Derek Wayne Nutt v. the State of Texas

IN THE
TENTH COURT OF APPEALS

No. 10-23-00362-CR

DEREK WAYNE NUTT,
Appellant
v.

THE STATE OF TEXAS,
Appellee

From the 82nd District Court
Falls County, Texas
Trial Court No. 10974

MEMORANDUM OPINION

After a jury trial, Derek Wayne Nutt was convicted of the felony offense of

aggravated assault with a deadly weapon and sentenced to 45 years in prison. See TEX.

PENAL CODE ANN. § 22.02(a)(2). In two issues on appeal, Nutt contends the trial court

committed reversible jury-charge error in both the guilt-innocence and punishment jury

charges. We affirm.
STANDARD OF REVIEW AND APPLICABLE LAW

Reviewing courts utilize a two-step process when analyzing a jury charge issue.

See Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994). First, we determine

whether error exists in the jury charge. Id. at 731-32. If error is found, we then evaluate

whether sufficient harm resulted from the error to require reversal. Id. If the error was

properly preserved by objection, reversal is necessary if the error is not harmless.

Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). However, if error was not

preserved at trial by a proper objection, a reversal of the trial court's judgment will only

be granted if the error presents egregious harm, meaning that the defendant did not

receive a fair and impartial trial. Id. To obtain a reversal for jury-charge error, the

defendant must have suffered actual harm, not merely theoretical harm. Sanchez v. State,

376 S.W.3d 767, 775 (Tex. Crim. App. 2012).

Voluntary-Conduct Instruction

In his first issue, Nutt claims that the trial court erred by failing to sua sponte

instruct the jury on voluntariness of conduct pursuant to Section 6.01 of the Texas Penal

Code, and that he was egregiously harmed by the error. See TEX. PENAL CODE ANN. §

6.01.

The trial court must submit to the jury a written charge setting forth the law

applicable to the case. See TEX. CODE CRIM. PROC. ANN. art. 36.14. However, a trial court

does not have a duty to sua sponte instruct the jury on a defensive issue that may have

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been raised by the evidence. See id.; see Posey v. State, 966 S.W.2d 57, 62 (Tex. Crim. App.

1998). This is because, “which defensive issues to request are strategic decisions generally

left to the lawyer and the client.” Id. at 63. As such, “[a]n unrequested defensive issue is

not the law applicable to the case.” Taylor v. State, 332 S.W.3d 483, 487 (Tex. Crim. App.

2011). A voluntary-conduct instruction under Section 6.01 is a “defensive issue.” See TEX.

PENAL CODE ANN. § 6.01; see Rogers v. State, 105 S.W.3d 630, 639-41 (Tex. Crim. App. 2003)

(discussing the difference between the defensive issues of “accident” and “voluntary

act”); Roby v. State, 647 S.W.3d 747, 749-50 (Tex. App.—San Antonio 2021, no pet.);

Hernandez v. State, 10-08-00253-CR, 2009 Tex. App. LEXIS 6104, 2009 WL 2397297 (Tex.

App.—Waco Aug. 5, 2009, no pet.) (mem. op.) (discussing voluntariness of conduct as a

defensive issue); Vollbaum v. State, 833 S.W.2d 652, 654-56 (Tex. App.—Waco 1992, pet.

ref’d) (same).

Here, it is undisputed that Nutt’s trial counsel did not request a jury instruction

on voluntariness of conduct under Section 6.01 or otherwise complain of its omission

from the charge. See TEX. PENAL CODE ANN. § 6.01. Because the voluntary-conduct

instruction was an unrequested defensive issue, it is not the “law applicable to the case”

and the trial court did not err by failing to sua sponte include the instruction in the jury

charge. Accordingly, Nutt’s first issue is overruled.

Nutt v. State Page 3
Parole and Good-Conduct Time Instruction

In his second issue, Nutt argues that the trial court erred by completely omitting

from the jury charge on punishment the statutorily-required parole and good-conduct

language pursuant to article 37.07 of the Texas Code of Criminal Procedure. See TEX.

CODE CRIM. PRO. ANN. art. 37.07. Where, as here, the jury assessed punishment and the

judgment of conviction includes an affirmative finding of a deadly weapon, the Texas

Code of Criminal Procedure requires the trial court to include the instruction on parole

eligibility and good-conduct time in article 37.07, section 4(a). See id. at art. 37.07 § 4(a),

art. 42A.054(c), (d). In such a situation, the trial court must charge the jury as follows:

The length of time for which a defendant is imprisoned may be reduced by
the award of parole.

Under the law applicable in this case, if the defendant is sentenced to a term
of imprisonment, the defendant will not become eligible for parole until the
actual time served equals one-half of the sentence imposed or 30 years,
whichever is less. If the defendant is sentenced to a term of less than four
years, the defendant must serve at least two years before the defendant is
eligible for parole. Eligibility for parole does not guarantee that parole will
be granted.

It cannot accurately be predicted how the parole law might be applied to
this defendant if sentenced to a term of imprisonment, because the
application of that law will depend on decisions made by parole authorities.

You may consider the existence of the parole law. You are not to consider
the manner in which the parole law may be applied to this particular
defendant.

Nutt v. State Page 4
Id. at art. 37.07 § 4(a). The State concedes that the trial court erred by omitting this

instruction from the charge. We agree that the trial court erred in omitting this mandatory

language and now proceed to the requisite harm analysis.

Nutt did not object to the trial court’s omission of the parole and good-conduct

language, therefore we review his unpreserved complaint for “egregious harm.” See

Hooper v. State, 255 S.W.3d 262, 270 (Tex. App.—Waco 2008, pet. ref’d) (citing Almanza, 686

S.W.2d at 171-72). We assess harm in light of the entire jury charge, the state of the

evidence, the arguments of counsel, and any other relevant information revealed by the

record as a whole. See id. at 171.

Here, the only new evidence admitted during the punishment phase was

documentation relating to Nutt’s criminal history. In closing arguments, the State

emphasized Nutt’s extensive criminal history, noting his previous violent offenses,

prison sentences, and prior opportunities to correct his behavior through probation. The

State also discussed the facts and circumstances of the instant offense in arguing for a

lengthy prison sentence. Namely, the State highlighted Nutt’s apathy toward the

complaining witness’s serious injury, threats that Nutt allegedly made to other witnesses,

and Nutt’s initial refusal to turn himself into jail. Neither the State nor defense counsel

mentioned good-conduct time or parole in closing arguments. Further, the jury did not

inquire about parole or good-conduct time. Because Nutt pled true to one felony

enhancement paragraph, his punishment range was enhanced to 5 to 99 years in prison.

Nutt v. State Page 5
He was sentenced to 45 years in prison, near the middle of the enhanced range. Nothing

in this record indicates that the omission of the instruction caused the jury to improperly

consider or attempt to compute how parole or good-conduct time might apply to Nutt’s

sentence. Based on this record, we cannot say that Nutt was egregiously harmed by the

omitted instruction. Nutt’s second issue on appeal is overruled.

Conclusion

Having overruled both of Nutt’s issues on appeal, we affirm the judgment of the

trial court.

STEVE SMITH
Justice

Before Chief Justice Gray,
Justice Johnson, and
Justice Smith
Affirmed
Opinion delivered and filed July 25, 2024
[CR25]

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