                                   NO. 12-15-00228-CR

                           IN THE COURT OF APPEALS

                TWELFTH COURT OF APPEALS DISTRICT

                                      TYLER, TEXAS

JAMES CARLTON COX, III,                           §       APPEAL FROM THE 258TH
APPELLANT

V.                                                §       JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                          §       TRINITY COUNTY, TEXAS

                                   MEMORANDUM OPINION
        James Carlton Cox, III appeals his conviction for evading arrest while using a vehicle. In
two issues, Appellant argues the trial court erred when it failed to include certain jury
instructions in its charges to the jury. We affirm.


                                           BACKGROUND
        Appellant was charged by indictment for evading arrest while using a vehicle. The State
alleged that Appellant intentionally fled from Deputy Jeremy Alexander, a person Appellant
knew was a peace officer who was attempting to lawfully arrest or detain him. Appellant
pleaded “not guilty” and the matter proceeded to a jury trial. The jury found Appellant guilty as
charged in the indictment. After a trial on punishment, the jury assessed Appellant’s punishment
at imprisonment for ten years. This appeal followed.


                             NO ADVERSE INFERENCES INSTRUCTION
        In his first issue, Appellant contends that the trial court erred when it did not instruct the
jury that it could not consider Appellant’s decision not to testify during the guilt-innocence phase
of the trial.
       Both the United States and Texas Constitutions guarantee that the accused in a criminal
case may not be compelled to give self-incriminating testimony. See U.S. CONST. amend. V, cl.
3; TEX. CONST. art I, § 10; see also TEX. CODE CRIM. PROC. ANN. arts. 1.05, 38.08 (West 2005).
The Fifth Amendment guarantee is applicable to the states through the Fourteenth Amendment to
the United States Constitution. Carter v. Kentucky, 450 U.S. 288, 297, 101 S. Ct. 1112, 1117,
67 L. Ed. 2d 241 (1981).
       To protect a defendant’s Fifth Amendment right not to testify, the Supreme Court has
held that a defendant is entitled to have a trial court instruct the jury not to draw an adverse
inference from a defendant’s failure to testify. See Carter, 450 U.S. at 300, 101 S. Ct. at 1119;
see also Beathard v. State, 767 S.W.2d 423, 432 (Tex. Crim. App. 1989). However, the
Supreme Court noted that the instruction must be requested. See Carter, 450 U.S. at 300, 101 S.
Ct. at 1119.
       Whether to request a “no adverse inferences” jury instruction is within the tactical
discretion of defense counsel. Michaelwicz v. State, 186 S.W.3d 601, 624 (Tex. App.—Austin
2006, pet. ref’d). The court of criminal appeals has recognized that a defendant may not always
want the “no adverse inferences” instruction given. See Rogers v. State, 486 S.W.2d 786, 788
(Tex. Crim. App. 1972); Hill v. State, 466 S.W.2d 791, 793 (Tex. Crim. App. 1971); Peoples v.
State, 459 S.W.2d 868, 869 (Tex. Crim. App. 1970).
       A defendant waives the right to a no-adverse-inference instruction unless either a request
is made to the trial court to add the instruction to its charge or an objection is made to the
omission of the instruction. De La Paz v. State, 901 S.W.2d 571, 578 (Tex. App.—El Paso
1995, pet. ref’d). In the absence of a proper request or timely objection, the trial court is under
no obligation to give the instruction and does not err in excluding the instruction in the jury
charge. Michaelwicz, 186 S.W.3d at 624.
       Appellant did not request a jury instruction on the issue of his election not to testify and
did not object to the absence of the instruction in the charge. Therefore, he waived his right to
the instruction. See De La Paz, 901 S.W.2d at 578. Nevertheless, Appellant argues that the
“better analysis” is to apply the egregious harm analysis under Almanza v. State. However, the
court of criminal appeals has held that a review for egregious harm is required only if the charge
contains error. See Posey v. State, 966 S.W.2d 57, 60-64 (Tex. Crim. App. 1998). We are bound




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to follow that court’s precedent. See State of Tex. ex rel. Vance v. Clawson, 465 S.W.2d 164,
168 (Tex. Crim. App. 1971). We overrule Appellant’s first issue.


                                REASONABLE DOUBT INSTRUCTION
         In his second issue, Appellant argues that the trial court erred in failing to include a
reasonable doubt instruction for extraneous offenses in the jury charge. Appellant contends that
he was egregiously harmed by this omission.             The State admits that a reasonable doubt
instruction should be given when extraneous offenses are presented to the jury, but contends that
Appellant was not egregiously harmed.
Standard of Review
         The review of an alleged jury charge error in a criminal trial is a two-step process.
Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994). First, an appellate court must
determine whether there was error in the jury charge. Id. Then, if there is charge error, the court
must determine whether there is sufficient harm to require reversal. Id. at 731–32. The standard
for determining whether there is sufficient harm to require reversal depends on whether the
appellant objected to the error at trial. Id. at 732.
         An appellant who did not raise the error at trial can prevail 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. 1984).             In determining whether an appellant was
deprived of a fair and impartial trial, we review 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. See Taylor v. State,
332 S.W.3d 483, 489 (Tex. Crim. App. 2011); Almanza, 686 S.W.2d at 171. We will examine
any part of the record that may illuminate the actual, not just theoretical, harm to the accused.
See Taylor, 332 S.W.3d at 489–90. Errors which result in egregious harm are those that affect
the very basis of the case, deprive the defendant of a valuable right, vitally affect the defensive
theory, or make a case for conviction clearly and significantly more persuasive. See id., 332
S.W.3d at 490. Egregious harm is a difficult standard to prove, and such a determination must
be made on a case-by-case basis. See Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App.
1996).




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Applicable Law
       Texas Code of Criminal Procedure, article 37.07, section 3(a) permits the admission of
extraneous offense evidence at the punishment phase. It allows evidence of an extraneous crime
that is shown beyond a reasonable doubt by evidence to have been committed by the defendant
or for which he can be held criminally responsible. TEX. CODE CRIM. PROC. ANN. art. 37.07,
§ 3(a) (West Supp. 2016). However, evidence of extraneous offenses may not be considered in
assessing punishment until the factfinder is satisfied beyond a reasonable doubt that such
offenses are attributable to the defendant. Id.; see also Huizar v. State, 12 S.W.3d 479, 484
(Tex. Crim. App. 2000).       Once that requirement is satisfied, the factfinder may use the
extraneous offense evidence however it chooses in assessing punishment. Huizar, 12 S.W.3d at
484.
       The requirement that the jury be satisfied of the defendant's culpability for the extraneous
offenses is “law applicable to the case” in the noncapital punishment context. Huizar, 12
S.W.3d at 484. Thus, when evidence of extraneous offenses is admitted at the punishment phase,
the trial court is required to sua sponte instruct the jury on the reasonable doubt standard of proof
for those offenses. Id. at 483–84. The failure of the trial court to submit the instruction is error.
Id.
Error in the Charge
       During the punishment phase of Appellant’s trial, the State introduced evidence of
Appellant’s prior arrests and prior convictions for driving while intoxicated, driving with an
invalid license, and evading arrest. Therefore, the trial court was required to instruct the jury on
the reasonable doubt standard of proof for those offenses. No such instruction was included in
the jury charge on punishment, and the trial court erred by omitting it. Appellant did not object
at trial to this error in the court’s charge. Therefore, we examine the entire record to determine
whether the error was so egregious and created such harm that Appellant did not receive a fair
and impartial trial. See Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996); Almanza,
686 S.W.2d at 171.
Harm Analysis
       Appellant argues that the extraneous offenses presented by the State were not proven
beyond a reasonable doubt and that the jury did not know the State had to prove them beyond a
reasonable doubt before they could be considered. He further contends that omission of the



                                                 4
reasonable doubt instruction caused him egregious harm because the jury sentenced him to
imprisonment for ten years without recommending community supervision.
         Appellant does not point to anything in the record that suggests the jury would have
recommended community supervision if the jury charge had included a reasonable doubt
instruction for these extraneous offenses. Moreover, during the punishment phase Appellant
testified regarding each extraneous arrest and conviction presented by the State. He explained
the circumstances of each arrest for an extraneous offense and stated whether the arrest resulted
in a conviction. He also informed the jury that he had previously successfully completed
community supervision. Appellant never denied that he was the person arrested for or convicted
of any of the offenses presented by the State. Appellant’s counsel told the jury during argument
that Appellant committed the offenses, but he asked the jury for community supervision because
none of the offenses were felonies. However, the State pointed out that community supervision
did not have the desired rehabilitative effect on Appellant.
         Appellant’s testimony and his trial counsel’s argument confirmed that Appellant was the
person arrested and the person who committed the extraneous offenses as presented by the State.
Based on the evidence before it, the jury reasonably could have agreed with the State that
community supervision had not had the desired effect on Appellant. As a result, the jury could
have decided to impose a more severe punishment. Therefore, we conclude that Appellant failed
to show egregious harm from the omission of the reasonable doubt instruction for extraneous
offenses. Accordingly, we overrule Appellant’s second issue.


                                                  DISPOSITION
         Having overruled Appellant’s first and second issues, we affirm the judgment of the trial
court.


                                                                JAMES T. WORTHEN
                                                                   Chief Justice

Opinion delivered August 31, 2016.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)



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                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                           AUGUST 31, 2016


                                         NO. 12-15-00228-CR


                                   JAMES CARLTON COX, III,
                                           Appellant
                                              V.
                                     THE STATE OF TEXAS,
                                           Appellee


                                Appeal from the 258th District Court
                            of Trinity County, Texas (Tr.Ct.No. 10,335)

                        THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                        It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
                    James T. Worthen, Chief Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
