Opinion
No. 14-06-00753-CR
Opinion filed February 14, 2008. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b).
On Appeal from the 338th District Court, Harris County, Texas, Trial Court Cause No. 1051487.
Panel consists of Justices FOWLER, FROST, and SEYMORE.
MEMORANDUM OPINION
Appellant, Marlon Jamar Jefferson, was indicted on the offense of aggravated robbery. He entered a written plea of guilty, and requested that the jury assess punishment. The jury assessed punishment at fifteen years' confinement in the Texas Department of Criminal Justice, Institutional Division, and the trial court sentenced appellant and entered judgment in accordance with the jury's verdict. In his sole issue on appeal, appellant contends that the trial court erred at the punishment phase of trial in failing to sua sponte instruct the jury on the burden of proof for evidence of extraneous offenses or bad acts, as required by Article 37.07, _ 3(a) of the Texas Code of Criminal Procedure. We affirm.
Factual and Procedural Background
On the night of December 26, 2005, appellant and Olivernal King entered Jensen Mini Mart, where the complainant, Hung Gia Hua, was working behind the counter. After buying a book of matches and leaving the store, appellant and King returned several minutes later, looked around the store, and then approached the counter, whereupon appellant pulled out a .38 caliber revolver and pointed it at the complainant. Appellant demanded that the complainant give him money, or else he would shoot. Instead of complying with appellant's demands, the complainant stepped behind a pane of thick, almost-bulletproof glass surrounding the counter and activated the alarm, which locked the front doors to the store. Appellant and King then attempted to flee the scene, but were unable to exit the store because the front doors were locked. Appellant again approached the counter and fired several shots at the complainant, who then pulled out his own gun, and apparently returned fire. Appellant and King then retreated to an ice cream freezer located alongside the front counter, outside the protective glass, where they attempted to hide until officers arrived on the scene several minutes later. Appellant and King were arrested, and officers recovered the .38 caliber revolver from inside the ice cream freezer, where appellant had attempted to hide it. Appellant was indicted on the offense of aggravated robbery. He entered a written plea of guilty, and requested that the jury assess punishment. At the punishment phase of trial, the State presented the testimony of Ana Maria Maldonado, who testified that appellant assaulted her and her husband on the night of October 28, 2001. Specifically, Maldonado described, in detail, the assault and identified a booking photo taken of appellant immediately after the 2001 incident as that of her assailant. But, when asked by the prosecutor whether she recognized appellant as her assailant, Maldonado responded, "HardlyCI think it's him. It's been a while and, like I say, it was nighttime. Seems to be him." The State then presented the testimony of Rosa Jefferson, appellant's mother, who testified that appellant had been placed on probation in her custody for the misdemeanor offense of assault in 2001, when appellant was fifteen years old. Jefferson also identified appellant as the individual in the booking photo shown to Maldonado. Finally, the State introduced into evidence a certified copy of a written stipulation of evidence and judgment of delinquency for the 2001 misdemeanor assault on Maldonado and her husband. After both sides rested and closed, appellant requested that the trial court not include a reasonable doubt instruction for "extraneous bad acts" in the jury charge, and the trial court complied. The jury assessed punishment at fifteen years' confinement in the Texas Department of Criminal Justice, Institutional Division, and the trial court sentenced appellant and entered judgment in accordance with the jury's verdict. This appeal followed.Analysis
In his sole issue, appellant contends that the trial court erred at the punishment phase of trial in failing to sua sponte instruct the jury on the burden of proof for evidence of extraneous offenses or bad acts, as required by Article 37.07, _ 3(a) of the Texas Code of Criminal Procedure. Without further explanation, appellant alleges that this error has caused him egregious harm and denied him a fair and impartial trial, and therefore urges this Court to reverse the judgment of the trial court and remand the proceedings for a new punishment hearing. Conversely, the State contends that, pursuant to the Texas Court of Criminal Appeals' decision in Bluitt v. State, 137 S.W.3d 51, 54 (Tex.Crim.App. 2004), the trial court committed no error, as a reasonable doubt instruction is required only for unadjudicated offenses and bad acts, not for offenses that result in a final conviction, probation, or deferred adjudication. Alternatively, the State argues that the doctrine of invited error precludes appellant from complaining here of the trial court's failure to include a reasonable doubt instruction for extraneous offenses or bad acts in the jury charge at punishment. Because we agree that the trial court was not required to include a reasonable doubt instruction for extraneous offenses or bad acts in the jury charge at punishment, we overrule appellant's sole issue.A. Applicable Law
Article 37.07, _ 3(a) of the Code of Criminal Procedure provides that, after a finding of guilt, evidence may be offered by either party as to any matter that the court deems relevant to sentencing, including but not limited to (1) the prior criminal record of the defendant; (2) the general reputation of the defendant; (3) the character of the defendant; (4) an opinion regarding the reputation of the defendant; (5) the circumstances of the offense on trial; and (6) extraneous offenses and bad acts that are shown beyond a reasonable doubt to have been committed by the defendant or for which he could be held criminally responsible. TEX. CODE CRIM. PROC. art. 37.07, _ 3(a)(1); Bluitt, 137 S.W.3d at 54. This includes evidence of an adjudication of delinquency based on a violation by the defendant of the penal law of the grade of a felony, or a misdemeanor punishable by confinement in jail. TEX. CODE CRIM. PROC. art. 37.07, _ 3(a)(1)(A), (B). The Texas Court of Criminal Appeals has held that a reasonable doubt instruction is not required in the jury charge at punishment when the evidence of the defendant's criminal behavior is in the form of prior offenses that have been subjected to judicial testing under the proper burden, i.e., proof beyond a reasonable doubt, and that burden has been met. Bluitt, 137 S.W.3d at 54. In Bluitt, the Court explained:While the prior convictions must be properly proved, to require that prior convictions be re-proved beyond a reasonable doubt would be an absurd result, as the very fact of conviction is evidence that the burden of proving guilt beyond a reasonable doubt has already been met in a prior proceeding. The critical issue is that testing of the proof. If an offense has been subject to such scrutiny and the burden of proof has been met, regardless of whether the judicial proceeding concluded with a final conviction, it is part of a defendant's criminal record, and Art. 37.03, _ 3, does not require further proof of guilt beyond a reasonable doubt.Id. The Court further specified that where an offense has resulted in a final conviction, probation, or deferred adjudication, the burden of proof has been met, and no further proof of guilt is required. Id. B. Application of Law to the Facts Here, appellant's 2001 misdemeanor assault on Maldonado and her husband resulted in a judgment of delinquency and the imposition of probation. In order to find appellant guilty of that offense, the trial court in that case was required to, and did, find that the evidence demonstrated beyond a reasonable doubt that appellant committed the conduct in question. See TEX. FAM. CODE _ 54.03(f); see also In re Winship, 397 U.S. 358, 368 (1970); In re G.M.P., 909 S.W.2d 198, 201 (Tex.App.-Houston [14th Dist.] 1995, no writ). That offense was therefore subject to judicial testing under the proper burden, i.e., proof beyond a reasonable doubt, and that burden was met. Therefore, in the present case, the trial court was not required to include a reasonable doubt instruction for this offense in the jury charge at punishment. We overrule appellant's sole issue.
There was conflicting testimony presented at trial as to whether the complainant actually fired at appellant and King. On direct examination, the complainant testified that he actually fired his weapon at the front doors of the store in an attempt to prevent unwitting customers from entering the store during the robbery. However, Officer Castro, the first officer to arrive on the scene, testified on direct examination that the complainant informed him immediately after the incident that he returned fire at appellant and King.
The State correctly notes that another ground exists for affirming the judgment of the trial court: the doctrine of invited error. The Texas Court of Criminal Appeals has held that where a party affirmatively seeks action by the trial court, that party cannot later contend that the action was error. Prystash v. State, 3 S.W.3d 522, 531 (Tex.Crim.App. 1999). This rule is expressly applicable to the improper submission of jury charges at the punishment phase of a criminal trial. Id. Thus, because appellant affirmatively requested that the trial court not include a reasonable doubt instruction for extraneous offenses and bad acts in the jury charge on punishment, he is estopped here from complaining of the trial court's omission of that instruction.