Roberts, Charles

PD-1672-15 PD-1672-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 12/28/2015 9:18:56 AM
Accepted 12/28/2015 1:40:26 PM
PD-______ ABEL ACOSTA
CLERK

IN THE COURT OF CRIMINAL APPEALS
OF THE STATE OF TEXAS

CHARLES ROBERTS
Petitioner/Appellant

v.

THE STATE OF TEXAS
Respondent/Appellee

On Petition for Discretionary Review from the Fourteenth Court of Appeals
in Cause No. 14-14-00874-CR, affirming the conviction in
Cause Number 1381559 from the 177th District Court of Harris County

PETITION FOR DISCRETIONARY REVIEW

ORAL ARGUMENT NOT REQUESTED ALEXANDER BUNIN
Chief Public Defender
Harris County, Texas

ANGELA CAMERON
Assistant Public Defender
Harris County, Texas
Texas Bar No. 00788672
1201 Franklin, 13th Floor
Houston, Texas 77002
Phone: (713) 368-0016
December 28, 2015 Fax: (713) 368-9278
angela.cameron@pdo.hctx.net

Counsel for Appellant
 IDENTITY OF PARTIES AND COUNSEL

APPELLANT: Charles Roberts #01962903
Telford Unit
3899 Hwy 98
New Boston, Texas 75570

TRIAL PROSECUTORS: Nathan Hennigan
Assistant District Attorney
Harris County, Texas
1201 Franklin Avenue
Houston, Texas 77002

DEFENSE COUNSEL AT TRIAL: Ellis McCullough
4008 Louetta Road, Suite 365
Houston, Texas 77388

COUNSEL ON APPEAL FOR APPELLANT: Angela L. Cameron
Assistant Public Defender
Harris County, Texas
1201 Franklin Ave, 13th Floor
Houston, Texas 77002

PRESIDING JUDGE: Hon. Ryan Patrick
177th District Court
Harris County, Texas
1201 Franklin Avenue, 19th floor
Houston, Texas 77002

ii
 TABLE OF CONTENTS

Identity of Parties and Counsel..............................................................................................ii

Table of Contents ...................................................................................................................iii

Index of Authorities .............................................................................................................. iv

Statement Regarding Oral Argument................................................................................... 1

Statement of the Case ............................................................................................................ 1

Statement of Procedural History .......................................................................................... 1

Ground for Review ................................................................................................................ 1

Reason for Review.................................................................................................................. 1

Statement of Facts .................................................................................................................. 2

Argument ................................................................................................................................. 4

Issue for Review ..................................................................................................................... 4

Did the Court of Appeals err in failing to address the merits of Mr.
Roberts’ claim that the trial court erred in allowing Roberts to be
impeached with evidence of a previous conviction for assault family
violence against his father as being more prejudicial than probative.

PRAYER .................................................................................................................................. 6

CERTIFICATE OF SERVICE .................................................................................................... 6

CERTIFICATE OF COMPLIANCE ........................................................................................... 7

APPENDIX ................................................................................................................................ 8

iii
 INDEX OF AUTHORITIES

Cases

Light v. State, 15 S.W.3d 104 (Tex. Crim. App. 2000) ..................................................... 1, 5

Roberts v. State, No. 14-14-00874-CR, 2015 WL 9246779 (Tex. App. – Houston
[14th Dist.], December 17, 2015) (mem. op., not designated for publication) ........ 1, 5

Theus v. State, 845 S.W.2d 874 (Tex. Crim. App. 1992) ...................................................... 4

Statutes

Tex. Pen. Code §19.02 ........................................................................................................... 1

Rules

Tex. R. App. P. 47.1 ........................................................................................................... 5, 6

Tex. R. App. P. 66.3(c) ........................................................................................................... 1

iv
 STATEMENT REGARDING ORAL ARGUMENT

Oral argument is not requested.

STATEMENT OF THE CASE

Mr. Roberts was charged with murder. See Tex. Pen. Code §19.02 (C.R. at 15).

Roberts entered a plea of “not guilty” (3 R.R. at 8). After a jury trial, Roberts was found

guilty and sentenced by a jury to fifty (50) years imprisonment in the Texas Department

of Corrections – Institutional Division (C.R. at 199). Timely notice of appeal was filed

(C.R. at 202).

STATEMENT OF PROCEDURAL HISTORY

In an unpublished opinion, the Fourteenth Court of Appeals affirmed Mr.

Roberts’ conviction. Roberts v. State, No. 14-14-00874-CR, 2015 WL 9246779 (Tex.

App. – Houston [14th Dist.], December 17, 2015) (mem. op., not designated for

publication). No motion for rehearing was filed. This petition is timely if filed on or

before January 18, 2016.

GROUNDS FOR REVIEW

Did the Court of Appeals err in failing to address the merits of Mr.
Roberts’ claim that the trial court erred in allowing Roberts to be
impeached with evidence of a previous conviction for assault family
violence against his father as being more prejudicial than probative.

REASON FOR REVIEW

The Fourteenth Court of Appeals’ opinion fails to address every issue
raised and necessary to final disposition of Mr. Roberts’ appeal contrary
to Tex. R. App. Proc. 47.1 and this Court’s decision in Light v. State, 15
S.W.3d 104, 105 (Tex. Crim. App. 2000). Tex. R. App. P. 66.3(c).

1
 STATEMENT OF FACTS

On December 31, 2012, Albert Terepo was found shot in the parking lot of a

HEB grocery store (4 R.R. at 9 & 11). Terepo died as a result of the gunshot wound

he received (5 R.R. at 27-28). There were no eyewitnesses to the shooting, and no

useable fingerprints or foreign DNA was found (3 R.R. at 49, 53) (4 R.R. at 19). None

of the surveillance cameras at the HEB captured the murder because Terepo’s minivan

was parked in blind spot outside the view of the cameras (4 R.R. at 37-38). Terepo’s

cell phone was found at the scene (4 R.R. at 20).

An examination of the cell phone revealed several texts, including texts between

Terepo and a person listed as “Lil Chucky” who was later identified as being Appellant,

Charles Roberts (4 R.R. at 20-22). The texts indicated Roberts was to meet Terepo at

the HEB to buy two ounces of marijuana (4 R.R. at 23-26).

Detectives obtained Roberts’ cell phone records through a court order (4 R.R. at

41). The records indicated that within minutes before the shooting, Roberts’ cell phone

pinged off the cell tower located a quarter mile from the HEB and stated that most

towers have a range of distance of two to three miles (4 R.R. at 52-55 & 64). However

the officer agreed the tower information was not GPS and could not pinpoint exactly

where an individual was when the tower received the signal, only that the phone was

within close range of the tower (4 R.R. at 40).

Roberts took the stand on his own behalf. Roberts confirmed he was going to

purchase hydro marijuana from Terepo and that he was at HEB shortly before the 911

2
call was made (5 R.R. at 67-68, 79, 82, 89). Roberts also agreed he was on the phone

with Terepo approximately five minutes before 911 was called1 (5 R.R. at 89).

Roberts testified it was during this phone call he told Terepo he was not willing

to complete the purchase (5 R.R. at 95-96). Roberts decided to abandon the transaction

because when he arrived at the HEB, Terepo was not alone as Terepo had said he would

be, he was driving in a different vehicle than he had told Roberts he would be driving,

and Roberts saw an uniformed officer at the HEB gas station, (5 R.R. at 66-68). Roberts

testified he never got out of his vehicle, and instead returned home (5 R.R. at 68 & 95).

Roberts specifically denied shooting Terepo (5 R.R. at 70).

Roberts turned himself in to authorities the day after he learned there was a

warrant for his arrest (5 R.R. at 71). While in the Inmate Processing Center he saw

Mark Williams, the father of one of Robert’s cousin’s children (5 R.R. at 46 & 72).

Williams testified Roberts told him that he had committed the murder while the two

were at the Inmate Processing Center (4 R.R. at 84-86). Roberts admitted talking to

Williams but argued that Williams was lying (5 R.R. at 72, 110-112). Roberts testified

there was “bad blood” between Williams and Roberts’ family, due in part, to an incident

where Roberts’ mother had security escort Williams from a trail ride after Williams,

Roberts and one of Roberts’ cousins got into a physical altercation (5 R.R. at 64-65).

1
The phone records indicate a call between Roberts and Terepo at 5:19 p.m. which lasted 34 seconds,
or until 5:20 p.m. (5.R.R. at 89). The testimony at trial was the 911 call reporting the shooting was
made at 5:24 p.m. (4 R.R. at 18).

3
 ARGUMENT

Did the Court of Appeals err in failing to address the merits of Mr.
Roberts’ claim that the trial court erred in allowing Roberts to be
impeached with evidence of a previous conviction for assault family
violence against his father as being more prejudicial than probative?

In his first point of error, Roberts argued the trial court abused its discretion in

admitting evidence of Roberts’ prior conviction for assault family violence against his

biological father, for impeachment purposes. Roberts argued first the conviction was

not a conviction of moral turpitude because misdemeanor assaults between men have

traditionally not been crimes of moral turpitude and the mere finding of a family

biological relationship should not transform the conviction into a crime of moral

turpitude when Roberts had not seen his father since he was four years old. (Appellant’s

brief pp. 17-19). Roberts then argued alternatively, the evidence should have been

excluded under the probative versus prejudicial analysis in Theus v. State, 845 S.W.2d.

874, 880 (Tex. Crim. App. 1992). (Appellant’s brief pp. 19-22).

The entirety of the Court of Appeals’ opinion regarding Roberts’ first point of

error is as follows:

In his first issue, appellant argues that the trial court abused its discretion
by admitting the evidence of his assault conviction. Appellant argues that
this evidence was inadmissible under Rule 609 of the Texas Rules of
Evidence because an assault against a man is not considered a crime
involving moral turpitude. The State responds that this complaint has not
been preserved. We agree with the State.

To preserve a complaint for appellate review, the record must show that
the complaint was made to the trial court by a timely objection, stating the
grounds for the ruling sought with sufficient specificity to make the trial

4
 court aware of the complaint, unless the specific grounds were apparent
from the context. See Tex.R.App. P. 33.1(a). The purpose for requiring a
timely, specific objection is twofold: (1) it informs the judge of the basis
of the objection, affording the judge an opportunity to rule on it; and (2)
it gives opposing counsel an opportunity to respond to the complaint. See
Resendez v. State, 306 S.W.3d 308, 312 (Tex.Crim.App.2009). Although we
are not hyper-technical in our examination of whether error was
preserved, we do adhere to the general rule that the argument on appeal
must comport with the objection made at trial. See Bekendam v. State, 441
S.W.3d 295, 300 (Tex.Crim.App.2014).

Here, the only legal objection asserted at trial was that the evidence of the
assault was more prejudicial than probative. This objection did not put the
trial court on notice of the complaint appellant now asserts on appeal—
that the assault was not a crime involving moral turpitude. We conclude
that appellant's argument on appeal does not comport with the objection
he made at trial, and thus, his complaint has not been preserved for
appellate review. Cf. Douds v. State, No. PD0857–14, ––– S.W.3d ––––,
2015 WL 5981121, at *4–5 (Tex.Crim.App. Oct. 14, 2015) (defendant's
trial argument that the requirements of a mandatory blood-draw statute
had not been met did not preserve a constitutional complaint on appeal
that the blood draw violated the Fourth Amendment where there was no
showing of exigent circumstances).

Roberts v. State, No. 14-14-00874-CR, 2015 WL 9246779, at *2 (Tex. App. – Houston

[14th Dist.] Dec. 17, 2015).

Tex. R. App. Proc. 47.1 requires the court of appeals “hand down a written

opinion… that addresses every issue raised and necessary to final disposition of the

appeal.” Failure by a court of appeals to address a point of error properly raised by a

party requires remand for consideration of that point of error. Light v. State, 15 S.W.3d

104, 105 (Tex. Crim. App. 2000). The Court of Appeals’ opinion wholly fails to conduct

any review of the trial court’s determination of the probative versus prejudicial value of

the prior conviction. The opinion only mentions probative verse prejudicial when it

5
states, this was the legal objection made at trial by trial counsel. Thus the opinion is

not in compliance with Tex. R. App. Proc. 47.1.

PRAYER

For these reasons, Mr. Roberts prays this Court to grant discretionary review and

remand to the Court of Appeals to conduct a review of Roberts’ point of error alleging

the prior conviction was more prejudicial than probative.

Respectfully submitted,

ALEXANDER BUNIN
Chief Public Defender
Harris County Texas

/s/ Angela Cameron
ANGELA CAMERON
Assistant Public Defender
1201 Franklin, 13th floor
Houston Texas 77002
(713) 368-0016
TBA No. 00788672
email: angela.cameron@pdo.hctx.net

CERTIFICATE OF SERVICE

I certify that I provided a copy of the foregoing petition to the Harris County District

Attorney and the State Prosecuting Attorney via e-filing service on the 28th day of

December 2015.

/s/ Angela Cameron
ANGELA CAMERON

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 CERTIFICATE OF COMPLIANCE

Pursuant to Rule 9.4(i)(3), undersigned counsel certifies that this brief complies

with the type-volume limitations of Tex. R. App. Proc. 9.4(e)(i).

1. This petition for discretionary review contains 2,132 words printed in a

proportionally spaced typeface.

2. This brief is printed in a proportionally spaced, serif typeface using Garamond

14 point font in text and Garamond 12 point font in footnotes produced by Microsoft

Word software.

3. Upon request, undersigned counsel will provide an electronic version of this brief

and/or a copy of the word printout to the Court.

4. Undersigned counsel understands that a material misrepresentation in completing

this certificate, or circumvention of the type-volume limits in Tex. R. App. Proc. 9.4(j),

may result in the Court's striking this brief and imposing sanctions against the person

who signed it.

/s/ Angela Cameron
ANGELA L. CAMERON

7
Roberts v. State, Not Reported in S.W.3d (2015)

vehicle, parked just outside of a grocery store. The shooter
left no physical evidence at the scene, and there were no
2015 WL 9246779
eyewitnesses or surveillance footage of the shooting.
Only the Westlaw citation is currently available.

SEE TX R RAP RULE 47.2 FOR Police came to suspect that appellant may have been involved
DESIGNATION AND SIGNING OF OPINIONS. in the murder. Text messages revealed that the complainant
had gone to the grocery store to sell appellant two ounces
DO NOT PUBLISH—TEX. R. APP. P. 47.2(B). of hydroponic marijuana. Phone records also showed that
Court of Appeals of Texas, appellant was within range of a cell phone tower next to the
Houston (14th Dist.). grocery store at the time of the shooting.

Charles Roberts, Appellant
Appellant turned himself in to police when he learned that
v. a warrant had issued for his arrest. Before he was released
The State of Texas, Appellee on bond, appellant encountered a family acquaintance in jail.
The acquaintance wrote a letter to his jailors, claiming that
NO. 14–14–00874–CR | Memorandum
appellant had confessed to killing a man for two ounces of
Opinion filed December 17, 2015 hydroponic marijuana.
On Appeal from the 177th District Court, Harris County,
At trial, appellant admitted that he had spoken with the
Texas, Trial Court Cause No. 1381559
acquaintance in jail, but he denied having made a confession
Attorneys and Law Firms of murder. Appellant further admitted that he had gone to
the grocery store to purchase the hydroponic marijuana, but
Angela Lee Cameron, for Charles Roberts. he testified that he left without completing the transaction
because he did not trust the complainant. According to
Devon Anderson, Alan Curry, Carly Dessauer, for The State
appellant, the complainant was not alone like he had said he
of Texas.
would be, and the complainant was in a different vehicle than
Panel consists of Chief Justice Frost and Justices Christopher what he had previously described.
and Donovan.
The jury rejected appellant's testimony, convicted him
of murder, and assessed his punishment at fifty years'
imprisonment.
MEMORANDUM OPINION

Tracy Christopher, Justice
PRIOR CONVICTION
*1 We consider three issues in this appeal from a conviction
for murder: (1) whether the trial court abused its discretion Before appellant took the stand, the trial court conducted a
by admitting evidence of a prior conviction, (2) whether hearing outside the presence of the jury to determine if there
defense counsel rendered ineffective assistance by failing to were any “impeachable priors” at issue. Appellant stated that,
object that appellant was in shackles during the punishment although he had no felonies on his record, he did have two
phase of trial, and (3) whether the trial court reversibly erred misdemeanor convictions for assault and another conviction
when it failed to give a reasonable-doubt instruction for for possession of marijuana. Because one of the assault
unadjudicated bad acts. We overrule each issue and affirm the convictions involved a family member, the State argued that
trial court's judgment. it constituted a crime involving moral turpitude.

Appellant personally explained to the trial court that the
BACKGROUND assault was just a fight between him and his father.
Appellant's defense counsel then argued that, to whatever
The complainant in this case died of a single gunshot extent the evidence of the assault conviction was relevant,
wound to the abdomen. His body was found inside of his the trial court should exclude it because it was more

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
Roberts v. State, Not Reported in S.W.3d (2015)

prejudicial than probative. The trial court determined that the Appellant took the stand during the punishment phase of
evidence of the assault conviction was admissible, and the trial, wearing shackles or leg irons. Defense counsel did not
State impeached appellant with that evidence at the end of object to appellant being in any kind of restraints. At the end
appellant's cross-examination. of appellant's testimony, both sides rested and the jury was
removed from the courtroom. The trial court then put the
*2 In his first issue, appellant argues that the trial court following comments on the record:
abused its discretion by admitting the evidence of his
assault conviction. Appellant argues that this evidence was All right. I also want the record to reflect that once the
inadmissible under Rule 609 of the Texas Rules of Evidence —once the Defendant was found guilty, it's the deputy's
because an assault against a man is not considered a crime policy to put him in leg irons. And when he was called
involving moral turpitude. The State responds that this to testily here in punishment, he got up and his legs [sic]
complaint has not been preserved. We agree with the State. irons started banging around and clanking when he started
walking to the witness stand before I had a chance to
To preserve a complaint for appellate review, the record must admonish him or the jury on that.
show that the complaint was made to the trial court by a
So I assume the jury may have seen that he had leg irons,
timely objection, stating the grounds for the ruling sought
but he basically got up and started walking toward the box
with sufficient specificity to make the trial court aware of the
before I had a chance to say anything. So made that kind
complaint, unless the specific grounds were apparent from the
of issue moot.
context. See Tex.R.App. P. 33.1(a). The purpose for requiring
a timely, specific objection is twofold: (1) it informs the
Appellant now argues in his second issue that he received
judge of the basis of the objection, affording the judge an
ineffective assistance of counsel because defense counsel did
opportunity to rule on it; and (2) it gives opposing counsel
not object to appellant being in shackles while in the presence
an opportunity to respond to the complaint. See Resendez v.
of the jury. We review claims of ineffective assistance
State, 306 S.W.3d 308, 312 (Tex.Crim.App.2009). Although
of counsel under the standard set forth in Strickland v.
we are not hyper-technical in our examination of whether
Washington, 466 U.S. 688 (1984). Under Strickland, the
error was preserved, we do adhere to the general rule that
defendant must prove that his trial counsel's representation
the argument on appeal must comport with the objection
was deficient, and that the deficient performance was so
made at trial. See Bekendam v. State, 441 S.W.3d 295, 300
serious that it deprived him of a fair trial. Id. at 687.
(Tex.Crim.App.2014).
Counsel's representation is deficient if it falls below an
objective standard of reasonableness. Id. at 688. A deficient
Here, the only legal objection asserted at trial was that the
performance will only deprive the defendant of a fair trial
evidence of the assault was more prejudicial than probative.
if it prejudices the defense. Id. at 691–92. To demonstrate
This objection did not put the trial court on notice of the
prejudice, there must be a reasonable probability that, but for
complaint appellant now asserts on appeal—that the assault
counsel's unprofessional errors, the result of the proceeding
was not a crime involving moral turpitude. We conclude that
would have been different. Id. at 694. Failure to make the
appellant's argument on appeal does not comport with the
required showing of either deficient performance or sufficient
objection he made at trial, and thus, his complaint has not
prejudice defeats the claim of ineffectiveness. Id. at 697. This
been preserved for appellate review. Cf. Douds v. State, No.
test is applied to claims arising under both the United States
PD0857–14, ––– S.W.3d ––––, 2015 WL 5981121, at *4–
and Texas Constitutions. See Hernandez v. State, 726 S.W.2d
5 (Tex.Crim.App. Oct. 14, 2015) (defendant's trial argument
53, 56–57 (Tex.Crim.App.1986).
that the requirements of a mandatory blood-draw statute had
not been met did not preserve a constitutional complaint on
*3 Our review of defense counsel's performance is highly
appeal that the blood draw violated the Fourth Amendment
deferential, beginning with the strong presumption that
where there was no showing of exigent circumstances).
counsel's actions were reasonably professional and were
motivated by sound trial strategy. See Jackson v. State, 877
S.W.2d 768, 771 (Tex.Crim.App.1994). When the record
SHACKLES is silent as to counsel's strategy, we will not conclude
that the defendant received ineffective assistance unless the
challenged conduct was “so outrageous that no competent

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2
Roberts v. State, Not Reported in S.W.3d (2015)

attorney would have engaged in it.” See Goodspeed v. Here, the record does not reflect any special circumstances
State, 187 S.W.3d 390, 392 (Tex.Crim.App.2005). Rarely that would justify the use of shackles. The trial court
will the trial record contain sufficient information to permit commented that shackles were employed pursuant to a
a reviewing court to fairly evaluate the merits of such a “policy” of restraining the defendant once he has been
serious allegation. See Bone v. State, 77 S.W.3d 828, 833 found guilty, which actually suggests the absence of special
(Tex.Crim.App.2002). In the majority of cases, the defendant circumstances. 1
is unable to meet the first prong of the Strickland test because
the record on direct appeal is underdeveloped and does not 1 While we question the need for such a “policy,” the trial
adequately reflect the alleged failings of trial counsel. See
court must be mindful of its obligations to ensure that the
Mata v. State, 226 S.W.3d 425, 430 (Tex.Crim.App.2007).
shackles are not visible to the jury.

A sound trial strategy may be imperfectly executed, but the Assuming for the purposes of argument that there was no
right to effective assistance of counsel does not entitle a reason for appellant's compelled restraint, the record does
defendant to errorless or perfect counsel. See Robertson v. not reflect defense counsel's reasons for failing to object to
State, 187 S.W.3d 475, 483 (Tex.Crim.App.2006). Isolated the shackles. Appellant did not move for a new trial, and
instances in the record reflecting errors of omission or defense counsel did not file an affidavit or otherwise explain
commission do not render counsel's performance ineffective, his tactics or reasoning.
nor can ineffective assistance of counsel be established
by isolating one portion of counsel's performance for *4 The State argues that defense counsel may have willfully
examination. See Ex parte Welborn, 785 S.W.2d 391, 393 chosen to allow appellant to take the stand in shackles in an
(Tex.Crim.App.1990). Moreover, it is not sufficient that the effort to elicit the jury's sympathy and obtain a more lenient
defendant show, with the benefit of hindsight, that counsel's sentence. This explanation would be consistent with the sole
actions or omissions during trial were merely of questionable theme of appellant's statements on direct examination, which
competence. See Mata, 226 S.W.3d at 430. Rather, to was that the jury had made a mistake and was about to
establish that counsel's acts or omissions were outside the send an innocent man to jail. If that were counsel's strategy,
range of professionally competent assistance, the defendant it may have been risky, but not objectively unreasonable.
must show that counsel's errors were so serious that he was Cf. Estelle v. Williams, 425 U.S. 501, 508 (1976) (“[I]t is
not functioning as counsel. See Patrick v. State, 906 S.W.2d not an uncommon defense tactic to produce the defendant
481, 495 (Tex.Crim.App.1995). in jail clothes in the hope of eliciting sympathy from the
jury.”). On this record, appellant has not overcome the strong
Shackles are “inherently prejudicial” when used presumption that counsel's failure to object was consistent
conspicuously in front of the jury. See Holbrook v. Flynn, with sound trial strategy. See Goodspeed, 187 S.W.3d at
475 U.S. 560, 568 (1986). During the guilt phase of 392 (stating that an appellate court should not find deficient
trial, they can undermine the presumption of innocence, performance on a silent record unless the challenged conduct
interfere with the defendant's ability to communicate with was “so outrageous that no competent attorney would have
his counsel, and affront the dignity and decorum of the engaged in it”).
judicial process. See Deck v. Missouri, 544 U.S. 622, 630–
31 (2005). Related concerns are implicated in the punishment
phase as well. Shackles can threaten the accuracy of reliable CHARGE ERROR
decisionmaking, especially in capital cases, by suggesting to
the jury that the defendant is a danger to the community. During the punishment phase, the State elicited testimony of
Id. at 632–33. Due process accordingly forbids the routine appellant's disciplinary records from when he was in jail. The
use of shackles that are visible to the jury, except in records showed that appellant had been cited for fighting,
“special circumstances,” such as where there are case-specific disruptive conduct, and threatening another man. Appellant
security needs or a risk of escape. Id. at 633. Even in such had explanations for each of these citations. On the fighting
circumstances, the trial court must make all efforts to prevent charge, appellant testified that he and another man were
the jury from seeing the defendant in shackles. See Bell v. “horseplaying,” which he suggested was nonaggression. As
State, 415 S.W.3d 278, 281 (Tex.Crim.App.2013). for the disruptive-conduct charge, appellant indicated that he
misbehaved because some of his food had been taken after

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Roberts v. State, Not Reported in S.W.3d (2015)

a “shakedown.” And as for the threatening charge, appellant State throughout the trial and never shifts to the defendant.”
explained that he “had some words” with another man who We conclude that this factor is neutral in our assessment of
“came into the tank thinking he was running things and egregious harm. See Martinez v. State, 313 S.W.3d 358, 367
changed the TV.” (Tex.App.–Houston [1st Dist.] 2009, pet. ref d) (examining a
punishment charge with identical language).
The trial court did not give a reasonable-doubt instruction
in its punishment charge as it related to these unadjudicated *5 The Evidence as a Whole. The evidence against
bad acts. Appellant did not request such an instruction either. appellant was largely circumstantial, but the circumstantial
Nevertheless, appellant argues in his third issue that the trial evidence was also strong. Phone records established that
court reversibly erred by failing to give the instruction sua appellant arranged a meeting with the complainant to
sponte. purchase two ounces of hydroponic marijuana. The records
also established that appellant was near the scene of the crime
When deciding whether there is reversible error in a jury when the complainant was shot. After his body was found,
charge, we must first determine whether error exists, and there were no drugs on the complainant's person, but inside
if error does exist, we must then determine whether the of his car, police discovered the lid to the mason jar that had
defendant was harmed by the error. See Middleton v. State, stored the hydroponic marijuana.
125 S.W.3d 450, 453 (Tex.Crim.App.2003). If, as in this case,
the defendant did not object to the charge at trial, we can According to a family acquaintance, appellant admitted
only reverse the trial court's judgment if the defendant was when he was in jail that he had killed the complainant
egregiously harmed by the trial court's error. See Almanza v. for the hydroponic marijuana. At trial, appellant tried to
State, 686 S.W.2d 157, 171 (Tex.Crim.App.1984). discredit the acquaintance by suggesting that the acquaintance
could have read about the murder in an online newspaper
The State concedes that it was error for the trial court to omit article. However, there was no evidence that the acquaintance
the instruction and we agree. See Huizar v. State, 12 S.W.3d had seen the article, and in his letter to the jailors, the
479, 484 (Tex.Crim.App.2000) (holding that no objection or acquaintance specifically mentioned that appellant had shot
request is required to receive a reasonable-doubt instruction). the complainant over marijuana of the hydroponic variety, a
However, because appellant did not object to the omission of detail that had not been mentioned in the article.
the instruction, appellant must show that he was egregiously
harmed to be entitled to relief. The State contends that As for his prior convictions, appellant admitted during the
appellant cannot meet this difficult burden. We agree here as guilt phase that he had been convicted of misdemeanor
well. assault, and during the punishment phase, the State introduced
evidence of appellant's misdemeanor possession conviction.
Any harm that is inflicted by an erroneous charge must be No reasonable-doubt instruction was required as to these
assayed in light of the entire jury charge, the evidence as extraneous offenses because they had already been proven in
a whole, the arguments of counsel, and any other relevant another proceeding. See Bluitt v. State, 137 S.W.3d 51, 54
information revealed by the record. See Stuhler v. State, (Tex.Crim.App.2004).
218 S.W.3d 706, 719 (Tex.Crim.App.2007). An error is
egregiously harmful only when it affects the very basis of Also during the punishment phase, the State elicited
the case, deprives the defendant of a valuable right, or vitally testimony about appellant's disciplinary record in jail,
affects a defensive theory. Id. This is a difficult standard which was composed of certain unadjudicated bad acts. As
to prove and such a determination must be done on a case- mentioned above, appellant admitted to having some level of
by-case basis. See Hutch v. State, 922 S.W.2d 166, 171 involvement in each of the bad acts, which weighs against
(Tex.Crim.App.1996). any suggestion that the jury would have disregarded the
bad acts had a reasonable-doubt instruction been provided.
The Entire Jury Charge. In this case, the punishment charge Considering further the seriousness of the murder charge
did not specifically address the unadjudicated bad acts or the and the strength of the evidence in support of the murder
burden of proof that must be met before the bad acts could be conviction, the evidence of the unadjudicated bad acts does
considered. However, the charge generally informed the jury not make the case for punishment clearly more persuasive.
that “[t]he burden of proof in all criminal cases rests upon the See Martinez, 313 S.W.3d at 368.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4
Roberts v. State, Not Reported in S.W.3d (2015)

requested, which was sixty years. Appellant did not argue for
a specific term of years. This factor does not weigh greatly in
The Arguments of Counsel In its closing statements, the State
favor of finding egregious harm.
made no reference to appellant's prior bad acts, whether they
were adjudicated or unadjudicated. Defense counsel, on the
Having considered all of the factors together, we conclude
other hand, acknowledged that appellant had “a record of
that appellant was not egregiously harmed by the trial court's
some misconduct,” but counsel said that the record was “not
failure to sua sponte give a reasonable-doubt instruction on
egregious.” Because neither side emphasized appellant's prior
the matter of appellant's unadjudicated bad acts.
bad acts, this factor weighs against a finding of egregious
harm.

Other Relevant Information. We may consider the severity CONCLUSION
of the punishment assessed, which may indicate egregious
harm in some situations. Id. Here, appellant was sentenced *6 The trial court's judgment is affirmed.
to fifty years' imprisonment, which is in the midrange for a
felony of the first degree. See Tex. Penal Code § 12.32. This
All Citations
sentence is slightly higher than the minimum sentence that
was advocated by the State, which was forty-five years, but Not Reported in S.W.3d, 2015 WL 9246779
it is also lower than the sentence that the State specifically

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 5