Affirmed and Memorandum Opinion filed April 22, 2008.
In The
Fourteenth Court of Appeals
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NO. 14-07-00125-CR
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JUAN ANTONIO MENDEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 338th District Court
Harris County, Texas
Trial Court Cause No. 1065655
M E M O R A N D U M O P I N I O N
Appellant was convicted of aggravated robbery and sentenced to confinement for 39 years in the Texas Department of Criminal Justice, Institutional Division. Appellant challenges his conviction, arguing that the trial court erred by including a paragraph in the jury charge concerning extraneous offenses. We affirm.
I. Factual and Procedural Background
Appellant, Juan Antonio Mendez, was charged by indictment and tried before a jury for the felony offense of aggravated robbery. The jury heard testimony from the complainant, the responding police officer, and the robbery investigator about an aggravated robbery committed on February 24, 2006. The jury also heard testimony from two police officers about Appellant=s presence during a separate incident involving the recovery of a firearm.
Complainant testified that he and his brother were unloading supplies from a truck near the back door of a nightclub owned by complainant when they were accosted by a man holding a gun. Although the assailant pointed the gun at them and told them not to move, complainant ran inside to find his own gun, shut the door, and attempted to call 911. When complainant could not find his gun, he went to the front of the nightclub where a second man, Appellant, came through the front door yelling in Spanish. Appellant ordered complainant not to move and threatened to shoot him if he moved. Appellant took complainant=s wallet, cell phone, and approximately 4000 dollars from his back pocket. The first assailant then entered the nightclub through the front door with complainant=s brother, placing him on the floor next to complainant. After both assailants left, complainant discovered that the gun he normally kept in his truck was missing.
Complainant positively identified Appellant in a video line-up and in court as the second assailant who entered the nightclub through the front door. Additionally, two police officers testified about a separate incident involving Appellant=s presence in a vehicle where they recovered a firearm, which was later identified by complainant as the firearm used by Appellant during the aggravated robbery. Specifically, complainant testified: A[t]hat was the gun. I=m pretty positive. It looks exactly the same.@ No evidence was presented about the recovery of the firearm missing from complainant=s truck.
Before deliberations began, both sides participated in a charge conference. Defense counsel did not object to the jury charge during the charge conference. The court included the following instruction in the jury charge:
You are further instructed that if there is any evidence before you in this case regarding the defendant=s committing an alleged offense or offenses other than the offense alleged against him in the indictment in this case, you cannot consider such evidence for any purpose unless you find and believe beyond a reasonable doubt that the defendant committed such other offense or offenses, if any, and even then you may only consider the same in determining the motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident of the defendant, if any, in connection with the offense, if any, alleged against him in the indictment and for no other purpose.
The jury found Appellant guilty of aggravated robbery. During the sentencing phase, the jury heard testimony from four witnesses about two additional armed robberies committed by Appellant. Testimony concerning these additional armed robberies had not been presented during the guilt/innocence phase of trial. The jury assessed punishment at 39 years in the Texas Department of Corrections, Institutional Division. Appellant gave timely notice of appeal.
II. Issue and Analysis
Appellant contends that the trial court erred by including a paragraph on extraneous offenses in the jury charge because no evidence was brought before the jury which could be construed as an offense, other than the offense for which Appellant was being tried.
The review of alleged jury charge error is a two step process. Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984), overruled on other grounds, Rodriguez v. State, 758 S.W.2d 787 (Tex. Crim. App. 1988). First, we examine the jury charge to see if the trial court erred. Abdnor, 871 S.W.2d at 731-32. Second, if we find that the trial court erred, we must determine if there is sufficient harm to warrant reversal. Id. When a timely objection is made, error in the jury charge requires reversal if the error was Acalculated to injure the rights of defendant,@ meaning that the error was not harmless. See Tex. Crim. Proc. Code Ann. ' 36.19 (Vernon 2006); see also Abdnor, 871 S.W.2d at 731-32. Because Appellant did not timely object to the inclusion of this paragraph in the jury charge, any error in including this paragraph will not require reversal unless the error is so egregious that Appellant wasd a fair and impartial trial. See Almanza, 686 S.W.2d 157 at 174. If we do find error in the jury charge, we must review the entire record to determine whether Appellant suffered egregious harm. Ex parte Smith, 185 S.W.3d 455, 467 (Tex. Crim. App. 2006).
In the present case, Appellant cites no authority to support his contention that it was error for the trial court to include this instruction. As noted by the trial court, the extraneous offense instruction was included to address the separate offense of possession of a firearm on a date subsequent to the aggravated robbery. The jury heard evidence from two police officers regarding Appellant=s presence during a separate incident involving the recovery of a firearm. This firearm was later identified as the same firearm used in the aggravated robbery for which Appellant was on trial. The extraneous offense paragraph merely instructed the jury that Aif@ there was evidence of an extraneous offense, then it could only be considered for specific purposes as set out in the instruction, and that it could be considered only after the burden of proof had been satisfied.
Even if the trial court erred by instructing the jury on extraneous offenses, Appellant has not shown that the error was so egregious that he was denied a fair and impartial trial. See Almanza, 686 S.W.2d at 171-72. No evidence was presented during the guilt/innocence phase of trial as to any extraneous offenses, except possession of a firearm. Evidence of possession of a firearm was presented when the jury heard testimony that Appellant was present in a vehicle where police offers recovered a firearm, later identified by complainant as the firearm used in this aggravated robbery. The jury only heard testimony about the actual recovery of the firearm, and did not hear about any extraneous offenses leading up to the recovery of the firearm. We find no support in the record for Appellant=s argument that the instruction may have caused jurors to speculate that Appellant was involved in additional offenses beyond those presented at trial, and that such speculation resulted in egregious harm to Appellant. After reviewing the entire record from voir dire through closing arguments at the guilt/innocence phase of trial, we conclude that the instruction regarding Aother offense or offenses, if any,@ did not cause egregious harm to Appellant.
III. Conclusion
Based on the foregoing, we find that the trial court did not err in including a paragraph in the jury charge concerning extraneous offenses. Therefore, the judgment of the trial court is affirmed.
/s/ Norman Lee
Senior Justice
Judgment rendered and Memorandum Opinion filed April 22, 2008.
Panel consists of Justices Yates, Guzman, and Lee.[1]
[1] Senior Justice Norman Lee sitting by assignment.