                                    NO. 07-08-0390-CR

                               IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                         PANEL A

                                  OCTOBER 7, 2009
                           ______________________________

                         JEROMY KEITH BRISTOW, APPELLANT

                                             V.

                            THE STATE OF TEXAS, APPELLEE
                          _________________________________

               FROM THE 181ST DISTRICT COURT OF POTTER COUNTY;

                    NO. 55,398-B; HONORABLE JOHN BOARD, JUDGE
                          _______________________________


Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                                 MEMORANDUM OPINION


          Appellant, Jeromy Keith Bristow, appeals his sentence of 20 years confinement in

the Institutional Division of the Texas Department of Criminal Justice (ID-TDCJ). We

affirm.


Background


          On March 13, 2007, appellant and Jonathan McSmith were together with Larry

Hattig in a home located in Amarillo, Texas. While at the home, appellant had a gun and,
while “messing” with the gun, shot and killed McSmith. Appellant was charged with

murder.


      At trial, appellant was found guilty of the lesser-included charge of manslaughter

and went to the jury for punishment. During the punishment proceedings, the State

presented evidence of appellant’s prior adjudicated offenses including burglary of a

building, possession of marihuana, and discharge of a firearm inside a municipality.

Additionally, upon cross-examination of appellant, the State made statements that raised

the issue of appellant having a “gang mentality” and that appellant had failed to be

rehabilitated because, after his release from the Texas Youth Commission, appellant was

“out on the street buying guns, buying ammunition, having drugs, and shooting people.”

The jury was then charged and, after deliberations, returned with a sentence of 20 years

in ID-TDCJ.


      Appellant appeals contending that the trial court erred in failing to charge the jury

during the punishment proceeding that, before it can consider acts and offenses in

assessing punishment, the trier of fact must believe beyond a reasonable doubt that the

acts and offenses are attributable to appellant. We affirm the judgment of the trial court.


Law and Analysis


      Under article 37.07 of the Texas Code of Criminal Procedure, “evidence may be

offered . . . of an extraneous crime or bad act that is shown beyond a reasonable doubt by

evidence to have been committed by the defendant or for which he could be held criminally

responsible . . . .” TEX . CODE CRIM . PROC . ANN . art. 37.07 § 3(a) (Vernon Supp. 2008).

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When the State admits such evidence, the trial court shall instruct the jury as to the

reasonable doubt standard. See Huizar v. State, 12 S.W.3d 479, 483 (Tex.Crim.App.

2000). If the trial court fails to provide a charge as to the reasonable doubt standard, the

charge error shall be analyzed for harm under article 36.19. Id. at 484-85. The judgment

shall not be reversed unless the error appearing from the record was calculated to injure

the rights of appellant, or unless it appears from the record that appellant has not had a

fair and impartial trial. TEX . CODE CRIM . PROC . ANN . art. 36.19 (Vernon 2006). Almanza v.

State, 686 S.W.2d 157 (Tex.Crim.App. 1984), sets forth the appropriate harm analysis for

charge error under article 36.19. Huizar, 12 S.W.3d at 484-85. As such, appellant will

obtain a reversal only if the error is so egregious as to create such harm that he has not

had a fair and impartial trial. See Almanza, 686 S.W.2d at 171. The 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. Id.


       In this case it is clear that the trial court did not provide an instruction on reasonable

doubt. However, for the adjudicated offenses of burglary, possession of marihuana, and

discharge of a firearm, no instruction was necessary since a judge or jury has already

made a determination of guilt beyond a reasonable doubt in a prior proceeding. See Bluitt

v. State, 137 S.W.3d 51, 54 (Tex.Crim.App. 2004).


       However, appellant contends that the bad acts of “gang mentality,” possession of

drugs, purchasing guns and ammunition, and shooting at people were acts raised by the

State as unadjudicated offenses. Without a reasonable doubt instruction contained in the

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charge, the possibility existed that “a jury might apply a standard of proof less than

reasonable doubt in its determination of [appellant’s] connection to such offenses and bad

acts, contrary to [article 37.07] section 3(a).” Huizar, 12 S.W.3d at 484. Appellant

contends that the trial court erred in not including a reasonable doubt charge instruction

within the punishment charge as it relates to these unadjudicated offenses.


      However, upon reviewing the record in order to assay the degree of harm, we find

that the record, as a whole, demonstrates that any harm suffered by appellant was not so

egregious as to cause appellant to be denied a fair and impartial trial. During the

punishment phase, the testimony and closing argument focused on the adjudicated

offenses. Further, the State’s mention of “gang mentality” and the purchases of guns and

ammunition was raised in the form of a question without further probing. Additionally, the

State’s closing statement did not delve into the unadjudicated offenses. Taking into

consideration the entire record at punishment, we conclude that the degree of harm was

not egregious. Almanza, 686 S.W.2d at 171.      We overrule appellant’s issue.


Conclusion


      For the foregoing reasons, we affirm the judgment of the trial court.




                                         Mackey K. Hancock
                                             Justice

Do not publish.



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