Affirm and Opinion Filed July 30, 2013
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-11-01315-CR
ODIS C. BANKS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 204th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F10-59004-Q
MEMORANDUM OPINION
Before Justices Bridges, Lang, and Richter1
Opinion by Justice Bridges
Odis C. Banks appeals his aggravated assault conviction. A jury convicted appellant and
sentenced him to ninety-nine years’ confinement and a $10,000 fine. In a single point of error,
appellant argues the trial court erred in failing to instruct the jury that it could consider evidence
of extraneous offenses only if it believed beyond a reasonable doubt that appellant committed
those offenses. We affirm the trial court’s judgment.
On July 31, 2010, Monica Pearson called appellant because her “daughter needed some
medicine.” At the time, Pearson was in an “open relationship” with appellant in which appellant
bought drugs for Pearson in exchange for sex. Appellant picked up Pearson, took her to the
“drug house and went to his house.” Pearson “did [her] drug and [she and appellant] got
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The Hon. Martin Richter, Justice, Assigned
intimate.” After having sex, Pearson and appellant walked outside and saw a mailman. Pearson
was “ready to go,” but the mailman wanted to play dominos. Pearson “had a fit because I was
ready to go.” In the course of her “fit,” Pearson took the seat covers off the seats in appellant’s
car. Appellant got up, got a tree branch from a downed tree, and began hitting Pearson with the
branch. Appellant said he would “kill” Pearson and “beat [her] ass.” During the assault, which
lasted “probably thirty minutes,” the mailman was “sitting down, just sitting.” Appellant stopped
beating Pearson when his cell phone started ringing, and he answered it. Pearson called 911
using her cell phone. Appellant “start[ed] acting normal” and was “ready to take [Pearson]
home.” Pearson got in the car with appellant because she was “ready to go. It was hot, and [she]
was just ready to go home.” Appellant and Pearson drove away, but police arrived and pulled
appellant over. Police took pictures of Pearson’s bruises caused by appellant hitting her with a
stick. Pearson’s arm, thigh, and calf were swollen, and her pinky was “split.” Appellant was
subsequently charged with aggravated assault, enhanced with prior aggravated assault and
murder convictions. A jury found appellant guilty and sentenced him to life imprisonment. This
appeal followed.
In a single issue, appellant argues the trial court erred at the punishment phase in failing
to instruct the jury that it could consider evidence of extraneous offenses only if it believed
beyond a reasonable doubt that appellant committed those offenses. Specifically, appellant
complains State’s Exhibit 8, the judgment and sentence from his prior murder conviction, also
contained five pages of disciplinary reports from his time in the penitentiary. Appellant points
out the jury was given “no guidance about how or even whether to consider these extraneous
incidents.” There was no testimonial evidence presented at the punishment phase of trial,
Appellant argues this lack of other evidence “makes the disciplinary reports appear more
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prominent and significant” and made the State’s case at punishment “significantly more
persuasive.”
A trial court is not required to instruct the jury that prior convictions must be proved
beyond a reasonable doubt. Bluitt v. State, 137 S.W.3d 51, 54 (Tex. Crim. App. 2004). To
require that prior convictions be re-proved beyond a reasonable doubt would be an absurd result,
as the very fact of conviction is evidence that the burden of proving guilt beyond a reasonable
doubt has already been met in a prior proceeding. Id. Thus, as to the murder conviction
established by State’s Exhibit 8, no reasonable doubt instruction was required. See id.
To the extent appellant complains of the inclusion of disciplinary reports from appellant’s
time in the penitentiary without a reasonable doubt instruction, we note appellant did not object
to the admission into evidence of State’s Exhibit 8 and did not request an instruction requiring
the jury to consider evidence of extraneous offenses only if it believed beyond a reasonable
doubt that appellant committed those offenses. However, a reasonable doubt instruction
regarding extraneous offense evidence is “law applicable to the case” and therefore must be
given at punishment, even if not requested. Huizar v. State, 12 S.W.3d 479, 483-84 (Tex. Crim.
App. 2000). Here, appellant did not object to the alleged error in the charge or the admission of
State’s Exhibit 8, so we must decide whether the error, if any, was so egregious and created such
harm that he did not have a fair and impartial trial – in short, whether “egregious harm” has
occurred. Brown v. State, 45 S.W.3d 228, 230 (Tex. App.—Fort Worth 2001, pet. ref’d).
The disciplinary reports attached to State’s Exhibit 8 show appellant (1) possessed
dominoes belonging to another inmate, (2) use of indecent/vulgar language, (3) having dirty bars
on his cell, (4) failing to “make the turnout for AM school with the rest of the students” and not
having a “medical lay-in,” and (5) responding “No, I will not” when asked to “help cook meat on
the grill. The evidence of prior convictions showed appellant had previously committed murder
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and aggravated assault. Thus, the jury, having already found appellant guilty of aggravated
assault, was able to consider his commission of a prior murder and aggravated assault in
assessing punishment. Assuming without deciding that the disciplinary reports constituted
“extraneous offenses” and the trial court erred in failing to give a reasonable doubt instruction
regarding them, we conclude such error, if any, was not so egregious that appellant did not have
a fair and impartial trial. See id. We overrule appellant’s point of error.
We affirm the trial court’s judgment.
/David L. Bridges/
DAVID L. BRIDGES
JUSTICE
Do Not Publish
TEX. R. APP. P. 47
111315F.U05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
ODIS C. BANKS, Appellant On Appeal from the 204th Judicial District
Court, Dallas County, Texas
No. 05-11-01315-CR V. Trial Court Cause No. F10-59004-Q.
Opinion delivered by Justice Bridges.
THE STATE OF TEXAS, Appellee Justices Lang and Richter participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 30th day of July, 2013.
/David L. Bridges/
DAVID L. BRIDGES
JUSTICE
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