Opinion
No. 05-04-00426-CR
Opinion Filed April 21, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court, No. 4, Dallas County, Texas, Trial Court Cause No. F03-40907. Affirmed.
Before Justices WRIGHT, FITZGERALD, and LANG-MIERS.
OPINION
George Thomas pleaded guilty to aggravated kidnapping and a jury assessed his punishment at fifteen years' imprisonment. In a single issue, Thomas asks this Court to reverse and remand the case because the trial court failed to instruct the jury that it could consider evidence of extraneous offenses only if it believed beyond a reasonable doubt that Thomas had committed those offenses. Because we conclude the error did not result in egregious harm, we affirm the trial court's judgment.
Background
Thomas and the complaining witness met in college and dated for six or seven months beginning in the summer of 2001. The complaining witness broke up with him more than once because she had concerns about Thomas's "obsessive" behavior and his desire to have a more serious relationship than she did. The complaining witness testified that when they finally broke up, sometime in the winter of 2002, Thomas repeatedly called her, sometimes in the middle of the night, and left her multiple messages on her cell phone. He would wait outside her classes and outside her workplace, which frightened her. After she transferred to a different campus, however, she had no more unusual contact with Thomas, and if she ran into him everything was fine. In June of 2003, more than a year later, Thomas drove from Addison to Mesquite, where he knew the complaining witness worked at a mall, and he waited for her in the parking lot carrying a knife, a roll of duct tape, and some shirts in a bag, so he would appear to have been shopping. When she got into her car, Thomas approached her, told her he had run out of gas, and asked her for a ride to a nearby gas station. She agreed, but Thomas quickly pulled his knife, held it to her side, and ordered her to drive. When he told her to stop she did, but he hit her in the head twice and then shoved her head into the steering wheel. He taped her hands, threw her in the back seat of the car, and drove her to a relatively isolated area away from town. Throughout the ordeal, she repeatedly asked him if he was going to kill her. Eventually, he taped her arms, eyes, mouth, and legs. He left her lying in the grass on the side of a dark road after telling her he would be back. She was able to work her way free of most of the tape and alternately ran and hid for hours until she came upon a security guard who called the police for her. Thomas did return, purportedly to leave the complaining witness's purse and phone with her, but she was gone. After sitting in his truck for some period of time, he drove off on a six-day trip across the western half of the country. He was arrested when he returned home. Eventually, he pleaded guilty to aggravated kidnapping. The issue of his punishment was tried to a jury. Thomas sought probation, but the jury assessed his punishment at fifteen years' imprisonment. This appeal followed.Failure to Instruct on Burden of Proof in Extraneous Offenses
Thomas charges that "[t]hroughout the hearing" witnesses made references to extraneous bad acts. He identifies three such bad acts: Thomas's harassment of the complaining witness by telephone, his waiting for her outside her classes and outside her workplace (which the complaining witness termed "stalking"), and his having spent a night in jail prior to the kidnapping. Thomas claims that the court's failure to instruct the jury on the proper burden of proof as to these bad acts resulted in egregious harm to his case. During the punishment phase of a trial, evidence may be offered by either party:as to any matter the court deems relevant to sentencing, including . . . evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant.Tex. Code Crim Pro. art. 37.07 § 3(a)(1). The trial court must give an instruction relating this reasonable-doubt standard on extraneous crimes or bad acts; failure to do so is error. Huizar v. State, 12 S.W.3d 479, 484 (Tex.Crim.App. 2000). The court's obligation to instruct is no different in a case involving a guilty plea. See Batiste v. State, 73 S.W.3d 402, 407 (Tex.App.-Dallas 2002, no pet.). However, Thomas did not object to the trial court's failure to give the instruction. Accordingly, we will not reverse unless the error caused egregious harm. See Ellison v. State, 86 S.W.3d 226, 228 (Tex.Crim.App. 2002). Harm is egregious if the case for the defendant's punishment was actually made clearly and significantly more persuasive by the error. See Saunders v. State, 817 S.W.2d 688, 692 (Tex.Crim.App. 1991). The harm that must be considered is not the admission of the extraneous-offense evidence, but the impact of the omission in the jury charge of a reasonable-doubt instruction. Ellison, 86 S.W.3d at 228. Our question, thus, is whether the case for assessing Thomas's punishment at fifteen years rather than probation was made clearly and significantly more persuasive by the trial court's failure to tell jurors that they could not consider the telephone harassment, the so-called "stalking," or the night in jail unless the evidence indicated, beyond a reasonable doubt, that Thomas had in fact committed those bad acts. We dispose of the complaint concerning Thomas's spending a night in jail at the outset: Thomas himself testified that he had done so and explained the circumstances to the jury. There is no reasonable doubt that he committed that bad act. Thus, the absence of the reasonable-doubt instruction could not have harmed Thomas even if the jury did consider that act. As to the remaining allegations, the complaining witness made only one brief reference to these behaviors by Thomas when explaining the couple's break-up in 2001. She testified that after the winter of 2001-2002, she had no more contact like this with Thomas. The testimony was not a focus of the State's case in any fashion. The prosecutor did not bring the allegations up when cross examining Thomas and did not mention them in closing arguments. The State did stress the heinous nature of the aggravated kidnapping, which the complaining witness described in her testimony. Thomas not only admitted this crime in the detailed statement presented to the jury, he also testified that the kidnapping was "the worst possible thing I could ever do." Certainly the facts of the kidnapping support the punishment given, which is well below the maximum possible, a life sentence. We conclude the jury assessed Thomas's punishment at fifteen years, and rejected probation, on the facts surrounding the aggravated kidnapping, not based on passing references to earlier conduct. See Batiste, 73 S.W.3d at 408. Thus, the failure to instruct the jury about consideration of that earlier conduct could not have caused egregious harm. We decide this issue against Thomas.