X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:Authorities charged Jeff Doyal Robertson with aggravated assault of a public servant with a deadly weapon, and he pleaded not guilty. At trial, Robertson argued that the victim of the assault, Canton ISD’s athletic director and head football coach Gary Joe Kinne, was not a public servant. The jury did not find Robertson guilty of the charged offense but instead found him guilty of the lesser included offense of aggravated assault. The case then proceeded to the punishment phase of the trial. During closing argument in the punishment phase, the state attempted to explain the difference between community supervision and parole. During that discussion, the state argued, “Let’s say they get sentenced to prison for five years. Well, as I said, we don’t have truth in sentencing in Texas, so he gets sentenced to five years, parole is a process whereby they probably don’t actually do five years. If they behave themselves in prison . . .” At this point, Robertson objected that the state’s argument asked the jury to consider how parole affects Robertson’s sentence. The trial court sustained the objection, and Robertson asked for a limiting instruction, which was given by the trial court. Robertson did not seek a mistrial based on the state’s argument regarding parole. The trial court then charged the jury. The punishment phase charge contained a special issue as to whether Robertson used a deadly weapon in committing the aggravated assault. Robertson had objected to this portion of the charge claiming that the deadly weapon issue “should have been submitted and w[as] not properly submitted at guilt/innocence and absent a finding of true on those special issues at the appropriate time, the only finding would be one of implied not true. We object to the submission to the jury at this stage of trial.” The trial court overruled Robertson’s objection. The jury returned a verdict of a 20-year prison sentence for Robertson. The trial court sentenced Robertson accordingly. This appeal followed. HOLDING:Affirmed. In his third issue, Robertson contended that he was entitled to a new trial, because the trial court permitted the state to argue the effects of parole on his sentence. Because Robertson failed to move for a mistrial and obtain an adverse ruling after successfully obtaining a limiting instruction, the court found that he waived any error regarding the effects of parole on his sentence. In his second issue, Robertson contended that the trial court erred during the punishment phase by submitting a special issue on the use of a deadly weapon. In criminal jury trials, the court stated that the trial court must deliver “a written charge distinctly setting forth the law applicable to the case.” Because the charge instructs the jury on the law applicable to the case, it must contain an accurate statement of the law and set out all essential elements of the offense. Generally, a defendant must object to the trial court’s charge or submit special requested instructions in order to preserve error on appeal. Even though Robertson preserved error on this point, the court failed to find error. The court stated that it could not find any cases where submission of the deadly weapon special issue during the punishment phase of the trial has been deemed error. The Court of Criminal Appeals, the court noted, has said that “the better practice is to submit the deadly weapons special issue charge at the guilt/innocence phase of the trial.” But not following better practice is not the same as committing error, the court stated. Consequently, the court held that Robertson failed to show error in the trial court’s charge. After finding Robertson’s request for a factual sufficiency review “inappropriate with respect to the assessment of punishment,” the court weighed Robertson’s contention that the sentence imposed upon him violated the Texas and U.S. constitutions. Because Robertson failed to object to the trial court by raising the issue of cruel and unusual punishment, the court found that he waived the issue on appeal. Even absent a waiver, the court found that Robertson’s sentence was not grossly disproportionate. OPINION:Hoyle, J.; Worthen, C.J., and Griffith and Hoyle, JJ.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 3 articles* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.