                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH


                                 NO. 2-07-033-CR


MARTIN LOPEZ                                                    APPELLANT

                                             V.

THE STATE OF TEXAS                                                   STATE

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     FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY

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                          MEMORANDUM OPINION 1

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     In one point, Appellant Martin Lopez argues that he suffered egregious

harm when the trial court failed to charge the jury that it could consider

unadjudicated extraneous conduct when assessing punishment only if the State

proved the conduct beyond a reasonable doubt. We affirm.




     1
         … See T EX. R. A PP. P. 47.4.
                                  Background

      Because Appellant does not contest the sufficiency of the evidence, we

will curtail our summary of the evidence to that necessary to analyze his point.

      The grand jury indicted Appellant for possession with intent to deliver four

to two hundred grams of cocaine. At trial, Fort Worth Police Officer Jose

Palomares testified that he stopped Appellant’s vehicle for a traffic violation.

Appellant failed to produce a driver’s license or proof of insurance and made

bodily motions that made Officer Palomares fear he was reaching for a gun.

Officer Palomares asked Appellant to step out of his car so that he could

perform a Terry frisk. Meanwhile, Officer Joel Parsons arrived on the scene.

Officer Parsons testified that he observed several clear baggies, some

containing a white powder and one containing a green, leafy substance, in plain

view in Appellant’s car. He testified that the green, leafy substance appeared

to be marihuana. Officer Palomares arrested Appellant, and a search of his

person incident to arrest revealed more baggies of white powder.          Officer

Parsons testified that the quantify of the white substance found on Appellant

as not “an amount for personal use” and was packaged for street-level

distribution.

      The trial court admitted the baggies containing the green and white

substances into evidence. Dr. Yin Zhang, a forensic chemist with the Fort

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Worth crime lab, testified that the white substance was cocaine with an

aggregate weight of 4.06 grams.        Dr. Zhang did not test the green, leafy

substance and offered no opinion as to what it was.

      The jury convicted Appellant as charged in the indictment.         At the

punishment phase of trial, the State offered no evidence, but Appellant testified

in his own behalf. On cross-examination, Appellant testified that he was a

cocaine addict and that he last used cocaine six months before trial, apparently

in violation of his bond conditions.

      The trial court did not instruct the jury that it could consider the

unadjudicated extraneous offenses—possession of marihuana and use of

cocaine in violation of a bond condition—unless they found that the State had

proved the offenses beyond a reasonable doubt, and Appellant did not request

such an instruction or object to its omission. The jury assessed punishment at

six years’ imprisonment, and the trial court sentenced him accordingly. This

appeal followed.

                              Standard of Review

      Appellate review of error in a jury charge involves a two-step process.

Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994). Initially, we

must determine whether error occurred. If so, we must then evaluate whether

sufficient harm resulted from the error to require reversal. Id. at 731–32.

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       If there is error in the court’s charge but the appellant did not object to

it at trial, we must decide whether the error was so egregious and created such

harm that appellant did not have a fair and impartial trial—in short, that

“egregious harm” has occurred. Almanza v. State, 686 S.W.2d 157, 171 (Tex.

Crim. App. 1985) (op. on reh’g); see T EX. C ODE C RIM. P ROC. A NN. art. 36.19

(Vernon 2007); Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996).

In making this determination, “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.” Almanza,

686 S.W.2d at 171; see generally Hutch, 922 S.W.2d at 172–74.                  The

purpose of this review is to illuminate the actual, not just theoretical, harm to

the accused.    Almanza, 686 S.W.2d at 174.         Egregious harm is a difficult

standard to prove and must be determined on a case-by-case basis. Ellison v.

State, 86 S.W.3d 226, 227 (Tex. Crim. App. 2002); Hutch, 922 S.W.2d at

171.

                                   Discussion

       Code of criminal procedure article 37.07 provides that at punishment, the

State may offer evidence of an extraneous crime or bad act that the defendant

is shown to have committed beyond a reasonable doubt. T EX. C ODE C RIM. P ROC.

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A NN. art. 37.07, § 3(a) (Vernon Supp. 2008). Article 37.07 requires the trial

court to instruct the jury that it may not consider unadjudicated extraneous

offenses when assessing punishment unless it finds beyond a reasonable doubt

that the defendant committed the offenses in question, and the trial court errs

by failing to do so. Huizar v. State, 12 S.W.3d 479, 484 (Tex. Crim. App.

2000) (op. on reh’g). When, as here, the defendant does not request an article

37.07, section 3(a) instruction or object to its omission, we review the error for

egregious harm under the Almanza standard. 2 Id.

          To determine whether Appellant suffered egregious harm, we consider

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. With regard to the entire jury charge on punishment, the

only provision relevant to our analysis is the trial court’s correct instruction that

the permissible range of punishment was five to ninety-nine years or life in




      2
       … The State argues that Appellant was not entitled to a an instruction
regarding possession of marihuana because the green, leafy substance was
introduced during the guilt phase of trial, not punishment, and because it was
admissible as same transaction contextual evidence. For the purposes of this
opinion, we assume without deciding that the trial court erred by failing to
instruct the jury with regard to possession of marihuana and focus our attention
on the harm analysis.

                                         5
prison. See T EX . H EALTH & S AFETY C ODE A NN. 481.115 (Vernon 2003); T EX.

P ENAL C ODE A NN. § 12.32 (Vernon 2003). We note that the jury assessed a

term of confinement just one year longer than the statutory minimum.

      With regard to the state of the evidence, the record of the guilt-innocence

phase shows that during a traffic stop, police found four or more but less than

two hundred grams of cocaine in plain view in Appellant’s car, and Appellant

does not contest the sufficiency of this evidence to support his conviction or

punishment. Police also found a green, leafy substance that may have been

marihuana, but the discovery and admission into evidence of this substance

pales to the point of insignificance in comparison to the discovery and

admission of the cocaine. Finally, Appellant testified that he was a cocaine

addict and had used cocaine within the six months before trial.

      In connection with Appellant’s admitted cocaine use, we turn to the

arguments of counsel. The State specifically emphasized Appellant’s cocaine

use while on bond when arguing that Appellant was not a good candidate for

community supervision:

             We get to talking about whether or not he would be a good
      candidate for probation. First example I use on that was from his
      own testimony where he talked about he’s on bond; he’s out. I
      asked him that question, when was the last time you used. He
      said, “About six months ago because I was stressed.”




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            If you put him on probation and that’s the way he deals with
      stress, we’re going to be right back here again. We’re going to be
      doing what you ought to go ahead and do today.

While this argument emphasized the evidence of Appellant’s drug use while

apparently free on bond, it bears repeating that the evidence in question is

Appellant’s own testimony.      The State did not mention the green, leafy

substance in argument.

      Texas courts have held that egregious harm has not been shown by the

omission of a reasonable doubt instruction when the defendant did not

challenge the sufficiency of the evidence connecting him to the extraneous

conduct at trial and/or on appeal. See, e.g., McClenton v. State, 167 S.W.3d

86, 98 (Tex. App.—Waco 2005, no pet.); Bolden v. State, 73 S.W.3d 428,

432 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d); Arnold v. State, 7

S.W.3d 832, 835 (Tex. App.—Eastland 1999, pet. ref’d). Courts have also

found no egregious harm when the evidence connecting the defendant to the

extraneous conduct is clear-cut. See Johnson v. State, 181 S.W.3d 760, 766

(Tex. App.—Waco 2005, pet. ref’d); Allen v. State, 47 S.W.3d 47, 52–53

(Tex. App.—Fort Worth 2001, pet. ref’d).

      With regard to the evidence—Appellant’s own testimony—of his cocaine

use, this case falls into both categories, and we hold that Appellant has failed

to show any harm, let alone egregious harm. With regard to the green, leafy

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substance, in light of the evidence, the argument of counsel, and the jury’s

verdict on punishment, Appellant has shown—at most—a theoretical possibility

of harm, not actual, egregious harm. See Almanza, 686 S.W.2d at 174.3

      We hold that the trial court’s error in failing to submit an article 37.07,

section 3(a) instruction to the jury at punishment was not so egregious and

created such harm that appellant did not have a fair and impartial trial. See id.

at 171.     Therefore, we overrule his sole point and affirm the trial court’s

judgment.




                                           ANNE GARDNER
                                           JUSTICE

PANEL: GARDNER, WALKER, and MCCOY, JJ.

WALKER, J. concurs without opinion.

DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)

DELIVERED: August 29, 2008




      3
      … The harm analysis in Appellant’s brief does not discuss harm arising
from the alleged marihuana possession.

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