Devyn Jeran Lakose v. State ( 2010 )

IN THE
TENTH COURT OF APPEALS
No. 10-09-00225-CR
DEVYN JERAN LAKOSE,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 19th District Court
McLennan County, Texas
Trial Court No. 2008-1549-C1
MEMORANDUM OPINION
A jury convicted Devyn Jeran Lakose of murder and sentenced Lakose to ninety-
nine years in prison. In two issues, Lakose challenges instructions given in the trial
court’s punishment charge. We affirm.
STANDARD OF REVIEW
When reviewing a jury charge, we first examine the charge for error. See Ngo v.
State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005) (citing Middleton v. State, 125 S.W.3d
450, 453 (Tex. Crim. App. 2003)). If error occurred, we then decide whether the error
caused harm. Id. When, as here, an appellant fails to object to the charge at trial, he
must show egregious harm to prevail on appeal. Id. at 743-44; see Almanza v. State, 686
S.W.2d 157, 171 (Tex. Crim. App. 1985).
THE PUNISHMENT CHARGE
The trial court’s punishment charge states, in pertinent part:
The State has introduced evidence of extraneous crimes or bad acts other
than the one charged in the indictment in this case. This evidence was
admitted only for the purpose of assisting you, if it does, in determining
the proper punishment for the offense for which you have found the
defendant guilty. You may not consider such testimony for any purpose unless
you, as an individual juror, believe beyond a reasonable doubt that the defendant
committed such other crimes or bad acts, if any were committed. It is not
necessary that all of you agree that the Defendant committed these other crimes or
acts, but unless you, as an individual juror, believe beyond a reasonable doubt
that the Defendant committed such acts, you may not consider this evidence for
any purpose. Even if you do believe beyond a reasonable doubt that the
Defendant committed such acts, you may not consider them to show that
he is predisposed to commit such acts but only to assist you in assessing
the proper punishment in this case.
You are further instructed that if you, as an individual juror, believe
beyond a reasonable doubt that the Defendant committed such other
offenses, if any were committed, you may consider those offenses for the
purpose of assisting you, if it does assist you, in assessing the credibility of the
Defendant’s testimony. Unless you believe beyond a reasonable doubt that
the Defendant committed such offenses or conduct, you may not consider
this evidence for any purpose.
UNANIMITY
In issue one, Lakose complains that the trial court erred by instructing the jury
that unanimity is not required with regard to extraneous-offense evidence. He argues
that, like aggravating factors and the issue of sudden passion, extraneous offenses
require jury unanimity.
Lakose v. State Page 2
The State may introduce, at punishment, evidence of “an extraneous crime or
bad act that is shown beyond a reasonable doubt by evidence to have been committed
by the defendant or for which he could be held criminally responsible…” TEX. CODE
CRIM. PROC. ANN. art. 37.07 §3(a)(1) (Vernon Supp. 2009).
Prior crimes or bad acts are introduced to provide additional information
which the jury may use to determine what sentence the defendant should
receive. The statute requires that such evidence may not be considered in
assessing punishment until the fact-finder is satisfied beyond a reasonable
doubt that these prior acts are attributable to the defendant. Once this
requirement is met, the fact-finder may use the evidence however it
chooses in assessing punishment.
Fields v. State, 1 S.W.3d 687, 688 (Tex. Crim. App. 1999). Article 37.07 does not “deprive
the jury of its ultimate fact finding role.” Escovedo v. State, 902 S.W.2d 109, 114 (Tex.
App.—Houston [1st Dist.] 1995, pet.).
Lakose cites several out-of-state cases for the proposition that, like aggravating
factors, extraneous offenses require jury unanimity. See State v. Simon, 737 A.2d 1, 33
(N.J. 1999); see also State v. Kirkley, 302 S.E.2d 144, 157 (N.C. 1983), overruled on other
grounds by State v. Shank, 367 S.E.2d 639 (N.C. 1988); Commonwealth v. Cox, 863 A.2d 536,
553 (Pa. 2004). In Texas, jury unanimity is not required as to the specific aggravating
factor underlying a general verdict. See Leal v. State, 303 S.W.3d 292, 297 (Tex. Crim.
App. 2009).
On the other hand, a sudden passion finding does require jury unanimity: (1)
“the evident purpose of the statute -- to increase the reliability of jury verdicts -- is best
achieved if the statute is interpreted to apply to the jury’s preliminary vote on sudden
passion;” and (2) “if the Legislature intended to exempt the jury’s decision on the
Lakose v. State Page 3
sudden passion issue from the statutory unanimity requirement, it would have stated
its intention expressly.” Sanchez v. State, 23 S.W.3d 30, 34 (Tex. Crim. App. 2000).
According to the El Paso Court, Sanchez left open the question of whether
“unanimity is required as to the preliminary factual issues such as findings with regard
to prior felony convictions and their sequencing as opposed to unanimity regarding the
jury’s ultimate decision regarding the amount of punishment:”
[I]n the context of allegations of alternate manners or means of
committing a single offense, “there is no general requirement that the jury
reach agreement on the preliminary factual issues which underlie the
verdict.” The State maintains that as the charge required the jury to
unanimously find Appellant’s status as a habitual offender and the
number of years to be assessed, the charge does not violate the holding in
Sanchez. We agree. The fact that the charge did not require unanimity
regarding the preliminary facts leading to the finding of habitual offender
status, does not require a finding that the charge was erroneous.
Valdez v. State, No. 08-04-00104-CR, 2006 Tex. App. LEXIS 2025, at *20-21 (Tex. App.—El
Paso Mar. 16, 2006) (not designated for publication) (emphasis added) (internal citations
omitted). The Court of Criminal Appeals affirmed:
The jury’s finding in this case that appellant “had been finally convicted of
at least one [felony] offense on two separate occasions from at least two”
of the enhancement paragraphs is a unanimous finding that appellant
committed at least “two felony offenses” even though some of the jurors
may have believed that he committed at least one of the felonies set out in
paragraphs “a” and “b,” and some of the jurors may have believed that he
committed at least one of the felonies set out in paragraphs “b” and “c,”
and the rest of the jurors may have believed that he committed at least one
of the felonies set out in paragraphs “a” and “c.” This applies to any other
similar combination of findings. In cases like this, when a combination of
more than two felonies is charged for enhancement purposes, jury
unanimity is not required on any two specific felonies out of this
combination.
Lakose v. State Page 4
Valdez v. State, 218 S.W.3d 82, 84-85 (Tex. Crim. App. 2007) (internal citations and
footnotes omitted).
Moreover, the California Supreme Court rejected the argument that “the jury
must be instructed not to consider evidence of ‘other crimes’ unless it unanimously
agreed that the prosecution met its burden of proof on such crimes:”
In so asserting, defendant misunderstands the penalty determination
process. Section 190.3 provides that a jury may consider a number of
factors in determining the appropriate penalty. To impose a penalty of
death, each juror must evaluate the evidence and then unanimously
determine that the aggravating factors outweigh the mitigating factors.
There is no requirement that the jury agree on which factors were used to
reach the decision. It is therefore unnecessary that the entire jury find the
prosecutor met his burden of proof on the “other crimes” evidence before
a single juror may consider this evidence.
People v. Miranda, 744 P.2d 1127, 1152-53 (Cal. 1987), disapproved of on other grounds by
People v. Marshall, 790 P.2d 676 (Cal. 1990). Unanimity is required on a “final verdict or
special finding,” but not a “foundational matter.” Id. at 1153. The defendant is
“entitled to a unanimous jury verdict in the final determination as to penalty.” Id.
Article 37.07 requires the jury to unanimously agree on the amount of
punishment. See Sanchez, 23 S.W.3d at 33; see also TEX. CODE CRIM. PROC. ANN. art. 37.07
§3(c). In doing so, the jury may consider extraneous offenses, provided the jurors
believe the offenses are proven beyond a reasonable doubt. See TEX. CODE CRIM. PROC.
ANN. art. 37.07 §3(a)(1). However, extraneous offenses are merely “additional
information,””foundational matters,” or “preliminary factual issues” used to assess
punishment. Fields, 1 S.W.3d at 688; Miranda, 744 P.2d at 1152-53; Valdez, 2006 Tex. App.
LEXIS 2025, at *20-21. The jury need not agree on the specific extraneous offense or
Lakose v. State Page 5
offenses underlying its general verdict on punishment. See Miranda, 744 P.2d at 1152-53;
see also Valdez, 218 S.W.3d at 84-85; Valdez, 2006 Tex. App. LEXIS 2025, at *20-21. All to
which a defendant is entitled is a “unanimous jury verdict in the final determination as to
penalty.” Miranda, 744 P.2d at 1152-53.
In this case, the trial court instructed the jury that its final verdict on punishment
must be unanimous. We assume that the jury followed this instruction. See Hooper v.
State, 255 S.W.3d 262, 271 (Tex. App.—Waco 2008, pet. ref’d). Because jury unanimity
was required as to the amount of punishment, but not as to the extraneous offenses
underlying its verdict, we cannot say that Lakose’s right to a unanimous jury verdict
was violated by the trial court’s instruction. We overrule issue one.
LIMITING INSTRUCTION
In issue two, Lakose contends that the punishment charge limited the jury’s
consideration of extraneous-offense evidence to an improper purpose, i.e., matters
involving his credibility.
Citing Rivera v. State, 233 S.W.3d 403 (Tex. App.—Waco 2007, pet. ref’d), Lakose
contends that, just as the guilt/innocence charge cannot limit the jury’s use of
extraneous offenses to credibility, nor can the punishment charge. In Rivera, we
explained:
Except for prior convictions admitted under Rule of Evidence 609,
extraneous-offense evidence is not admissible to impeach a testifying
defendant. The defendant can “open the door” by leaving a false
impression with the jury about a relevant act or character trait, and
evidence of an extraneous act that tends to rebut the false impression may
be admissible to impeach the defendant, but with a limiting instruction
informing the jury that it may use the extraneous-offense evidence to
Lakose v. State Page 6
gauge the defendant's credibility. But in a case such as this where the
extraneous offenses are the unelected offenses that were admissible under
section 2 of article 38.37 and the defendant merely testifies that he did not
commit the elected offenses and the now-extraneous (i.e., unelected)
offenses, a limiting instruction to the jury that it may use those extraneous
offenses to pass on the credibility of the defendant’s testimony is
erroneous.
Rivera, 233 S.W.3d at 406 (emphasis added) (internal citations omitted). Article 38.37,
section 2, addresses “evidence of other crimes, wrongs, or acts committed by the
defendant against the child who is the victim of the alleged offense.” TEX. CODE CRIM.
PROC. ANN. art. 38.37 § 2 (Vernon Supp. 2009). Rivera is inapplicable.
Lakose further relies on Rules 608 and 609 to support his position:
Specific instances of the conduct of a witness, for the purpose of attacking
or supporting the witness' credibility, other than conviction of crime as
provided in Rule 609, may not be inquired into on cross-examination of
the witness nor proved by extrinsic evidence.
For the purpose of attacking the credibility of a witness, evidence that the
witness has been convicted of a crime shall be admitted if elicited from the
witness or established by public record but only if the crime was a felony
or involved moral turpitude, regardless of punishment, and the court
determines that the probative value of admitting this evidence outweighs
its prejudicial effect to a party.
TEX. R. EVID. 608(b); TEX. R. EVID. 609(a). Rule 609 applies “only to convictions
introduced for impeachment purposes.” Barnett v. State, 847 S.W.2d 678, 679-80 (Tex.
App.—Texarkana 1993, no pet.). “Convictions admissible under TEX. CODE CRIM. PROC.
ANN. art. 37.07, § 3(a) are not for impeachment purposes, but for assessing
punishment.” Id. at 680.
Lakose v. State Page 7
Moreover, the Court of Criminal Appeals has held: “Article 37.07 governs the
admissibility of evidence during the punishment stage of a non-capital criminal trial.”
McGee v. State, 233 S.W.3d 315, 318 (Tex. Crim. App. 2007). The rule allows evidence to
be offered on “any matter the court deems relevant to sentencing,” including extraneous
crimes and bad acts. TEX. CODE CRIM. PROC. ANN. art. 37.07 §3(a)(1) (emphasis added).
In McGee, after McGee testified at guilt/innocence, the State offered witness
testimony at punishment for the “purpose of showing that appellant’s guilt-stage
testimony had been a lie and, therefore, an ‘extraneous crime or bad act’ within the
meaning of Article 37.07, § 3(a), of the Texas Code of Criminal Procedure.” McGee, 233
S.W.3d at 316. The Court of Criminals Appeals agreed:
In this case, the trial court, during the punishment stage, admitted
evidence offered by the State for the purpose of showing that appellant
lied on the witness stand during the guilt stage. Clearly, the trial court
could have reasonably concluded that such evidence would be helpful to
the jury in determining the appropriate sentence for appellant in this case.
As the United States Supreme Court has noted, “[a] defendant’s
truthfulness or mendacity while testifying on his own behalf, almost
without exception, has been deemed probative of his attitudes toward
society and prospects for rehabilitation and hence relevant to sentencing.”
Id. at 318 (quoting U.S. v. Grayson, 438 U.S. 41, 50, 98 S. Ct. 2610, 2616, 57 L. Ed. 2d 582
(1978)).
In light of Article 37.07 and McGee, when considering extraneous crimes and bad
acts for the purpose of assessing punishment, the jury may use such evidence to pass
upon the defendant’s credibility because the defendant’s “truthfulness” and
“mendacity” are relevant to the issue of punishment. See McGee, 233 S.W.3d at 318.
Lakose v. State Page 8
In this case, Lakose testified at the punishment phase. Extraneous-offense
evidence would have been relevant to the issue of punishment because it is probative of
Lakose’s “truthfulness or mendacity.” Because Lakose’s truthfulness is a proper
purpose for evaluating extraneous-offense evidence introduced at punishment, we
cannot say that the trial court erred by so limiting the jury’s consideration of such
evidence. See McGee, 233 S.W.3d at 318. We overrule issue two.
Having overruled Lakose’s two issues, we affirm the trial court’s judgment.
FELIPE REYNA
Justice
Before Chief Justice Gray,
Justice Reyna, and
Justice Davis
Affirmed
Opinion delivered and filed August 4, 2010
Do not publish
[CRPM]
Lakose v. State Page 9