Opinion
Nos. 05-04-00185-CR, 05-04-00186-CR
Opinion issued October 15, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 194th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F01-42892-Pm F01-42921-PM. Affirmed.
OPINION
A jury convicted appellant Michael Bryant of separate offenses of sexual assault of a child and aggravated sexual assault of a child and assessed his punishment at twenty years' and forty years' imprisonment, respectively. Tex. Pen. Code Ann. §§ 22.011(a)(2)(C), 22.021(a)(1)(B)(iii) and (2)(B) (Vernon 2003). Appellant contends the trial court reversibly erred by including some, but not all, possible probation conditions in the jury charge at punishment. Concluding no reversible error has been shown, we affirm. The two complainants were appellant's stepdaughters. Appellant married Nina Bryant, their mother, when the complainants were two and three years old. When the complainants were in elementary school, appellant began sexually abusing them. In September of 2000, after a counselor reported the sexual abuse to law enforcement officials, Nina learned of the abuse. During the police investigation, two interviews with appellant were videotaped. During a videotaped interview, appellant admitted to having oral sex with both children. Nina asked appellant to leave the home. Thereafter, the family attended counseling sessions, during which appellant admitted to "fondling and touching and kissing" his stepdaughters. In April of 2001 the entire family, including appellant, moved from Dallas to Virginia. When the court discovered appellant was again living in the home, appellant was ordered to move out. Appellant was indicted for the respective offenses. The indictment in each case charged appellant with knowingly and intentionally causing the sexual organ of the child to contact appellant's mouth. At the time of the trials, the complainant in the sexual assault case was 19 years old and the complainant in the aggravated sexual assault case was 18 years old. The 19-year-old complainant testified that appellant began the sexual abuse when she was in the sixth grade. As she got older, appellant showed her pornography on the computer, touched her vaginal area and breasts, and engaged in oral sex with her. The abuse occurred two or three times a week over a multiple-year period. The 18-year-old complainant testified appellant began the sexual abuse with her when she was in elementary school. He touched her vagina and breasts, put his mouth on her vagina and his penis in her mouth, and watched pornography with her. Appellant's videotaped interviews were admitted into evidence before the jury. Appellant also testified at trial and admitted he committed the offenses as alleged in the indictments. He explained that he pleaded not guilty "because the person that did those things is not the same person that [appellant is today]." Appellant told the jury he was sick when he committed the offenses but, through counseling, he had changed. After the jury found appellant guilty, punishment evidence was presented to the jury. Both complainants and their mother testified for the defense at punishment and asked the jury to recommend probation. The jury, however, did not. Instead, the jury assessed appellant's punishment at twenty years' imprisonment for the sexual assault and forty years' imprisonment for the aggravated sexual assault of a child. Without objection, the punishment charge in each case contained some, but not all, of the possible conditions of probation. Because appellant did not object to the jury charges at trial, reversal on appeal is required only if appellant can show egregious harm. See Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985) (op. on reh'g). Appellant contends he was egregiously harmed because (a) the jury charge set out some, but not all, the possible conditions of probation, and (b) some mandatory conditions were incorrectly characterized as being discretionary by the trial court's use of the term "may." Appellant seeks a new punishment hearing. See Tex. Code Crim. Proc. Ann. art. 44.29(b) (Vernon Supp. 2004-05). The trial court, not the jury, sets the conditions of probation. See Tex. Code Crim. Proc. Ann. art. 42.12 § 11(a) (Vernon Supp. 2004-05). Notwithstanding, in 1974 the court of criminal appeals stated it was good practice for a trial court to set out possible probation conditions in the jury charge. See Flores v. State, 513 S.W.2d 66, 69 (Tex.Crim.App. 1974). Appellant correctly recognizes that since Flores, several courts have held it is not error to completely omit possible probation conditions from the court's charge. One of our sister courts has held that a trial court is required to enumerate in the court's charge the specific statutory terms and conditions of probation that might be imposed upon a proper objection or request. See Brass v. State, 643 S.W.2d 443, 444 (Tex.App.-Houston [14th Dist.] 1982, pet. ref'd), overruled by Yarbrough v. State, 779 S.W.2d 844 (Tex.Crim.App. 1989) (per curiam). This court, however, has declined to follow the holding in Brass. See Yarbrough v. State, 742 S.W.2d 62, 63-64 (Tex.App.-Dallas, 1987), pet. dism'd, improvidently granted, 779 S.W.2d 844 (Tex.Crim.App. 1989) (per curiam) (rejecting the holding and reasoning in Brass). This court went on to hold that even if the trial court erred in not enumerating all the potential conditions of probation, any error would be harmless under Almanza. Yarbrough, 742 S.W.2d at 64. Although appellant acknowledges those cases holding it is not error to fail to list any of the conditions, he contends they are distinguishable from the circumstances here where the trial court enumerated some, but not all, of the possible conditions. Appellant relies on Ellis v. State, 723 S.W.2d 671, 672-73 (Tex.Crim.App. 1986), in arguing that giving the jury erroneous information about probation conditions is reversible error. The State responds that Ellis is distinguishable and, moreover, appellant has mischaracterized its holding. In Ellis, the jury was instructed on some, but not all, of the potential probation conditions. The chief probation officer first testified on direct that the trial court was not limited to the enumerated conditions of probation set out in the court's charge. However, on cross-examination, he testified the judge was so limited. In Ellis, the jury charge instructed the jury the trial court could impose only certain enumerated conditions of probation. The court of criminal appeals held the charge was erroneous because (i) it failed to list all the conditions authorized by the code, and (ii) it incorrectly stated that the trial court was limited to the statutory conditions. Ellis, 723 S.W.2d at 673. In addition, contrary to the holding of the court of criminal appeals in Flores, the State argued that certain statutory conditions of probation were too vague to be enforced. Moreover, during closing arguments, both attorneys argued that the enumerated conditions were the only possible conditions the trial court could impose on the appellant. The court in Ellis specifically noted that Ellis had presented evidence favorable to probation: he was a young, gainfully employed, first offender who had the respect of his co-workers and was active in his church and several church organizations. The court concluded that the closely contested issue of probation, together with the erroneous information about the conditions of probation the court could impose, resulted in an unfair trial; thus, the court reversed and remanded. Here, no objections were made to either charge as given, nor were any additional instructions requested. Although the charges included some, but not all, of the conditions of probation, neither purported to include all possible conditions of probation. To the contrary, each charge stated that the enumerated conditions of probation were not exclusive and the trial court could impose any other conditions of community supervision the court deemed reasonable. Unlike Ellis, the jury in these cases was specifically instructed the trial court was not limited to the statutory conditions. We agree that Ellis is factually distinguishable. Inasmuch as appellant neither objected to the charges at trial nor has shown any egregious harm by the charges as given, reversal is not required. Consequently, we affirm each case.
Appellant cites Cortez v. State, 955 S.W.2d 382 (Tex.App.-San Antonio 1997, no pet.); McNamara v. State, 900 S.W.2d 466 (Tex.App.-Fort Worth 1995, no pet.); Yarbrough v. State, 742 S.W.2d 62 (Tex.App.-Dallas 1987), pet. dism'd, improvidently granted, 779 S.W.2d 844 (Tex.Crim.App. 1989); Valenciano v. State, 705 S.W.2d 339 (Tex.App.-San Antonio 1986, pet. ref'd).
Of course here there was no objection or request.