### 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. 03-12-00553- CR

Johnn y Esparza, Appellan t

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 299 TH JUDICI AL DISTRICT NO. D-1 -DC- 11- 5002 97, H ONO RAB LE KAREN SAGE, JUDGE P RESIDING

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

A jury convicted appellant J ohnny Esparza of the offe nse of sexual assault. See Tex. Penal Code § 22.011(a) (1). The jury found two of the enhanc ement para g raphs alleg ing prior felonies to be true and, pursuant to the habitual offe nder punishment provision of the Penal Code, assessed punishment of confin em en t fo r ninety -nine y ear s. See id

. § 12.42(d). I n four points of

err or, appellant cha l leng es the admission of evidenc e and the trial court’s char g e to the jury and seeks to ref

orm the judgme nt. For the following rea sons, we m o dify the judgme nt and, as modified, aff

irm. BACK GR OUND On Aug ust 14, 2011, appellant and N.G. wer e inmates in the trustee unit at the Travis County Correc tional Complex (TCCC) and had bunk b ed s n ex t to eac h other. The unit housed up to 24 inmates in the same room with an adjoining bathroom are a. N.G. was alone in thebathro o m ar ea when he was pushed into a shower stall and sexually assaulted. His anus was

penetr ated by

the other pe rson’s penis. A few day s later, N.G. repor ted the sexual assault. The Travis County Sheriff ’s Offic e was contac ted and beg an an investigation. As part of the investiga tion, a nurse did a sexual assault examination on N. G. , and N.G. identified appellant as the assailant. A war rant for appella n t ’s ar re s t was issued, and he was indicted for the offe nse of sexual assault, enhanc ed by prior fe lony

convictions in four pa

rag raphs. Appellant pleade d not g uilty , and the jury trial occur red in J uly 2012. The witnesses for the State included an office r who was on duty at the unit on August 14, 2011, N.G., the deputy with the Travis County Sheriff’ s Offic e who met with N.G. afte r N.G. repor ted the sexual assault,

a nurse at TCCC who was g iven a note by N.G. descr ibing the sexual assault, a detec tive who investigated the assault, two fore nsic scientists with the DNA section of the Depa rtment of Public Safety crime labora tory , the sexual assault nurse examiner, a victim counselor who had contac t with N.G., and a lieutenant who p ro v i d ed additional information about the phy sical lay out and proce dures at the unit. N.G. descr ibed the sexual assault and identified appellant as t he assailant in front of the jury

. The State’s evidenc e also showed that, a few day s afte r the sexual assault, N.G. had a cut on his arm, abra sion on his penis, and tear s and abra sions in his anus. Appellant did not testify and did not call any

witnesses. The jur

y found appe llant guilty

. The punishm ent phase of the t rial occurre d the foll owing day and was tried t o the

same jury

. The State waived paragra p h t h ree of the enhanc ement para g raphs and prese nted

ev idence of appellant’ s convictions as to the other enhanc ement para g raphs. The State called

2investigators who wer e fing erpr int examiners. One of the investi gat o rs al s o testified about

threa tening statements made by appellant when the investiga tor was attempting to take appellant’ s fing erpr ints shortly afte r the g uilt phase of the trial conclude d. Acc ording to the investigator, among other threa ts, appellant told him that he “would kill [t h e i n vestig ator]” if he “saw [t he investigator] o n t he street.” The State’s exhibi ts included penitentiary packe ts and copies of the judgme nts of prior convic tions.

Appellant testified during the punishment phase. On cross-e x amination, appellant admitted to additional pr ior convictions and took “f ull responsibilit y ” for

his backg round and his conduct and statements after t h e j ury found him g uilty

. The jury found two enhanc ement para g raphs true and assessed punishment at confine ment for ninety -nine y ear s. The trial court

cer tified appe llant’s rig ht to appeal, a nd this appeal followe d.

DISCUSSIO N Evid entiary Challenge

I n his first point of err or, appellant contends that the trial court abused its discretion by admitting evide nce dur ing the g uilt or innocenc e phase of t he trial showing that appellant had previously been in prison and was probably g oing back. Specifica lly , appellant challeng es the admission of evidenc e that appellant told N.G. during the assault “[t] hat he’s been in prison, [and] he’s probably g oing back.” Appellant contends that the trial cour t err ed when it overr uled his “unfa ir prejudice ” objection to this evidenc e based on Rule 403 of the Rules of Evidence

. See Tex. R. Evid. 403. He argues that the S t at e d i d not need “to resor t to labeling [appellant] a convict heade d back to pr ison.”
3We revie w a trial court’s ruling on the admission of evidence for an abuse of

discreti o n . T

i l l man v. State , 354 S.W .3d 425, 435 (Tex. Crim. App. 2011); Sandoval v. State , 409 S.W .3d 259, 281 (Tex. A pp.—Austin 2013, no pet.). We c onsider the ruling in light of what

was befor e the trial court at the time the ruling was made and uphold the court’s decision if it lies within the zone of rea sonable disag ree m en t

. Billodeau v. State , 277 S.W .3d 34, 39 (Tex. Crim. App. 2009); Sandoval , 409 S.W .3d at 281.

Rule 403 of the Texas Rules of Evidence allows for the exclusion of otherwise rele vant evidenc e when “its probative value is substantia l l y outweig hed by the dang er of unfair prejudice .” Tex. R. Evid. 403. “Rule 403 favor s the admission of rele vant evidenc e and car ries a presumption that rele vant evidenc e wi ll be more probative than prejudicia l.” Davis v. State , 329 S.W .3d 798, 806 (Tex. Crim. App. 2010) (citing W illiams v. State , 958 S.W .2d 186, 196 (Tex. Crim. App. 1997)). “I t is only when there exis ts a clea r disparity betwee n the deg ree of prejudice produce d by the offe red evidenc e and its probative val u e t h at Rule 403 is applicable .” Id

. Our analy s i s under Rule 403 includes, but is not limit ed to, the following fac tors: (1) the probative value of the evidenc e, (2) the potential to i m p re s s t h e j ury in some irrational y et indelible way , (3) the time neede d to develop the evidenc e, and (4) the proponent’s nee d for the evidenc e. Hernande z v. State , 390 S.W .3d 310, 324 (Tex. Crim. App. 2012), cert. denied , 134 S. Ct. 823 (2013) (citing Montgomery v. State , 810 S.W .2d 372, 389–90 (Tex. Crim. App. 1990)); Shuffield v. State , 189 S.W .3d 782, 787 (Tex. Crim. App. 2006).

Appellant conce des that the evidenc e “had marg ina l r e le v a n c e ” to th e is sue of N.G.’s
consent and that the time neede d to develop the evidenc e weig hed in the State’s favor but contends

4that the evidenc e could have led the jurors to convict appellant based on previous incar cer ation and

that the State did not need this evidenc e. Be cause the assault occur red at the TCCC, howeve r, the jury was alre ady awa

re that appellant wa s an incar cer ated individual as a result of a previous incident. Fur

ther, the evidenc e showed that N.G. was larg er than appellant, and one of the defe nsive theories advanc ed was the lack of evidenc e that any one hear d the assault. The evidenc e provided an explanation as to why N. G. d i d n o t y ell, fig ht back, or seek help at the time of the assault. N.G. testified that appellant’s state ments made him “[r]eally scar ed.” We conclude that the cha lleng ed evide nce’ s probative value was not substantially outweig hed by the dang er of unfair prejudice

. See Tex. R. Evid. 403. Thus, we conclude that the trial court did not abuse its discretion when it overr uled appellant’ s objection and admitted this evidenc e. We over

rule a ppellant’s first point of er ror. Jury Charge I n his second and third points of err or, appellant contends that he suffe red eg reg ious harm as a result of the trial court improperly instructing the jury on the law of parole elig ibilit y and “as a result of t h e co u rt ’s char g e allowing the jury to sentenc e [appellant] as a habitual criminal without a finding of sequenc ing of at least two prior convictions.” Appellant’s points of err or are direc ted to the punishment phase c harg e.

We revie w alleg ed jury -cha rg e err or in two steps: first, we deter mine whether err or exis ts; if so, we then eva luate whether sufficient harm resulted from the error to re quire re versa l. Kirsch v. State , 3 5 7 S

. W.3d 645, 649 (Tex. Crim. App. 2012); Ngo v. State , 175 S.W .3d 738, 743-44 (Tex. Crim. App. 2005); Swearingen v. State , 2 7 0 S .W.3d 804, 808 (Tex. App.—Austin
52008, pet. ref ’d). Appellant did not raise the objections to the char g e in the trial court that he now raises on appea l. Thus, any err or must be “funda mental,” and reve rsal is require d only if the err or

was so eg reg ious and cre ated such harm that the defe ndant “has not had a fair and impartial trial.” See Barrios v. State , 283 S.W .3d 348, 350 (Tex. Crim. App. 2009) (quoting Almanza v. State , 686 S.W .2d 157, 171 (Tex. Crim. App. 1985)). Parole Eligibili ty Instruction The State concede s that the jury instruction reg arding g ood conduct time was

er ro n eous. The jury should have been instructed that appellant would be elig ible for p ar o l e “without considera

tion of any g ood time [he] may ear n.” See Tex. C o d e Crim. Proc. art. 37.07, § 4 (a ); s ee also id

. art. 42.12, § 3g (a) (1)( H). The jury , howeve r, was instructed that appellant “[would] not become elig ible fo r p ar o le until the actua l time serve d plus any g ood conduct time

ear ned equals one-ha lf of the sentenc e imposed or 30 y ear s, whicheve r is less.” (Emphasis added.) Thus, the controlling issue is whether this er ror c aused e g reg ious harm. Appellant focuse s on a question by the jury about t h e d i ff erence betwee n a life
sentenc e and ninety -nine y ear s to support his contention that the err or cause d eg reg ious harm. But, if the jury was conce rned with parole , a sentenc e of six ty y ear s would have been sufficie nt to insure
t h e m ax i m um time in prison without parole

. See Cueva v. State , 339 S.W .3d 839, 853 (Tex

. App.—Co rp u s C h ri sti 2011, pet. ref’d) (noting that thirty -y ear term applies to any sentenc e over six ty y ear s for purposes of parole so that there is “no parole -base d incentive t o l eng then the
sentenc es bey ond six ty y ear s, and it is rea sonable to conclude t h at t h e jury chose seventy -y ear sentenc es for

other re asons”)

. 6Fur ther, im mediately befor e the parag raph containing the erroneous langua g e, the char g e re ads:

I t c annot acc urate ly be predic ted how the parole law and g ood conduct time mig ht be applied to this def

en d an t if he is sentenc ed to imprisonment, beca use the application of these laws will depend upon decisions made by prison and paro l e authorities. You may consider the exis tence of the parole law and g ood conduct time. Howeve r, y ou are not to consider the extent to which g ood conduct time may be awarde d or forf eited by this particula

r defe ndant. You are not to consider the manner in which parole law may

be applied to this particula r def endant. During closing argument, the State also explained to the jury that they should not attempt to apply parole law and g ood conduct time to appe llant.

We are g u i d ed b y the court of criminal appea ls’ analy sis in Igo v. State , 210 S.W .3d 645 (Tex. Crim. App. 2006). Simi lar to the instruction here , the jury was err oneously instructed that the defe ndant “would not become elig ible for parole until the actua l time serve d, plus g ood time, equaled one -four th of the sentenc e imposed.” Id. at 646. I n that case , the jury should have been instructed that the defe ndant “would not become elig ible for parole until the actua l time

serve d, without

considering good time , equale d one-half of the sentenc e imposed.” Id . (empha sis in orig inal). The court found no eg reg ious harm. Id . at 647. I n its analy sis, the court noted that, althoug h the def

endant r ece ived the maximum sentenc e, other fac tors mitigated ag ainst a finding of eg reg ious harm. Id . The c ourt consider ed the inclusion of “ standard curative lang uag e [i n the parole instruction] admonishing the jury not to consider the e x tent to which the par ole law mig ht

7be applied to the defe ndant,” counsel’s arguments on punishment that did not mention parole , and

the streng th of the evide nce r elating to punishment. Id

.

Simi lar to the parole instruction to the jury in Igo , the jury was in s t ru ct ed n ot to consider the extent to which the parole law might be applied to appellant. See id. Counsel in their arguments also did not focus on when appellant would be elig ible fo r p ar o l e, and the evidenc e prese nted at punishment was very strong

. See id. (finding “the evidenc e rela ting to punishment was exceptionally strong ” to support no eg regio us harm as to err oneous instruction on g ood conduct time). The State prese nted evidenc e of four prior felony convictions of offe nses, including assault family violence a

nd ag g ravated assault, resulting in thr ee separ ate trips to prison, as well as other convictions. Oth er ev i d ence showed that appellant had threa tened to kill one of the fing erpr int examiners afte r the jury ’s verdic t of g uilty , and appellant admitted to additional convictions during

cross-e x amination. Additionally , the jury was fre e to consider the nature of the instant offe nse and the fac t that this assault was committed in the TCCC

. Acc ording ly , we conclude that the err or in the instruction did not cause eg reg ious harm and overr ule appellant’ s second point of err or. See id. at 646–47. Sequenc ing of at L east Two Prior Convictions I n his third point of err or, appellant contends t h at he suffe red eg reg ious harm beca use the court’s char g e allowed the jury to sentenc e him as a habitual criminal without a finding of sequenc ing of at least two prior convictions. See Tex. Penal Code § 12.42(d) (re quiring second felony conviction to be for offe nse that occur red afte r the previous conviction was final). Appellant focuse s on the following highlig hted lang uag e in the enha nceme nt para g raphs of

the cha rg e: 8The defe ndant, J ohnny Esparza, has been found g uilty by y ou of the felony offe nse

of Sexual Assault as alleg ed in the indictment. I n addition, the indictment alleg es f o r enhanc ement purposes that the defe ndant has previously been fi nally conv ic t e d of at least two f

elony of fenses. Specifica lly , the State acc uses the defe ndant of being convicted on the 3rd day of J uly , 1996, in Cause No. 96-CR-1 6 09-F in the 214 J udicial District Court of t h Nuec es County , Texas, for the felony offe nse of Bur g lary of a Habitation. The State further alleg es that this conviction beca me a final conviction befor e the commission of the off ense of which the de fenda

nt is accuse d in the next parag raph. The State f

urther accuses the defend ant of being conv i ct ed o n th e 7th day of June, 2001, in Ca u s e No. 00-CR- 3554-C in the 94 Judi cial District Court of th Nuece s County, Texas, for the felon y off ense of Robb ery oron the 7th day of June, 2001, in Cause No. 00-CR- 3426-C in the 94th Judi cial District Court of Nuece s County, Texas, for the felon y off ense of Aggravat ed Assault. The State fu rther alleges that this conviction becam e a fi nal conviction before the com m ission of the off ense of wh ich the defend ant is accused in the next paragraph. The State further acc uses the defe ndant of being convicted on 19 day of May , 2009, t h in Cause No. 09-CR-0540-A in the 28th J udicial District Court of Nuec es County , Texas, for the felony offe nse of Assault Family Violence

. The State further alleg es that this conviction beca

me a final conviction befor e the commission of the offe nse of which the defe ndant is acc used in the indictment. The de fenda

nt has pleade d that these a ccusations are “ not true.” The rang e of punishments from which y ou must assess the defe ndant’s punishment there fore depends on whether y ou find that the State proved the prior conviction acc usations. I f the State does not prove at least one of the prior convictions are true, this offe nse is punishable by

a ter m of imprisonment from 2 to 20 y ear s. I f the S t at e p roves only one of the prior convictions are true, this offe nse is punishable by

a ter m of imprisonment from 5 to 99 y ear s or life. If the State proves the accusation of two or m ore prior convictions are true, this off ense is pun ishab le by a ter m of im prisonme nt from 25 up to 99 years or lif e and a f ine of no m ore t han $10,000

. 9Appellant contends that the highlig hted lang uag e permitted the jury to make a finding that appellant

was a habitual cr iminal on the basis of the two convic tions that occurr ed in J une 2001. The two offe nses i n the challeng ed enhance ment p ar agraph, howeve r, were lis ted in the disjunctive. The para g raph makes clea r that the jury could pick the offe nse of robber y “or” the offe nse of a g g rava

ted assault. As the State e x plained during closing argument,

So then he’s been incarcerated, he g ets out and he commits an ag g ravated assault and a robber

y . These are two crimes that are committed about the same time period and the convictions are to be considere d toge ther. So that’s why the char g e say s if y ou find that he’s convicted of ag g ravated assault or robber y , that can be one of the p enit entiary trips that y ou can consider in whether or not he’s enhanc ed or h e’ s habitual. So this i s one penitentiar y sentenc e. The idea is th at once a person g oes to prison, they should g et out and think to themselves, g olly , I never want to g o back to that pla ce ag ain, and may be confor m their beha vior and stop committing cr ime, but this defendant ha s not done that.

. . . So we have three separ ate trips to the penitentiary

. We have clea rly proven that he is habitual.

We conclude that the trial court’s enhanc ement para g raphs as to the two convictions in J une 2001

wer e not er

roneous. Fur ther, even i f t hey wer e, the err or di d not cause eg re gi o u s harm. As previously stated, the State prese nted evidenc e that appellant had four prior felony convictions, including for violent offe nses, resulting i n three separ ate trips to the penitentiary , as well as o t h er convictions. The State also explained to the jury during the trial that the enhanc ement para g raph in question was

10to be counted as only one conviction for purposes of enhanc ement beca use the convictions only led to one penitentiar

y trip. Acc ording ly , we ove rrule a ppellant’s third point of er ror.

Cleric al Error in Judgme nt

I n his fourth point of err or, appellant contends that the judgme nt should be ref ormed
to proper ly ref

lect the pleas and jury finding with respe ct to enhanc ement of punishment. The State

conce des the err ors and acknow ledg es that the judgme nt should be modified. The judgme nt incorre ctly ref

lects that the pleas to the en h an ce m ent para g raphs and the finding s on the enhanc ement para g rap h s wer e “N/A.” The rec ord ref lects that appellant pleade d not true to the enhanc ement para g raphs and that the jury found two of the enhanc ement alleg ations alleg ed in the indictment were true.

This Court has authority to modify incorre ct judgme nts wh en t h e nece ssary information is available t o do so. See Bigley v. State , 865 S.W .2d 26, 27–28 (Tex. Crim. App. 1993). Acc ording ly , we sustain appellant’ s fourth point of err or and modify the judgme nt to ref lect that appellant pleade d “not true” to the enhanc ement para g raphs of the indictment and to ref lect that the jury found that two of the enhanc ement alleg ations in the indic t m en t we re t ru e. See Britton

v State , No. 02-10-00299- CR, 2011 Tex. App. L EXI S 7572, at *3–4 (Tex. App.—For t Worth Sept. 15, 2011, no pet.) (mem. op., not desig nated for publication) (modifying judgme nt to ref lect proper plea to enha

nceme nt para g raphs be fore aff irming c onviction in frivolous appea l).

11CONCLUSION For these rea sons, we modify the judgme nt o f conviction as noted above and, as modified, aff

irm.

__________________________________________

Melissa Goodwin, Jus tice Be fore Chief J ustice Jones, J ustices Goodwin and F ield Modified and, a s Modified, Aff irmed Filed: August 20, 2014 Do Not Publish

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