in the jail and took information anyway. I don’t think any of that
      evidence is admissible. I think you should totally and wholly
      disregard it.

             But if you do . . . choose to listen to what she says, if you think
      that the Sixth Amendment doesn’t protect him in this instance, what
      … exactly happened that day? Mr. Malone hasn’t spoken to his case
      manager for two years. Somebody shows up, again, he doesn’t know.
      It’s not Myra Stoddard. She’s not from the Council. She says: “I’m
      from OVSOM” and basically says: “Sign this document.” Now, the
      exact thing that he’s accused of violating is Rule No. 4 on the Council
      of Sex Offender Treatment agreement regarding therapeutic activities
      which says: “I agree to follow the rules the treatment provider makes
      for me. I agree that if I do not follow the rules of civil commitment,
      including supervision and treatment, I may be discharged from that
      treatment program.” Again, the treatment provider that he has notice
      of that’s in his commitment order from the Court is the Council on
      Sex Offender Treatment. He’s never heard of OVSOM. It’s not his
      treatment provider that he knows. He’s not – there’s no way that he
      intentionally or knowingly refused to follow a written order of his
      provider.

      During its rebuttal, the State initially focused on Malone’s refusal to

participate in civil commitment in 2010 and Stoddard’s testimony. The State then

argued that MacNair’s testimony provided additional evidence of Malone’s intent

not to comply with the terms of his commitment, and emphasized that MacNair

visited Malone in her capacity as an employee of the agency that was required to

supervise Malone for the purpose of informing Malone of the reporting

instructions.



                                          9
      The jury charge included the following instruction:

             You are instructed that no evidence obtained by an officer or
      other person in violation of any provision of the Constitution or laws
      of the State of Texas, or of the Constitution or laws of the United
      States of America, shall be admitted in evidence against the accused
      on the trial of any criminal case.

            Therefore, as to the July 18, 2012 allegation only, if you believe
      or have a reasonable doubt thereof that the evidence in question was
      obtained in violation of any provision of the Constitution or laws of
      the State of Texas, or of the Constitution or laws of the United States
      of America, then in such event you will wholly disregard such
      evidence and not consider it as any evidence whatsoever.

See Tex. Code Crim. Proc. Ann. art. 38.23(a) (West 2005). The jury found Malone

guilty, and trial proceeded to the punishment phase.

      Because Malone was charged as a habitual felony offender, six enhancement

paragraphs from the indictment were read to the jury during the punishment phase.

The enhancement paragraphs alleged prior convictions for violation of a civil

commitment order, sexual assault, shooting with intent to kill, possession of a

firearm, possession of child pornography, and rape. Malone pleaded “true” to the

first paragraph and “not true” to the remaining paragraphs.

      A fingerprint comparison expert testified that he compared known prints of

Malone to documents contained in three pen packets and concluded that Malone

was the individual identified in the pen packets. Stoddard testified that Malone was

convicted in Travis County of failing to comply with the terms of his 2010 civil
                                        10
commitment order. Clinical psychologist Paul Hamilton testified that he had

evaluated Malone and scored actuarial instruments that indicate Malone has a

moderate or moderate-to-high risk for sexual recidivism. According to Hamilton,

Malone had antisocial personality disorder, so Malone suffered from impulsivity,

irritability, aggressiveness, reckless disregard for the safety of himself or others,

irresponsibility, and lack of remorse, and repeatedly performed illegal acts. In

addition, Hamilton testified that Malone had prior convictions for sexual assault,

rape in the second degree, possession of child pornography, possession of a

firearm, and shooting with intent to kill.

      During closing arguments in the punishment phase, the prosecutor

emphasized Malone’s six prior felony convictions and Hamilton’s testimony, and

the prosecutor asked the jury to sentence Malone to life in prison, “not because we

don’t care about him as an individual or human being, but because we care about

the safety and security of the human beings that live in our communities more.”

The jury assessed punishment at confinement for life.

                                        ISSUE ONE

      In his first issue, Malone argues the trial court admitted evidence in violation

of Old Chief, which he seems to view as synonymous with Rule 403 of the Texas

Rules of Evidence. See Tex. R. Evid. 403; Old Chief v. U. S., 519 U.S. 172, 192,

                                             11
117 S.Ct. 644, 136 L.Ed.2d 574 (1997). Specifically, Malone complains that the

trial court allowed the State to repeatedly use the phrase “sexually violent

predator” to inflame the jury and to appeal to the jurors’ emotions rather than the

facts of the case. Malone’s brief later appears to generally argue that accusations of

other criminal acts involving a sexual, violent or predatory offense were improper.

      In Tamez v. State, 11 S.W.3d 198 (Tex. Crim. App. 2000), the Court of

Criminal Appeals explained that in Old Chief, the defendant was prosecuted for

possession of a firearm by a felon, and “[b]ecause any type of felony conviction

was sufficient to prosecute the defendant for possession of a firearm, the

[Supreme] Court decided that allowing the Government to prove the particular

felony of which the defendant was previously convicted was of little probative

value; yet it could substantially prejudice the defendant by allowing the jury to

improperly focus on the previous crime rather than the instant offense.” Tamez, 11

S.W.3d at 200 (citing Old Chief, 519 U.S. at 192). The Court of Criminal Appeals

pointed out that Old Chief was not binding authority, but had “persuasive value[.]”

Id. at 201. The Court then stated that “a defendant’s stipulation to a previous

conviction should suffice when it carries the same evidentiary value as the

judgments of prior convictions, yet substantially lessens the likelihood that the jury

will improperly focus on the previous conviction or the defendant’s ‘bad

                                         12
character.’” Id. at 202. The Court explained that a balance must be struck between

the authorized reading of the full indictment and Rule 403, and held as follows:

“[i]n cases where the defendant agrees to stipulate to the . . . previous . . .

convictions, we find that the proper balance is struck when the State reads the

indictment at the beginning of trial, mentioning only the . . . prior convictions, but

is foreclosed from presenting evidence of the convictions during its case-in-chief.”

Id.

      In this case, Malone did not stipulate to his prior convictions, nor did he

stipulate that he was subject to an order of civil commitment as a sexually violent

predator. Therefore, Old Chief is inapposite. See id. Malone complains of thirty-

one instances when the State used the phrase “sexually violent predator” during

trial. At the beginning of the trial, Malone’s counsel re-urged his motion in limine,

in which he had sought to require the State to approach the bench prior to using the

phrase, and obtained a running objection to the State’s use of the term “sexually

violent predator.” However, Malone’s counsel did not specify the basis for his

objection, other than by reference to his motion in limine, which also did not set

forth the basis for objection, but simply sought to require the State to approach the

bench prior to using the phrase. During only one of the numerous instances

identified by Malone did counsel object that repeatedly calling Malone a sexually

                                         13
violent predator was “intended to inflame the jury.” The trial court overruled the

objection.

      Rule 403 of the Texas Rules of Evidence provides as follows: “Although

relevant, evidence may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of the issues, or

misleading the jury, or by considerations of undue delay, or needless presentation

of cumulative evidence.” Tex. R. Evid. 403. Generally, to preserve error for

appellate review, a party’s objection “must be specific enough so as to ‘let the trial

judge know what he wants, why he thinks himself entitled to it, and do so clearly

enough for the judge to understand him at a time when the trial court is in a proper

position to do something about it.’” Resendez v. State, 306 S.W.3d 308, 313 (Tex.

Crim. App. 2009) (quoting Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim.

App. 1992)). We conclude that Malone’s running objection based upon his motion

in limine, which did not explain the basis for the objection, was not sufficiently

specific to preserve error with respect to the Rule 403 complaint he asserts on

appeal. See id. However, we conclude that Malone’s objection that the phrase was

inflammatory was sufficient to preserve error as to his Rule 403 objection with

respect to that one occurrence of the phrase. See Tex. R. App. P. 33.1(a).



                                         14
      We now address Malone’s issue with respect to his sole properly preserved

Rule 403 objection. We review the trial court’s ruling on a Rule 403 objection for

abuse of discretion. State v. Mechler, 153 S.W.3d 435, 440 (Tex. Crim. App.

2005). The trial court abuses its discretion only when its decision lies outside the

zone of reasonable disagreement. Id. at 439-40. When a trial court balances the

probative value of the evidence against the danger of unfair prejudice, a

presumption exists that favors the evidence’s probative value. Feldman v. State, 71

S.W.3d 738, 754-55 (Tex. Crim. App. 2002).

      The term “sexually violent predator” appears in the charging statute, section

841.085 of the Health and Safety Code, which provides as follows, in pertinent

part: “A person commits an offense if, after having been adjudicated and civilly

committed as a sexually violent predator under this chapter, the person violates a

civil commitment requirement . . . .” Tex. Health & Safety Code Ann. § 841.085.

The term also appears in the final judgment, order of commitment, supervision,

and GPS tracking service requirements for the Council on Sex Offender Treatment,

Council on Sex Offender Treatment Behavior Contract Requirements, and the

Council on Sex Offender Treatment’s Agreement Regarding Therapeutic

Activities, which were admitted into the evidence as exhibits. We decline to find

that the use of the term “sexually violent predator” was intended to inflame the

                                        15
jury, or that its usage had such an effect. The trial court did not abuse its discretion

by overruling Malone’s objection. See Mechler, 153 S.W.3d at 439-40; see also

Tex. R. Evid. 403. Accordingly, we overrule issue one.

                                        ISSUE TWO

      In issue two, Malone contends his right to a fair trial was violated by

language in the jury charge. Specifically, Malone argues that the phrase “sexually

violent predator” was used ten times in the jury charge, and that the inflammatory

nature of the phrase violated his right to a fair trial. At the charge conference,

Malone’s counsel objected to the charge on the grounds that it repeatedly used the

phrase “as a sexually violent predator” and asserted that the term is prejudicial.

      When reviewing alleged charge error, we determine whether error existed in

the charge and, if so, whether sufficient harm resulted from the error to compel

reversal. Ngo v. State, 175 S.W.3d 738, 744 (Tex. Crim. App. 2005). When, as

here, the defendant preserved the complained-of alleged error, we will reverse if

we find “some harm” to the defendant’s rights. Almanza v. State, 686 S.W.2d 157,

171 (Tex. 1985) (op. on reh’g). The trial court’s charge must fully instruct the jury

on the law applicable to the case and apply that law to the facts adduced at trial.

Gray v. State, 152 S.W.3d 125, 127 (Tex. Crim. App. 2004); see Tex. Code Crim.

Proc. Ann. art. 36.14 (West 2007). As discussed above, the term “sexually violent

                                          16
predator” is used in the charging statute, which states that “[a] person commits an

offense if, after having been adjudicated and civilly committed as a sexually

violent predator under this chapter, the person violates a civil commitment

requirement . . . .” Tex. Health & Safety Code Ann. § 841.085 (emphasis added).

Pursuant to the charging statute, the State had the burden to show that (1) Malone

had been adjudicated and civilly committed as a sexually violent predator and (2)

that Malone violated a civil commitment requirement. See id. The phrase as used in

the jury charge accurately tracked the language used in the charging statute. In

addition, the term “sexually violent predator” is specifically defined in Chapter

841. See id. § 841.003(a) (West 2010).

      A jury charge that tracks the language of a particular statute is a proper

charge. Martinez v. State, 924 S.W.2d 693, 699 (Tex. Crim. App. 1996) (citing

Riddle v. State, 888 S.W.2d 1, 8 (Tex. Crim. App. 1994)) (“Following the law as it

is set out by the Texas Legislature will not be deemed error on the part of a trial

judge.”); Duffy v. State, 567 S.W.2d 197, 204 (Tex. Crim. App. 1978); Benn v.

State, 110 S.W.3d 645, 648 (Tex. App.—Corpus Christi 2003, no pet.). Because

the jury charge tracked the applicable statutory language, we conclude that the

charge was not erroneous. See Martinez, 924 S.W.2d at 699; Riddle, 888 S.W.2d at

8; Duffy, 567 S.W.2d at 204; see also Tex. Code Crim. Proc. Ann. art. 36.14; Gray,

                                         17
152 S.W.3d at 127. Having found that no charge error occurred, we need not

perform a harm analysis. See Ngo, 175 S.W.3d at 744. We overrule issue two.

                                       ISSUE THREE

      In issue three, Malone argues that evidence admitted in violation of the Sixth

Amendment requires reversal or acquittal. Specifically, Malone challenges the

testimony by MacNair concerning “a solicited statement, made by [Malone] while

in custody awaiting trial,” when MacNair knew Malone was represented by

counsel and awaiting trial for violation of the civil commitment order.

      We review the trial court’s ruling admitting MacNair’s testimony for abuse

of discretion. See Ramos v. State, 245 S.W.3d 410, 417-18 (Tex. Crim. App. 2008).

We will uphold the trial court’s ruling if it is reasonably supported by the record

and is correct under any applicable legal theory. Id. at 418. The Sixth Amendment

provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to

have the assistance of counsel for his defense.” U.S. Const., amend. VI. “[T]he

right to counsel granted by the Sixth Amendment means that a person is entitled to

the help of a lawyer ‘at or after the time that adversary judicial proceedings have

been initiated against him . . . whether by way of formal charge, preliminary

hearing, indictment, information, or arraignment.’” Estelle v. Smith, 451 U.S. 454,

469-70, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981) (quoting Kirby v. Illinois, 406 U.S.

                                           18
682, 688-89, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972)). In Estelle, defense counsel

was not notified in advance that a psychiatric examination of defendant to

determine competency to stand trial would encompass the issue of defendant’s

future dangerousness, and the psychiatrist utilized information obtained from the

examination in his testimony about future dangerousness during the penalty phase.

Id. at 456-57, 459-60. The United States Supreme Court held that depriving the

defendant of the assistance of counsel during the psychiatric evaluation violated

the defendant’s Sixth Amendment right to counsel. Id. at 471.

      The record demonstrates that Malone’s counsel was not informed of

MacNair’s visit, that counsel was not present during MacNair’s visit, and that

MacNair attempted to obtain Malone’s signature on the document after reading the

document to him, but did not interview or evaluate Malone. Malone argues that

MacNair’s visit was the functional equivalent of interrogation.

      Denial of the right to counsel is an error of constitutional magnitude. See

U.S. Const. amend. VI; Tex. Const. art. I, § 10. Assuming without deciding that

MacNair’s visit to Malone without his counsel present violated Malone’s Sixth

Amendment right to counsel, we must perform a harm analysis concerning the

admission of evidence. See Tex. R. App. P. 44.2(a) (“If the appellate record in a

criminal case reveals constitutional error that is subject to harmless error review,

                                        19
the court of appeals must reverse a judgment of conviction or punishment unless

the court determines beyond a reasonable doubt that the error did not contribute to

the conviction or punishment.”). If there is a reasonable likelihood that the error

materially affected the jury’s deliberation, then the error was not harmless beyond

a reasonable doubt. Wesbrook v. State, 29 S.W.3d 103, 119 (Tex. Crim. App.

2000). A reviewing court should calculate as much as possible the probable impact

of the error on the jury in light of the existence of other evidence. Id.; Miles v.

State, 918 S.W.2d 511, 517 (Tex. Crim. App. 1996). In conducting our review, we

must consider the totality of the circumstances by examining the record as a whole.

See Miles, 918 S.W.2d at 517. Our primary concern is the effect the error had, or

reasonably may have had, on the jury’s decision. Wimbrey v. State, 106 S.W.3d

190, 192 (Tex. App.—Fort Worth 2003, pet. ref’d). In determining whether the

error contributed to a defendant’s conviction or punishment, we consider the nature

of the error, the State’s emphasis on the error, the error’s probable collateral

implications, and the weight a juror would probably place on the alleged error.

Snowden v. State, 353 S.W.3d 815, 822 (Tex. Crim. App. 2011).

      In addition to MacNair’s testimony regarding Malone’s refusal to sign the

document MacNair presented during her visit to the jail, the jury heard evidence

that Malone had previously refused to sign documents pertaining to his

                                        20
commitment, had indicated he did not intend to comply with civil commitment

requirements, and had refused to allow Warner to transport him to the halfway

house upon his release from TDCJ. The State did not emphasize MacNair’s

testimony during closing arguments, and the trial court instructed the jury not to

consider any evidence obtained in violation of Malone’s state or federal

constitutional rights and included an explicit instruction not to consider the

evidence concerning the violation arising from Malone’s refusal to sign the

document from MacNair if the jury found that said evidence was obtained in

violation of Malone’s rights. The evidence provided by MacNair was a relatively

small part of the State’s evidence and argument, and the jury was unlikely to place

undue weight on MacNair’s testimony, particularly in light of the trial court’s

instruction to the jury in the charge and defense counsel’s lengthy argument that

the jury should not consider that evidence. See Colburn v. State, 966 S.W.2d 511,

520 (Tex. Crim. App. 1998) (We presume the jury followed the trial court’s

instructions.). After reviewing the entire record to determine whether Malone was

harmed by the admission of MacNair’s testimony, we conclude that any error in

the admission of MacNair’s testimony did not contribute to Malone’s conviction or

punishment, and was therefore harmless beyond a reasonable doubt. See Tex. R.



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App. P. 44.2(a). Accordingly, we overrule issue three and affirm the trial court’s

judgment.

      AFFIRMED.




                                            ______________________________
                                                   STEVE McKEITHEN
                                                      Chief Justice


Submitted on June 10, 2013
Opinion Delivered June 26, 2013
Publish

Before McKeithen, C.J., Gaultney and Kreger, JJ.




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