Jackson, Erik Jamal ( 2015 )

(Z 1'tS
NO. (o,q-)a-o\M\3-^R
IN THE ORIGINAL
COURT OF CRIMINAL APPEALS
OF TEXAS AT AUSTIN, TEXAS
ERIK JACKSON - PETITIONER
vs .
FILED IN
COURT OF CRIMINAL APPEALS
-STATE OF TEXAS - APPELLEE
mar 27 z::3
PETITION FOR DISCRETIONARY REUIEU
Abel Acosta, Clerk
FROM THE 5th COURT OF APPEALS AT
DALLAS, TEXAS.
ON APPEAL FROM CRIMINAL DISTRICT
COURT NO. 1, OF DALLAS COUNTY, TX
IN CAUSE NO. F11-63319-H
RECEIVED IN
COURT OF CRIMINAL APPEALS
MAR 26 2015
Abel Acosta, Clerk
Erik Jackson - Pro se
TDC3. NO. 1B16262
Ferguson Unit
1212 0 Savage Dr.
Midway, Tx. 75852
NO ORAL ARGUMENT REQUESTED
(*)
Jackson vs State
Contents ;
Cover Page • • -pg. *
Contents' -Page--• • P g •i
Parties Page pg.ii
Oral Argument Page' ---• r-- pg.iii
Authorities Page pg.iv
Case History Page P9^v
Statement of facts Page- -: pg.vi
Issue;. ONE pg.01
Did the Fifth Court of Appeals err by finding that the petitioner
uas not entitled to a lesser included instruction on Theft ?
Issue; TWO pg.OB
Did the Fifth Court of Appeals err by finding that the petitioner
uas not entitled to an accomplice- witness instruction ?
Appendix;
Motion to waive duplicate copies of PDR. » Exhibit (a)
Prayer for Relief & Cert, of Service pg . v n
(i)
Jackson vs State
Parties;
Petitioners Erik Jackson / pro sle / TDC .181 6262
Ferguson Unit - 12120 Savage Dr.
Midway, Tx. 75852
Trial Counsel Robert C-. Hunger - Bar # 240 0 6 923
P0. Box 670959 - Dallas, Tx. 75367
John Q;. Gal van - Bar # 2 4 010 044
14001 Dallas Pkwy. Ste . -1200
Dallas, Tx. 75240
Appeal Counsel Catherine-.C . Bernhard - Bar # 02216575
,P0. Box 2BT7 - Red A-o-k, Tx. 75154
State trial Counsel Jason Fine -Bar # 24055477
Dallas Cnty. Dist/. Att.. Office
133 N. Riverfront Blvd. Lb. 19
Leah Thomson - Bar # 24036177
Address - Same as above
Presiding Judge Honorable Rober-t Burns
Crim.. Dist. Ct. - Dallas Cnty, Tx.
(ii)
Jackson vs State
Oral Argument;
NO ORAL ARGUMENT REQUESTED.
(iii)
Jackson vs State
Authorities;
Almanza v State, 686 sw 2d 157 (T.C.A. 19B5) pg.06, .,10
Arline v State. 721 sw 2d 3--51- (T.C.A. T9B6) pg.10
Barris v State-, 2B3 sw 3d 34B (T.C.A. 2009) pg.10
Bignall v State, 899 sw ,2d 2B2 (Tx. App. Hous .-1 4.1 995 pg.01
Bignall v State, 887 sw 2d 21 (T.C.A. 1994) pg.02
Campbell v State, 571 su 2d 161 (T .C .;A. T 978) pg.06
Casanova v State,. 383 sw 3d 530 (T.C.A. 2012) pg.11
Freeman v State, 3,52 sw 3d 77 (Tx. App. Hous .1 4. 2D1 1 ) pg.09
Freeman v State, 359 sw 3d 646 (T.C.A. 2012) pg.09
Goff v State, 931 sw 2d 537 (T.C.A. 1996) pg.09
Griffen v State, 614 sw 2d 155 (T.C.A. 1981) pg.06
Guzman v State-, 18-8 sw 3d 185 (T.C.A. 2006) • pg.01
Hall v State, 225- sw 3d 524 (T.C.A. 2D07) pg.03
Hampton v State, 109 sw 3d 4-37 (T.C.A. 2003) pg.01
Hooper v -State, 214 sw 3d 9 (T.C.A. 2007) pg.01
Jackson v State, -160 sw 3d 56B (T.C.A. 3005) . ,. pg.02
Masterson v State, 155 sw 3d .167 (T.C.A. 2005) pg.07
Makeig v State, -802 sw 2d 59 (T.C.A. 1990) pg.02
Ngo v State, 175 sw 3d 738 (T.C.A. 2005) •• pg.10
Oursbourn v State, 259 sw 3d 159 (T.C.A. 2008) pg.09
Ovalle v State, 13 sw 3d 774 (T. C. A. 2000) pg.06
Parr v State, 658 sw 2d. 620 (T.C.A. 1983) pg.06
Rousseau v State, 855 sw 2d 666 (T.C.A. 1992) pg.01
Saunders v State,: 840 s-w 2d 390 (T.C.A. 1992) pg.01
Saunders v State, 91 3 sw 2d 564 (T.C.A. 1995) ---.- pg.07
Saunders v State-, 817 sw 2d 68B (T.C.A. 1991) pg.10
Sharp v State, 707 sw 2d 611 (T.C.A. 1986) pg.04
Smith v State-, 332 sw 3d 425 (T.C.A. 20.11) pg.OB
Solisv State, 792 sw 2d 95 (T.C.A. 1990) pg^09
Travino v State, 100 sw 3d 232 (T.C.A. 2003) pg.06
Zamora v State, 411 sw 3d 504 (T.C.A. 2013) - pg.OB
(iv)
Jackson vs State
Case History;
The petitioner, Erik Jackson, was tried and convicted on
for the offenseof Aggravated Robbery and sentenced to FIFTEEN
years in the Texas State Penitentiary. The petitioner filed a
timely notice of Appeal. The petitioner's PDR. was formerly due
oin 1/31/201-5. The petitioner requested an extension of time to
file his PDR. which was-granted. The petitioner's PDR. is now
due on or before; 3/31/2015.
(v)
Jackson vs State
Statement of Facts
The 5th Court of Appeals opinion includes several renditions
of the facts. Some of which include testimony of the petitioner,
Erik Jackson; his friend Demone Butler, and the "alleged" victim,
Ramiro Adame. However, each witness's testimony contradicts the
others. The Court's opinion also contains "hearsay" statements
that were allegedly made by the petitioner's girlfriend, Monique
Adley, who incidently did not testify at the petitioner's trial.
The petitioner adopts his appellate counsel's statement of facts
in pertinent part as follows.
On the night of December 23-rd. 2011, the petitioner engaged
in a conspiracy to solicit for prostitution. Petitioner Jackson
staged Monique in a Club parking lot and. drove around the corner
to wait for Monique to call him to pick her up upon completion.
Somehow the pick up point became confused and the petitioner was
unable to locate Monique. When he finally found .Monique she was
walking near some warehouses. She. had an Iphone , Credit Cards,
and approx. a Hundred Dollars in Cash that she didn't have when
the petitioner had dropped her off earlier.
(vi)
Jackson vs State
Issue; ONE
Did the Fifth Court of Appeals err by finding that the petitioner
was not entitled to a lesser included--instruct ion on Theft ?
Standard of review;
An accused is 'entitled to an instruction' on every defensive
issue raise.d by the evidence;- regardless of whether such evidence
is strong., weak, unimpeacheo or otherwise. See; Saunders v State
B40 sw 2d 390, 391 (T.C.A. 1992). In order to determine whether
an accused is entitled to a-lesser included offense instruction a
reviewing court applies the traditional two part "Rousseau" test.
See; Rousseau v State, 85 5 sw 2d 666, 6 73 (T.C.A.. 1992). First,
the lesser offense must be included within the proof necessary to
establish the 'greater' offense. See; Bignall v State, BB7 sw 2d
21, 23 (T.C.A. 19 94). Secondly, some evidence must exist within
the record which would permit a re a sonable juror to conclude that
if the accused is guilty-- he is guilty only of a lesser offense.
See; Guzman v State, 188 sw 3d 18 5,. 187 (T..C.A. 2006). If there
is more than a "scintilla" of evidence that raises the-issue of a
lesser included offense- a c-h ar-ge; ri-n str-uct ion mus ib :•: be ,.g iven .. See;
Hampton v State, 109 sw .3d 437, 441 ( T .C .A . 200 3) .
Summery of Argument;
In the instant case, the Honorable Fifth Court of Appeals has
applied an erroneous: analysis by !?r;e.'^:w:eig;hiTrg-^t'h'e-;evd-dence-"- which
conflicts with a ~G o u-r-tv o f -.; C r im in al- -App e a 1 s . . p rlo r •• d eci s i • n i\ i < S e e ;
Hooper v State, 214 sw 3d 9, 12 (T.C.A. 2007).
(1)
Jackson vs State
Arguments & Authorities;
The petitioner argues that the Court of Criminal Appeals have
previously determined that Theft can be a lesser included offense
of Robbery and/or Aggravated Robbery. See; Bignall vs State, 887
sw 2d 21, 25 (T.C.A. 1994). The statutory elements of Aggravated
Robbery include the commission of Robbery. Likewise the elements
of Robbery include the commission of Theft:.. See; Tx. Penal Code
§29.02 (Robbery); §29.03 (Agg. Robbery); §31.03 (Theft).
A trial court's decision on whether or not to submit a lesser
included offense instruction is reviewed for abuse of discretion.
See; Jackson vs State, 160 sw 3d 568, 575 (T.C.A. 2005). A trial
court "abuses it's discretion" when it's decision is arbitrary or
unreasonable or without reference to guiding rules or principles.
See; Makeig v State, 802 sw 2d 59, 61 (T.C.A. 1990)'. In the case
at bar, the Court of Appeals basically condoned the trial court's
decision to deny the jury an- opportunity to weigh the credibility
of the witnesses testimony as well as the circumstantial evidence
and any reasonable inferences thereof. A person commits Theft if
he or she unlawfully appropriates property with the intentions of
depriving the rightful owner of said property. The appropriation
of property is an unlawful act if said property is stolen and the
actor appropriates the property "knowing" that it was "stolen" by
another. See; Tx. Penal Code §31.03 (a) & §31.03 (b).
(2)
Jackson vs State
In the instant case, the Court of Appeals declared that there
was not so much as a "scintilla" of testimonial or circumstantial
evidence, nor even the possibility that a single juror might have
drawn a reasonable inference from the same that if the petitioner
is guilty, he is guilty only of the lesser charge of Theft. See;
Hall v State, 225 sw 3d 524, 536 ( T .C .A, •20:07 ) . Indeed, the Court
of Appeals stated in no uncertain terms; " There-is <.NO ;<£uT'D:ENCE in
the record showing that Jackson 'knew' the IPhone was stolen...".
See; CO A. Op in. pg. 7. The Court of Appeals further stated that;
"[t] tie re was no way for him [petitioner] to 'know' the IPhone was
stolen". See ; C0A . Opin . pg .8 .
The petitioner "whole heartedrly" disagrees, with the 5th Court
of Appeals findings for "several" reasons. First,', the petitioner
argues that the Court of Appeals utilized an "erroneous" standard
of analysis. The Court of Criminal Appeals stated that the Court
of Appeals S'hould not determine whether an inference is or is not
reasonable based on the combined/cumulative force of the evidence
when viewed in the light most favorable to the conviction. See;
Hooper v State, 214 sw 3d 9, 12 (T.C.A. 2007). In this case, the
Court of Appeals clearly re-weighed the testimonys and decided to
desregard that of Demone Butler who's testimonial,evidence surely
exceeds the ••" scintilla" necessary to warrant,a Theft instruction.
See; Hampton v State, 109 sw 3d 437, 441 (T.C.A. 2003).
(3)
Jackson vs State
On review of Demone Butler's version of the events the jurors
were provided the choice to believe all, part or none of Butler's
testimony. The petitioner argues- that Butler's version is not so
incredible under such circumstances that it would be unreasonable
far a rational jury to have believed that Jackson knew the IPhone
was stolen. It is the jurors perogative to believe all, part, or
none of any witness's testimony. See-; Sharp vs State, 707 sw 2d
611, 614 (T.C.A. 19B6). Mr. Butler's testimony supports numerous
reasonable inferences that could have been drawn regarding Theft,
rather than Aggravated Robbery, had the instruction on Theft been
given as requested. Butler testified that himself and petitioner
and the petitioner's girlfriend, Monique. Adley,, had planned to go
to a Club called Cowboys Red River. They arrived too late to get
in. Butler testified that after being turned away from the Club,
The- petitioner said; Okay, "let's go make some money...". Butler
testified that he took that to mean that the -petitioner was going
to send his girlfriend; Monique, out "Hustling" since that's what
she usually did. See;RR.Vol.2-pg.21 5. Butler testified that he
and the petitioner drove Monique to a nearby Club and dropped her
off in the Club parking lot. Shortly thereafter, Monique texted
the petitioner and advised him that she had been I'.p ieked.tup IV/by a
guy in a silver Nissan,. Butler, testified that M'onique\:h:adt,Gre dit
Cards and t-ti e SERhd-o e-i!5 hua he in •&:* heape 111 mera eead nti d: fo ims'elf dpai ek ed pher
up. See-; COA. Opin. pg.3.
(M
Jackson vs State
The evidence of the petitioner's criminal intent to engage in
a conspiracy to "aid or assist" in the commission of prostitution
was clearly raised through, the •testimony of Butler in the instant
case. The fact that Monique-'s original intent to commit one type
of criminal offense (prostitution); resulted in the commission of
a collateral Theft makes no difference at all. The petitioner is
just as guilty of stealing the Credit Cards and IPhone as Monique
under the law of parties-. See; Tx. Pen. Code §7.02. A person is
criminally responsible for the offense committed by another where
acting with intent to promote the commission of an offense;.; he or
she solicits, encourages, directs or aids the other person innithe
commission of that offense. .- See; Tx. Pen. Code §7.02 (a)(2). In
the instant case, the' jurors could have quite reasonably inferred
that the petitioner knew the IPhone was stolen simply because his
girlfriend returned with it under these particular circumstances.
Further still. Officer Dillon testified that the petitioner was a
YIN Nation gang member according to his "facebook" page. The YTN
Nation gang was known for engaging in property offenses according
to OffiierrDi)llonnwh.ba.is3th;B-esup-.eEvisarxof the- gang, unit division
of the Dallas Police Department. See; RR.UQ-13-3-pg.T39,, 143, 148.
If this is not enough upon which the jurors could have reasonably
inferred that the petitioner knew the IPhone was stolen, consider
the fact that when the petitioner realized that the officers were
going to stop him, he grabbed the IPhone from Monique and gave it
to Butler to hide- in the bear, armrest. See; RR .Vol .2-pg .227-28 .
(5)
Jackson vs State
The Court of Criminal Appeals decided long ago that Theft can
be a lesser included offense- of Robbery under some circumstances.
See; Campbell « State, 571 sw 2d 161 (T.C.A. 1978); Parr v State,
65B sw 2d 620, 626 (T.C.A. 19B3); Griffen vs State. 614 sw 2d 155
159 (T.C.A. 1981). The petitioner contends that he has satisfied
the first prong of the Rousseau test by showing- that "Theft^ is a
lesser included offense of Robbery/Aggravated Robbery . Further,
the petitioner contends that he- has satisfied the second prong of
the Rousseau test by showing that the- record supports more- than a
" scintilla" of evidence; albeit possibly circumstantial, which is
all it takes to warrant an inclusion of a lesser included offense
instruction on Theft. See; Rousseau, Supra.
Harm & Prejudice;
The trial court's refusal to give the lesser included offense
instruction on Theft caused SOMB.HARM to the defendant. Pursuant
to Almanza v State, 686 sw 2d 157, 171 (T.C.A. 1984),. when a jury
charge contains error, and that error has been ..properly preserved
by an objection, or requested ins traction; a reversal is required
if the error is "calculated to injure the rights" of a defendant;
meaning, there must be •" Some Harm":.. ': See; TEX. CC'Riifi Ar t. §36.19;
Travino v State, 100 sw 3d 232, 242 (T.C.A. 2003); Almanza @ 171.
The degree of harm must be considered in light of the entire jury
charge, state of the evidence, including contested issues and the
weight of probative evidence ;aBiidg-umg-ntsn of o-fiuiisB-G] jr-eand any other
relevant info.rm-a-S'e-eijv.. Ov-Sile vvSfcatev fr-3a-sia,. 3d3734 :(iiD .C .A. 2000 ):
C6)
Jackson vs State
Harm exists where the penalty imposed for the charged offense
"exceed" the "potential penalty" for the lesser included offense.
See; Bignall vs State, 899 sw 2d 282, 284 (Tx. App. Houston, 14th
Dist. 1995, no pet). Harm also exists when the failure to submit
a lesser included offense instruction leaves the jury with a sole
option of either convicting the defendant of the greater offense,
or "acquitting" him altogether even- though he is obviously guilty
of a lesser- offense. See; Saunders vs State, 913 sw 2d 564. 571
(T.C.A. 1995) .
In the instant case, the "actuallvalue••" of the IPhone was not
conclusively established. Theft of property valued at less than
$1,500.oo is a misdemeanor . The petitioner was given (T5) years;
which is significantly more than it would have been had the trial
court included the Theft instruction requested. TherB«uaere "No"
intervening lesser included offensesdthat the- jury rejected which
would allowuithe court to conclude that the jurors were not put on
the i'lhoions of a delemma" ofi whether to convict of the only option
available or acquit him altogether. See; Masterson vs State, 155
sw 3d 167, 172 (T.C.A. 2005); Beck v Alabama, 447 US. 625, 634-36
(1980). The failure to provide a lesser included instruction on
Theft caused "Some Harm" under Almanza, thus requiring a reversal
and remand for a new trial.
(7)
Jackson vs State
Issue; TWO
Did the Fifth Court of Appeals err by finding that the petitioner
was not entitleddto an accomplice witness instruction ?
Standard of review;
W he;oe t teh e e e w-id e n-e-es--s;h oias'tt-h' a t a a uiwi-ib-n e s s ii s a a n aa c com jb.-l.i e e-i!) a s s a
matter of 1 aw ,th-frstr.iallcourt tmamttine.tr.iaottt.'ra-es juj.ry-.sp-acee-D.ddJrag|$|r-!3
A witness who is indicted for the {Isame-V of fense -, oitix esenaaaiesseci
included offense as the defendantsisnancaooprnplicesas aamatterfof
law; See; Smith v State-, 332 sw 3d 425, 439 (T.C.A. 2011).
Summery of Argument;
In the Instant case, the Honorable - Fifth Court of Appeals has
erred in finding that the trialkcourt had i'lnoiBduipiytUvtpajiiirdi^'id.e an
accomplices-witness instruction sua sponte; See; Zamora vs State,
411 sw 3d 504, 510 (T.C.A. 2013)(Id. @ 513).
Aurgument & Authorities;
When Dem one B utl ex t e s t i f1 ed ;f:ifim,±:W&&$!fe8-&\&B h'titrns n-lii-aiea"'ElDe
was under indictment for the "same "• aggravated robbery which Erik
Johnson was charged with.. Se-e ; RR .Vol .2-p:g .20 3^0 4We;Me*fc^e;iL-ess-3s .
no accomplice witness instruction was either requested by defense
nor provided sua sponte by the trial court. fli-he spstltibneiugf inds
it somewhat premature to argue ineffective -assistance: of counsel;
but inst-edd aa-5.g:ues,t-th.attthe;t:txial-.ccoatt:h;hadaa-BE-o:n.-§tlibiii±ioh-al #d ill t;y.
to pi no liii d-e- the ace d mp i i c e'.nwi tne &s-a instruc tl o n Asees-ap o mt e '.' . See;
Zamora, supra. © 513.
(B)
Jackson vs State
If a prosecution witness is an accomplice as a matter of law a
the trial court has a duty to instruct the- jury that a conviction
cannot be had based on the testimony of that witness unless it is
"corroborated by other evidence- tending to connect the defendant"
with the charged offense; See; Blake v State, 871 sw 2d 451, 452
(T.C.A. 1998). A witness that has been indicted for the same, or
lesser included offense such as Demone Butler is an accomplice as
a matter of law. See; Goff v State, 931 sw 2d 537 (T.C.A. 1996).
The accomplice- witness instruction is part of the "law applicable
to. the case", thus the trial court is "obligated" to instruct the
jurorsasua sponta. Failure to do so is error, regardless whether
the defense requests the-instruction . See-; Soils v State, 792 sw
2d 9 5,98 (T.C.A.19 90).
In the- instant case, it appears the trial court's decision to
withhold the instruction was based on Mr. Butler's testimony that
he took no part in the alleged robbery. See; RR.Uol.3-pg .98 . It
is logical that since Butler was indicted for the same offense as
the petitioner, there was a motive to "lie" in order to shift the
blame, and avoid punishment. A failure to.include an accomplice
witness instruction was error, especially considering such charge
is "implicitly required by statute any time the accomplice witness
issue is .raised by the evidence":; See; Freeman vs State-, 352. sw
3d 77, 82 (Tx.. App. 2011 pet. ref'd-)(359 sw 3d 646 (T.C.A-. 2012),
citing; Oursbourn vs State, 259 sw 3d 159, 1 BO (T.C.A. 200B).
(9)
Jackson vs State
Harm & -Prejudice;
Having demonstrated that the jury charge was deficient due to
the trial court's failure to sua sponte submit accomplice witness
instructions, the next step is to address the "harm sustained" by
the•• petitioner due to the trial court's error. See; Ngo vs- State
175 su 3d 7 38, 743 (T.C.A. 2 005); Barris vs State, 2B3 sw 3d 348
350 (T.C.A. 2009),; Almanza vs State, 6 86 sw 2d 157 (T.C.A. 1985).
In the instant case, the defenseudid not challenge or request the
accomplice "as a matter of law" instruction. Nor did he "object"
to it's omission. When charge error is not preserved a defendant
must show, egregious harm. See; Arline v -State v 721 sw 2d 351 ,35 3
(T.C.A. T9B6)(Id. @ 351-52). The- "actual degree- of -harm" must be
evaluated in light of the entire charge; state of evidence, which
include contested iss.ue-s, weight- of probative evidence, arguments
of counsel and any other relevant information revealed by record.
See; Almanza § 171; & Tx. CCP Art. §36.19.
The failure to receive a fair trial is shown where-a rational
juror could have found the -State-' s case "less persuasive" if they
had been told that the accomplice's testimony may not be accepted
for a basis -cf conviction without some corroborating testimony or
evidence. -See; Saunders v State . 81 7 sw 2d 688-93 (T. C .A.11)991 ).
In assessing harm the reviewing court must look to the "strength"
of the corroborating evidence.
(10)
Jackson vs State
When the evidence is exceedingly weak as in the instant case,
egregious harm is shown. See; Casanova vs •State-.,. 383 sw 3d 530,
533 (T.C.A. 2012)(Id. @ 539). The alleged victim testified that
he was "unable to identify" his attackers. See ; RR.Uol .2-pg.TB9 .
The petitioner's connection to the offense comes largely from his
possession of the stolem IPhone. Butlerrtestified; Monique; Adley
had the IPhone when she returned to the vehicle with Mr. Jackson.
See; COiA. Opin. pg.3. Demone- Butler was the "only witness" that
even "remotely" implicatedda possibility of Jackson's presence at
the scene of the crime. However, even at that rate, one can only
speculate-, since- Butler testified that he "did not see where"- the
petitioner went when he exited the vehicle. See-; CO A. Opin pg.3.
In sum, without Butler's "circumstantial evidence" testimony, the
State]s case against Jackson would have been "significantly less"
persuasive. The weakness of the State's case was quite apparent.
The petitioner was given a Fifteen year sentence for a crime that
carries 5-99 to Life. It is clear that the jurors were- "looking"
for a lesser included offense option. The trial Court's failure
to sua sponte instruct the jury that Butler's. testimony needed to
be corroborated egregiously harmed Jackson, requiring a reversal.
(11 )
Jackson vs State
APPENDIX
Jackson vs State
Grayer for relief;
Wherefore , premises considered; there.jbeing reversible errorfs]
in the trial of this- case, the:petitioner prays this Court will
reverse this judgment and remand for a new trial, or any relief
this court finds fitting and proper under the circumstances.be
granted.
Signature; Erik Jackson
Signature; (JZ! \h ^A^SoO
Certificate of Service;
I, E-RIK-^l-A-EKSON, do hereby certify that the above is true and
correct. The aforegoing petition for discretionary, review is
being placed in the US,, prison mail box on yAcxCCVx SD-\ , 2015
and is addressed to the Court of Criminal Appeals at Austin;
12 30B Capital Station, Austin, Tx. >1^J\ \
Signature; Erik Jackson
signature; /)g,V\ Oft2)4ft7A
TDCJ. No. 1B16 262
Ferguson Unit
12120 Savage Dr.
Midway, Tx. 75B52
(vii)
Jackson vs State
Ex parte § In the- 1st. judicial
Erik Jackson § district court of
§ Dallas,County, Tx.
§
Motion to waive copies of the
Petition for Discretionary Review
Comes Now, Erik Jackson, pro se-, petitioner, in the above styled
and numdered cause, and requests this Honorable Court "WAIUE" any
additional copies of this Petition for Discretionary Review, and
would show the following in support thereof;
I.
The' petitioner is unable to access a copy machine on this unit
for the purpose of copying personal legal work.
Signature ; cW ^ACKSon
Erik Jackson
Exhibit (a)
AFFIRMED; Opinion Filed December 31, 2014.
In The
Court of Appeals
Mttii district of (teas at Ballas
No. 05-12-01413-CR
ERIK JAMAL JACKSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 1
Dallas County, Texas
Trial Court Cause No. F-1163319-H
MEMORANDUM OPINION
Before Justices FitzGerald, Fillmore, and Stoddart
Opinion by Justice Stoddart
A jury convicted Erik Jamal Jackson of aggravated robbery and sentenced him to 15
years' confinement. In two issues, Jackson argues the trial court erred by failing to instruct the
jury on the lesser-included offense of theft and by failing to instruct the jury on the accomplice
witness rule. We affirm the trial court's judgment.
The State alleged Jackson intentionally and knowingly, while in the course of committing
theft of property and with the intent to obtain or maintain control of the property, threatened and
placed the victim in fear of imminent bodily injury and death, and Jackson used and exhibited a
firearm. At trial, the victim of the crime was the State's first witness. Ramiro Adame testified
that on December 23, 2011, he left a bar about 1:00 a.m. He saw a "girl" in the parking lot and,
because it was cold outside, Adame asked the girl if he could help her. The girl told Adame she
was waiting for a friend, but accepted Adame's offer to wait in his car until herfriend arrived.
Adame testified that once the girl was in the car, she was texting with someone on her
phone. Adame stated "she kept saying that she had a friend coming by or close by, and he's
going to pick me up." After about 10 minutes, her friend still had not arrived. The girl asked
Adame for money. When he said he was not going to give money to her, she offered to have sex
with Adame for money; he declined this offer.
A gas station was down the street from the bar. Adame wanted to go to the gas station
and get something to drink and the girl rode in the car with him. During this time, the girl
continued texting on her phone.
When they returned to the car after going into the gas station, Adame offered to take the
girl back to the bar. Instead, as they drove back, she instructed him to turn on to a side street and
said her friends would pick her up there. At some point, the girl told Adame to park. He
described the area where he parked: "There's a small convenience store, kind of like a gas
station, and there's a warehouse there and there's a parking lot. Eventually there's a lot, a
parking lot, so she told me to park right behind there or right just kind of like behind the gas
station at the warehouse, and I parked right there where she told me to." No other cars were in
the parking lot.
As soon as Adame parked, someone opened his car door. Adame testified: "So they pull
me out and say get out of the car. I kind of tried to turn around, and I didn't have a chance
because they told me to don't [sic] look at them, and they had a gun pointed at me, so they told
me to don't [sic] look at them so I just followed their directions." Adame thought there was
more than one attacker. The people who took him out of his car, took everything he had in his
pockets, including his wallet and iPhone. They also took some items from the car.
Adame testified the girl was not robbed and did not seem scared; she left with the people
who robbed him. Adame stated he did not see his attackers well and would not be able to
identify them.
Demone Butler testified as the State's second witness. He was charged with aggravated
robbery along with Jackson and Monique Adley, the "girl" who was in the car with Adame.
Adley was Jackson's girlfriend. Butler testified he attempted to go to a club with Jackson,
Adley, Jackson's brother, and some other people on December 23, 2011, but they were not
admitted because they were underage. Butler and Jackson's brother each had a gun.
Butler testified that after they were turned away from the club, Jackson said "he's about
to go make some money." Butler believed this meant Jackson planned to have Adley prostitute
herself. They left the club and Jackson drove his car (carrying Butler and Adley) to a parking lot
where they dropped off Adley.
Butler testified he and Jackson drove away after dropping off Adley and went to a vacant
"road next to some office buildings." Jackson said the location was where they would pick up
Adley. When they parked near the office buildings, a car carrying Jackson's brother and his
friends parked alongside them. Jackson, his brother, and his brother's friends all got out of their
cars. Butler testified that when Jackson was exiting the car, he asked Butler for Butler's gun.
Butler refused to give it to him.
Butler stayed in Jackson's car and the other men retreated into the darkness. He did not
see where they went or what happened, he did not see a robbery occur, he did not see whether
anyone had a gun. After a couple of minutes, the men and Adley returned to the cars and the
cars drove away. When Jackson and Adley got back into the car, Adley was "going through
some card's," credit cards. They also had an iPhone with them. No one talked about what
happened.
-3-
Jackson drove to a restaurant and then a gas station. Butler testified that at the gas
station, a "cop car started pulling up, and one of the cops gets out, and he was like we tracked her
right here or whatever and I think he's like that. And then [Jackson] grabbed the phone from her,
and he hands it to me and he told me to put it up." Butler testified he put the phone in the
armrest in the back seat. The police arrested Jackson, Butler, and Adley.
Officer Donald Ritchie was a Dallas police officer on December 23, 2011. On that night,
he received a call at 2:28 a.m. about a robbery. He met Adame at a gas station. Adame told
Ritchie he had been robbed by several black males and a black female; they took his money,
wallet, phone, and property. When Ritchie learned Adame's phone was an iPhone, Ritchie used
his own iPhone to track it. Ritchie was "able to see that the phone was, still active and moving at
that time." Ritchie began driving and following the iPhone; he followed the iPhone to a gas
station. The iPhone signal was stationary at the gas station for a while. When the signal moved
again, Richie was able to determine which car the phone was in. Ritchie relayed the vehicle's
information to another officer who stopped the car. The officer found the iPhone, several other
cell phones, a gun, a Halloween mask, and cash in the car. He did not find a wallet or credit
cards. Jackson, Butler, and Adley were in the car. The iPhone was located in the backseat of the
car where Butler had been sitting.
Jackson testified in his defense. Jackson stated he and Adley went to a club that was in
close proximity to the club where Adame met Adley. Butler was with them. Jackson and Adley
had an argument. After they were unable to get into the club, Jackson testified he told Adley "I
wasn't going to waste no more gas or time on taking her nowhere else." Adley got out of the car
and began pacing back and forth in front of the car. Adley then retrieved her purse from the car
and walked away. Jackson said he did not leave the parking lot because he was expecting his
brother to come to the club. Ten to fifteen minutes later, his brother and two friends arrived.
• -4-
Jackson sent Adley a text that said "go to the spot?" Thirty seconds later, Adley replied
"go to the spot." Jackson testified a restaurant was "the spot."
Jackson testified he and his brother drove their cars to a nearby restaurant. Jackson
looked inside the restaurant to see if Adley was there. When he discovered she was not, Jackson
called her on her phone. Adley told him that she was at a gas station; a guy had seen her walking
and offered to give her a ride. Adley told Jackson she would ask the man to take her to the
restaurant. The phone hung up and Adley did not arrive at the restaurant. Jackson called Adley
again, but she did not answer. Jackson became concerned because she was not answering her
phone, her phone had hung up while they were talking, and Adley was in the car with a man.
Jackson stated he decided to go to the gas station to find Adley; his brother was going to drive
his own car to the gas station.
As they drove, Jackson noticed his brother was in the wrong lane. His brother was
following a car matching the description of Adame's car. Adame turned on a side street and
Jackson's brother followed. Due to traffic lights and the lane Jackson was in, he was delayed in
following Adame and his brother. When Jackson turned on the side street, he did not see
Adame's or his brother's car. Jackson began driving through the warehouses and "I come out of
the last one and I see Ms. Adley coming up the street, on the sidewalk." Adley got into
Jackson's car. Jackson testified: "She had a puzzled look on her face, and she got in the car. . . I
kind of started yelling at her because I'm not understanding why you're over here anyways,
what's going on or why are you even over here."
Jackson said Adley told him the following story about encountering Adame:
That's when she tells me about how she got in the car with Adame. She
said that she ~ that Adame had seen her walking west of the club, Club Kendall's,
and he had stopped and offered her a ride. She told him no. He offered again. She
told him no, that she had a ride, she's good, she doesn't need a ride from him. So
he tried to bribe her to get in the car, it was cold outside. So she finally was like
oh, okay, so she got in the car. From there Adame said well, let me go to the store
first, so he made a stop at the store. That's when I found out that that's —the
RaceTrac is where they was at. That's how I found out that they got to the
RaceTrac.
After Jackson picked up Adley, he contacted his brother and they agreed to meet at a gas
station. When Jackson arrived at the station, his brother was already there. He testified his
brother walked to his car and "[fjhat's when he handed me the phone." It was an iPhone.
Jackson stated he sat down in his car with the iPhone; Jackson did not know how the iPhone
came to be in the backseat of the car where the police found it.
Jackson denied he was present when Adame was robbed. He did not see Adame's car
parked. Jackson stated Butler also did not participate in the robbery. He stated the money in
Adley's purse was from Adame because Adame paid Adley for sex. Although Jackson stated
several times he believed no robbery occurred, in a separate proceeding Adley pleaded guilty to
aggravated robbery.
In his first issue, Jackson asserts theft is a lesser-included offense of aggravated robbery
and the trial court erred by failing to instruct the jury on theft. In his brief, Jackson argues the
basis for his request for the theft instruction is Butler's testimony that when the police
approached Jackson's car, Jackson gave the phone to Butler to put in the armrest. Jackson
argues this action is some evidence Jackson knew the phone was stolen.
The trial court's decision to submit or deny a lesser included offense instruction is
reviewed for an abuse of discretion. Threadgill v. State, 146 S.W.3d 654, 666 (Tex. Crim. App.
2004). We apply a two-pronged test to determine if the trial court should have given a jury
charge on a lesser-included offense. Hall v. State, 225 S.W.3d 524, 535-36 (Tex. Crim. App.
2007). We first determine if the proof necessary to establish the charged offense includes the
lesser offense. Id. If it does, we then review the evidence to determine that if appellant is guilty,
he is guilty only of the lesser offense. Id. at 536.
-6-
The second step is a question of fact and is based on the evidence presented at trial.
Cavazos v. State, 382 S.W.3d 377, 383 (Tex. Crim. App. 2012). This step requires the reviewing
court to determine whether "there is some evidence in the record which would permit a jury to
rationally find that, if the defendant is guilty, he is guilty only of the lesser-included offense."
Rice v. State, 333 S.W.3d 140, 145 (Tex. Crim. App. 2011). This evidence must show the lesser
included offense is a "valid, rational alternative to the charged offense." Id. Moreover, it "is not
enough that the jury may disbelieve crucial evidence pertaining to the greater offense. Rather
there must be some evidence directly germane to a lesser-included offense for the factfinder to
consider before an instruction on a lesser-included offense is warranted." Skinner v. State, 956
S.W.2d 532, 543 (Tex. Crim. App. 1997).
Even if we were to conclude that theft is a lesser-included offense of aggravated robbery
in this case, we cannot conclude that if Jackson is guilty, he is only guilty of theft. A person
commits the offense of theft if he unlawfully appropriates property with the intent to deprive the
owner of the property. TEX. PENAL CODE § 31.03(a). An appropriation of property is unlawful if
it is without the owner's effective consent or if the property is stolen and the actor appropriates
the property knowing it was stolen by another. Id. § 31.03(b). In his brief, Jackson argues the
latter: he took possession of the iPhone knowing it was stolen.
There is no evidence in the record showing that Jackson knew the iPhone was stolen, but
did not participate in the robbery. Jackson denied being involved in the robbery, said he did not
see a robbery occur, and testified he did not believe a robbery occurred. He did acknowledge
taking possession of Adame's iPhone and now argues there was some evidence he knew the
iPhone was stolen even though he did not participate in the robbery. The record does not support
this conclusion. Based on the evidence presented at trial, the only means by which Jackson
would have known Adame's iPhone was stolen when he took possession of it—whether he took
-7-
possession at the scene of the crime or at the gas station when his brother handed it to him—is if
Jackson participated in the robbery. If Jackson did not participate in the robbery and did not
have knowledge of a robbery, as he maintained in his testimony, then there was no way for him
to know the iPhone was stolen. Therefore, Jackson could not have been only guilty of theft and
the trial court did not abuse its discretion by denying Jackson's request for a lesser-included-
offense instruction. We overrule Jackson's first issue.
In his second issue, Jackson argues that, with respect to Butler's testimony, the trial court
erred by failing to instruct the jury on the accomplice witness rule. A "conviction cannot be had
upon the testimony of an accomplice unless corroborated by other evidence tending to connect
the defendant with the offense committed." TEX. CODE. CRIM. PROC. Ann. art. 38.14; see also
Herron v. State, 86 S.W.3d 621, 632 (Tex. Crim. App. 2002) (accomplice-witness instruction
informs jury it cannot use accomplice-witness testimony unless there also exists some non-
accomplice evidence connecting defendant to the offense).
Jackson did not object at trial to the trial court's failure to include an accomplice-witness
instruction in the jury charge. Therefore, we reverse the trial court only if the record
demonstrates that the error resulted in egregious harm. Casanova v. State, 383 S.W.3d 530, 533
(Tex. Crim. App. 2012). The court of criminal appeals has articulated the standard for
determining egregious harm under Almanza v. State, 686 S.W.2d 157, 174 (Tex. Crim. App.
1985) (op. on reh'g)) in the context of the failure to submit an accomplice-witness instruction.
Id. In Casanova, the court stated that if "the omission is not made known to the trial judge in
time to correct his error, appellate review must inquire whether the jurors would have found the
corroborating evidence so unconvincing in fact as to render the State's overall case for
conviction clearly and significantly less persuasive." Id. (quoting Saunders v. State, 817 S.W.2d
688, 692 (Tex. Crim. App. 1991)); see also Herron, 86 S.W.3d at 632 (under egregious harm
-8-
standard, omission of accomplice witness instruction is generally harmless unless the
corroborating (non-accomplice) evidence is "so unconvincing in fact as to render the State's
overall case for conviction clearly and significantly less persuasive.").
Whether the trial court's error in failing to submit an accomplice-witness instruction is
harmful is "a function of the strength of the corroborating evidence." Casanova, 383 S.W.3d at
539. The Casanova court stated:
As the strength of the corroborating evidence increases, however, a reviewing
court may no longer be able to declare that the lack of an accomplice-witness
instruction resulted in egregious harm . . . And as the corroborating evidence
gains in strength to the point that it becomes implausible that a jury would fail to
find that it tends to connect the accused to the commission of the charged offense,
then a reviewing court may safely conclude that the only resultant harm is purely
theoretical and that there is no occasion to reverse the conviction, even in the face
of an objection, since the jury would almost certainly have found that the
accomplice witness's testimony was corroborated had it been properly instructed
that it must do so in order to convict.
Id. at 539-40 (internal citations omitted)
The State showed Jackson's girlfriend, Adley, accepted Adame's offer to stay in his car
while she waited for some friends. While she was in the car, she constantly was texting
someone. At Adley's direction, Adame parked his car in a vacant parking lot. As soon as
Adame parked, he was robbed at gunpoint; the people who robbed him took his iPhone and
wallet. However, Adley was not robbed, did not seem scared, and left with the people who
robbed Adame. Adley subsequently pleaded guilty to aggravated robbery.
Jackson admitted to being in the vicinity where the robbery occurred at the time the
robbery occurred. He admitted Adley had been in his car and she got out of his car in the same
geographic vicinity. Jackson admitted that before the robbery he exchanged text messages with
Adley about "go[ing] to the spot." He also admitted to being in possession of the stolen
iPhone—a fact confirmed by the police officer's testimony.
-9-
The non-accomplice testimony in this case is not so unconvincing as to render the State's
case clearly and significantly less persuasive. See id. at 533; Herron, 86 S.W.3d at 632. Rather,
the corroborating evidence and the inferences to be drawn from the evidence more than
sufficiently tend to connect Jackson to the robbery. It is implausible that the jury would have
failed to find the corroborating evidence connected Jackson to the offense. Had it been properly
instructed, the jury almost certainly would have found Butler's testimony was corroborated. See
Casanova, 383 S.W.3d at 539-40. Therefore, we conclude Jackson did not suffer egregious
harm from the trial court's failure to include an accomplice-witness instruction in the jury
charge. We overrule Jackson's second issue.
We affirm the trial court's judgment.
/Craig Stoddart/
CRAIG STODDART
JUSTICE
Do Not Publish
Tex. R. App. P. 47
121413F.U05
-10-
Court of Appeals
iffiftlj Htstrtct of atexas at Uallas
JUDGMENT
ERIK JAMAL JACKSON, Appellant On Appeal from the Criminal District Court
No. 1, Dallas County, Texas
No. 05-12-01413-CR V. Trial Court Cause No. F-1163319-H.
Opinion delivered by Justice Stoddart.
THE STATE OF TEXAS, Appellee Justices FitzGerald and Fillmore
participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 31st day of December, 2014.
-11-