Michael James Strange v. State ( 2007 )

Affirmed and Memorandum Opinion filed April 12, 2007

Affirmed and Memorandum Opinion filed April 12, 2007.

In The

Fourteenth Court of Appeals

____________

NO. 14-05-00756-CR

____________

MICHAEL JAMES STRANGE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 230th District Court

Harris County, Texas

Trial Court Cause No. 1018348

M E M O R A N D U M  O P I N I O N

Challenging his aggravated robbery conviction, appellant Michael James Strange contends the trial court erred in failing to properly instruct the jury during the punishment phase of his trial. We affirm.

I. Factual and Procedural Background

On February 6, 2005, around 3:30 a.m., Hazel Williams, a seventy-year-old woman, arose to prepare for a Super Bowl party she was to host in her home later that day.   Around 4:15 a.m., her doorbell rang.  The motion-detector light near the door appeared to be broken, although it had been working when she went to bed the night before.   Williams could see  two men. When she asked who was there, one of the men responded that it was AMichael@  from next door and he asked to use her telephone to call his wife, explaining that he could not reach his doorbell.  Knowing that the doorbell at that residence was inaccessible because of burglar bars,  Williams  decided to let the men use her telephone.  She cracked open the door and then held the phone outside.  One of the men, whom she later identified as appellant, shoved the door open, knocked her backwards, and caused her to fall across the dining room table and chair. After forcing his way into the residence, appellant choked Williams until she lost consciousness.  Williams had no further recollection of the events until her daughter arrived around 10:00 a.m. that morning to find Williams unconscious and unclothed.

After regaining consciousness, Williams discovered bruises on several parts of her body and the loss of a tooth. The intruders had absconded with an Oldsmobile automobile that Williams had borrowed from a friend.  Also missing from Williams= home was a .22 caliber pistol and her house keys as well as the pot of chitlins Williams had been cooking at the time of the intrusion.  The incident was reported to the police, and appellant was subsequently arrested. He was found riding as a passenger in the stolen automobile.

Following his arrest, appellant signed a statement admitting, but minimizing his participation in the offense.  During a lineup, Williams positively identified appellant, whom she had never seen before the intrusion, as her attacker.  Appellant was charged with the felony offense of aggravated robbery.  The indictment also alleged two prior felony convictions for enhancement.  A jury found appellant guilty as charged.

During the punishment hearing, the State abandoned one of the enhancement allegations in the indictment, and appellant entered a plea of Atrue@ to the remaining allegation of the felony offense of unauthorized use of a motor vehicle. Appellant stipulated to this offense and also admitted to having been previously convicted of eleven criminal offenses, including three felonies, and eight misdemeanors. Stipulations to these previous convictions were admitted into evidence without objection.       

During the punishment phase of the trial, the State called witnesses to testify in regard to other extraneous offenses.  Lakesha McGee, testified that, on February 3, 2001, appellant forced his way into her aunt=s apartment, where she was visiting at the time, and  physically assaulted her.  Another witness, Angela Williams, testified about an incident that occurred around January 26, 2004, in which appellant entered her apartment without her consent and stole her son=s Playstation before she Apushed him out of the apartment.@  Angela Williams pressed charges against appellant and he was taken into custody.

At the conclusion of the punishment phase, the jury found the enhancement allegation in the indictment true, and assessed appellant=s punishment at ninety-nine years= confinement in the Institutional Division of the Texas Department of Criminal Justice. On appeal, appellant complains that the trial court did not give the jury proper instructions during the punishment phase.

II. Issues and Analysis

A.        Did the trial court reversibly err in failing to submit a jury instruction on the burden of proof for extraneous offenses at the punishment phase? 

In his second point of error, appellant argues the trial court erred in failing to give a burden-of-proof instruction on the evidence of extraneous offenses admitted at the punishment phase.  More specifically, he alleges the testimony of Lakesha McGee and Angela Williams constituted evidence of unadjudicated extraneous offenses and the trial court committed fundamental error that caused him egregious harm by failing to instruct the jury under article 37.07, section 3(a) of the Texas Code of Criminal Procedure. 

Appellant failed to object to the lack of this instruction at trial. Under these circumstances, we may reverse only if the record shows that the error was so egregiously harmful that appellant was denied a fair and impartial trial.  See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App.  1985). Egregious harm includes errors (1) affecting the case=s foundation, (2) denying the defendant a valuable right, significantly affecting a defensive theory, or (3) making the case for guilt or punishment clearly and substantially more compelling.  Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996).   In determining the degree of harm, we look to the entire jury charge, the state of the evidence, the arguments of counsel, and any other relevant information from the entire record. Id.; see also Huizar v. State, 12 S.W.3d 479, 484B85 (Tex. Crim. App. 2000) (stating that Almanza sets forth the appropriate harm analysis for charge error).   There must be actual rather than theoretical harm before a reversal of the judgment is authorized.  Dicky v. State, 22 S.W.3d 490, 492 (Tex. Crim. App. 1999). 

Appellant concedes  the trial court was not required to give an instruction regarding those offenses for which the State presented evidence of prior convictions and probations.  He contends only that he was entitled to a burden-of-proof instruction as to the evidence of the extraneous offenses alleged to have occurred in February 2001 and January 2004, offered through Lakesha McGee and Angela Williams, respectively.  Appellant argues  there was no evidence presented to show that these Abad acts@ resulted in convictions.

The State contends there is no error because the extraneous offenses as shown by McGee=s and Angela Williams=s testimony are matters that were actually adjudicated and resulted in prior convictions, and, accordingly, no instruction requiring the jury to find their commission beyond a reasonable doubt was necessary.  See Bluitt v. State, 137 S.W.3d 51, 54 (Tex. Crim. App. 2004) (holding it is unnecessary to give a charge requiring jury to find commission of extraneous offenses beyond a reasonable doubt with respect to adjudicated offenses shown to have been committed by defendant).  The State maintains no further proof of guilt was necessary because the dates of the offenses, as described at trial by McGee and Angela Williams, correspond with dates shown on final judgments and convictions introduced into evidence.  As explained more fully below, the record in this case does not contain sufficient links showing that these offenses were the ones resulting in final judgments and convictions as stated in State=s exhibits 14, 23, and 24.  Thus, we presume error for the sake of argument and evaluate this issue under the Almanza-type harm analysis.  Under this standard, we must determine whether appellant suffered egregious harm as a result of the trial court=s failure to give the reasonable-doubt instruction.

  Appellant contends he suffered egregious harm because the State emphasized the testimony from McGee and Angela Williams in its closing argument when urging the jury to impose a life sentence.  Although the State highlighted this testimony in its closing argument, it was hardly the most piercing evidence against appellant. The State also focused on the twelve stipulated convictions and the particularly offensive nature of the crime for which appellant was on trial.  The evidence of the latter showed that appellant forced his way into the home of an elderly woman who had attempted to help him, physically assaulting her and suffocating her to the point of unconsciousness, and then leaving her badly injured and unclothed, as he absconded with her valuables.  Moreover, appellant admitted that he had committed many other crimes. Appellant=s conviction for the instant offense was enhanced by the following conviction in the indictment:

Before the commission of the offense alleged above (hereafter styled the primary offense), on January 17, 1997, in Cause No. 9415752, in the 177th District Court of Harris County, Texas, the Defendant was convicted of the felony of unauthorized use of a motor vehicle.

Appellant plead Atrue@ to this enhancement.   Appellant also admitted to the following convictions, and the corresponding judgments for these convictions were admitted into evidence at the punishment phase in State=s Exhibit 13:

(1)     The defendant was convicted of Failure to Identify to a Police Officer in County Court at Law No. 3, in Harris County, Texas in cause number 1284385 on February 16, 2005;

(2)     The defendant was convicted of Burglary of a Habitation in the 174th District Court of Harris County, Texas in cause number 0975421 on February 14, 2005;

(3)     The defendant was convicted of Burglary of Building in the 174th District Court of Harris County, Texas in cause number 0936295 on May 2, 2003;

(4)     The defendant was convicted of the offense of assault in County Court at Law No. 3 in Harris County, Texas in cause number 1043134 on March 6, 2001;

(5)     The defendant was convicted of Criminal Trespass in County Court at Law No. 3 in Harris County, Texas in cause number 1043133 on March 6, 2001;

(6)     The defendant was convicted of the offense of Possession of Marijuana in County Court at Law No. 3 in Harris County, Texas in cause number 9915613 on May 14, 1999;

(7)     The defendant was convicted of the offense of Failure to Stop and Give Information in County Court at Law No. 3 in Harris County, Texas in cause number 9915631 on May 14, 1999;

(8)     The defendant was convicted of Driving While Intoxicated in County Court at Law No. 3 in Harris County, Texas in cause number 9915630 on May 14, 1999;

(9)     The defendant was convicted of Unauthorized Use of a Motor Vehicle in the 177th District Court in Harris County, Texas in cause number 9415752 on January 17, 1997;

(10)    The defendant was convicted of Failure to Identify to a Police Officer in County Court at Law No. 14 in Harris County, Texas in cause number 9345182 on November 11, 1993; and

(11)    The defendant was convicted of Possession of Marijuana in County Court at Law No. 14 in Harris County, Texas in cause number 9323839 on November 11, 1993.  

At least three of the foregoing convictions were similar to the instant offense, and one of themCburglary of a habitationCoccurred within the same month as the instant offense.

 Even though we cannot conclude that the offenses to which McGee and Angela Williams testified fall within the  Bluitt exception, the connection  between the dates given by McGee and Angela Williams and those stated in the judgments and convictions in exhibits 14, 23, and 24, can be considered in our review of the entire record during our harm analysis. 

McGee testified that the date appellant broke into her aunt=s apartment and physically assaulted her was February 3, 2001, which is the same date shown on State=s exhibits 23 and 24, introduced during the punishment phase.  The judgment and sentence in exhibit 23 showed that appellant committed the offense of assault on or about February 3, 2001; and the judgment and sentence in exhibit 24 showed that appellant committed the offense of criminal trespass on or about February 3, 2001.  Though the complainant for this conviction is not expressly identified in our record, the date and nature of the offense match the incident McGee described.

Angela Williams testified that appellant, who at the time lived in her apartment complex, entered her apartment without her consent, and stole her son=s Playstation before she Apushed him out of the apartment.@  She testified that the incident occurred on the day of a sidewalk barbeque at the complex. Though Williams initially testified she could not recall the exact date,  when the State asked her about it, she later stated that it was Aon that date,@ presumably a reference to January 26, 2004, the day of the barbeque. She further testified that appellant was taken into custody, and she thereafter pressed charges against him, but she was unsure of the disposition of those charges. The judgment and sentence in exhibit 14 showed the appellant committed the offense of burglary of a habitation on or about January 24, 2004, two days before the day identified as the date of the offense involving the break-in and theft of the Playstation.  

 Appellant does not contend that if a reasonable-doubt-extraneous offense  instruction had been given, the evidence would be insufficient to prove beyond a reasonable doubt that he committed the offenses against McGee and Angela Williams.  See Gholson v. State, 5 S.W.3d 266, 271 (Tex. App.CHouston [14th Dist.] 1999, pet. ref'd) (reasoning that appellant did not show egregious harm because, among other things,  the State proved the extraneous offenses with uncontroverted evidence, and appellant did not contend on appeal that if a proper instruction had been given, the evidence was insufficient to prove beyond a reasonable doubt he committed the extraneous offense).  Nor does appellant contend, or point to evidence that would suggest, that had the trial court given the reasonable-doubt instruction, the jury would not have credited the disputed extraneousBoffense evidence.  See id.  at 271.

After considering the entire charge and  the state of the evidence, including contested issues and the weight of the probative evidence, the argument of counsel, and other relevant information revealed by the record as a whole, we cannot conclude appellant suffered egregious harm.  Compare Allen v. State, 47 S.W.3d 47, 51‑53 (Tex. App.CFort Worth 2001, pet. ref=d) (holding that appellant was not egregiously harmed by the trial court=s failure to instruct on reasonable doubt at punishment stage because there was enough evidence at the guilt stage of trial to support appellant=s sentence as well as clear‑cut evidence that appellant committed the extraneous offenses and the jury=s sentence was within the punishment range for attempted murder), Brown v. State, 45 S.W.3d 228, 231‑32 (Tex. App.CFort Worth 2001, pet. ref=d) (finding that appellant was not egregiously harmed by the trial court=s failure to give a reasonable-doubt instruction because, among other reasons,  there was little doubt of appellant=s connection with most extraneous offenses), Arnold v. State, 7 S.W.3d 832, 835 (Tex. App.CEastland 1999, pet. ref=d) (holding that appellant was not egregiously harmed by court=s failure to instruct because the record reveals that appellant pleaded guilty to all four offenses committed, the victim testified to two extraneous offenses, and appellant did not contend that the evidence was insufficient to prove beyond a reasonable doubt that he committed the extraneous offenses, but only that the instruction was not given), and Fails v. State, 999 S.W.2d 144, 148 (Tex. App.CDallas 1999, pet. ref=d) (finding that appellant was not egregiously harmed because, although he denied hitting the victim, he admitted to pleading guilty to the probated extraneous offense), with Ellison v. State, 51 S.W.3d 393, 397 (Tex. App.CTexarkana 2001, pet.) (holding that appellant was egregiously harmed because his sentence could have been substantially affected by evidence that he committed hate crimes). Even assuming the jury would have rejected entirely the extraneous-offense testimony of McGee and Angela Williams, had the trial court given the reasonable-doubt instruction, it is highly unlikely that the jury would have reached a different result given the nature of the instant offense and appellant=s lengthy criminal record.  Based on the testimony offered during the guilt-innocence phase^[1] and the evidence offered during the punishment phase, we conclude that if the trial court erred, appellant did not suffer egregious harm as a result of the error. We overrule appellant=s first issue.

B.        Did the trial court reversibly err by failing to submit a jury instruction on Agood conduct time@ under article 37.07(4)(a) of the Texas Code of Criminal Procedure?

In his second issue, appellant argues the trial court erred in failing to give an instruction in the punishment charge on Agood conduct time@ as statutorily required under article 37.07(4)(a) of the Texas Code of Criminal Procedure.  Appellant recognizes that he failed to make any objection at trial as to this issue. Therefore, as appellant concedes, he must show egregious harm to prevail on appeal.   See Almanza, 686 S.W.2d at 171; Fails, 999 S.W.2d at 148. Egregious harm includes errors affecting the case=s foundation, or denying the defendant a valuable right, significantly affecting a defensive theory, or making the case for guilt or punishment clearly and substantially more compelling.   Hutch, 922 S.W.2d at 171.  In conducting the harm analysis, we look to the entire jury charge, the state of the evidence, the arguments of counsel, and any other relevant information from the entire record.  Id.

When a defendant has been found guilty of certain offenses, including aggravated robbery, the trial court is required to charge the jury in the punishment phase of the trial on Agood conduct time@ and parole law. Tex. Code Crim. Proc. Ann. art. 37.07, ' 4(a) (Vernon Supp. 2002).   Although the trial court charged the jury on parole law, it failed to include an instruction regarding Agood conduct time.@ Presuming without deciding the trial court erred in failing to give this instruction, we consider whether appellant suffered egregious harm.  Almanza, 686 S.W.2d at 171.  

Appellant has presented no evidence showing the jury was misled by the parole law charge actually given, had any misconceptions about Agood conduct time,@ or increased his sentence based on the absence of this instruction.  In evaluating the impact of this omission from the charge, we note the trial court instructed the jury:

It cannot accurately be predicted how the parole law might be applied to this defendant if he is sentenced to a term of imprisonment, because the application of these laws will depend on decisions made by prison and parole authorities.

The parole-law instruction also stated that the jury may not consider the manner in which the parole law might be applied to appellant.  See  Neal v. State, No. 14-03-01263-CR, 2005 WL 1242301, *2B3 (Tex. App.CHouston [14 Dist.] May 26, 2005, no pet.) (not designated for publication) (concluding that appellant failed to show egregious harm for the absence of Agood conduct time@ language in parole law instruction, when among other things, the jury instruction stated that the application of the parole law could not be predicted in his case, and the jury could not consider the manner in which the parole law might specifically be applied to him.  Based on this record, we cannot conclude that appellant has demonstrated that he suffered egregious harm.  See Bessy v. State, 199 S.W.3d 546, 552B54 (Tex. App.CTexarkana 2006, no pet. ) (rejecting claim of egregious harm for omission of Agood conduct time@ instruction in parole law instruction); Bolden v. State, 73 S.W.3d 428, 434 (Tex. App.CHouston [1st Dist.] 2002, pet. ref'd) (concluding jury charge omitted Agood conduct time@ portion of the parole instruction, but error was not reversible because the appellant did not identify any Aactual@ harm, but instead relied upon mere speculation regarding what the jury might have considered); Myres v. State, 866 S.W.2d 673, 674 (Tex. App.CHouston [1st Dist.] 1993, pet. ref=d) (finding jury charge did not include parole instruction, but a finding of egregious harm, or any harm, would be utter speculation because nothing in the record demonstrated what the particular jury in that case thought about the subject).  Accordingly, we overrule appellant=s second issue.

Having overruled appellant=s two issues on appeal, we affirm the trial court=s judgment.                                                             

/s/      Kem Thompson Frost

Justice

Judgment rendered and Memorandum Opinion filed April 12, 2007.

Panel consists of Justices Frost, Seymore, and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).

---

^[1]  During the punishment phase, the State re-introduced all testimony and evidence from the guilt-innocence phase.    However, even if the State had not expressly re-introduced this evidence during the punishment phase, all evidence from the guilt stage of the trial is Aautomatically@ before the jury at the penalty stage by operation of law. See Green v. State, 839 S.W.2d 935, 945 (Tex. App.CWaco 1992, pet. ref'd). At the penalty stage, a jury may consider all the evidence adduced at the guilt stage. Yohey v. State, 801 S.W.2d 232, 242 (Tex. App.CSan Antonio 1990, pet. ref'd).  There is no requirement that the evidence from the guilt stage be re‑offered in order to be considered by the jury on the issue of punishment.  See Trevino v. State, 100 S.W.3d 232, 238 (Tex. Crim. App. 2003); Buchanan v. State, 911 S.W.2d 11, 13 (Tex. Crim. App. 1995); Ex parte Girnus, 640 S.W.2d 619, 620‑21 (Tex. Crim. App. 1982).