Opinion issued March 4, 2010
In The
Court of Appeals
For The
First District of Texas
NO. 01-09-00724-CR
jorge enrique martinez, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 248th District Court
Harris County, Texas
Trial Court Cause No. 1161113
MEMORANDUM OPINION
Jorge Enrique Martinez was convicted of aggravated robbery in a jury trial and his punishment was assessed at thirty-seven years in prison.[1] In his sole point of error, Martinez contends that he was egregiously harmed by the trial court’s failure to sua sponte give the jury a reasonable doubt instruction in the punishment charge regarding extraneous offenses. We affirm.
Background
The Ali family was robbed at gunpoint by appellant and three other men in a “home invasion” robbery during the early morning hours of April 4, 2008, after the men, carrying guns and duct tape, accosted Abid Ali, a small business owner, as he was leaving his home for work around 5:00 a.m. After forcing Ali back into the house at gunpoint, and taking a watch, wallet, and a bank pouch with several thousand dollars from Ali, the men made Ali lie on the ground and then taped his hands with duct tape. Three of the men then began going through the rest of the house; Martinez stayed with Ali, uttering threats to Ali’s family in abusive language while Ali begged him to take whatever he wanted, but to let his family go. In the house at the time were Ali’s bedridden father, whose bedroom was downstairs, and Ali’s wife, adult son, adult daughter, and minor son, who were all upstairs.
During the course of the robbery, the men duct-taped Ali’s wife, two sons, and daughter and forced them into the parents’ bedroom upstairs, holding guns to all of them and threatening them, while demanding and searching for money and jewelry. Ali was taken upstairs as well and was forced to open a safe. The scene was chaotic and Ali was unsure where Martinez was after they went upstairs, could not say whether Martinez remained in the room with him or not, and could not remember which of the men took any of the actions that Ali saw happen upstairs.
Ali’s daughter was the last to be brought into the room and had managed to call 9-1-1 from her cell phone before being discovered by the men in her room and forced to go into the room with the others, where she was also duct-taped. Martinez then began shouting, “Give us all your money, we’re going [to] F-ing kill you guys” and yelling other threats. The daughter told him, “I have more money” and asked to go to the restroom. Martinez and another man picked her up and took her to the restroom where she took her purse from the door hanger and gave them $40. The men had asked, “This is it?,” and began demanding more so she told them that she had jewelry in her bedroom. They took her to her bedroom, but then shoved her out of the way and opened up her jewelry boxes themselves. After they went through her bedroom, the men started taking her back to her parents’ room.
While Martinez and the other man were walking the daughter back to her parents’ room, someone from downstairs yelled something like “Policia, policia,” or “Police are here,” and someone else who was upstairs said, “The cops are coming.” Martinez and the other man shoved the daughter to the floor and began running downstairs. All the men upstairs left running, trampling on the Alis as they did so.
The police arrived at the house as Martinez and two other men ran out of the house and fled. Martinez was found shortly afterwards, hiding in some bushes in a nearby yard. Ali identified Martinez shortly after the robbery when the police had shown him three men at the scene caught by the police. According to Ali, Martinez was “one of the meanest” of the men and had “just wanted to shoot.”
At Martinez’s trial—which was held jointly with that of one of the co-defendants, Jose J. Santiago—Ali, his wife, his older son, and his eldest daughter testified during the guilt-innocence phase of trial, recounting what took place at their home during the aggravated robbery. The jury was instructed that it could find Martinez guilty of aggravated robbery as a principal or as a party to aggravated robbery by any of the other three men. After the guilty verdict for both Martinez and Santiago, only Ali and his wife testified at the punishment phase of trial, both speaking briefly of the impact that the robbery had had on their lives and those of their children, without referencing any specific events on the morning of the aggravated robbery.
During closing arguments at punishment, Santiago’s attorney asked the jury to assess community supervision and Martinez’s attorney asked for a punishment between five and ten years of imprisonment. The State, after reminding the jury of the nature of the robbery as described by the witnesses during the guilt-innocence phase of trial, asked the jury to “start from 40 years and work up from there.” The jury assessed punishment at thirty-seven years for both men.
Discussion
Martinez contends that “the trial court erred by failing to sua sponte instruct the jury on the proper burden of proof for extraneous bad acts or offenses” “referred to . . . during presentation of the victim impact testimony” and the State’s closing arguments during the punishment phase of trial. Specifically, Martinez argues that the Ali family’s testimony during the guilt-innocence phase of trial describing various actions occurring during the course of the aggravated robbery—such as the duct-taping of the family and the placing of guns to the heads of Ali’s children and wife—was testimony of “extraneous offenses” requiring a reasonable doubt jury instruction at the punishment phase of trial under section 3(a) of article 37.07 of the Texas Code of Criminal Procedure.[2] Martinez did not request such an instruction at trial, nor object to its omission, but asserts on appeal that he was egregiously harmed by the trial court’s not sua sponte giving this instruction.
A. Standard of Review
In assessing complaints of jury charge error, we first must determine whether error existed in the charge. Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003). Only if we find error do we consider whether an objection to the charge was made and analyze for harm. Id. If we find jury charge error, but no objection was lodged to such error at trial, we may not reverse unless the error was so egregious and created such harm that the appellant was denied a fair trial. Warner v. State, 245 S.W.3d 458, 461 (Tex. Crim. App. 2008). In order to determine egregious harm, we examine “the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel, and any other relevant information revealed by the record of the trial as a whole.” Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). The record must show that the appellant suffered actual, rather than merely theoretical, harm. See Warner, 245 S.W.3d at 461.
B. Reasonable doubt instruction for extraneous offenses at punishment
Article 37.07 of the Texas Code of Criminal Procedure provides that, after a finding of guilt,
“[e]vidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including but not limited to the prior criminal record of the defendant, sentencing, including but not limited to the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried, and, notwithstanding Rules 404 and 405, Texas Rules of Evidence, any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act.”
Tex. Code Crim. Proc. Ann. art. 37.07, §3(a)(1) (Vernon Supp. 2009) (emphasis added). If evidence of extraneous offenses by the defendant is admitted at the punishment phase of trial, or are admitted during the guilt-innocence phase of trial, but used by the State in the punishment phase of trial, the trial court must charge the jury that it may only consider extraneous offense evidence when proven beyond a reasonable doubt, even if the defendant fails to request the instruction. See Rayme v. State, 178 S.W.3d 21, 25 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d) (citing Huizar v. State, 12 S.W.3d 479, 484 (Tex. Crim. App. 2000)); Graves v. State, 176 S.W.3d 422, 434–35 (Tex. App.—Houston [1st Dist.] 2004, pet. struck).
C. Circumstances of the offense versus extraneous offenses
The Texas Legislature has specifically distinguished the “circumstances of the offense for which [a defendant] is being tried” from “extraneous offenses” for the purposes of the admittance of evidence at the punishment phase of a trial. See Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1). While a jury must be given a reasonable doubt instruction as to “extraneous offenses” used by the State at punishment, no such requirement applies to a jury’s consideration of other evidence at punishment such as the circumstances of the offense for which a defendant is being tried or victim-impact evidence. See Bluitt v. State, 137 S.W.3d 51, 54 (Tex. Crim. App. 2004); Rayme, 178 S.W.3d at 25.
“Circumstances of the offense which tend to prove the allegations of the indictment are not extraneous offenses.” Camacho v. State, 864 S.W.2d 524, 535 (Tex. Crim. App. 1993) (quoting Ramirez v. State, 815 S.W.2d 636, 643 (Tex. Crim. App. 1991)). Additionally, where “several crimes are intermixed, or blended with one another, or connected so that they form an indivisible criminal transaction,” they are “same transaction contextual evidence” and not extraneous offenses. See Mayes v. State, 816 S.W.2d 79, 87 n.4 (Tex. Crim. App. 1991) (internal citations omitted). Same transaction contextual evidence “illuminates the nature of the crime alleged by imparting to the trier of fact information essential to understanding the context and circumstances of events.” Lamb v. State, 186 S.W.3d 136, 142 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (citing Camacho, 864 S.W.2d at 532). The purpose of such evidence is to assist the jury in assessing punishment, and no reasonable doubt instruction is required at punishment regarding such evidence. Glockzin v. State, 220 S.W.3d 140, 152 (Tex. App.—Waco 2007, pet. ref’d); see also Atkinson v. State, Nos. 08-00454-CR, 01-08-00455-CR, 2010 WL 143458, at *7–8 (Tex. App.—Houston [1st Dist.] Jan. 14, 2010, no pet. h.); Garza v. State, 2 S.W.3d 331, 335 (Tex. App.—San Antonio 1999, pet. ref’d) (holding instruction was not required at punishment because “same transaction contextual evidence” simply explained “the circumstances of the offense”).
The testimony that Martinez asserts required a reasonable doubt instruction at punishment was testimony describing the circumstances of the offense for which appellant was convicted,[3] not extraneous offenses. Even such actions occurring during the course of the aggravated robbery that could be considered legally separate offenses would be same transaction contextual evidence, not extraneous offenses. See Mayes, 816 S.W.2d at 87 n.4; Atkinson, 2010 WL 143458, at *7; Glockzin, 220 S.W.3d at 152; Garza, 2 S.W.3d at 335.
Because the Ali family’s descriptions of the actions of the four men occurring during the aggravated robbery given during the guilt-innocence phase of trial were not evidence of “extraneous offenses,” see Camacho, 864 S.W.2d at 535 and Mayes v. State, 816 S.W.2d at 87 n.4, the trial court was not required to give a reasonable doubt instruction regarding this evidence during the punishment phase of trial. Tex. Code Crim. Proc. Ann. art. 37.07, §3(a)(1); Bluitt, 137 S.W.3d at 54; Atkinson, 2010 WL 143458, at *7–8; Glockzin, 220 S.W.3d at 152; Garza, 2 S.W.3d at 335. We hold, therefore, that the trial court was not required to sua sponte give the jury a reasonable doubt instruction at punishment as to this evidence. Having determined that the trial court did not commit charge error by not giving such instruction, we need not analyze whether Martinez was egregiously harmed. See Middleton, 125 S.W.3d at 453.
We overrule Martinez’s sole point of error.
CONCLUSION
We affirm the judgment of the trial court.
Jim Sharp
Justice
Panel consists of Justices Keyes, Sharp, and Massengale.
Do not publish. Tex. R. App. P. 47.2(b).
[1] See Tex. Penal Code Ann. §§ 12.42(a)(1), 29.02 (a)(2)(D), 29.03(a)(2) (Vernon 2003).
[2] Tex. Code Crim.Proc. Ann. art. 37.07, 3(a)(1) (Vernon Supp. 2009).
[3] The testimony occurred during direct examination by the State in the guilt-innocence phase of the trial, in response to questions by the prosecutor such as “what happened,” “then what happened,” or “what did you see” and was part of each Ali family member’s individual account of the way the aggravated robbery occurred, where each person was during the offense, and how appellant and his accomplices acted during the offense.