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Date: 12-09-2020
Case Style:
Anthony Mamboleo Nyakeo v. The State of Texas
Case Number: 01-19-00780-CR
Judge: Julie Countiss
Court: Court of Appeals
For The
First District of Texas
Plaintiff's Attorney: Shelby White
Joseph Wilson Spence
Defendant's Attorney:
OR
Just Call 855-853-4800 for Free Help Finding a Lawyer Help You.
Description:
Houston, TX - Criminal defense lawyer represented defendant Anthony Mamboleo Nyakeo charged with Aggravated Sexual Assault.
Alyssa Osario, a licensed vocational nurse, testified that in January 2018, she
worked as a charge nurse at Woodridge nursing home—a licensed nursing home
facility for elderly and disabled patients in Tarrant County, Texas. As a charge
nurse, she oversaw an entire floor of patients and provided care to the patients. She
also supervised certified nursing aides (“CNAs”), including appellant. The CNAs
were tasked with providing daily care for the nursing home patients, such as dressing
them, changing them, cleaning them, and feeding them. The nursing staff at
Woodridge nursing home, including the CNAs, were health care providers.
According to Osario, appellant worked with her in January 2018 as a CNA, and they
generally worked the same shifts.
2 See TEX. PENAL CODE ANN. § 22.021(a)(1)(A), (a)(2)(C), (b)(2), (b)(3), (e); see also
id. § 22.04(c).
3
As to the complainant, Osario testified that the complainant was one of the
patients at Woodridge nursing home whom Osario oversaw. The complainant was
more than sixty-five years old, disabled, non-verbal, incontinent, and unable to feed
herself, move on her own, or vocalize. She suffered from dementia, which had
caused her to “lose complete function over” herself. The complainant was unable to
consent to anything on her own and her personal decisions were delegated under a
power of attorney. She was emotionally and physically dependent on someone else
to care for her. Appellant and the complainant were not married.
Osario explained that on one particular day in January 2018, she arrived at
Woodridge nursing home around 2:00 p.m. for her shift. Upon arrival, she was
notified that the complainant was “bleeding from her vagina.” Osario examined the
complainant, while her supervisor and a female medication aide were in the room.
Osario found “a very large tear” “going into [the complainant’s] vagina,” which
Osario found alarming because “[i]t’s not something you see on an elderly woman”
and would not have occurred naturally. The complainant was bleeding from the tear.
Because Osario suspected that the complainant had been sexually assaulted, she
followed the nursing home’s protocol—she notified the nursing home’s abuse
coordinator and the complainant’s family, who consented to the complainant being
taken to the hospital. The complainant was taken by ambulance to the hospital for a
sexual assault examination.
4
Violet Gorman, an emergency department certified nurse and a certified Adult
Sexual Assault Nurse Examiner (“SANE”) at John Peter Smith Hospital, testified
that she has performed about 570 sexual assault examinations since 2012. On
January 28, 2018, around 3:00 a.m., she performed a sexual assault examination on
the complainant. The complainant, who was seventy-four years old at the time, was
alert, tense, guarded,3
and non-verbal. The complainant had dementia, and
according to Gorman, was “somebody who [was not] oriented at all.” The
complainant was also bedridden and could not sit up. The complainant’s nephew,
the agent under her power of attorney, gave consent for the sexual assault
examination. According to Gorman, given the complainant’s mental state and
history of dementia, the complainant was unable to “consent to anything.” The
complainant was elderly and disabled.
As part of the sexual assault examination, Gorman took vaginal, anal,
perianal, vulvar, and buccal swabs from the complainant. Gorman explained that
the complainant had significant injuries and several areas of trauma in her genital
area.
4
The complainant had a large tear in her perineum, a tear at her anal verge, a
laceration in her genital area—which Gorman described as a “huge trauma”—some
3 Gorman testified that when a patient is guarded it typically means that she is
nervous, afraid, or in pain.
4 The trial court admitted into evidence photographs of the complainant’s injuries.
5
small abrasions in her perineal area, and multiple small areas “of just missing skin.”
The large laceration went “completely through the whole bottom of [the
complainant’s] vagina almost to her anus and required [medical] intervention” and
surgical repair.
The complainant also had anal laxity and decreased anal tone which was
significant and abnormal. Gorman stated that the decreased anal tone and anal laxity
indicated trauma and that “[s]omething [had] happened there consistently” or
chronically. In total, Gorman noted three lacerations or tears in the complainant’s
genital area, and the complainant’s injuries were consistent with her having been
sexually assaulted. According to Gorman, the complainant’s “vagina should have
never looked like that.” An improper vaginal examination would not have caused
the complainant’s injuries.
Grapevine Police Department Detective C. O’Rear testified that she was
assigned to investigate the sexual assault of the complainant, a patient at Woodridge
nursing home in Tarrant County, Texas. According to O’Rear, certain nurses at the
nursing home found blood and a tear in the complainant’s vagina. O’Rear noted that
Osorio inspected the complainant’s vagina because of the bleeding and Osorio felt
that it was necessary to notify others at the nursing home. Someone at the nursing
home notified law enforcement of the possible sexual assault, and the complainant
was taken to the hospital for a sexual assault examination. The samples or swabs
6
taken from the complainant during her sexual assault examination were then sent to
the University of North Texas (“UNT”) Health Science Center for DNA testing.
O’Rear stated that semen was found on the perianal and anal swabs collected from
the complainant. According to O’Rear, the complainant sustained vaginal and anal
injuries.
Detective O’Rear further testified that due to the discovery of semen in certain
swabs collected from the complainant during her sexual assault examination, she
sought to determine which male employees at Woodridge nursing home had taken
care of the complainant leading up to the discovery of the sexual assault. O’Rear
identified three possible males—appellant, Stephen Nyamboki, and Thomas
Irechukwu. All three men were employees at Woodridge nursing home and had
taken care of the complainant around the time of the sexual assault. As to appellant,
O’Rear stated that appellant had been one of the individuals who had taken care of
the complainant at the nursing home, and he had access to her at the time the sexual
assault was committed. Appellant and the complainant were not married.
Detective O’Rear explained that she obtained DNA samples from Nyamboki,
Irechukwu, and appellant. Nyamboki’s DNA sample was sent to the UNT Health
Science Center to be compared to the DNA of the semen found on the swabs taken
from the complainant during the sexual assault examination. After receiving the
DNA testing results related to Nyamboki, he was excluded as a contributor of the
7
semen found on the swabs taken from the complainant. Irechukwu’s DNA sample
was also sent to the UNT Health Science Center to be compared to the DNA of the
semen found on the swabs taken from the complainant during the sexual assault
examination. The DNA testing results for Irechukwu excluded him as a contributor
of the semen found on the swabs taken from the complainant. Appellant’s DNA
sample was sent to the UNT Health Science Center to be compared to the DNA of
the semen found on the swabs taken from the complainant. After receiving the DNA
testing results for appellant, O’Rear obtained an arrest warrant for appellant.
Farah Plopper, a forensic DNA analyst at the UNT Health Science Center,
Center for Human Identification, testified that her laboratory is involved in DNA
testing and that it is not uncommon for a law enforcement agency to provide the
laboratory with an unknown sample for DNA testing. It is also not uncommon for a
law enforcement agency to provide the laboratory with a DNA sample from a known
individual to test against an unknown sample to determine if the DNA is a match or
if the known individual is a DNA contributor to the unknown sample. Plopper
explained that when the laboratory receives a sample for DNA testing, such as a
swab, the first step is DNA extraction. The laboratory then performs a quantification
step to determine “how much human DNA [is] able to [be] recover[ed]” from the
sample. Finally, the laboratory performs an amplification step during which “exact
copies of the DNA” are made. After those three steps are complete, the sample is
8
loaded “onto an instrument called a genetic analyzer,” the “data runs through that
instrument,” and “a computer . . . tak[es] all that information and translat[es] it into
a format” that Plopper can interpret.
As to the complainant, Plopper testified that she tested the complainant’s
sexual assault kit, which included the vaginal, vulvar, anal, perianal, and buccal
swabs taken from the complainant during her sexual assault examination. Plopper
also noted that the laboratory received known DNA samples from appellant,
Nyamboki, and Irechukwu. After DNA testing was complete, Plopper completed
her “Forensic DNA Report,” a copy of which the trial court admitted into evidence,
over appellant’s objection, as State’s Exhibit 15.
In discussing the results of the DNA testing, Plopper stated that she was able
to confirm the presence of semen on the perianal and anal swabs taken from the
complainant during her sexual assault examination. Plopper explained that
whenever semen is observed in a sample, a special kind of DNA extraction called a
differential extraction is performed. This creates two different extracts—one that
contains non-sperm or epithelial cells and another that contains sperm cells.
As to the anal swabs, the complainant was found to be a DNA contributor to
the epithelial fraction, which would be expected. And both Nyamboki and
Irechukwu were excluded as DNA contributors to the sperm fraction. However,
appellant could not be excluded as a contributor of the DNA found in the sperm
9
fraction of the anal swabs.5
Plopper stated that the “DNA profile from the sperm
fraction of the anal swabs ha[d] an estimated frequency of occurrence of . . . one in
approximately 140 septillion African-American individuals.” This statistic indicates
that the DNA profile observed in the sperm fraction from the anal swabs is rare.
As to the perianal swabs, Plopper testified that the complainant was found to
be a DNA contributor to the epithelial fraction and appellant could not be excluded
as a minor contributor6
to the DNA found in the epithelial fraction.7
Nyamboki and
Irechukwu were excluded as DNA contributors to the sperm fraction, but appellant
could not be excluded as a DNA contributor to the sperm fraction of the perianal
swabs. Plopper noted that the “sperm fraction of the sample of the DNA profile
[from the perianal swabs], ha[d] an estimated frequency of occurrence of . . . [o]ne
in approximately 32 octillion African-American individuals.” And Plopper
explained that the “DNA profile from th[e] sperm fraction [of the perianal swabs]
was the same as the DNA profile that [was] obtained from” appellant. The statistic
5 State’s Exhibit 15 states that “the data indicate[s] with a high degree of confidence
that [appellant] is the source of the . . . contributor DNA from the sperm fraction of”
the anal swabs.
6 Plopper explained when there is a mixture of DNA, and thus more than one DNA
contributor, a “major contributor” contributes more DNA to the sample than the
“minor contributor.”
7 State’s Exhibit 15 states that Nyamboki and Irechukwu were excluded as
contributors for the epithelial fraction from the perianal swabs.
10
indicates that the DNA profile observed in the sperm fraction from the perianal
swabs is rare.8
Admission of Evidence
In his first issue, appellant argues that that trial court erred in admitting State’s
Exhibit 15, the Forensic DNA Report, because the trial court’s admission of the
exhibit violated appellant’s Sixth Amendment right “to be confronted with the
witnesses against him.” See U.S. CONST. amend. VI.
We review a trial court’s ruling on the admission of evidence for an abuse of
discretion. Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011); Walker
v. State, 321 S.W.3d 18, 22 (Tex. App.—Houston [1st Dist.] 2009, pet. dism’d). A
trial court abuses its discretion if it acts arbitrarily, unreasonably, or without
reference to any guiding rules or principles. Montgomery v. State, 810 S.W.2d 372,
380 (Tex. Crim. App. 1990). When considering a trial court’s decision to admit
evidence, we will not reverse the trial court’s ruling unless it falls outside the “zone
of reasonable disagreement.” Green v. State, 934 S.W.2d 92, 102 (Tex. Crim. App.
1996) (internal quotations omitted). We will uphold a trial court’s evidentiary ruling
if it is correct on any theory of law applicable to that ruling. De La Paz v. State, 279
S.W.3d 336, 344 (Tex. Crim. App. 2009).
8 Appellant testified in his defense and denied sexually assaulting the complainant.
11
If the erroneous admission of evidence constitutes a violation of constitutional
rights, we still perform a harm analysis and must reverse a judgment of conviction
unless we determine beyond a reasonable doubt that the error did not contribute to
the conviction. See TEX. R. APP. P. 44.2(a); Henriquez v. State, 580 S.W.3d 421,
429 (Tex. App.—Houston [1st Dist.] 2019, pet. ref’d); Gutierrez v. State, 516
S.W.3d 593, 599 (Tex. App.—Houston [1st Dist.] 2017, pet. ref’d); see also Lee v.
State, 418 S.W.3d 892, 899 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d) (“A
Confrontation Clause violation is constitutional error that requires reversal unless
we conclude beyond a reasonable doubt that the error was harmless.”). The critical
inquiry is not whether the evidence supported the verdict absent the erroneously
admitted evidence, but rather “the likelihood that the constitutional error was
actually a contributing factor in the jury’s deliberations.” Scott v. State, 227 S.W.3d
670, 690 (Tex. Crim. App. 2007); see also Henriquez, 580 S.W.3d at 429. We must
“calculate, as nearly as possible, the probable impact of the error on the jury in light
of the other evidence.” McCarthy v. State, 65 S.W.3d 47, 55 (Tex. Crim. App. 2001).
While our review must focus on the error and its effect, “the presence of other
overwhelming evidence that was properly admitted which supports the material fact
to which the inadmissible evidence was directed may be an important factor in the
evaluation of harm.” Wall v. State, 184 S.W.3d 730, 746 (Tex. Crim. App. 2006).
In determining if the constitutional error may be declared harmless beyond a
12
reasonable doubt, we may consider: (1) how important the out-of-court statement
was to the State’s case; (2) whether the out-of-court statement was cumulative of
other evidence; (3) the presence or absence of evidence corroborating or
contradicting the out-of-court statement on material points; and (4) the overall
strength of the State’s case. Scott, 227 S.W.3d at 690; Gutierrez, 516 S.W.3d at 599.
The Confrontation Clause of the United States Constitution provides that “[i]n
all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with
the witnesses against him.” U.S. CONST. amend. VI; see also Sohail v. State, 264
S.W.3d 251, 258 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d) (“A defendant
has a constitutional right to confront and cross-examine the witnesses against him.”).
The Confrontation Clause provides two types of protections for a criminal
defendant: the right physically to face those who testify against him and the right to
conduct cross-examination. Pennsylvania v. Ritchie, 480 U.S. 39, 51 (1987); see
also Coy v. Iowa, 487 U.S. 1012, 1016 (1988) (Confrontation Clause “guarantees
[a] defendant a face-to-face meeting with witnesses appearing before the trier of
fact”). The Confrontation Clause bars the admission of testimonial statements of a
witness who does not appear at trial unless that witness is unavailable and the
defendant had a prior opportunity for cross-examination. Crawford v. Washington,
541 U.S. 36, 59 (2004); Russeau v. State, 171 S.W.3d 871, 880 (Tex. Crim. App.
2005).
13
Whether an absent witness’s statement is testimonial or nontestimonial is a
threshold issue for the court to decide. See Woods v. State, 152 S.W.3d 105, 113–
14 (Tex. Crim. App. 2004); see also Woodall v. State, 336 S.W.3d 634, 642 (Tex.
Crim. App. 2011) (holding, in reviewing Confrontation Clause challenge, appellate
courts must “first determine whether the Confrontation Clause is implicated,” i.e.,
whether out-of-court statement made by witness absent from trial is testimonial in
nature). And whether a statement is testimonial or nontestimonial is a constitutional
legal question that we review de novo. Wall, 184 S.W.3d at 742. Testimonial
statements include those “that were made under circumstances which would lead an
objective witness reasonably to believe that the statement would be available for use
at a later trial.” Paredes v. State, 462 S.W.3d 510, 514 (Tex. Crim. App. 2015)
(internal quotations omitted); see also Williams v. State, 513 S.W.3d 619, 637 (Tex.
App.—Fort Worth 2016, pet. ref’d).
In the context of an expert testifying about a laboratory report, it is a violation
of a defendant’s right to confrontation for a “surrogate” witness to testify to the
conclusions made in another analyst’s laboratory report because the report is
considered a testimonial statement of the analyst who performed the tests when
compiling the report. See Bullcoming v. New Mexico, 564 U.S. 647, 652, 655–63
(2011); Paredes, 462 S.W.3d at 517–19 (“The admission of a lab report created
solely by a non-testifying analyst, without calling that analyst to sponsor it, violates
14
the Confrontation Clause. Doing so deprives a defendant of his opportunity to
cross-examine the non-testifying expert about the conclusions contained in the report
and how the non-testifying expert arrived at those conclusions.”); Burch v. State,
401 S.W.3d 634, 640 (Tex. Crim. App. 2013); see also Henderson v. State, No.
02-15-00397-CR, 2017 WL 4172591, at *17 (Tex. App.—Fort Worth Sept. 21,
2017, pet. ref’d) (mem. op., not designated for publication); Nelson v. State, No.
02-16-00184-CR, 2017 WL 3526340, at *11 (Tex. App.—Fort Worth Aug. 17,
2017, no pet.) (mem. op., not designated for publication). But when an expert
testifies to her own opinion or conclusion, even when that conclusion or opinion is
based on the laboratory work of others, there is no violation of the Confrontation
Clause. Paredes, 462 S.W.3d at 512–19; see also Henderson, 2017 WL 4172591,
at *17; Nelson, 2017 WL 3526340, at *11.
State’s Exhibit 15, the Forensic DNA Report, is authored by Plopper, the
forensic DNA analyst who testified at trial. Plopper explained that when her
laboratory receives a sample for DNA testing, such as a swab, the first step is DNA
extraction. The laboratory then performs a quantification step to determine “how
much human DNA [is] able to [be] recover[ed]” from the sample. Finally, the
laboratory performs an amplification step during which “exact copies of the DNA”
are made. After those three steps are complete, the sample is loaded “onto an
instrument called a genetic analyzer,” the “data runs through that instrument,” and
15
“a computer . . . tak[es] all that information and translat[es] it into a format” that
Plopper can interpret. Plopper testified that she tested the complainant’s sexual
assault kit, which included the vaginal, vulvar, anal, perianal, and buccal swabs
taken from the complainant during her sexual assault examination. Plopper also
stated that her laboratory received DNA samples from appellant, Nyamboki, and
Irechukwu. These “known samples” were tested by an evidence technologist at
Plopper’s laboratory. In other words, for the DNA samples provided by appellant,
Nyamboki, and Irechukwu, an evidence technologist from Plopper’s laboratory did
the extraction, quantification, and amplification steps on those samples. But Plopper
then took the “data from the genetic analyzer,” which had translated the information
into a format that Plopper could interpret, and conducted the analysis on the “known
samples,” meaning that she developed the DNA profiles for the known samples
taken from appellant, Nyamboki, and Irechukwu. After Plopper completed her
analysis—comparing the DNA samples from appellant, Nyamboki, and Irechukwu
to the unknown DNA found on the various swabs taken from the complainant during
her sexual assault examination—Plopper wrote her report. Plopper stated: “I did all
my own independent analysis of every item that’s in th[e] report.”
Here, Plopper performed the DNA analysis and determined whether or not
appellant, Nyamboki, and Irechukwu could be excluded as contributors of the
unknown DNA found in the perianal and anal swabs taken from the complainant
16
during her sexual assault examination. Plopper testified to her own independent
opinions and conclusions at trial. See Whitfield v. State, 524 S.W.3d 780, 786–88
(Tex. App.—Houston [14th Dist.] 2017, pet. ref’d) (DNA analyst and supervisor
performed crucial analysis of raw DNA data and testified to her own conclusions,
without analyst’s independent analysis, “the raw, computer-generated data . . . that
the . . . instrument produced st[ood] for nothing on [its] own” (second alteration in
original) (internal quotations omitted)); see also Henderson, 2017 WL 4172591, at
*17–18. The fact that Plopper, in her analysis, relied on data generated by an
evidence technologist at her laboratory does not render her a “surrogate” witness of
a non-testifying analyst and does not violate appellant’s right to confrontation under
the Sixth Amendment. See Paredes, 462 S.W.3d at 511–19; Garrett v. State, 518
S.W.3d 546, 555 (Tex. App.—Houston [1st Dist.] 2017, pet. ref’d); see also
Henderson, 2017 WL 4172591, at *17–18; Nelson, 2017 WL 3526340, at *11–13.
Appellant had the opportunity to cross-examine Plopper as to her opinions and
conclusions related to the DNA testing that was performed in his case. See Garrett,
518 S.W.3d at 555 (“[B]ecause [witness] independently analyzed the raw DNA data
and offered his own opinion concerning the comparison of the DNA profiles, and he
testified and was subject to cross-examination, the admission of his testimony and
his lab report, even in the absence of testimony from [the non-testifying analysts],
d[id] not violate the Confrontation Clause.”).
17
We conclude that the trial court’s admission of State’s Exhibit 15, the Forensic
DNA Report, did not violate appellant’s Sixth Amendment right “to be confronted
with the witnesses against him.” Thus, we hold that the trial court did not err in
admitting the exhibit into evidence.
We overrule appellant’s first issue.
Jury Charge
In his second issue, appellant argues that the trial court erred in instructing the
jury during the punishment phase of trial because the trial court’s charge “included
[a] ‘good time’ parole instruction,” appellant is not “eligible to accumulate good
time,” and appellant’s “right to due process and due course of law [was] violated”
as a result of the trial court’s misleading and confusing instruction.
We review complaints of jury-charge error under a two-step process. Ngo v.
State, 175 S.W.3d 738, 743–44 (Tex. Crim. App. 2005); Abdnor v. State, 871 S.W.2d
726, 731–32 (Tex. Crim. App. 1994). First, we must determine whether error exists
in the trial court’s charge. Wooten v. State, 400 S.W.3d 601, 606 (Tex. Crim. App.
2013). Second, if there is error, the court must determine whether the error caused
sufficient harm to require reversal of the conviction. Id. If the defendant preserved
error by timely objecting to the charge, an appellate court will reverse if the
defendant demonstrates that he suffered some harm as a result of the error. Sakil v.
State, 287 S.W.3d 23, 25–26 (Tex. Crim. App. 2009). If the defendant did not object
18
at trial, we will reverse only if the error was so egregious and created such harm that
the defendant did not receive a fair and impartial trial. Id. at 26.
After the jury found appellant guilty of two “counts” of the offense of
aggravated sexual assault of an elderly or disabled person and heard evidence during
the punishment phase of trial, the trial court, in its charge to the jury, included this
instruction about good conduct time and parole law:
Under the law applicable in this case, the [d]efendant, if
sentenced to a term of imprisonment, may earn time off the period of
incarceration imposed through the award of good conduct time. Prison
authorities may award good conduct time to a prisoner who exhibits
good behavior, diligence in carrying out prison work assignments, and
attempts at rehabilitation. If a prisoner engages in misconduct, prison
authorities may also take away all or part of any good conduct time
earned by the prisoner.
It is also possible that the length of time for which the [d]efendant
will be imprisoned might be reduced by the award of parole.
Under the law applicable in this case, if the [d]efendant 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. Eligibility for parole does not
guarantee that parole will be granted.
It cannot accurately be predicted how the parole law and good
conduct time might be applied to this Defendant if he is sentenced to a
term of imprisonment, because the application of these laws will
depend on decisions made by prison and parole authorities.
You may consider the existence of the parole law and good
conduct time. However, you are not to consider the extent to which
good conduct time may be awarded to or forfeited by this particular
19
Defendant. You are not to consider the manner in which the parole law
may be applied to this particular Defendant.
Texas Code of Criminal Procedure article 37.07, section 4(a) requires the trial
court to instruct the jury regarding the existence and mechanics of parole law and
good conduct time. See TEX. CODE CRIM. PROC. art. 37.07, § 4(a); see also Luquis
v. State, 72 S.W.3d 355, 360 (Tex. Crim. App. 2002); Williams v. State, No.
02-14-00194-CR, 2014 WL 7345139, at *1 (Tex. App.—Fort Worth Dec. 23, 2014,
pet. ref’d) (mem. op., not designated for publication); Sanders v. State, 255 S.W.3d
754, 765 (Tex. App.—Fort Worth 2008, pet. ref’d). And, as required, the trial court
informed the jury that it could not consider the extent to which good conduct time
may be awarded to or forfeited by appellant or the manner in which the parole law
may be applied to appellant. See TEX. CODE CRIM. PROC. art. 37.07, § 4(a); see also
Luquis, 72 S.W.3d at 360; Williams, 2014 WL 7345139, at *1. The overall purpose
of these instructions from the trial court was to inform the jury of the concepts as a
general proposition, but the instructions clearly prohibited the jury from considering
how the concepts of good conduct time and parole might be applied to appellant.
See Luquis, 72 S.W.3d at 360; Guerrero v. State, No. 02-11-00421-CR, 2012 WL
5258700, at *4 (Tex. App.—Fort Worth Oct. 25, 2012, no pet.) (mem. op., not
designated for publication).
Persons convicted of certain enumerated offenses, including the offense of
aggravated sexual assault, are not eligible for release on mandatory supervision,
20
regardless of how much good conduct time they might accrue and their good conduct
time does not make them eligible for parole any sooner than they would be without
the good time credits. See TEX. GOV’T CODE ANN. §§ 508.145(d), 508.149(a); TEX.
PENAL CODE ANN. § 22.021; see also Guerrero, 2012 WL 5258700, at *4; Sanders,
255 S.W.3d at 765. Appellant, because he was convicted of two “counts” of the
offense of aggravated sexual assault of an elderly or disabled person, is not eligible
for release on mandatory supervision, regardless of how much good time he might
accrue, nor does his good conduct time make him eligible for parole sooner than he
would be without good conduct time credits. See TEX. GOV’T CODE ANN.
§§ 508.145(d), 508.149(a); TEX. PENAL CODE ANN. § 22.021; see also Luquis, 72
S.W.3d at 362. Appellant thus asserts that the inclusion of the above instruction
about good time conduct and parole law violated his right to due process and due
course of law because the instruction given by the trial court did not apply to him.
Cf. Williams, 2014 WL 7345139, at *1 (raising same issue); Sanders, 255 S.W.3d at
765–66 (defendant asserted instruction on good conduct time was misstatement of
law as applied to him and thus violated due process rights).
The Texas Court of Criminal Appeals has directly addressed this issue and
found no violation of a defendant’s right to due process or due course of law.9
See
9
In his brief, appellant notes the Court of Criminal Appeals’s ruling in Luquis v.
State, 72 S.W.3d 355 (Tex. Crim. App. 2002) and states that he raises his second
issue in our Court solely to preserve it for further review.
21
Luquis, 72 S.W.3d at 364–68; see also Williams, 2014 WL 7345139, at *1. In
Luquis, the Court of Criminal Appeals acknowledged that the instruction dictated by
the Texas Code of Criminal Procedure may be inapplicable to some defendants. 72
S.W.3d at 363. But it construed Texas Code of Criminal Procedure article 37.07,
section 4(a) to be an absolute command that the good conduct time and parole law
instruction be given to the jury. Id. Thus, a trial court that gives the instruction does
not commit error. Id. Further, the Court of Criminal Appeals held that the required
instruction under article 37.07, section 4(a), as a whole, is not so misleading as to
deny a defendant due process or due course of law. Id. at 364–68.
The Fort Worth Court of Appeals10 has also definitively held that the trial
court’s inclusion of the mandatory language of Texas Code of Criminal Procedure
article 37.07, section 4(a) in its charge to the jury, even when not applicable to a
particular defendant, does not violate the defendant’s right to due process or due
course of law. See Sanders, 255 S.W.3d at 765–66; Cagle v. State, 23 S.W.3d 590,
593–94 (Tex. App.—Fort Worth 2000, pet. ref’d); see also Guerrero, 2012 WL
5258700, at *4–5; Bishop v. State, No. 2-03-443-CR, 2005 WL 1189317, at *7–8
(Tex. App.—Fort Worth May 19, 2005, pet. ref’d) (mem. op., not designated for
publication) (“[V]arious constitutional challenges to the mandated parole charge
[required by article 37.07, section 4(a)] have been rejected in Texas courts.”),
10 See TEX. R. APP. P. 41.3.
22
The trial court’s instruction to the jury tracked the language in Texas Code of
Criminal Procedure article 37.07, section 4(a). See Bishop, 2005 WL 1189317, at
*8. Thus, we hold that the trial court did not err in instructing the jury during the
punishment phase of trial as statutorily required. See TEX. CODE CRIM. PROC. ANN.
art. 37.07, § 4(a).
We overrule appellant’s second issue
Outcome: We affirm the judgments of the trial court.
Plaintiff's Experts:
Defendant's Experts:
Comments: