James Ray Demps v. the State of Texas

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-22-00352-CR
__________________

JAMES RAY DEMPS, Appellant

V.

THE STATE OF TEXAS, Appellee

__________________________________________________________________

On Appeal from the 9th District Court
Montgomery County, Texas
Trial Cause No. 21-10-13928-CR
__________________________________________________________________

MEMORANDUM OPINION

A jury found James Ray Demps (“Appellant” or “Demps”) guilty of

aggravated sexual assault of a child younger than six years of age and assessed

punishment of forty-five years of confinement. In three appellate issues, Demps

argues the trial court erred in (1) allowing a support person to accompany the child

witness during her testimony in front of the jury; (2) failing to instruct the jury that

Demps was not eligible for parole and to not consider the application of parole to

him; and (3) failing to give a curative instruction to the jury when the trial court

1
received a jury note during deliberations about parole. We affirm the trial court’s

judgment.

Background

Because Demps does not challenge the sufficiency of the evidence to support

this conviction, only a brief recitation of the facts is necessary. See King v. State,

953 S.W.2d 266, 267 (Tex. Crim. App. 1997); see also Tex. R. App. P. 47.1. A grand

jury indicted Demps for aggravated sexual assault of L.S.1 (“Linda”), a child under

six years of age, and the indictment included an enhancement allegation for a prior

felony conviction. See Tex. Penal Code Ann. § 22.021(a)(2)(B), (f)(1). According to

the indictment, on or about November 23, 2020, Demps “intentionally or knowingly

cause[d] [his] sexual organ to contact or penetrate the mouth of [Linda], a child who

was then and there younger than 6 years of age[.]” Demps pleaded “not guilty.”

During the guilt-innocence phase of the trial, the jury heard Linda’s Mother testify

that, while Demps was living with them when Linda was five years old, Linda

reported to her, after Linda had been out of school and on Thanksgiving break in

2020, that Demps made her touch his “private part” and put his “private part” in

Linda’s mouth. The jury also heard Linda, who was seven years old at the time of

1
We use pseudonyms to refer to the alleged victim and family members. See
Tex. Const. art. I, § 30(a)(1) (granting crime victims “the right to be treated with
fairness and with respect for the victim’s dignity and privacy throughout the criminal
justice process[.]”).
2
trial, testify about the alleged assaults, and the jury heard from other trial witnesses

including law enforcement and a nurse. The jury found Demps guilty of the offense.

Appellant pleaded “not true” to the enhancement allegation. During the punishment

phase of the trial, the jury heard evidence that Demps had two misdemeanor

convictions in 2011 for criminal mischief and theft and a 2018 felony conviction of

engaging in organized criminal activity. The jury heard testimony that while Demps

was on parole for the 2018 conviction, he moved in with Linda’s mother. The jury

also heard evidence that after he was picked up on a warrant for this case, he exposed

his penis to a jail nurse bringing him medication and masturbated in front of a female

inmate that was returning from court. After hearing punishment evidence, the jury

assessed Demps’s punishment at forty-five years of incarceration.2 The trial court

sentenced Demps in accordance with the jury’s verdict. Demps timely appealed.

2
Aggravated sexual assault of a child, a first-degree felony, carries an
applicable punishment range of five to ninety-nine years or life in prison. Tex. Penal
Code Ann. §§ 12.32(a), 22.021(a)(1)(B), (a)(2)(B), (e). Because Linda was under
the age of six at the time of the commission of the offense, Demps’s punishment was
enhanced by statute to a minimum of twenty-five years of confinement. See Tex.
Penal Code Ann. § 22.021(f)(1). A finding of true to the enhancement allegation
would have raised Demps’s minimum sentence from five years to fifteen years. See
Tex. Penal Code Ann. §§ 12.42(c)(1), 71.02(a)(1). Because the enhancement under
section 22.021(f)(1) resulted in a minimum sentence greater than the minimum
sentence for the enhancement paragraph alleged in the indictment, the trial court
announced that “we received no finding” on the enhancement paragraph of the
indictment “because it had no effect.”
3
Support Person Under Article 38.074

In his first issue, Demps argues the trial court erred in allowing a support

person to accompany Linda during her testimony in front of the jury. Section 3 of

Article 38.074 of the Texas Code of Criminal Procedure provides, in relevant part:

(b) On the motion of any party, . . . the court shall allow the child to
have a toy, blanket, or similar comforting item in the child’s possession
while testifying or allow a support person to be present in close
proximity to the child during the child’s testimony if the court finds by
a preponderance of the evidence that:
(1) the child cannot reliably testify without the possession of the
item or presence of the support person, as applicable; and
(2) granting the motion is not likely to prejudice the trier of fact in
evaluating the child’s testimony.
(c) A support person who is present during a child’s testimony may not:
(1) obscure the child from the view of the defendant or the trier of
fact;
(2) provide the child with an answer to any question asked of the
child; or
(3) assist or influence the testimony of the child.
(d) The court may set any other conditions and limitations on the taking
of the testimony of a child that it finds just and appropriate, considering
the interests of the child, the rights of the defendant, and any other
relevant factors.

Tex. Code Crim. Proc. Ann. art. 38.074, § 3(b), (c), (d). In Article 38.074,

“‘[s]upport person’ means any person whose presence would contribute to the

welfare and well-being of a child.” Id. art. 38.074, § 1(2).

When the State called Linda to testify, the defense objected under Texas Rule

of Evidence 601, challenging Linda’s competency to testify. Outside of the jury’s

4
presence and prior to the trial court’s hearing to determine Linda’s competency to

testify, the following exchange occurred:

[Defense counsel]: I don’t have an objection to [the victim
assistance person] sitting here for this hearing. It’s when the jury comes
back in, Your Honor.

THE COURT: Go ahead and make your objection, please.

[Defense counsel]: Yes, Your Honor. The State has requested
that one of their investigators who’s a law enforcement officer sit next
to [Linda] during her testimony in front of the jury. That investigator is
dressed in a DA investigator coat that has a shield, has a badge hanging
from his neck. He also has a gun on his hip. He is sitting in very good
view of the jury. And I will be supplementing the record with
photographs for the record. We strongly object to this. Number one, I
don’t think there’s been any showing that her testimony will be
unreliable without him there. Number two, I was, you know, given no
notice of intent that they were going to have somebody standing there
with the person. Number three, it makes it look like there is a situation
that would require the need of an armed police officer in the courtroom,
makes my client look dangerous. The State’s position is that in this
court the witness stand is next to the defendant. I point out that the State
routinely gets here early to make sure that they get the table next to the
jury in this courtroom which makes the defendant have to take the table
that is next to the witness stand. So this was not a choice of our client
to sit where he is. And even then we would still object to it.

THE COURT: I will note for the record that you objected to the
presence of the victim assistance person that was assigned to this case
being excused from the rule earlier.

[Defense counsel]: I did, Your Honor, because I received notice
under [Brady] that this complainant made an exculpatory statement to
that witness. I don’t think the remedy for that is to set an armed police
guard next to her in between her on the stand in view of the defendant.

THE COURT: Okay. I don’t believe that his presence there
prejudices the trier of fact in evaluating the child’s testimony, nor do I
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believe -- and I do believe that the presence of a support person given
the [] proximity to the defendant in the courtroom, whichever table he
was sitting at, would help the child to reliably testify.
Anything else?

[Prosecutor]: Not from the State, Judge.

THE COURT: All right. Let’s go ahead and proceed then.

[Defense counsel]: May I take one more picture of the
courtroom, Your Honor, to show the -- from the jury box to supplement
the record?

THE COURT: Sure.

[Defense counsel]: Thank you.

[Prosecutor]: On previous occasions we’ve had child victims
testify in this court, and the State has asked the Court to allow the State
to sit at a different table as it relates to the proximity of the complainant
and the defendant. I believe the Court conferred with bailiffs in the
courtroom to talk about safety as it relates to the jury and the civilian.
It was determined at that time that the Defense would remain at that
table. The State’s intent is not to prejudice the jury but just to have a
support staff here for our complainant as she testifies 3 feet away from
our alleged perpetrator.

THE COURT: I’m happy to move people around, I mean, if that
makes everybody feel better. We’ve got time.

[Defense counsel]: My objection is to an armed police officer
sitting next to her.

[Prosecutor]: Judge, we can switch counsel tables if Defense
would like.

THE COURT: Anybody else that can switch next to her if we
switch counsel table?

6
[Prosecutor]: Let me see if they are available, Judge. Judge, if the
Defense would feel better, [the victim assistance person] is willing to
sit without his duty weapon on his waist if that would help Defense’s
objection.

[Defense counsel]: Still the same objection, Your Honor.

THE COURT: Okay. Why don’t you go ahead and give your
boss your equipment. He’s going to remove the duty belt and his
weapon -- or just his weapon. And just in abundance of caution, why
don’t you go ahead and tuck your badge in underneath your shirt for us.

[Defense counsel]: Now I need to make a new objection, Your
Honor. So he’s still sitting here in the district attorney shirt. I appreciate
that the badge and the gun are gone. But if I could have permission to
retake the photo?

THE COURT: Take all the pictures you want to.

Two photographs of the support person in the courtroom taken by the defense are

included in the appellate record.

Demps contends that the State’s evidence was insufficient evidence to comply

with the requirements of Article 38.074. According to Demps, the record does not

support the statute’s required findings by a preponderance of the evidence because

the State did not present any evidence that Linda could not reliably testify without

the support person; the State did not prove that the investigator that served as Linda’s

support person qualified as a “support person” or establish the connection between

the investigator and Linda; and that the trial court found that the presence of the

support person would help Linda reliably testify but did not find by a preponderance

of the evidence that Linda could not reliably testify without the support person.
7
Demps asserts that harm must be presumed because the support person’s clothing

bearing district attorney’s office name bolstered Laura’s credibility and that the

State’s intent to use a support person was a surprise that denied Demps of his right

to a fair trial and violated his fundamental rights of due process and due course of

law under the United States and Texas Constitutions.

First, regarding Appellant’s constitutional complaint on appeal, Article

38.074 does not require notice of intent to use a support person. See Tex. Code Crim.

Proc. Ann. art. 38.074. Also, although Appellant objected to a lack of notice, he did

not make a complaint on constitutional grounds. Even if he had, Appellant failed to

demonstrate at trial, nor has he demonstrated on appeal how his defense strategy or

jury selection might have been different had the State notified him that it intended

to use a support person. Also, Appellant failed to seek a continuance. See Lindley v.

State, 635 S.W.2d 541, 544 (Tex. Crim. App. 1982) (“The failure to request a

postponement or seek a continuance waives any error urged in an appeal on the basis

of surprise.”).

As for Appellant’s argument that the trial court failed to make the requisite

finding by a preponderance of the evidence that Linda could not reliably testify

without the support person, Appellant failed to preserve error because he never asked

the trial court for more specific findings under Article 38.074. See Lambeth v. State,

523 S.W.3d 244, 247 (Tex. App.—Beaumont 2017, no pet.) (defendant never asked

8
the trial court to provide more specific findings under Article 38.074, therefore the

complaint was not preserved for review); see also Sustaita v. State, No. 14-18-

00811-CR, 2020 Tex. App. LEXIS 4250, at **10-12 (Tex. App.—Houston [14th

Dist.] June 4, 2020, no pet.) (mem. op., not designated for publication) (defendant

never asked the trial court to provide more specific findings during the hearing

concerning the complainant’s need for a support person and, therefore, the defendant

failed to preserve error regarding the trial court’s alleged failure to adhere to the

procedures of Article 38.074). To the extent that Appellant argues that the trial

court’s findings failed to track the language of Article 38.074, section 3(b), he did

not make that argument in the trial court. To preserve error for appellate review, the

point of error on appeal must comport with the objection made at trial. Bekendam v.

State, 441 S.W.3d 295, 300 (Tex. Crim. App. 2014); see also Tex. R. App. P. 33.1(a)

(preserving error for appellate review requires the complaining party to show that he

presented his complaint to the trial court in a timely request, objection, or motion

and that the trial court ruled on the request); Lambeth, 523 S.W.3d at 247 (argument

that the trial court’s findings failed to track the language of section 3(b) of Article

38.074 was not preserved because the defendant never asked that trial court to make

more specific findings than the trial court made during the hearing).

The objections the defendant made at trial were that: 1) there’s been no

showing that the child’s testimony will be unreliable without the assistance; 2)

9
defendant received no notice that the assistance would be provided; and 3) the

presence of the assistance would make the defendant look dangerous. The trial judge

stated on the record his findings that he did not believe the presence of the victim

assistance person prejudiced the jury in evaluating Linda’s testimony and the trial

judge believed that the victim assistance person’s presence, regardless of which table

Demps was sitting at in the courtroom, would help Linda reliably testify. Based on

the trial court’s oral findings on the record, we may infer that the trial court made

any other required findings to support its ruling under section 3(b) of Article 38.074.

See Lambeth, 523 S.W.3d at 247 (“Based on the trial court’s oral findings in the

hearing and its ruling, we imply the trial court made the findings required to support

its ruling” under Article 38.074). At the time the trial court made its ruling, the trial

court had already heard evidence that Linda was seven years old at the time of trial;

Linda was a “kind of shy[]” child; and that when Linda was asked to talk about

Demps’s alleged sexual assault against her when she was five years old, she became

silent and embarrassed, cried, and “pretty much shuts down.” Upon review of the

photographs of the courtroom and the positioning of the victim assistance person for

Linda’s testimony, the official logo on the victim assistance person’s shirt is

relatively small and the words on the logo are difficult to discern. The victim

assistance person was wearing khaki pants and a polo shirt and was seated behind

Linda and off to the side towards the defendant. Since the victim was a child witness

10
brought to court by the state, we conclude there was no significantly harmful

inference that the jury would draw just because the witness was accompanied by a

person from the District Attorney’s Office. There was a uniformed court officer

portrayed in one of the photographs as well. Regardless of what table Demps would

have been sitting at, the record shows he would have been in very close proximity

to Linda during her testimony. 3 Prior to the jury entering the courtroom, before

Linda’s testimony, the trial court required the victim assistance person to remove his

firearm and conceal his badge. Considering the record, we cannot say the trial court

erred in overruling the objections. The requirements of Article 38.074 section 3(b)

were met by a preponderance of the evidence. See Sustaita, 2020 Tex. App. LEXIS

4250, at *13 (even if defendant had preserved error, the record supported the trial

court’s conclusion that the requirements of Article 38.074 were met by a

preponderance of the evidence because at the time of trial the trial court questioned

the eight-year-old [victim in that case] outside the presence of the jury and observed

her demeanor, and the trial court had already heard testimony by the forensic

interviewer that the child was “scared” and “timid” at initial interviews and

discussions about the abuse). We conclude the trial court did not abuse its discretion

by allowing the support person’s presence during Linda’s testimony. See Lambeth,

3
We also note that the defense did not accept the State’s offer to switch tables.
11
523 S.W.3d at 248 (applying abuse-of-discretion standard for review of trial court’s

ruling under section 3(b) of Article 38.074).

That said, even if there had been error in allowing the support person to

accompany the child witness, we are not persuaded that the error, if any, affected the

defendant’s substantial rights. See Tex. R. App. P. 44.2(b) (any nonconstitutional

error that does not affect a defendant’s substantial rights must be disregarded).

Nothing in the record supports Appellant’s argument that the support person’s

presence gave the jury the impression that Linda had received preferential treatment

or that the support person’s shirt created harm by bolstering Linda’s credibility or

affecting the trial. Also, we note that the punishment range for aggravated sexual

assault of a child under six years of age is twenty-five years to ninety-nine years or

life. See Tex. Penal Code Ann. §§ 12.32(a), 22.021(e), (f). The forty-five-year

sentence assessed by the jury was at the lower middle end of the punishment range.

Having reviewed the record, we conclude Appellant was not harmed, even if there

was error, in allowing the support person’s presence during Linda’s testimony.

For the reasons outlined above, we overrule issue one.

Jury Instruction on Parole Eligibility

In his second issue, Demps argues the trial court erred in failing to instruct the

jury that Demps was not eligible for parole and failing to tell the jury it should not

consider the application of parole to him. In his third issue, Demps contends the trial

12
court erred in failing to give a curative instruction to the jury when it sent a note

during punishment deliberations that Demps argues indicated that the jury was

considering parole. We address issues two and three together.

During the charge conference on punishment, defense counsel requested the

following instruction to be included in the jury charge:

[A] defendant found guilty of aggravated sexual assault of a child where
the age of the child is less than six years old is not eligible for parole.
You may consider the existence of the parole law, however you are not
to consider the manner in which the parole law may be applied to this
particular defendant.

The defense argued that under the due process clause of both the state and federal

Constitutions a defendant who is not eligible for parole should be entitled to an

instruction just as a defendant who is eligible for parole is entitled to an instruction.

Defense counsel asserted that the jury needed to know that there is no parole in this

case and that “the fear of the Defense is that the jury’s going to get back there and

based on what they hear in the media or what they hear from people, they are going

to assume that there’s parole [which is] simply not the law in this case.” Relying on

this Court’s opinion in Cross v. State, No. 09-11-00406-CR, 2012 Tex. App. LEXIS

10487, at *13 (Tex. App.—Beaumont Dec. 19, 2012, pet. ref’d) (mem. op., not

designated for publication), the State argued that the requested instruction was

improper because Article 37.07 of the Texas Code of Criminal Procedure does not

13
apply here because Demps is not eligible for parole. The trial court denied the

defense’s requested instruction.

After the jury was excused to deliberate on punishment, the following

exchange occurred outside the presence of the jury:

THE COURT: . . . . We’ve received a question from the jury
regarding -- “can we understand [if] parole is an option? In other words,
if assign[] X number of years as the punishment[] will the defendant
serve those or opportunity to be released out or released at a shorter
time?”
[Defense counsel]?

[Defense counsel]: Yes, Your Honor. For the record, this is why
I requested the instruction earlier. I’m requesting that same instruction
that I read into the record as a response to this note. And my argument
is that the due process of law under the State and Federal Constitution,
Mr. Demps is entitled for this jury to know how the law applies in this
case. There’s no parole calculations, parole eligibility, all the things that
these other cases talk about in his case. So I’m not asking for the Court
to explain to the jury how the parole law would work in his case. I’m
simply asking for the Court to let them know that there is no parole and
that they shouldn’t consider that in their deliberations which is what I
asked for earlier. I believe that that is the only way that Mr. Demps is
going to have a fair punishment hearing given the fact that the jury’s
obviously indicating that their concern is he’s going to be released onto
parole. So I think that the potential here is that they are going to give
him a higher sentence in fear that he’s going to be eligible for parole
because there is no instruction for parole in this charge like we would
normally give that would explain how that works because he’s not
entitled to even be considered for it. So we’re in a predicament here
where since the passage of that instruction happened, the legislature has
created these very few offenses where no parole applies. And we don’t
have a statutory instruction to give. So I believe it’s in the Court’s
discretion to answer the question that’s been asked, try to comply with
the statutory guideline as it is. So that is my objection as the due process
objection.

14
[Prosecutor]: Your Honor, the State would ask that the Court
send back a standard response that they have the law before them. The
purpose of the Trial Court’s jury charge is to instruct the jurors on the
law applicable to this case. [Article] 37.07 does not speak to parole law
as it relates to this offense of 25 to life without eligibility for parole.
And I believe you don’t have any constitutional or statutory authority
to instruct the jury on parole as it relates to this offense.

THE COURT: I’m going to send back my standard response over
Defense’s objection and requested instruction that the law does not
permit me to answer your question, please refer to the jury charge and
continue your deliberations.

The record reflects that the trial court submitted the following written response to

the jury question: “The law does not permit me to answer your question. Please refer

to the jury charge and continue your deliberations.”

The trial court is required to give the jury a written charge “setting forth the

law applicable to the case[.]” Tex. Code Crim. Proc. Ann. art. 36.14. Article 37.07,

section 4 provides the instructions that trial courts are required to give juries to

inform them about the law of parole. See Tex. Code Crim. Proc. Ann. art. 37.07, §

4; see also Tex. Const. art. IV, § 11(a) (“The Legislature shall have authority to enact

parole laws and laws that require or permit courts to inform juries about the effect

of good conduct time and eligibility for parole or mandatory supervision on the

period of incarceration served by a defendant convicted of a criminal offense.”). In

explaining the Legislature’s intent regarding the provisions of Article 37.07, the

Court of Criminal Appeals has explained that “the Legislature did not want any

creative deviations from its chosen language[]” regarding parole law instructions;
15
consequently, trial judges cannot “cut and paste as they see fit.” Luquis v. State, 72

S.W.3d 355, 363 (Tex. Crim. App. 2002). Article IV, section 11(a) of the Texas

Constitution was passed presumably in response to the Court of Criminal Appeals

decision in Rose v. State which found that requiring a jury instruction on parole law

violates the separation of powers doctrine of the Texas Constitution. See Luquis, 72

S.W.3d at 361; Rose v. State, 752 S.W.2d 529, 535 (Tex. Crim. App. 1987). In

response, the voters amended the Texas Constitution to allow the Legislature to

enact a statute that would require a jury instruction in circumstances determined by

the Legislature. See Luquis, 72 S.W.3d at 361. The Legislature passed Article 37.07

and provided an exception for convictions for, among other things, aggravated

sexual assault of a child under six years of age. See Tex. Code Crim. Proc. Ann. art.

37.07, § 4.

Specifically, Article 37.07, section 4, provides that the language generally

required in a charge addressing the law of parole does not apply to offenses arising

under section 21.02 of the Penal Code, offenses arising under section 22.021 of the

Penal Code that are punishable under subsection (f) of that same section, or to capital

felonies. See id. Demps was convicted of aggravated sexual assault of a child under

six years of age, a violation of section 22.021 and punishable under subsection (f)

because the victim was under six years of age. See Tex. Penal Code Ann.

16
§ 22.021(a)(1)(B), (a)(2)(B), (f)(1). Thus, the instruction regarding parole simply

does not apply to Demps.

Demps makes the argument that failing to instruct a jury in punishment that a

convicted defendant is not eligible for parole for the offense violates the “Due

Process” Clause of the Fourteenth Amendment to the United States Constitution,

citing Lynch v. Arizona, 578 U.S. 613, 613-14 (2016), and Simmons v. South

Carolina, 512 U.S. 154 (1994). Both of these cases are capital murder cases in which

a jury is required to make a finding on future dangerousness in deciding whether to

recommend the death penalty, thereby making the eligibility or ineligibility of parole

in the future a factor that must be considered by the jury in such cases. Demps has

not been convicted of capital murder and future dangerousness is not a factor

required to be found by the jury in order to determine the appropriate punishment.

Demps’s authorities on this point are not applicable.

Demps asserts on appeal that the jury heard evidence that he had previously

been released from prison on parole, so the jury would “obviously consider” parole

in sentencing Demps and Demps argues that the record demonstrates that the jury

was confused by the jury charge’s failure to instruct the jury on Demps’s eligibility

for parole. Demps acknowledges on appeal that Article 37.07 and its instructions do

not apply to his case and that by statute he is not eligible for parole. Quoting Beltran

De La Torre v. State, 583 S.W.3d 613, 618 (Tex. Crim. App. 2019), Demps argues

17
that the general prohibition on non-statutory jury instructions has exceptions,

including “when there is a risk that the jurors may arbitrarily apply an inaccurate

definition to the term or where an express definition of the term is required to assure

a fair understanding of the evidence.” Demps specifically argues the following:

This case should fall within such an exception. Failing to instruct
the jury[] runs the real risk of a jury arbitrarily applying an inaccurate
meaning to Appellant’s prior release on parole and not having a “fair
understanding” of the evidence and correct applicable law, specifically
that Appellant is not parole eligible and to not consider the application
of parole and its effects. It is reasonable to assume that the jurors may
have thought that parole was a possibility for Appellant because the
existence of parole is common knowledge and, especially since they
have received evidence on the issue. The jury note confirms that they
actually did.

Demps further argues that Montgomery County commonly uses special non-

statutory instructions in the jury charge and that such instructions may be relevant

depending on the facts of the case. According to Demps, he requested specific

instructions to be included in the charge, and the requested instructions were relevant

and tailored to the facts of the case and informed the jury of the correct law on the

evidence the jury was presented. Demps contends that the jury’s note provides proof

that the jury was misled and he contends that the trial court’s error in omitting the

requested instructions resulted in harm. Demps relies on Ramos v. State, 831 S.W.2d

10 (Tex. App.—El Paso 1992, pet. ref’d) in arguing that when the jury’s note made

it evident that the jury was considering the effects of parole on the sentence assessed,

the trial court committed reversible error by denying Demps’s request for a curative
18
instruction. Demps asserts that the record does not establish beyond a reasonable

doubt that the trial court’s refusal to instruct the jury to disregard any parole

consideration did not contribute to his forty-five-year sentence which was “almost

double” the minimum sentence of twenty-five years.

This Court has already addressed a similar argument in Cross. In that case, a

jury convicted the defendant of continuous sexual abuse of a child. 2012 Tex. App.

LEXIS 10487, at *1. The defendant complained on appeal that the trial court erred

when it denied his request to include an instruction in the jury charge given in the

punishment phase advising the jury that he would not be eligible for parole. Id. In

concluding that the trial court did not err in refusing the defendant’s requested

instruction concerning his ineligibility for parole, our Court reasoned:

The Legislature has the authority to enact laws that require or
permit courts to inform juries about the effect of good conduct time and
eligibility for parole or mandatory supervision on the period of
incarceration served by a defendant convicted of a criminal offense. See
Tex. Const. art. IV, § 11(a). The Court of Criminal Appeals has
expressed its reluctance to deviate from statutory instructions that are
prescribed by the Legislature. See Luquis, 72 S.W.3d at 363-64. The
Court of Criminal Appeals has indicated that generally, special, non-
statutory instructions have no place in the charge. Kirsch v. State, 357
S.W.3d 645, 651-52 (Tex. Crim. App. 2012). The instruction that Cross
requested about the potential effect of a conviction on his eligibility for
parole was a special, non-statutory instruction. The Legislature has not
provided for such an instruction in prosecutions for continuous sexual
abuse of a child; consequently, we conclude the trial court did not err
in refusing the instruction that Cross requested. See Wesbrook v. State,
29 S.W.3d 103, 121 (Tex. Crim. App. 2000).

Id. at **12-14. We follow our decision in Cross.
19
Demps was convicted of aggravated sexual assault of a child under section

22.021 of the Penal Code punishable under subsection (f) of that same section, and

section 4 of Article 37.07 does not apply to Demps. Accordingly, the requested jury

instruction about his eligibility for parole was a special, non-statutory instruction.

See Ingle v. State, No. 11-16-00121-CR, 2018 Tex. App. LEXIS 3485, at **13-16

(Tex. App.—Eastland May 17, 2018, pet. ref’d) (mem. op., not designated for

publication) (charge omitting instruction that the defendant was not eligible for

parole was not erroneous because section 4 of Article 37.07 did not apply where

defendant was convicted of aggravated sexual assault of a child under section 22.021

punishable under subsection (f) because victim was under the age of six at the time

of the offense); see also Palmer v. State, No. 05-19-01135-CR, 2021 Tex. App.

LEXIS 2153, at **6-8 (Tex. App.—Dallas Mar. 19, 2021, no pet.) (mem. op., not

designated for publication) (Article 37.07 instructions to inform a jury about the law

of parole do not apply to the defendant who was convicted of continuous sexual

abuse of a child; the trial court did not err in denying defendant’s request for the

special, non-statutory instruction); Cross, 2012 Tex. App. LEXIS 10487, at **12-

14. We conclude the trial court did not err in refusing Appellant’s requested jury

charge instruction. See Cross, 2012 Tex. App. LEXIS 10487, at *13; see also

Palmer, 2021 Tex. App. LEXIS 2153, at *8; Ingle, 2018 Tex. App. LEXIS 3485, at

**15-16.

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As to Demps’s argument that, after receiving the jury note during

deliberations, the trial court erred in refusing Demps’s request for a “curative

instruction” to the jury that he was not eligible for parole. “The jury is bound to be

governed by the law it receives from the court.” Lucio v. State, 353 S.W.3d 873, 875

(Tex. Crim. App. 2011); Tex. Code Crim. Proc. Ann. art. 36.13. Although the jury

normally receives the entirety of its instructions before deliberations begin, the trial

court may give further instructions “upon the jury’s written request for additional

guidance regarding applicable law.” Lucio, 353 S.W.3d at 875. “When the trial court

responds substantively to a question the jury asks during deliberations, that

communication essentially amounts to a supplemental jury instruction, and the trial

court must follow the same rules for impartiality and neutrality that generally govern

jury instructions.” Id. However, a communication from the court that merely refers

the jury to the original charge is not an additional instruction. See Earnhart v. State,

582 S.W.2d 444, 450 (Tex. Crim. App. [Panel Op.] 1979).

The Dallas Court of Appeals in Lopez v. State considered and rejected the

same argument made by Demps. See Lopez v. State, No. 05-12-01531-CR, 2014

Tex. App. LEXIS 846, at **2-18. In Lopez, the defendant was convicted of the same

offense as Demps. See id. at *7. During punishment deliberations, the jury sent a

note to the trial court questioning Lopez’s eligibility for parole: “For this type of

offense is their [sic] a possibility for early parole?” Id. at *4. Defense counsel

21
requested that the trial court inform the jury of “what is in the statute, which is that

parole is not an option.” Id. Counsel for the State requested the trial court to inform

the jury that it had “all the law and evidence at [its] disposal.” Id. The trial court

responded to the jury’s note by stating “You have been given all the law and

evidence to which you are entitled. Please resume your deliberations.” Id. Lopez did

not object to the trial court’s response to the jury’s note. Id. at **4-5. The jury

assessed Lopez’s punishment of life imprisonment and imposed a $10,000 fine. Id.

at *5. On appeal, Lopez argued the trial court erred in failing to inform the jury that

he was ineligible for parole. Id. at **5-6. In concluding that the trial court did not

err in its response to the jury note, the Dallas Court of Appeals explained its

reasoning, in pertinent part, as follows:

Article 37.07, section 4, provides that the language generally
required in a charge addressing the law of parole does not apply to
offenses under section 21.02 of the penal code, offenses arising under
section 22.021 of the penal code that are punishable under section (f)
of that section, or to capital felonies. See Tex. Code Crim. Proc. Ann.
art. 37.07, §4. Section 508.145(a) of the government code provides that
a person serving a sentence for aggravated sexual assault of a child
younger than the age of six at the time of the offense is not eligible for
release on parole. Tex. Gov’t Code Ann. § 508.145(a)[].
Thus, the instructions to inform a jury about the law of parole
contained in article 37.07 do not apply to Lopez. The Legislature has
not provided for such an instruction in prosecutions for aggravated
sexual assault of a child under the age of six. The instruction Lopez
requested that he was ineligible for parole was a special, non-statutory
instruction, and the court of criminal appeals has held that special non-
statutory instructions “generally have no place in the jury charge.”
Walters v. State, 247 S.W.3d 204, 211 (Tex. Crim. App. 2007); see also
Levy v. State, 860 S.W.2d 211, 213 (Tex. App.—Texarkana 1993, pet.
22
ref’d) (in the absence of specific constitutional or statutory authority to
do so, the court should not instruct the jury as to effect of parole laws
or how long a defendant would be required to actually serve under a
given sentence).
....
The court of criminal appeals has “recognized that ‘[i]f an
instruction may properly be given in the original charge, it may be given
as an additional instruction.’” Daniell v. State, 848 S.W.2d 145, 147
(Tex. Crim. App. 1993). However, as discussed above, while article
37.07, section 4, provides parole instructions to be utilized in some
cases, that statutory provision has no application to an individual
convicted of aggravated sexual assault of a child. The jury, in
determining punishment to be assessed in such a case is not authorized
to resort to or apply the parole law. Therefore, that Lopez was ineligible
for parole was not information to be considered by the jury in its
punishment deliberations and was not a “piece of information legally
available.” See Haliburton [v. State], 578 S.W.2d [726,] 729 [(Tex.
Crim. App. [Panel Op.] 1979)].
....
The Legislature has not provided for the jury instruction Lopez
requested regarding ineligibility for parole in a case involving
aggravated sexual assault of a child. In the absence of specific
constitutional or statutory authority to do so, the court should not
instruct the jury as to the effect of the parole laws or how long a
defendant will be required to actually serve under a given sentence. See
Walters, 247 S.W.3d at 211; Levy, 860 S.W.2d at 213.

Lopez, 2014 Tex. App. LEXIS 846, at **6-18.

We also find Chavez v. State, No. 05-12-00415-CR, 2013 Tex. App. LEXIS

6782, at **3-9 (Tex. App.—Dallas June 3, 2013, pet. ref’d) (not designated for

publication), instructive. In Chavez, the defendant was charged with the same

offense as Demps and, therefore, section 4 of Article 37.07 did not apply to Chavez.

See id. at *5. Chavez conceded on appeal that he was not claiming that he was

entitled to an instruction on parole in the original charge. Id. at **7-8. Instead,
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Chavez argued that once the trial court received a jury note during deliberations with

questions regarding parole, the trial court had an obligation sua sponte to provide a

curative instruction that the jury was not to consider the effects of parole. Id. at *8.

The State argued that Chavez did not preserve the issue on appeal because he did not

object to the trial court’s response to the jury’s note instructing the jury that “You

have all the law. Please continue your deliberations.” Id. at **2-4. The Dallas Court

of Appeals concluded that the trial court did not err by failing sua sponte to provide

a special, non-statutory curative instruction to the jury that it may consider the effects

of parole because no authority requires a trial court to do so. Id. at **8-9.

The Dallas Court of Appeals in Chavez also distinguished Ramos v. State, 831

S.W.2d 10 (Tex. App.—El Paso 1992, pet. ref’d), the case Demps relies on in

support of his argument. See 2013 Tex. App. LEXIS 6782, at **8-9. In Ramos, a

defendant who was entitled to the statutory instruction on parole failed to request

that it be included in the jury charge. 831 S.W.2d at 17. The El Paso Court of Appeals

concluded that even if a defendant fails to request the statutory instruction on parole,

failure to give a “curative instruction” is error when the jury raises a question about

parole during deliberations and the defendant requests an instruction in response to

the jury question. Id. at 17-18. The Dallas Court of Appeals in Chavez distinguished

Ramos, in part, because Chavez was not entitled to the statutory instruction on parole

in the jury charge. See 2013 Tex. App. LEXIS 6782, at *9 (citing to Tex. Code Crim.

24
Proc. Ann. art. 37.07, § 4). Demps, like Chavez, was also not entitled to the

instruction on parole because section 4 of Article 37.07 did not apply to Demps.

Accordingly, Appellant’s reliance on Ramos is misplaced.

“Because a trial court’s answer to a jury’s question must comply with the same

rules that govern charges, the trial court, as a general rule, must limit its answer to

setting forth the law applicable to the case; it must not express any opinion as to the

weight of the evidence, sum up the testimony, discuss the facts, or use any response

calculated to arouse the sympathy or excite the passions of the jury.” Lucio, 353

S.W.3d at 875; see Tex. Code Crim. Proc. Ann. art. 36.14. If the request from a jury

for additional instructions is improper, the court should refer the jury to the court’s

charge. See Gamblin v. State, 476 S.W.2d 18, 20 (Tex. Crim. App. 1972); Harris v.

State, 668 S.W.3d 83, 94 (Tex. App.—Houston [1st Dist.] 2022, pet. ref’d) (quoting

Ash v. State, 930 S.W.2d 192, 196 (Tex. App.—Dallas 1996, no pet.)).

We have already determined that the trial court properly denied Demps’s

request for a parole instruction in the original charge because Demps was not entitled

to a special, non-statutory instruction on his eligibility for parole. Here, the jury’s

question therefore asked the trial court for a non-statutory instruction. A trial judge

should, as a general rule, avoid non-statutory instructions. Beltran De La Torre, 583

S.W.3d at 617. As the Texas Court of Criminal Appeals has explained, “[W]e reject

non-statutory instructions as improper comments on the weight of the evidence

25
where such instructions are unnecessary to clarify the law and they also draw the

jury’s attention to a particular type of evidence.” Id. at 618. In the absence of specific

constitutional or statutory authority to do so, the trial court should not instruct the

jury as to the effect of parole laws or how long a defendant will be required to

actually serve under a given sentence. See Walters, 247 S.W.3d at 211; Levy, 860

S.W.2d at 213. Therefore, the trial court did not err in failing to give the jury the

instruction Demps requested in response to the jury’s question. See id.; see also

Lopez, 2014 Tex. App. LEXIS 846, at **17-18. We overrule issues two and three.

Conclusion

We note that in the judgment the section entitled “Plea to 1st Enhancement

Paragraph[,]” incorrectly recites “N/A” when the record indicates that Demps

entered a plea of “not true” to the enhancement paragraph. This Court has the

authority to modify the trial court’s judgment to correct clerical errors. See Tex. R.

App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993).

Accordingly, in the judgment we delete the “N/A” in the section entitled “Plea to 1st

Enhancement Paragraph” and substitute “Not True” in its place. We affirm the trial

court’s judgment as reformed.

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AFFIRMED AS REFORMED.

JAY WRIGHT
Justice

Submitted on August 19, 2024
Opinion Delivered December 4, 2024
Do Not Publish

Before Golemon, C.J., Johnson and Wright, JJ.

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