Roberts, Charles

PD-1672-15 PD-1672-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 12/28/2015 9:18:56 AM Accepted 12/28/2015 1:40:26 PM PD-______ ABEL ACOSTA CLERK

IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF TEXAS

CHARLES ROBERTS Petitioner/Appellant

v.

THE STATE OF TEXAS Respondent/Appellee

On Petition for Discretionary Review from the Fourteenth Court of Appeals in Cause No. 14-14-00874-CR, affirming the conviction in Cause Number 1381559 from the 177th District Court of Harris County

PETITION FOR DISCRETIONARY REVIEW

ORAL ARGUMENT NOT REQUESTED ALEXANDER BUNIN Chief Public Defender Harris County, Texas

ANGELA CAMERON Assistant Public Defender Harris County, Texas Texas Bar No. 00788672 1201 Franklin, 13th Floor Houston, Texas 77002 Phone: (713) 368-0016 December 28, 2015 Fax: (713) 368-9278 angela.cameron@pdo.hctx.net

Counsel for Appellant

IDENTITY OF PARTIES AND COUNSEL

APPELLANT: Charles Roberts #01962903 Telford Unit 3899 Hwy 98 New Boston, Texas 75570

TRIAL PROSECUTORS: Nathan Hennigan Assistant District Attorney Harris County, Texas 1201 Franklin Avenue Houston, Texas 77002

DEFENSE COUNSEL AT TRIAL: Ellis McCullough 4008 Louetta Road, Suite 365 Houston, Texas 77388

COUNSEL ON APPEAL FOR APPELLANT: Angela L. Cameron Assistant Public Defender Harris County, Texas 1201 Franklin Ave, 13th Floor Houston, Texas 77002

PRESIDING JUDGE: Hon. Ryan Patrick 177th District Court Harris County, Texas 1201 Franklin Avenue, 19th floor Houston, Texas 77002

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TABLE OF CONTENTS

Identity of Parties and Counsel..............................................................................................ii Table of Contents ...................................................................................................................iii Index of Authorities .............................................................................................................. iv Statement Regarding Oral Argument................................................................................... 1 Statement of the Case ............................................................................................................ 1 Statement of Procedural History .......................................................................................... 1 Ground for Review ................................................................................................................ 1 Reason for Review.................................................................................................................. 1 Statement of Facts .................................................................................................................. 2 Argument ................................................................................................................................. 4 Issue for Review ..................................................................................................................... 4

Did the Court of Appeals err in failing to address the merits of Mr. Roberts’ claim that the trial court erred in allowing Roberts to be impeached with evidence of a previous conviction for assault family violence against his father as being more prejudicial than probative.

PRAYER .................................................................................................................................. 6 CERTIFICATE OF SERVICE .................................................................................................... 6 CERTIFICATE OF COMPLIANCE ........................................................................................... 7 APPENDIX ................................................................................................................................ 8

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INDEX OF AUTHORITIES

Cases Light v. State, 15 S.W.3d 104 (Tex. Crim. App. 2000) ..................................................... 1, 5

Roberts v. State, No. 14-14-00874-CR, 2015 WL 9246779 (Tex. App. – Houston [14th Dist.], December 17, 2015) (mem. op., not designated for publication) ........ 1, 5

Theus v. State, 845 S.W.2d 874 (Tex. Crim. App. 1992) ...................................................... 4 Statutes Tex. Pen. Code §19.02 ........................................................................................................... 1 Rules Tex. R. App. P. 47.1 ........................................................................................................... 5, 6 Tex. R. App. P. 66.3(c) ........................................................................................................... 1

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STATEMENT REGARDING ORAL ARGUMENT

Oral argument is not requested.

STATEMENT OF THE CASE

Mr. Roberts was charged with murder. See Tex. Pen. Code §19.02 (C.R. at 15). Roberts entered a plea of “not guilty” (3 R.R. at 8). After a jury trial, Roberts was found guilty and sentenced by a jury to fifty (50) years imprisonment in the Texas Department of Corrections – Institutional Division (C.R. at 199). Timely notice of appeal was filed (C.R. at 202).

STATEMENT OF PROCEDURAL HISTORY

In an unpublished opinion, the Fourteenth Court of Appeals affirmed Mr. Roberts’ conviction. Roberts v. State, No. 14-14-00874-CR, 2015 WL 9246779 (Tex. App. – Houston [14th Dist.], December 17, 2015) (mem. op., not designated for publication). No motion for rehearing was filed. This petition is timely if filed on or before January 18, 2016.

GROUNDS FOR REVIEW

Did the Court of Appeals err in failing to address the merits of Mr. Roberts’ claim that the trial court erred in allowing Roberts to be impeached with evidence of a previous conviction for assault family violence against his father as being more prejudicial than probative.

REASON FOR REVIEW

The Fourteenth Court of Appeals’ opinion fails to address every issue raised and necessary to final disposition of Mr. Roberts’ appeal contrary to Tex. R. App. Proc. 47.1 and this Court’s decision in Light v. State, 15 S.W.3d 104, 105 (Tex. Crim. App. 2000). Tex. R. App. P. 66.3(c).

STATEMENT OF FACTS

On December 31, 2012, Albert Terepo was found shot in the parking lot of a HEB grocery store (4 R.R. at 9 & 11). Terepo died as a result of the gunshot wound he received (5 R.R. at 27-28). There were no eyewitnesses to the shooting, and no useable fingerprints or foreign DNA was found (3 R.R. at 49, 53) (4 R.R. at 19). None of the surveillance cameras at the HEB captured the murder because Terepo’s minivan was parked in blind spot outside the view of the cameras (4 R.R. at 37-38). Terepo’s cell phone was found at the scene (4 R.R. at 20).

An examination of the cell phone revealed several texts, including texts between Terepo and a person listed as “Lil Chucky” who was later identified as being Appellant, Charles Roberts (4 R.R. at 20-22). The texts indicated Roberts was to meet Terepo at the HEB to buy two ounces of marijuana (4 R.R. at 23-26).

Detectives obtained Roberts’ cell phone records through a court order (4 R.R. at 41). The records indicated that within minutes before the shooting, Roberts’ cell phone pinged off the cell tower located a quarter mile from the HEB and stated that most towers have a range of distance of two to three miles (4 R.R. at 52-55 & 64). However the officer agreed the tower information was not GPS and could not pinpoint exactly where an individual was when the tower received the signal, only that the phone was within close range of the tower (4 R.R. at 40).

Roberts took the stand on his own behalf. Roberts confirmed he was going to purchase hydro marijuana from Terepo and that he was at HEB shortly before the 911 *3 call was made (5 R.R. at 67-68, 79, 82, 89). Roberts also agreed he was on the phone with Terepo approximately five minutes before 911 was called1 (5 R.R. at 89).

Roberts testified it was during this phone call he told Terepo he was not willing to complete the purchase (5 R.R. at 95-96). Roberts decided to abandon the transaction because when he arrived at the HEB, Terepo was not alone as Terepo had said he would be, he was driving in a different vehicle than he had told Roberts he would be driving, and Roberts saw an uniformed officer at the HEB gas station, (5 R.R. at 66-68). Roberts testified he never got out of his vehicle, and instead returned home (5 R.R. at 68 & 95). Roberts specifically denied shooting Terepo (5 R.R. at 70).

Roberts turned himself in to authorities the day after he learned there was a warrant for his arrest (5 R.R. at 71). While in the Inmate Processing Center he saw Mark Williams, the father of one of Robert’s cousin’s children (5 R.R. at 46 & 72). Williams testified Roberts told him that he had committed the murder while the two were at the Inmate Processing Center (4 R.R. at 84-86). Roberts admitted talking to Williams but argued that Williams was lying (5 R.R. at 72, 110-112). Roberts testified there was “bad blood” between Williams and Roberts’ family, due in part, to an incident where Roberts’ mother had security escort Williams from a trail ride after Williams, Roberts and one of Roberts’ cousins got into a physical altercation (5 R.R. at 64-65).

1 The phone records indicate a call between Roberts and Terepo at 5:19 p.m. which lasted 34 seconds, or until 5:20 p.m. (5.R.R. at 89). The testimony at trial was the 911 call reporting the shooting was made at 5:24 p.m. (4 R.R. at 18).

ARGUMENT

Did the Court of Appeals err in failing to address the merits of Mr. Roberts’ claim that the trial court erred in allowing Roberts to be impeached with evidence of a previous conviction for assault family violence against his father as being more prejudicial than probative?

In his first point of error, Roberts argued the trial court abused its discretion in admitting evidence of Roberts’ prior conviction for assault family violence against his biological father, for impeachment purposes. Roberts argued first the conviction was not a conviction of moral turpitude because misdemeanor assaults between men have traditionally not been crimes of moral turpitude and the mere finding of a family biological relationship should not transform the conviction into a crime of moral turpitude when Roberts had not seen his father since he was four years old. (Appellant’s brief pp. 17-19). Roberts then argued alternatively, the evidence should have been excluded under the probative versus prejudicial analysis in Theus v. State, 845 S.W.2d. 874, 880 (Tex. Crim. App. 1992). (Appellant’s brief pp. 19-22).

The entirety of the Court of Appeals’ opinion regarding Roberts’ first point of error is as follows:

In his first issue, appellant argues that the trial court abused its discretion by admitting the evidence of his assault conviction. Appellant argues that this evidence was inadmissible under Rule 609 of the Texas Rules of Evidence because an assault against a man is not considered a crime involving moral turpitude. The State responds that this complaint has not been preserved. We agree with the State.

To preserve a complaint for appellate review, the record must show that the complaint was made to the trial court by a timely objection, stating the grounds for the ruling sought with sufficient specificity to make the trial

court aware of the complaint, unless the specific grounds were apparent from the context. See Tex.R.App. P. 33.1(a). The purpose for requiring a timely, specific objection is twofold: (1) it informs the judge of the basis of the objection, affording the judge an opportunity to rule on it; and (2) it gives opposing counsel an opportunity to respond to the complaint. See Resendez v. State, 306 S.W.3d 308, 312 (Tex.Crim.App.2009). Although we are not hyper-technical in our examination of whether error was preserved, we do adhere to the general rule that the argument on appeal must comport with the objection made at trial. See Bekendam v. State, 441 S.W.3d 295, 300 (Tex.Crim.App.2014).

Here, the only legal objection asserted at trial was that the evidence of the assault was more prejudicial than probative. This objection did not put the trial court on notice of the complaint appellant now asserts on appeal— that the assault was not a crime involving moral turpitude. We conclude that appellant's argument on appeal does not comport with the objection he made at trial, and thus, his complaint has not been preserved for appellate review. Cf. Douds v. State, No. PD0857–14, ––– S.W.3d ––––, 2015 WL 5981121, at *4–5 (Tex.Crim.App. Oct. 14, 2015) (defendant's trial argument that the requirements of a mandatory blood-draw statute had not been met did not preserve a constitutional complaint on appeal that the blood draw violated the Fourth Amendment where there was no showing of exigent circumstances).

Roberts v. State, No. 14-14-00874-CR, 2015 WL 9246779, at *2 (Tex. App. – Houston [14th Dist.] Dec. 17, 2015).

Tex. R. App. Proc. 47.1 requires the court of appeals “hand down a written opinion… that addresses every issue raised and necessary to final disposition of the appeal.” Failure by a court of appeals to address a point of error properly raised by a party requires remand for consideration of that point of error. Light v. State, 15 S.W.3d 104, 105 (Tex. Crim. App. 2000). The Court of Appeals’ opinion wholly fails to conduct any review of the trial court’s determination of the probative versus prejudicial value of the prior conviction. The opinion only mentions probative verse prejudicial when it *6 states, this was the legal objection made at trial by trial counsel. Thus the opinion is not in compliance with Tex. R. App. Proc. 47.1.

PRAYER

For these reasons, Mr. Roberts prays this Court to grant discretionary review and remand to the Court of Appeals to conduct a review of Roberts’ point of error alleging the prior conviction was more prejudicial than probative.

Respectfully submitted,

ALEXANDER BUNIN Chief Public Defender Harris County Texas

/s/ Angela Cameron ANGELA CAMERON Assistant Public Defender 1201 Franklin, 13th floor Houston Texas 77002 (713) 368-0016 TBA No. 00788672 email: angela.cameron@pdo.hctx.net

CERTIFICATE OF SERVICE

I certify that I provided a copy of the foregoing petition to the Harris County District Attorney and the State Prosecuting Attorney via e-filing service on the 28th day of December 2015.

/s/ Angela Cameron ANGELA CAMERON

CERTIFICATE OF COMPLIANCE

Pursuant to Rule 9.4(i)(3), undersigned counsel certifies that this brief complies with the type-volume limitations of Tex. R. App. Proc. 9.4(e)(i). 1. This petition for discretionary review contains 2,132 words printed in a proportionally spaced typeface. 2. This brief is printed in a proportionally spaced, serif typeface using Garamond 14 point font in text and Garamond 12 point font in footnotes produced by Microsoft Word software. 3. Upon request, undersigned counsel will provide an electronic version of this brief and/or a copy of the word printout to the Court. 4. Undersigned counsel understands that a material misrepresentation in completing this certificate, or circumvention of the type-volume limits in Tex. R. App. Proc. 9.4(j), may result in the Court's striking this brief and imposing sanctions against the person who signed it.

/s/ Angela Cameron ANGELA L. CAMERON

Roberts v. State, Not Reported in S.W.3d (2015)

vehicle, parked just outside of a grocery store. The shooter left no physical evidence at the scene, and there were no 2015 WL 9246779 eyewitnesses or surveillance footage of the shooting. Only the Westlaw citation is currently available.

SEE TX R RAP RULE 47.2 FOR Police came to suspect that appellant may have been involved DESIGNATION AND SIGNING OF OPINIONS. in the murder. Text messages revealed that the complainant had gone to the grocery store to sell appellant two ounces DO NOT PUBLISH—TEX. R. APP. P. 47.2(B). of hydroponic marijuana. Phone records also showed that Court of Appeals of Texas, appellant was within range of a cell phone tower next to the Houston (14th Dist.). grocery store at the time of the shooting.

Charles Roberts, Appellant Appellant turned himself in to police when he learned that v. a warrant had issued for his arrest. Before he was released The State of Texas, Appellee on bond, appellant encountered a family acquaintance in jail. The acquaintance wrote a letter to his jailors, claiming that NO. 14–14–00874–CR | Memorandum appellant had confessed to killing a man for two ounces of Opinion filed December 17, 2015 hydroponic marijuana. On Appeal from the 177th District Court, Harris County, At trial, appellant admitted that he had spoken with the Texas, Trial Court Cause No. 1381559 acquaintance in jail, but he denied having made a confession Attorneys and Law Firms of murder. Appellant further admitted that he had gone to the grocery store to purchase the hydroponic marijuana, but Angela Lee Cameron, for Charles Roberts. he testified that he left without completing the transaction because he did not trust the complainant. According to Devon Anderson, Alan Curry, Carly Dessauer, for The State appellant, the complainant was not alone like he had said he of Texas. would be, and the complainant was in a different vehicle than Panel consists of Chief Justice Frost and Justices Christopher what he had previously described. and Donovan. The jury rejected appellant's testimony, convicted him of murder, and assessed his punishment at fifty years' imprisonment. MEMORANDUM OPINION

Tracy Christopher, Justice PRIOR CONVICTION *1 We consider three issues in this appeal from a conviction for murder: (1) whether the trial court abused its discretion Before appellant took the stand, the trial court conducted a by admitting evidence of a prior conviction, (2) whether hearing outside the presence of the jury to determine if there defense counsel rendered ineffective assistance by failing to were any “impeachable priors” at issue. Appellant stated that, object that appellant was in shackles during the punishment although he had no felonies on his record, he did have two phase of trial, and (3) whether the trial court reversibly erred misdemeanor convictions for assault and another conviction when it failed to give a reasonable-doubt instruction for for possession of marijuana. Because one of the assault unadjudicated bad acts. We overrule each issue and affirm the convictions involved a family member, the State argued that trial court's judgment. it constituted a crime involving moral turpitude.

Appellant personally explained to the trial court that the BACKGROUND assault was just a fight between him and his father. Appellant's defense counsel then argued that, to whatever The complainant in this case died of a single gunshot extent the evidence of the assault conviction was relevant, wound to the abdomen. His body was found inside of his the trial court should exclude it because it was more

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prejudicial than probative. The trial court determined that the Appellant took the stand during the punishment phase of evidence of the assault conviction was admissible, and the trial, wearing shackles or leg irons. Defense counsel did not State impeached appellant with that evidence at the end of object to appellant being in any kind of restraints. At the end appellant's cross-examination. of appellant's testimony, both sides rested and the jury was removed from the courtroom. The trial court then put the *2 In his first issue, appellant argues that the trial court following comments on the record: abused its discretion by admitting the evidence of his assault conviction. Appellant argues that this evidence was All right. I also want the record to reflect that once the inadmissible under Rule 609 of the Texas Rules of Evidence —once the Defendant was found guilty, it's the deputy's because an assault against a man is not considered a crime policy to put him in leg irons. And when he was called involving moral turpitude. The State responds that this to testily here in punishment, he got up and his legs [sic] complaint has not been preserved. We agree with the State. irons started banging around and clanking when he started walking to the witness stand before I had a chance to To preserve a complaint for appellate review, the record must admonish him or the jury on that. show that the complaint was made to the trial court by a So I assume the jury may have seen that he had leg irons, timely objection, stating the grounds for the ruling sought but he basically got up and started walking toward the box with sufficient specificity to make the trial court aware of the before I had a chance to say anything. So made that kind complaint, unless the specific grounds were apparent from the of issue moot. context. See Tex.R.App. P. 33.1(a). The purpose for requiring a timely, specific objection is twofold: (1) it informs the Appellant now argues in his second issue that he received judge of the basis of the objection, affording the judge an ineffective assistance of counsel because defense counsel did opportunity to rule on it; and (2) it gives opposing counsel not object to appellant being in shackles while in the presence an opportunity to respond to the complaint. See Resendez v. of the jury. We review claims of ineffective assistance State, 306 S.W.3d 308, 312 (Tex.Crim.App.2009). Although of counsel under the standard set forth in Strickland v. we are not hyper-technical in our examination of whether Washington, 466 U.S. 688 (1984). Under Strickland, the error was preserved, we do adhere to the general rule that defendant must prove that his trial counsel's representation the argument on appeal must comport with the objection was deficient, and that the deficient performance was so made at trial. See Bekendam v. State, 441 S.W.3d 295, 300 serious that it deprived him of a fair trial. Id. at 687. (Tex.Crim.App.2014). Counsel's representation is deficient if it falls below an objective standard of reasonableness. Id. at 688. A deficient Here, the only legal objection asserted at trial was that the performance will only deprive the defendant of a fair trial evidence of the assault was more prejudicial than probative. if it prejudices the defense. Id. at 691–92. To demonstrate This objection did not put the trial court on notice of the prejudice, there must be a reasonable probability that, but for complaint appellant now asserts on appeal—that the assault counsel's unprofessional errors, the result of the proceeding was not a crime involving moral turpitude. We conclude that would have been different. Id. at 694. Failure to make the appellant's argument on appeal does not comport with the required showing of either deficient performance or sufficient objection he made at trial, and thus, his complaint has not prejudice defeats the claim of ineffectiveness. Id. at 697. This been preserved for appellate review. Cf. Douds v. State, No. test is applied to claims arising under both the United States PD0857–14, ––– S.W.3d ––––, 2015 WL 5981121, at *4– and Texas Constitutions. See Hernandez v. State, 726 S.W.2d 5 (Tex.Crim.App. Oct. 14, 2015) (defendant's trial argument 53, 56–57 (Tex.Crim.App.1986). that the requirements of a mandatory blood-draw statute had not been met did not preserve a constitutional complaint on *3 Our review of defense counsel's performance is highly appeal that the blood draw violated the Fourth Amendment deferential, beginning with the strong presumption that where there was no showing of exigent circumstances). counsel's actions were reasonably professional and were motivated by sound trial strategy. See Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App.1994). When the record SHACKLES is silent as to counsel's strategy, we will not conclude that the defendant received ineffective assistance unless the challenged conduct was “so outrageous that no competent

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attorney would have engaged in it.” See Goodspeed v. Here, the record does not reflect any special circumstances State, 187 S.W.3d 390, 392 (Tex.Crim.App.2005). Rarely that would justify the use of shackles. The trial court will the trial record contain sufficient information to permit commented that shackles were employed pursuant to a a reviewing court to fairly evaluate the merits of such a “policy” of restraining the defendant once he has been serious allegation. See Bone v. State, 77 S.W.3d 828, 833 found guilty, which actually suggests the absence of special (Tex.Crim.App.2002). In the majority of cases, the defendant circumstances. 1 is unable to meet the first prong of the Strickland test because the record on direct appeal is underdeveloped and does not 1 While we question the need for such a “policy,” the trial adequately reflect the alleged failings of trial counsel. See court must be mindful of its obligations to ensure that the Mata v. State, 226 S.W.3d 425, 430 (Tex.Crim.App.2007). shackles are not visible to the jury.

A sound trial strategy may be imperfectly executed, but the Assuming for the purposes of argument that there was no right to effective assistance of counsel does not entitle a reason for appellant's compelled restraint, the record does defendant to errorless or perfect counsel. See Robertson v. not reflect defense counsel's reasons for failing to object to State, 187 S.W.3d 475, 483 (Tex.Crim.App.2006). Isolated the shackles. Appellant did not move for a new trial, and instances in the record reflecting errors of omission or defense counsel did not file an affidavit or otherwise explain commission do not render counsel's performance ineffective, his tactics or reasoning. nor can ineffective assistance of counsel be established by isolating one portion of counsel's performance for *4 The State argues that defense counsel may have willfully examination. See Ex parte Welborn, 785 S.W.2d 391, 393 chosen to allow appellant to take the stand in shackles in an (Tex.Crim.App.1990). Moreover, it is not sufficient that the effort to elicit the jury's sympathy and obtain a more lenient defendant show, with the benefit of hindsight, that counsel's sentence. This explanation would be consistent with the sole actions or omissions during trial were merely of questionable theme of appellant's statements on direct examination, which competence. See Mata, 226 S.W.3d at 430. Rather, to was that the jury had made a mistake and was about to establish that counsel's acts or omissions were outside the send an innocent man to jail. If that were counsel's strategy, range of professionally competent assistance, the defendant it may have been risky, but not objectively unreasonable. must show that counsel's errors were so serious that he was Cf. Estelle v. Williams, 425 U.S. 501, 508 (1976) (“[I]t is not functioning as counsel. See Patrick v. State, 906 S.W.2d not an uncommon defense tactic to produce the defendant 481, 495 (Tex.Crim.App.1995). in jail clothes in the hope of eliciting sympathy from the jury.”). On this record, appellant has not overcome the strong Shackles are “inherently prejudicial” when used presumption that counsel's failure to object was consistent conspicuously in front of the jury. See Holbrook v. Flynn, with sound trial strategy. See Goodspeed, 187 S.W.3d at 475 U.S. 560, 568 (1986). During the guilt phase of 392 (stating that an appellate court should not find deficient trial, they can undermine the presumption of innocence, performance on a silent record unless the challenged conduct interfere with the defendant's ability to communicate with was “so outrageous that no competent attorney would have his counsel, and affront the dignity and decorum of the engaged in it”). judicial process. See Deck v. Missouri, 544 U.S. 622, 630– 31 (2005). Related concerns are implicated in the punishment phase as well. Shackles can threaten the accuracy of reliable CHARGE ERROR decisionmaking, especially in capital cases, by suggesting to the jury that the defendant is a danger to the community. During the punishment phase, the State elicited testimony of Id. at 632–33. Due process accordingly forbids the routine appellant's disciplinary records from when he was in jail. The use of shackles that are visible to the jury, except in records showed that appellant had been cited for fighting, “special circumstances,” such as where there are case-specific disruptive conduct, and threatening another man. Appellant security needs or a risk of escape. Id. at 633. Even in such had explanations for each of these citations. On the fighting circumstances, the trial court must make all efforts to prevent charge, appellant testified that he and another man were the jury from seeing the defendant in shackles. See Bell v. “horseplaying,” which he suggested was nonaggression. As State, 415 S.W.3d 278, 281 (Tex.Crim.App.2013). for the disruptive-conduct charge, appellant indicated that he misbehaved because some of his food had been taken after

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a “shakedown.” And as for the threatening charge, appellant State throughout the trial and never shifts to the defendant.” explained that he “had some words” with another man who We conclude that this factor is neutral in our assessment of “came into the tank thinking he was running things and egregious harm. See Martinez v. State, 313 S.W.3d 358, 367 changed the TV.” (Tex.App.–Houston [1st Dist.] 2009, pet. ref d) (examining a punishment charge with identical language). The trial court did not give a reasonable-doubt instruction in its punishment charge as it related to these unadjudicated *5 The Evidence as a Whole. The evidence against bad acts. Appellant did not request such an instruction either. appellant was largely circumstantial, but the circumstantial Nevertheless, appellant argues in his third issue that the trial evidence was also strong. Phone records established that court reversibly erred by failing to give the instruction sua appellant arranged a meeting with the complainant to sponte. purchase two ounces of hydroponic marijuana. The records also established that appellant was near the scene of the crime When deciding whether there is reversible error in a jury when the complainant was shot. After his body was found, charge, we must first determine whether error exists, and there were no drugs on the complainant's person, but inside if error does exist, we must then determine whether the of his car, police discovered the lid to the mason jar that had defendant was harmed by the error. See Middleton v. State, stored the hydroponic marijuana. 125 S.W.3d 450, 453 (Tex.Crim.App.2003). If, as in this case, the defendant did not object to the charge at trial, we can According to a family acquaintance, appellant admitted only reverse the trial court's judgment if the defendant was when he was in jail that he had killed the complainant egregiously harmed by the trial court's error. See Almanza v. for the hydroponic marijuana. At trial, appellant tried to State, 686 S.W.2d 157, 171 (Tex.Crim.App.1984). discredit the acquaintance by suggesting that the acquaintance could have read about the murder in an online newspaper The State concedes that it was error for the trial court to omit article. However, there was no evidence that the acquaintance the instruction and we agree. See Huizar v. State, 12 S.W.3d had seen the article, and in his letter to the jailors, the 479, 484 (Tex.Crim.App.2000) (holding that no objection or acquaintance specifically mentioned that appellant had shot request is required to receive a reasonable-doubt instruction). the complainant over marijuana of the hydroponic variety, a However, because appellant did not object to the omission of detail that had not been mentioned in the article. the instruction, appellant must show that he was egregiously harmed to be entitled to relief. The State contends that As for his prior convictions, appellant admitted during the appellant cannot meet this difficult burden. We agree here as guilt phase that he had been convicted of misdemeanor well. assault, and during the punishment phase, the State introduced evidence of appellant's misdemeanor possession conviction. Any harm that is inflicted by an erroneous charge must be No reasonable-doubt instruction was required as to these assayed in light of the entire jury charge, the evidence as extraneous offenses because they had already been proven in a whole, the arguments of counsel, and any other relevant another proceeding. See Bluitt v. State, 137 S.W.3d 51, 54 information revealed by the record. See Stuhler v. State, (Tex.Crim.App.2004). 218 S.W.3d 706, 719 (Tex.Crim.App.2007). An error is egregiously harmful only when it affects the very basis of Also during the punishment phase, the State elicited the case, deprives the defendant of a valuable right, or vitally testimony about appellant's disciplinary record in jail, affects a defensive theory. Id. This is a difficult standard which was composed of certain unadjudicated bad acts. As to prove and such a determination must be done on a case- mentioned above, appellant admitted to having some level of by-case basis. See Hutch v. State, 922 S.W.2d 166, 171 involvement in each of the bad acts, which weighs against (Tex.Crim.App.1996). any suggestion that the jury would have disregarded the bad acts had a reasonable-doubt instruction been provided. The Entire Jury Charge. In this case, the punishment charge Considering further the seriousness of the murder charge did not specifically address the unadjudicated bad acts or the and the strength of the evidence in support of the murder burden of proof that must be met before the bad acts could be conviction, the evidence of the unadjudicated bad acts does considered. However, the charge generally informed the jury not make the case for punishment clearly more persuasive. that “[t]he burden of proof in all criminal cases rests upon the See Martinez, 313 S.W.3d at 368.

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requested, which was sixty years. Appellant did not argue for a specific term of years. This factor does not weigh greatly in The Arguments of Counsel In its closing statements, the State favor of finding egregious harm. made no reference to appellant's prior bad acts, whether they were adjudicated or unadjudicated. Defense counsel, on the Having considered all of the factors together, we conclude other hand, acknowledged that appellant had “a record of that appellant was not egregiously harmed by the trial court's some misconduct,” but counsel said that the record was “not failure to sua sponte give a reasonable-doubt instruction on egregious.” Because neither side emphasized appellant's prior the matter of appellant's unadjudicated bad acts. bad acts, this factor weighs against a finding of egregious harm.

Other Relevant Information. We may consider the severity CONCLUSION of the punishment assessed, which may indicate egregious harm in some situations. Id. Here, appellant was sentenced *6 The trial court's judgment is affirmed. to fifty years' imprisonment, which is in the midrange for a felony of the first degree. See Tex. Penal Code § 12.32. This All Citations sentence is slightly higher than the minimum sentence that was advocated by the State, which was forty-five years, but Not Reported in S.W.3d, 2015 WL 9246779 it is also lower than the sentence that the State specifically

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