Murrieta v. State

• Decision Date: 03 May 2019
• Docket Number: No. 06-18-00163-CR,06-18-00163-CR
• Parties: Jeremy Dakota MURRIETA, Appellant v. The STATE of Texas, Appellee
• Court: Texas Court of Appeals

578 S.W.3d 552

Jeremy Dakota MURRIETA, Appellant

v.The STATE of Texas, Appellee

No. 06-18-00163-CR

Court of Appeals of Texas, Texarkana.

Date Submitted: March 20, 2019

Date Decided: May 3, 2019

Ebb B. Mobley, Attorney at Law, P.O. Box 2309, Longview, TX 75606, for Appellant.

Zack Wavrusa, Assistant District Attorney, Michael E. Jimerson, Rusk County District/County Attorney, 115 N. Main St., Ste. 302, Henderson, TX 75652, for Appellee.

Before Morriss, C.J., Burgess and Stevens, JJ.

OPINION

Opinion by Justice Burgess

I. Factual and Procedural Background

Jeremy Dakota Murrieta was found guilty of the aggravated sexual assault of his wife’s six-year-old daughter, Nina,¹ and was sentenced to forty years' imprisonment. Murrieta argues that, during punishment, the trial court erred in submitting the wrong instruction to the jury on the effect of parole law. We affirm the trial court’s judgment because the jury-charge error did not cause Murrieta egregious harm.

II. Analysis

A. Did the Trial Court Err in Instructing the Jury on the Effect of Parole Law?

1. Standard of Review

Murrieta argues on appeal that the trial court erred in submitting an incorrect parole instruction to the jury during the punishment phase of his trial. We employ a two-step process in our review of alleged jury-charge error. See Abdnor v. State , 871 S.W.2d 726, 731 (Tex. Crim. App. 1994). "Initially, we determine whether error occurred and then evaluate whether sufficient harm resulted from the error to require reversal." Wilson v. State , 391 S.W.3d 131, 138 (Tex. App.—Texarkana 2012, no pet.) (citing Abdnor , 871 S.W.2d at 731–32 ).

"[T]he jury is the exclusive judge of the facts, but it is bound to receive the law from the court and be governed thereby." TEX. CODE CRIM. PROC. ANN. art. 36.13 (West 2007). "A trial court must submit a charge setting forth the ‘law applicable to the case.’ " Lee v. State , 415 S.W.3d 915, 917 (Tex. App.—Texarkana 2013, pet. ref'd) (quoting TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007) ). "The purpose of the jury charge ... is to inform the jury of the applicable law and guide them in its application. It is not the function of the charge merely to avoid misleading or confusing the jury: it is the function of the charge to lead and prevent confusion." Id. (quoting Delgado v. State , 235 S.W.3d 244, 249 (Tex. Crim. App. 2007) ).

The Texas Code of Criminal Procedure "specifically sets out three lengthy, alternative jury charges concerning the parole law; and those are to be chosen based on a very exacting and at least potentially confusing set of conditions." Stewart v. State , 293 S.W.3d 853, 855 (Tex. App.—Texarkana 2009, pet. ref'd) (citing TEX. CODE CRIM. PROC. ANN. art. 37.07, § 4(a) – (c) (West 2018) ). "Depending on the offense of which a defendant has been convicted, whether his ... sentence is to be enhanced, and whether a deadly-weapon finding has been made ..., the trial court is to select which one of the three alternatives will be given to the jury." Id. at 855–56. Murrieta contends that the trial court instructed the jury under the incorrect subsection.

2. Application of the Standard of Review

The trial court’s charge on punishment 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 time earned equals one-half of the sentence imposed. Eligibility for parole does not guarantee that parole will be granted.

Murrieta argues that the charge should have been based on Article 37.07, Section 4(c), which reads, in pertinent part:

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. ANN. art. 37.07, § 4(a) (emphasis added).

Murrieta is correct that the trial court erred in instructing the jury that Murrieta’s good conduct time could expedite his eligibility for parole. The instruction in Section 4(a) should be given in the trial of "an offense listed in Article 42A.054(a)," and aggravated sexual assault of a child is listed in Article 42A.054(a). TEX. PENAL CODE ANN. § 22.021 (West 2019) ; see TEX. CODE CRIM. PROC. ANN. art. 37.07, art. 4(a), 42A.054(a)(8) (West 2018). Accordingly, the trial court erred in instructing the jury under Section 4(c). See TEX. PENAL CODE ANN. § 22.021 ; see TEX. CODE CRIM. PROC. ANN. art. 37.07, § 4(a), art. 42A.054(a)(8). Having found error, we must determine if the error was harmful.

B. Was the Trial Court’s Error Harmful?

1. Standard of Review

The level of harm necessary to require reversal due to jury charge error is dependent upon whether the appellant properly objected to the error. Abdnor , 871 S.W.2d at 732. Here, because Murrieta did not object to the charge, we will not reverse unless the record shows the error resulted in egregious harm, Ngo v. State , 175 S.W.3d 738, 743–44 (Tex. Crim. App. 2005) (citing Almanza v. State , 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh'g)), such that he did not receive a fair and impartial trial. See Almanza , 686 S.W.2d at 171 ; Loun v. State , 273 S.W.3d 406, 416 (Tex. App.—Texarkana 2008, no pet.). "Jury-charge error is egregiously harmful if it affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory." Stuhler v. State , 218 S.W.3d 706, 719 (Tex. Crim. App. 2007). In making this determination, we review "the entire jury charge, the state of the evidence, the argument of counsel, and any other relevant information in the record as a whole." Villarreal v. State , 205 S.W.3d 103, 106 (Tex. App.—Texarkana 2006, pet. dism'd, untimely filed) (citing Almanza , 686 S.W.2d at 171 ). Direct evidence of harm is not required to establish egregious harm. Hutch v. State , 922 S.W.2d 166, 171 (Tex. Crim. App. 1996).

Courts generally agree that the statutory parole instructions were designed to favor the State and to increase sentences. See Arnold v. State , 786 S.W.2d 295, 300 (Tex. Crim. App. 1990). However, the instructions can also help the defendant, because the jury could learn that the defendant would serve longer than it expected and could be influenced to assess less time. Hooper v. State , 255 S.W.3d 262, 272 (Tex. App.—Waco 2008, pet. ref'd) ; Williams v. State , 975 S.W.2d 375, 378 (Tex. App.—Waco 1998, pet. ref'd).

2. Application of the Standard of Review

As noted, the jury was erroneously instructed that good conduct time could be considered in determining when Murrieta would be eligible for parole. See TEX. CODE CRIM. PROC. ANN. art. 37.07, § 4(a), (c). However, one paragraph after the erroneous instruction, the charge instructed the jury that it could "consider the existence of parole law and good conduct time," but it was "not to consider the extent to which good conduct time may be awarded to or forfeited by this particular Defendant." It also instructed the jury "not to consider the manner in which the parole law may be applied to this particular Defendant." We presume the jury followed the instructions given in the charge. See Thrift v. State , 176 S.W.3d 221, 224 (Tex. Crim. App. 2005) ; Luquis v. State , 72 S.W.3d 355, 366 (Tex. Crim. App. 2002). A curative instruction, in combination with other factors, may cure any error. See Igo v. State , 210 S.W.3d 645, 647 (Tex. Crim. App. 2006). Here, the jury did not send any notes to the trial court regarding parole or its effect on Murrieta’s length of incarceration, and there was no testimony asserting juror misconduct. There is nothing else in the record to indicate the jury failed to heed the trial court’s admonition against considering how the operation of parole might apply to Murrieta’s term of actual imprisonment.

There was also strong evidence supporting Murrieta’s forty-year sentence. For instance, it was undisputed that the bedroom door was blocked shut with a container of clothing and that Murrieta’s wife, Maria, found Murrieta naked in bed with six-year-old Nina, who was also naked. Maria testified that Nina told her that Murrieta had taken her clothes off. While pointing to her vaginal area, she told the Sexual Assault Nurse Examiner (SANE) that Murrieta had touched her with his "part." During her forensic interview the following day at the Children’s Advocacy Center, Nina denied making the outcry to the SANE nurse, but at trial she testified that Murrieta had hurt her on her private parts. Murrieta claimed that, while the child was sleeping in the bed with him, he used a lubricant to masturbate and then fell asleep. However, the jury could have rejected this testimony because Nina’s older sister, Elena, testified that Nina was covered, from navel to knees, in a lubricant and because Murrieta had no explanation for why Nina was naked.

There was also testimony from Maria and Elena that Murrieta tried to take her truck keys and cell phone to prevent Maria from leaving with the children. Murrieta texted Maria that, if she would "keep everybody out of it," he would be out of their lives, and prior to trial, Murrieta offered, in writing, to relinquish his parental rights to his and Maria’s other children in exchange for the case being dismissed. The jury could have reasonably viewed those actions as evidence that Murrieta knew he was guilty and that he was trying to avoid the consequences of his actions.

Also, Nina was just six years old at the time of the offense, and she was particularly vulnerable to Murrieta because she was, essentially, his stepdaughter. While there was no...