The Eleventh Court of Appeals has reversed the conviction and sentence for a 2009 Brown County stalking case where Bernell Deon McClay was found guilty on charges of stalking and was then sentenced to serve 60 years in prison.
Documents state that the trial court charged the jury in the case the by using the word “or” instead of using the word “and” when looking at the stalking statue.
The appeal document states that a person commits the stalking offense if the person, on more than one occasion, knowingly engages in conduct, including following the other person, that: (1) the actor knows or reasonably believes the other person will regard as threatening bodily injury or death for the other person; (2) causes the other person to be placed in fear of bodily injury or death; and (3) would cause a reasonable person to fear bodily injury or death for himself or herself.
The appeal states “in the jury charge, the trial court used the term “or” rather than “and” between each subsection, implying that (1), or (2), or (3) could each independently constitute the offense of stalking. Each subsection should, instead, have been charged as necessary elements of the single offense of stalking. This constituted error because, in so charging the jury, the trial court allowed the jury to find Appellant guilty upon finding fewer than all of the elements of the offense of stalking.”
The appeal also states that the arguments of the prosecution only compounded the charge error. The documents state “in its closing argument, the State emphasized the use of ‘or’ in the charge when it urged the jury that ‘you will have all of those different ways to prove something. Remember those are ‘ors.’’”
The appeal states that Appellate courts have found egregious harm based in part on prosecutor statements that exacerbate the harm done by a jury charge error.
The case will now go back to the 35th District Court for a new trial.
During the original trial in December 2009, First Assistant District Attorney, Sam Moss, presented evidence in the stalking case that the defendant assaulted his live-in girlfriend on November 19, 2008 causing bodily injury to the then 31 year-old mother of four. The victim testified that after the assault she called the Brownwood Police to report the assault and she forced the defendant to move out of her Brownwood home. The evidence revealed that the defendant then began repeatedly calling and returning to the victim’s home uninvited. Testimony established that the Brownwood Police Department was called to the victim’s home six times between November 19 and November 21, 2008, but each time the defendant had fled the location prior to the officer’s arrival.
On the evening of November 21, 2008 the defendant entered the victim’s home uninvited and destroyed her computer and other property as the victim and her four children were present. The defendant then fled the location when Brownwood Police Officers were once again called. Shortly after the November 21, 2008 incident, Brownwood Police Officers were able to locate the defendant coming from an alley way that runs behind the victim’s residence. The defendant ran from Brownwood Police Officers and was eventually apprehended after a several block chase.
First Assistant District Attorney Sam Moss asked the jury to hold the defendant accountable for his conduct and convict him on the stalking allegation. After considering all the evidence the jury convicted Bernell Deon McClay and the trial immediately proceeded to the punishment phase.
The defendant elected for Judge Ellis to determine his punishment in lieu of facing the Brown County Jury. First Assistant District Attorney Sam Moss presented punishment evidence that the defendant had five prior felony convictions, three prior misdemeanor convictions, and had been to the penitentiary on two previous occasions. The victim once again testified in the punishment phase of the trial and described prior incidents where the defendant had assaulted her while living in Mathis, Texas. The victim explained to the Judge the impact the abuse had on her and her children and that charges of Family Violence Assault and Endangering a Child aware still pending in San Patricio County.
First Assistant District Attorney Sam Moss asked Judge Ellis to sentence the defendant to somewhere between 50 years and Life in the penitentiary. After considering all the evidence Judge Ellis pronounced a 60 year prison sentence.
CLICK HERE to see a full copy of the Eleventh Court of Appeals ruling.
