                                  NO. 07-97-0489-CR
                                  NO. 07-97-0490-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL E

                                 SEPTEMBER 20, 2004

                         ______________________________


                          RANDY LEE MOORE, APPELLANT

                                            v.

                          THE STATE OF TEXAS, APPELLEE


                       _________________________________

             FROM THE 320TH DISTRICT COURT OF POTTER COUNTY;

          NO. 38,172-D AND 38,173-D; HON. DON EMERSON, PRESIDING

                         _______________________________

Before REAVIS and CAMPBELL, JJ., and BOYD, S.J.1


                ON REMAND FROM COURT OF CRIMINAL APPEALS


      In each of these companion cases, appellant Randy Lee Moore was convicted by

a Potter County jury of attempted capital murder. His punishment was assessed by the jury

in each case at 99 years imprisonment and a $10,000 fine. These convictions and the



      1
      John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.
Tex. Gov’t Code Ann. §75.002(a)(1) (Vernon Supp. 2004-2005).
ensuing sentences were affirmed by this court on March 30, 1999. See Moore v. State,

Nos. 07-97-0489-CR and 07-97-0490-CR, 1999 WL 173563 (Tex. App.–Amarillo March 30,

1999, pet. dism’d) (not designated for publication). Because we had not had the benefit

of the court’s decision in Huizar v. State, 12 S.W.3d 479 (Tex. Crim. App. 2000) at the time

of our decision, the Court of Criminal Appeals remanded the case to us for the purpose of

conducting a harm analysis concerning the omission in the trial court’s punishment charge

of a burden of proof instruction restricting the jury’s consideration of extraneous offenses

to those proven beyond a reasonable doubt. See Moore v. State, Nos. 1038-03 and 1039-

03, 2004 WL 231316 (Tex. Crim. App. January 21, 2004) (not designated for publication).

For the reasons we discuss below, we affirm the judgments of the trial court.


       In its remand, because the omission of the reasonable doubt instruction was not

objected to at trial, the high court instructed us to review the evidence produced at trial to

determine whether the charge error resulted in “egregious harm” to appellant as defined

in the seminal case of Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985). In Hutch

v. State, 922 S.W.2d 166 (Tex. Crim. App. 1996), the court further explicated that errors

that result in egregious harm are “those which affect ‘the very basis of the case,’ deprive

the defendant of a ‘valuable right,’ or ‘vitally affect a defensive theory,’” and it does not

require direct evidence of the harm to establish that it was egregious. Id. at 171.


       In conducting our harm analysis, the Hutch court further instructed that we may

consider four factors: 1) the charge itself, 2) the state of the evidence including contested

issues and the weight of the probative evidence, 3) arguments of counsel, and 4) any other

relevant information revealed by the record of the trial as a whole. Id. Further, in

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conducting our analysis, we must examine: 1) the source of the error, 2) the nature of the

error, 3) whether, and to what extent it was emphasized by the State, 4) its probable

collateral implications, 5) how much weight a juror would probably put upon the error, and

6) whether declaring the error harmless would encourage the State to repeat it with

impunity. Harris v. State, 790 S.W.2d 568, 587-88 (Tex. Crim. App. 1989).


       The question posed by the remand requires us to review the pertinent evidence

produced at trial. The evidence in the case was that early on October 30, 1996, appellant

and others were in the motel room of Katrina Attebury, an admitted former prostitute and

recovering drug addict. Attebury averred that appellant possessed two firearms and

numerous cartridges, which he had said “are for the cops” because he “was wanted.” On

that day, two Amarillo police officers arrived at the motel to arrest, with a warrant, another

individual and, as well, to question appellant about a recent robbery. After being told that

police officers were outside the room, appellant left for the stated purpose of getting a tape

from his car. As the officers approached, appellant was partially within and partially without

a parked car working under the dash with a screwdriver in his hand. When one of the

officers, with a gun in his hand, directed appellant to drop the screwdriver, appellant fled

toward a room in the motel. The officers approached him and attempted to handcuff him.

Appellant resisted, secured a handgun, shot one of the officers in the calf of his leg, and

fled while exchanging shots with the officers. A search of the area was conducted by the

police and they later found appellant, still in possession of the handgun he had used in

shooting at the officer, hiding in the bed of a pickup located about a block from the motel.




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       The testimony about extraneous offenses at the guilt-innocence phase of the trial

came from Katrina Attebury, Janet McKee (appellant’s community supervision officer),

Africa Moore, and Robert Preston. Attebury testified that on the day of the occurrence, up

until about an hour and a half before the shooting incident, she and appellant, among

others, smoked crack cocaine. McKee testified that at the time of the incident, appellant

was under deferred adjudication probation for aggravated robbery with a deadly weapon,

and that a motion to proceed with adjudication on that offense was pending. She also said

that at the time of her testimony, appellant had not actually been convicted of any offense

made the basis of the motion. Moore testified that four days before the events giving rise

to appellant’s trial, appellant shot and kicked in the door of her house and, at gunpoint, took

money from her person. Preston testified that on the day of the occurrence giving rise to

this trial, appellant told Preston that he was in trouble for stealing his parents’ guns. He

also told Preston that he had used a gun in robbing a couple of crack houses and his gun

had “gone off.”


       In our original opinion, we held the admission of Attebury’s testimony about

appellant’s use of crack cocaine on the day in question was error, but no attempt was made

to associate drug use to the offense, and reference to it was minimal. Thus, we concluded,

its admission “was too insignificant for the jurors to give it any meaningful weight or to

disrupt their orderly evaluation of the admissible evidence.” Moore v. State, 1999 WL

173563 at 4. The remainder of the extraneous offense testimony was admissible, we held,

because it was relevant to explain appellant’s motive in attempting “to avoid apprehension

for probation revocation and to avoid questioning about a recent robbery.” Id. at 3.


                                              4
       At the trial court’s punishment hearing, the State’s only testimony was that of the two

officers. Each was asked about his family and the number of years he had served as a

police officer. They were not asked questions about the punishment that should be

assessed, nor were they asked about possible leniency for appellant. In seeking a lenient

sentence and to show that he could be a productive member of society if he was granted

leniency, appellant called three witnesses, Donald Trainer, William Jones, and his mother,

Barbara Moore. All three averred that appellant was entitled to a lenient sentence. Trainer

and Jones were longtime family friends and testified about appellant’s strong church

participation in his youth.


       During the cross-examination of Trainer, the prosecutor asked Trainer if he was

familiar with the fact that appellant committed robberies in 1986 and 1996, as well as

appellant’s drug use. Trainer denied any knowledge of those matters. During Jones’s

cross-examination, Jones admitted he had heard that appellant was on probation for

robbery in 1986, but when asked if he had heard that appellant committed another robbery

in 1996 or that appellant had used firearms in those two occurrences, he replied that he

had not heard that was the case.


       Barbara Moore testified that she was aware that appellant had been placed upon

probation when he was 18 years old. On cross-examination, over objection, she was asked

if she was aware of 1994 probation revocation motions based upon an alleged DWI

conviction, carrying an illegal weapon, and failure to pay probation fees. She denied any

such knowledge. She also denied that she was aware of a 1996 probation revocation

motion based upon an alleged failure to pay probation fees and to report a change of

                                              5
address. However, she averred appellant had almost completed the ten-year probation

term without incident when he had a relationship break-up, which caused him depression.


       In its argument at the punishment hearing, the State argued that the officers were

family men serving the public who nearly met death during the incident because appellant

was seeking to avoid arrest for robbing a crack house and violating his probationary

conditions. The prosecutor also argued the severity of shooting peace officers, and

referenced appellant’s commission of an armed robbery while he was on probation for an

earlier aggravated robbery.


       Reiterated, our task is limited to a determination of whether appellant suffered

egregious harm from the omission of the reasonable doubt instruction in the punishment

hearing charge. In that connection, we note that the testimony about the two most serious

extraneous offenses, namely the aggravated robbery offenses, was uncontroverted either

by cross-examination or through the tender of direct evidence to the contrary. That

testimony was received during the guilt-innocence phase of the trial, at the conclusion of

which the jury was given a general “beyond a reasonable doubt” charge. Moreover, the

events giving rise to the prosecution were serious. The evidence showed that appellant

shot and wounded one of the witnesses and, in the process of attempting his escape, he

fired other shots.


       Beyond the extraneous offense testimony received during the guilt-innocence phase,

the State introduced very little specific evidence during the punishment hearing. The only

references to other bad acts occurred during the State’s cross-examinations of appellant’s


                                            6
witnesses.   Those were inferences that appellant had driven while intoxicated, had

unlawfully carried a weapon and failed to report to his probation officer. The gist of the

State’s argument was that appellant should not be treated lightly because of the

seriousness of the offense and his demonstrated lack of ability to conform to proper

conduct.


       In sum, under this record, the failure to give the reasonable doubt instruction at the

punishment hearing was not sufficient to affect the very basis of the case, to deprive

appellant of a valuable right, or to vitally affect a defensive theory. That being so, appellant

did not suffer egregious harm by the failure to give the extraneous offense reasonable

doubt instruction. Accordingly, no reversible error is shown and the judgments of the trial

court are affirmed.



                                                   John T. Boyd
                                                   Senior Justice

Do not publish.




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