Description: At trial, the evidence showed that Robinson and another man committed an
armed robbery at a Whataburger. Surveillance video showed Robinson holding a
backpack while the other man pointed a shotgun at the cashier’s head. Robinson and
the other man fled when an alarm sounded, and Robinson was apprehended shortly
thereafter. The jury found Robinson guilty of aggravated robbery.
Robinson and two of his friends testified during the punishment phase.
Robinson told the jury that he was a drug addict and was high when he committed
the robbery. He acknowledged that he had previously violated the terms of probation
for misdemeanor possession of marijuana and that he had relapsed in his drug use
while out on bond for the present offense. He also acknowledged that, while on bond,
he was arrested for three new offenses, including possession of marijuana and theft.
Robinson asked the jury to give him probation instead of prison time.
The jury sentenced Robinson to 15 years’ imprisonment. Robinson appealed.
In his first issue, Robinson argues that the trial court’s requirement, over his
objection, that he wear jail clothes during the punishment phase of his case (1) was
an unconstitutional infringement on the presumption of innocence with regard to the
extraneous offenses that were introduced at the punishment stage, and (2) was a
judicial comment on his suitability for probation. We find no basis for reversal.
A. Presumption of Innocence
Robinson argues that the requirement that he wear jail clothes during the
punishment phase of his case violated his right to a presumption of innocence.
During the guilt-innocence phase of a case, Texas law forbids compelling a
prisoner, over his objection, to stand trial while dressed in jail clothes. “Such a
compulsion would violate the defendant’s right to a fair trial and his right to be
presumed innocent.” Randle v. State, 826 S.W.2d 943, 945 (Tex. Crim. App. 1992).
Conversely, during the punishment phase, the defendant is no longer
presumed innocent for the crime at issue because he has been convicted. “Hence
shackles do not undermine the jury’s effort to apply that presumption.” Deck v.
Missouri, 544 U.S. 622, 632, 125 S. Ct. 2007, 2014 (2005); see Marquez v. State,
725 S.W.2d 217, 227 (Tex. Crim. App. 1987), abrogated on other grounds by Moody
v. State, 827 S.W.2d 875 (Tex. Crim. App. 1992).
Robinson argues that the requirement that he wear jail clothes in the
punishment phase could nonetheless violate his presumption of innocence to the
extent the jury assessed extraneous offenses, and not just the underlying offense,
during the punishment phase. In support of his argument, Robinson cites an
unpublished case, Glasscock v. State, No. 06-11-00239-CR, 2012 WL 2127514
(Tex. App.—Texarkana June 13, 2012, pet. ref’d) (mem. op.; not designated for
publication), in which the Texarkana Court of Appeals held that handcuffs in
addition to jail clothes could infringe on the defendant’s presumption of innocence
regarding extraneous offenses introduced during the punishment phase. Id. at *3.
We need not reach this issue. Even if we were to assume error here, we
nonetheless would not reverse. Error depriving a defendant of the presumption of
innocence does not require reversal where the court determines beyond a reasonable
doubt that the error did not contribute to the conviction or punishment. See TEX. R.
APP. P. 44.2(a); Bell v. State, 415 S.W.3d 278, 283 (Tex. Crim. App. 2013); see also
Satterwhite v. Texas, 486 U.S. 249, 256, 108 S. Ct. 1792, 1797 (1988) (“[I]f the
prosecution can prove beyond a reasonable doubt that a constitutional error did not
contribute to the verdict, the error is harmless and the verdict may stand.”). The
presence of overwhelming evidence supporting the finding in question can be a
factor in the evaluation of harmless error. Wesbrook v. State, 29 S.W.3d 103, 119
(Tex. Crim. App. 2000). And we must consider the “totality of the circumstances”
by examining the record as a whole. See Miles v. State, 204 S.W.3d 822, 828 (Tex.
Crim. App. 2006).
Here, any alleged error was harmless beyond a reasonable doubt. Robinson
contends that wearing jail clothes infringed his presumption of innocence with
regard to particular extraneous offenses. But during the punishment phase, Robinson
admitted that he was arrested for each of these offenses. He made no assertion, on
direct or cross-examination, that he did not commit the offenses for which he was
arrested. He instead stated: “I know I messed up.” He also did not object to the
State’s argument in closing that he committed these offenses. Furthermore, the jury
was well aware that Robinson had just been on trial for and convicted of the crime
charged in this case, aggravated robbery. In light of all of this, it is exceptionally
unlikely that Robinson’s jail clothes affected the jury’s deliberations as to the
extraneous offenses. We therefore hold, beyond a reasonable doubt, that Robinson’s
wearing of jail clothes did not contribute to Robinson’s punishment. See TEX. R.
APP. P. 44.2(a); Bell, 415 S.W.3d at 283.
B. Judicial Comment
Robinson next argues that requiring him to wear jail clothes during the
punishment phase was an improper judicial comment on his suitability for probation.
Due process requires a neutral and detached judge. Brumit v. State, 206
S.W.3d 639, 645 (Tex. Crim. App. 2006). Article 38.05 of the Texas Code of
Criminal Procedure similarly provides that a judge shall not “at any stage of the
proceeding previous to the return of the verdict, make any remark calculated to
convey to the jury his opinion of the case.” TEX. CODE CRIM. PROC. art. 38.05. To
reverse a judgment on the ground of improper conduct or comments of the judge,
we must find (1) that judicial impropriety was in fact committed, and (2) that it
probably prejudiced the complaining party. Dockstader v. State, 233 S.W.3d 98, 108
(Tex. App.—Houston [14th Dist.] 2007, pet. ref’d).
Requiring Robinson to wear jail clothes during the punishment phase did not
constitute an improper judicial comment regarding his suitability for probation.
Robinson cites no case law supporting this claim.
We overrule Robinson’s first issue.
In his second issue, Robinson argues that the punishment jury charge
incorrectly instructed the jury regarding the calculation of his parole eligibility,
causing him egregious harm. The State concedes that the parole law instruction was
erroneous, but it argues that Robinson was not harmed by the error. We agree with
A. Standard of Review
In analyzing a jury-charge issue, we first decide if error exists. See Almanza
v. State, 686 S.W.2d 157, 174 (Tex. Crim. App. 1985) (op. on reh’g); Tottenham v.
State, 285 S.W.3d 19, 30 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d). If we
find error, we then consider whether an objection to the charge was made and
analyze for harm. Tottenham, 285 S.W.3d at 30.
“The degree of harm necessary for reversal depends upon whether the error
was preserved.” Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996). Error
properly preserved by a timely objection to the charge will require reversal “as long
as the error is not harmless.” Almanza, 686 S.W.2d at 171. When the charging error
is not preserved, however, “the accused must claim that the error was
‘fundamental,’” and he will obtain a reversal only if the error constitutes egregious
harm. Id.; see Nava v. State, 415 S.W.3d 289, 298 (Tex. Crim. App. 2013) (egregious
harm “is a difficult standard to meet and requires a showing that the defendants were
deprived of a fair and impartial trial”). Fundamental errors that result in egregious
harm are those that affect “the very basis of the case,” deprive the defendant of a
“valuable right,” or “vitally affect his defensive theory.” Almanza, 686 S.W.2d at
172 (citations and quotations omitted).
When considering whether a defendant suffered harm, we must consider:
(1) the entire jury charge; (2) the state of the evidence, including the contested issues
and weight of probative evidence; (3) the argument of counsel; and (4) any other
relevant information revealed by the record of the trial as a whole. Id. at 171. We
examine the record to “illuminate the actual, not just theoretical, harm to the
accused.” Id. at 174; see Nava, 415 S.W.3d at 298.
1. Is there error in the charge?
Yes. Robinson argues, and the State agrees, that the charge erroneously
instructed the jury with regard to good conduct time and parole. The charge
instructed the jury:
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 plus any good conduct time earned equals one-half of the sentence imposed. Eligibility for parole does not guarantee that parole will be granted.
(emphasis added). The correct instruction under Texas Code of Criminal Procedure
article 37.07, section 4, however, is:
“Under the law applicable in this case, if the defendant is sentenced to a term of imprisonment, the defendant 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 the defendant may earn. If the defendant is sentenced to a term of less than four years, the defendant must serve at least two years before the defendant is eligible for parole. Eligibility for parole does not guarantee that parole will be granted.
TEX. CODE CRIM. PROC. art. 37.07, § 4(a). Because the instruction in the charge did
not comport with the statutory language, it was erroneous.
2. Was Robinson egregiously harmed?
No. Because Robinson did not object to the instruction at trial, to prevail, he
must show egregious harm. See Almanza, 686 S.W.2d at 171; see also Woodard v.
State, 322 S.W.3d 648, 658 (Tex. Crim. App. 2010). He can make no such showing.
a. The charge
The charge’s own language mitigated the charge error. The charge error
concerned good conduct time and parole law, but the charge also contained the
standard curative language specifically instructing the jury that it should not consider
how parole law or good conduct time might be applied to Robinson in determining
[Y]ou are not to consider the extent to which good conduct time may be awarded to or forfeited by this particular defendant. You are not to consider the manner in which the parole law may be applied to this particular defendant.
See Igo v. State, 210 S.W.3d 645, 647 (Tex. Crim. App. 2006). Absent contrary
evidence, we presume that the jury followed the instructions given, Thrift v. State,
176 S.W.3d 221, 224 (Tex. Crim. App. 2005), and Robinson points to no evidence
rebutting this presumption. See id. Thus, the instruction that the jury not consider
whether Robinson would be awarded good conduct time or how parole law would
be applied to him mitigated the defect in the instruction. See Igo, 210 S.W.3d at 647.
Similar conclusions abound. See Igo, 210 S.W.3d at 647–48 (defendant was
not egregiously harmed by erroneous instruction regarding parole eligibility where,
among other things, jury was instructed not to consider extent to which parole law
might be applied to defendant); Stewart v. State, 293 S.W.3d 853, 862 (Tex. App.—
Texarkana 2009, pet. ref’d) (same); Hooper v. State, 255 S.W.3d 262, 271–72 (Tex.
App.—Waco 2008, pet. ref’d) (same); Shavers v. State, 985 S.W.2d 284, 292 (Tex.
App.—Beaumont 1999, pet. ref’d) (same); see also Ross v. State, 133 S.W.3d 618,
624 (Tex. Crim. App. 2004) (erroneous instruction regarding good conduct time was
not egregiously harmful because, among other things, jury was instructed not to
consider how good conduct time might be applied to defendant).
Conversely, the two cases on which Robinson relies—Hill v. State, 30 S.W.3d
505 (Tex. App.—Texarkana 2000, no pet.), and Navratil v. State, No. 05-97-01404
CR, 2001 WL 92688 (Tex. App.—Dallas Feb. 5, 2001, pet. ref’d) (not designated
for publication)—are unpersuasive. The first case, Hill, was later abrogated because
intervening case law from the Court of Criminal Appeals—Ross v. State, 133 S.W.3d
618 (Tex. Crim. App. 2004), and Igo v. State, 210 S.W.3d 645 (Tex. Crim. App.
2006)—required appellate courts “to disregard such errors [regarding parole
eligibility], under the presumption that the jury will follow the curative language
directing the jury not to apply the information to the particular defendant.” Stewart,
293 S.W.3d at 862. Robinson’s second case, Navratil, an unpublished case from the
Dallas Court of Appeals, has no precedential value. See TEX. R. APP. P. 47.7(a).
Moreover, it was decided around the same time as Hill, contains essentially the same
reasoning, and is unconvincing for the same reasons. We presume the jury followed
the instructions not to consider how good conduct time or parole law would apply to
Robinson, and we see no egregious harm.
b. The evidence
The jury had ample ground to conclude that Robinson was ineligible for
probation and should be sentenced to a prison term. Robinson admitted that he
committed the robbery. His trial strategy was to ask the jury to give him probation
so that he could seek help for his drug addiction. He acknowledged that he was high
at the time that he committed the robbery and that he had used drugs while out on
bond after the robbery. He also acknowledged that he was previously put on
probation for possession of marijuana and violated the terms and conditions of that
probation. Finally, he admitted that, while he was out on bond, he was arrested three
times for new offenses, including possession of marijuana and theft.
c. Counsel’s argument
Counsel made no argument regarding parole law or good conduct time. In
fact, neither party mentioned parole law or good conduct time. The lack of argument
weighs against a finding of egregious harm. See Hooper, 255 S.W.3d at 272.
d. Other information in the record
Courts may consider whether the defendant received a high or maximum
sentence in determining whether an erroneous parole law instruction harmed a
defendant. The punishment range in this case was 5 to 99 years or life in prison and
a fine of up to $10,000. In closing argument, the State asked the jury to assess
punishment at 20 years’ imprisonment. Defense counsel, on the other hand, told the
jury in his closing:
You’re going to find something that you believe is reasonable. Be it probation, penitentiary time, something on the low end of single digits, or you might think decades are appropriate. I sincerely hope you don’t consider decades.
The jury assessed punishment at 15 years’ imprisonment, with no fine. This
punishment is on the lower end of the punishment range and is lower than the
punishment requested by the State. Accordingly, the jury’s assessment of 15 years’
imprisonment weighs against a finding of egregious harm. See Hooper, 255 S.W.3d
* * *
Because (1) the charge instructed the jury not to consider how good conduct
time or parole law would be applied to Robinson; (2) Robinson admitted that he
committed the crime and his testimony showed an inability to comply with probation
terms; (3) the parties did not argue about Robinson’s eligibility for parole; and (4)
Robinson received a punishment on the lower end of the range at issue and lower
than the State requested, we conclude that any harm to Robinson from the error in
the charge was no more than theoretical. See Almanza, 686 S.W.2d at 174 (court
must examine record to “illuminate the actual, not just theoretical, harm to the
accused”); Nava, 415 S.W.3d at 298 (record must disclose “actual rather than
theoretical harm” to warrant reversal based upon unobjected-to charge error). There
is no actual likelihood that the erroneous instruction regarding parole eligibility
affected the basis of the case or Robinson’s rights or his defense. Therefore, the error
was not egregiously harmful. See Almanza, 686 S.W.2d at 172.
We overrule Robinson’s second issue.