NUMBER 13-99-369-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI
___________________________________________________________________
JAMES ALVIN LYNCH
, Appellant,v.
THE STATE OF TEXAS
, Appellee.___________________________________________________________________
____________________________________________________________________
Before Justices Hinojosa, Chavez, and Rodriguez Opinion by Justice Rodriguez
A grand jury indicted James Alvin Lynch, appellant, for possession of cocaine in an amount of one gram or more but less than four grams, and a jury found him guilty of the lesser included offense of possession of less than one gram of cocaine. See Tex. Health & Safety Code Ann. § 481.115(b),(c) (Vernon Supp. 2000). The jury assessed punishment at two years confinement. By two issues, appellant complains of error in the jury charge during the punishment stage of the trial. We affirm.
The facts are not in dispute. During the punishment stage of the trial, the State presented evidence of appellant's prior convictions. Without a request or an objection from appellant, the trial court submitted a punishment charge that did not include an instruction on extraneous offenses. On appeal, appellant complains the trial court erred in failing to include, sua sponte, an instruction that the jury could not consider extraneous offenses unless they were proven beyond a reasonable doubt. See Tex. Code Crim. Proc. Ann. § 37.07(3) (Vernon Supp. 2000).
The court of criminal appeals recently addressed this issue in Huizar v. State, 12 S.W.3d 479, passim (Tex. Crim. App. 2000). In Huizar, the court found that the trial court erred in failing to include, sua sponte, an instruction that the jury could not consider extraneous bad acts and offenses until it found beyond a reasonable doubt that the defendant committed the acts or offenses. See Huizar, 12 S.W.3d at 483-84. The court classified this error as "purely charge error" that did not implicate constitutional rights. See id. at 484-85. As such, it was governed by the Almanza harm analysis and article 36.19 of the code of criminal procedure. See id.; Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (opin. on rehearing).
In accordance with Huizar, we find that the trial court in this case erred in failing to include an instruction on extraneous offenses pursuant to section 37.07(3). Because this error is non-constitutional and appellant failed to object or request an instruction, we must determine whether it caused appellant egregious harm. See Tex. Code Crim. Proc. Ann. art. 36.19 (Vernon 1981); Almanza, 686 S.W.2d at 171; see also Huizar, 12 S.W.3d at 484-85. An error in the charge is egregious if it "affect[s] 'the very basis of the case,' deprives the defendant of a 'valuable right,' or 'vitally affect[s] a defensive theory.' " Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim. App. 1996) (quoting Almanza, 686 S.W.2d at 172). When reviewing error in the charge, we consider: (1) the charge; (2) the evidence; (3) the arguments of counsel; and (4) any other relevant information from the record. See id. (citing Bailey v. State, 867 S.W.2d 42, 43 (Tex. Crim. App. 1993)).
As noted, the charge did not instruct the jury on the burden of proof as to extraneous offenses. The State offered certified copies of judgments of conviction against appellant and the testimony of appellant's probation officer to link the judgments to appellant. Appellant did not dispute the validity of the extraneous offenses and did not object to their admission into evidence. In its argument, the State referred to the prior offenses as grounds for the jury imposing the maximum sentence. Appellant acknowledged the prior offenses, but argued that he paid his time for the offenses. In light of appellant's failure to contest the validity of the convictions, and the strong evidence presented by the State to prove appellant committed the extraneous offenses, we are unable to say appellant suffered egregious harm because of the trial court's failure to include an instruction on the burden of proof for extraneous offenses.
Appellant additionally complains the trial court erred during the punishment stage by failing to define reasonable doubt in connection with the omitted extraneous offense instruction. Appellant urges this Court to extend Geesa v. State, 820 S.W.2d 154, 162-63 (Tex. Crim. App. 1991), in which the court of criminal appeals held that a reasonable doubt definitional instruction must be submitted to the jury during the guilt-innocence phase of the trial even in the absence of a request or objection, to the punishment phase of the trial. The court of criminal appeals, however, recently held that "[n]either Geesa nor art. 37.07 can be read to require that a reasonable-doubt instruction be given at the punishment phase, absent a request." Fields v. State, 1 S.W.3d 687, 688 (Tex. Crim. App. 1999).
In this case, appellant did not request a definition on reasonable
doubt during the punishment phase. We conclude the trial court did
not err in failing to include, without a request or an objection, a
definition of reasonable doubt in the punishment charge.(1) Appellant's
first and second issues are overruled.
The judgment of the trial court is AFFIRMED.
NELDA V. RODRIGUEZ
Justice
Do not publish.
Tex. R. App. P. 47.3.
Opinion delivered and filed
this the 1st day of June, 2000.
1. We note, as did the court of criminal appeals in Fields v. State, 1 S.W.3d 687, 688-89 n.4 (Tex. Crim. App. 1999), that the trial court submitted a reasonable doubt instruction to the same jury during the guilt-innocence phase of the trial.