A jury convicted appellant Rylnel Prince of robbery. In three issues, appellant argues the trial court abused its discretion by denying his motion for continuance and by denying his request to instruct the jury on the lesser-included offense of assault, and the trial court submitted an incorrect jury instruction. We affirm the trial court's judgment.

Factual Background Bernard Lee worked as an asset protection specialist at a Home Depot in Terrell, Texas. On August 31, 2021, he noticed appellant and a female companion enter the store. Lee followed appellant and saw him take high-dollar items from the shelves. Concerned that appellant and his companion were going to steal items, Lee asked an assistant store manager, Larry Riggin, to witness his interaction and apprehension of appellant and his companion, as was store policy.

Riggin, wearing an orange Home Depot apron that identified him as a Home Depot employee, proceeded to the garden area exit of the store. Riggin testified: "And I was heading to the outside of the perimeter of the fence where I was summoned to. And at that moment the suspect turned and just sprayed me in the face with Mace or pepper spray or something of that nature." Riggin identified appellant as the person who sprayed him. Riggin testified he did not speak to or approach appellant before appellant used the spray; rather, appellant "had his hand cupped, and he just immediately turned without any provocation and just turned and sprayed me." Appellant had not reached the final point of sale counter at the time he sprayed Riggin. Lee saw appellant spray Riggin with Mace and then leave the store without paying for items.

The jury saw clips from Home Depot's video surveillance system showing appellant arriving at the store, entering the store, walking around the store, placing items in a cart, spraying Riggin with Mace, and leaving the store with items he had not purchased. Lee contacted the police department, the police responded, and appellant was arrested in Home Depot's parking lot. The police returned the stolen items to Lee. The value of the stolen merchandise was $2,510.

Continuance

On the second day of trial, appellant's counsel made an oral motion for continuance that the trial court denied. In his first issue, appellant argues the trial court abused its discretion by denying the motion. The State responds that this issue was not preserved for appellate review.

Motions for continuance must be written and sworn. See Tex. Code Crim. Proc. Ann. arts. 29.03, 29.08. "[A]n unsworn oral motion preserves nothing for appeal." Owens v. State, No. 05-19-00371-CR, 2021 WL 5410518, at *1-2 (Tex. App.-Dallas Nov. 19, 2021, no pet.) (mem. op.) (quoting Blackshear v. State, 385 S.W.3d 589, 591 (Tex. Crim. App. 2012)).

Appellant's unsworn oral motion for continuance preserved nothing for our review. See id. We overrule appellant's first issue.

Lesser-Included Offense

In his second issue, appellant argues the trial court abused its discretion by denying his request to instruct the jury on the lesser-included offense of assault. The State responds that appellant was not entitled to a lesser-included offense instruction.

We review a trial court's refusal to submit a lesser-included offense instruction for an abuse of discretion. Chavez v. State, 666 S.W.3d 772, 776 (Tex. Crim. App. 2023). Whether a defendant is entitled to a lesser-included offense instruction turns on a two-part test. Id. First, we compare the statutory elements of the alleged lesser offense with the statutory elements of the greater offense and any descriptive averments in the indictment. Id. If proof of the lesser offense is included within proof of the greater offense, the first step has been satisfied. Id. Second, there must be evidence from which a rational jury could find the defendant guilty of only the lesser offense. Id. The court of criminal appeals has said that the guilty-only requirement is met if there is affirmative evidence of a factual dispute that raises the lesser offense and rebuts or negates other evidence establishing the greater offense. Id.

Although even a scintilla of evidence is sufficient, no matter how controverted or incredible, the evidence must be directly germane to the lesser-included offense and present the lesser-included offense as a valid, rational alternative to the greater offense. Id. at 777. If the defendant presents evidence that he committed no offense at all or does not present any evidence, and there is no evidence otherwise raising the issue, a lesser-included offense charge is not required. Id.

A person commits robbery if, in the course of committing theft and with intent to obtain or maintain control of the property, he "intentionally, knowingly, or recklessly causes bodily injury to another." Tex. Penal Code Ann. § 29.02. A person commits assault if he "intentionally, knowingly, or recklessly causes bodily injury to another." Id. § 22.01(a)(1). The parties agree that assault is a lesser- included offense of robbery. Accordingly, we limit our consideration to the second prong of the analysis.

The evidence shows appellant sprayed Riggin, who was wearing his Home Depot orange apron, with Mace as appellant walked out of the store pushing a cart containing items he had not purchased. The jury was entitled to infer from this evidence that appellant sprayed Riggin with Mace in the course of committing theft and with the intent of facilitating the theft. To be entitled to a lesser-included offense instruction, appellant was required to point to some affirmative evidence in the record to rebut such an inference or that would allow the jury to infer a different intent for commission of the assault. Appellant did not do so. Appellant provided no affirmative evidence from which a rational jury could have concluded that appellant was guilty only of the lesser-included offense of assault. We conclude the second prong is not met, and we overrule appellant's second issue.

Jury Instruction

In his third issue, appellant argues the trial court erred by submitting an incorrect and incomplete jury instruction about parole. Appellant asserts, and the State concedes, the trial court provided outdated language about good conduct time in its punishment instructions. However, the State argues, appellant did not object to the charge, and he did not suffer egregious harm.

The error appears in the court's punishment charge and does not affect the jury's finding of guilt.

A jury-charge-claim analysis involves two steps: First, we determine whether the charge is erroneous. Alcoser v. State, 663 S.W.3d 160, 165 (Tex. Crim. App. 2022). If it is, then we decide whether the appellant was harmed by the erroneous charge. Id. There are two standards of review for jury-charge-error claims. Id. (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh'g)). If a defendant timely objects to alleged jury-charge error, the record need only show "some harm" to obtain relief. Id. If, as in this case, the defendant did not timely object, then the record must show "egregious harm." Id.

Harm is assessed "in light of the entire jury charge, the state of the evidence, including the contested issues and weight of [the] probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole." Id. (quoting Almanza, 686 S.W.2d at 171). An erroneous jury charge is egregiously harmful if it affects the very basis of the case, deprives the accused of a valuable right, or vitally affects a defensive theory. Id. A finding of egregious harm must be based on "actual harm rather than theoretical harm." Id. (citing Cosio v. State, 353 S.W.3d 766, 777 (Tex. Crim. App. 2011)). "Egregious harm is a difficult standard to meet, and the analysis is a fact-specific one." Id. Neither party bears the burden to show harm. Id.

The trial court's charge on punishment states:

II. Parole Instructions

Under the law applicable to this case, the defendant, if sentenced to a term of imprisonment, may earn time off the period of

incarceration imposed through the award of good conduct time. Prison authorities may award good conduct time to a prisoner who exhibits good behavior, diligence in carrying out prison work assignments, and attempts at rehabilitation. If a prisoner engages in misconduct, prison authorities may also take away all or part of any good conduct time earned by the prisoner.

It is also possible that the length of time for which the defendant will be imprisoned might be reduced by the award of parole.

(Emphasis added.). The code of criminal procedure provides:

The length of time for which a defendant is imprisoned may be reduced by the award of parole.

Under the law applicable in this case, the defendant, if sentenced to a term of imprisonment, may earn early parole eligibility through the award of good conduct time. Prison authorities may award good conduct time to a prisoner who exhibits good behavior, diligence in carrying out prison work assignments, and attempts at rehabilitation. If a prisoner engages in misconduct, prison authorities may also take away all or part of any good conduct time earned by the prisoner.

. . .

It cannot accurately be predicted how the parole law and good conduct time might be applied to this defendant if sentenced to a term of imprisonment, because the application of these laws will depend on decisions made by prison and parole authorities.

Tex. Code Crim. Pro. Ann. art. 37.07 (emphasis added).

During closing argument in the punishment phase, the State informed the jurors that they could "send a message out there to Kaufman [County]. You can send a message down there to the penitentiary that, guess what, you don't come to Kaufman County and commit robbery on our citizens. . . we're not going to tolerate it." The State then asked the jurors whether they knew "about three times, three strikes, you're out? How about six strikes, you're out? This guy hasn't stopped his whole life. Everybody was wrong about this guy. He didn't stop when he committed that crime, went to prison." While deliberating, the jury sent a note asking: "How much time was spent in TDJC for the offense of Indecency w/ A Child Sexual Contact versus Felony Probation time?" The judge responded the jury had all the law and evidence to decide the case.

Appellant asserts the charge error coupled with the State's arguments during punishment caused egregious harm, and the jury's note supports his conclusion. We disagree.

At punishment, appellant stipulated to his prior conviction for indecency with a child by sexual contact, a second-degree felony. The State also admitted a penitentiary packet from the Texas Department of Criminal Justice that contained judgments from appellant's prior convictions for indecency with a child by sexual contact, failure to register as a sex offender, and burglary of a building; a prior certified judgment for the offense of theft; and a prior certified judgment for the offense of evading arrest or detention. The State presented no other evidence at punishment, but the defense called one of appellant's friends to testify. She testified about appellant's childhood, his children, and how appellant and his siblings started a nonprofit organization to help children in foster care.

The State's closing argument did not address the good-conduct or parole language about which appellant complains. The State's argument that appellant "hasn't stopped his whole life," even after serving time in prison, addressed appellant's previous convictions; the jury's note also inquired about how long appellant previously was incarcerated. Neither was related to the jury-charge error. The State's other argument that the jury could send a message about committing robberies in Kaufman County was made in the context of and to encourage the jury to impose a longer sentence. The punishment range for the offense was five to ninety-nine years. After considering the evidence, the jury assessed punishment of thirty-five years' confinement, on the lower end of the punishment range.

Upon reviewing the entire record and considering the relevant factors, we conclude nothing in the record shows the jury charge error affected the very basis of the case, deprived appellant of a valuable right, or vitally affected a defensive theory. The record does not show the charge error caused egregious harm; any purported harm is only theoretical. We overrule appellant's third issue.

Conclusion

We affirm the trial court's judgment.

JUDGMENT

Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.

Prince v. State

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Prince v. State

Prince v. State

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Prince v. State

Opinion

Prince v. State

Prince v. State

Case Details

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