Deion Xavier Jones v. State ( 2018 )

AFFIRM; and Opinion Filed February 5, 2018.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-17-00013-CR
No. 05-17-00014-CR
DEION XAVIER JONES, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 292nd Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F-1520892-V and F-1520893-V
MEMORANDUM OPINION
Before Justices Francis, Evans, and Boatright
Opinion by Justice Boatright
A jury convicted Deion Xavier Jones of two aggravated robbery offenses arising from the
same criminal transaction. The jury assessed punishment at 25 years’ imprisonment for the first
charged offense and six years’ imprisonment for the second. The trial court rendered separate
judgments of conviction that ordered the sentences to run concurrently. Jones appeals and raises a
single issue contending that each of the punishment charges in his trial was fundamentally
erroneous. We affirm.
The State’s cases against Jones were tried together. The State presented evidence during
the punishment phase of the trial that Jones was criminally responsible for two extraneous murders.
This evidence could not be considered by the jury in assessing punishment unless it was satisfied
beyond a reasonable doubt that the extraneous offenses were attributable to Jones. Huizar v. State,
12 S.W.3d 479, 484 (Tex. Crim. App. 2000). The trial court was also required to submit an
instruction in the punishment charge that the jury could not consider evidence of extraneous bad
acts and offenses unless it was satisfied beyond a reasonable doubt that such acts and offenses
were attributable to Jones. Id. Accordingly, each punishment charge in Jones’s trial instructed the
jury that:
[I]f there is any testimony before you in this case regarding the defendant having
committed offenses or acts other than the offense alleged against him in the
indictment in this case, you cannot consider such testimony for any purpose unless
you find and believe beyond a reasonable doubt that the defendant committed such
other offenses or acts, if any were committed.
Notwithstanding this instruction, Jones faults each punishment charge for not also setting forth the
elements of the offense of murder.
In reviewing a complaint of alleged jury charge error, we first determine whether the charge
was erroneous. Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009).1 Jones contends
that “the jury must be informed of the factual circumstances under which they can find that the
State has proven commission of an offense and such is the heart and soul of the jury charge,”
relying on Vasquez v. State, 389 S.W.3d 361, 367 (Tex. Crim. App. 2012), and on Riley v. State,
447 S.W.3d 918, 922 (Tex. App.—Texarkana 2014, no pet.). The foregoing cases address the
requirements of a guilt-innocence charge. Because such a charge is the instrument by which the
jury convicts, it must set out all of the essential elements of the offense. Vasquez, 389 S.W.3d at
366; Riley, 447 S.W.3d at 922. In contrast, the trial court need not charge the jury on the essential
elements of an extraneous offense offered during the punishment phase. Adams v. State, 502
S.W.3d 238, 245 (Tex. App.—Houston [14th Dist.] 2016, pet ref’d). This is so because the burden
of proof in the punishment phase is “applied to a defendant’s involvement in the act itself, instead
1
Even if there was error, it must be “fundamental” if, as in this case, the defendant did not object. Barrios, 283 S.W.3d at 350. However, our
determination that there was no error here renders unnecessary any consideration as to whether the purported error was fundamental.
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of the elements of a crime necessary for a finding of guilt.” Haley v. State, 173 S.W.3d 510, 515
(Tex. Crim. App. 2005). The question at punishment is not whether the defendant has committed
a crime, but instead what sentence should be assessed. Id. While the guilt-innocence phase requires
the jury to find the defendant guilty beyond a reasonable doubt of each element of the charged
offense, “the punishment phase requires the jury only [to] find that these prior acts are attributable
to the defendant beyond a reasonable doubt.” Id.
In sum, the district court did not err in failing to charge the jury on the elements of the
offense of murder during the punishment phase of Jones’s trial. We overrule Jones’s sole issue and
affirm the district court’s judgments.
/Jason Boatright/
JASON BOATRIGHT
JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2
170013F.U05
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
DEION XAVIER JONES, Appellant On Appeal from the 292nd Judicial District
Court, Dallas County, Texas
No. 05-17-00013-CR V. Trial Court Cause No. F-1520892-V.
Opinion delivered by Justice Boatright.
THE STATE OF TEXAS, Appellee Justices Francis and Evans participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 5th day of February, 2018.
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
DEION XAVIER JONES, Appellant On Appeal from the 292nd Judicial District
Court, Dallas County, Texas
No. 05-17-00014-CR V. Trial Court Cause No. F-1520893-V.
Opinion delivered by Justice Boatright.
THE STATE OF TEXAS, Appellee Justices Francis and Evans participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 5th day of February, 2018.
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