Therefore, as to the July 18, 2012 allegation only, if you believe or have a reasonable doubt thereof that the evidence in question was obtained in violation of any provision of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, then in such event you will wholly disregard such evidence and not consider it as any evidence whatsoever. See Tex. Code Crim. Proc. Ann. art. 38.23(a) (West 2005). The jury found Malone guilty, and trial proceeded to the punishment phase.
Because Malone was charged as a habitual felony offender, six enhancement paragraphs from the indictment were read to the jury during the punishment phase. The enhancement paragraphs alleged prior convictions for violation of a civil commitment order, sexual assault, shooting with intent to kill, possession of a firearm, possession of child pornography, and rape. Malone pleaded "true" to the first paragraph and "not true" to the remaining paragraphs.
A fingerprint comparison expert testified that he compared known prints of Malone to documents contained in three pen packets and concluded that Malone was the individual identified in the pen packets. Stoddard testified that Malone was convicted in Travis County of failing to comply with the terms of his 2010 civil commitment order. Stoddard also testified that she is a clinical psychologist, and she had evaluated Malone and scored actuarial instruments that indicate Malone has a moderate or moderate-to-high risk for sexual recidivism. According to Stoddard, Malone had antisocial personality disorder, so Malone suffered from impulsivity, irritability, aggressiveness, reckless disregard for the safety of himself or others, irresponsibility, and lack of remorse, and repeatedly performed illegal acts. In addition, Stoddard testified that Malone had prior convictions for sexual assault, rape in the second degree, possession of child pornography, possession of a firearm, and shooting with intent to kill.
During closing arguments in the punishment phase, the prosecutor emphasized Malone’s six prior felony convictions and Stoddard’s testimony, and the prosecutor asked the jury to sentence Malone to life in prison, "not because we don’t care about him as an individual or human being, but because we care about the safety and security of the human beings that live in our communities more." The jury assessed punishment at confinement for life.
ISSUE ONE
In his first issue, Malone argues the trial court admitted evidence in violation of Old Chief, which he seems to view as synonymous with Rule 403 of the Texas Rules of Evidence. See Tex. R. Evid. 403; Old Chief v. U.S., 519 U.S. 172, 192, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997). Specifically, Malone complains that the trial court allowed the State to repeatedly use the phrase "sexually violent predator" to inflame the jury and to appeal to the jurors’ emotions rather than the facts of the case. Malone’s brief later appears to generally argue that accusations of other criminal acts involving a sexual, violent or predatory offense were improper.
In Tamez v. State, 11 S.W.3d 198 (Tex. Crim. App. 2000), the Court of Criminal Appeals explained that in Old Chief, the defendant was prosecuted for possession of a firearm by a felon, and "[b]ecause any type of felony conviction was sufficient to prosecute the defendant for possession of a firearm, the [Supreme] Court decided that allowing the Government to prove the particular felony of which the defendant was previously convicted was of little probative value; yet it could substantially prejudice the defendant by allowing the jury to improperly focus on the previous crime rather than the instant offense." Tamez, 11 S.W.3d at 200 (citing Old Chief, 519 U.S. at 192). The Court of Criminal Appeals pointed out that Old Chief was not binding authority, but had "persuasive value[.]" Id. at 201. The Court then stated that "a defendant’s stipulation to a previous conviction should suffice when it carries the same evidentiary value as the judgments of prior convictions, yet substantially lessens the likelihood that the jury will improperly focus on the previous conviction or the defendant’s ‘bad character.’" Id. at 202. The Court explained that a balance must be struck between the authorized reading of the full indictment and Rule 403, and held as follows: "[i]n cases where the defendant agrees to stipulate to the . . . previous . . . convictions, we find that the proper balance is struck when the State reads the indictment at the beginning of trial, mentioning only the . . . prior convictions, but is foreclosed from presenting evidence of the convictions during its case-in-chief." Id.
In this case, Malone did not stipulate to his prior convictions, nor did he stipulate that he was subject to an order of civil commitment as a sexually violent predator. Therefore, Old Chief is inapposite. See id. Malone complains of thirty-one instances when the State used the phrase "sexually violent predator" during trial. At the beginning of the trial, Malone’s counsel re-urged his motion in limine, in which he had sought to require the State to approach the bench prior to using the phrase, and obtained a running objection to the State’s use of the term "sexually violent predator." However, Malone’s counsel did not specify the basis for his objection, other than by reference to his motion in limine, which also did not set forth the basis for objection, but simply sought to require the State to approach the bench prior to using the phrase. During only one of the numerous instances identified by Malone did counsel object that repeatedly calling Malone a sexually violent predator was "intended to inflame the jury." The trial court overruled the objection.
Rule 403 of the Texas Rules of Evidence provides as follows: "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence." Tex. R. Evid. 403. Generally, to preserve error for appellate review, a party’s objection "must be specific enough so as to ‘let the trial judge know what he wants, why he thinks himself entitled to it, and do so clearly enough for the judge to understand him at a time when the trial court is in a proper position to do something about it.’" Resendez v. State, 306 S.W.3d 308, 313 (Tex. Crim. App. 2009) (quoting Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992)). We conclude that Malone’s running objection based upon his motion in limine, which did not explain the basis for the objection, was not sufficiently specific to preserve error with respect to the Rule 403 complaint he asserts on appeal. See id. However, we conclude that Malone’s objection that the phrase was inflammatory was sufficient to preserve error as to his Rule 403 objection with respect to that one occurrence of the phrase. See Tex. R. App. P. 33.1(a).
We now address Malone’s issue with respect to his sole properly preserved Rule 403 objection. We review the trial court’s ruling on a Rule 403 objection for abuse of discretion. State v. Mechler, 153 S.W.3d 435, 440 (Tex. Crim. App. 2005). The trial court abuses its discretion only when its decision lies outside the zone of reasonable disagreement. Id. at 439-40. When a trial court balances the probative value of the evidence against the danger of unfair prejudice, a presumption exists that favors the evidence’s probative value. Feldman v. State, 71 S.W.3d 738, 754-55 (Tex. Crim. App. 2002).
The term "sexually violent predator" appears in the charging statute, section 841.085 of the Health and Safety Code, which provides as follows, in pertinent part: "A person commits an offense if, after having been adjudicated and civilly committed as a sexually violent predator under this chapter, the person violates a civil commitment requirement . . . ." Tex. Health & Safety Code Ann. § 841.085. The term also appears in the final judgment, order of commitment, supervision, and GPS tracking service requirements for the Council on Sex Offender Treatment, Council on Sex Offender Treatment Behavior Contract Requirements, and the Council on Sex Offender Treatment’s Agreement Regarding Therapeutic Activities, which were admitted into the evidence as exhibits. We decline to find that the use of the term "sexually violent predator" was intended to inflame the jury, or that its usage had such an effect. The trial court did not abuse its discretion by overruling Malone’s objection. See Mechler, 153 S.W.3d at 439-40; see also Tex. R. Evid. 403. Accordingly, we overrule issue one.
ISSUE TWO
In issue two, Malone contends his right to a fair trial was violated by language in the jury charge. Specifically, Malone argues that the phrase "sexually violent predator" was used ten times in the jury charge, and that the inflammatory nature of the phrase violated his right to a fair trial. At the charge conference, Malone’s counsel objected to the charge on the grounds that it repeatedly used the phrase "as a sexually violent predator" and asserted that the term is prejudicial.
When reviewing alleged charge error, we determine whether error existed in the charge and, if so, whether sufficient harm resulted from the error to compel reversal. Ngo v. State, 175 S.W.3d 738, 744 (Tex. Crim. App. 2005). When, as here, the defendant preserved the complained-of alleged error, we will reverse if we find "some harm" to the defendant’s rights. Almanza v. State, 686 S.W.2d 157, 171 (Tex. 1985) (op. on reh’g). The trial court’s charge must fully instruct the jury on the law applicable to the case and apply that law to the facts adduced at trial. Gray v. State, 152 S.W.3d 125, 127 (Tex. Crim. App. 2004); see Tex. Code Crim. Proc. Ann. art. 36.14 (West 2007). As discussed above, the term "sexually violent predator" is used in the charging statute, which states that "[a] person commits an offense if, after having been adjudicated and civilly committed as a sexually violent predator under this chapter, the person violates a civil commitment requirement . . . ." Tex. Health & Safety Code Ann. § 841.085 (emphasis added). Pursuant to the charging statute, the State had the burden to show that (1) Malone had been adjudicated and civilly committed as a sexually violent predator and (2) that Malone violated a civil commitment requirement. See id. The phrase as used in the jury charge accurately tracked the language used in the charging statute. In addition, the term "sexually violent predator" is specifically defined in Chapter 841. See id. § 841.003(a) (West 2010).
A jury charge that tracks the language of a particular statute is a proper charge. Martinez v. State, 924 S.W.2d 693, 699 (Tex. Crim. App. 1996) (citing Riddle v. State, 888 S.W.2d 1, 8 (Tex. Crim. App. 1994)) ("Following the law as it is set out by the Texas Legislature will not be deemed error on the part of a trial judge."); Duffy v. State, 567 S.W.2d 197, 204 (Tex. Crim. App. 1978); Benn v. State, 110 S.W.3d 645, 648 (Tex. App.—Corpus Christi 2003, no pet.). Because the jury charge tracked the applicable statutory language, we conclude that the charge was not erroneous. See Martinez, 924 S.W.2d at 699; Riddle, 888 S.W.2d at 8; Duffy, 567 S.W.2d at 204; see also Tex. Code Crim. Proc. Ann. art. 36.14; Gray, 152 S.W.3d at 127. Having found that no charge error occurred, we need not perform a harm analysis. See Ngo, 175 S.W.3d at 744. We overrule issue two.
ISSUE THREE
In issue three, Malone argues that evidence admitted in violation of the Sixth Amendment requires reversal or acquittal. Specifically, Malone challenges the testimony by MacNair concerning "a solicited statement, made by [Malone] while in custody awaiting trial, " when MacNair knew Malone was represented by counsel and awaiting trial for violation of the civil commitment order.
We review the trial court’s ruling admitting MacNair’s testimony for abuse of discretion. See Ramos v. State, 245 S.W.3d 410, 417-18 (Tex. Crim. App. 2008). We will uphold the trial court’s ruling if it is reasonably supported by the record and is correct under any applicable legal theory. Id. at 418. The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel for his defense." U.S. Const., amend. VI. "[T]he right to counsel granted by the Sixth Amendment means that a person is entitled to the help of a lawyer ‘at or after the time that adversary judicial proceedings have been initiated against him . . . whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.’" Estelle v. Smith, 451 U.S. 454, 469-70, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981) (quoting Kirby v. Illinois, 406 U.S. 682, 688-89, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972)). In Estelle, defense counsel was not notified in advance that a psychiatric examination of defendant to determine competency to stand trial would encompass the issue of defendant’s future dangerousness, and the psychiatrist utilized information obtained from the examination in his testimony about future dangerousness during the penalty phase. Id. at 456-57, 459-60. The United States Supreme Court held that depriving the defendant of the assistance of counsel during the psychiatric evaluation violated the defendant’s Sixth Amendment right to counsel. Id. at 471.
The record demonstrates that Malone’s counsel was not informed of MacNair’s visit, that counsel was not present during MacNair’s visit, and that MacNair attempted to obtain Malone’s signature on the document after reading the document to him, but did not interview or evaluate Malone. Malone argues that MacNair’s visit was the functional equivalent of interrogation.
Denial of the right to counsel is an error of constitutional magnitude. See U.S. Const. amend. VI; Tex. Const. art. I, § 10. Assuming without deciding that MacNair’s visit to Malone without his counsel present violated Malone’s Sixth Amendment right to counsel, we must perform a harm analysis concerning the admission of evidence. See Tex. R. App. P. 44.2(a) ("If the appellate record in a criminal case reveals constitutional error that is subject to harmless error review, the court of appeals must reverse a judgment of conviction or punishment unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment."). If there is a reasonable likelihood that the error materially affected the jury’s deliberation, then the error was not harmless beyond a reasonable doubt. Wesbrook v. State, 29 S.W.3d 103, 119 (Tex. Crim. App. 2000). A reviewing court should calculate as much as possible the probable impact of the error on the jury in light of the existence of other evidence. Id.; Miles v. State, 918 S.W.2d 511, 517 (Tex. Crim. App. 1996). In conducting our review, we must consider the totality of the circumstances by examining the record as a whole. See Miles, 918 S.W.2d at 517. Our primary concern is the effect the error had, or reasonably may have had, on the jury’s decision. Wimbrey v. State, 106 S.W.3d 190, 192 (Tex. App.—Fort Worth 2003, pet. ref’d). In determining whether the error contributed to a defendant’s conviction or punishment, we consider the nature of the error, the State’s emphasis on the error, the error’s probable collateral implications, and the weight a juror would probably place on the alleged error. Snowden v. State, 353 S.W.3d 815, 822 (Tex. Crim. App. 2011).
In addition to MacNair’s testimony regarding Malone’s refusal to sign the document MacNair presented during her visit to the jail, the jury heard evidence that Malone had previously refused to sign documents pertaining to his commitment, had indicated he did not intend to comply with civil commitment requirements, and had refused to allow Warner to transport him to the halfway house upon his release from TDCJ. The State did not emphasize MacNair’s testimony during closing arguments, and the trial court instructed the jury not to consider any evidence obtained in violation of Malone’s state or federal constitutional rights and included an explicit instruction not to consider the evidence concerning the violation arising from Malone’s refusal to sign the document from MacNair if the jury found that said evidence was obtained in violation of Malone’s rights. The evidence provided by MacNair was a relatively small part of the State’s evidence and argument, and the jury was unlikely to place undue weight on MacNair’s testimony, particularly in light of the trial court’s instruction to the jury in the charge and defense counsel’s lengthy argument that the jury should not consider that evidence. See Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998) (We presume the jury followed the trial court’s instructions.). After reviewing the entire record to determine whether Malone was harmed by the admission of MacNair’s testimony, we conclude that any error in the admission of MacNair’s testimony did not contribute to Malone’s conviction or punishment, and was therefore harmless beyond a reasonable doubt. See Tex. R. App. P. 44.2(a). Accordingly, we overrule issue three and affirm the trial court’s judgment.
AFFIRMED.
