James Sanders v. State ( 2008 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-058-CR
JAMES SANDERS APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 367TH DISTRICT COURT OF DENTON COUNTY
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MEMORANDUM OPINION 1
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I. Introduction
In three points, Appellant James Sanders appeals his life sentence for two
counts of aggravated robbery that will run consecutively with a three-hundred-
month federal sentence.2 We modify the judgment and affirm as modified.
1
See Tex. R. App. P. 47.4.
2
Appellant’s federal sentence, which he was already serving at the time
of the aggravated robbery trial, was for the offense of possession of a firearm
by a felon.
II. Factual and Procedural History
A. The Convictions for Aggravated Robbery
On November 12, 2006, Appellant robbed two employees at a Domino’s
Pizza in Lewisville, Texas. Brian Kennedy, the assistant manager on duty that
night, saw Appellant, wearing a “hoody” and some sort of mask covering his
lower face, push Scott Latham—an employee who was leaving the
building—back through the door as he entered the building. Appellant pointed
a pistol at another employee and demanded money. When the employee
informed Appellant that there was no cash register at her counter, he walked
around the counter to verify, then demanded money from Kennedy. Kennedy
surrendered a bank bag and all of the money in the safe. Appellant left with
approximately $1,600 in cash and checks. Appellant was indicted for two
counts of aggravated robbery. The jury found Appellant guilty of both counts
following his guilty plea.
B. Evidence of Other Crimes and Bad Acts
During the punishment phase, the jury heard testimony from the State’s
witnesses and Appellant about the two aggravated robberies at Domino’s and
about Appellant’s other crimes and bad acts. Appellant admitted that he was
convicted of several counts of aggravated robbery with a firearm in 1994,
2
resulting in his incarceration until 2002.3 He admitted that he served the full
prison sentence because of his poor conduct while in prison.
With regard to an aggravated sexual assault charge pending in Dallas
County at the time of Appellant’s punishment trial, which, according to
Appellant, led to his subsequent crime spree, Appellant testified that on
December 28, 2005, he had consensual sex with a woman in an apartment
complex laundry room. He testified that another woman walked in, saw them,
and left, and then he immediately left because the complainant told him to. The
police arrested Appellant at his apartment several hours later. Detective
Johnson of the Irving Police Department testified about his investigation of this
incident, but neither the complainant nor the witness testified during
Appellant’s punishment trial. Appellant denied committing any offense.
After Appellant was released on bond for the aggravated sexual assault
charge, police arrested him for unlawful restraint, an offense he also denied
committing. Appellant’s bond insurer revoked his bond, and Appellant spent
approximately six and one-half months in jail. When he was again released on
bond, Appellant testified that he was forced to sell his car to retain an attorney.
3
Appellant stipulated to the State’s exhibit containing the five counts of
aggravated robbery from 1994. He testified that he had two additional
convictions for aggravated robbery in 1994.
3
Appellant further testified that stress and the need for money to support his
family and to pay his attorney caused him to commit a series of
crimes—including the eighteen robberies to which he admitted—in November
2006.
During the punishment phase, the jury also heard testimony regarding
another attack, which Appellant did not deny committing. A.G. testified that,
on November 8, she was walking home from a store when Appellant grabbed
her and pushed her into a blue car. A.G. struggled to get out of the car while
Appellant repeatedly stabbed her with a screwdriver. Appellant parked the car
in a secluded area and told A.G. in Spanish that he wanted to rape her. A.G.
testified that she feared for her life as Appellant stabbed her in her head, chest,
ribs, and throat. 4 A.G. lost consciousness and woke up in a closed garbage
dumpster. Appellant claimed he could not recall the incident, but he never
denied it or attempted to cast doubt on A.G.’s testimony. He also claimed that
he “snapped” and “had some type of nervous breakdown” from the stress of
the aggravated sexual assault allegation and that this attack was the result.5
4
When Appellant was unable to remove A.G.’s pants he continued
stabbing her with the screwdriver.
5
Appellant gave the following testimony in response to the State’s
question, “And I guess you don’t remember . . . all the blood all over you and
your car from what you did to [A.G.]?” Appellant replied,
4
The jury heard testimony that on November 12—the same day that
Appellant robbed the Domino’s Pizza employees—Appellant robbed the
receptionist at the Denton Quality Inn by pointing a gun at her and demanding
money. On November 14, Appellant robbed Allison Scott at gunpoint in front
of North Texas Vision in Lewisville. Appellant, wearing a mask and a hood,
grabbed Scott’s purse as she was about to enter the store and ordered her to
give him the purse. Scott initially refused, but she complied when Appellant
pointed a gun at her head.
On November 15, Appellant robbed an employee at the Lewisville Easy
Loan. An employee saw Appellant walking towards the building in a black
“hoody” with a white rag covering his lower face; believing Appellant was a
robber, the employee pressed the panic button before Appellant even entered
the building. At gunpoint, Appellant took all the money from the cash registers
and the safe and then left. Appellant admitted to committing this robbery.
On November 16, Appellant, wearing a “black squiggly wig,” robbed
When I was driving, I saw blood on my arm and I saw blood on the
shirt I had on. And the screwdriver was in the passenger-side
floorboard of the car. And when I saw all that, I knew something
had happened, but, I don’t know, I couldn’t remember what
happened. And at that time I pretty much went into a panic, and
I drove home. I went in -- I wiped the blood off as best I could
outside. I went in the house. I changed clothes.
5
three employees at the Lewisville Security Finance Loan office. At gunpoint,
Appellant demanded money from the three employees; he left with $883 in a
black plastic bag. Appellant also admitted to committing this robbery.
Lewisville Police Officer Jay Alexander was on patrol the night of
November 17 and early morning of November 18 when he saw a blue car in a
motel parking lot that matched the description of a car wanted by the Carrollton
Police Department. Officer Alexander reported the car’s vehicle identification
number and learned that it was the car that Carrollton police wanted, that it
was Appellant’s car, and that a warrant had been issued for his arrest. Other
Lewisville officers arrived and arrested Appellant in his motel room on the
warrant.6
At trial, Dallas Detective Brent Maudlin testified that on November 20,
2006, he questioned Appellant at the Lewisville Police Department
6
Pursuant to a warrant, Lewisville police searched Appellant’s motel room
and car. In the room, they found a black coat with a hood, a gray “hoody,” a
piece of white cloth, a Dallas Cowboys hat, a black curly wig, a black plastic
bag, a bank bag containing over $19,000 in cash, and a Deringer-style pistol.
In the car, police found three pairs of shoes from Footlocker and a receipt for
sunglasses from the Sunglass Hut purchased on the day of a robbery in Dallas,
and two jerseys and a Dallas Cowboys jacket purchased on the dates of two
other robberies. The car also contained lug nuts for the car’s special set of tire
rims that Appellant testified that he purchased for around $1,500 during his
crime spree. In the glove box, the police found $495 in cash, an Ace check
card with a value of $2,000, and a $250 gift certificate to the Body Shop.
6
Headquarters about a series of robberies that occurred in Dallas over the
previous two weeks. Appellant admitted to committing twelve robberies in
Dallas. 7 During the interview, Appellant ran out of the room and attempted to
escape. Appellant admitted that this was his first of three escape attempts
following his November 2006 arrest. His second attempt occurred in March
2007, when he attempted to run away after exiting a transport van in leg
shackles. He quickly fell to the ground, and officers secured him. Appellant’s
third escape attempt occurred in June 2007 at the Denton County Jail when
he threw cleaning fluid into a police officer’s eyes and ran out of his cell and
down the hallway.8 The officer chased Appellant and tackled him three times,
but each time Appellant broke free. Appellant was finally subdued with the
help of three other officers.
By the end of the punishment phase of this trial, Appellant admitted to at
least eighteen aggravated robberies—including the incidents described above—a
1994 conviction for seven counts of aggravated robbery with a firearm, a
federal conviction for possession of a firearm by a felon for which he was
7
Appellant admitted to at least eighteen robberies in Dallas and Denton
counties in November 2006. The cases in Dallas were still pending at the time
of trial.
8
Jail staff considered Appellant a flight risk; he wore maroon pants to
identify him as such.
7
already serving a twenty-five-year sentence, and three escape attempts.
Further, he did not deny the aggravated kidnaping and screwdriver attack on
A.G. and did not attempt to discredit her testimony. Appellant did, however,
deny the aggravated sexual assault and unlawful restraint allegations.
Before the trial, the State filed a motion to cumulate sentences but did
not identify the sentence to be cumulated with the sentence to be imposed for
the two counts of aggravated robbery. After the jury assessed life
imprisonment but before the trial court sentenced Appellant,9 the State verbally
requested that the life sentence be stacked on top of the federal sentence that
Appellant was serving at the time of trial. The trial court granted the State’s
motion and included the stacking order in the judgment. This appeal followed.
III. Motion for Mistrial
In his first point, Appellant argues that the trial court abused its discretion
by not granting his motion for mistrial after the trial court sustained his
objection to an improper argument by the State during closing arguments and
instructed the jury to disregard that argument.
A. Standard of Review
9
The punishment range before the jury was fifteen years to life in prison
and up to a $10,000 fine. See Tex. Penal Code Ann. § 12.32 (Vernon 2007).
The jury imposed a life sentence and a $10,000 fine.
8
To be proper, a jury argument must fall within one of the following four
general areas: (1) summation of evidence; (2) reasonable deduction from the
evidence; (3) answer to argument of opposing counsel; or (4) plea for law
enforcement. Felder v. State, 848 S.W.2d 85, 94–95 (Tex. Crim. App. 1992),
cert. denied, 510 U.S. 829 (1993); Alejandro v. State, 493 S.W.2d 230, 231
(Tex. Crim. App. 1973).
W hen the trial court sustains an objection and instructs the jury to
disregard an improper argument but denies a defendant’s motion for a mistrial,
the issue is whether the trial court abused its discretion by denying the mistrial.
Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004). Only in
extreme circumstances, when the prejudice caused by the improper argument
is incurable, i.e., “so prejudicial that expenditure of further time and expense
would be wasteful and futile,” will a mistrial be required. Id.; see also Simpson
v. State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003), cert. denied, 542 U.S.
905 (2004). In determining whether the trial court abused its discretion by
denying the mistrial, we balance three factors: (1) the severity of the
misconduct; (2) curative measures; and (3) the certainty of the punishment
assessed absent the misconduct. Hawkins, 135 S.W.3d at 77; Mosley v.
State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998) (op. on reh’g), cert.
denied, 526 U.S. 1070 (1999).
9
When evaluating the severity of the misconduct, an appellate court will
not reverse the trial court except for extreme cases in which the argument is
manifestly improper, harmful, and prejudicial; a mandatory provision of a statute
is violated; or the improper argument injects new and harmful facts into the
case. Hawkins, 135 S.W.3d at 81. The error is more severe, and hence more
likely to lead to a reversal, if the error is repeated and not isolated. Id. at 83,
85. When analyzing the second prong—curative measures—appellate courts
may consider the exact objection and instruction to determine how effective the
instruction was in explaining what exactly the jury should do, any self-
correcting measures the State took, and the jury charge. Id. at 84. In most
cases, the instruction from the trial court will cure any harm. Id. In evaluating
the final factor—certainty of punishment—appellate courts determine whether
the same punishment would be assessed without the improper argument. Id.
at 77.
B. Analysis
Appellant complains of the following argument made by the State during
its closing argument in the punishment phase of the trial:
[State]: Everything this man has done, 18 robberies, an unlawful
restraint, aggravated sexual assault, aggravated kidnaping, that is
a life sentence on the installment plan.
[Defense]: Your Honor, I’m going to object to the argument of the
10
aggravated sexual assault. That’s still a pending case and he’s
denied it.
[Trial Court]: Sustained.
[Defense]: I’d ask the jury be instructed to disregard.
[Trial Court]: That portion of the argument I’ll instruct the jury to
disregard and not consider for any purpose.
[Defense]: And move for a mistrial.
[Trial Court]: Denied.
[State]: Everything he has pled to, that aggravated kidnaping, that’s
a life sentence on the installment plan. It’s one thing right after the
other. He needs to be put in check, and the only way you can stop
him is with a life sentence.
Appellant contends that the instruction to disregard was insufficient to
cure the harm. However, despite Appellant’s argument that the State’s
inclusion of the aggravated sexual assault under the umbrella of “everything this
man has done” was manifestly improper, we disagree. Although improper, the
comment did not violate a mandatory statutory provision or inject new and
harmful facts into the case. The jury had already heard testimony from the
investigating detective, Appellant, and Appellant’s attorney regarding the
allegation. Moreover, our review of the record shows that the State’s
misconduct was an isolated event and that it did not happen again. Thus, the
severity of the improper comment is lessened and does not amount to being
11
“manifestly improper” as Appellant contends. See Hawkins, 135 S.W.3d at 83.
In analyzing the curative measures taken, the record reflects that defense
counsel’s objection alerted the jury that Appellant was specifically objecting to
the State’s inclusion of the aggravated sexual assault as part of “[e]verything
[Appellant] has done.” The trial court granted Appellant’s requested instruction,
and in doing so, clearly and promptly identified the offending phrase and what
action the jury should take. Therefore, the trial court’s curative measure was
effective to cure any harm resulting from the State’s improper argument. See
id. at 84 (noting that when trial counsel asks for a certain instruction and the
trial court gives that instruction to the jury, that instruction is considered
effective to cure any harm in most cases, and noting that curative measures are
more likely to cure harm when they clearly identify the error).
Moreover, any harm resulting from the improper comment was further
cured when the State corrected itself by saying “everything he pled to”
immediately after the trial court instructed the jury to disregard the State’s
initial comment. Id. (noting that a prosecutor’s self-corrective action “is a
relevant consideration in determining harm and can, in the appropriate
circumstances, render an improper comment harmless”). Thus, the jury knew
that the State was asking them to consider the extraneous offenses that
Appellant pleaded to—rather than everything Appellant “has done”—and
12
therefore, we hold that the curative measures were effective to minimize any
harm resulting from the improper comment.
Furthermore, after conducting a review of the entire record, we determine
that Appellant’s punishment was certain, even absent the State’s improper
comment. First, the jury could have considered numerous other violent acts
that Appellant committed and admitted to that overshadowed the aggravated
sexual assault allegation. See id. at 85 (noting that the number and nature of
other crimes is a relevant factor in whether or not the same punishment would
have been assessed without the improper argument). Second, the jury heard
testimony from the investigating detective, Appellant’s own testimony
regarding the alleged aggravated sexual assault, Appellant’s attorney’s
argument referring to the incident, and the State’s reference to the allegation
later in its closing argument. Therefore, even if the State had not made the
improper reference, the jury would still have been influenced by the other
references to the aggravated sexual assault allegation that were not objected
to or found to be improper by the trial court. Finally, in its closing argument,
the State told the jury that Appellant was eligible for a life sentence for each
aggravated robbery and for the aggravated kidnaping, and Appellant did not
object to or rebut this argument. Thus, even if the jury totally disregarded the
aggravated sexual assault allegation, it would have assessed the same
13
punishment.
In balancing the severity of the misconduct, the curative measures, and
the certainty of the punishment assessed absent the misconduct, we hold that
the trial court did not abuse its discretion by denying the motion for mistrial.
The argument, although improper, was an isolated incident. The objection and
trial court’s instruction to disregard were prompt and clear, and the State quickly
corrected itself. Also, the number and nature of the crimes that Appellant
committed were a more likely reason for the punishment than the improper
argument, and any influence that the aggravated sexual assault allegation may
have had over the jury could just as easily have come from the other references
made by Appellant and his counsel rather than from the State’s improper
argument. See id. at 81–85. Therefore, we overrule Appellant’s first point.
IV. Jury Charge Error
In his second point, Appellant argues that the trial court erred when it
failed to charge the jury with respect to the State’s burden of proof regarding
unadjudicated extraneous offenses and bad acts.
A. Standard of Review
Appellate review of error in a jury charge involves a two-step process.
Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994). Initially, we
must determine whether error occurred. If so, we must then evaluate whether
14
sufficient harm resulted from the error to require reversal. Id. at 731–32. If
there is error in the court’s charge but the appellant did not object to it at trial,
we must decide whether the error was so egregious and created such harm that
appellant did not have a fair and impartial trial—in short, that “egregious harm”
has occurred. See Tex. Code Crim. Proc. Ann. art. 36.19 (Vernon Supp. 2008);
Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996); Almanza v.
State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g). Jury
charge error is egregiously harmful if 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); Hutch, 922
S.W.2d at 171.
When examining the record to determine whether jury-charge error is
egregious, the reviewing court should consider the entirety of the jury charge
itself, the evidence, including the contested issues and weight of the probative
evidence, the arguments of counsel, and any other relevant information revealed
by the record of the trial as a whole. Stuhler, 218 S.W.3d at 719; Bailey v.
State, 867 S.W.2d 42, 43 (Tex. Crim. App. 1993); Almanza, 686 S.W.2d at
171. The purpose of this review is to illuminate the actual, not just theoretical,
harm to the accused. Almanza, 686 S.W.2d at 174. Egregious harm is a
difficult standard to prove and must be determined on a case-by-case basis.
15
Ellison v. State, 86 S.W.3d 226, 227 (Tex. Crim. App. 2002); Hutch, 922
S.W.2d at 171; Schiffert v. State, 257 S.W.3d 6, 11 (Tex. App.—Fort Worth
2008, pet. dism’d). Errors resulting in egregious harm are those that affect the
very basis of the case, deprive the defendant of a valuable right, or vitally affect
a defensive theory. Hutch, 922 S.W.2d at 171.
B. Presence of Error
The jury charge failed to include an instruction that the jury must find
beyond a reasonable doubt that Appellant committed the extraneous offenses
before considering those offenses in determining Appellant’s punishment.10
Failure to sua sponte give a reasonable doubt instruction at punishment
regarding extraneous offense evidence is error subject to the Almanza harm
analysis.11 See Huizar v. State, 12 S.W.3d 479, 484–85 (Tex. Crim. App.
10
The jury heard evidence and argument of the following extraneous
offenses and bad acts during the punishment phase of trial: sixteen additional
aggravated robberies, seven aggravated robberies for which Appellant was
convicted in 1994, three escape attempts, unlawful restraint, aggravated
kidnaping, and aggravated sexual assault. Appellant admitted to the robberies
and escape attempts, and he neither denied the aggravated kidnaping offense
nor attempted to cast doubt on the victim’s testimony. He denied that he
committed aggravated sexual assault and unlawful restraint.
11
However, the lack of a burden of proof instruction regarding Appellant’s
1994 robberies is not an error because those acts were already proven beyond
a reasonable doubt. See Bluit v. State, 137 S.W.3d 51, 54 (Tex. Crim. App.
2004) (stating that no reasonable doubt instruction was required for offenses
for which the defendant had been convicted because the reasonable doubt
burden of proof was already met).
16
2000) (op. on reh’g); Almanza, 686 S.W.2d at 171.
C. Egregious Harm
Appellant failed to object to the trial court’s failure to include the
reasonable doubt instruction; therefore, we must decide whether the error was
so egregious and created such harm that Appellant did not have a fair and
impartial trial—in short, whether “egregious harm” occurred. See Tex. Code
Crim. Proc. Ann. art 36.19; Hutch, 922 S.W.2d at 171; Almanza, 686 S.W.2d
at 171. In his appeal, Appellant argues that he suffered harm from the
erroneous jury charge only with regard to the aggravated sexual assault
offense. 12 Accordingly, we limit our review to this specific issue.
1. Jury Charge
In reviewing a case for egregious harm, we first look at the jury
instructions as a whole. Hutch, 922 S.W.2d at 171. In certain instances, harm
resulting from the absence of a burden of proof instruction for a particular issue
12
Because no harm exists in omitting a burden of proof instruction when
the evidence is “clear cut,” we hold that the error was harmless with respect
to the offenses that Appellant admitted to and with respect to the
overwhelming and uncontested evidence of the aggravated kidnaping. See
Yates v. State, 917 S.W.2d 915, 923 (Tex. App.—Corpus Christi 1996, pet.
ref’d); see also Johnson v. State, 181 S.W.3d 760, 767 (Tex. App.—Waco
2005, pet. ref’d) (finding that no harm exists in omitting a burden of proof
instruction when the evidence is “clear cut”).
17
may be avoided where the general jury instructions regarding the burden of proof
were sufficient to alert the jury as to the requisite burden of proof. See Olivas
v. State, 202 S.W.3d 137, 146–47 (Tex. Crim. App. 2006).
In this case, the charging document did not instruct the jury that it must
determine that Appellant committed the extraneous offenses beyond a
reasonable doubt before considering those offenses in assessing punishment.
In looking at the jury instructions as a whole, the jury charge on punishment tells
the jury to find as true the allegation of Appellant’s prior conviction for
aggravated robbery, lists the range of punishment, explains the duty to assess
punishment, and advises the jury to consider “all of the facts shown by the
evidence admitted . . . in the full trial of this case and the law submitted . . . in
this charge.”
Because the charging document failed to instruct the jury regarding the
burden of proof on the extraneous offenses, and because the jury was instructed
to consider “all facts shown by the evidence admitted”—which necessarily
included Detective Johnson’s testimony regarding his investigation of the
aggravated sexual assault—the jury may have considered the aggravated sexual
assault offense in its assessment of punishment without knowing that it had to
first find that Appellant committed that offense beyond a reasonable doubt. See
Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998) (noting that a
18
presumption exists that a jury follows the jury instructions). As a result, it is
possible that some jurors may have considered the offense improperly because
of the charging document. Therefore, we cannot say that any harm from the
omission of the instruction is removed or lessened by the jury charge as a
whole. See Olivas, 202 S.W.3d at 146–47.
2. State of the Evidence
Under the second factor of the Almanza egregious harm test, we consider
the weight of the probative evidence and the contested issues. See Almanza,
686 S.W.2d at 171. Egregious harm does not result from omitting a burden of
proof instruction in the jury charge when the evidence presented to the jury
would support a finding in accordance with the appropriate burden of proof. See
Olivas, 202 S.W.3d at 147. For example, there is no egregious harm if the issue
is uncontested or if the State presented sufficient evidence to support a jury
finding beyond a reasonable doubt. See id.
Here, the evidence presented at trial could not support a jury finding that
Appellant committed aggravated sexual assault beyond a reasonable doubt
because the only evidence of the crime was Appellant’s testimony that he and
the complainant had consensual sex. See Johnson, 181 S.W.3d at 767. The
bulk of the evidence that the State presented at the punishment trial did not
concern the alleged aggravated sexual assault; rather, it concerned the two
19
counts of aggravated robbery upon which this appeal is based, the other
aggravated robberies Appellant committed in November 2006, the aggravated
kidnaping and screwdriver attack, and Appellant’s three escape attempts.
Although an Irving detective briefly testified for the State regarding his
investigation of the alleged aggravated sexual assault, he did not testify about
the facts of the incident itself, and the trial court sustained defense counsel’s
objections whenever the detective’s testimony went beyond the steps he took
in his investigation. Further, the complainant did not testify nor did any other
witness to the incident except for Appellant.
Nor was the aggravated sexual assault issue uncontested. Appellant
denied committing the offense. Therefore, based on the evidence presented, we
cannot say that the error in omitting the burden of proof instruction was
harmless because the aggravated sexual assault was not uncontested and the
State did not present sufficient evidence to support a jury finding beyond a
reasonable doubt. See Olivas, 202 S.W.3d at 148; Yates, 917 S.W.2d at 923.
3. Arguments of Counsel
The next factor in our analysis is the jury argument. If either attorney
properly instructed the jury about the appropriate burden of proof in his or her
argument, then there is no egregious harm from the jury charge error. See
Olivas, 202 S.W.3d at 148 (finding that any harm caused by a jury charge that
20
lacks a burden of proof instruction is lessened when the defense counsel
correctly instructed the jury on the burden of proof issue). Although neither side
in this case discussed the burden of proof regarding extraneous offenses, the
State argued that it could impose a life sentence for each of the aggravated
robberies. Because the State informed the jury that it had the power to impose
a life sentence without even considering the aggravated sexual assault
allegation, it is unlikely that the charge error changed the outcome and deprived
Appellant of a valuable right. See Hutch, 922 S.W.2d at 171.
4. Other Relevant Information
Jury charge error is not egregious when the issue involved in the
erroneous jury charge is not a central issue in the case. Id. at 166. Although
both sides addressed the aggravated sexual assault allegation in their arguments
and cases-in-chief, neither side heavily focused on whether or not Appellant
committed the aggravated sexual assault. Instead, the parties focused on
Appellant’s admissions with regard to his other offenses. Therefore, we cannot
say that it was a crucial issue in the case. Id.
Furthermore, we also may consider the severity of the punishment
assessed, which may indicate egregious harm in some situations. See Bolden
v. State, 73 S.W.3d 428, 432 (Tex. App.—Houston [14th Dist.] 2002, pet.
ref’d). In this case, Appellant received a life sentence, the maximum allowed,
21
However, a maximum punishment alone does not indicate egregious harm. See
Huizar, 29 S.W.3d at 251. One important consideration is whether the jury
would have imposed the same punishment even if it had been properly
instructed. Allen, 253 S.W.3d at 267–68. In other words, there is no
egregious harm if the jury would still have assessed a life sentence even if
properly instructed to consider only extraneous offenses if they first found that
he committed those offenses beyond a reasonable doubt. See id.
The record shows that Appellant admitted to eighteen aggravated
robberies during which he threatened people with a firearm, sometimes by
pointing it at the victim’s head. He was previously convicted of aggravated
robbery and served his full prison sentence because, as he admitted, he was not
a model prisoner. He did not deny that he physically forced a woman into his
car, threatened to rape her, tried to pull her pants down, stabbed her repeatedly
with a screwdriver, and threw her in a closed garbage dumpster—an attack for
which she was hospitalized for over five weeks. His only excuse for his actions
was that he needed money for his family and his legal defense, yet this
justification was undermined by the State’s presentation evidence that Appellant
used the money for unnecessary luxury items, like the $1,500 tire rims. Further,
Appellant admitted that he attempted to escape three times following his arrest
and threw cleaning solution into the eyes of a jail guard during one of those
22
attempts. Finally, the State argued to the jury that it could impose a life
sentence for each of the aggravated robberies without objection or rebuttal from
Appellant’s trial counsel. Thus, even if the jury had been properly instructed, it
would have reached the same result due to the overwhelming evidence and
nature of so many other bad acts that would justify a life sentence. If only one
extraneous offense is contested, the lack of a burden of proof instruction does
not create egregious harm when numerous other extraneous offenses are
presented to the jury. See Yates, 917 S.W.2d at 924.
After reviewing the trial record as a whole, we cannot conclude that
Appellant was denied a fair and impartial trial. Although some harm may have
resulted from the error, it was not egregious harm because the State presented
overwhelming and uncontested evidence of many other violent acts for the jury
to consider that justified a life sentence and nothing indicates that the
aggravated sexual assault was heavily considered by the jury or that it was a
critical issue in the trial. See Allen, 253 S.W.3d at 266; Yates, 917 S.W.3d at
923; Almanza, 686 S.W.2d at 171. Therefore, we overrule Appellant’s second
point.
V. Cumulation Order
In his third point, Appellant argues that the cumulation order stacking his
life sentence on top of the federal sentence he was already serving is defective
23
and should be voided because the stacking order in the judgment does not
contain sufficient information to identify the earlier sentence.
A. Standard of Review
The decision to run multiple sentences concurrently or cumulatively is at
the discretion of the trial court. Tex. Code Crim. Proc. Ann. art. 42.08 (Vernon
2006); Stokes v. State, 688 S.W.2d 539, 540 (Tex. Crim. App. 1985). A
cumulation order must be specific enough that prison authorities know how long
to detain the prisoner. Stokes, 688 S.W.2d at 540. The Texas Court of
Criminal Appeals has identified five elements for a valid cumulation order: (1)
the cause number of the prior conviction; (2) the correct name of the trial court
where the conviction was taken; (3) the date of the prior conviction; (4) the
term of years of the prior conviction; and (5) the nature of the prior conviction.
Id.; Ward v. State, 523 S.W.2d 681, 682 (Tex. Crim. App. 1975). However,
not all elements are necessary for a cumulation order to be valid, so long as the
earlier sentence with which the latest sentence will be cumulated can be
properly identified. Stokes, 688 S.W.2d at 540.
The order should be sufficiently clear so that it may be understood without
having to refer to other evidence. Id. W hen a cumulation order is not
sufficiently clear, an appellate court may reform the order and affirm as modified
if the record reveals all information required to reform it. Banks v. State, 708
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S.W.2d 460, 462 (Tex. Crim. App. 1986).
B. Analysis
The cumulation order from the trial court is as follows: “The sentence
imposed under F-2007-0057-E (COUNTS I AND II)13 shall commence when the
sentence imposed in cause number 4:06CR0291-001 out of the US District
Court, ceases to operate. The sentences shall run consecutively.” Appellant
argues that the cumulation order is insufficient because it identifies only the
cause number of the earlier sentence, and thus fails to adequately identify that
sentence. The State admits that the trial court did not adequately identify the
earlier sentence and requests that this court modify the judgment to properly
identify the earlier sentence.
An order that includes only the cause number of the earlier sentence may
still be sufficient if the order is entered in the same court as the earlier sentence,
if the order also states the correct name of the trial court, or if the order has
other descriptive elements. Williams v. State, 675 S.W.2d 754, 764 (Tex.
Crim. App. 1984) (op. on reh’g). A cumulation order will be upheld if it is
specific enough to give notice to the prison officials and the defendant of
13
These counts represent the two counts of aggravated robbery for which
Appellant received this life sentence.
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exactly which sentence the newest sentence will be cumulated with. Id.
The trial court’s cumulation order is not sufficient to give adequate notice
in this case. The only element it fully meets is that it includes the proper cause
number. See Stokes, 688 S.W .2d at 540. Although it does state that the
conviction came from the U.S. District Court, it does not state which district,
and therefore does not present a proper court name. Id. The State does not
contest Appellant’s argument that the cumulation order is insufficient and admits
that the identification “is rudimentary at best.” Therefore, we find that the
cumulation order is not specific enough to provide notice to prison officials of
which sentence is to be cumulated. Id.
A court of appeals has the power to modify a trial court’s judgment and
to affirm it as modified. Tex. R. App. P. 43.2(b). An appellate court may reform
a cumulation order if the necessary information is in the record. Banks, 708
S.W.2d at 462. If the record shows that when the trial court granted the
motion to cumulate, it did so by referencing the information of the earlier
sentence necessary to properly identify it, then an appellate court may reform
the order. Id. at 461 (noting that the trial court indicated the cause number,
proper name of the trial court, date of the sentence, the exact offense, and the
term of years of the sentence, so all necessary information was in the record to
reform a defective cumulation order).
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Appellant argues that the record does not contain the necessary
information to reform the order. However, the following exchange occurred
when the trial court considered the motion to cumulate:
[Trial Court]: Okay. In the State of Texas versus James Sanders,
after the jury was excused, the State has made it known to the
court that they had filed a motion to have the sentence that was
assessed by this jury run consecutive to the federal sentence that
the defendant has. And does the State have anything else you
wish to offer concerning that?
[State]: Judge, do you want me to state the cause number into the
record or anything?
[Trial Court]: Yes.
[State]: It is for possession of a firearm by a felon. He received
300 months. The date of judgment was November 28th of 2000.
In Cause Number -
[Trial Court]: 2000?
[State]: I’m sorry, 2007. Cause Number 4:06CR0291-001 in the
U.S. District Court, Eastern District, in Sherman, Texas, the
Honorable Michael Snider presiding.
That exchange reveals the cause number; that the sentence came from
the U.S. District Court, Eastern District of Texas in Sherman, Texas; that the
offense was possession of a firearm by a felon; that the sentence was for a
term of three hundred months; and that Appellant was sentenced on November
28, 2007. Because the record provides the information for all five elements of
a sufficient cumulation order, we shall modify the order and affirm it as
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modified. See id. at 462. The cumulation order is modified to read:
The sentence imposed under F-2007-0057-E (COUNTS I AND II)
shall commence when the sentence imposed in cause number
4:06CR0291-001 out of the U.S. District Court, Eastern District of
Texas in Sherman, Texas on November 28, 2007, for a term of
three hundred months for the offense of possession of a firearm by
a felon, ceases to operate. The sentences shall run consecutively.
VI. Conclusion
Having overruled two of Appellant’s issues and having modified the
cumulation order, we affirm as modified.
PER CURIAM
PANEL: MCCOY, J.; CAYCE, C.J.; and LIVINGSTON, J.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: October 2, 2008
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