Alexander Abraham v. State
05-18-00942-CR
| Tex. App. | Oct 10, 2019Background
- Appellant Alexander Abraham and Victor Leos met after release from a crisis center; they rode buses, used marijuana, and sought shelter in a hotel.
- In the hotel, Abraham stabbed Leos in the chest and leg, took Leos’s cell phone, and left; Leos sought help and was treated for serious injuries.
- Abraham was indicted for aggravated robbery with a deadly weapon and alleged to have a prior federal felony (an enhancement paragraph).
- A jury convicted Abraham of the lesser-included offense of aggravated assault and the trial court made a deadly-weapon finding; at punishment the jury found the enhancement true and assessed 17 years’ confinement and a $250 fine.
- Abraham challenged on appeal the trial court’s punishment charge for omitting the statutory sentence that a defendant sentenced to less than four years must serve at least two years before parole eligibility.
- The court reviewed unobjected-to charge error under the two-pronged test (existence of error; harm under the egregious-harm standard) and considered the entire record before affirming.
Issues
| Issue | Abraham's Argument | State's Argument | Held |
|---|---|---|---|
| Whether the punishment charge erred by omitting the statutory parole-eligibility language requiring at least two years served for sentences under four years | Omitted language was material because if enhancement were found not true the applicable range would be 2–20 years, making the two-year parole-minimum potentially relevant to the jury’s punishment assessment | Any harm was only theoretical: jury was instructed generally about parole and not to consider its application; sentence (17 years) was outside the omitted provision’s practical range; prosecutor did not urge a particular term | The omission was error but not egregiously harmful under the Almanza/Kirsch standard; conviction affirmed |
Key Cases Cited
- Kirsch v. State, 357 S.W.3d 645 (Tex. Crim. App. 2012) (two-pronged review for jury-charge error: existence and harm)
- Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984) (standard for harm review of jury-charge error)
- Barrios v. State, 283 S.W.3d 348 (Tex. Crim. App. 2009) (unobjected-to charge error requires showing of egregious harm)
- Villarreal v. State, 453 S.W.3d 429 (Tex. Crim. App. 2015) (factors for assessing egregious harm from charge error)
- Luquis v. State, 72 S.W.3d 355 (Tex. Crim. App. 2002) (article 37.07, §4(a) parole instruction is mandatory and its precise language must be used)