Opinion
Nos. 05-02-00466-CR, 05-02-00467-CR.
Opinion Filed February 28, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.
Appeal from the Criminal District Court, Dallas County, Texas, Trial Court Cause No. F01-52413-WH, and F01-52414-WH. AFFIRMED.
OPINION.
A jury found appellant guilty of aggravated robbery in cause number 05-02-00466-CR and assessed his punishment at confinement for fourteen years and a $7500 fine. In cause number 05-02-00467-CR, the jury found appellant guilty of the offense of retaliation and set his punishment at confinement for five years and a $5000 fine. In two points of error, appellant contends first that the trial court reversibly erred in failing, during the punishment phase, to charge the jury that other offenses alleged to have been committed by the defendant must be proven beyond a reasonable doubt. In his second point, appellant maintains the evidence is legally insufficient to sustain the conviction for retaliation. We affirm. The complainant in the aggravated robbery case, Jesus Longoria, stopped at a Texaco station in Dallas County to fill up his recently purchased pickup. Two uncles and a friend were with him. As Longoria was getting out to fill up, appellant, accompanied by two other men, approached him, brandished a kitchen knife, and said in Spanish "I'm going to take your truck." Appellant attacked Longoria. In an effort to escape the attack, Longoria kicked the knife from appellant's hand, and a fist fight ensued. Longoria knocked appellant down, jumped in his truck, and drove to a nearby store where he called the police. The Texaco filling station attendant, Carlos Borromeo, saw the robbery in progress, called the police, and ran outside to help as Longoria drove off. Appellant ran into an open field behind the station. Dallas Police Officer Jeffrey Eggleston responded to Longoria's and Borromeo's 911 calls. He obtained a description of the robber from Borromeo and also from Longoria, who had returned to the station. Only minutes later, after hearing the radioed description, Officer Daniel Torres saw appellant standing in front of an apartment building a few blocks away. Officer Torres arrested appellant and took him to the Texaco station where both Borromeo and Longoria identified him as the robber. When Borromeo identified him, appellant told Borromeo in Spanish, "someday I'm going to come back and you're going to pay for what you're saying." Borromeo testified that because of the way it was said, he thought the threat might be a death threat. During the punishment stage of the trial, the State introduced judgments of appellant's prior felony conviction for possession of a controlled substance and three misdemeanor convictions for burglary of a vehicle. The defense stipulated that appellant was the person convicted in each case. Appellant, however, objected to the introduction of evidence of the three misdemeanor convictions, insisting that in each of those proceedings, he had been denied effective assistance of counsel. In his first point of error, appellant claims the trial court erred in failing to instruct the jury at the punishment stage that they could not consider evidence of his extraneous offenses unless they concluded, beyond a reasonable doubt, that he committed those offenses. Appellant asserts he suffered egregious harm from the trial court's error because the prosecutor's final argument placed special emphasis on the extraneous offenses. Evidence of extraneous offenses or bad acts may not be considered in assessing punishment until the fact finder is satisfied beyond a reasonable doubt that those offenses are attributable to the defendant. Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (Vernon 2003). The failure of the trial court to so charge the jury is an error, whose harm must be weighed applying the Almanza standard. See Huizar v. State, 12 S.W.3d 479, 482-85 (Tex.Crim.App. 2000). Appellant did not request an instruction on the burden of proof for the other offenses nor did he object to its omission. Because appellant did not object at trial to this error in the court's charge, reversal is appropriate "only if the error is so egregious and created such harm that he `has not had a fair and impartial trial'. . . ." Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985) (op. on reh'g). Egregious harm consists of those errors that affect the very basis of the case, deprive the defendant of a valuable right, significantly affect a defensive theory, or make the case for punishment clearly and substantially more persuasive. See Lee v. State, 29 S.W.3d 570, 578 (Tex.App.-Dallas 2000, no pet.); Matthews v. State, 999 S.W.2d 563, 565 (Tex.App.-Houston [14th Dist.] 1999, pet. ref'd). "[T]he actual degree of harm must be assayed in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole." Almanza, 686 S.W.2d at 171. In his final argument, the prosecutor unquestionably emphasized appellant's criminal history. The defense also alluded to appellant's prior convictions in its closing argument. Appellant stipulated that he was the person convicted in each of the four extraneous cases. His role as a perpetrator of those crimes was, therefore, absolutely uncontested. Despite the serious nature of the current offenses, the punishments assessed were well below the maximum possible sentence. See, e. g., Brown v. State, 45 S.W.3d 228, 232-33 (Tex.App.-Fort Worth 2001, pet. ref'd). Appellant argues that a failure to find egregious harm in this case will encourage the State to repeat this omission. However, Huizar mandates the submission of the instruction even if neither party requests it. See Huizar, 12 S.W.3d at 483. "Therefore, it is immaterial whether the State requests the instruction." See Batiste v. State, 73 S.W.3d 402, 408-09 (Tex.App.-Dallas 2002, no pet.). In the light of the record, we conclude that appellant did not suffer egregious harm. Appellant's first point is overruled. In his second point, Appellant contends there is no evidence that he threatened to kill Borromeo as alleged in the retaliation indictment. Appellant contends his statement to Borromeo that "someday I'm going to come back and you're going to pay for what you're saying," does not amount to a death threat. Therefore, appellant argues, the evidence is legally insufficient to support his conviction. In weighing a legal sufficiency challenge, the reviewing court views the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Whitaker v. State, 977 S.W.2d 595, 598 (Tex.Crim.App. 1998). The retaliation indictment alleged that appellant threatened to kill Borromeo for identifying him, and the court's charge required the jury to so find in order to return a guilty verdict. The State contends that the sufficiency of the evidence is measured, not by the indictment or the charge actually given, but against the elements of the offense as defined by a hypothetically correct jury charge. See Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997). Such a charge is one "that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried." Id. The elements of retaliation contained in a hypothetically correct jury charge for this case are (1) a person, (2) intentionally or knowingly, (3) harms or threatens to harm another by an unlawful act, (4) in retaliation for or an account of the status of another as a person who has reported the occurrence of a crime. Tex. Pen. Code Ann. § 36.06(a)(1)(B) (Vernon Supp. 2003). The evidence at trial established that Borromeo called 911 to report the robbery and later identified appellant as the robber. Immediately after Borromeo told the officer that appellant was the man who robbed Longoria, appellant told Borromeo, "someday I'm going to come back and you're going to pay for what you're saying." The threat was made in Spanish, and Borromeo told the court that he thought appellant might be threatening to come back and kill him. We agree sufficiency of the evidence to sustain appellant's conviction must be weighed against the elements of a hypothetically correct jury charge, not the indictment or the charge given. Both the indictment and the charge given contained all the essential elements of retaliation. Even if we assume that appellant's was not a threat to kill, but only a threat to harm Borromeo, that is all that is required by a hypothetically correct charge for the case. Measured against the hypothetically correct jury charge, the evidence is legally sufficient to prove beyond a reasonable doubt that appellant committed the offense of retaliation. Appellant's second point is overruled. The judgment is affirmed.