Garcia v. State (Unpublished Memo): Garcia appeals four counts of sexual assault of minors and a single indecency with a child charge. At trial, Garcia agreed to a jury charge that omitted a statutorily required instruction. Even though he agreed to that omission at trial, he complains of it on appeal. His appeal is dismissed because the omission didn’t harm him.
The good news for criminal defendants is that they can still appeal certain errors in the charge, even if they agreed to them. The bad news two fold. First, such appeals are limited to the omission of statutorily required elements of the charge. Second, the defendant has to show that the omission caused him “egregious harm.”
The jury charge at issue omitted a parole instruction required by Article 37.07 of the Texas Code of Criminal Procedure. In essence, that instruction tells the jury that the sentences they give aren’t hard numbers. Instead, a combination of “good time” plus time served may result in parole prior to the end of the jury’s sentence. Of course, once jurors hear that, they figure they’ve got to give somebody 20 years if they want him to serve 10.
That instruction helps the State. There’s no harm to the defendant in leaving it out. Certainly no egregious harm. Appeal dismissed.
While the omission didn’t hurt Garcia, it didn’t help him either. The jury gave him four life sentences for the things he did to his own grandsons.