                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana
        ______________________________

              No. 06-10-00034-CR
        ______________________________


             ISAIAH LUERA, Appellant

                          V.

         THE STATE OF TEXAS, Appellee




   On Appeal from the 276th Judicial District Court
               Marion County, Texas
              Trial Court No. F13868




     Before Morriss, C.J., Carter and Moseley, JJ.
      Memorandum Opinion by Justice Moseley
                                   MEMORANDUM OPINION

       Isaiah Luera appeals his conviction by a jury for two counts of aggravated sexual assault of

a child. The State alleged, on or about November 22, 2007, Luera penetrated both the sexual

organ and anus of R.C., a five-year-old girl, with his sexual organ. The jury found Luera guilty.

During deliberations on punishment, the jury sent the trial court a note which asked, “Will

sentences be served consecutively?” The trial court in the presence of the defendant, the defense

counsel, and the prosecutor stated, “I‟ve answered simply, „No.‟ Signed William R. Porter, Judge

Presiding. Any objection?” Defense counsel stated, “None from the Defense.” The jury

assessed a sentence of sixty years‟ imprisonment for each count and the trial court sentenced Luera

consistent with the jury‟s assessment.

       Luera‟s sole issue on appeal is that the trial court‟s response to the jury note “constituted an

improper supplemental jury charge that re-emphasized the impact of parole law on any sentence

assessed by the jury.” In analyzing a jury charge complaint, our review of the charge is under the

Almanza standard. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh‟g).

We first determine whether error exists in the charge and, then, if there was error, whether

sufficient harm resulted from the error to compel reversal. Ngo v. State, 175 S.W.3d 738, 743–44

(Tex. Crim. App. 2005). The standard of review for errors in the jury charge depends on whether

the defendant properly objected. Almanza, 686 S.W.2d at 171. If a defendant does not object to

the charge, reversal is required only if the harm is so egregious that the defendant has not had a fair



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and impartial trial. Id. An affirmative denial of objection, as in this case, “shall be deemed

equivalent to a failure to object” for the purposes of an Almanza review and, if there was error in

the jury charge, the error should be reviewed for egregious harm. See Bluitt v. State, 137 S.W.3d

51, 53 (Tex. Crim. App. 2004); Hines v. State, 269 S.W.3d 209, 220 (Tex. App.––Texarkana 2008,

pet. dism‟d, untimely filed, pet. ref‟d [2 pets.]).

        The Texas Court of Criminal Appeals has held that a trial court does not err in giving an

additional instruction concerning whether sentences will run concurrently. Haliburton v. State,

578 S.W.2d 726, 729 (Tex. Crim. App. [Panel Op.] 1979); Dickson v. State, 986 S.W.2d 799, 804

(Tex. App.––Waco 1999, pet. ref‟d); see Gordon v. State, 633 S.W.2d 872, 879 (Tex. Crim. App.

[Panel Op.] 1982). We note that unlike Haliburton, the sentences in this case could have been

consecutive. The sentences, though, were ultimately concurrent and there is no suggestion in the

record that anyone anticipated the sentences would be consecutive.

        The Texas Penal Code provides that sentences for aggravated sexual assault of a child less

than seventeen years of age may run concurrently or consecutively. Act of May 27, 2007, 80th

Leg., R.S., ch. 1291, § 6, 2007 Tex. Gen. Laws 4349, 4350 (amended 2009) (current version at

TEX. PENAL CODE ANN. § 3.03 (Vernon Supp. 2009)).1 We note the judgment does not specify

whether the sentences will run concurrently or consecutively. The record does not contain any

cumulation order. If a trial court does not specifically order the sentences to run consecutively

1
 This statute was amended by the 81st Texas Legislature effective September 1, 2009. Because the offenses were
committed prior to September 1, 2009, the version of Section 3.03 in effect at the time of the offenses governs this
case.

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when sentence is pronounced, the sentences automatically run concurrently. Ex parte Iglehart,

535 S.W.2d 185, 187 (Tex. Crim. App. 1976). Therefore, the sentences will run concurrently.

        In a memorandum opinion, the Austin Court of Appeals held there was no error in

instructing the jury the sentences would run concurrently.                       Kincheon v. State,

No. 03-07-00180-CR, 2008 Tex. App. LEXIS 1130 (Tex. App.––Austin Feb. 13, 2008, no pet.)

(mem. op., not designated for publication) (three counts aggravated sexual assault of a child and

three counts of indecency with a child).2 In Kincheon, similar to this case, the sentences could

have run consecutively or concurrently. Id. The trial court “advised the parties and instructed

the jury that the sentences would run concurrently and, indeed, that is how appellant was

sentenced.” Id. at *4. In this case, the trial court instructed the jury without objection that the

sentences would run concurrently and the defendant was sentenced consistent with that

instruction.

        Luera argues the trial court‟s response “highlighted” the effect of “the parole law charge to

the detriment of the defendant.” Luera claims the response decreased the possibility of a lesser

sentence. This is precisely the argument rejected by the Texas Court of Criminal Appeals in

Haliburton. The court stated, “The effect of appellant‟s argument would exclude information

from the jury hoping that in their ignorance the jury would return a less severe punishment.”

Haliburton, 578 S.W.2d at 729. Based on a policy that “the law should require juries to make


2
 While unpublished, or memorandum, opinions are not binding precedent, such opinions may be considered as
persuasive authority.

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informed and intelligent decisions based on every piece of information available,” a trial court

does not abuse its discretion in giving an additional instruction on whether the sentences should

run concurrently. Id. at 729; see Dickson, 986 S.W.2d at 804. We find the reasoning of

Kincheon persuasive. The trial court did not err in giving the additional instruction to the jury

under the circumstances of this case.

       Further, even if the trial court erred, the record does not indicate there was egregious harm.

If the jury charge error was not preserved, reversal is not required unless “the error is so egregious

and created such harm that he „has not had a fair and impartial trial‟--in short „egregious harm.‟”

Almanza, 686 S.W.2d at 171; see Rudd v. State, 921 S.W.2d 370, 373 (Tex. App.––Texarkana

1996, pet. ref‟d). “Egregious harm” consists of errors that affect the very basis of the case or that

deprive the defendant of a valuable right, vitally affect a defensive theory, or make the case for

conviction or punishment clearly and significantly more persuasive. Saunders v. State, 817

S.W.2d 688, 692 (Tex. Crim. App. 1991). The degree of harm demonstrated by an appellant must

be actual, not merely theoretical. Almanza, 686 S.W.2d at 174. In Haliburton, the Texas Court

of Criminal Appeals reasoned:

       Knowledge that the sentences would run concurrently is a two-edged sword. The
       information could have been used to increase the punishment or, just as easily, used
       to reduce the number of years to avoid excessive punishment. We cannot
       determine from the record which path the jury took and, with these alternatives,
       harm will not be presumed.




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578 S.W.2d at 728; see McGowan v. State, 664 S.W.2d 355, 358 (Tex. Crim. App. 1984) (no

harm). Although egregious harm is theoretically possible, the harm must be actual. Similar to

Haliburton and McGowan, we will not presume Luera suffered egregious harm. We overrule

Luera‟s sole point of error.

       For the reasons stated, we affirm.




                                            Bailey C. Moseley
                                            Justice

Date Submitted:        July 15, 2010
Date Decided:          July 21, 2010

Do Not Publish




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