Nos. 05-01-00650-CR, 05-01-00651-CR, 05-01-00652-CR.
Opinion Filed April 8, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.
Appeal from the 363rd Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F00-54141-LW, F00-54142-LW, and F00-54143-LW. Affirmed.
Before Justices MOSELEY, BRIDGES, and LANG.
Opinion By Justice JIM MOSELEY
Rickie James Fletcher appeals his convictions for aggravated robbery (cause number 05-01-00650-CR) and aggravated assault (cause numbers 05-01-00651-CR and 05-01-00652-CR). Before a jury, appellant entered guilty pleas to the charges and pleaded true to an enhancement paragraph in each indictment. The jury found appellant guilty of the charges and the enhancement paragraphs true. It assessed punishment at eighty years' imprisonment in the aggravated robbery case and at ninety years' imprisonment in each of the aggravated assault cases. In each case, appellant presents one issue in which he complains of jury charge error. We affirm the trial court's judgments.
Factual Background
On September 27, 2000, Dallas police officer Christopher Lewis drove to 139 Seagoville Road in response to a report of a possible robbery occurring at that location. When Lewis knocked on the front door of the house, he heard "a bunch of shuffling, sounding like furniture being overturned." Lewis then heard his partner, who had positioned herself at the rear of the house, chasing someone. Lewis "paralleled" the chase and heard someone "hit" a chain-link fence. As Lewis rounded the corner of a house, he saw appellant approximately eight feet away. Appellant pointed a silver revolver at Lewis. Before Lewis could unholster his gun, appellant lowered his gun, dropped it, and lowered himself to the ground. Lewis took appellant into custody. Appellant had in his possession a blue bandana, latex gloves, a cordless phone, and a small bag of marihuana. Appellant's pistol had one live round in it. Lanetta Collins was caring for her children, Cornetta and Royal, and baby-sitting Christine Chandler's children, Chardrick and Lateasha, and Christine's boyfriend's daughter Dakeadra at 139 Seagoville Road. While Lanetta watched television, appellant ran into the house carrying a gun. At the time, two-week old Royal was with Lanetta, eight-year old Chardrick was sleeping in his mother's room, and Dakeadra and Lateasha were playing down the street. Appellant had a blue bandana covering his face and "rubber" gloves on his hands. He pointed the gun at Lanetta, and she moved it from her face. Appellant struck Lanetta twice on the top of her head with the gun, put the gun to her head again, and asked her who else was in the house and where "the money" was. Appellant took Lanetta to the bedroom where Chardrick was sleeping and hog-tied her, leaving Royal to fend for himself. Appellant repeatedly told Lanetta he would kill her if she did not reveal where the money was hidden. Lanetta had no idea what appellant was talking about. Appellant was eventually joined by Derrick Seamster, who also carried a firearm in his hand. Appellant ordered Chardrick at gunpoint to lie on the floor while Seamster ransacked the bedroom. Seamster joined appellant in repeatedly demanding that Lanetta tell them where the money was hidden. Dakeadra came back from playing, and appellant dragged her to the bedroom by her shirt. She too was forced to lie on the floor. Chardrick then began leading Seamster around the house, showing them places where the money might be concealed. Appellant took Lanetta, whose legs had come untied, and Dakeadra into the living room. Appellant and Seamster continued to search the house and threaten the lives of the others. This continued on for some time until there came a knock at the door. When the person at the door identified himself as a police officer, appellant and Seamster ran from the house. Chardrick and Dakeadra let the police into the house. When Lanetta emerged from the house, she saw Lewis had appellant in custody. She identified the cordless phone seized from appellant as one taken from the Chandler home. Chardrick Johnson testified he saw a gun when he was told to lie on the bedroom floor. He described how he and Seamster went through the house looking for money. He testified Seamster had pointed a gun at him and put it to his forehead. Dakeadra Edwards testified that, on the day of the home invasion, appellant grabbed her by the shirt and took her to her mother's bedroom. She described how appellant and Seamster terrorized her while looking for the money. She saw appellant put a gun to Chardrick's head. Lateasha Chandler testified she came inside from playing and saw two men in the house. She went to her room. Seamster spotted her, chased her, and tried to grab her. Lateasha dodged him and ran out of the house. Lateasha ran to a friend's house and called her grandmother. Christine Chandler testified she was at work when the crimes occurred. Christine had a bad feeling, and left work early. On the way home, she stopped at a friend's house. While there, the phone rang. The caller told her what was going on at her house, and she left immediately. Upon arrival, she noted her children were scared and upset. After the crimes, Chardrick had difficulty concentrating at school and Lateasha's grades suffered. Lashonda Edwards, Dakeadra's mother, testified Dakeadra insists on sleeping with her and has changed into a surly child. In addition to the above testimony, the State also introduced appellant's written judicial confessions, written stipulations to the enhancement paragraph in each indictment, appellant's written confession given to the police, documents indicating appellant had been committed to the Texas Youth Commission for engaging in delinquent behavior, and a "pen pack" concerning appellant's previous felony conviction for possession with intent to deliver cocaine. Appellant testified he was a high school dropout who "started hanging around the wrong crowd" and was laid off from his job. He grew up with Seamster and reunited with him while finishing up his prison sentence on the cocaine conviction. After getting out of prison, appellant eventually began living with Seamster. Seamster told appellant he "had a lick" for them to do. Appellant knew this meant Seamster wanted appellant to help him commit a robbery. Appellant's family was suffering economic difficulty. Seamster told him he bought drugs from a man who lived at 139 Seagoville Road. Appellant spent time "smoking weed and drinking" before committing the robbery. Appellant claimed he was addicted to "crack and weed and drinking." Appellant admitted he burst into the home with his gun drawn and that he tied up Lanetta in the bedroom. Appellant then searched the house looking for drugs. Appellant denied ever placing a gun to the head of any of the children, and claimed he thought his gun was not loaded. On cross-examination, appellant admitted he had made money in the past by selling drugs. Appellant and Seamster never found any money or drugs in the house. In closing argument, the prosecutor discounted appellant's testimony that he had been consuming alcohol and narcotics the day of the crimes, pointing out that the way appellant committed the crimes indicated he had planned the crimes in advance. The prosecutor also questioned appellant's professed remorse for his crimes. Finally, the prosecutor stated the facts of the cases were such that only life sentences were appropriate for appellant. Instruction on the Burden of Proof
Article 37.07, section 3(a) of the code of criminal procedure prohibits a jury from considering evidence of uncharged crimes during the punishment phase of a non-capital trial unless the jury first determines beyond a reasonable doubt the defendant committed the crimes. See Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a) (Vernon Supp. 2003); Huizar v. State, 12 S.W.3d 479, 484 (Tex.Crim.App. 2000). This Court has previously concluded that a reasonable doubt instruction for extraneous offense evidence is also required in instances, like the present cases, in which when a defendant pleads guilty to a jury and the jury assesses punishment. Batiste v. State, 73 S.W.3d 402, 407 (Tex.App.-Dallas 2002, no pet.). In a single issue in each case, appellant asserts the jury charges were fundamentally defective for failing to include an instruction on the burden of proof for extraneous offenses. Appellant points out the State emphasized appellant's drug possession, use, and peddling during its jury argument. The State concedes the trial court erred by failing to give the instruction, but contends appellant did not suffer egregious harm from the error. Failure to give the instruction when required is error analyzed under Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim. App. 1984) (op. on reh'g). Under Almanza, when a defendant does not object to the error in the jury charge, we examine the entire record to determine whether the error was so egregious and created such harm that a defendant did not receive a fair and impartial trial. Batiste, 73 S.W.3d at 407. Egregious harm consists of those errors that affect the very basis of the case, deprive the defendant of a valuable right, vitally affect a defensive theory, or make the case for punishment clearly and significantly more persuasive. Id. (citing Lee v. State, 29 S.W.3d 570, 578 (Tex.App.-Dallas 2000, no pet.)). The actual degree of harm is assessed in light of the state of the evidence, including the controverted issues and weight of the probative evidence, the argument of counsel, and any other relevant information in the record. Id. Egregious harm is difficult to prove and is determined on a case-by-case basis. Id. Because appellant admitted his guilt and the jury was instructed to find the enhancement paragraphs true, the only issue left to the jury's consideration was the length of appellant's sentences. The crimes appellant was accused of committing were particularly brazen and brutal: the aggravated robbery and aggravated assault of women and children in a quest for money and drugs. The State's witnesses testified appellant personally placed his pistol to the heads of small children and terrorized the occupants of the house. Appellant admitted his prior felony conviction and described his drug use and peddling. Appellant testified he had been consuming alcohol and narcotics nearly the entire day before committing the crimes. While appellant testified he was sorry for his crimes, some of his testimony minimized his involvement in the crimes. Appellant testified he never placed his gun to any of the children's heads. Appellant claimed he would not have committed the crimes had he known there were children in the house, but was unable to explain why he remained in the house after he discovered children were present. Appellant asserted he had not planned the crimes in any great detail, but he could not account for why he obscured his face with a bandana or wore gloves to prevent leaving fingerprints. In closing arguments, the State did not dwell on appellant's admitted drug use and drug selling. Rather, the prosecutor emphasized the testimony of the State's witnesses regarding the crimes and requested the jury assess punishment on the basis of the crimes themselves. The State referred to appellant's drug use only by stating that appellant should not be allowed to use his addictions to justify or minimize his responsibility for his crimes. After reviewing the records, we cannot conclude the trial court's failure to give a reasonable doubt instruction deprived appellant of a fair and impartial trial. It is possible appellant's punishments stemmed from the facts surrounding his offenses. See, e.g., id. at 408 (citing Allen v. State, 47 S.W.3d 47, 52 (Tex.App.-Fort Worth 2001, pet. ref'd)). We conclude appellant has not shown he suffered egregious harm and, accordingly, resolve appellant's lone issue against him. We affirm the trial court's judgments.