No. 05-04-00531-CR
Opinion issued May 3, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court, Dallas County, Texas, Trial Court Cause No. F02-49617-WH. Affirmed.
Before Justices BRIDGES, FRANCIS, and MALONEY.
The Honorable Frances J. Maloney, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
Opinion By Justice MALONEY.
The jury found Fernando Delarosa Nava guilty of robbery on his plea of guilty and sentenced him to twelve-year's confinement and a $5000 fine. In a sole point of error, appellant contends the trial court erred in not instructing the jury on the burden of proof applicable to extraneous offenses and appellant suffered egregious harm because of this error. We affirm the trial court's judgment.
BACKGROUND
The Grand Jury indicted appellant and Gerrardo Torres for aggravated robbery. Appellant and his co-defendant had separate trials. At the beginning of appellant's trial, the court granted the State's request to reduce the offense to robbery and appellant entered a plea of guilty to the jury. The jury then heard testimony on the events surrounding the offense, appellant's drug use, his initial statements regarding his codefendant's identity, and his recanting of those statements during his codefendant's trial. The trial court did not instruct the jury on the burden of proof on extraneous offenses. Appellant did not object to the trial court's admitting this evidence, request a limiting instruction, or object that the trial court did not include an instruction on the burden of proof for extraneous offenses in the jury charge. In a unitary proceeding, the jury found appellant guilty and assessed a twelve year sentence and a $5000 fine. THE EVIDENCE 1. Thomas Gatlin
The State called Thomas Gatlin, the Dallas County Assistant District Attorney who prosecuted appellant's codefendant. Gatlin testified that appellant's attorney approached him to see if appellant had any "evidence he could help with" in the codefendant's case. When appellant and his attorney came to talk with Gatlin, appellant's attorney asked that Gatlin begin the meeting by "laying out the punishment range." After Gatlin explained the range of punishment and told appellant that he could not promise anything, appellant told Gatlin that on the day of the robbery, he and the codefendant had smoked crack cocaine together in a school yard. As they walked across the school yard, they saw the complainant getting out of his van. The codefendant told appellant to "follow me," and together they robbed the complainant. Some three-and-a-half months later, appellant's attorney told Gatlin that appellant had changed his story. Gatlin met a second time with appellant and his attorney. At this meeting, appellant's attitude and demeanor had changed-he was angry and wanted out of jail. Appellant complained that if his codefendant's trial had "occurred" at the original setting, appellant would have already been out of jail. Although appellant affirmed his involvement in the robbery, he insisted that the codefendant's nephew or cousin, Jorge, committed the robbery with him. Eventually, appellant calmed down and retold the story of the robbery, affirming that the codefendant committed the robbery with him. The following month, Gatlin began the codefendant's trial and intended to call appellant to testify to the robbery. Midtrial, he asked the court coordinator to call up appellant from downstairs. The coordinator told Gatlin that appellant was already upstairs in the holdover cell. Evidently, appellant and the codefendant were sharing the same tank during the codefendant's trial. Gatlin asked for a recess and brought appellant's attorney to the holdover to talk with appellant. Appellant renewed his claim that the codefendant's nephew, not the codefendant, committed the robbery with him. Gatlin did not call appellant to testify, but the codefendant's attorney called appellant as a defense witness. At the co-defendant's trial, appellant testified that the codefendant did not participate in the robbery. Rather, appellant testified that he and the codefendant's nephew robbed the complainant. 2. Appellant
Appellant testified that he had been using drugs for the three months before the robbery and had smoked cocaine and marijuana with the codefendant's nephew on the day of the robbery. It was the codefendant's nephew that suggested they take the complainant's van. Appellant had never done anything like that before and did not want to rob the complainant. But because he was "under the drugs," it was easier for him "to do it." Appellant confirmed that he initially told Gatlin he and the codefendant robbed the complainant. However, appellant he did it because he thought he would get out on probation. At the time of trial, appellant had been in jail for two years. Appellant explained that he had never been in jail before and after being in jail, he realized that he could not put an innocent man in jail. It was then he decided to tell the truth-that the codefendant's nephew was with him during the robbery. He hoped the jury would "cut" him a "good deal" because all he ever wanted was to get out of jail. JURY CHARGE
In a single issue, appellant argues that the trial court erred in not sua sponte charging the jury on the burden of proof required in unadjudicated extraneous offenses. Appellant further claims that he suffered egregious harm because the weight of the extraneous offenses-drug usage and perjury-"made the case for punishment clearly and significantly more persuasive." The State responds that the trial court's failure to charge the jury on the burden of proof on the extraneous offenses did not harm appellant. 1. Applicable Law
The State may offer evidence of appellant's prior criminal record; general reputation; character; circumstances of the instant offense; and any other extraneous crime or bad act shown beyond a reasonable doubt for which he could be held criminally responsible, whether he has been charged or convicted of that act. See Tex. Code Crim. Proc. art. 37.07, § 3(a) (Vernon Supp. 2004-05). During the punishment phase of trial of a noncapital case, the code of criminal procedure requires the trial court sua sponte to include a reasonable-doubt jury instruction regarding extraneous offenses. See Huizar v. State, 12 S.W.3d 479, 484 (Tex.Crim.App. 2000) (op. on reh'g). 2. Standard of Review
We review unobjected-to jury charge error to determine whether the error caused appellant egregious harm. See Ellison v. State, 86 S.W.3d 226, 228 (Tex.Crim.App. 2002); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim, App. 1985) (op. on reh'g). We do not reverse unless the error denied appellant a fair and impartial trial. See Graves v. State, No. 01-03-00142-CR, 2004 WL 2306698, at *9 (Tex.App.-Houston [1st Dist.] Oct.14, 2004, pet. stricken). We assess harm in light of the entire jury charge, the state of the evidence, the weight of the probative evidence, the argument of counsel, and the record as a whole. See Mann v. State, 964 S.W.2d 639, 641 (Tex, Crim. App. 1998). We consider only the impact of the trial court's omitting the reasonable doubt instruction from the jury charge. See Ellison, 86 S.W.3d at 228. 3. Application of Law to Facts
Appellant does not explain how he was egregiously harmed. Rather, he complains the "evidence admitted on the extraneous offenses vitally affected a defensive theory and made the case for punishment clearly and significantly more persuasive." We look not to the admission of evidence, but only to whether the lack of a jury charge on extraneous offenses denied appellant a fair trial. The evidence shows that both the State and appellant introduced evidence that appellant smoked crack cocaine and marijuana and identified two different accomplices. Appellant never questioned the validity of the evidence. Rather, he freely admitted his conduct and offered testimony identical to the State's witness to explain to the jury why he acted in the manner he did. Appellant blamed drugs for his participating in the robbery and his originally naming his codefendant in the robbery to get out of jail. Admittedly, the State first offered evidence of both appellant's taking drugs and changing his story, but appellant himself confirmed these "extraneous offenses." That the State referred to these "extraneous offenses" in arguing that the jury should not probate appellant's sentence because he would "reoffend" does not show that the lack of a jury charge caused harm to appellant. The State's argument that appellant smoked dope in a schoolyard, "went along" with this robbery, established a pattern of dishonesty because of his testimony in his codefendant's trial, had no respect for the system, and just wanted out of jail merely related the uncontested testimony. We conclude that appellant was not harmed by the trial court's failure to give a jury instruction on the burden of proof on extraneous offenses. We resolve appellant's sole issue against him. We affirm the trial court's judgment.