### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-08-00722- CR

Ralph L angley, Appellan t

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 390 TH JUDICI AL DISTRICT NO. D-1 -DC- 08- 2006 37, H ONO RAB LE JULIE H . K OCUREK , JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

A jury convicted appellant Ralph L ang ley of murder, see Tex. Penal Code Ann. § 19.02 (West 2003), and sentenc ed him to forty -three y ear s in prison. L ang ley argue s t h at the trial court erre d in admitting certain evide n ce , i n d eviating from statutorily mandated lang uag e in submitt ing the parole law instruction to the jury , in failing to comply with th e code of criminal
proce dure, and in failing to clar ify the parole law instruction in response to the jury ’s written reque st. We affir m the judgme nt of the district court. Since the spring of 2007, Ralph L ang ley and h i s wife, L ori, had been living in sepa rate residenc es and wer e in the proce ss of g etting a divorce

. L ang ley rema ined in the family home with his nineteen- y ear -old son, J oshua, and L ori moved into a residenc e a short distance

awa y . The c ouple had a

nother a dult daug hter, Sara h, who re sided elsewhe re. I n September 2007, L ang ley boug ht a handgun. At some point afte r t his purchase , L ang ley showed the g un to his daug hter, Sarah, and told her that he wa n t ed t o k i l l both her momand himself. Upon hear ing this, Sarah asked L ang ley to sign a pact. Acc ording ly , he and his

daug hter signed the f

ollowing note, w ritten by L ang ley : “I

will kill neither L ori nor my self—(she fra nkly is not worth it . . . ).” On Fe bruar

y 1, 2008, L ang ley

walked out of

his residenc e, whe re he lived with his

son J oshua. J oshua heard the door open and close and saw L ang ley g etting into his pi ck u p t ruck. J oshua approa ched L ang ley and asked wher e he was g oing. L ang ley replied that he wa s “g oing to
g o kill [J oshua’s] mother.” J oshua attempted to calm L ang ley and preve nt him from leaving , but was

unsucce ssful. A few minutes later, L ang ley returne d home, g un in hand, and “said that he shot her” and that “he was g oing to kill himself.”

L ang ley went inside the home, put the g un on the dining room table, and called 911.
L ang ley told the dispatcher that he had jus t s h ot and killed his estrang ed wife. He explained that they wer e g oing throug h a divorce and that “it all went downhill when [L ori] decide d t o find somebody

else.” When police arr ived at L ori’s residenc e, they found her body

. She had sustained multipl e g unshot wounds and was pronounce d dead at t h e scene . Police office rs also arr ived at L ang ley ’s residenc e. They detained both L ang ley and J oshua. When a sear ch war rant was obtained, police also conducte d a search of L ang ley ’s hous e, from which they rec overe d the gun, L ang l ey ’s

wa l l et, an ammunition mag azine, and the written pact signe d by L ang ley and his daug hter. A DPS firea rm and tool mark ex aminer later determined t hat t he bull et recover ed from L ori’s b o d y ,
as well as a second bullet and the car tridg e case found at the crime scene , had all been fired from the
g un that had bee n rec overe d from L ang ley ’s home.

2On Fe bruar y 26, 2008, L ang ley was char g ed by indictment for the offe nse of murder. See id. On October 30, 2008, a jury found L ang ley g uilty as char g ed and, on October 31, 2008, assessed a sentenc e of forty -three y ear s in prison. L ang ley appea ls, challeng ing the admission of the pact with this daug hter, the tria l court’s pa role law submissi on to the j ury , and the pr ocedur e used and re sponse g iven following a question fr om the jury during jury

delibera tions.
I n his first and second issues, L ang ley arg ues t h at t he trial court erre d in admitting the pact betwe en h i m and his daug hter beca use it was seized in violation of article s 1.06 and 18.02(10) of the code of criminal proce dure. L ang ley arg ues that the pact is a “per sonal note”

or “per s o n al wr i t i n g” and, as such, cannot be rec overe d pursuant to a sear ch war rant. Fur ther,

acc ording to L ang ley , beca use the sear ch war

rant expressly authorized police to sear ch for
persona l notes, which is expressl y p ro h i b i t ed by the code of criminal proce dure, the war rant amounted to “an abuse of the war rant proce dure,” making the entire war rant invalid, and making any evidenc e seized pursua

nt to that warra

nt inadmissibl e. Article 18.02( 10) provides:

A sea rch w arr ant may

be issued to sea

rch f or and se ize:

. . . (10) proper

ty or i tems, except the personal writing s by the accused, constituti ng evidenc e of an offe nse or constitutin g evidenc e tending to show that a particula r per son committed an offe nse . . . .

T ex. Code Crim. Proc. Ann. art. 18.02(10) (West 2005). Courts have construed the t er m “per sonal writing s” to m ea n t h o s e writing s such as diaries, memos, and journals that wer e
not intended by the writer to be published to third parties. Mul l i ca n v. State , 157 S.W .3d 870, 3873 (Tex. App.—For t Worth 2005, pet. ref ’d); Porath v. State , 148 S. W

. 3 d 4 0 2 , 409 (T ex . App.—Houston [14t h Dist.] 2004, no pet.); Ree ves v. State , 969 S.W .2d 471, 486 (Tex. App.—Waco 1998, pet. re f’ d ), ce r t. denied , 526 U.S. 1068 (1999). The purpose of the exception, courts h av e concluded, is to provide protec tion from sear ches desig ned to find written evidenc e by which a person might incriminate himself. Porath , 148 S.W .3d at 409 (citing Ree ves , 969 S.W .2d at 483). Citi ng these princ iples, the Dallas Court of A ppeals he ld that letters, written by the defe ndant, that had been stamped, seale d, addre ssed, and wer e rea dy to ma il did not qua lify

as persona l writing s, explaining that the deter mining fac tor is the writer’ s intent, not whether t h e writing s wer e actua lly rea d. Cavazos v. State , No. 05-05-01352- CR, 2006 Tex. App. L EXI S 9332, at *29 (Te x . App.—Dallas O ct. 27, 2006, pet. re f’d) (mem. op., not desig nated f or publication). Her e, apply ing the same principle that a writ i n g does not qualify as a “per sonal writing ” within the meaning of article 18

. 0 2 (1 0 ) i f its author intends that it be rea d by others, we h o l d that the pact, written by L ang ley —but signe d by both L ang ley and his daug hter—doe s not
q u al i fy as a persona l writing

. The pact, an agr eeme nt betwee n L ang ley and S ara h, was written at Sarah’ s reque st. The pact was not only intended to be read by a thi rd par ty , but was actually both

rea d and signe d by a third party

. I n addition, police rec overe d the note in the kitc h en ar ea of the family home among other paper s. The rec ord shows that the note was easily acc essible to L ang ley ’s
son, J oshua, and indeed, J oshua testified that he thought he had seen the note bef o re . I n these circ umstances, th e p ac t does not qualify as a “per sonal writing ” within the meaning of article 18.02(10). Ac cording ly , we ove rrule L ang ley ’s first and se cond issues.

4I n his third issue, L ang ley arg ues that the district court err ed in rea rra ng ing statutorily mandated lang uag e in the parole law instruction. The specific para g raph at issue is the following : 1

Under the l aw ap plicable in this case , if the defe ndant is sentenc ed to a term of imprisonment, he will n ot become elig ible for parole until the actua l time serve d equals one half of the sentenc e imposed or 30 y ear s, whicheve r is less, without consideration of any g ood conduct time he ma y ear n. I f the de fenda

nt is sentenced to a term of less than four y ear s, he must serve at least two y ear s befor e he is elig ible for pa role.

L ang ley complains that the entire para g raph set out a bove was moved to the end of the instruction in what he contends wa s an attempt to “hig hlight the informational para g raph while diminis hing the impact o f the admonishment para g raph, leading the jury to wonder whether it could discuss during its de liberations the minimum time tha t the defe ndant would be re quired to se rve befor e he would become elig ible for parole .” L ang ley conclude s: “Ultimately , this err or led the jury to wonder whether it could arr i v e at a sentenc ing rec ommendation by deciding how much time Appellant should serve a

nd then doubling tha

t number.” Even acc epting L ang ley ’s arg ument that the district court err ed by not submitt ing the parole instr u cti on exactly as set out in article 37.07(4)( a) of the code of criminal proce dure,

reve rsal is not war

rante d. Where, as here , no objection is made to the char g e at trial, we reve rse for char g e error only if the record shows that the er ro r caused egr eg ious harm. See Almanza v. Stat e ,

I n the heading to this section, L ang ley also complains about the omission of statutorily 1 mandated lang uag e from the inst ru ction, but his briefing only addre sses the rea rra ng ement of the para g raphs, not any

omission from the char g e. To the ex tent that L ang ley also arg ues that he w as harme d by the omission of the phrase s “or 30 y ear s, whicheve r is le ss” and “if he is se ntence d to a term of imprisonment,” this arg ument h as b ee n inadequa tely briefe d and is waived. See Tex. R. App. P. 38.1(i). 5686 S.W .2d 157, 171 (Tex. Crim. App. 1985). Harm must be a ctual har m and must be evidenc ed in the rec ord. Id.

Her e, there is no ind i cation that reloc ating the para g raph would have adver sely aff ecte d the jury ’s sentenc ing decision. The portion of the instruction at issue simply explains when the def endant would be come e ligible f or par ole. I t ne ither sug g ests that the jury should a rrive at a
sentenc ing rec o m m en d at i o n by deciding how m uch ti me L ang ley should serve and then doubling that number nor neg ates the admonishment s et out in the previous para g raph, which prohibits
t h e jury from considering how the parole law would be applied to L ang ley

. Be cause the ju ry i s presumed to follow a trial court’s instructions as g iven, see Colburn v. State , 966 S.W .2d 511, 520 (Tex. Crim. App. 1998), here we presume that the jury followed the trial court’s instructions not
to consider how the parole law would have specific ally applied to L ang ley

. More impo rt antly , howeve r, L ang ley cites to nothing in the rec ord—and our revie w has reve aled nothi n g i n t he

rec ord—that shows actua l harm suffe red as a result of the para g raph rea rra ng ement, as require d by Almanza

. See 686 S.W .2d at 171. Acc ording ly , we ove rrule L ang ley ’s third issue.

L ang ley ’s fourth and f

ifth issues conce rn a note sent by the jury to the trial court in whi ch t h e jury reque sted clar ification of the parole law instruction. L ang ley arg ues that the trial court failed to follo w s ec t i o n 36.27 of the code of criminal proce dure in deter mining how to respond and that the court err ed in the substance of its response , ref using to provide clar ification to the jury

. See Tex. Code Crim. P roc. A nn. art. 36.27 (West 2006).

The jury ’s note re ad as f

ollows:
Parag raph 5 sa

y s

6“You may consider the exis tence of the parole law and g ood conduct time.”

I t also say s “You are not to consider the manne r in which pa role lawmay

be applied to this particular de fenda

nt.” Please clar ify

. For example, can we say , “I f the defe ndant was sentenc ed X, he may only serve 1⁄2X” a s part of our delibera tion.

The trial c ourt responde d with the following written instruction:

I n reg ard to y our jury questions 2 and 3, the Court instructs y ou that all the law that is applicable to this case is contained in the Court’s Char g e on Punishment.

Section 36.27 of the c ode of c riminal proce dure pr ovides, in releva nt part:

The c ourt shall answe r any such communication in writing, a nd befor e g iving suc h answe r to the jury shall use rea sonabl e d i l ige nce to secur e the prese nce of the defe n d ant and his counsel, and shall first submit the question and also submit his answe r to the same to the de fenda nt or his c ounsel or objections and exceptions, in the same manner as any o ther written instructions are submitt ed to such counsel, befor e t h e co u rt gives such answe r to the jury , but if he is unable to secur e the prese nce of the defe ndant and his counsel, then he shall proce ed to answe r the same as he deems proper. The written instruction or answer to the communi cation sh al l be re ad in open c ourt unless expressly waived by

the def endant. All such proce eding s in felony case s shall be a part of the rec ord and rec orded by the court re porter.

Id. Acc ording to L ang ley , with the exception of the “in writing ” require ment, the trial court failed to follow any

of these pr ocedur es. Although L ang ley is corr ect that “the rec ord fails to ref lect that the trial court complied with a

ny of the rema ining require ments of the statute,” it is also true that the rec ord fails
to ref lect that the trial court did not comply with the require men t s. The rec ord is simply silent. Nothing in the rec ord shows whet h er or when L ang ley was notified about the jury ’s question, 7and ther e is no indication that L ang ley objected to the t rial cour t’s answe r. When, as her e, we are prese nted with a silent rec ord, we presume not that the court failed to comply with article 36.27, as L ang ley sug g ests, but that the court did, indeed, comply with article 36.27’s require ments. See W ord

v. State , 206 S.W .3d 646, 652 (Tex. Crim. App. 2006). I n addit i on, there is no indication that
L ang ley objected to the trial court’s failure to make all article 36.27 proce eding s “a part of the rec ord and re corde d by

the cour t reporte r,” a

nd he has, there fore , failed to pre serve this iss ue for revie w. See id. As to the substance of the court’s answe r, which declined t o fu rt her clar ify the statutory lang uag e of article 36.27, we also find no err or. The trial court ref used to elabor ate on—or add to—the statutorily mandated lang uag e in article 36.27. Rather, the court ref err ed the jury back to the lang uag e as se t out in article 36.27. L ang ley points to not hing in the r ecor d to show that he suffe red actua l harm by the trial court’s ref usal to deviate from the statutorily mandated lang uag e. See A lmanza , 686 S.W .2d at 171. Acc ording ly , we ove rrule L ang ley ’s fourth a nd fifth issues. Having overr

uled ea ch of L ang ley ’s issues, we a ffirm the judg ment of convic tion.

__________________________________________ G. Alan Waldrop, Just ice Be fore Chief J ustice Jones, J ustices Waldrop and He nson Affir med Filed: Apr il 23, 2010 Do Not Publish 8