Igo v. State, PD-0137-05.

• Decision Date: 20 December 2006
• Docket Number: No. PD-0137-05.,PD-0137-05.
• Citation: 210 S.W.3d 645
• Parties: Daniel E. IGO, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

210 S.W.3d 645

Daniel E. IGO, Appellant, v. The STATE of Texas.

No. PD-0137-05.

Court of Criminal Appeals of Texas.

December 20, 2006.

David L. Botsford, Austin, for Appellant.

Nick A. Moutos, Asst. Criminal District Atty., Lubbock, Matthew Paul, State's Atty., Austin, for State.

KELLER, P.J., delivered the opinion of the Court in which PRICE, WOMACK, JOHNSON, KEASLER, HERVEY, and COCHRAN, JJ., joined.

When a defendant complains on appeal that the trial court erroneously denied a motion for new trial that alleged a claim of jury-charge error, is he entitled to have the underlying jury-charge error reviewed under a different harm standard than would have applied to that error absent the motion for new trial? We answer that question "no."

I. BACKGROUND

Appellant was a teacher in Odessa. On January 28, 2000, he and a fifteen-year-old female student drove to Lubbock. While in Lubbock, they had sex at a motel, and it is that incident which gave rise to the current prosecution.

In the punishment phase charge at appellant's trial for sexual assault, the jury was erroneously instructed that appellant would not become eligible for parole until the actual time served, plus good time, equaled one-fourth of the sentence imposed. The jury should have been instructed that appellant would not become eligible for parole until the actual time served, without considering good time, equaled one-half of the sentence imposed.¹ Appellant did not object to the charge at trial. After verdict, he filed a motion for new trial, claiming that the trial court "misdirected the jury about the law," which the trial court denied. On appeal, he claimed that Rule of Appellate Procedure 21.3(b) required the trial court to grant the motion for new trial. The court of appeals held that Article 36.19 of the Code of Criminal Procedure, as interpreted by this Court in Almanza v. State,² dictated the proper analysis for the claim presented. Applying the Almanza "egregious harm" analysis, the appellate court found the error to be harmless.

On discretionary review, appellant argues that Rule 21.3(b) required the trial judge to grant his motion for new trial because the court "misdirected" the jury on the law in this case, and, consequently, the denial of his motion for new trial was an abuse of discretion. He then infers that an appellate court must reverse the case on this basis. In the alternative, he contends that the court of appeals conducted an erroneous "egregious harm" analysis under Almanza.

B. ANALYSIS

Rule 21.3 provides in relevant part:

The defendant must be granted a new trial for any of the following reasons:

. . .

(b) when the court has misdirected the jury about the law or has committed some other material error likely to injure the defendant's rights.

We disagree with appellant's contention that this language affords him appellate relief solely on the basis that the trial court "misdirected the jury." Even though appellant characterized his claim as error in denying a new trial, this case presents error in the charge. At the appellate level, the proper standard is Article 36.19, as construed in Almanza.³

A statute cannot be superceded by a rule. In Rent v. State we recognized that, when a statute directs what treatment an appellate court must give to a particular type of error, a rule of appellate procedure cannot be employed to circumvent the statutory requirement.⁴ In that case, we held that Rent could not use a rule of appellate procedure relating to new trials to circumvent the statutory requirement that a conviction involving reversible punishment error be remanded for a new punishment hearing rather than a new trial.⁵ As in Rent, the defendant in this case cannot use a motion-for-new-trial appellate rule to circumvent the harm analysis imposed by Article 36.19.

If appellant were correct, defendants would no longer be required to preserve a jury-charge error at trial so long as the issue was raised in a motion for new trial because any error in the charge could be said to "misdirect" the jury. That result contradicts the policy of encouraging the timely correction of errors, which is embodied both in Article 36.19 and in our own rules of appellate procedure.⁶ Appellant's reasoning would essentially exempt any jury-charge error from any sort of harmless-error analysis even when the erroneous instruction might have been fixed had the defendant brought the error to the trial court's attention. Such a result would essentially eviscerate the two-tiered harm analysis required by statute and do away with the requirement that egregious harm be shown when the defendant has failed to timely urge an objection.⁷

We also disagree with appellant's contention that the court of appeals misapplied the Almanza "egregious harm" standard. Although appellant did receive the maximum sentence, a number of other factors mitigate against a finding of egregious harm. First, the parole instruction contained the standard curative language admonishing the jury not to consider the extent to which the parole law might be applied to the defendant. Second, parole was not mentioned by either counsel during argument on punishment. And finally, the evidence relating to punishment was exceptionally strong. The jury could have viewed the sexual assault here as especially heinous because the victim was one of appellant's students, and so the conduct was an abuse of appellant's position as a teacher. Moreover, the evidence showed that appellant had asked another female student to take a trip with him to Lubbock. Most importantly, appellant continued a sexual relationship with the victim, even after he was indicted, and he even tried to bribe her to drop the charges.

We affirm the judgment of the court of appeals.

MEYERS, J., filed a dissenting opinion.

HOLCOMB, J., dissented.

1. TEX.CODE CRIM. PROC., Art. 37.07, § 4(a).

2. 686 S.W.2d 157 (Tex.Crim.App.1984).

3. See Almanza, 686 S.W.2d at 171.

4. 982 S.W.2d 382, 386 (Tex.Crim.App.1998).

5. Id.

6. See ...