Kenneth Ray Justice v. State ( 2007 )

Affirmed and Memorandum Opinion filed April 19, 2007

Affirmed and Memorandum Opinion filed April 19, 2007.

In The

Fourteenth Court of Appeals

____________

NO. 14-05-01128-CR

____________

KENNETH RAY JUSTICE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 337th Judicial District Court

Harris County, Texas

Trial Court Cause No. 1034667

M E M O R A N D U M   O P I N I O N

Appellant Kenneth Ray Justice challenges his conviction for aggravated assault.  He contends the trial court=s failure to properly instruct the jury during the punishment phase of trial caused him egregious harm such that the trial was not fair and impartial.  We affirm.     

I. Background

Appellant was charged with aggravated assault. During the guilt-innocence phase of his jury trial, appellant testified that he acted in self-defense.  Appellant acknowledged that he previously had been convicted of unlawfully carrying a weapon, robbery, and assault (reduced from aggravated assault with a deadly weapon).  The jury rejected appellant=s assertion of self-defense and found him guilty of aggravated assault. 

At the beginning of the punishment phase, the State re-offered all evidence from the guilt-innocence phase.  In addition, the State introduced appellant=s stipulation to the convictions he had acknowledged in the guilt-innocence phase as well as other convictions for assault, driving while his license was suspended, and two convictions for injury to a child.  The State also introduced as evidence the seven judgments for the convictions to which appellant had stipulated.^[1] In charging the jury during the punishment phase, the trial court did not did not give an instruction that any extraneous offense or bad act allegedly committed by appellant must be proven beyond a reasonable doubt.  The jury assessed punishment at sixty years= confinement in the Institutional Division of the Texas Department of Criminal Justice.

                                                      II. Issue and Analysis

 In his sole issue, appellant asserts that he suffered egregious harm because the trial court did not instruct the jury in the punishment phase that any extraneous offenses or bad acts he was alleged to have  committed must be proved beyond a reasonable doubt. See Tex. Code Crim. Proc. Ann. art. 37.07 ' 3(a) (Vernon Supp. 2005).  In assessing this issue, we first determine whether the jury charge contains error.  See Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim. App. 1996).

In urging his argument that the trial court erred in failing to give the reasonable-doubt instruction, appellant acknowledges the Bluitt case, in which the Court of Criminal Appeals held that a reasonable-doubt instruction is required only for unadjudicated offenses and bad acts, not for convictions.  See Bluitt v. State, 137 S.W.3d 51, 54 (Tex. Crim. App. 2004). Appellant asserts that Bluitt should not govern this case because (1) the stipulation of evidence appellant signed characterized one of his convictions as Ainjury to a child,@ but the trial court in the underlying case stated in its judgment that appellant was convicted of Arecklessly causing bodily injury@; and (2) the prosecutor in her closing argument allegedly mischaracterized appellant=s convictions and the facts surrounding them.  Though statements made in closing arguments are not evidence, appellant claims the prosecutor=s alleged mischaracterization of his convictions during closing argument amounted to allegations of unadjudicated extraneous offenses,^[2] and therefore, the trial court was required to give a reasonable-doubt instruction.  See Tex. Code Crim. Proc. Ann. art. 37.07 ' 3(a); see also Huizar v. State, 12 S.W.3d 479, 484 (Tex. Crim. App. 2000).  This argument lacks merit. If evidence of unadjudicated extraneous offenses or bad acts is admitted during the punishment phase, then the trial court must sua sponte instruct the jury that these alleged  offenses or bad acts must be proven beyond a reasonable doubt.  See Tex. Code Crim. Proc. Ann. art. 37.07 ' 3(a); Huizar, 12 S.W.3d at 484.  Inconsistencies in the evidence as to the  nature of a prior conviction or a mischaracterization of the evidence regarding prior convictions during closing argument does not trigger this duty.  See Tex. Code Crim. Proc. Ann. art. 37.07 ' 3(a); Bluitt, 137 S.W.3d at 53B54.  Thus, because neither an inaccurate description of a prior conviction in a stipulation nor allegedly baseless statements regarding prior convictions made during closing argument constitute evidence of unadjudicated offenses or bad acts, the trial court was not required to give a reasonable-doubt instruction. Likewise, under Bluitt, no such instruction was necessary for the seven prior convictions comprising the punishment-phase evidence.  See Bluitt, 137 S.W.3d at 53B54. Therefore, we conclude there was no charge error, and we need not conduct a harm analysis.

Accordingly, we overrule the appellant=s sole issue on appeal and affirm the trial court=s judgment.

/s/      Kem Thompson Frost

Justice

Judgment rendered and Memorandum Opinion filed April 19, 2007.

Panel consists of Justices Frost, Seymore, and Guzman.

Do Not PublishC Tex. R. App. P. 47.2(b).

---

^[1]  In one of the judgments, the trial court states that appellant is convicted of Arecklessly causing bodily injury,@ which appears to refer to assault. See Tex. Pen. Code ' 22.01(a)(1) (Vernon 2003).  However, in the stipulation of evidence, the parties refer to this conviction as one for Ainjury to a child.@

^[2]  Appellant did not voice any objections during the state=s closing argument in the punishment phase, nor did he ever seek to withdraw or correct the stipulation he had approved in the trial court.   By failing to do so, appellant waived these complaints.  See Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996); Moreno v. State, 195 S.W.2d 321, 328B29 (Tex. App.CHouston [14th Dist.] 2006, pet ref=d). Moreover, appellant has not assigned error on these points. His sole issue on appeal is charge error.