                                                                     ACCEPTED
                                                                 12-14-00263-CR
                                                    TWELFTH COURT OF APPEALS
                                                                  TYLER, TEXAS
                                                             9/3/2015 9:24:31 AM
                                                                       Pam Estes
                                                                          CLERK


  No. 12-14-00263-CR 

   In the Court of Appeals 

                                                    9/3/2015
  Twelfth District of Texas 


          Tyler, Texas 



  JEFFREY ARLEN QUINN
        Appellant

                 v.
   THE STATE OF TEXAS
         Appellee


          No. C·20,818

 In the 3 rd Judicial District Court
   of Henderson County, Texas




STATE'S APPELLEE BRIEF
                      R. Scott McKee
                      District Attorney
                      Henderson County, Texas

                      Mark W. Hall
                      Assistant District Attorney
                      Henderson County, Texas
                      TBC No. 00789337

                      109 W. Corsicana, Ste. 103
                      Athens, Texas 75751
                      Tel: 903-675-6100
                      Fax: 903-675-6196


 ORAL ARGUMENT WAIVED
                               TABLE OF CONTENTS 


                                                     PAGE


Table of Contents                                     ii 


Statement Regarding Oral Argument                     iii 


Identification of Parties                             111 



Index of Authorities                                  IV 


Statement of the Case 


Issue Presented 


Statement of Facts                                    1


Summary of the Argument                               1


Argument                                              2


Prayer                                                9


Certificate of Service                                10 





                                       11
              STATEMENT REGARDING ORAL ARGUMENT 


       Pursuant to TEX. R. APP. P. 39, the State waives oral argument.



                      IDENTIFICATION OF THE PARTIES

       Pursuant to TEX. R. APP. P. 38.2 (a), a complete list of the names of all

interested parties is provided below so that the members of this Honorable Court may at

once determine whether they are qualified to serve or should recuse themselves from

participating in the decision of the case.

       Counsel for the State:

               R. Scott McKee - District Attorney of Henderson County

               Mark W. Hall- Assistant District Attorney on appeal

               Mark W. Hall       Assistant District Attorney at trial

               Nancy Rumar - Assistant District Attorney at trial

       Appellant or Criminal Defendant:

               Jeffrey Arlen Quinn

       Counsel for Appellant:

               John L. Youngblood - Counsel on Appeal

               Samuel Smith - Counsel at trial

       Trial Judge:

               Hon. Mark Calhoon




                                             iii
                                 INDEX OF AUTHORITIES 



CASES                                                                                                    PAGE

Abdnor v. State 871 S.W. 2d 726,731 (Tex.Crim.App. 1994) ..................................... .2,3 


Almanza v. State, 686 S.W. 2d 157, 174 (Tex.Crim.App. 1984) .................................... 3,4 


Blumenstetter v. State, 135 S.W. 3d 234,240 (Tex.App.-Texarkana 2004, no pet.) ...............3 


Gigsby v. State, 833 S.W.2d 573, 575 (Tex.App.              Dallas 1992) .................................... 2 


Hutch v. State, 922 S.W. 2d 166, 172 (Tex.Crim.App. 1996) ....................................... .3 


Jasso v. State, 2006QL 3361463 (Tex.App.           Texarkana 2006 pet.Refd) ........................ 8 


Olivas v. State, 202 S.W. 3d 137 (Tex.Crim.App. 2006) ............................................. 3 


Ruiz v. State, 753 S.W.2d 681 (Tex.Crim.App. 1988) ................................................ 8 


Solis v. State 792 S.W. 2d 95,98 (Tex.Crim.App. 1990) ............................................ .4 


Taylor v. State, 146 S.W.3d 801 (Tex.App.          Texarkana 2004, pet. Refd)...................... 3 


Williams v. State, 851 S.W. 2d 282, 287 (Tex.Crim.App. 1993) ................................... .4 





STATUTES AND RULES                                                                                       PAGE

Code Crim.Proc. Article 37.07(4)(a) ....................................................................2 





                                                     iv 

                     TO THE HONORABLE JUDGES OF SAID COURT 



                                   STATEMENT OF THE CASE 


       Appellee is satisfied with Appellant's statement of the case. 



                                       ISSUE PRESENTED

               The trial court committed reversible error when it submitted an
               incorrect charge on punishment to the jury in violation of Texas
               Code of Criminal Procedure, Article 37.07(4)(a) because the jury
               was not instructed that it could not accurately be predicted how
               the good conduct time and parole laws would be calculated and
               that they could not consider the effects of good conduct time and
               parole in Appellant'S case.


                                STATEMENT OF THE FACTS 


       Appellee is satisfied with Appellant's statement of the facts. 



                              SUMMARY OF THE ARGUMENT

       Appellant's sole point of error complains of the absence of a significant portion the jury

instructions relating to the issue of parole set forth in the Texas Code of Criminal Procedure

Article 37.07(4)(a). Although the failure to include the omitted language was error, the Court

must find that such error arose to the level of "egregious harm" (as opposed to some harm) due

to the Appellant's failure to object to the omission at trial, and that this harm was actual as

opposed to merely theoretical, in order to reverse the sentence of the jury and order a new trial

on punishment.

        The erroneous instruction did not deprive appellant of an essential right, vitally affect a

defensive theory, or make the case for punishment "clearly and significantly more persuasive"

which is required to establish egregious harm.
        The Appellant is unable to show actual harm, and instead is relying completely upon a

theoretical harm that he speculates he has suffered. He has shown no indication or evidence that

suggests he was sentenced more harshly than he would have been, had the jury received a proper

instruction.

       The increased burden on Appellant to show that he suffered egregious harm as a result of

the missing language in the charge, in light of the lack of actual harm shown, is fatal to his claim

and request for a new trial on punishment.

       Finally, this court does not have the benefit of the information that a motion and hearing

for a new trial could have provided since none was filed, which could have ferreted out any juror

misconduct regarding deliberations among the jury as to the effect of parole eligibility. Because

of this, the Appellant can only theorize as to the jury's motivation and reasons for assessing the

number of years to which they sentenced Appellant, which was below the maximum available.



                    STATE'S RESPONSE TO THE ISSUE PRESENTED

               The trial court did not commit reversible error when it submitted
               an incorrect charge on punishment regarding parole as set forth in
               CCP Art. 37.07(4)(a), as the appellant did not show that harm, if
               any, sustained by him was so egregious that he was denied a fair and
               impartial trial.

                                           ARGUMENT

        This appeal raises one issue which only deals with an error at the punishment stage of

trial, and does not implicate the gUilty verdict handed down by the jury.

        Appellant correctly points out that a significant portion of the parole instructions outlined

in Code Crim. Proc. Article 37.07(4)(a) were not set forth in the Charge of the Court.




                                                  2

Specifically, that the charge failed "to include language stating that the Defendant must serve a

minimum of two years if he is sentenced to a term of four years or less". Second, that the

instruction failed to instruct the jury that it "cannot accurately be predicted how the laws would

be applied in this case." Lastly, that it failed to instruct the jury that they were "not to consider

the manner in which the parole law may be applied to this particular defendant."

       The State agrees that the failure to include these statutory instructions as to parole

eligibility was error. Gigsby v. State, 833 S.W.2d 573,575 (Tex.App.        Dallas 1992). However,

that fact alone does not mandate a reversal of the punishment phase of trial. An erroneous or

incomplete jury charge does not result in automatic reversal of the conviction or punishment,

Abdnor v. State 871 S.W. 2d 726, 731 (Tex.Crim.App. 1994), and the level of scrutiny applied

by the reviewing court depends upon whether an objection to the charge was made at trial.

       Appellant admits that there was no objection made by Appellant's counsel at trial

regarding the missing language in the charge.


                                        STANDARD OF REVIEW

       When a jury charge error is not raised, objected to or preserved at trial, a much greater

degree of harm is required for reversaL Olivas v. State, 202 S.W. 3d 137 (Tex.Crim.App. 2006).

The burden on Appellant becomes one to show that he suffered "egregious harm" from the

incorrect jury charge as opposed to "some harm". Abdnor at 732.

       "Egregious harm consists of errors affecting 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." Blumenstetter v. State, 135 S.W. 3d 234,

240 (Tex.App.-Texarkana 2004, no pet.).




                                                   3

        Furthermore, the degree of harm shown by Appellant must be actual, not merely

theoretical. Almanza v. State, 686 S.W. 2d 157, 174 (Tex.Crim.App. 1984); Taylor v. State, 146

S.W.3d 801 (Tex.App.      Texarkana 2004, pet. Refd). The Court there stated, "We will

examine 'any ... part of the record as a whole which may illuminate the actual, not just

theoretical, harm to the accused." Almanza at 174.

       In effect, it is not enough to merely speculate what the jury was thinking in regard to

parole eligibility, if they considered it at all. But if they did, there must be some specific,

identifiable harm that Appellant can identify that was an actual result from improper

consideration of the parole laws by the jury.

       The court in Hutch v. State, 922 S.W. 2d 166, 172 (Tex.Crim.App. 1996), acknowledged

that "egregious harm is a difficult standard to prove and such a determination must be done on a

case-by case basis." Where the erroneous instruction relates only to some of the State's

evidence, the stronger the other evidence of guilt, (or in this case, the State would argue, the

stronger the punishment evidence), the less likely egregious harm is to have resulted. Solis v.

State 792 S.W. 2d 95,98 (Tex.Crim.App. 1990).


                         RELEVANCY OF THE PUNISHMENT ASSESSED

       If, as here, the error involved assessment of punishment, the question seems to be

whether the Appellant was wrongfully assessed a more severe penalty. See Williams v. State, 851

S.W. 2d 282, 287 (Tex.Crim.App. 1993). One of the factors that the courts have considered in

determining "egregious harm" in similar cases is when the jury imposes the maximum sentence,

which was not done here. The maximum available was 20 years, and they chose to impose a

seventeen year sentence instead. Given that, it is no more than unsupported speculation by the

Appellant to say that the reason the jury assessed a 17 year sentence was because they were



                                                   4

attempting to discern the effect of possible parole. Appellant does attempt to argue that a jury

note sent regarding a statement made by the prosecutor is indication of the jury improperly

considering parole, it is a tangential and speculative argument and best and not supported by any

actual evidence.

       In addition to considering the actual sentence imposed, the Court in Almanza made clear

that, "In determining whether Appellant was deprived of a fair and impartial trial, we review 'the

entire jury charge, the state of the evidence, including the contested issues and weight of

probative evidence, the argument of counsel and any other relevant information (emphasis mine)

revealed by the record of the trial as a whole." Almanza   @   171.


                               OTHER RELEVANT INFORMATION

       In this case, "other relevant information" and evidence presented during the punishment

phase of the trial included the unobjected-to introduction of certified copies of Appellant's prior

criminal convictions beginning as a juvenile and continuing into adulthood. Those convictions

were as follows:

       Cause No.              Date of Conviction      Offense convicted

       J-1004-D               10/10/97                Burglary of a Habitation
       02-0100CL              5/9/03                  Assault Family Violence
       03-1807CL              12129/03                Criminal Trespass
       B-12,217                                       Possession of a Controlled Substance
       C-16,452               7/16/08                 Assault Family Violence w/ prior
       2008-0464CL            7/16/08                 Evading Arrest or Detention
       2008-0463CL            7/16/08                 Deadly Conduct
       2008-0903CL            2/11/08                 Assault causing bodily injury
       C,16,959               9121/09                 ManufacturelDelivery of a Cont. Sub.
       C,19,939               3/18/13                 Tampering w/ Evidence

RR4 @ 39-40




                                                 5

       In addition to the knowledge of Appellant's extensive criminal history, the jury was also

able to rely upon the evidence introduced during the guilt-innocence stage of the trial to assess

the proper punishment. That evidence showed, by testimony and lengthy in-car videos recording

the chase and subsequent capture of the suspects, the harrowing and dangerous nature of the

actions taken by Appellant to elude capture. This included testimony and visual evidence of the

following:

       • 	 Appellant was travelling at speeds in excess of 100 mph. (RR 2        @   113)

       • 	 Appellant's route while evading passed community softball and soccer fields.

             (RR 2   @   112).

       • 	 Appellant's route while evading passed through residential neighborhoods.

             (RR 2   @   114)

       • 	 Because much of the route of evasion was unmarked two-lane county roads, other

             vehicles were forced off the road to avoid collision. (RR    @   172)

       • 	 Driving at an excessive speed toward a T-Intersection occupied by law enforcement

             on the ground directly in his path of travel. (RR 3   @   150)

       • 	 Putting Appellant and his female passenger in danger of being shot as they

             approached the intersection in which the officers had to scramble to get out of the

             way. (RR 3     @    150)

       • 	 Causing the female passenger to believe that they had run over a child during the

             evasion. (RR 4      @   10 referring)

       • 	 Running through stop signs intersecting a major highway without regard for crossing

             traffic. (RR   @ 120)




                                                     6

       •   Failing to negotiate a turn and crashing out in a residential neighborhood. (RR     @


            135)

       • 	 Having previously been convicted for evading and other assaultive behavior. (RR 4

            @   39-40)

       Appellant complains that the charge failed to inform the jury that "any sentence four

years or less would require serving at least two years". However, the jury was instructed in the

charge that the Appellant would not be eligible for parole until the actual time served equaled

one-half the sentence imposed, which makes the particular clause complained of, irrelevant in

light of the sentence assessed. It would also negate an argument that the jury believed appellant

would be free on parole in less than 8+ years. This fact benefits the defendant, in that they

would know that he would not be out in a few years if given a high end sentence.


                                ARGUMENT OF STATE'S COUNSEL

       Appellant argues that the state made specific references to parole in closing that resulted

in a jury note that said, "Please clarify Ms. Rumar's statement, 'Anything less than 10­

15 years is a freebie.'" This question is not clear on its face that the jury was attempting to

determine the application of the parole law in this case. The statement made by the prosecutor

says nothing about parole and it is pure conjecture on the part of the Appellant to assert that they

were attempting to gauge the application of parole to the sentence.

       The note did not reveal improper conduct by, or confusion among, the jurors regarding

the erroneous instruction on parole eligibility. It is just as plausible and perhaps more so, to

construe their note as an attempt to analyze whether a lesser sentence would run concurrently

with his prior, and therefore not add anything to his term of incarceration (since Rumar had

mentioned that he still had ten to do on the prior). It would also be reasonable to assume that the



                                                  7

prosecutor was simply saying something to the effect of, "He's already received a sentence of x

amount of years, why would you give him anything less than that this time?"

        Further, it is not an unreasonable deduction from the prosecutor's comments that she was

attempting to highlight the fact that, even while being on parole and facing an additional ten

years of imprisonment, the appellant was still willing to violate the law; that a potential parole

violation was not a deterrent. The fact is, we cannot determine what was in the jurors mind

based on the note received.

       None of the arguments of state prosecutors referred to by Appellant were arguably related

to what effect the parole laws would have in this case. It is clear that Prosecutors were

attempting to show that Appellant had been involved in criminal activity most of his life,

beginning as a juvenile, and throughout his adulthood.

       Jasso v. State, 2006QL 3361463 (Tex.App. - Texarkana 2006 pet. refd) Ref'd) was a

case where the jury were obviously trying to discern the effects of parole. But even there, the

Court did not find that "actual harm" had resulted. In that case, the appellant argued that he

suffered egregious harm in part because the jury sent out notes to the trial court asking whether

Jasso would become eligible for parole if given a life sentence. Id. at 2.

       The Court said that "at best Jasso's argument concerns theoretical harm but Almanza

clearly states the harm must be actual and must be evidenced in the record - a conjectural or

theoretical impact is insufficient." Id. at 2.

        None of the specific statements referred to by appellant in this case amount to a direct

comment on parole, as it applied to this case. Those statements were as follows:

          1. The defendant served "short three years and something later ... he was paroled"

          2. "You know, he had 15 years a few years ago, four years ago, that didn't stop him."




                                                  8
         3. Another thing is I want you to think about is, he's on a 15 years sentence out on

parole. Anything 15 years or less, on this offense, is a freebie."

       Consideration must be given to the degree to which the parties during trial stressed the

matter with regard to which the jury charge erred. Egregious harm is more likely to be found if

that matter was stressed and the evidence on it was conflicting and close. Ruiz v. State, 753

S.W.2d 681 (Tex.Crim.App. 1988)

       These comments made during closing argument by prosecutors, relied on by Appellant to

show harm, can only be remotely construed as urging the jury to consider the possibility of

parole, when viewed in context made.


                                          PRAYER

       Wherefore, premises considered, the State prays, for the reasons set forth in this brief,

that the judgment and sentence in this case be affirmed.




                                              Respectfully Submitted,


                                                ~AiJ-difJ
                                              Mark W. Hall
                                              Assistant District Attorney
                                              109 W. Corsicana, Ste. 103
                                              Athens, Texas 75751
                                              Telephone (903) 675-6100
                                              Facsimile: (903) 675-6196
                                              SBN 00789337




                                                  9
                               CERTIFICATE OF SERVICE

       This is to certify that a copy of the foregoing brief of the State has been emailed the

Appellant's attorney of record, John Youngblood, on the25       ~y of August, 2015.


                                             Mark W. Hall
                                             Assistant District Attorney




                             CERTIFICATE OF COMPLIANCE

       I, Mark W. Hall, attorney for Appellee, the State of Texas, hereby certify that pursuant to
Texas Rule of Appellate Procedure 9.4 (3), that Appellee's brief filed herein contains 2885
words.


                                                ~-d2
                                             Mark W. Hall
                                             Assistant District Attorney




                                                 10 

