Affirmed and Memorandum Opinion filed May 3, 2011.
In The
Fourteenth Court of Appeals
NO. 14-10-00448-CR
NO. 14-10-00449-CR
Denwitt Zack Williams, Appellant
v.
The State of Texas, Appellee
On Appeal from the 209th District Court
Harris County, Texas
Trial Court Cause Nos. 1207434, 1207435
MEMORANDUM OPINION
Appellant Denwitt Zack Williams challenges his convictions for aggravated robbery and felon in possession of a firearm on the grounds that the trial court erred in charging the jury regarding extraneous offenses during both the guilt-innocence and punishment phases of his trial.[1] We affirm.
BACKGROUND
Appellant met the complainant’s son in prison. At the son’s suggestion, the complainant began writing appellant. After appellant’s release, he and the complainant became involved in a romantic relationship. He moved in with her, and they lived together for six to eight months before the incidents giving rise to this case occurred.
In mid-March 2009, the complainant discovered appellant in the bathroom burning a small white rock in a jar. When she threw the rock into the toilet, appellant became angry. Appellant went into the bedroom, stood on the bed, and screamed that the complainant was trying to kill him by putting snakes on his body. The complainant got her purse so that she could leave if necessary. She then hit appellant with her purse to get him off the bed and went into the living room.
Appellant came out of the bedroom a few moments later holding a gun. He tried to take the complainant’s purse and threatened to kill her if she did not give it to him. When the complainant held on to her purse, appellant fired the gun. Although the complainant was not injured, she dropped her purse. Appellant took the purse, ran out the door to the apartment balcony, jumped from this second-story balcony to the ground, and ran away. The complainant called 911. An officer was dispatched, but it took several hours for the officer to arrive because the complainant had initially given the wrong address.
The complainant reported the incident to the officer and described the vehicle appellant was driving. The officer then drove around the general area looking for appellant. When the officer did not find appellant, he parked across the street from the complainant’s apartment complex to complete his report. Meanwhile, appellant called the complainant and said he was coming home, although he was still angry that she had tried to kill him with snakes. Appellant returned to the complainant’s apartment, but she refused him entry. She then called 911 again. The dispatcher notified the officer, who was still in his patrol vehicle across the street completing his report. The officer saw the car that the complainant had described exiting the apartment complex. He got out of his patrol car and ordered appellant to stop, but appellant instead drove around him and sped away. A high-speed chase ensued, ending when appellant drove his car into a curb and was unable to continue driving. When he was apprehended, officers discovered a gun in his pocket and a rock of crack cocaine in his car.
Appellant was indicted for aggravated robbery and felon in possession of a firearm (the “firearm offense”). These offenses were tried together. Witnesses testified to the above facts. A jury convicted appellant of both offenses. Because appellant pleaded “true” to two enhancing convictions, the range of punishment for each offense was twenty-five years to ninety-nine years or life. The jury sentenced appellant to twenty-five years’ confinement for the firearm offense and thirty-five years’ confinement for the aggravated-robbery offense. The trial court entered the judgments accordingly, and these appeals timely followed.
ANALYSIS
A. Standard of Review
Appellant’s issues in both these cases concern jury-charge error. A claim of jury-charge error is governed by the procedures set forth in Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). We must first determine whether the trial court erred in its submission of the charge. Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009). If error exists and appellant properly objected at trial, reversal is required if “some harm” resulted, i.e., if the error was “calculated to injure the rights of the defendant.” Id. (quoting Almanza, 686 S.W.2d at 171). If appellant failed to object, error must be “fundamental,” and reversal will result only if the error was so egregious and created such harm that the defendant “has not had a fair and impartial trial.” Id. (quoting Almanza, 686 S.W.2d at 171).
B. Charge Error at Guilt-Innocence Phase
In his firearm-offense appeal,[2] appellant asserts that the trial court erred by failing to include in the jury charge (a) his requested instruction limiting the use of extraneous-offense evidence to the issue of motive and (b) his requested instruction on the burden of proof required regarding extraneous-offense evidence.
An extraneous offense includes any act of misconduct, whether resulting in prosecution or not, that is not shown in the charging papers. Rankin v. State, 953 S.W.2d 740, 741 (Tex. Crim. App. 1996) (en banc). Texas Rule of Evidence 404(b) provides:
Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon timely request by the accused in a criminal case, reasonable notice is given in advance of trial of intent to introduce in the State’s case-in-chief such evidence other than that arising in the same transaction.
Tex. R. Evid. 404(b). Generally, a limiting instruction on testimony about an extraneous offense, as well as an instruction on the burden of proof, should be given when the evidence is admitted and again in the final jury charge if requested by the defendant. Delgado v. State, 235 S.W.3d 244, 251 (Tex. Crim. App. 2007).
Here, appellant references two alleged extraneous offenses to which he objected under Rule 404(b): (1) the complainant’s testimony regarding discovering appellant burning a white rock in the bathroom, and (2) the arresting officer’s testimony regarding the discovery of a rock of crack cocaine in appellant’s car at the end of the police chase. When this testimony was adduced, the trial court immediately instructed the jury that it could consider these offenses only if it believed beyond a reasonable doubt that appellant had committed them and then only for the limited purpose of determining appellant’s motive in committing the indicted offenses. On appellant’s request, the trial court agreed to include this language in its charge on guilt-innocence to the jury for both offenses. However, the trial court did not include this language in the firearm-offense jury charge, although it did include the written instruction in the charge for the aggravated-robbery offense.
Because the trial court did not include an extraneous-offense limiting instruction, there is error in the court’s charge. See id. Because appellant requested this instruction, we must examine the record for “some harm” resulting from this error. [3] See Barrios, 283 S.W.3d at 350.
The record reflects that the complainant and two of the officers present at appellant’s arrest each testified that appellant, a convicted felon, possessed a firearm. The complainant’s description of her struggle with appellant and the firing of the weapon was supported by physical evidence: a bullet was discovered in the door frame of her apartment. None of this testimony was controverted. In fact, appellant’s counsel admitted during closing argument that the evidence was probably sufficient to support a conviction for this offense. Moreover, the trial court provided the requisite oral instruction twice to the jury, and included it in the written charge in the companion case. See Gamboa v. State, 296 S.W.3d 574, 580 (Tex. Crim. App. 2009) (stating that juries are generally presumed to have followed court’s instructions). Finally, the prosecutor did not emphasize these extraneous offenses during closing argument. Cf. Lindsay v. State, 102 S.W.3d 223, 229 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d) (concluding that error in admission of evidence was harmless where State did not emphasize the evidence during closing argument).
Under these circumstances, we are convinced that the trial court’s failure to include an extraneous-offense limiting instruction in appellant’s firearm-offense jury charge did not “injure the rights of the defendant.” See Barrios, 283 S.W.3d at 350. We overrule his first and second issues.
B. Charge Error at Punishment Phase
In his third issue in his firearm-offense appeal and sole issue in his aggravated-robbery appeal,[4] appellant asserts that the trial court erred by failing to provide a written instruction to the jury regarding the extraneous offenses described above, which were re-offered during punishment. He further contends that, because the prosecutor argued in closing that he evaded arrest, he was entitled to an extraneous-offense instruction.
Section 3 of Texas Code of Criminal Procedure article 37.07 provides that, during the punishment phase of trial,
evidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including . . . 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 the evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has been previously charged with or finally convicted of the crime or act.
Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (West Supp. 2009). Article 37.07 also requires that the charge to the jury at punishment include any “additional written instructions as may be necessary.” Id. § 3(b). Although section 3(a) of article 37.07 does not expressly require a jury instruction regarding evidence of unadjudicated extraneous offenses admitted at the punishment phase of trial, such an instruction is “logically required” to enable the jury to properly consider such evidence under the article’s prescribed reasonable-doubt standard. Huizar v. State, 12 S.W.3d 479, 484 (Tex. Crim. App. 2000).
Here, appellant’s trial counsel did not object to the court’s punishment charge. However, his counsel informed the court, after closing argument, that appellant was entitled to a limiting instruction on extraneous offenses because the prosecutor had mentioned these offenses during her closing argument. The trial court recalled the jury from deliberations and orally instructed the jurors as follows:
You may consider evidence of an extraneous crime or bad act in assessing punishment even if the defendant has not yet been charged with or finally convicted of the crime or act, the evading arrest or the crack pipe [sic]. However, you may consider such evidence only if the extraneous crime or bad act has been shown by the State beyond a reasonable doubt to have been committed by the defendant or is one for which the defendant could be held criminally responsible. The prosecution does not have to prove an extraneous crime or bad act beyond all possible doubt. The prosecution’s proof must exclude all reasonable doubt concerning the extraneous crime or bad act. Therefore, if you find and believe beyond a reasonable doubt that the defendant committed an extraneous crime or bad act, or could be held criminally responsible for an extraneous crime or bad act, then you may consider such evidence in assessing the defendant’s punishment. However, if you have a reasonable doubt that the defendant committed an extraneous crime or bad act or could be held criminally responsible for an extraneous crime or bad act, then you may not consider such evidence in assessing punishment.
This instruction was not included in the written charge.
Section 3(a)(1)’s requirement that the jury be satisfied of the defendant’s culpability in the extraneous offenses and bad acts is the “law applicable to the case” in the non-capital punishment context. Id. at 483–84 (noting that “the law applicable to the case” requires sua sponte submission); see Tex. Code Crim. Proc. Ann. art. 36.14 (West 2007) (requiring that the trial court deliver to the jury “a written charge distinctly setting forth the law applicable to the case”). The trial court’s failure to include this instruction in its written charge was error. See Huizar, 12 S.W.3d at 483–85. Because appellant failed to object to the written charge,[5] we examine the record to determine whether he suffered “egregious harm.” See Barrios, 283 S.W.3d at 350; Huizar, 12 S.W.3d at 484–85.
First, considering the firearm offense, appellant received the minimum punishment available—twenty-five years’ confinement. Thus, the failure to include this instruction could not have negatively impacted the jury’s sentence. Cf. Boston v. State, 965 S.W.2d 546, 550 (Tex. App.—Houston [14th Dist.] 1997, no pet.) (concluding that to find harmful error based on jury charge during sentencing, “we must find beyond a reasonable doubt that the error did not serve to increase the appellant’s punishment”). Accordingly, we overrule appellant’s third issue in his firearm-offense appeal.
Turning to the aggravated-robbery appeal, we note first that appellant stipulated to nine prior felony convictions during punishment. The sentence appellant received was on the low end of the statutory range—thirty-five years,[6] especially considering that the firearm discharged during the struggle over the complainant’s purse and could have easily injured her. The evidence of these extraneous offenses was also strong and uncontroverted. Thus, even if the jury had been given the written reasonable-doubt instruction, it likely would not have disregarded these offenses. Further, the prosecutor mentioned these extraneous offenses only once during her closing;[7] she did not emphasize them. Finally, the trial court provided the instruction orally to the jury, calling them out of deliberations to do so. See Gamboa, 296 S.W.3d at 581.
Considering all these factors, we conclude that appellant received a fair trial and was not egregiously harmed by the charge error. See, e.g., Zarco v. State, 210 S.W.3d 816, 826–27 (Tex. App.—Houston [14th Dist.] 2006, no pet.) (considering similar factors to determine that the appellant was not egregiously harmed by failure to include extraneous-offense instruction in punishment charge). We thus overrule his sole issue in his aggravated-robbery appeal.
Having overruled all of appellant’s issues in both appeals, we affirm the trial court’s judgments.
/s/ Adele Hedges
Chief Justice
Panel consists of Chief Justice Hedges and Justices Seymore and Boyce.
Do Not Publish — Tex. R. App. P. 47.2(b).
[1] After his attorney filed briefs for each of these appeals, appellant filed a pro se brief. Because an appellant has no right to hybrid representation, we consider only the issues raised in the briefs filed by appellant’s counsel. See Scheanette v. State, 144 S.W.3d 503, 505 n.2 (Tex. Crim. App. 2004) (en banc) (declining to address points raised in pro se brief filed after counsel had filed a brief on appellant’s behalf).
[2] Trial court cause no. 1207435, court of appeals no. 14-10-00449-CR.
[3] Appellant did not object after reviewing the court’s written charges; instead, he remained silent when the trial court asked him if he had any objections to the charge. Ordinarily, the failure to object would require us to determine whether appellant suffered “egregious harm” from this error. See Barrios, 283 S.W.3d at 350. The State concedes, however, that because appellant requested that a limiting instruction be included in the charge shortly before this exchange, the trial court was on notice of appellant’s position. See, e.g., Ford v. State, 305 S.W.3d 530, 534 (Tex. Crim. App. 2009) (defendant’s objection was sufficient where context showed trial court understood nature of complaint); Smith v. State, 290 S.W.3d 368, 371 n.2 (Tex. App.—Houston [14th Dist.] 2009, pet. ref’d) (same).
[4] Trial court cause no. 1207434, court of appeals no. 14-10-00448-CR.
[5] See Tex. Code Crim. Proc. Ann. art. 36.14 (stating that before charge is read to jury, defendant “shall have a reasonable time to examine [the court’s charge] and he shall present his objections thereto. . . . The requirement that the objections to the court’s charge be in writing will be complied with if the objections are dictated to the court reporter in the presence of the court and the state’s counsel, before the reading of the court’s charge to the jury.” (emphasis added)).
[6] The prosecutor maintained that a “starting point” for appellant’s sentence should be sixty-two and one-half years.
[7] After discussing the lengthy criminal history to which appellant had stipulated and suggesting the jury should add more time to his sentence for this history, the prosecutor argued as follows:
What else do we know? He evaded arrest from the police. He went on a high speed chase. That’s another crime that he’s committed that could be added. He was in possession of the cocaine. That’s another crime in addition to the felon in possession and aggravated robbery that he went on in a huge, big criminal spree that night all the way into the morning. You just consider all that in his criminal history as well.