Charles Roberts v. State ( 2015 )

ACCEPTED
14-14-00874-CR
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
7/9/2015 3:49:27 PM
CHRISTOPHER PRINE
CLERK
No. 14-14-00874-CR
In the FILED IN
Court of Appeals 14th COURT OF APPEALS
HOUSTON, TEXAS
For the
7/9/2015 3:49:27 PM
Fourteenth Judicial District of Texas
CHRISTOPHER A. PRINE
At Houston Clerk

No. 1381559
In the 177th District Court of
Harris County, Texas

CHARLES ROBERTS
Appellant
v.
THE STATE OF TEXAS
Appellee

STATE’S APPELLATE BRIEF

DEVON ANDERSON
District Attorney
Harris County, Texas
CARLY DESSAUER
Assistant District Attorney
NATHAN HENNIGAN
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
Tel.: 713/755-5826
Fax No.: 713/755-5809
ORAL ARGUMENT REQUESTED ONLY IF REQUESTED BY APPELLANT
STATEMENT REGARDING ORAL ARGUMENT
Pursuant to Texas Rule of Appellate Procedure 9.4(g) and Texas Rule of
Appellate Procedure 39.1, the State requests oral argument only if appellant requests
oral argument.
IDENTIFICATION OF THE PARTIES
Pursuant to Texas Rule of Appellate Procedure 38.2(a)(1)(A), a complete list of
the names of all interested parties is provided below.
Counsel for the State:
Devon Anderson  District Attorney of Harris County
Carly Dessauer  Assistant District Attorney on appeal
Nathan Hennigan  Assistant District Attorney at trial
Appellant or criminal defendant:
Charles Roberts
Counsel for Appellant:
Angela L. Cameron  Attorney on appeal
Ellis McCullough  Attorney at trial
Trial Judge:
Hon. Ryan Patrick
ii
TABLE OF CONTENTS
STATEMENT REGARDING ORAL ARGUMENT .................................................... ii
IDENTIFICATION OF THE PARTIES ......................................................................... ii
TABLE OF AUTHORITIES .............................................................................................. v
STATEMENT OF THE CASE .......................................................................................... 1
STATEMENT OF FACTS .................................................................................................. 1
SUMMARY OF THE ARGUMENTS ............................................................................... 2
REPLY TO APPELLANT’S FIRST POINT OF ERROR............................................. 3
I. Appellant did not preserve his argument that the trial court should not have
allowed the State to impeach him with his prior conviction for assault of
a family member because it was not a crime of moral turpitude, and even if
appellant preserve his argument, any error would be harmless. ................................. 3
a. Appellant failed to preserve his argument that his prior conviction of
assault of a family member was not a crime of moral turpitude because
appellant did not raise this argument before the trial court................................... 7
b. Even if appellant had preserved his argument that the trial court should
not have found his conviction of assault of a family member to be a
crime of moral turpitude, any error would have been harmless. .......................... 8
REPLY TO APPELLANT’S SECOND POINT OF ERROR .................................... 11
II. Appellant has not met his burden of proving that his trial counsel was
ineffective for failing to object to the trial court’s shackling of appellant
during the punishment phase of trial or of showing that, but for his
counsel’s alleged ineffectiveness, there is a reasonable probability that the
result of the proceeding would have been different. .................................................. 11
a. Appellant has not meet his burden of showing that his counsel was
ineffective for failing to object to the trial court allowing appellant to be
shackled during the punishment phase of trial because the record is
silent as to his counsel’s possible reasons for not objecting. ............................... 15
iii
b. Assuming that appellant’s counsel rendered ineffective assistance of
counsel by failing to object to appellant’s leg irons during the
punishment phase of trial, appellant has not shown a reasonable
probability that, but for his counsel’s failure, the result of the proceeding
would have been different. ...................................................................................... 19
REPLY TO APPELLANT’S THIRD POINT OF ERROR ........................................ 22
III.Appellant was not egregiously harmed by the trial court’s failure to instruct
the jury that it had to find that appellant committed his extraneous bad acts
of fighting, disruptive conduct, and threatening beyond a reasonable doubt. ........ 22
CONCLUSION ................................................................................................................... 31
CERTIFICATE OF COMPLIANCE .............................................................................. 32
CERTIFICATE OF SERVICE ......................................................................................... 33
iv
TABLE OF AUTHORITIES
CASES
Allen v. State,
47 S.W.3d 47 (Tex. App.—Fort Worth, pet. ref’d) ..................................................... 25
Almanza v. State,
686 S.W.2d 157 (Tex. Crim. App. 1984) ................................................................. 22, 23
Andrews v. State,
159 S.W.3d 98 (Tex. Crim. App. 2005) ......................................................................... 12
Bagheri v. State,
119 S.W.3d 755 (Tex. Crim. App. 2003) ................................................................... 9, 11
Batiste v. State,
73 S.W.3d 402 (Tex. App.—Dallas 2002, no pet.)....................................................... 30
Bekendam v. State,
441 S.W.3d 295 (Tex. Crim. App. 2014) ..................................................................... 5, 8
Bell v. State,
415 S.W.3d 278 (Tex. Crim. App. 2013) ....................................................................... 14
Bluitt v. State,
137 S.W.3d 51 (Tex. Crim. App. 2004) ......................................................................... 26
Bone v. State,
77 S.W.3d 828 (Tex. Crim. App. 2002) ................................................................... 14, 17
Campos v. State,
458 S.W.3d 120 (Tex. App.—Houston [1st Dist.] 2015, pet. filed)..................... 4, 5, 9
Cedillos v. State,
250 S.W.3d 145 (Tex. App.—Eastland 2008, no pet.) ................................................ 18
Chambliss v. State,
No. 14-10-00035-CR, 2011 WL 665323
(Tex. App.—Houston [14th Dist.] Feb. 24, 2011, pet. ref’d)
(mem. op., not designated for publication)..................................................................... 9
Deck v. Missouri,
544 U.S. 622 (2005).................................................................................................... 14, 20
Garza v. State,
213 S.W.3d 338 (Tex. Crim. App. 2007) ....................................................................... 13
v
Glasscock v. State,
No. 06-11-00239-CR, 2012 WL 2127514
(Tex. App.—Texarkana June 13, 2012, pet. ref’d)
(mem. op., not designated for publication)................................................................... 20
Goodspeed v. State,
187 S.W.3d 390 (Tex. Crim. App. 2005) ................................................................. 13, 18
Hardeman v. State,
868 S.W.2d 404 (Tex. App.—Austin 1993, pet. dism’d) ........................................... 5, 9
Huerta v. State,
359 S.W.3d 887 (Tex. App.—Houston [14th Dist.] 2012, no pet.) ........................... 13
Huizar v. State,
12 S.W.3d 479 (Tex. Crim. App. 2000) ................................................................... 23, 24
Huizar v. State,
29 S.W.3d 249 (Tex. App.—San Antonio 2000, pet.) ........................................... 28, 29
Jackson v. State,
877 S.W.2d 768 (Tex. Crim. App. 1994) ................................................................. 13, 15
King v. State,
953 S.W.2d 266 (Tex. Crim. App. 1997) ................................................................... 9, 11
Lopez v. State,
343 S.W.3d 137 (Tex. Crim. App. 2011) ................................................................. 13, 18
Ludwig v State,
969 S.W.2d 22 (Tex. App.—Fort Worth 1998, pet. ref’d) ............................................ 9
Martinez v. State,
313 S.W.3d 358 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d) ..............24, 26, 27
Menefield v. State,
363 S.W.3d 591 (Tex. Crim. App. 2012) ....................................................................... 13
Middleton v. State,
125 S.W.3d 450 (Tex. Crim. App. 2003). ...................................................................... 22
Ngo v. State,
175 S.W.3d 738 (Tex. Crim. App. 2005) ....................................................................... 23
Norris v. State,
902 S.W.2d 428 (Tex. Crim. App. 1995),
overruled on other grounds, Roberts v. State,
273 S.W.3d 322 (Tex. Crim. App. 2008) ....................................................................... 10
vi
Potier v. State,
68 S.W.3d 657 (Tex. Crim. App. 2002) ........................................................................... 9
Rylander v. State,
101 S.W.3d 107 (Tex. Crim. App. 2003) ....................................................................... 13
Saenz v. State,
421 S.W.3d 725 (Tex. App.—San Antonio 2014),
reversed on other grounds, 451 S.W.3d 388 (Tex. Crim. App. 2014) ................................ 16
Sansom v. State,
292 S.W.3d 112 (Tex. App.—Houston [14th Dist.] 2008, pet. ref’d) ....................... 24
Stevens v. State,
No. 01-07-00111-CR, 2008 WL 2743947
(Tex. App.—Houston [1st Dist.] July 10, 2008, no pet.)
(mem. op., not designated for publication)................................................................... 18
Strickland v. Washington,
466 U.S. 668 (1984)..............................................................................................12, 13, 19
Stuhler v. State,
218 S.W.3d 706 (Tex. Crim. App. 2007) ....................................................................... 22
Theus v. State,
845 S.W.2d 874 (Tex. Crim. App. 1992) ..................................................................... 4, 9
Thompson v. State,
9 S.W.3d 808 (Tex. Crim. App. 1999) ........................................................................... 12
Wiseman v. State,
223 S.W.3d 45 (Tex. App.—Houston 2006, pet. ref’d) .............................................. 18
Zarco v. State,
210 S.W.3d 816 (Tex. App.—Houston [14th Dist.] 2006, no pet.) ........................... 28
Ziolkowski v. State,
223 S.W.3d 640 (Tex. App.—Texarkana 2007, pet. ref’d) .......................................... 19
STATUTES
TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007) .................................................... 23
TEX. CODE CRIM. PROC. ANN. art. 37.07, §3(a)(1) (West Supp. 2014) .......................... 23
vii
RULES
TEX. R. APP. P. 9.4(g) ............................................................................................................. ii
TEX. R. APP. P. 9.4(i). ........................................................................................................... 32
TEX. R. APP. P. 33.1(a)(1) .................................................................................................. 5, 7
TEX. R. APP. P. 38.2(a)(1)(A) ................................................................................................. ii
TEX. R. APP. P. 39.1 ................................................................................................................ ii
TEX. R. APP. P. 44.2(b) ..................................................................................................... 9, 11
TEX. R. EVID. 609............................................................................................................... 4, 8
viii
TO THE HONORABLE COURT OF APPEALS:
STATEMENT OF THE CASE
Appellant was charged with murder (CR at 15; 3 RR at 7-8). After pleading not
guilty, a jury trial was held to determine appellant’s guilt (CR at 172, 199; 3 RR at 8).
The jury found appellant guilty, and per the jury’s determination, the trial court
sentenced appellant to incarceration for fifty years (CR at 189, 197, 199; 5 RR at 127;
6 RR at 30-31). The court certified appellant’s right to appeal, and appellant filed a
timely notice of appeal (CR at 179, 202-03).
STATEMENT OF FACTS
As appellant’s points of error involve aspects of his trial rather than the
evidence of the offense, the State will present a brief recitation of the facts.
Appellant and Albert Terepo had formerly worked together (3 RR at 35, 124).
On New Year’s Eve 2012, appellant texted Albert to see if he had any marijuana for
sale (3 RR at 24; State’s Ex. 44). Albert arranged to sell appellant over $500 of
hydroponic marijuana at an HEB parking lot (3 RR at 18; 4 RR at 25, 26, 29, 32, 85; 5
RR at 76). Appellant traveled to the location, but shortly after he arrived, Albert was
shot and killed (4 RR at 46, 48-49, 50-52; 5 RR at 27; State’s Exs. 47, 48, 49, 50).
Responding police did not find any marijuana on Albert or in his vehicle but found a
mason jar lid from the container in which Albert had stored the marijuana (3 RR at
44, 59, 61; 4 RR at 120).
1
Using Albert’s cellphone history and appellant’s phone records, the police
suspected appellant’s involvement and had him arrested for Albert’s murder (4 RR at
36, 39, 43, 62). While in jail, appellant admitted to a family acquaintance that he had
killed a man for hydroponic marijuana (4 RR at 82, 84, 85).
SUMMARY OF THE ARGUMENTS
Appellant did not preserve his argument that the trial court should not have
admitted his prior conviction for assault of a family member for impeachment
purposes during the guilt phase of trial. As the record establishes, appellant did not
argue that his prior conviction was not a crime of moral turpitude to the trial court.
His factual claim regarding the identity of the complainant was not a legal objection to
the admissibility of the conviction and did not inform that trial court of the legal
theory appellant raises on appeal. However, even if appellant’s argument had been
preserved at trial, any error would be harmless.
Appellant has not met his burden of showing that his counsel was ineffective
for failing to the trial court’s decision to shackle appellant during the punishment
phase of trial. Appellant has not shown that his attorney lacked any strategic reason
for not objecting because the record is silent regarding any plausible considerations
for counsel’s actions. Additionally, the record is underdeveloped regarding what
occurred at trial regarding appellant’s leg irons and, more importantly, whether the
jury perceived them. Further, appellant has not shown that, but for his counsel’s
2
ineffectiveness, if any, there was a reasonable probability that the result of the
proceeding would have been different.
Appellant was not egregiously harmed by the trial court’s omission of an
instruction regarding the State’s burden of proof for extraneous offenses and bad acts
introduced during the punishment phase of trial.
REPLY TO APPELLANT’S FIRST POINT OF ERROR
I. Appellant did not preserve his argument that the trial court should not have
allowed the State to impeach him with his prior conviction for assault of
a family member because it was not a crime of moral turpitude, and even if
appellant preserve his argument, any error would be harmless.
In his first point of error, appellant argues that the trial court abused its
discretion when it allowed the State to impeach him with a prior conviction for assault
of a family member. Appellant argues in his brief that the conviction was not a crime
of moral turpitude because the assault was against his father. Arguing that crimes of
violence against men are not considered crimes of moral turpitude, appellant alleges
that the trial court erred in ruling the evidence admissible. However, when making
this argument, appellant overlooks that the record does not reflect that he articulated
this specific reason for why the conviction was in admissible at trial. As appellant or
his counsel failed to object to the admissibility of his prior conviction under the
grounds that it was not a crime of moral turpitude, appellant has not preserved at trial
the argument he advances on appeal. Thus, his first point of error is waived.
3
Standard of Review
The trial court has “wide discretion” to decide whether to admit evidence of a
defendant’s prior convictions. Theus v. State, 845 S.W.2d 874, 881 (Tex. Crim. App.
1992). Reviewing courts will only reverse a trial court’s ruling admitting evidence of a
defendant’s prior convictions upon a showing of a clear abuse of discretion that lies
outside the zone of reasonable disagreement. Theus, 845 S.W.2d at 881.
Applicable Law
Under Rule 609 of the Texas Rules of Evidence, evidence that a witness has
been convicted of a crime is admissible to attack the witness’s credibility if the crime
was a felony or involved moral turpitude and the court determines that the probative
value of the evidence outweighs its prejudicial effect. TEX. R. EVID. 609(a).
Courts have recognized crimes of moral turpitude to involve “dishonesty,
fraud, deceit, misrepresentation, or deliberate violence,” matters of “personal
morality,” conduct committed “knowingly contrary to justice, honesty, principle, or
good morals,” “baseness, vileness, or depravity,” conduct “immoral in itself,
regardless of whether it is punishable by law,” in that the “doing of the act itself, and
not its prohibition by statute, fixes the moral turpitude,” or “immoral conduct” that is
“willful, flagrant, or shameless, and which shows a moral indifference to the opinion
of the good and respectable members of the community.” Campos v. State, 458 S.W.3d
120, 149 (Tex. App.—Houston [1st Dist.] 2015, pet. filed) (quoting Escobedo v. State,
202 S.W.3d 844, 848 (Tex. App.—Waco 2006, pet. ref’d).
4
While most misdemeanor assaultive offenses do not constitute crimes of moral
turpitude, courts have recognized exceptions based on the identity of the victim.
Campos, 458 S.W.3d at 149 (holding assault committed against a child was a crime of
moral turpitude as “an assault committed against a child is ‘generally regarded by the
members of our society as more morally culpable and that the offense involves
conduct that is ‘knowingly contrary’ to ‘good morals’”); see Hardeman v. State, 868
S.W.2d 404, 407 (Tex. App.—Austin 1993, pet. dism’d) (holding that an assault
against a woman is a crime of moral turpitude).
To preserve error on appeal, Texas Rule of Appellate Procedure 33.1 requires
that a party present its timely objection to the trial court in a manner that states “the
grounds for the ruling that the complaining party sought from the trial court with
sufficient specificity to make the trial court aware of the complaint, unless the specific
grounds [are] apparent from the context.” TEX. R. APP. P. 33.1(a)(1); see Bekendam v.
State, 441 S.W.3d 295, 299 (Tex. Crim. App. 2014) (noting that preservation of error is
a systemic requirement on appeal). To preserve error, “[t]he complaining party must
let the trial judge know what [he] wants and why [he] thinks [he] is entitled to it, and
do so clearly enough for the judge to understand.” Bekendam, 441 S.W.3d at 299.
While reviewing courts do not examine with hyper-technical scrutiny whether a party
preserved error, the objection made at trial must comport with the argument made on
appeal. Bekendam, 441 S.W.3d at 299.
5
Relevant Facts
Appellant decided to testify during the guilt phase of trial, but before he took
the stand, the trial court held a hearing regarding the admissibility of appellant’s prior
convictions outside the presence of the jury (5 RR at 54-55). The record reflects the
following exchange between the court, the attorneys, and appellant during this
conference:
The Court: Are there any impeachable priors that are at issue?
Mr. Mccullough [Appellant’s Counsel]: We would ask that he be - -
[Prosecutor]: There’s - -
Mr. Mccullough: - - allowed to testify free of cross-examination for - -
[Prosecutor]: He has a prior for marijuana, but let me make sure that
there are no felonies.
[Appellant]: I don’t have any felonies.
Mr. Mccullough: I think there’s two assaults I was given notice of.
[Prosecutor]: Right.
[Appellant]: Two assaults and a possession.
The Court: [Appellant], you said two assaults and a possession?
[Appellant]: Yes, sir.
[Prosecutor]: He had a probation for assault family member which was
revoked. He was convicted of that. It’s a crime of moral turpitude.
The Court: From what year? Where?
[Prosecutor]: It was in Liberty County. It says County Court, Liberty,
sentenced in 2012.
The Court: Okay.
Mr. Mccullough: I would --
[Appellant]: Me and my father.
Mr. Mccullough: If the Court deems those are relevant, I would ask
that the Court to consider that they are more prejudicial than probative.
The Court: Is there anything else from the State?
[Prosecutor]: That’s the only crime of moral turpitude or felony.
6
The Court: Okay. Well, it being a conviction for a crime of moral
turpitude, assault family member, then I will allow that to be admissible.
So let’s take a short break and we’ll come back and we’ll begin
this. (5 RR at 55-57).
When the trial resumed, the State asked appellant on cross-examination if it
was true that he had “previously been convicted of assault of a family member,” and
appellant answered: “In ‘09, yes, sir, me and my father” (5 RR at 101).
Analysis
a. Appellant failed to preserve his argument that his prior conviction of
assault of a family member was not a crime of moral turpitude because
appellant did not raise this argument before the trial court.
Appellant failed to preserve his argument that the trial court erred when finding
his assault of a family member conviction admissible because appellant failed to argue
to the court that the conviction was not a crime of moral turpitude. TEX. R. APP. P.
33.1(a)(1). As the record shows, appellant only requested that the trial court allow him
to testify free from impeachment and for the trial court to find his prior convictions
more prejudicial than probative (5 RR at 55-57). Appellant did not advance the
argument that he raises on appeal that the trial court should not have ruled the
conviction admissible on the grounds that it was not a crime of moral turpitude (5 RR
at 55-57). Indeed, the record establishes that appellant asked the court to allow him
to testify free from impeachment of his prior convictions or find that the convictions
were more prejudicial than probative (5 RR at 55-57). Thus, appellant preserved an
objection to the admissibility of his conviction for its prejudicial nature but did not
7
advance a specific objection to the conviction on the grounds that it was not a crime
of moral turpitude. TEX. R. EVID. 609(a).
While appellant points to the fact that appellant stated on the record that “the
assault was between his father and himself,” Appellant’s Br. 16, his nebulous remark,
“me and my father,” did not transform his attorney’s request that appellant be able to
testify free from impeachment or his objection to the prior convictions for their
prejudicial value into a preserved argument that the conviction was
inadmissible because it was not a crime of moral turpitude (5 RR at 56). His
argument on appeal simply does not comport with his argument at trial. Bekendam,
441 S.W.3d at 299. As such, appellant waived the argument he raises in his first point
of error, and this Court should overrule it for lack of preservation.
b. Even if appellant had preserved his argument that the trial court should
not have found his conviction of assault of a family member to be a
crime of moral turpitude, any error would have been harmless.
Assuming for the sake of argument that appellant preserved his argument that
his prior conviction of assault of a family member was not a crime of moral turpitude
and assuming that the trial court’s ruling was erroneous, appellant was not harmed by
the admission of the evidence.1
1
Because appellant’s argument was not preserved, the trial court was not faced with deciding
whether appellant’s conviction for assaulting his father was a crime of moral turpitude. Thus, it is
impossible to say whether the trial court would have erred in ruling the conviction admissible in light
of such an argument. No case has discussed whether an assault of a family member or an assault of
a parent by a child is a crime of moral turpitude. However, if confronted with such an argument, a
ruling favoring admissibility of such an offense of an adult child assaulting a parent could be within
8
Applicable Law
Errors in evidentiary rulings are generally non-constitutional error. See Potier v.
State, 68 S.W.3d 657, 662-63 (Tex. Crim. App. 2002). Reviewing courts will reverse a
conviction for the erroneous admission of defendant’s prior conviction if that
admission affected his substantial rights by exerting “a substantial and injurious effect
or influence in determining the jury’s verdict.” King v. State, 953 S.W.2d 266, 271 (Tex.
Crim. App. 1997); see TEX. R. APP. P. 44.2(b). However, the error is harmless if the
reviewing court has “fair assurance that the error did not influence the jury, or had but
a slight effect.” Bagheri v. State, 119 S.W.3d 755, 763 (Tex. Crim. App. 2003).
Analysis
Even assuming that the admission of appellant’s prior conviction for assault of
a family member was error, appellant’s substantial rights were not affected. The
State’s question regarding appellant’s conviction and his acknowledgement of its
existence were brief (5 RR at 101). The jury merely heard that appellant was
the wide zone of discretion trial courts have when determining the admissibility of evidence. See
Theus, 845 S.W.2d at 881. A trial court would be within the zone of reasonable disagreement when
finding that assaulting one’s parent is “morally culpable” and involves “conduct that is ‘knowingly
contrary’ to ‘good morals.’” Campos, 458 S.W.3d at 149; see Hardeman, 868 S.W.2d at 405 (defining
crime of moral turpitude as “a crime involving grave infringement of the moral sentiment of the
community”); see also Ludwig v State, 969 S.W.2d 22, 29-30 (Tex. App.—Fort Worth 1998, pet. ref’d)
(noting that the legislature has condemned family violence when finding Ludwig’s offense of
violating a protective order to be a crime of moral turpitude); but see Chambliss v. State, No. 14-10-
00035-CR, 2011 WL 665323, at *2 (Tex. App.—Houston [14th Dist.] Feb. 24, 2011, pet. ref’d)
(mem. op., not designated for publication) (refusing to hold that dating violence, as a category of
family violence, was a crime of moral turpitude when committed against a man).
9
convicted of assault of a family member in 2009 (5 RR at 101). The State did not
emphasize appellant’s prior conviction, and indeed, it was not mentioned again until
the punishment phase of trial where appellant’s mother offered more circumstances
regarding the offense to the jury (6 RR at 7). See Norris v. State, 902 S.W.2d 428, 441
(Tex. Crim. App. 1995), overruled on other grounds, Roberts v. State, 273 S.W.3d 322 (Tex.
Crim. App. 2008) (holding that any error in the admission of prior conviction for
impeachment purposes was harmless when State elicited the evidence during cross-
examination and did not mention the conviction in closing arguments).
Indeed, in their closing arguments during the guilt phase, neither the State nor
appellant mentioned appellant’s conviction. Instead, both focused on the evidence
involving the charged offense and credibility determinations that the jury had to make
(5 RR at 108-26). While the State’s case against appellant was circumstantial, the
evidence regarding appellant’s effort to obtain marijuana from Albert, their cellphone
communications, the cellphone triangulation testimony establishing appellant’s
location around the time of the murder, appellant’s own admission of seeing Albert at
the time he was killed, the missing marijuana, and appellant’s admission to a fellow
inmate of killing a man support the jury’s determination of appellant’s guilt (3 RR at
59, 61; 4 RR at 22, 24-25, 29, 84-86, 157-58; 5 RR at 88; State’s Ex. 46-49).
Since the evidence introduced at trial supports the jury’s verdict and neither
side mentioned appellant’s prior conviction after its brief introduction, this Court can
have more than a “fair assurance” that if the trial court erred by admitting the
10
evidence of appellant’s prior conviction for assault of a family member, the error did
not influence the jury. Bagheri, 119 S.W.3d at 763. As the record supports that the
admission of appellant’s prior conviction did not have “a substantial and injurious
effect or influence in determining the jury’s verdict,” even if the trial court erred by
ruling the evidence admissible, appellant was not harmed. King, 953 S.W.2d at 271;
TEX. R. APP. P. 44.2(b). As such, even if this Court were to find that appellant
preserved his objection to the trial court’s ruling, this Court should nevertheless hold
that appellant was not harmed and overrule his first point of error.
REPLY TO APPELLANT’S SECOND POINT OF ERROR
II. Appellant has not met his burden of proving that his trial counsel was
ineffective for failing to object to the trial court’s shackling of appellant
during the punishment phase of trial or of showing that, but for his
counsel’s alleged ineffectiveness, there is a reasonable probability that the
result of the proceeding would have been different.
In his second point of error, appellant contends that his trial counsel rendered
ineffective assistance of counsel by failing to object to the trial court’s shackling of
appellant during the punishment phase of trial. However, the record is silent
regarding appellant’s counsel’s reasons for not objecting and is undeveloped in
regards to what occurred at trial. Because the record does not show if counsel had a
plausible strategic reason for not objecting to appellant’s shackles during the
punishment phase of trial and this Court must strongly presume that counsel’s
conduct falls within a wide range of reasonable professional assistance, appellant has
11
not met his burden of showing that his trial counsel was ineffective. Further,
assuming for the sake of argument that appellant’s counsel was ineffective for his
failure to object, the record does not support that, but for counsel’s ineffectiveness,
the result of the proceeding would have been different.
Standard of Review
The United States Supreme Court has established a two-pronged test for
reviewing claims of ineffective assistance of trial counsel. Strickland v. Washington, 466
U.S. 668, 687, 694 (1984). To prevail under Strickland, a defendant must show 1) by a
preponderance of the evidence that his counsel’s performance fell below an objective
standard of reasonableness, and 2) that, but for counsel’s unprofessional error, there
was a reasonable probability that the result of the proceeding would have been
different. Strickland, 466 U.S. at 687, 694; Andrews v. State, 159 S.W.3d 98, 101 (Tex.
Crim. App. 2005). Unless the defendant makes both showings, the Court of Criminal
Appeals has noted that “it cannot be said that his conviction is rendered unreliable by
a breakdown in the adversarial process.” Andrews, 159 S.W.3d at 101.
Reviewing courts examine the totality of counsel’s representation and the
particular circumstances of the case when evaluating counsel’s effectiveness. Thompson
v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). “The proper measure of attorney
performance remains simply reasonableness under prevailing professional norms.”
Strickland, 466 U.S. at 688. When reviewing courts apply this standard, they do so
deferentially because “[i]t is all too tempting for a defendant to second-guess counsel’s
12
assistance after conviction.” Id. at 689; see Garza v. State, 213 S.W.3d 338, 348 (Tex.
Crim. App. 2007).
Along with a high level of deference, reviewing courts also presume that,
considering the circumstances, a lawyer’s choices were reasonably professional and
motivated by sound trial strategy. Strickland, 466 U.S. at 689. The defendant has the
burden to rebut this presumption by presenting evidence illustrating why counsel
acted as he did. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).
However, trial counsel should ordinarily be afforded an opportunity to explain his
actions before being denounced as ineffective. Rylander v. State, 101 S.W.3d 107, 110-
11 (Tex. Crim. App. 2003). Absent such an opportunity, the reviewing court should
presume that counsel had a plausible reason for his actions. Lopez v. State, 343 S.W.3d
137, 142-43 (Tex. Crim. App. 2011).
“An ineffective-assistance claim must be ‘firmly founded in the record’ and
‘the record must affirmatively demonstrate’ the meritorious nature of the claim.”
Menefield v. State, 363 S.W.3d 591, 592 (Tex. Crim. App. 2012) (quoting Goodspeed v.
State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005)). The reviewing court should not
find an attorney’s performance deficient unless the challenged conduct was so
outrageous that no competent attorney would have engaged in it. Goodspeed v. State,
187 S.W.3d 390, 392 (Tex. Crim. App. 2005). Indeed, the defendant must show that
counsel’s error was so serious that he was not functioning as counsel. Huerta v. State,
359 S.W.3d 887, 891 (Tex. App.—Houston [14th Dist.] 2012, no pet.). The record
13
on appeal usually will be insufficient to show that counsel’s representation was so
deficient or lacking in tactics or strategy as to overcome the presumption that
counsel’s conduct was reasonable and professional. Bone v. State, 77 S.W.3d 828, 833
(Tex. Crim. App. 2002).
Applicable Law
Due process prohibits the use of physical restraints visible to the jury unless the
trial court in its discretion finds that they are justified by the presence of special needs.
Deck v. Missouri, 544 U.S. 622, 626, 627 (2005); see Bell v. State, 415 S.W.3d 278, 281
(Tex. Crim. App. 2013). In Deck v. Missouri, the Supreme Court discussed how
shackling interferes with the presumption of the defendant’s innocence until proved
guilty, diminishes the defendant’s right to “secure a meaningful defense” by
potentially limiting communication with his attorney, and undermines the dignity of
the judicial process. Deck, 544 U.S. at 630-31.
The Court of Criminal Appeals has held that, while a trial court has the
discretion to shackle a defendant, the shackling must be “necessary for a particular
defendant in a particular proceeding.” Bell, 415 S.W.3d at 281. The record also “must
manifest the trial judge’s reasons for restraining a defendant,” and if the record fails to
contain the court’s grounds for restraint, the court errs in shackling a defendant. Bell,
415 S.W.3d at 281.
14
Relevant Facts
After appellant testified during the punishment phase of trial, the trial court
noted for the record that:
[O]nce [appellant] was found guilty, it’s the deputy’s policy to put him in
leg irons. And when he was called to testify here in punishment, he got
up and his [sic] legs irons started banging around and clanking when he
started walking to the witness stand before I had a chance to admonish
him or the jury on that.
So I assume the jury may have seen that he had leg irons, but he basically
got up and started walking toward the box before I had a chance to say
anything. So made that kind of issue moot (6 RR at 21-22).
Appellant’s counsel did not object to the shackling of appellant (6 RR).
Analysis
a. Appellant has not meet his burden of showing that his counsel was
ineffective for failing to object to the trial court allowing appellant to be
shackled during the punishment phase of trial because the record is
silent as to his counsel’s possible reasons for not objecting.
Despite appellant’s claim that his trial court rendered ineffective assistance of
counsel by failing to object when the trial court allowed appellant to be shackled for
the punishment phase of trial, appellant has not met his burden of overcoming the
strong presumption that his counsel’s conduct might have been the result of sound
trial strategy because the record does not contain counsel’s reasons for not objecting.
Jackson, 877 S.W.2d at 771.
While appellant asserts that the record at hand supports ineffectiveness because
the trial court’s shackled appellant without a specific reason and the record indicates
15
that the jury possibly perceived appellant’s leg irons, the record in this case does not
contain an account of counsel’s trial strategy and is underdeveloped regarding whether
the jury actually observed appellant’s shackles. As such, this Court must presume that
appellant’s counsel had a plausible reason for not objecting to the court’s decision to
shackle appellant. Lopez, 343 S.W.3d at 142-43. Appellant’s trial counsel might not
have objected to or pressed the issue of appellant’s being shackled when noted on the
record because of what he observed in the courtroom or his perception of what the
jury could notice. The record is silent in this regard.
Indeed, the record is far from confirming even whether the jury perceived
appellant’s leg irons. The trial court’s language in its statement regarding the shackles
is couched in speculation: “I assume the jury may have seen that he had leg irons” (6
RR at 22) (emphasis added). From his position in the courtroom, appellant’s counsel
might have observed something different and not wanted to press the issue to avoid
developing a negative record for appellant by questioning the jury, giving his own
perspective, or allowing the prosecutor to note what he observed. See Saenz v. State,
421 S.W.3d 725, 755-56 (Tex. App.—San Antonio 2014), reversed on other grounds, 451
S.W.3d 388 (Tex. Crim. App. 2014) (holding that Saenz did not establish ineffective
assistance of counsel for failing to object when the trial court noted its observation
that a juror was sleeping during trial because of considerations of trial strategy
involving what counsel could establish regarding the sleeping juror). As such, the
16
record is not developed enough to support more than speculation regarding trial
counsel’s actions.
It is also possible that counsel may have had a different strategic reason for not
objecting to the court’s decision to allow appellant to be shackled during punishment.
See Bone, 77 S.W.3d at 833 (noting that the record on direct appeal is insufficient to
overcome the presumption that counsel was acting in accordance with tactics or
strategy). Perhaps in a murder case built on circumstantial evidence, counsel
strategically believed that the sight of appellant shackled could invoke sympathy in
members of the jury. As counsel was present in the courtroom and able to observe
the reactions of the jurors, counsel might not have objected to appellant’s leg irons if
he thought the sight would reveal to members of the jury the immediate
consequences for appellant of its guilty verdict and hoped the image would sway some
members to be lenient in punishment. However, the record does not contain any
indication of what counsel had in mind when not objecting on the record when the
trial court mentioned that appellant was shackled. Since the record does not contain
testimony from trial counsel regarding possible trial strategy, this Court must presume
that counsel had a plausible reason for his action.
Because the silent record does not reveal whether appellant’s counsel relied on
strategic reasons for not objecting to appellant’s leg irons during the punishment
phase of trial and he plausibly had reasons for not objecting, appellant has not met his
burden under the first prong of Strickland of showing that his counsel was ineffective.
17
Appellant’s counsel has not had the opportunity to explain his conduct, and in such
cases, the Court of Criminal Appeals has held that the reviewing court must presume
that counsel had a plausible reason for his decisions at trial. See Lopez, 343 S.W.3d at
140, 144 (overruling holding of lower court that found no plausible reason for
counsel’s action when the record was silent). In light of this presumption, appellant
has not met this burden of showing that counsel could not have had a strategic reason
for not objecting to appellant being shackled with leg irons during punishment. As
such, this Court should over rule appellant’s second point of error.2
2
Additionally, appellant has not shown that his counsel’s failure to object was so unreasonable that
no other attorney would engage in it. See Goodspeed, 187 S.W.3d at 392. Indeed, the record infers the
opposite as the trial court stated that it is its deputy’s policy to shackle every defendant once he is
found guilty (6 RR at 21). From the trial court’s own statement, per deputy’s police, the court allows
every defendant before it to be shackled during the punishment phase of trial. However, the State
has not found any reversals arising from this policy of the 177th District Court under its current
judge suggesting that the attorneys for those defendants must not have objected as well. See Stevens v.
State, No. 01-07-00111-CR, 2008 WL 2743947, at *7-10 (Tex. App.—Houston [1st Dist.] July 10,
2008, no pet.) (mem. op., not designated for publication) (holding that the 177th District Court did
not abuse its discretion in shackling Stevens throughout his entire trial for security reasons). While
trial counsel in other courts have preserved error, see Wiseman v. State, 223 S.W.3d 45 (Tex. App.—
Houston 2006, pet. ref’d) (granting new trial to defendant who was shackled for the duration of his
trial), others have not. See Cedillos v. State, 250 S.W.3d 145, 149, 154 (Tex. App.—Eastland 2008, no
pet.) (holding Cedillos failed to preserve error when his counsel did not object to him being shackled
during trial but finding that the record did not support finding his counsel ineffective for his failure
to object).
18
b. Assuming that appellant’s counsel rendered ineffective assistance of
counsel by failing to object to appellant’s leg irons during the
punishment phase of trial, appellant has not shown a reasonable
probability that, but for his counsel’s failure, the result of the proceeding
would have been different.
Even if appellant could met his burden of proof to show that his counsel was
ineffective for failing to object to the trial court allowing appellant to be shackled
during the punishment phase of trial, the record does not help appellant met his
burden of proof to show that, but for his counsel’s failure, the result of the
proceeding would have been different. Strickland, 466 U.S. at 687, 694.
Firstly, the record does not reveal whether the jury noticed that appellant was
shackled during the punishment phase of trial. While the trial court noted that
appellant’s leg irons started “banging and clanking” when he approached the stand to
testify, the court merely “assumed the jury may have seen that he had leg irons” (6 RR
at 21-22). The trial court’s assumption suggested the possibility that the jury might
have perceived appellant’s shackled legs, but nothing else in the record provides any
indication regarding the strength of the court’s assumption that the jury possibly
perceived appellant’s leg irons. Without any further indication on the record
regarding whether the jury saw appellant’s leg iron, this Court can only assume, like
the trial court did, that “the jury may have seen” the shackles and speculate what
affect, if any, the jury may have given them if perceived (6 RR at 22). See Ziolkowski v.
State, 223 S.W.3d 640, 644-45 (Tex. App.—Texarkana 2007, pet. ref’d) (holding that
19
Ziolkowski was not harmed by the trial court’s erroneous shackling of him during trial
when there was no evidence in the record that jurors saw the shackles or that the jury
took the shackles to be an indication of Ziolkowski’s guilt).
Secondly, because the record only contains the trial court’s assumption that the
jury perceived appellant’s leg irons, it is also an assumption to speculate whether the
shackling diminished appellant’s presumption of innocence regarding the evidence of
his extraneous acts admitted during punishment or contributed to his sentence.3 See
Deck, 544 U.S. at 630-31 (shackling diminishes presumption of innocence); Glasscock v.
State, No. 06-11-00239-CR, 2012 WL 2127514, at *3 (Tex. App.—Texarkana June 13,
2012, pet. ref’d) (mem. op., not designated for publication) (holding that shackling
during the punishment phase of trial could infringe upon a defendant’s presumption
of innocence regarding extraneous offenses). Indeed, the jury’s assessment of
punishment does not support a reasonable probability that appellant was harmed by
his counsel’s failure to object to his leg irons as the jury’s verdict falls far below the
maximum range of punishment and is even below the sentence suggested by the State
as appropriate.
3
Discussed below in Reply to Appellant’s Third Point of Error, the State introduced evidence of
appellant’s three prior convictions at punishment as well as evidence of disciplinary infractions
appellant incurred while in jail (5 RR at 101; 6 RR at 15-16, 17, 18; State’s Ex. 63). Appellant
admitted that he had been convicted of his three prior convictions but gave qualifications regarding
his two prior assault convictions (6 RR at 15-20). He also denied one of the disciplinary infractions,
acknowledged the other two, but then gave qualifications for his actions (6 RR at 15-20).
20
As appellant was charged with murder, he faced a sentence of incarceration for
not less than five but no more than ninety-nine years or life (CR at 192). In its
closing argument, the State implored the jury to assess a punishment of sixty years as
an appropriate sentence for Albert’s murder (6 RR at 29). However, the State also
suggested that forty-five years was the minimum punishment the jury should consider
(6 RR at 29). Despite the State telling the jury in its closing argument that appellant
deserved a sixty years sentence, the jury assessed punishment at fifty years (6 RR at
30). As the jury’s verdict on punishment fell in the middle of the range of
punishment appellant faced for murder and towards the lower end of the range
suggested by the State, the jury’s sentence does not suggest that it was influenced to
give appellant a harsher sentence if it perceived his leg irons. Indeed, the jury’s
assessment of punishment does not provide a reasonable probability that appellant
was prejudiced by his trial counsel’s failure to object, if his failure constituted
ineffective assistance of counsel.
Because the record does not suggest a reasonable probability that but for
appellant’s counsel’s failure to object to appellant’s leg irons during the punishment
phase of trial, the result of the proceeding would have been different, appellant
cannot meet his burden of showing that he was prejudiced by his counsel’s
ineffectiveness, if any. As such, this Court should overrule his second point of error.
21
REPLY TO APPELLANT’S THIRD POINT OF ERROR
III. Appellant was not egregiously harmed by the trial court’s failure to instruct
the jury that it had to find that appellant committed his extraneous bad acts
of fighting, disruptive conduct, and threatening beyond a reasonable doubt.
In his final point of error, appellant argues that he was egregiously harmed by
the court’s charge to the jury at the punishment phase of trial because the court failed
to instruct the jury that it needed to find beyond a reasonable doubt that appellant
committed extraneous bad acts while in jail. While the trial court should have
included the instruction, appellant was not egregiously harmed by the omission.
Standard of Review
In determining whether there is reversible error in the jury charge, reviewing
courts first decide whether error exists, and if error exists, then determine whether the
defendant was harmed by the error. Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim.
App. 2003). When the court erred in its jury charge and the defendant failed to object
to the charge at trial, the reviewing court can only reverse if the defendant was
egregiously harmed by the error. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim.
App. 1984).
Jury charge error is egregiously harmful when “it affects the very basis of the
case, deprives the defendant of a valuable right, or vitally affects a defensive theory.”
Stuhler v. State, 218 S.W.3d 706, 719 (Tex. Crim. App. 2007). In determining whether a
defendant was egregiously harmed, “the actual degree of harm must be assayed in
light of the entire jury charge, the state of the evidence, including the contested issues
22
and weight of probative evidence, the argument of counsel and any other relevant
information revealed by the record of the trial as a whole.” Almanza, 686 S.W.2d at
171; see Ngo v. State, 175 S.W.3d 738, 750 n.48 (Tex. Crim. App. 2005). The reviewing
court looks for actual and not just theoretical harm. Almanza, 686 S.W.2d at 171.
Applicable Law
Article 37.07, section 3 of the Texas Code of Criminal Procedure provides that
“evidence may be offered by the State and the defendant as to any matter the court
deems relevant to sentencing, including […] any other evidence of an extraneous
crime or bad act that is shown beyond a reasonable doubt by evidence to have been
committed by the defendant or for which he could be held criminally responsible,
regardless of whether he has been charged with or finally convicted of the crime or
act.” TEX. CODE CRIM. PROC. ANN. art. 37.07, §3(a)(1) (West Supp. 2014). The trial
court has a duty to instruct the jury sua sponte that evidence of extraneous offenses
introduced at the punishment phase of trial must be proven beyond a reasonable
doubt before the jury can consider them. Huizar v. State, 12 S.W.3d 479, 484 (Tex.
Crim. App. 2000); see TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007) (requiring
the trial court to instruct the jury on the “law applicable to the case”).
Analysis
At the punishment phase of appellant’s trial, the trial court failed to include a
reasonable doubt instruction regarding the jury’s consideration of the evidence of
appellant’s extraneous offenses and bad acts (CR at 192-95). Consequently, the trial
23
court did not instruct the jury on the law applicable to this evidence which resulted in
error in the jury charge. Huizar, 12 S.W.3d at 484. However, appellant failed to
object to the court’s failure to include the appropriate instruction in the jury charge (6
RR at 22). Thus, to obtain relief, appellant must have been egregiously harmed by the
trial court’s error. See Sansom v. State, 292 S.W.3d 112, 132 (Tex. App.—Houston
[14th Dist.] 2008, pet. ref’d). The record as a whole does not support such a finding.
a. The court’s charge as a whole
Firstly, while the jury charge does not contain an instruction informing the jury
that it had to find that appellant committed his extraneous bad acts beyond a
reasonable doubt before considering them, the charge as a whole does not support or
refute a finding that appellant was egregiously harmed.
After charging the jury on the range of punishment and parole law but before
its general instructions, the court instructed the jury that “[t]he burden of proof in all
criminal cases rest upon the State throughout the trial and never shifts to the
defendant” (CR at 194). When conducting an egregious harm analysis on an identical
instruction in Martinez v. State, this Court’s sister court found that the charge did not
support or refute a finding of egregious harm. Martinez v. State, 313 S.W.3d 358, 367
(Tex. App.—Houston [1st Dist.] 2009, pet. ref’d) (holding that when the charge stated
“The burden of proof in all criminal cases rests upon the State throughout the trial
and never shifts to the defendant” but did not specifically address the State’s burden
24
of proof for adjudicated extraneous offenses and bad acts, the jury charge weighed
neither for nor against a finding of egregious harm).
While appellant points to the next paragraph in the charge that instructs the
jury that it “may take into consideration all the facts shown by the evidence admitted
before you in the full trial of this case” as an instruction granting the jury the ability to
consider the evidence without limitations, from the beginning of jury selection, the
court and attorneys reiterated that the State’s burden of proof was beyond a
reasonable doubt (3 RR at 17-21, 69, 76, 77, 79). But see Allen v. State, 47 S.W.3d 47,
52 (Tex. App.—Fort Worth, pet. ref’d) (holding that the jury charge did not
egregiously harm Allen but noting that the language in the jury charge informing the
jury to “take into consideration all the facts shown by the evidence” was troubling
when combined with the State’s arguments regarding Allen’s extraneous bad acts).
Indeed, the court’s instruction placing the burden of proof on the State was
reminiscent of the court’s discussion with the jury panel during voir dire when the
court informed the jury that the State bore the burden of proof and appellant bore no
burden at all (3 RR at 23). Combined with the repetition in jury selection that the
State held the burden of proof and that burden of proof was beyond a reasonable
doubt, the court’s charge as a whole, especially when considered in light of the legal
introduction given to the jury during voir dire, does not show that appellant was
egregiously harmed by the court’s omission.
25
Given that the trial court did not give an instruction on the State’s burden of
proof, the jury could have applied the burden repeated to them again and again during
jury selection: beyond a reasonable doubt. However, since there is not a clear
instruction in the jury charge, the charge as a whole neither supports nor refutes a
finding of egregious harm. See Martinez, 313 S.W.3d at 367 (noting that the whole
charge weighed neither for nor against a finding of egregious harm).
b. The state of the evidence
Secondly, the state of the evidence presented at appellant’s trial does not
support that appellant was egregiously harmed by the trial court’s charge.
Despite being circumstantial, the testimony and other evidence presented at the
guilt phase of trial proved beyond a reasonable doubt that appellant shot Albert in the
HEB parking lot and took the two ounces of marijuana that Albert had agreed to sell
him (3 RR at 59, 61; 4 RR at 22, 24-25, 29, 157-58; 5 RR at 88). Appellant’s cellphone
records established his movements and location around the time of the murder and
place appellant at the scene of the crime (State’s Ex. 46-49). And additionally,
appellant later admitted to the murder (8 RR 84-86).
As for the evidence regarding appellant’s prior extraneous convictions, the
State introduced the judgment from appellant’s misdemeanor possession of
marijuana, and appellant admitted to fighting with his father and being convicted of
one other assault, proving them beyond a reasonable doubt (5 RR at 101; 6 RR at 15-
16, 17, 18; State’s Ex. 63). See Bluitt v. State, 137 S.W.3d 51, 54 (Tex. Crim. App. 2004)
26
(holding that prior final convictions do not need to be re-proven beyond a reasonable
doubt to be admissible under Article 37.03, section 3 when the conviction has already
been proven in another proceeding).
As for the evidence regarding appellant’s disciplinary problems while in jail, the
record shows that while appellant denied fighting, he acknowledged his other
disciplinary violations:
[Appellant]: …[B]ut all those charges are not correct.
[Prosecutor]: Okay. So this fighting case --
[Appellant]: The fighting case, that was horseplaying. We both ended
up with a fighting case. It was horseplaying.
[Prosecutor]: Okay. And then disruptive conduct?
[Appellant]: Yes, I did because they had a shakedown and some of my
food was stolen.
[Prosecutor]: Okay. So you were the victim in that one, too. But you
still lost your visitation for that?
[Appellant]: Yes.
[Prosecutor]: And then threatening, also. Who were you threatening?
[Appellant]: We was watching TV and a dude came into the tank
thinking he was running things and changed the TV and me and him had
some words.
[Prosecutor]: Okay. And so you lost your privileges for seven days?
[Appellant]: Yes (6 RR at 16-17).
Appellant’s testimony and his disciplinary records are the only evidence the State
offered to prove appellant’s extraneous bad acts; however, his disciplinary problems
of fighting, disruptive conduct, and threatening are not as serious as the charged
offense of murder and his prior convictions for assault (6 RR at 5-16, 17, 18; State’s
Ex. 63). See Martinez, 313 S.W.3d at 368 (holding that in light of the evidence of
Martinez’s guilt of aggravated robbery and criminal history, the evidence of his
27
unadjudicated offenses did not make the case for punishment clearly more
persuasive). In light of his prior convictions for assault and the jury’s determination
of his guilt in Alfred’s murder, appellant’s disciplinary infractions of fighting,
disorderly conduct, and threatening would not have made the case for appellant’s
punishment more persuasive. Thus, he was not egregiously harmed by the evidence
of them.
c. The arguments of counsel
Additionally, the arguments of counsel indicate that appellant was not
egregiously harmed by the trial court’s omission of the instruction in the jury charge.
The State did not mention appellant’s prior disciplinary infractions, much less his
prior convictions, in its arguments on punishment (6 RR at 26-29). See Zarco v. State,
210 S.W.3d 816, 827 (Tex. App.—Houston [14th Dist.] 2006, no pet.) (holding that
Zarco was not egregiously harmed by the lack of instruction regarding the State’s
burden of proof regarding extraneous offense evidence at the punishment phase even
though the State did mentioned the evidence in closing). While appellant’s counsel
did mention appellant’s “record of some misconduct,” he pointed out to the jury that,
while “any record […] is serious in some perspective,” appellant’s prior history was
“not egregious” (6 RR at 25). The arguments of counsel and their lack of emphasis
on appellant’s extraneous offenses and convictions weigh against a finding of
egregious harm. See Huizar v. State, 29 S.W.3d 249, 250 (Tex. App.—San Antonio
2000, pet.) (finding that omission of the State’s burden in the jury charge at
28
punishment did not egregiously harm Huizar despite the State relying on “substantial
evidence of extraneous conduct” and remarking during closing arguments that “the
State had no burden of proof during the punishment trial”).
d. Other relevant information
Finally, the record does not support a finding of egregious harm because the
jury’s assessment of punishment was far below the maximum available sentence for
appellant’s offense of murder. Martinez, 313 S.W.3d at 369 (“In addressing other
relevant information, we may consider the severity of the punishment assessed, which
may indicate egregious harm in some situations.”). Appellant faced a punishment
range of five years to ninety-nine years or life incarceration, but the jury assessed fifty
years as his punishment (CR at 192, 197, 199; 6 RR at 30-31). See Huizar, 29 S.W.3d at
250 (concluding that Huizar did not suffer egregious harm from the trial court’s
failure to instruct the jury on the State’s burden at punishment when the punishment
assessed by the jury was within the authorized range of punishment). Appellant’s
sentence was well within the range authorized for his offense of murder.
Indeed, not only was appellant’s sentence within the middle of the authorized
range of punishment, the jury’s assessment of punishment was also below the
sentence the State request that it give appellant (6 RR at 29). In its closing arguments,
the State asked that the jury assess sixty years for appellant’s punishment but told the
jury not to assess anything less than forty-five years (6 RR at 29). The fifty year
sentence assessed by the jury is much closer to the minimum range suggested by the
29
State in its argument. Batiste v. State, 73 S.W.3d 402, 408 (Tex. App.—Dallas 2002, no
pet.) (finding no egregious error when the jury’s assessment of punishment was far
below the maximum available even though the State suggested that the jury start “at
the top” of the punishment range).
Because the jury’s assessment of punishment was in the middle of the
authorized range for appellant’s offense of murder and was below the sixty year
sentence suggested by the State, appellant’s sentence does not support a finding that
he was egregiously harmed.
Indeed, the record as a whole does not support a finding that appellant was
egregiously harmed by the trial court’s jury instruction. Because the jury charge as a
whole, the evidence presented, the arguments of counsel, and the jury’s assessment at
punishment do not suggest that appellant was egregiously harmed by the court’s
charge, this Court should overrule appellant’s third point of error and affirm his
conviction.
30
CONCLUSION
The State of Texas respectfully urges the Court to overrule appellant’s points of
error and affirm his conviction.
DEVON ANDERSON
District Attorney
Harris County, Texas
/s/ Carly Dessauer
____________________________________________________________________________________________________________________________________________________________________________________
CARLY DESSAUER
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
(713) 755-5826
State Bar No. 24069083
dessauer_carly@dao.hctx.net
curry_alan@dao.hctx.net
31
CERTIFICATE OF COMPLIANCE
The undersigned attorney certifies that this computer-generated document has
a word count of 7,983 words, based upon the representation provided by the word
processing program that was used to create the document. TEX. R. APP. P. 9.4(i).
/s/ Carly Dessauer
____________________________________________________________________________________________________________________________________________________________________________________
CARLY DESSAUER
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
(713) 755-5826
State Bar No. 24069083
32
CERTIFICATE OF SERVICE
The State will serve a copy of the foregoing instrument to appellant’s attorney
though TexFile:
Angela L. Cameron
Assistant Public Defender, Harris County
1201 Franklin Street, 13th Floor
Houston, Texas 77002
angela.cameron@pdo.hctx.net
/s/ Carly Dessauer
____________________________________________________________________________________________________________________________________________________________________________________
CARLY DESSAUER
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
(713) 755-5826
State Bar No. 24069083
Date: July 9, 2015
33