No. 05-04-01206-CR
Opinion issued July 25, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the County Criminal Court No. 10 Dallas County, Texas, Trial Court Cause No. MA03-71230-L. Affirmed.
Before Justices O'NEILL, FRANCIS, and LAGARDE.
The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
SUE LAGARDE, Justice, Assigned.
Appellant Cecil Henry Wallace, Jr. appeals his conviction by a jury of the class A misdemeanor offense of assault against Rayshell Wamsley, a member of appellant's household or family. See Tex. Pen. Code Ann. § 22.01(a)(1), (b) (Vernon Supp. 2004-05). After finding appellant guilty, the jury assessed his punishment at 180 days' confinement in the Dallas County Jail. On appeal, appellant complains only that the trial court reversibly erred in the punishment phase of trial by failing to instruct the jury sua sponte that before it could consider extraneous offense evidence it must find the State had proved the extraneous offenses beyond a reasonable doubt. For reasons that follow, we resolve appellant's issue against him and affirm.
The officers who responded to the 911 call originally filed the case as a class C misdemeanor because the complainant denied any injury. A family violence investigator later refiled the charge as a class A misdemeanor.
There are various spellings of Wamsley's name in the record.
Background
This misdemeanor assault happened on Christmas Day 2002 at the home of Lillian Wallace, appellant's 73-year-old mother and the complainant's grandmother. The complainant and appellant had not always gotten along and had often argued in the past. The complainant was present at her grandmother's house when appellant arrived with his son and some Christmas gifts. Apparently still upset about the complainant's past actions toward him, which he considered disrespectful, appellant confronted the 32-year-old complainant in the bathroom, telling her, "Don't you ever disrespect me again." Wallace intervened and told appellant and his son to leave and take their gifts with them. When appellant returned to get one gift that had been left behind, angry words were exchanged and appellant began to fight with his mother in an attempt to reach the complainant. When the complainant came to the aid of her grandmother, appellant attacked her, got her on the floor, put his arm around her neck, and began hitting her on the head with his fist. Appellant also kicked the complainant on the head as his son was pulling him off her. When she was free, the complainant called 911. The police came. The complainant initially refused medical treatment, but several days later began having dizzy spells and nausea. She went to the emergency room at Methodist Hospital where she was diagnosed with a concussion and given pain medication. A few weeks after the assault, the complainant gave a written statement to the police. Wallace did not file a complaint against appellant because he was her son, even though a few days after the incident she felt "ringing." At the punishment stage, appellant's mother testified that appellant needed some help and was "not right." She believed his drinking caused him to be violent. She did not know whether he also used other drugs, but believed he had been drinking the day of this assault. Although she did not want to see appellant go to jail, she agreed that if he could get treatment in jail, that would be helpful. Appellant's sister also testified at the punishment phase of trial. She stated she feared appellant would retaliate against her mother and her niece. She would not feel safe if appellant were released, and requested counseling for her brother. She also testified about some of appellant's medical problems. A victim's advocate in the family violence division of the district attorney's office also testified. She told the jury that batterers needed to be held accountable for their crimes and agreed that jail could deter future violence. Appellant presented no punishment witnesses. During the punishment hearing, certain evidence of unadjudicated prior bad acts by appellant were introduced including threats, violence while drinking, and drug usage leading to violence. The charge on punishment did not contain a burden of proof instruction on extraneous acts. Appellant did not object at trial to the lack of such an instruction. However, on appeal, he contends such omission constitutes reversible error. The State concedes the evidence of extraneous bad acts was admitted during the punishment hearing, and the trial court erred in failing to include, sua sponte, a beyond a reasonable doubt instruction in the jury charge regarding the bad act evidence. Nevertheless, the State contends appellant did not suffer egregious harm because of the trial court's omission, thus reversal is not required. Standard of Review
The standard of review for charging error is set out in Abdnor v. State, 871 S.W.2d 726, 731 (Tex.Crim.App. 1994). A two-step process is involved reviewing jury charge error. An appellate court must first determine whether error exists in the charge, and if so, whether sufficient harm resulted from the error to require reversal. Id. at 731-32. When evidence of prior unadjudicated bad acts is presented at punishment, the trial court is to instruct the jury that it cannot consider the evidence unless it finds the State proved beyond a reasonable doubt that the defendant committed the acts or could be held criminally responsible for the acts. See Tex. Code Crim. Proc. Ann. art. 37.07, § (3)(a)(1) (Vernon Supp. 2004-05); Huizar v. State, 12 S.W.3d 479, 483 (Tex.Crim.App. 2000) (op. on reh'g). The trial court must give the instruction even in the absence of an objection. See Huizar, 12 S.W.3d at 484; Jones v. State, 111 S.W.3d 600, 609-10 (Tex.App.-Dallas 2003, pet. ref'd). However, if no objection is made to the failure to include the instruction, reversal is required only if the error egregiously harmed appellant. See Huizar, 12 S.W.3d at 484; Abdnor, 871 S.W.2d at 731-32. Egregious harm occurs if the error deprived appellant of a valuable right, vitally affects a defensive theory, or makes the case for prosecution or punishment clearly and significantly more persuasive. See Sanders v. State, 817 S.W.2d 688, 692 (Tex.Crim.App. 1991). Appellant bears the burden of proof on appeal to show egregious harm occurred. Abdnor, 871 S.W.2d at 732. Analysis
We agree with the State that appellant has not met his burden on appeal to show egregious harm. The entire trial in this case lasted two days. The jury deliberated both guilt/innocence and punishment on the second day of trial. See Miranda v. State, 993 S.W.2d 323, 331-32 (Tex.App.-Austin 1999, no pet.). And, the punishment charge incorporated by reference the charge on guilt/innocence, which contained a reasonable doubt instruction on extraneous offense evidence. Moreover, the evidence presented was sufficient to prove the extraneous conduct evidence beyond a reasonable doubt. Appellant does not contend otherwise. See Smith v. State, 899 S.W.2d 31, 35 (Tex.App.-Austin 1995, pet. ref'd) (when appellant does not contend evidence is insufficient, there is no reason to believe jury, had it been given beyond a reasonable doubt instruction, would have disregarded unadjudicated offense evidence or assessed less onerous punishment). We resolve appellant's issue against him. We affirm the trial court's judgment.