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 indicted Pedro Velez for aggravated sexual assault. The jury convicted Velez of the lesser-included offense of sexual assault. The victim testified that she was born with cerebral palsy and that she had been in a wheelchair all of her life. She was not able to use her legs, and most of her life her hands had been “curl[ed] all the way up.” She was able to use one hand. She had a rod in her back that further limited her mobility. The victim testified that Velez told her that he was getting a divorce, that he was lonely and that he “wanted someone.” He repeatedly asked her to give him fellatio. The victim told him no several times. Velez unzipped his pants and put his erect penis in her mouth. The victim tried to push away from Velez but was unable to because of her disabilities. Velez held his penis with one hand, put his other hand behind her neck, and moved his penis in and out of her mouth. At the punishment phase of the trial, Velez’s ex-wife testified that Velez had been convicted of assaulting a 6-year-old girl in Alabama. As a result of that conviction, Velez had been ordered to attend and complete a sex offender program. Velez’s ex-wife also testified that Velez had raped her. The charge to the jury at the punishment phase contained the following instruction: “It is also possible that the length of time for which the defendant will be imprisoned might be reduced by the award of parole. “Under the law applicable in this case, if the defendant is sentenced to a term of imprisonment, he will not become eligible for parole until the actual time served plus any good conduct time earned equals one-half of the sentence imposed. Eligibility for parole does not guarantee that parole will be granted. “It cannot accurately be predicated how the parole law and good conduct time might be applied to this defendant if he is sentenced to a term of imprisonment, because the application of these laws will depend on decisions made by prison and parole authorities. “You may consider the existence of the parole law and good conduct time. However, you are not to consider the extent to which good conduct time may be awarded to or forfeited by this particular defendant. You are not to consider the manner in which the parole law may be applied to this particular defendant.” Velez directed his only objection to the charge toward the verdict form concerning the allegation of the previous Alabama assault. The jury convicted Velez of sexual assault, found the enhancement allegation to be true and assessed punishment at confinement for 60 years and a $10,000 fine. HOLDING:Affirmed. In his sole issue on appeal, Velez contended that the charge incorrectly stated the law concerning parole and that this error was so egregious that the case should be remanded for a new hearing as to punishment. The state conceded that the language in the charge concerning when Velez might become eligible for parole did not correctly track Texas Code of Criminal Procedure Art. 37.07, �4(a). To determine if unobjected-to error in the jury charge is so egregious as to result in reversible error, the court stated that an appellate court must consider the jury instructions as a whole, the state of the evidence, the arguments of counsel and any other relevant information revealed by the record as a whole. The court found nothing in the record that supported Velez’s claims of egregious harm. The court found that the charge correctly instructed the jury under Art. 37.07, �4(a), that it could consider the existence of parole law but could not consider “the manner in which the parole law may be applied to” Velez. The jury is presumed to have followed this instruction in the charge, the court stated. The court further stated that the evidence presented supported the jury’s assessment of punishment and the record reflected that parole law was not a factor in the trial at any stage. OPINION:Wright, C.J.; Wright, C.J., and McCall and Strange, 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.