                                     In The
                                Court of Appeals
                       Seventh District of Texas at Amarillo
                                 ________________________

                                      No. 07-13-00061-CR
                                 ________________________

                                KENNY JIMENEZ, APPELLANT

                                                 V.

                             THE STATE OF TEXAS, APPELLEE



                            On Appeal from the 364th District Court
                                    Lubbock County, Texas
              Trial Court No. 2012-435437; Honorable Brad Underwood, Presiding


                                          January 6, 2015

                               MEMORANDUM OPINION
                    Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


       Following a jury trial, Appellant, Kenny Jimenez, was found guilty of aggravated

robbery and sentenced to confinement for life.1 Appellant asserts on appeal that the

trial court erred by (1) omitting the theory of “law of parties” in the application paragraph




       1
           See TEX. PENAL CODE ANN. § 29.03 (West 2011). An offense under this section is a felony of
the first degree.
of the jury charge and (2) admitting his personal rap lyrics during the punishment phase

of the trial. We affirm.


                                       BACKGROUND


       In July 2012, a three count indictment was filed alleging that, on or about June

10, 2012, Appellant, “did then and there, while in the course of committing theft of

property and with intent to obtain or maintain control of said property, intentionally or

knowingly threaten or place [Chelsea Betenbrough (Count 1), Brianna Neighbors (Count

2), and Brittany Lancaster (Count 3)] in fear of imminent bodily injury or death, and

[Appellant] did then and there use or exhibit a deadly weapon, to-wit: a firearm.” At trial,

Chelsea, Brianna and Brittany identified Appellant as the person who robbed them at

gunpoint in a nightclub parking lot. They testified that, at approximately 11:45 p.m., they

were between two cars parked facing a brick wall when a silver SUV pulled behind the

cars blocking their exit. Appellant emerged from the SUV carrying a shotgun. He

cocked the gun and ordered each of them to give him their “stuff.” They gave him their

cellphones, purses, I.D.s, $30 (a ten and a twenty dollar bill), and a wristlet. During the

robbery, other persons in the SUV were yelling encouragement to Appellant. After

taking their property, Appellant returned to the SUV. The SUV then backed into a

parked car and sped away.


       Officer Andrew Evans received a radio dispatch describing the SUV and spotted

a vehicle matching its description at a convenience store. As he pulled beside the SUV,

he saw Appellant. He activated his lights and the SUV accelerated. Officer Evans gave

chase. After several miles, the SUV made a sharp turn, hit a curb and completely rolled


                                             2
over. Appellant’s wife picked up the child thrown from the SUV and ran. Appellant also

fled. Two other occupants were apprehended at the scene of the accident. In an

inventory search of the SUV, Officers found and confiscated Chelsey’s, Brianna’s and

Brittany’s property, as well as the shotgun used in the robbery. Appellant, his wife and

his child were taken into custody after officers searched the surrounding yards. When

searched, Appellant had a shotgun shell of the same caliber as the shotgun retrieved

from the SUV in his pocket.


       On February 13, 2013, the court submitted Count 1 of the indictment to the jury.

The jury found Appellant guilty as charged and assessed his sentence at confinement

for life. The trial court entered a judgment in accordance with the jury’s verdict and this

appeal followed.


       JURY CHARGE


       In analyzing a jury-charge issue, we first determine if error occurred, and if so,

we conduct a harm analysis. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App.

2005). The degree of harm required for reversal depends on whether appellant has

preserved error by objection. Id. A jury-charge error requires reversal when, after

proper objection, the appellant suffers Asome harm@ to his rights. Id.; Almanza v. State,

686 S.W.2d 157, 174 (Tex. Crim. App. 1985) (op. on reh=g), reaffirmed, Middleton v.

State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003). Because Appellant did not object

to the omission of the “law of parties” theory in the application paragraph, reversal is not

required unless Appellant has shown Aegregious harm.@ Almanza, 686 S.W.2d at 174.

“Egregious harm” is a difficult standard to meet. Taylor v. State, 332 S.W.3d 483, 490


                                             3
(Tex. Crim. App. 2011). The record must show “actual, not just theoretical, harm to the

accused,” id. at 490-91, and the appellate court must be able to conclude that, as a

result of the complained of error, the defendant has been “deprived of a fair and

impartial trial.” Id. at 490.


        The State candidly concedes the trial court committed charge error by the

complained of omission, but it goes on to assert Appellant was not harmed thereby.

Appellant asserts the omission “vitally affected [his] defensive theory” at trial.                  This

assertion is, however, counter to the position Appellant took at trial.                    During trial,

Appellant’s counsel objected to any language in the charge relating to the law of parties,

asserting Appellant was indicted as a principal and the law of parties was not raised by

the trial’s evidentiary record.2 Further, we find Appellant suffered little, if any, harm from

the omission because of the overwhelming evidence of his guilt as a principal, i.e., the

testimony of three eyewitnesses identifying him as the perpetrator, describing the SUV

in which he was a passenger and the shotgun used in the robbery, plus the presence of

the stolen property and shotgun at the scene of the SUV accident where he was

apprehended. Appellant’s first issue is overruled.


        PUNISHMENT PHASE—RAP LYRICS


        Appellant asserts the trial court erred by permitting the State to introduce

Appellant’s own rap lyrics in the punishment phase of the trial. Appellant wrote the

lyrics while he was incarcerated and published them over the jail’s telephone and by

        2
           At trial, defense counsel stated: “Your Honor . . . I’m going to object to the inclusion of the
parties language in the charge on Page 8, and anywhere else any parties language appears, because he
was indicted as a principal. I’d submit that the law of the parties issue hasn’t been raised by the
evidentiary records of this particular case, and amounts to a comment on the weight.”

                                                    4
letter. The lyrics describe various acts of violence as well as other crimes.3 Appellant

asserts the lyrics were inadmissible under the First Amendment of the United States


      3
          In part, the song lyrics read to the jury were as follows:

      New wipe foreign car movin slow motion, butterfly, suicidal when them doors open.
      Press a button, then the engine will start, tires thick, and the rhymes got you in the dark.
      Hittin hard while I’m ridin through the block, or the hood, turn the music up a bit,
      represent for the hoods. Bad bitch down, the ride she be keeping it hood. Still I do what I
      want cuz I know that I could. Smellin good beer, white diamond chain on my neck. I hold
      it down for the south, north, east and the west. East coat and west coast movin city to
      state. San Antone’s where I’m from, got me pushin the weight. I’m eatin cake non-stop,
      man. I’m going to survive high pitch, low pitch, yellow bone on the side. Young G’s been
      the name ever since I was five. Young killa, hard hitta, shit, I’m one of a kind. Keep it
      movin player. I’m the first to advise. I’m advancing up in my skills. I refuse to retire. I
      never get tired, but gotta keep it goin. Wings on the back so I fly over the ocean. The
      mic’s in my hand while I hold it in a lock. Can’t stop, won’t stop, Homie, turn me up a
      notch. So I give it what I got with my eyes wide open. I’m ready for whatever chillin,
      sippin, blunt blowin, and if I gotta die, Homie, I ain’t even trippin, but I’ll be damn if it was
      because I’m probably slippin. So fuck tryin wish for the wealth or the fame. Shit, I’m
      gonna be on, gotta be the best in this game. Of course I’m down the ride and pull a
      homicide. Got to stay on my feet so many want me to die. But they got it fucked up, I’m
      willin to let it buck, and hurt a motherfucker who really don’t give a fuck. This is how I
      chose to live. My money is what it is. Run up on me if you want, I‘ll be happy to break a
      rib. I ain’t bout to make a change. It’s drivin me too insane. Disrespectin, I don’t had it, so
      sucker stay out the way. You’ll be layin in a grave. You say that I made a treat. That’s a
      promise to my word, no hesitatin for death. Couldn’t stop me if you wanna, nigga, gonna
      be - - go and bang your chick. Got them choppers all aboard, but ready to lay the rest. All
      them sentences you can’t hang, 21 to entertain, keepin it gangsta, motherfucker, we
      crashin and rippin grain. Switchin lanes take your. . . the hustle game, but she gotta have
      the good lil, Homie, know what I’m sayin. I remain to keep it cool in representin for blue,
      south of united together Hispanic what it do. It’s a rap and I ain’t talkin about speakin
      flows, I’m talkin about a murder no shoes with no clothes. You the main I’m the . . . and
      the weed that I blow. You something that I don’t need, but I . . . get blowed. Better know,
      skin tone brown, fillin throwed, freestyle to sippin liquor off the dome. If you want it we
      can get it whenever, just let me know. Matter of fact, I ain’t trippin you Nigga’s is fixin to
      choke. Bet I’m bout it like I’m heavy to make them fall like confetti. See I’m all bout the
      money and hate to use a machete, if I gotta. Well, steal from me you‘ll get killed. Peel
      the flesh from your bone, watch your blood as it spills down to the ground, you know.
      Them Nigga’s talkin like they real, but they really some ho’s runnin round talkin down on
      players for sure. Is it the skills that I use got me countin the dough. That‘s how I roll. To
      the end, one deep never slackin, and never acted like a ho. I know they’s haters among
      them that I can . . . I stand on my feet while I ball. Right now I‘m trapped behind metal
      doors on brick walls.

      They don‘t want it. I’m ready to go to war blowin chronic. I’m ready for anybody, bitch,
      nigga, it get ironic. Get to trippin and I promise your body will get to flippin. Run up on me
      if you dare, you better be comin with it, I ain’t jokin.

      Lucky they’s niggas talking like they hot, putting bullets in my chamber, these niggas I’m
      fixin to drop. Fuck a cop, shit, I’m ready to put a body in stock. Motherfuckers will be
      diein, click clockin my silver Glock. Drop top, I’m . . . but tipsy from drunk and drank. I’ll
      be damned to love you niggas who give me nothing but hate. You a cake, bitch, I’m a real

                                                       5
Constitution and Rules 403 (probative value of relevant evidence outweighed by danger

of unfair prejudice) and 404 (inadmissibility of character evidence) of the Texas Rules of

Evidence.


      Appellant’s First Amendment assertions are somewhat amorphous and he cites

no case law in support of the notion that the admission of rap lyrics during the

punishment phase of a criminal trial written by a defendant prior to the proceedings

constitutes a violation of his freedom of expression. When Appellant wrote the lyrics, he

did so freely and published them twice, once over a jail telephone he knew would be

recorded and again in a letter he knew would be read.                     In each instance, he was

allowed to do so without any interference from authorities. The issue, then, is not one of

constitutional proportions, i.e., whether Appellant’s freedom of expression was

interfered. Rather, the issue is one concerning the admissibility of evidence. During the




      thug. Show them how it be, Mr. Lucky, this shit will really get rough. No nuts, no glory, I’m
      loyal to my hood. Now, we plexin once again to be honest, I wish you would understand
      disrespectin will lay you inside a grave. Have respect for who I be, motherfucker.
      Participate, retaliate, is always in the mix. I trust no man they be quick to hit a lick. So I
      must remain one deep till I’m in the ground. Here’s a little demonstration, nobody’s been
      found. Back down.

      When I’m comin down to the block, you better run, and no tellin what‘s gonna happen, I’m
      lethal without a gun. I’m a goon myself, that’s strapped up and heated, bullets to your
      chest will keep you niggas from bleedin. Nobody, I can tell you that off top, pussy packer
      motherfuckers, I promise you better not. Everybody beware the message I write along. If
      you witness any murder you the next to be gone. Rest in peace to my Homies, revenge
      is packin in chrome, in cars . . . devastated boy better leave me alone. . . . while I’m
      searchin and workin to get the bread. Hesitations, I ain’t feelin my body built to be strong.
      Move along or bring the drama if you want to get it. Any place, any time, no doubt I’ll be
      attendin. You the host, but I’m bout to turn your ass into a ghost. So quick, too fast, be
      ready to overdo.

      They don’t want it. I’m ready to go to war, blowin chronic. I’m ready for anybody, bitch,
      nigger, it get ironic. Get to trippin, and I promise your body will get to flippin. Run up on
      me if you dare, you better be coming with it. I ain’t jokin.


                                                    6
punishment phase of trial, did the trial court err by admitting into evidence rap lyrics

written by Appellant? We think not.


         Absent an abuse of discretion, we will not disturb a trial court’s decision to admit

evidence. Cameron v. State, 241 S.W.3d 15, 19 (Tex. Crim. App. 2007). A trial court

abuses its discretion when it acts outside the zone of reasonable disagreement.

Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (stating the trial

court “has the best vantage from which to decide” admissibility questions).           Article

37.07, section 3(a)(1) of the Texas Code of Criminal Procedure governs the

admissibility of evidence during the punishment phase of a noncapital trial and provides

evidence may be offered by the State and defendant “as to any matter the court deems

relevant to sentencing including . . . evidence of his general reputation, his character, an

opinion regarding his character, the circumstances of the offense for which he is being

tried . . . .”


         A defendant’s choice of tattoos, like his personal drawings, can reflect his

character and/or demonstrate a motive for his crime. Conner v. State, 67 S.W.3d 192,

201 (Tex. Crim. App. 2001) (“meaning behind appellant’s tattoos was relevant to

appellant’s character and hence punishment”). See King v. State, 29 S.W.3d 556, 565

(Tex. Crim. App. 2000) (appellant’s tattoos and his drawings were evidence of

appellant’s hatred for African-Americans and his motive in committing murder); Banda v.

State, 890 S.W.2d 42, 61 (Tex. Crim. App. 1994) (tattoo of word “Satan” was evidence

that defendant believed Satan was telling him to kill people), cert. denied, 515 U.S.

1105, 115 S.Ct. 2253, 132 L.Ed.2d 260 (1995); Corwin v. State, 870 S.W.2d 23, 35

(Tex. Crim. App. 1993) (recognizing that defendant’s drawing had “an inferential bearing

                                               7
on his character for violence, which relates in turn to the question of future

dangerousness”).     Similarly, Appellant’s rap lyrics were relevant evidence of his

character and propensity for future violence. See Broadnax v. State, No. AP-76,207

2011 Tex. Crim. App. Unpub. LEXIS 920, at *49 (Tex. Crim. App. Dec. 14, 2011) (not

designated for publication) (concluding rap lyrics written by the appellant were not so

unfairly prejudicial as to outweigh the probative effect of allowing a jury to “rationally

gauge the probability that appellant would be a danger in the future”).


       Having reviewed the entire record, we cannot say the trial court abused its

discretion by admitting Appellant’s rap lyrics into evidence during the punishment phase

of trial. Appellant’s second issue is overruled.


                                           CONCLUSION


       The trial court’s judgment is affirmed.




                                                   Patrick A. Pirtle
                                                       Justice

Do not publish.




                                             8
