Joseph James Kutney III v. the State of Texas

IN THE
TENTH COURT OF APPEALS

No. 10-23-00004-CR

JOSEPH JAMES KUTNEY III,
Appellant
v.

THE STATE OF TEXAS,
Appellee

From the 87th District Court
Leon County, Texas
Trial Court No. 20-0008CR

MEMORANDUM OPINION

Joseph James Kutney, III, was found guilty by a jury of the first-degree felony

offense of continuous sexual abuse of a young child. See TEX. PENAL CODE ANN. § 21.02.

The trial court assessed Kutney’s punishment at forty years in the penitentiary and

sentenced him accordingly. Kutney brings this appeal. We affirm as modified.
Issue One

In his first issue, Kutney contends the trial court’s abstract instructions to the jury

assumed that he had committed at least some of the alleged predicate acts of sexual abuse,

and they therefore constituted an improper comment on the weight of the evidence.

Kutney further contends that the application paragraph contained the same error.

AUTHORITY

“Appellate review of claims of jury-charge error first involves a determination of

whether the charge was erroneous and, if it was, then second, an appellate court conducts

a harm analysis, with the standard of review for harm being dependent on whether error

was preserved for appeal.” Cortez v. State, 469 S.W.3d 593, 598 (Tex. Crim. App. 2015). If

there was no objection to the error, a reversal is only required if the error presents

egregious harm, meaning that the appellant did not receive a fair and impartial trial. Reed

v. State, 680 S.W.3d 620, 625–26 (Tex. Crim. App. 2023). “Jury charge error is egregiously

harmful if it affects the very basis of the case, deprives the defendant of a valuable right,

or vitally affects a defensive theory.” Id. at 626. “In determining whether charge error

resulted in egregious harm, we consider: (1) the entire jury charge; (2) the state of the

evidence; (3) the final arguments of the parties; and (4) any other relevant information

revealed by the trial court as a whole.” Id.

DISCUSSION

The trial court included the following in its abstract instructions in the charge:

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In order to find the defendant guilty of the offense of continuous
sexual abuse of a young child, you are not required to agree unanimously
on which specific acts of sexual abuse were committed by the defendant or
the exact date when those acts were committed. However, in order to find
the defendant guilty of the offense of continuous sexual abuse of a young
child, you must agree unanimously that the defendant, during a period that
is 30 or more days in duration, committed two or more acts of sexual abuse.

And the trial court included the following at the conclusion of the application paragraph:

With regard to element 1, you need not all agree on which specific
acts of sexual abuse were committed by the defendant or the exact date
when those acts were committed. You must, however all agree that the
defendant committed two or more acts of sexual abuse.

With regard to element 2, you must all agree that at least thirty days
passed between the first and last acts of sexual abuse committed by the
defendant.

Kutney contends that the language above assumed he committed some of the alleged

predicate acts and was a comment on the evidence by the trial court. Kutney argues that

conditional “if any” language was required for a proper instruction. Kutney posits that

a proper instruction without a comment on the evidence would read as follows:

You are instructed that members of the jury are not required to agree
unanimously on which specific acts of sexual abuse, if any, were committed
by the defendant or the exact date when those acts were committed, if any.
The jury must agree unanimously that the defendant, during a period that
was 30 or more days in duration, committed two or more acts of sexual
abuse as that term has been previously defined.

....

With regard to element 1, you need not all agree on which specific acts of
sexual abuse were committed by the defendant, if any, or the exact date
when those acts were committed, if any. You must however all agree that
the defendant committed two or more acts of sexual abuse.
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With regard to element 2, you must all agree that at least thirty days passed
between the first and last acts of sexual abuse committed by the defendant,
if any.

A trial court, in its charge to the jury, should never give the jury an instruction that

constitutes a comment by the court on the elements of the alleged offense or assumes a

disputed fact. Brock v. State, 495 S.W.3d 1, 14 (Tex. App.—Waco 2016, pet. ref’d). “An

instruction, albeit facially neutral and legally accurate, may nevertheless constitute an

improper comment on the weight of the evidence.” Kirsch v. State, 357 S.W.3d 645, 651

(Tex. Crim. App. 2012). “Trial courts have ‘broad discretion’ in submitting proper

definitions and explanatory phrases to aid the jury.” Brock, 495 S.W.3d at 14. The charge

must contain an accurate description of the law. Vasquez v. State, 389 S.W.3d 361, 366

(Tex. Crim. App. 2012). “But a trial court has no discretion in determining what the law

is or applying the law to the facts.” Brock, 495 S.W.3d at 14. A jury charge that tracks the

language of a particular statute is a proper charge on the statutory issue. Riddle v. State,

888 S.W.2d 1, 8 (Tex. Crim. App. 1994).

Subsection 21.02(d) of the Penal Code provides:

If a jury is the trier of fact, members of the jury are not required to agree
unanimously on which specific acts of sexual abuse were committed by the
defendant or the exact date when those acts were committed. The jury must
agree unanimously that the defendant, during a period that is 30 or more
days in duration, committed two or more acts of sexual abuse.

TEX. PENAL CODE ANN. § 21.02(d). Here, the trial court’s abstract instruction contained

an accurate description of the law and tracked the language of subsection 21.02(d) of the
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Penal Code. See id. As such, we conclude the instruction was a proper statement of the

law. See Riddle, 888 S.W.2d at 8.

We now examine whether the abstract instruction in the charge constituted a

comment by the court on the elements of the alleged offense or assumed a disputed fact.

See Brock, 495 S.W.3d at 14. Kutney contends that without the conditional “if any”

language the instruction assumed the truth of a controverted issue and therefore

constituted a comment on the weight of the evidence.

The Code of Criminal Procedure requires that a trial court deliver to the jury a

written charge “not expressing any opinion as to the weight of the evidence, not summing

up the testimony [or] discussing the facts.” TEX. CODE CRIM. PROC. ANN. art. 36.14. The

abstract instructions serve as a glossary to help the jury understand the meaning of

concepts and terms used in the application paragraphs of the charge. Crenshaw v. State,

378 S.W.3d 460, 466 (Tex. Crim. App. 2012). An instruction is a comment on the weight

of the evidence if it singles out a particular fact and instructs the jury it may consider that

fact in determining an issue in the case. See Hawkins v. State, 656 S.W.2d 70, 73 (Tex. Crim.

App. 1983). “In determining whether the charge improperly comments on the weight of

the evidence, we consider the court’s charge as a whole and the evidence presented at

trial.” Lacaze v. State, 346 S.W.3d 113, 118 (Tex. App—Houston [14th Dist.] 2011, pet.

ref’d).

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Here, the second half of the complained-of instruction stated that “[i]n order to

find the defendant guilty of the offense of continuous sexual abuse of young child, you

must agree unanimously that the defendant, during a period that is 30 or more days in

duration, committed two or more acts of sexual abuse.” Additionally, the application

paragraph of the charge instructed the jury that “[i]f you all agree that the state has

proved beyond a reasonable doubt all four elements listed above, then you must find the

defendant ‘Guilty’ of the offense“ and followed with “[i]f you all agree that the state has

failed to prove beyond a reasonable doubt one or more elements listed above, then you

must find the defendant ‘Not Guilty’ of the offense.” The charge also included

instructions on the presumption of innocence, the State’s burden of proof, reasonable

doubt, and the indictment not being evidence of guilt. When we view the charge as a

whole, we cannot conclude that Kutney suffered egregious harm from the omission of

the phrase “if any” in the abstract instruction in the charge.

We now turn to our review of the application paragraph. The application

paragraph is the heart and soul of a jury charge in a criminal case because it specifies the

factual circumstances under which the jury should convict or acquit. See Harmel v. State,

597 S.W.3d 943, 957 (Tex. App.—Austin 2020, no pet.) (citing Vasquez, 389 S.W.3d at 367).

The application paragraph applies the “pertinent penal law, abstract definitions, and

general legal principles to the particular facts and the indictment allegations.” Cortez, 469

S.W.3d at 598. Thus, we look at the wording of the application paragraph to determine

Kutney v. State Page 6
whether the jury was correctly instructed in accordance with the indictment. See Harmel,

597 S.W.3d at 957 (citing Yzaguirre v. State, 394 S.W.3d 526, 530 (Tex. Crim. App. 2013)).

A jury charge is appropriate

if it either contains an application paragraph specifying all of the conditions
to be met before a conviction . . . is authorized, or contains an application
paragraph authorizing a conviction under conditions specified by other
paragraphs of the jury charge to which the application paragraph
necessarily and unambiguously refers, or contains some logically consistent
combination of such paragraphs.

See id. (quoting Delapaz v. State, 228 S.W.3d 183, 212 (Tex. App.—Dallas 2007, pet. ref’d)).

Reading the complained-of application paragraph as a whole reveals that the

initial paragraph instruction included a condition that the jury “must determine whether

the state has proved, beyond a reasonable doubt, four elements.” The application

paragraph then listed the elements of the offense. As stated above, the application

paragraph concluded with instructions that if the jury agrees that the State has proved

beyond a reasonable doubt all four elements, then it must find Kutney guilty and if the

jury agrees the State has failed to prove beyond a reasonable doubt one or more elements,

then it must find Kutney not guilty. Again, the charge also included instructions on the

presumption of innocence, the State’s burden of proof, reasonable doubt, and the

indictment not being evidence of guilt.

Reasonably construed, the jury charge did not assume the truth of the contested

allegations, and the jury was clearly instructed to make that determination. The charge

had appropriate conditions that had to be met before a conviction was authorized. See id.
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We conclude that the complained-of language did not constitute a comment on the

weight of the evidence by the trial court.

We overrule Kutney’s first issue.

Issue Two

In his second issue, Kutney challenges the assessment of court costs and fees. He

specifically challenges the assessment of an $8.00 capias fee, $5.00 arrest fee, $5.00 release

fee, $10.00 bond fee, and $200.00 subpoena fee.

Section 51.318 of the Government Code authorizes the clerk to collect an $8 fee for

issuing a subpoena or a writ in criminal cases. TEX. GOV’T CODE ANN § 51.318(b)(1)–(2);

see Welch v. State, 683 S.W.3d 525, 528 (Tex. App.—Waco 2023, no pet.). In a criminal case,

a capias is a writ. See TEX. CODE CRIM. PROC. ANN. art. 23.01. Subsection 51.318(c)

provides that “[t]he fee is the obligation of the party to the suit or action initiating the

request.” TEX. GOV’T CODE ANN. § 51.318(c). In this case, there is no record that Kutney

applied for issuance of a subpoena or requested issuance of a capias. Therefore, we delete

the $8.00 capias issuance fee and $200.00 subpoena issuance fee. See Welch, 683 S.W.3d at

528.

In Kutney’s challenge to the $5.00 arrest fee, he contends that the fee only applies

if the arrest is a warrantless arrest. See TEX. CODE CRIM. PROC. ANN. art. 102.011(a)(1). It

is undisputed that Kutney was arrested pursuant to a warrant. Therefore, we delete the

$5.00 arrest fee.

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In Kutney’s challenge to the assessment of the $5.00 release fee and the $10.00 bond

fee, he contends that because he was never released and was continuously confined since

his initial arrest on the charge, the release fee and the bond fee are improper. The trial

court’s judgment ordered the County Sheriff “to take and deliver Defendant to the

Director of the Correctional Institutions Division, TDCJ, for placement in confinement in

accordance with this judgment.” The County Sheriff was required to release Kutney into

the possession of the prison system. Kutney was properly assessed the $5.00 release fee.

See Willingham v. State, 692 S.W.3d 772, 774 (Tex. App.—Waco 2024, no pet.). Because

Kutney never made bond and was continuously confined, we delete the $10.00 bond fee.

We sustain in part and overrule in part Kutney’s second issue.

Conclusion

We affirm the judgment of the trial court as modified.

MATT JOHNSON
Chief Justice

Before Chief Justice Johnson,
Justice Smith, and
Justice Harris
Affirmed as modified
Opinion delivered and filed January 30, 2025
Do not publish
[CRPM]

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