No. 01-06-01026-CR
Opinion issued April 17, 2008. DO NOT PUBLISH. Tex. R. App. P. 47.2(b).
Panel consists of Justices NUCHIA, JENNINGS, and KEYES.
On Appeal from the 182nd District Court Harris County, Texas, Trial Court Cause No. 1040845.
EVELYN V. KEYES, Justice.
A jury found appellant, Jonathan Lewis Rainey, guilty of the offense of capital murder. Because the State did not seek the death penalty, the trial court automatically assessed his punishment at confinement for life. In his sole point of error, appellant contends that the trial court erroneously instructed the jury to unanimously agree to acquit him of the offense of capital murder before it could consider whether appellant was guilty of the lesser included offense of aggravated robbery. We affirm.
Background
Appellant and two other conspirators participated in an armed robbery of Texas Pawnshop. In the course of the robbery, the complainant, Rogelio Caballero, Jr., was fatally shot. Appellant gave two conflicting statements to police. In one, appellant claimed that he did not participate in the shooting of the complainant in any way. In the second, appellant claimed that both he and a co-conspirator fired shots at the complainant. Appellant was indicted for capital murder for intentionally causing the death of the complainant in the course of committing the robbery. At trial, appellant admitted to his participation in the armed robbery, but claimed that he was not involved in the shooting death of the complainant. The jury was instructed on the charged offense of capital murder. Then the jury was instructed, "Unless you so find from the evidence beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will acquit the defendant of capital murder and next consider whether the defendant is guilty of aggravated robbery." This paragraph was followed by instructions to the jury on the lesser-included offense of aggravated robbery. Finally, the jury was instructed: If you believe from the evidence beyond a reasonable doubt that the defendant is guilty of either capital murder on the one hand or aggravated robbery on the other hand, but you have a reasonable doubt as to which of said offenses he is guilty, then you must resolve that doubt in the defendant's favor and find him guilty of the lesser offense of aggravated robbery. If you have a reasonable doubt as to whether the defendant is guilty of any offense defined in this charge you will acquit the defendant and say by your verdict "Not Guilty." Appellant did not raise any objections to these portions of the jury charge. After receiving these instructions, the jury found appellant guilty of capital murder. The trial court assessed appellant's punishment at confinement for life. This appeal followed. Analysis
In his sole point of error, appellant argues that the trial court erred in "instructing the jury that it must unanimously agree to acquit appellant of capital murder before it could consider whether he was guilty of the lesser-included offense of aggravated robbery." Appellant specifically complains of the provision of the trial court's jury charge that stated, "Unless you so find from the evidence beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will acquit the defendant of capital murder and next consider whether the defendant is guilty of aggravated robbery." (Emphasis added). He asserts that this instruction "improperly impinges on the jury's freedom of choice among greater and lesser offenses" and that he was egregiously harmed by it. See Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984) (holding that if error is found in jury charge and defendant fails to object to such error, defendant must show egregious harm). We review jury charge error in a two-step process. Ngo v. State, 175 S.W.3d 738, 743 (Tex.Crim.App. 2005). First, we determine whether error exists in the charge. Id. If there is error, we then review the record to determine whether sufficient harm was caused by the error to require reversal of conviction. Id. When, as here, the charging error is not preserved, reversal is not required unless the harm is egregious. Id. at 743-44 (citing Almanza, 686 S.W.2d at 171). This Court recently held in Mitchel v. State that the type of instruction used in this case is not erroneous. No. 01-06-00369-CR, 2008 WL 339696, at *5 (Tex.App.-Houston [1st Dist.] Feb. 7, 2008, no pet. h.) (citing Boyett v. State, 692 S.W.2d 512, 515-16 (Tex.Crim.App. 1985)). The appellant in Mitchel complained of an instruction that was virtually identical in both form and substance to the jury charge complained of here. Id. at *5. This Court emphasized the fact that the jury charge is intended to be read as a whole, and we stated that the charge as written "clearly contemplated that the jury would consider the lesser offense before unanimously deciding to acquit of the greater offense" and that the jury charge as a whole "properly instructed jurors regarding the effect of their having had a reasonable doubt as to any charged offense." Id. The charge here is virtually identical to the charge in Mitchel. Here, as in Mitchell, the jury was free to consider the entirety of the jury charge before reaching its final, unanimous conclusion. See id. Therefore, we hold that this charge is not erroneous. Because there was no error in the charge we do not need to address whether there was some harm. See Ngo, 175 S.W.3d at 743. We overrule appellant's sole point of error. Conclusion
We affirm the judgment of the trial court.