Nearly seven months after his original conviction and 60-year sentenced were overturned on appeal, a Brownwood man has pleaded no contest to stalking in 35th District Court and was sentenced to 20 years in prison.
Bernell Deon McClay, 34, entered the plea Friday before District Judge Steve Ellis, who approved a plea bargain presented by prosecutor Bruce Hoffer and defense attorney Patrick Howard.
McClay was convicted in a December 2009 jury trial in 35th District Court of stalking a woman who had been his live-in girlfriend before forcing him to move out.
During the trial, First Assistant District Attorney Sam Moss put on evidence showing McClay assaulted and injured his then-girlfriend, a mother of four, on Nov. 19, 2008. The woman reported the assault to police and forced McClay to move out, but McClay repeatedly called the woman and returned to her home uninvited, testimony showed.
Police were called six times between Nov. 19 and Nov. 21, but McClay had fled each time before police arrived. On Nov. 21, McClay entered the woman’s home uninvited and destroyed her computer and other property, according to testimony.
McClay fled, but officers apprehended him after a foot chase.
Moss presented evidence of five prior felony and three prior misdemeanor convictions and two previous trips to prison. McClay’s ex-girlfriend testified that McClay had assaulted her while they lived in Mathis and said charges of assault and endangering a child are pending in San Patricio County.
McClay, through his attorney, raised four issues on appeal to the 11th Court of Appeals in Eastland. The appellate court overruled three of the issues, in which McClay claimed there was insufficient evidence to prove he knowingly caused his ex-girlfriend to fear bodily harm.
The appellate court, however, upheld McClay's argument that the trial court "erred when it misstated the law regarding the stalking statute in the introductory paragraph and in the application paragraph of the jury charge."
According to the appellate court, the stalking statute states that a person commits stalking if he or she commits all of the following:
• On more than one occasion, knowingly engages in conduct, including following the other person, that he or she knows will cause the other person to fear bodily injury or death;
• Causes the other the other person to be placed in fear of bodily injury or death;
• Causes a reasonable person to fear bodily injury or death.
McClay's argument was "centered on the fact that the trial court charged the jury … using the word 'or' instead of … by using the word 'and,'" the appellate court wrote.
The trial court's use of the term "or" between the subsections implied that the subsections could each independently constitute the offense of stalking, the appellate court wrote in its opinion. Each subsection should, instead, have been charged as elements of the single offense of stalking.
"This constituted error because, in so charging the jury, the trial court allowed the jury to find (McClay) guilty upon finding fewer than all of the elements of the offense of stalking," the appellate court wrote.