Opinion
06-21-00122-CR
09-01-2022
DEQURIOUS MARQUISE ROBBINS, Appellant v. THE STATE OF TEXAS, Appellee
DO NOT PUBLISH
Date Submitted: August 24, 2022
On Appeal from the 115th District Court Marion County, Texas Trial Court No. F15226
Before Morriss, C.J., Stevens and van Cleef, JJ.
MEMORANDUM OPINION
Josh R. Morriss, III Chief Justice
A Marion County jury found DeQurious Marquise Robbins guilty of aggravated robbery and assessed a sentence of twenty-seven years' imprisonment. On appeal, Robbins argues that the trial court erred by submitting a jury charge, both at guilt/innocence and at punishment, that contained no instruction that extraneous offenses were required to be proven beyond a reasonable doubt. We find that (1) an extraneous-offense instruction was not required during guilt/innocence and (2) Robbins was not egregiously harmed by the claimed jury-charge error at punishment. As a result, we affirm the trial court's judgment.
(1) An Extraneous-Offense Instruction Was Not Required During Guilt/Innocence
During trial, the State introduced several of Robbins's jailhouse calls. Robbins contends that those calls, which "discussed bonding out of jail as well as what the codefendant . . . would testify to at trial," required the trial court to submit an extraneous-offense instruction during the guilt/innocence portion of trial. Robbins's appellate brief fails to identify whether or what extraneous offense was mentioned during those calls. In any event, we find that the trial court did not err by omitting an extraneous-offense instruction during guilt/innocence.
"We employ a two-step process in our review of alleged jury charge error." Murrieta v. State, 578 S.W.3d 552, 554 (Tex. App -Texarkana 2019, no pet.) (citing Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994)). "Initially, we determine whether error occurred and then evaluate whether sufficient harm resulted from the error to require reversal." Id. (quoting Wilson v. State, 391 S.W.3d 131, 138 (Tex. App-Texarkana 2012, no pet.) (citing Abdnor, 871 S.W.2d at 731-32)).
"Under Almanza, a trial court must submit a charge setting forth the law 'applicable to the case,' which imposes a duty on trial courts to sua sponte instruct the jury on these matters." Zamora v. State, 411 S.W.3d 504, 513 (Tex. Crim. App. 2013) (quoting Posey v. State, 966 S.W.2d 57, 62 (Tex. Crim. App. 1998) (citing Almanza v. State, 686 S.W.2d 157, 160-74 (Tex. Crim. App. 1985) (op. on reh'g))). "Almanza, however, does not apply to defensive issues, which may be forfeited if not preserved at trial." Id. (citing Posey, 966 S.W.2d at 60-61; Mendoza v. State, 88 S.W.3d 236, 239 (Tex. Crim. App. 2002)). "Defensive issues are those 'on which instructions are not mandated by any statute.'" Id. (quoting Oursbourn v. State, 259 S.W.3d 159, 179 (Tex. Crim. App. 2008)). "They involve strategic decisions and tactics generally left to the lawyer and the client." Id. (citing Posey, 966 S.W.2d at 63); see Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App. 2007) ("[I]t does not inevitably follow that [the trial court] has a similar sua sponte duty to instruct the jury on all potential defensive issues . . . or evidentiary issues" since "[t]hese are issues that frequently depend on trial strategy and tactics.").
In Delgado, the Texas Court of Criminal Appeals explained that, while Article 37.03 of the Texas Code of Criminal Procedure requires the trial court to "sua sponte instruct the jury at the punishment phase . . . that the State must prove any extraneous offenses beyond a reasonable doubt," a defendant is not necessarily entitled to such a limiting instruction regarding extraneous offenses in the guilt/innocence charge. Delgado, 235 S.W.3d at 252. This is because "Texas courts have frequently stated that the decision of whether to request a limiting instruction concerning the proper use of certain evidence, including extraneous offenses, may be a matter of trial strategy," and "a party might well intentionally forego a limiting instruction as part of its 'deliberate . . . trial strategy to minimize the jury's recollection of the unfavorable evidence.'" Id. at 250 (citation omitted).
Consequently,
[I]f a defendant does not request a limiting instruction under Rule 105 at the time that evidence is admitted, then the trial judge has no obligation to limit the use of that evidence later in the jury charge. This doctrine is a sensible one because otherwise a jury might sit through most of a trial under the mistaken belief that certain evidence is admissible for all purposes when, in fact, it is not. Once evidence has been admitted without a limiting instruction, it is part of the general evidence and may be used for all purposes. . . . Taking the cases together, then, a limiting instruction concerning the use of extraneous offense evidence should be requested, and given, in the guilt-stage jury charge only if the defendant requested a limiting instruction at the time the evidence was first admitted.Id. at 251 (footnotes omitted) (citations omitted).
Robbins admits that he failed to object during guilt/innocence to any alleged extraneous-offense evidence or request a limiting instruction at the time the evidence was admitted. See id. at 254 ("Even if a limiting instruction on the use of an extraneous offense would have been appropriate . . ., the trial judge had no duty to include one in the jury charge for the guilt phase because appellant failed to request one at the time the evidence was offered."). Robbins also failed to object during the charge conference and did not request any burden-of-proof instruction in the guilt/innocence charge concerning the alleged extraneous offenses. See id. at 253. "Because the trial judge had no duty to give any limiting instruction concerning the use of an extraneous offense in the guilt-phase jury charge, it naturally follows that he had no duty to instruct the jury on the burden of proof concerning an extraneous offense." Id. at 254; see Valadez v. State, No. PD-0574-19, 2022 WL 946268, at *4 (Tex. Crim. App. Mar. 30, 2022) ("On request, the jury should be instructed that it can only consider extraneous misconduct evidence if (1) it believes beyond a reasonable doubt that the defendant committed such misconduct and (2) then only for the limited purpose for which it was admitted," but "[t]he failure to request a limiting instruction when the evidence is admitted will relieve the trial court of its duty to give the instruction in the written charge.").
We find that the trial court did not err by failing to submit an extraneous-offense instruction in the jury charge on guilt/innocence. As a result, we overrule this point of error.
See Jones v. State, No. 06-19-00170-CR, 2020 WL 1593755, at *5 (Tex. App.-Texarkana Apr. 2, 2020, pet. ref'd) (mem. op., not designated for publication). "Although unpublished cases have no precedential value, we may take guidance from them 'as an aid in developing reasoning that may be employed.'" Rhymes v. State, 536 S.W.3d 85, 99 n.9 (Tex. App.-Texarkana 2017, pet. ref'd) (quoting Carrillo v. State, 98 S.W.3d 789, 794 (Tex. App.- Amarillo 2003, pet. ref'd)).
(2) Robbins Was Not Egregiously Harmed by the Claimed Jury-Charge Error at Punishment
Robbins also argues that the trial court erred by omitting an extraneous-offense instruction during the punishment phase of trial. While we find error, we conclude that Robbins was not egregiously harmed.
The rule regarding submission of an extraneous-offense instruction "is somewhat different during the punishment phase of a non-capital case because a specific statutory provision applies to the use of extraneous offense evidence at that time." Delgado, 235 S.W.3d at 252. For purposes of assessing punishment, the prosecution may offer evidence of any extraneous crime or bad act that is shown, beyond a reasonable doubt, either to have been (1) an act committed by the defendant or (2) an act for which he could be held criminally responsible. See Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1). The State's burden of proof for extraneous offenses imposed by Article 37.07, Section 3(a)(1), is "law applicable to the case," which the court must include in the jury charge regardless of any objections or requests by the parties. Huizar v. State, 12 S.W.3d 479, 484 (Tex. Crim. App. 2000). As a result, failure to provide an instruction "necessary to ensure that the jury properly considers evidence of extraneous bad acts under [Article 37.07, Section 3(a)(1)]'s prescribed reasonable-doubt standard" is error. Orellana v. State, 489 S.W.3d 537, 543 (Tex. App-Houston [14th Dist] 2016, pet. ref d); see Huizar, 12 S.W.3d at 484; Devose v. State, No. 06-00-00062-CR, 2000 WL 1205878, at *1 (Tex. App - Texarkana Aug. 25, 2000, no pet.) (mem. op., not designated for publication).
Although Robbins did not object to the jury charge, "[t]he failure to preserve jury-charge error [merely] . . . establishes the degree of harm necessary for reversal." Warner v. State, 245 S.W.3d 458, 461 (Tex. Crim. App. 2008). Jury-charge error is egregiously harmful-the level of harm required if no objection was made-if it "affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory." Marshall v. State, 479 S.W.3d 840, 843 (Tex. Crim. App. 2016). To determine whether a defendant was egregiously harmed, we review "the entire jury charge, the state of 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." Warner, 245 S.W.3d at 461. "The appellant must have suffered actual, rather than theoretical, harm." Id. "Egregious harm is a difficult standard to meet, and such a determination must be made on a case-by-case basis." Marshall, 479 S.W.3d at 843.
Aside from the omission regarding extraneous offenses, Robbins has not pointed us to any other error in the punishment charge, and we have found none. The evidence of Robbins's guilt was strong and included the victim's testimony that Robbins robbed her place of employment after pointing a gun to her stomach while she was seven months pregnant. At punishment, Robbins pled true to the State's enhancement allegation that he was previously convicted of "Burglary of a Habitation and was placed on community supervision[, and,] [o]n the 9th day of September, 2015 the conviction was made a final conviction when community supervision was revoked." The record shows that Robbins expressly agreed to the State's introduction of the order placing him on community supervision for burglary of a habitation and the judgment convicting him of the offense. Without objection, the State also introduced a judgment showing that Robbins, when he was a juvenile, was adjudicated for delinquent conduct for bringing a handgun to school. These facts weigh against a finding of egregious harm.
Next, we note that the State made references to a prior sexual assault of a child allegedly committed while Robbins was a juvenile without providing any testimony or evidence of such a charge. Nevertheless, the jury was instructed to base its verdict on the "evidence admitted before [it]." Although the arguments of counsel did not clarify that the extraneous offenses were required to be proved beyond a reasonable doubt, the jury's punishment for Robbins's aggravated offense with a deadly weapon was toward the lower end of the possible punishment range. Because Robbins pled true to the State's punishment enhancement, his applicable punishment range was "imprisonment in the Texas Department of Criminal Justice for life, or for any term of not more than 99 years or less than 15 years." Tex. Penal Code Ann. § 12.42(c)(1); see Tex. Penal Code Ann. § 29.03(b). The jury assessed a sentence of twenty-seven years.
After reviewing the record in this case, we conclude that Robbins was not egregiously harmed by the lack of an Article 37.07 extraneous-offense instruction. As a result, we overrule this point of error.
We affirm the trial court's judgment.