Nos. 05-02-00747-CR, 05-02-00748-CR.
Opinion Filed February 11, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 282nd Judicial District Court Dallas County, Texas, Trial Court Cause Nos. F00-54457-MS, F00-73063-PS. Affirmed.
Before Justices MORRIS, WRIGHT, and MOSELEY.
Opinion By Justice MOSELEY.
Wayne Smith appeals two convictions for delivery of cocaine in an amount of four hundred grams or more. Appellant entered non-negotiated guilty pleas and elected to have the jury assess punishment. The jury assessed punishment at twenty-five years confinement and a $100,000 fine in one case and confinement for life in the other case. In his sole issue, appellant contends the trial court erred by failing to deliver a reasonable doubt instruction to the jury regarding proof of extraneous offenses. We affirm.
Appellant's first appointed counsel filed a motion to withdraw, accompanied by a brief asserting the appeals were frivolous and without merit. See Anders v. California, 386 U.S. 738 (1967); Jeffery v. State, 903 S.W.2d 776, 779 (Tex.App.-Dallas 1995, no pet.). On initial submission, the Court concluded there was at least one arguable issue and abated the appeals for appointment of new counsel.
Background
Working through a confidential informant, undercover police officer Brenita Dunn arranged two purchases of cocaine from appellant. In the first transaction, on September 21, 2000, appellant delivered 513 grams of cocaine to Dunn and then told her, "If you need anything else, give me a call." In the second transaction, on October 5, 2000, appellant and an accomplice delivered another 1.93 kilograms of cocaine to Dunn. In addition to the current offenses, the State introduced evidence of other drug offenses. The confidential informant testified he had purchased one or more kilograms of cocaine per week from appellant for a year and a half. Dunn testified that during the October 5th transaction, appellant received a telephone call and negotiated with the caller to deliver fifty pounds of marijuana. After appellant stipulated he had been convicted of illegal expenditure/investment, former Fort Worth narcotics officer Michael De la Flor testified about that offense. De la Flor testified that while he was working undercover, appellant arranged to purchase five kilograms of cocaine from him and appellant wanted an additional five kilograms later. Appellant told De la Flor that he had conducted a lot of business with the intermediary who set up the transaction. Appellant asked De la Flor if De la Flor would be a good source because it would not be a one-time deal. De la Flor agreed with the prosecutor's characterization of appellant as a confident drug dealer. In his own testimony, appellant admitted dealing drugs occasionally in order to support his automobile body shop business, but he denied selling cocaine to the confidential informant on a weekly basis. Including the offenses at issue, appellant admitted he engaged in about five drug transactions with the confidential informant totaling four and one-half kilograms of cocaine. Appellant denied discussing a marijuana transaction in Dunn's presence. In final argument, referring to both the current offenses and the extraneous offenses, the prosecutor portrayed appellant as a regular drug dealer who did not deserve a minimum sentence. The prosecutor urged the jury to assess a punishment of between twenty and forty years confinement for the September 21st offense and a higher sentence for the October 5th offense. Discussion
Appellant contends the trial court erred by failing to instruct the jury in the punishment charge that it could not consider the evidence of extraneous offenses unless it found such offenses were proven beyond a reasonable doubt. Appellant concedes he did not object to the error at trial, but he contends the error is reversible because he suffered egregious harm in that the extraneous offense evidence made the case for punishment significantly more persuasive. The State concedes the trial court erred in omitting a reasonable doubt instruction, but it contends the error did not cause egregious harm. We agree with the State. When evidence of extraneous offenses is introduced during the punishment phase of a jury trial, the trial court must include a reasonable doubt instruction in the jury charge. Huizar v. State, 12 S.W.3d 479, 484 (Tex.Crim.App. 2000). Because the charge in this case did not include a reasonable doubt instruction, we conclude the trial court erred. See Huizar, 12 S.W.3d at 484; Batiste v. State, 73 S.W.3d 402, 407 (Tex.App.-Dallas 2002, no pet.). Because appellant did not object to the error at trial, we review the entire record to determine whether the error was so egregious and created such harm that the defendant did not receive a fair and impartial trial. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984) (op. on reh'g); Batiste, 73 S.W.3d at 407. Egregious harm consists of those errors that affect the very basis of the case, deprive appellant of a valuable right, vitally affect a defensive theory, or make the case for punishment clearly and significantly more persuasive. Batiste, 73 S.W.3d at 407. We assess the actual degree of harm 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 in the record. Id. Egregious harm is difficult to prove and is determined on a case-by-case basis. Id. In assessing the harm, we consider the impact of the omission in the jury charge of the reasonable doubt instruction rather than the harm to appellant from admission of the extraneous offense evidence. Ellison v. State, 86 S.W.3d 226, 228 (Tex.Crim.App. 2002). Applying the appropriate standard of review, the jury charge in this case did not address the extraneous offenses but did state the jury could "take into consideration all the facts shown by the evidence" and that the jury was the "exclusive judges of the facts proved, of the credibility of the witnesses and of the weight to be given their testimony. . . ." Thus, the charge did inform the jury that it could reject the State's evidence if it was not satisfied with the proof offered. Furthermore, although appellant contested some of the extraneous offense evidence, he pleaded guilty to two large cocaine deliveries, stipulated to a prior drug-related conviction, and admitted he had engaged in additional transactions with the confidential informant. Even if a reasonable doubt instruction had been given and the jury concluded the State had not proven the disputed extraneous offenses, there was sufficient undisputed evidence of appellant's drug activities in the record to support the prosecution's argument. Finally, we question whether the extraneous offense evidence had much impact upon the jury's determination. For delivery of 400 grams or more of cocaine, the punishment range is confinement for fifteen to ninety-nine years or life and a fine of up to $250,000. See Tex. Health Safety Code Ann. § 481.112(f) (Vernon 2003). For the September 21st offense, the jury assessed punishment near the bottom of the range for delivering cocaine in an amount near the 400 gram minimum for this level of offense. For the October 5th offense, involving significantly more cocaine, the jury assessed the maximum punishment. The jury's selection of punishments from opposite ends of the range suggests the jury was influenced primarily by the quantities of cocaine involved in each offense, rather than by the extraneous offense evidence. We conclude appellant has not shown egregious harm from the omission of the reasonable doubt instruction. Therefore, we overrule appellant's sole issue. We affirm the trial court's judgments.