      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-08-00722-CR



                                      Ralph Langley, Appellant

                                                    v.

                                    The State of Texas, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 390TH JUDICIAL DISTRICT
      NO. D-1-DC-08-200637, HONORABLE JULIE H. KOCUREK, JUDGE PRESIDING



                              MEMORANDUM OPINION


                A jury convicted appellant Ralph Langley of murder, see Tex. Penal Code Ann.

§ 19.02 (West 2003), and sentenced him to forty-three years in prison. Langley argues that the

trial court erred in admitting certain evidence, in deviating from statutorily mandated language in

submitting the parole law instruction to the jury, in failing to comply with the code of criminal

procedure, and in failing to clarify the parole law instruction in response to the jury’s written request.

We affirm the judgment of the district court.

                Since the spring of 2007, Ralph Langley and his wife, Lori, had been living

in separate residences and were in the process of getting a divorce. Langley remained in the

family home with his nineteen-year-old son, Joshua, and Lori moved into a residence a short distance

away. The couple had another adult daughter, Sarah, who resided elsewhere.

                In September 2007, Langley bought a handgun. At some point after this purchase,

Langley showed the gun to his daughter, Sarah, and told her that he wanted to kill both her mom
and himself. Upon hearing this, Sarah asked Langley to sign a pact. Accordingly, he and his

daughter signed the following note, written by Langley: “I will kill neither Lori nor myself—(she

frankly is not worth it . . . ).”

                 On February 1, 2008, Langley walked out of his residence, where he lived with his

son Joshua. Joshua heard the door open and close and saw Langley getting into his pickup truck.

Joshua approached Langley and asked where he was going. Langley replied that he was “going to

go kill [Joshua’s] mother.” Joshua attempted to calm Langley and prevent him from leaving, but was

unsuccessful. A few minutes later, Langley returned home, gun in hand, and “said that he shot her”

and that “he was going to kill himself.”

                 Langley went inside the home, put the gun on the dining room table, and called 911.

Langley told the dispatcher that he had just shot and killed his estranged wife. He explained that

they were going through a divorce and that “it all went downhill when [Lori] decided to find

somebody else.”

                 When police arrived at Lori’s residence, they found her body. She had sustained

multiple gunshot wounds and was pronounced dead at the scene. Police officers also arrived at

Langley’s residence. They detained both Langley and Joshua. When a search warrant was obtained,

police also conducted a search of Langley’s house, from which they recovered the gun, Langley’s

wallet, an ammunition magazine, and the written pact signed by Langley and his daughter. A

DPS firearm and tool mark examiner later determined that the bullet recovered from Lori’s body,

as well as a second bullet and the cartridge case found at the crime scene, had all been fired from the

gun that had been recovered from Langley’s home.



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               On February 26, 2008, Langley was charged by indictment for the offense of murder.

See id. On October 30, 2008, a jury found Langley guilty as charged and, on October 31, 2008,

assessed a sentence of forty-three years in prison. Langley appeals, challenging the admission of the

pact with this daughter, the trial court’s parole law submission to the jury, and the procedure used

and response given following a question from the jury during jury deliberations.

               In his first and second issues, Langley argues that the trial court erred in admitting

the pact between him and his daughter because it was seized in violation of articles 1.06

and 18.02(10) of the code of criminal procedure. Langley argues that the pact is a “personal note”

or “personal writing” and, as such, cannot be recovered pursuant to a search warrant. Further,

according to Langley, because the search warrant expressly authorized police to search for

personal notes, which is expressly prohibited by the code of criminal procedure, the warrant

amounted to “an abuse of the warrant procedure,” making the entire warrant invalid, and making any

evidence seized pursuant to that warrant inadmissible.

               Article 18.02(10) provides:


       A search warrant may be issued to search for and seize:

       ...

       (10)    property or items, except the personal writings by the accused, constituting
               evidence of an offense or constituting evidence tending to show that a
               particular person committed an offense . . . .


Tex. Code Crim. Proc. Ann. art. 18.02(10) (West 2005). Courts have construed the term

“personal writings” to mean those writings such as diaries, memos, and journals that were

not intended by the writer to be published to third parties. Mullican v. State, 157 S.W.3d 870,

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873 (Tex. App.—Fort Worth 2005, pet. ref’d); Porath v. State, 148 S.W.3d 402, 409

(Tex. App.—Houston [14th Dist.] 2004, no pet.); Reeves v. State, 969 S.W.2d 471, 486

(Tex. App.—Waco 1998, pet. ref’d), cert. denied, 526 U.S. 1068 (1999). The purpose of the

exception, courts have concluded, is to provide protection from searches designed to find written

evidence by which a person might incriminate himself. Porath, 148 S.W.3d at 409 (citing Reeves,

969 S.W.2d at 483). Citing these principles, the Dallas Court of Appeals held that letters, written

by the defendant, that had been stamped, sealed, addressed, and were ready to mail did not qualify

as personal writings, explaining that the determining factor is the writer’s intent, not whether the

writings were actually read. Cavazos v. State, No. 05-05-01352-CR, 2006 Tex. App. LEXIS 9332,

at *29 (Tex. App.—Dallas Oct. 27, 2006, pet. ref’d) (mem. op., not designated for publication).

               Here, applying the same principle that a writing does not qualify as a “personal

writing” within the meaning of article 18.02(10) if its author intends that it be read by others, we

hold that the pact, written by Langley—but signed by both Langley and his daughter—does not

qualify as a personal writing. The pact, an agreement between Langley and Sarah, was written at

Sarah’s request. The pact was not only intended to be read by a third party, but was actually both

read and signed by a third party. In addition, police recovered the note in the kitchen area of the

family home among other papers. The record shows that the note was easily accessible to Langley’s

son, Joshua, and indeed, Joshua testified that he thought he had seen the note before. In these

circumstances, the pact does not qualify as a “personal writing” within the meaning of

article 18.02(10). Accordingly, we overrule Langley’s first and second issues.




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               In his third issue, Langley argues that the district court erred in rearranging statutorily

mandated language in the parole law instruction.1 The specific paragraph at issue is the following:


       Under the law applicable in this case, if the defendant is sentenced to a term of
       imprisonment, he will not become eligible for parole until the actual time served
       equals one half of the sentence imposed or 30 years, whichever is less, without
       consideration of any good conduct time he may earn. If the defendant is sentenced
       to a term of less than four years, he must serve at least two years before he is eligible
       for parole.


Langley complains that the entire paragraph set out above was moved to the end of the instruction

in what he contends was an attempt to “highlight the informational paragraph while diminishing

the impact of the admonishment paragraph, leading the jury to wonder whether it could discuss

during its deliberations the minimum time that the defendant would be required to serve before he

would become eligible for parole.” Langley concludes: “Ultimately, this error led the jury to wonder

whether it could arrive at a sentencing recommendation by deciding how much time Appellant

should serve and then doubling that number.”

               Even accepting Langley’s argument that the district court erred by not submitting

the parole instruction exactly as set out in article 37.07(4)(a) of the code of criminal procedure,

reversal is not warranted. Where, as here, no objection is made to the charge at trial, we reverse for

charge error only if the record shows that the error caused egregious harm. See Almanza v. State,


       1
         In the heading to this section, Langley also complains about the omission of statutorily
mandated language from the instruction, but his briefing only addresses the rearrangement of the
paragraphs, not any omission from the charge. To the extent that Langley also argues that he was
harmed by the omission of the phrases “or 30 years, whichever is less” and “if he is sentenced to a
term of imprisonment,” this argument has been inadequately briefed and is waived. See Tex. R.
App. P. 38.1(i).

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686 S.W.2d 157, 171 (Tex. Crim. App. 1985). Harm must be actual harm and must be evidenced

in the record. Id.

               Here, there is no indication that relocating the paragraph would have adversely

affected the jury’s sentencing decision. The portion of the instruction at issue simply explains when

the defendant would become eligible for parole. It neither suggests that the jury should arrive at a

sentencing recommendation by deciding how much time Langley should serve and then doubling

that number nor negates the admonishment set out in the previous paragraph, which prohibits

the jury from considering how the parole law would be applied to Langley. Because the jury is

presumed to follow a trial court’s instructions as given, see Colburn v. State, 966 S.W.2d 511, 520

(Tex. Crim. App. 1998), here we presume that the jury followed the trial court’s instructions not

to consider how the parole law would have specifically applied to Langley. More importantly,

however, Langley cites to nothing in the record—and our review has revealed nothing in the

record—that shows actual harm suffered as a result of the paragraph rearrangement, as required by

Almanza. See 686 S.W.2d at 171. Accordingly, we overrule Langley’s third issue.

               Langley’s fourth and fifth issues concern a note sent by the jury to the trial court in

which the jury requested clarification of the parole law instruction. Langley argues that the

trial court failed to follow section 36.27 of the code of criminal procedure in determining how to

respond and that the court erred in the substance of its response, refusing to provide clarification to

the jury. See Tex. Code Crim. Proc. Ann. art. 36.27 (West 2006).

               The jury’s note read as follows:


       Paragraph 5 says


                                                  6
                “You may consider the existence of the parole law and good conduct time.”
       It also says
                “You are not to consider the manner in which parole law may be applied to
       this particular defendant.”
                Please clarify. For example, can we say, “If the defendant was sentenced X,
       he may only serve ½X” as part of our deliberation.


The trial court responded with the following written instruction:


       In regard to your jury questions 2 and 3, the Court instructs you that all the law that
       is applicable to this case is contained in the Court’s Charge on Punishment.


               Section 36.27 of the code of criminal procedure provides, in relevant part:


       The court shall answer any such communication in writing, and before giving such
       answer to the jury shall use reasonable diligence to secure the presence of the
       defendant and his counsel, and shall first submit the question and also submit his
       answer to the same to the defendant or his counsel or objections and exceptions, in
       the same manner as any other written instructions are submitted to such counsel,
       before the court gives such answer to the jury, but if he is unable to secure the
       presence of the defendant and his counsel, then he shall proceed to answer the same
       as he deems proper. The written instruction or answer to the communication shall
       be read in open court unless expressly waived by the defendant.

       All such proceedings in felony cases shall be a part of the record and recorded by the
       court reporter.


Id. According to Langley, with the exception of the “in writing” requirement, the trial court failed

to follow any of these procedures.

               Although Langley is correct that “the record fails to reflect that the trial court

complied with any of the remaining requirements of the statute,” it is also true that the record fails

to reflect that the trial court did not comply with the requirements. The record is simply silent.

Nothing in the record shows whether or when Langley was notified about the jury’s question,

                                                  7
and there is no indication that Langley objected to the trial court’s answer. When, as here, we are

presented with a silent record, we presume not that the court failed to comply with article 36.27, as

Langley suggests, but that the court did, indeed, comply with article 36.27’s requirements. See Word

v. State, 206 S.W.3d 646, 652 (Tex. Crim. App. 2006). In addition, there is no indication that

Langley objected to the trial court’s failure to make all article 36.27 proceedings “a part of the record

and recorded by the court reporter,” and he has, therefore, failed to preserve this issue for review.

See id.

                As to the substance of the court’s answer, which declined to further clarify the

statutory language of article 36.27, we also find no error. The trial court refused to elaborate on—or

add to—the statutorily mandated language in article 36.27. Rather, the court referred the jury back

to the language as set out in article 36.27. Langley points to nothing in the record to show that he

suffered actual harm by the trial court’s refusal to deviate from the statutorily mandated language.

See Almanza, 686 S.W.2d at 171. Accordingly, we overrule Langley’s fourth and fifth issues.

                Having overruled each of Langley’s issues, we affirm the judgment of conviction.




                                                __________________________________________

                                                G. Alan Waldrop, Justice

Before Chief Justice Jones, Justices Waldrop and Henson

Affirmed

Filed: April 23, 2010

Do Not Publish

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