                      (Z 1'tS
              NO. (o,q-)a-o\M\3-^R

                      IN    THE                                 ORIGINAL
       COURT     OF   CRIMINAL          APPEALS

       OF     TEXAS   AT    AUSTIN,       TEXAS



       ERIK     JACKSON      -    PETITIONER

       vs .
                                                                           FILED IN
                                                                COURT OF CRIMINAL APPEALS
      -STATE     OF   TEXAS       -    APPELLEE

                                                                          mar 27 z::3
PETITION        FOR   DISCRETIONARY             REUIEU
                                                                      Abel Acosta, Clerk

FROM    THE     5th   COURT       OF    APPEALS     AT

DALLAS,        TEXAS.
ON    APPEAL     FROM      CRIMINAL       DISTRICT

COURT NO.        1,   OF    DALLAS COUNTY,           TX
IN    CAUSE     NO.   F11-63319-H




                                                               RECEIVED IN
                                                          COURT OF CRIMINAL APPEALS
                                                                    MAR 26 2015

                                                                Abel Acosta, Clerk

                                         Erik     Jackson       -   Pro   se

                                         TDC3.     NO.    1B16262

                                         Ferguson        Unit
                                         1212 0    Savage       Dr.

                                         Midway,     Tx.    75852



 NO    ORAL     ARGUMENT         REQUESTED


                           (*)
                                           Jackson   vs    State


Contents ;


Cover    Page      •                                                       •              -pg.     *

Contents' -Page--• •                                                                           P g •i

Parties       Page                                                                            pg.ii

Oral    Argument        Page' ---•                                                     r-- pg.iii

Authorities Page                                                                              pg.iv

Case    History        Page                                                                    P9^v

Statement of facts Page- -:                                                                   pg.vi


Issue;. ONE                                                                                   pg.01
Did the       Fifth Court of             Appeals err by      finding   that the petitioner
uas    not    entitled        to   a    lesser   included    instruction   on    Theft    ?

Issue;       TWO                                                                              pg.OB
Did the Fifth Court of                   Appeals err by finding that the petitioner
uas    not entitled to             an    accomplice- witness       instruction     ?


Appendix;

Motion to waive duplicate copies of                        PDR.    » Exhibit (a)


Prayer       for   Relief      &   Cert,    of   Service                                   pg . v n




                                                     (i)
                           Jackson       vs       State


Parties;


Petitioners                  Erik Jackson / pro sle / TDC .181 6262
                             Ferguson             Unit       - 12120            Savage Dr.

                             Midway,          Tx.    75852


Trial    Counsel             Robert         C-.    Hunger          - Bar            #    240 0 6 923
                             P0.    Box       670959          -    Dallas,               Tx.       75367


                             John     Q;.     Gal van         -    Bar      #       2 4 010 044
                             14001       Dallas          Pkwy.          Ste . -1200
                             Dallas,          Tx.    75240



Appeal    Counsel            Catherine-.C .              Bernhard               -       Bar    #    02216575

                            ,P0.    Box       2BT7       -    Red       A-o-k,          Tx.    75154


State    trial   Counsel     Jason       Fine -Bar                 #    24055477

                             Dallas         Cnty.        Dist/.         Att..           Office
                             133    N.      Riverfront                 Blvd.            Lb.    19



                             Leah     Thomson            -    Bar       #   24036177

                             Address          -    Same       as       above




Presiding    Judge           Honorable             Rober-t         Burns

                             Crim..      Dist.       Ct.          - Dallas               Cnty,       Tx.




                                      (ii)
                              Jackson   vs   State


Oral   Argument;


NO   ORAL   ARGUMENT   REQUESTED.




                                        (iii)
                                         Jackson         vs   State


Authorities;


Almanza v State,           686 sw 2d 157 (T.C.A. 19B5)                                            pg.06, .,10
Arline v State.        721       sw 2d 3--51- (T.C.A. T9B6)                                            pg.10
Barris v State-, 2B3 sw                 3d    34B (T.C.A.         2009)                                pg.10
Bignall v State,           899 sw ,2d 2B2 (Tx.                  App.    Hous .-1 4.1 995               pg.01
Bignall v State,           887 sw 2d 21              (T.C.A. 1994)                                    pg.02
Campbell v State,           571     su 2d 161            (T .C .;A. T 978)                            pg.06
Casanova v State,. 383 sw 3d 530 (T.C.A.                               2012)                          pg.11
Freeman v State,           3,52 sw 3d 77 (Tx.                 App.     Hous .1 4. 2D1 1 )             pg.09
Freeman v State,           359 sw        3d 646 (T.C.A.              2012)                            pg.09
Goff v State,       931     sw     2d    537 (T.C.A. 1996)                                            pg.09
Griffen v State,           614 sw        2d 155 (T.C.A. 1981)                                         pg.06
Guzman   v State-, 18-8 sw 3d 185                    (T.C.A.      2006)           •                   pg.01
Hall v State,       225- sw 3d           524 (T.C.A.            2D07)                                  pg.03
Hampton v State,           109 sw        3d 4-37 (T.C.A.             2003)                            pg.01
Hooper v -State,       214 sw 3d 9                 (T.C.A.      2007)                                 pg.01
Jackson v State, -160 sw 3d                       56B (T.C.A.        3005)              .    ,.        pg.02
Masterson       v State,     155        sw    3d .167 (T.C.A.           2005)                          pg.07
Makeig v State, -802 sw 2d 59 (T.C.A. 1990)                                                            pg.02
Ngo   v State,     175 sw 3d 738 (T.C.A.                      2005)                     ••            pg.10
Oursbourn       v State,     259        sw    3d 159      (T.C.A.       2008)                         pg.09
Ovalle v State,        13 sw        3d       774 (T. C. A.       2000)                                 pg.06
Parr v State,       658 sw         2d. 620 (T.C.A.              1983)                                 pg.06
Rousseau v State,           855 sw           2d   666    (T.C.A. 1992)                                pg.01
Saunders    v    State,: 840        s-w 2d         390   (T.C.A.       1992)                          pg.01
Saunders    v    State,     91 3    sw       2d    564   (T.C.A.       1995)    ---.-                  pg.07
Saunders    v    State-,    817     sw       2d    68B   (T.C.A.       1991)                           pg.10
Sharp v State,        707 sw 2d 611                 (T.C.A. 1986)                                      pg.04
Smith v State-,       332 sw        3d 425          (T.C.A.      20.11)                                pg.OB
Solisv State,         792 sw        2d       95    (T.C.A.      1990)                                  pg^09
Travino v State,           100 sw        3d 232 (T.C.A.              2003)                             pg.06
Zamora v State,        411       sw 3d        504 (T.C.A.         2013)               -                pg.OB

                                                         (iv)
                                    Jackson    vs   State



Case    History;

The    petitioner,        Erik    Jackson,    was   tried   and   convicted       on

for the       offenseof Aggravated            Robbery     and   sentenced    to    FIFTEEN

years in the Texas State Penitentiary.                      The petitioner filed a

timely notice of Appeal.               The    petitioner's PDR.       was formerly due

oin   1/31/201-5.         The petitioner requested an extension of time to

file    his      PDR.   which    was-granted.       The   petitioner's      PDR.       is   now

due    on   or    before;   3/31/2015.




                                              (v)
                                          Jackson    vs      State


                                         Statement      of    Facts



       The    5th    Court    of    Appeals    opinion        includes       several        renditions

of the facts.           Some       of which    include        testimony          of   the    petitioner,

Erik Jackson;          his    friend      Demone    Butler,       and      the    "alleged"         victim,

Ramiro Adame.           However,         each witness's testimony contradicts the

others.        The    Court's       opinion    also contains            "hearsay"           statements

that were allegedly made by                   the petitioner's girlfriend,                         Monique

Adley,       who incidently did not testify at the petitioner's trial.

The    petitioner adopts his appellate counsel's statement of facts

in    pertinent       part    as    follows.


       On    the    night    of    December    23-rd.     2011,      the    petitioner         engaged

in    a conspiracy to             solicit for prostitution.                  Petitioner Jackson

staged       Monique    in a Club         parking    lot      and. drove         around      the    corner

to    wait for       Monique       to   call him to       pick her up            upon completion.

Somehow the          pick up       point became      confused and the                 petitioner was

unable to locate Monique.                   When he finally found .Monique she was

walking near some warehouses.                      She. had an Iphone , Credit Cards,

and    approx.       a Hundred Dollars in Cash that she didn't have when

the    petitioner had dropped               her    off earlier.




                                                   (vi)
                                               Jackson          vs    State


Issue;       ONE

Did the       Fifth          Court of Appeals err by                          finding that the petitioner
was    not    entitled             to    a    lesser       included--instruct ion                      on    Theft      ?



       Standard          of review;

       An accused is                'entitled to an                   instruction'               on    every defensive

issue raise.d            by    the evidence;- regardless                             of    whether          such evidence

is    strong.,      weak,          unimpeacheo             or    otherwise.                See;       Saunders v State

B40 sw       2d    390,       391       (T.C.A. 1992).                   In    order to           determine          whether

an    accused       is       entitled          to    a-lesser          included            offense          instruction            a


reviewing court applies                         the traditional two                        part       "Rousseau"            test.

See;    Rousseau v State,                      85 5 sw 2d 666,                6 73    (T.C.A.. 1992).                   First,

the lesser offense must be                            included within the                        proof necessary                  to

establish          the       'greater'          offense.              See;     Bignall           v State,       BB7         sw    2d

21,    23 (T.C.A. 19 94).                       Secondly,             some evidence must exist within

the record which would                         permit       a re a sonable                juror to          conclude         that

if the       accused          is    guilty--          he    is       guilty      only       of    a lesser        offense.

See;    Guzman v State,                      188 sw       3d 18 5,. 187 (T..C.A.                  2006).          If        there

is    more    than       a    "scintilla"             of    evidence           that        raises       the-issue            of    a


lesser       included          offense- a            c-h ar-ge; ri-n str-uct ion            mus ib :•: be ,.g iven ..        See;

Hampton       v State,             109 sw .3d 437,               441     ( T .C .A . 200 3) .

       Summery       of       Argument;

       In    the    instant case,                   the    Honorable           Fifth        Court       of    Appeals            has

applied an          erroneous: analysis by                           !?r;e.'^:w:eig;hiTrg-^t'h'e-;evd-dence-"- which

conflicts          with       a ~G o u-r-tv o f -.; C r im in al- -App e a 1 s . . p rlo r •• d eci s i • n i\ i < S e e ;

Hooper v State,                214 sw 3d 9, 12                   (T.C.A.         2007).

                                                                (1)
                                   Jackson       vs    State


       Arguments       &    Authorities;

       The    petitioner       argues that the          Court of Criminal                  Appeals    have

previously          determined    that Theft can be                a lesser         included offense

of Robbery and/or Aggravated Robbery.                          See;       Bignall vs State,            887

sw 2d 21,          25 (T.C.A. 1994).        The       statutory elements of Aggravated

Robbery include the commission of Robbery.                                Likewise the elements

of   Robbery        include the    commission          of Theft:..            See;    Tx.    Penal    Code

§29.02 (Robbery);             §29.03 (Agg.       Robbery);          §31.03 (Theft).

       A    trial    court's    decision    on    whether          or   not    to    submit    a    lesser


included          offense   instruction     is    reviewed          for   abuse       of    discretion.


See;       Jackson vs State,       160 sw 3d 568,             575 (T.C.A.            2005).        A trial

court       "abuses    it's    discretion"       when       it's    decision         is    arbitrary    or

unreasonable          or without reference             to    guiding       rules      or    principles.

See;       Makeig v State,       802 sw 2d 59,          61 (T.C.A. 1990)'.                  In the    case

at   bar,     the Court of       Appeals basically             condoned the               trial court's

decision to deny the             jury an- opportunity to weigh the                          credibility

of   the witnesses testimony           as    well       as    the circumstantial evidence

and any reasonable inferences thereof.                             A person commits Theft if

he   or     she    unlawfully appropriates property with                        the       intentions of

depriving the rightful owner of said property.                                  The appropriation

of property is an unlawful act if said property is stolen and                                          the

actor appropriates the             property       "knowing" that it was "stolen" by

another.           See; Tx. Penal Code §31.03 (a) & §31.03 (b).

                                                  (2)
                                             Jackson          vs    State


       In the      instant case,                 the    Court       of    Appeals    declared       that   there

was    not   so    much      as    a   "scintilla"             of       testimonial    or    circumstantial


evidence,         nor   even       the      possibility             that    a single       juror might      have

drawn    a reasonable              inference from                  the    same that    if    the petitioner

is guilty,         he   is    guilty         only of the                lesser charge       of Theft.       See;

Hall v State,           225 sw         3d 524,          536    ( T .C .A, •20:07 ) .       Indeed, the Court

of    Appeals      stated         in   no    uncertain             terms;    " There-is <.NO ;<£uT'D:ENCE in

the    record      showing that              Jackson          'knew'       the   IPhone     was    stolen...".

See;    CO A.     Op in.     pg. 7.          The       Court       of    Appeals    further       stated that;

"[t] tie re was no way for him                         [petitioner]          to 'know'       the    IPhone was

stolen".          See ; C0A . Opin . pg .8 .


       The petitioner              "whole heartedrly"                    disagrees, with the 5th Court

of    Appeals      findings for              "several"             reasons.        First,', the petitioner

argues that the Court of Appeals utilized an "erroneous" standard

of analysis.            The       Court of Criminal Appeals stated that the Court

of Appeals S'hould not determine whether an inference is or is not

reasonable         based      on the         combined/cumulative                   force    of the    evidence

when viewed in the light most favorable to the conviction.                                                  See;

Hooper v State,              214 sw         3d    9, 12 (T.C.A.             2007).     In this case,         the

Court of Appeals clearly re-weighed the testimonys and                                              decided to

desregard that of Demone Butler who's testimonial,evidence surely

exceeds the ••" scintilla" necessary to                                  warrant,a Theft instruction.

See; Hampton v State, 109 sw 3d 437, 441                                     (T.C.A. 2003).

                                                              (3)
                                           Jackson     vs    State


       On   review     of    Demone       Butler's     version       of    the    events    the    jurors

were provided the choice to believe                          all,    part or none of             Butler's

testimony.        The petitioner argues- that Butler's version is                                  not so

incredible       under       such       circumstances        that    it    would    be    unreasonable

far a rational jury to have believed that Jackson knew the                                         IPhone

was    stolen.       It     is   the     jurors perogative to              believe       all,    part,   or

none of any witness's testimony.                            See-;   Sharp vs State,             707 sw 2d

611,    614 (T.C.A. 19B6).                 Mr.   Butler's       testimony supports numerous

reasonable       inferences             that   could   have     been      drawn    regarding       Theft,

rather than Aggravated Robbery, had the instruction on Theft been

given as requested.                 Butler testified that himself and petitioner

and the petitioner's girlfriend,                       Monique. Adley,,           had planned to go

to a Club called Cowboys Red River.                           They arrived too             late to get

in.     Butler testified that after being turned away from the Club,

The- petitioner said; Okay,                    "let's go make some money...".                      Butler

testified       that he          took    that to   mean that the -petitioner was                    going

to send his girlfriend;                   Monique,     out "Hustling" since that's what

she usually did.                 See;RR.Vol.2-pg.21 5.               Butler testified that he

and the petitioner drove Monique to a nearby Club and dropped her

off in the Club parking lot.                       Shortly thereafter, Monique texted

the petitioner and advised him that she had been I'.p ieked.tup IV/by a

guy in a silver Nissan,.                   Butler, testified that M'onique\:h:adt,Gre dit

Cards and t-ti e SERhd-o e-i!5 hua he in •&:* heape 111 mera eead nti d: fo ims'elf dpai ek ed pher

up.     See-;   COA.      Opin.     pg.3.

                                                       (M
                                        Jackson       vs    State


      The    evidence     of    the   petitioner's              criminal       intent       to   engage        in

a conspiracy        to   "aid    or   assist"        in    the    commission         of     prostitution

was   clearly      raised      through, the •testimony                 of Butler       in    the    instant

case.       The   fact   that    Monique-'s         original       intent       to   commit        one    type

of criminal offense (prostitution);                         resulted in the commission of

a   collateral      Theft makes         no    difference          at    all.     The      petitioner           is

just as guilty of stealing the Credit Cards and IPhone as Monique

under the law         of parties-.           See;    Tx.    Pen.       Code §7.02.           A person is

criminally responsible for the offense committed by another where

acting with intent to              promote the commission of                     an offense;.;           he    or

she solicits,         encourages,        directs or             aids the other person                innithe

commission of that offense. .-                 See;       Tx.    Pen.    Code §7.02 (a)(2).                    In

the instant case,           the' jurors could have quite reasonably inferred

that the petitioner knew the IPhone was stolen simply because his

girlfriend returned with it under these particular circumstances.

Further      still.      Officer      Dillon    testified          that    the       petitioner          was    a

YIN Nation gang member according to his                            "facebook" page.                 The YTN

Nation gang was known for engaging in property offenses according

to OffiierrDi)llonnwh.ba.is3th;B-esup-.eEvisarxof the- gang, unit division

of the Dallas Police Department.                          See;    RR.UQ-13-3-pg.T39,, 143,                148.

If this is not enough upon which the                            jurors could have reasonably

inferred that the petitioner knew the IPhone was stolen, consider

the fact that when the                petitioner realized that the officers were

going to stop him, he grabbed the IPhone from Monique and gave it
to Butler to hide- in the               bear, armrest.             See;    RR .Vol .2-pg .227-28 .

                                                    (5)
                                             Jackson       vs    State


       The    Court of Criminal                   Appeals       decided long             ago    that Theft       can

be    a lesser          included       offense- of         Robbery          under       some    circumstances.

See;    Campbell « State,                   571    sw   2d 161     (T.C.A.            1978);     Parr v State,

65B sw       2d 620,          626 (T.C.A. 19B3);                Griffen vs State.                614 sw 2d 155

159 (T.C.A. 1981).                    The petitioner contends that he has satisfied

the first prong of the Rousseau test by                                     showing- that         "Theft^ is a

lesser included offense of Robbery/Aggravated Robbery .                                                  Further,

the    petitioner             contends       that he- has         satisfied             the    second    prong    of

the Rousseau test by                   showing that the- record supports more- than                                a

" scintilla"            of    evidence;       albeit       possibly             circumstantial,          which    is

all    it    takes       to    warrant       an    inclusion       of       a    lesser       included    offense


instruction             on    Theft.        See;    Rousseau,          Supra.

       Harm       &    Prejudice;

       The    trial court's refusal to give the lesser included offense

instruction             on    Theft    caused       SOMB.HARM          to       the    defendant.        Pursuant


to    Almanza          v State,       686 sw       2d 157,       171    (T.C.A. 1984),. when               a jury

charge contains error,                      and that error has been ..properly preserved

by an objection,                or requested ins traction;                        a reversal is required

if the error is                "calculated to injure the rights"                               of a defendant;

meaning, there must be •" Some Harm":.. ':                             See; TEX. CC'Riifi Ar t. §36.19;

Travino       v       State,    100    sw    3d    232,    242    (T.C.A.             2003);    Almanza    @ 171.

The degree of harm must be considered in light of the entire jury

charge,       state of the evidence,                      including contested issues and the

weight of probative evidence ;aBiidg-umg-ntsn of o-fiuiisB-G] jr-eand any other

relevant info.rm-a-S'e-eijv.. Ov-Sile vvSfcatev fr-3a-sia,. 3d3734 :(iiD .C .A. 2000 ):

                                                          C6)
                                           Jackson       vs    State


       Harm       exists          where    the    penalty       imposed          for    the    charged       offense

"exceed"          the    "potential             penalty"       for    the    lesser included             offense.

See;       Bignall vs State,                899 sw 2d 282,             284 (Tx.          App.    Houston,       14th

Dist. 1995,             no   pet).         Harm also exists when the failure to submit

a lesser          included          offense       instruction          leaves          the    jury    with    a sole

option       of either convicting                      the    defendant of the                greater offense,

or    "acquitting"                him    altogether          even- though         he    is    obviously       guilty

of a lesser- offense.                       See;       Saunders       vs    State,       913 sw 2d 564.             571

(T.C.A.          1995) .

       In    the instant case,                   the    "actuallvalue••" of              the    IPhone was          not

conclusively             established.                  Theft of       property valued at                less than

$1,500.oo is a misdemeanor .                            The petitioner was given (T5) years;

which       is    significantly more than it                         would have          been had the trial

court       included         the Theft instruction                    requested.               TherB«uaere      "No"

intervening lesser included offensesdthat the- jury rejected which

would       allowuithe            court    to    conclude       that       the    jurors       were    not    put    on

the i'lhoions of             a delemma"          ofi whether to            convict of          the only option

available or acquit him altogether.                                   See;       Masterson vs State,                155

sw    3d    167,    172       (T.C.A.       2005);       Beck       v Alabama,          447    US.    625,    634-36

(1980).            The       failure       to    provide       a lesser included                instruction on

Theft caused             "Some Harm"             under Almanza,             thus requiring a reversal

and    remand       for       a    new    trial.

                                                              (7)
                                          Jackson       vs    State


Issue;       TWO

Did    the    Fifth       Court      of    Appeals        err     by    finding        that      the       petitioner

was    not entitleddto               an    accomplice witness                   instruction            ?


       Standard          of review;

       W he;oe t teh e e e w-id e n-e-es--s;h oias'tt-h' a t a a uiwi-ib-n e s s ii s a a n aa c com jb.-l.i e e-i!) a s s a

matter       of 1 aw ,th-frstr.iallcourt tmamttine.tr.iaottt.'ra-es juj.ry-.sp-acee-D.ddJrag|$|r-!3

A   witness        who    is    indicted         for    the     {Isame-V      of fense -, oitix esenaaaiesseci

included offense as                  the     defendantsisnancaooprnplicesas                            aamatterfof

law;        See; Smith v State-, 332 sw 3d 425, 439 (T.C.A. 2011).

       Summery of           Argument;

       In    the Instant case,                 the Honorable - Fifth                  Court of Appeals                has

erred in finding that the trialkcourt had i'lnoiBduipiytUvtpajiiirdi^'id.e an

accomplices-witness instruction sua sponte;                                         See;     Zamora vs State,

411    sw    3d 504,        510     (T.C.A.        2013)(Id.           @ 513).

       Aurgument & Authorities;

       When Dem one            B utl ex t e s t i f1 ed ;f:ifim,±:W&&$!fe8-&\&B h'titrns n-lii-aiea^^'ElDe

was    under indictment for the                        "same "• aggravated robbery which Erik

Johnson was charged with..                         Se-e ; RR .Vol .2-p:g .20 3^0 4We;Me*fc^e;iL-ess-3s .

no accomplice witness instruction was either requested by defense
nor provided sua sponte by the trial court.                                           fli-he spstltibneiugf inds

it somewhat premature to argue ineffective -assistance: of counsel;

but inst-edd aa-5.g:ues,t-th.attthe;t:txial-.ccoatt:h;hadaa-BE-o:n.-§tlibiii±ioh-al #d ill t;y.

to pi no liii d-e- the ace d mp i i c e'.nwi tne &s-a instruc tl o n Asees-ap o mt e '.' .                           See;

Zamora,        supra.       © 513.
                                                               (B)
                                     Jackson          vs    State


       If a prosecution witness                   is       an    accomplice              as    a matter          of   law a

the    trial court has a duty to instruct the- jury that a conviction

cannot be had based on the                      testimony of that witness unless it                                     is

"corroborated by other evidence- tending to connect the defendant"

with the charged offense;                       See;       Blake v State,                 871       sw 2d 451,         452

(T.C.A. 1998).           A witness that has been indicted for the same, or

lesser included offense such as Demone Butler is an accomplice as

a matter    of    law.     See;       Goff       v State,             931    sw 2d        537       (T.C.A.       1996).

The    accomplice- witness instruction is part of the                                           "law applicable

to. the case",       thus the trial court is "obligated" to instruct the

jurorsasua sponta.              Failure          to    do       so    is    error,        regardless whether

the    defense requests the-instruction .                                  See-;    Soils       v State,          792 sw

2d    9 5,98 (T.C.A.19 90).

       In the- instant case,               it    appears             the    trial court's                 decision      to

withhold the       instruction was                based on             Mr.     Butler's             testimony         that

he    took no    part in       the    alleged robbery.                       See;        RR.Uol.3-pg .98 .              It

is    logical    that    since       Butler       was       indicted           for       the    same       offense      as

the    petitioner,       there       was    a motive             to    "lie"        in order to shift the

blame,    and    avoid    punishment.                  A    failure          to.include              an    accomplice

witness    instruction          was    error,          especially              considering                such    charge

is    "implicitly required             by       statute any time                   the    accomplice             witness

issue    is .raised by         the    evidence":;                    See;    Freeman           vs    State-,      352. sw

3d 77,    82 (Tx..      App.    2011       pet.       ref'd-)(359 sw 3d 646 (T.C.A-. 2012),

citing;    Oursbourn vs State,                   259       sw 3d 159, 1 BO (T.C.A.                         200B).

                                                           (9)
                                     Jackson             vs    State


       Harm & -Prejudice;

       Having    demonstrated             that       the       jury    charge          was    deficient       due   to

the    trial    court's       failure          to    sua       sponte      submit        accomplice          witness

instructions,          the    next step             is    to    address          the    "harm sustained"            by

the•• petitioner        due    to    the       trial          court's      error.            See;    Ngo    vs- State

175 su 3d 7 38,         743 (T.C.A.             2 005);          Barris vs State,                   2B3 sw 3d 348

350 (T.C.A.       2009),;      Almanza vs State,                      6 86 sw 2d 157 (T.C.A. 1985).

In    the instant case,             the    defenseudid not challenge                            or    request the

accomplice       "as    a matter          of    law"          instruction.              Nor    did    he    "object"

to    it's    omission.        When       charge          error       is   not preserved              a defendant

must show, egregious harm.                      See;          Arline v -State v 721                 sw 2d 351 ,35 3

(T.C.A.       T9B6)(Id.       @ 351-52).                 The- "actual degree- of -harm"                      must   be

evaluated in light of the entire charge;                                     state of evidence,                which

include contested iss.ue-s,                    weight- of         probative evidence,                      arguments

of counsel and any             other relevant information revealed by record.

See;       Almanza § 171;       & Tx.          CCP       Art.    §36.19.

       The    failure    to    receive          a    fair       trial       is    shown       where-a       rational

juror could have found the -State-' s case "less persuasive" if they

had    been    told    that    the    accomplice's                testimony may                not    be accepted

for    a    basis -cf conviction               without          some       corroborating             testimony      or

evidence.       -See; Saunders v State . 81 7 sw 2d 688-93 (T. C .A.11)991 ).

In assessing harm the reviewing court must look to the "strength"

of    the    corroborating          evidence.


                                                          (10)
                                  Jackson          vs    State


       When the evidence is             exceedingly weak as                      in    the instant case,

egregious harm is shown.                  See;          Casanova vs •State-.,. 383 sw                 3d 530,

533 (T.C.A.         2012)(Id.     @ 539).               The alleged victim testified that

he    was    "unable to       identify"       his       attackers.             See ; RR.Uol .2-pg.TB9 .

The    petitioner's          connection       to    the       offense comes              largely from his

possession       of    the    stolem    IPhone.           Butlerrtestified;                   Monique; Adley

had    the   IPhone     when    she    returned          to    the    vehicle          with    Mr.   Jackson.


See;    COiA.   Opin.    pg.3.         Demone- Butler was                  the    "only witness"            that

even    "remotely"       implicatedda          possibility                of   Jackson's          presence    at

the    scene of the crime.              However,          even       at    that       rate,    one   can    only

speculate-,      since- Butler testified that he "did not see where"- the

petitioner went when he                exited the vehicle.                       See-;    CO A.    Opin    pg.3.

In    sum,   without Butler's           "circumstantial evidence"                          testimony,        the

State]s      case     against    Jackson       would          have    been       "significantly            less"

persuasive.           The weakness of the State's case was quite apparent.

The petitioner was given a Fifteen year sentence for a crime that

carries      5-99 to     Life.        It is    clear          that    the jurors were- "looking"

for a lesser included offense option.                                 The trial Court's failure

to    sua sponte instruct the jury that Butler's. testimony needed to

be corroborated egregiously harmed                            Jackson,         requiring          a reversal.




                                                    (11 )
Jackson   vs   State




    APPENDIX
                                           Jackson       vs    State


Grayer       for    relief;

Wherefore , premises                considered;         there.jbeing reversible errorfs]

in the trial of this- case,                  the:petitioner prays this Court will

reverse       this       judgment and remand for                a new trial,       or   any relief

this court finds fitting                   and proper          under the circumstances.be

granted.

                                                  Signature;          Erik    Jackson

                                                  Signature; (JZ! \h ^A^SoO

Certificate          of    Service;

I,    E-RIK-^l-A-EKSON,        do   hereby   certify          that    the    above is   true   and

correct.           The    aforegoing       petition       for       discretionary, review       is

being placed in the US,, prison mail box on yAcxCCVx SD-\                                       , 2015
and    is    addressed         to   the   Court    of    Criminal       Appeals    at   Austin;

12 30B Capital Station, Austin, Tx. >1^J\ \


                                                  Signature;          Erik    Jackson

                                                  signature; /)g,V\ Oft2)4ft7A
                                                  TDCJ.       No.     1B16 262



Ferguson       Unit

12120       Savage       Dr.
Midway,       Tx.    75B52




                                                    (vii)
                                   Jackson       vs    State

Ex parte                                         §             In the- 1st.     judicial
Erik Jackson                                     §             district    court of
                                                 §             Dallas,County,       Tx.
                                                 §
                          Motion    to    waive       copies   of the
                     Petition       for    Discretionary         Review



Comes   Now,   Erik Jackson,       pro    se-,   petitioner,      in    the above styled
and numdered     cause,    and   requests        this    Honorable      Court   "WAIUE"     any

additional copies of this Petition for Discretionary Review,                               and
would   show the   following       in    support thereof;

                                                 I.

The' petitioner is unable to access a copy machine on this unit
for the purpose of copying personal legal work.




                                                     Signature   ; cW ^ACKSon
                                                                  Erik    Jackson




                                                                          Exhibit    (a)
AFFIRMED; Opinion Filed December 31, 2014.




                                             In The

                               Court of Appeals
                        Mttii district of (teas at Ballas
                                      No. 05-12-01413-CR


                            ERIK JAMAL JACKSON, Appellant
                                                V.
                              THE STATE OF TEXAS, Appellee

                      On Appeal from the Criminal District Court No. 1
                                   Dallas County, Texas
                             Trial Court Cause No. F-1163319-H


                             MEMORANDUM OPINION
                       Before Justices FitzGerald, Fillmore, and Stoddart
                                   Opinion by Justice Stoddart
       A jury convicted Erik Jamal Jackson of aggravated robbery and sentenced him to 15

years' confinement. In two issues, Jackson argues the trial court erred by failing to instruct the

jury on the lesser-included offense of theft and by failing to instruct the jury on the accomplice

witness rule. We affirm the trial court's judgment.

       The State alleged Jackson intentionally and knowingly, while in the course of committing

theft of property and with the intent to obtain or maintain control of the property, threatened and

placed the victim in fear of imminent bodily injury and death, and Jackson used and exhibited a

firearm. At trial, the victim of the crime was the State's first witness. Ramiro Adame testified

that on December 23, 2011, he left a bar about 1:00 a.m. He saw a "girl" in the parking lot and,

because it was cold outside, Adame asked the girl if he could help her. The girl told Adame she

was waiting for a friend, but accepted Adame's offer to wait in his car until herfriend arrived.
       Adame testified that once the girl was in the car, she was texting with someone on her

phone. Adame stated "she kept saying that she had a friend coming by or close by, and he's

going to pick me up." After about 10 minutes, her friend still had not arrived. The girl asked

Adame for money. When he said he was not going to give money to her, she offered to have sex

with Adame for money; he declined this offer.

       A gas station was down the street from the bar. Adame wanted to go to the gas station

and get something to drink and the girl rode in the car with him.        During this time, the girl

continued texting on her phone.

       When they returned to the car after going into the gas station, Adame offered to take the

girl back to the bar. Instead, as they drove back, she instructed him to turn on to a side street and

said her friends would pick her up there.      At some point, the girl told Adame to park. He

described the area where he parked: "There's a small convenience store, kind of like a gas

station, and there's a warehouse there and there's a parking lot. Eventually there's a lot, a

parking lot, so she told me to park right behind there or right just kind of like behind the gas

station at the warehouse, and I parked right there where she told me to." No other cars were in

the parking lot.

        As soon as Adame parked, someone opened his car door. Adame testified: "So they pull

me out and say get out of the car. I kind of tried to turn around, and I didn't have a chance

because they told me to don't [sic] look at them, and they had a gun pointed at me, so they told

me to don't [sic] look at them so I just followed their directions." Adame thought there was

more than one attacker. The people who took him out of his car, took everything he had in his

pockets, including his wallet and iPhone. They also took some items from the car.
       Adame testified the girl was not robbed and did not seem scared; she left with the people

who robbed him.     Adame stated he did not see his attackers well and would not be able to


identify them.

       Demone Butler testified as the State's second witness. He was charged with aggravated

robbery along with Jackson and Monique Adley, the "girl" who was in the car with Adame.

Adley was Jackson's girlfriend.     Butler testified he attempted to go to a club with Jackson,

Adley, Jackson's brother, and some other people on December 23, 2011, but they were not

admitted because they were underage. Butler and Jackson's brother each had a gun.

       Butler testified that after they were turned away from the club, Jackson said "he's about

to go make some money." Butler believed this meant Jackson planned to have Adley prostitute

herself. They left the club and Jackson drove his car (carrying Butler and Adley) to a parking lot

where they dropped off Adley.

       Butler testified he and Jackson drove away after dropping off Adley and went to a vacant

"road next to some office buildings." Jackson said the location was where they would pick up

Adley. When they parked near the office buildings, a car carrying Jackson's brother and his

friends parked alongside them. Jackson, his brother, and his brother's friends all got out of their

cars. Butler testified that when Jackson was exiting the car, he asked Butler for Butler's gun.

Butler refused to give it to him.

        Butler stayed in Jackson's car and the other men retreated into the darkness. He did not

see where they went or what happened, he did not see a robbery occur, he did not see whether

anyone had a gun. After a couple of minutes, the men and Adley returned to the cars and the

cars drove away. When Jackson and Adley got back into the car, Adley was "going through

some card's," credit cards. They also had an iPhone with them. No one talked about what
happened.


                                               -3-
       Jackson drove to a restaurant and then a gas station.       Butler testified that at the gas

station, a "cop car started pulling up, and one of the cops gets out, and he was like we tracked her

right here or whatever and I think he's like that. And then [Jackson] grabbed the phone from her,

and he hands it to me and he told me to put it up." Butler testified he put the phone in the

armrest in the back seat. The police arrested Jackson, Butler, and Adley.

       Officer Donald Ritchie was a Dallas police officer on December 23, 2011. On that night,

he received a call at 2:28 a.m. about a robbery. He met Adame at a gas station. Adame told

Ritchie he had been robbed by several black males and a black female; they took his money,

wallet, phone, and property. When Ritchie learned Adame's phone was an iPhone, Ritchie used

his own iPhone to track it. Ritchie was "able to see that the phone was, still active and moving at

that time." Ritchie began driving and following the iPhone; he followed the iPhone to a gas

station. The iPhone signal was stationary at the gas station for a while. When the signal moved

again, Richie was able to determine which car the phone was in. Ritchie relayed the vehicle's

information to another officer who stopped the car. The officer found the iPhone, several other

cell phones, a gun, a Halloween mask, and cash in the car. He did not find a wallet or credit

cards. Jackson, Butler, and Adley were in the car. The iPhone was located in the backseat of the

car where Butler had been sitting.

       Jackson testified in his defense. Jackson stated he and Adley went to a club that was in

close proximity to the club where Adame met Adley. Butler was with them. Jackson and Adley

had an argument. After they were unable to get into the club, Jackson testified he told Adley "I

wasn't going to waste no more gas or time on taking her nowhere else." Adley got out of the car

and began pacing back and forth in front of the car. Adley then retrieved her purse from the car

and walked away. Jackson said he did not leave the parking lot because he was expecting his

brother to come to the club. Ten to fifteen minutes later, his brother and two friends arrived.


                                            •   -4-
       Jackson sent Adley a text that said "go to the spot?" Thirty seconds later, Adley replied

"go to the spot." Jackson testified a restaurant was "the spot."

       Jackson testified he and his brother drove their cars to a nearby restaurant.       Jackson

looked inside the restaurant to see if Adley was there. When he discovered she was not, Jackson

called her on her phone. Adley told him that she was at a gas station; a guy had seen her walking

and offered to give her a ride. Adley told Jackson she would ask the man to take her to the

restaurant. The phone hung up and Adley did not arrive at the restaurant. Jackson called Adley

again, but she did not answer. Jackson became concerned because she was not answering her

phone, her phone had hung up while they were talking, and Adley was in the car with a man.

Jackson stated he decided to go to the gas station to find Adley; his brother was going to drive

his own car to the gas station.

       As they drove, Jackson noticed his brother was in the wrong lane. His brother was

following a car matching the description of Adame's car. Adame turned on a side street and

Jackson's brother followed. Due to traffic lights and the lane Jackson was in, he was delayed in

following Adame and his brother. When Jackson turned on the side street, he did not see

Adame's or his brother's car. Jackson began driving through the warehouses and "I come out of

the last one and I see Ms. Adley coming up the street, on the sidewalk." Adley got into

Jackson's car. Jackson testified: "She had a puzzled look on her face, and she got in the car. . . I

kind of started yelling at her because I'm not understanding why you're over here anyways,

what's going on or why are you even over here."

        Jackson said Adley told him the following story about encountering Adame:

                That's when she tells me about how she got in the car with Adame. She
        said that she ~ that Adame had seen her walking west of the club, Club Kendall's,
        and he had stopped and offered her a ride. She told him no. He offered again. She
        told him no, that she had a ride, she's good, she doesn't need a ride from him. So
        he tried to bribe her to get in the car, it was cold outside. So she finally was like
        oh, okay, so she got in the car. From there Adame said well, let me go to the store
           first, so he made a stop at the store. That's when I found out that that's —the
           RaceTrac is where they was at. That's how I found out that they got to the
           RaceTrac.



           After Jackson picked up Adley, he contacted his brother and they agreed to meet at a gas

station.    When Jackson arrived at the station, his brother was already there.       He testified his

brother walked to his car and "[fjhat's when he handed me the phone."              It was an iPhone.

Jackson stated he sat down in his car with the iPhone; Jackson did not know how the iPhone

came to be in the backseat of the car where the police found it.

           Jackson denied he was present when Adame was robbed. He did not see Adame's car

parked. Jackson stated Butler also did not participate in the robbery. He stated the money in

Adley's purse was from Adame because Adame paid Adley for sex. Although Jackson stated

several times he believed no robbery occurred, in a separate proceeding Adley pleaded guilty to

aggravated robbery.

           In his first issue, Jackson asserts theft is a lesser-included offense of aggravated robbery

and the trial court erred by failing to instruct the jury on theft. In his brief, Jackson argues the

basis for his request for the theft instruction is Butler's testimony that when the police

approached Jackson's car, Jackson gave the phone to Butler to put in the armrest. Jackson

argues this action is some evidence Jackson knew the phone was stolen.

           The trial court's decision to submit or deny a lesser included offense instruction is

reviewed for an abuse of discretion. Threadgill v. State, 146 S.W.3d 654, 666 (Tex. Crim. App.

2004). We apply a two-pronged test to determine if the trial court should have given a jury

charge on a lesser-included offense. Hall v. State, 225 S.W.3d 524, 535-36 (Tex. Crim. App.

2007). We first determine if the proof necessary to establish the charged offense includes the

lesser offense. Id. If it does, we then review the evidence to determine that if appellant is guilty,

he is guilty only of the lesser offense. Id. at 536.
                                                   -6-
       The second step is a question of fact and is based on the evidence presented at trial.

Cavazos v. State, 382 S.W.3d 377, 383 (Tex. Crim. App. 2012). This step requires the reviewing

court to determine whether "there is some evidence in the record which would permit a jury to

rationally find that, if the defendant is guilty, he is guilty only of the lesser-included offense."

Rice v. State, 333 S.W.3d 140, 145 (Tex. Crim. App. 2011). This evidence must show the lesser

included offense is a "valid, rational alternative to the charged offense." Id. Moreover, it "is not

enough that the jury may disbelieve crucial evidence pertaining to the greater offense. Rather

there must be some evidence directly germane to a lesser-included offense for the factfinder to

consider before an instruction on a lesser-included offense is warranted." Skinner v. State, 956

S.W.2d 532, 543 (Tex. Crim. App. 1997).

       Even if we were to conclude that theft is a lesser-included offense of aggravated robbery

in this case, we cannot conclude that if Jackson is guilty, he is only guilty of theft. A person

commits the offense of theft if he unlawfully appropriates property with the intent to deprive the

owner of the property. TEX. PENAL CODE § 31.03(a). An appropriation of property is unlawful if

it is without the owner's effective consent or if the property is stolen and the actor appropriates

the property knowing it was stolen by another. Id. § 31.03(b). In his brief, Jackson argues the

latter: he took possession of the iPhone knowing it was stolen.

       There is no evidence in the record showing that Jackson knew the iPhone was stolen, but

did not participate in the robbery. Jackson denied being involved in the robbery, said he did not

see a robbery occur, and testified he did not believe a robbery occurred. He did acknowledge

taking possession of Adame's iPhone and now argues there was some evidence he knew the

iPhone was stolen even though he did not participate in the robbery. The record does not support

this conclusion. Based on the evidence presented at trial, the only means by which Jackson

would have known Adame's iPhone was stolen when he took possession of it—whether he took


                                                -7-
possession at the scene of the crime or at the gas station when his brother handed it to him—is if

Jackson participated in the robbery. If Jackson did not participate in the robbery and did not

have knowledge of a robbery, as he maintained in his testimony, then there was no way for him

to know the iPhone was stolen. Therefore, Jackson could not have been only guilty of theft and

the trial court did not abuse its discretion by denying Jackson's request for a lesser-included-

offense instruction. We overrule Jackson's first issue.


       In his second issue, Jackson argues that, with respect to Butler's testimony, the trial court

erred by failing to instruct the jury on the accomplice witness rule. A "conviction cannot be had

upon the testimony of an accomplice unless corroborated by other evidence tending to connect

the defendant with the offense committed." TEX. CODE. CRIM. PROC. Ann. art. 38.14; see also

Herron v. State, 86 S.W.3d 621, 632 (Tex. Crim. App. 2002) (accomplice-witness instruction

informs jury it cannot use accomplice-witness testimony unless there also exists some non-

accomplice evidence connecting defendant to the offense).

       Jackson did not object at trial to the trial court's failure to include an accomplice-witness

instruction in the jury charge.     Therefore, we reverse the trial court only if the record

demonstrates that the error resulted in egregious harm. Casanova v. State, 383 S.W.3d 530, 533

(Tex. Crim. App. 2012).       The court of criminal appeals has articulated the standard for

determining egregious harm under Almanza v. State, 686 S.W.2d 157, 174 (Tex. Crim. App.

1985) (op. on reh'g)) in the context of the failure to submit an accomplice-witness instruction.

Id. In Casanova, the court stated that if "the omission is not made known to the trial judge in

time to correct his error, appellate review must inquire whether the jurors would have found the

corroborating evidence so unconvincing in fact as to render the State's overall case for

conviction clearly and significantly less persuasive." Id. (quoting Saunders v. State, 817 S.W.2d

688, 692 (Tex. Crim. App. 1991)); see also Herron, 86 S.W.3d at 632 (under egregious harm

                                                -8-
standard, omission of accomplice witness instruction is generally harmless unless the

corroborating (non-accomplice) evidence is "so unconvincing in fact as to render the State's

overall case for conviction clearly and significantly less persuasive.").

        Whether the trial court's error in failing to submit an accomplice-witness instruction is

harmful is "a function of the strength of the corroborating evidence." Casanova, 383 S.W.3d at

539. The Casanova court stated:


       As the strength of the corroborating evidence increases, however, a reviewing
       court may no longer be able to declare that the lack of an accomplice-witness
       instruction resulted in egregious harm . . . And as the corroborating evidence
       gains in strength to the point that it becomes implausible that a jury would fail to
       find that it tends to connect the accused to the commission of the charged offense,
       then a reviewing court may safely conclude that the only resultant harm is purely
       theoretical and that there is no occasion to reverse the conviction, even in the face
       of an objection, since the jury would almost certainly have found that the
       accomplice witness's testimony was corroborated had it been properly instructed
        that it must do so in order to convict.


Id. at 539-40 (internal citations omitted)

        The State showed Jackson's girlfriend, Adley, accepted Adame's offer to stay in his car

while she waited for some friends.        While she was in the car, she constantly was texting

someone. At Adley's direction, Adame parked his car in a vacant parking lot. As soon as

Adame parked, he was robbed at gunpoint; the people who robbed him took his iPhone and

wallet. However, Adley was not robbed, did not seem scared, and left with the people who

robbed Adame. Adley subsequently pleaded guilty to aggravated robbery.

        Jackson admitted to being in the vicinity where the robbery occurred at the time the

robbery occurred. He admitted Adley had been in his car and she got out of his car in the same

geographic vicinity. Jackson admitted that before the robbery he exchanged text messages with

Adley about "go[ing] to the spot." He also admitted to being in possession of the stolen

iPhone—a fact confirmed by the police officer's testimony.



                                                  -9-
       The non-accomplice testimony in this case is not so unconvincing as to render the State's

case clearly and significantly less persuasive. See id. at 533; Herron, 86 S.W.3d at 632. Rather,

the corroborating evidence and the inferences to be drawn from the evidence more than

sufficiently tend to connect Jackson to the robbery. It is implausible that the jury would have

failed to find the corroborating evidence connected Jackson to the offense. Had it been properly

instructed, the jury almost certainly would have found Butler's testimony was corroborated. See

Casanova, 383 S.W.3d at 539-40.      Therefore, we conclude Jackson did not suffer egregious

harm from the trial court's failure to include an accomplice-witness instruction in the jury

charge. We overrule Jackson's second issue.

       We affirm the trial court's judgment.




                                                  /Craig Stoddart/
                                                  CRAIG STODDART
                                                  JUSTICE


Do Not Publish
Tex. R. App. P. 47
121413F.U05




                                               -10-
                                 Court of Appeals
                       iffiftlj Htstrtct of atexas at Uallas
                                      JUDGMENT


ERIK JAMAL JACKSON, Appellant                       On Appeal from the Criminal District Court
                                                    No. 1, Dallas County, Texas
No. 05-12-01413-CR        V.                        Trial Court Cause No. F-1163319-H.
                                                    Opinion delivered by Justice Stoddart.
THE STATE OF TEXAS, Appellee                        Justices FitzGerald and Fillmore
                                                    participating.

       Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 31st day of December, 2014.




                                             -11-
