Foster v. State

• Decision Date: 28 April 1998
• Docket Number: No. 12-97-00070-CR,12-97-00070-CR
• Citation: 976 S.W.2d 732
• Parties: Donald Ray FOSTER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 732

976 S.W.2d 732

Donald Ray FOSTER, Appellant, v. The STATE of Texas, Appellee.

No. 12-97-00070-CR.

Court of Appeals of Texas Tyler.

April 28, 1998.

Discretionary Review Refused Sept. 16, 1998.

Ebb B. Mobley, Longview, for appellant.

C. Patrice Savage, Longview, for appellee.

Before RAMEY, C.J., and HOLCOMB and HADDEN, JJ.

PER CURIAM.

Donald Ray Foster ("Appellant") appeals his jury conviction of aggravated robbery and aggravated sexual assault. The jury assessed his punishment at ninety-nine years and life imprisonment, respectively, to run concurrently. Appellant has assigned two points of error. We will affirm.

The sufficiency of the evidence is not in question. So the first point of error may be viewed in context, we will give a brief rendition of the facts. In May of 1996, after the sixty-six-year-old complainant entered her trailer through the back door, Appellant suddenly and unexpectedly followed her and, under threat of violence, sexually assaulted her. Afterwards, while holding a knife to her throat, Appellant forced the victim to give him her money, jewelry, and other items. Before leaving, he threatened to return and kill her husband and her if she notified the authorities. The complainant positively identified Appellant. Appellant was subsequently arrested in Dallas. DNA and other evidence conclusively proved Appellant's guilt.

In his first point of error, Appellant contends that the trial court committed fundamental error when it failed to charge the jury concerning whether the offenses occurred in a criminal episode. A single indictment charged Appellant with both aggravated robbery and aggravated sexual assault arising out of a criminal episode. Neither the indictment nor the charge to the jury defined or applied the facts to what constituted a criminal episode.

The charge at the guilt/innocence phase required a finding of guilty or not guilty on both the aggravated sexual assault and the aggravated robbery and separate punishments. No objection was made to the indictment or the charges as given. Appellant maintains that the court's failure, both to define "criminal episode" and to instruct the jury that the State is required to prove beyond a reasonable doubt that the events occurred in one criminal episode, allowed the State to enjoy the benefits of misjoinder. We disagree.

"Criminal episode" is statutorily defined as "[T]he commission of two or more offenses, regardless of whether the harm is directed or inflicted upon more than one person or item of property, under the following circumstances: (1) the offenses are committed pursuant to the same transaction or pursuant to two or more transactions that are connected or constitute a common scheme or plan...." TEX.PEN.CODE ANN. § 3.01 (Vernon Supp.1994). In 1987, the Texas Penal Code was amended permitting a defendant to be prosecuted in a single trial for all offenses arising out of the same criminal episode. TEX.PEN.CODE ANN. § 3.02(a) (Vernon Supp.1993); ¹ See Letson v. State, 805 S.W.2d 801, 803-4 (Tex.App.--Houston [14th Dist.] 1990, no pet.). In Letson, the court determined that the defendant could be prosecuted in the same indictment on two counts of assault and that two punishments were proper if the jury was instructed to return a verdict on each count of the indictment submitted and separate verdict forms were submitted. This is what occurred in the present case.

Since this is alleged charge error which was not objected to, Appellant must demonstrate that the error in the charge was so egregious that it created a harm which deprived him of a fair and impartial trial. He cannot simply show that the error was calculated to injure his rights. Almanza v. State, 686 S.W.2d 157, 171-72 (Tex.Cr.App.1985). In the present case, Appellant actually benefitted from one charging instrument in that he did not receive consecutive sentences and was required to undergo only one trial. Appellant had a right to separate trials if he had elected a severance pursuant to Section 3.04 of the Texas Penal Code. ² Appellant did not exercise that right prior to trial. If the Appellant had decided to sever and ask for separate trials on these offenses, in all probability the facts of the other offense would have been admissible as background contextual evidence also known as res gestae. In addition, he would have been faced with the possibility of stacked sentences. In considering the provisions of Chapter 3 defining when defendants can be prosecuted for two or more offenses and Appellant's right of severance, we hold it is not necessary to give a definition and a charge on whether the offenses charged occurred during a common episode unless the defendant requests such a charge and there is at least some evidence which would negate the offenses occurred during a common episode as defined in Section 3.01 of the Texas Penal Code. Thus, under the facts of this case and following the reasoning of Almanza, we do not believe that if there was error, it was so egregious that it created a harm that deprived Appellant of a fair and impartial trial. Point of error one is overruled.

In point of error number two, Appellant complains that the trial court erred by allowing the jury to take notes for use during their deliberation. Prior to the presentment of the indictment, the trial court gave the following instructions:

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