                                  IN THE
                          TENTH COURT OF APPEALS

                                  No. 10-13-00140-CR

RODERICK DWAYNE McCULLOUGH,
                                                              Appellant
v.

THE STATE OF TEXAS,
                                                              Appellee



                            From the 54th District Court
                             McLennan County, Texas
                             Trial Court No. 2012-77-C2


                           MEMORANDUM OPINION


       In one issue, appellant, Roderick Dwayne McCullough, contends that the trial

court erred in failing to instruct the jury under article 37.07, section 3(a)(1) of the Texas

Code of Criminal Procedure and that the error resulted in egregious harm. See TEX.

CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1) (West Supp. 2012). Because we conclude

that appellant was not egregiously harmed, we affirm.
                                   I.     BACKGROUND

        Here, appellant was charged by indictment with theft of property from a person

over sixty-five years old, a third-degree felony. See TEX. PENAL CODE ANN. § 31.03(a),

(e)(4)(B), (f)(3)(A) (West Supp. 2012); see also id. § 22.04(c)(2) (defining an “elderly

individual” as “a person 65 years of age or older”). Included in the indictment was: (1)

an enhancement allegation pertaining to appellant’s prior conviction on August 10, 2000

for unlawful possession of a controlled substance; and (2) a habitual allegation

referencing appellant’s prior conviction on July 1, 1993 for unlawful possession of a

controlled substance.

        Appellant pleaded guilty to the charged offense, and the case proceeded to the

punishment phase. Appellant pleaded “true” to both the enhancement and habitual

allegations contained in the indictment. Several witnesses, including the victim and

Waco Police Officer Ben Rush, testified during the punishment phase. Officer Rush, in

particular, described an uncharged incident that transpired on April 7, 2000, whereby

appellant resisted arrest and grabbed Officer Rush’s handgun. Officer Rush identified

appellant in open court and further noted that he found crack cocaine in appellant’s

front pocket during the April 7, 2000 arrest. As a result of the April 7, 2000 arrest,

appellant was charged with unlawful possession of a controlled substance, convicted of

the charged offense, and sentenced to twenty years’ incarceration.         Apparently,

appellant was out on parole when the incident in this case occurred.




Williams v. State                                                                 Page 2
        At the conclusion of the evidence, the jury assessed punishment at seventy-five

years’ incarceration in the Institutional Division of the Texas Department of Criminal

Justice. The trial court certified appellant’s right of appeal, and this appeal followed.

                                    II.   STANDARD OF REVIEW

        When reviewing a jury charge, we first examine the charge for error. See Ngo v.

State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005) (citing Middleton v. State, 125 S.W.3d

450, 453 (Tex. Crim. App. 2003)). If error occurred, we then decide whether the error

caused harm. Id. When, as here, appellant fails to object to the charge at trial, he must

show egregious harm to prevail on appeal. Id. at 743-44; see Almanza v. State, 686 S.W.2d

157, 171 (Tex. Crim. App. 1985).

                                          III.   ANALYSIS

        In his sole issue on appeal, appellant complains that the trial court erred in

failing to include in the charge a reasonable-doubt instruction under article 37.07,

section 3(a)(1) of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC.

ANN. art. 37.07, § 3(a)(1).    Appellant further complains that this error resulted in

egregious harm.

A.      Applicable Law

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

State may introduce, at punishment, evidence of “an extraneous crime or bad act that is

shown beyond a reasonable doubt by evidence to have been committed by the

defendant or for which he could be held criminally responsible . . . .” TEX. CODE CRIM.

PROC. ANN. art. 37.07, § 3(a)(1).

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        Prior crimes or bad acts are introduced to provide additional information
        which the jury may use to determine what sentence the defendant should
        receive. The statute requires that such evidence may not be considered in
        assessing punishment until the fact-finder is satisfied beyond a reasonable
        doubt that these prior acts are attributable to the defendant. Once this
        requirement is met, the fact-finder may use the evidence however it
        chooses in assessing punishment.

Fields v. State, 1 S.W.3d 687, 688 (Tex. Crim. App. 1999) (emphasis in original). Article

37.07 does not “deprive the jury of its ultimate fact finding role.” Escovedo v. State, 902

S.W.2d 109, 114 (Tex. App.—Houston [1st Dist.] 1995, pet. ref’d).

B.      The Reasonable-Doubt Instruction

        During the punishment phase of trial, the State introduced evidence of

appellant’s extraneous offenses and bad acts. The charge included a reasonable-doubt

instruction as to the enhancement and habitual allegations contained in the indictment.

However, the State concedes that the charge did not include a reasonable-doubt

instruction as to evidence of other bad acts presented by the State—namely, Officer

Rush’s testimony regarding appellant resisting arrest and grabbing his handgun. See

Huizar v. State, 12 S.W.3d 479, 484 (Tex. Crim. App. 2000) (holding that a trial judge

must sua sponte instruct the jury at the punishment phase about article 37.07 of the

Texas Code of Criminal Procedure, which requires that the State must prove any

extraneous offenses beyond a reasonable doubt). A review of the record shows that

appellant did not request such an instruction or object to its omission from the charge.

Nevertheless, we must determine whether the trial court’s failure to include a

reasonable-doubt instruction as to evidence presented by the State of appellant’s other

bad acts egregiously harmed appellant.

Williams v. State                                                                     Page 4
C.      Harm

        Under Almanza, the court of appeals reviews purported jury-charge error

according to whether the error was preserved at trial. See Almanza, 686 S.W.2d at 171.

We will not reverse for error that was not preserved at trial unless the error was so

harmful that the defendant was denied “a fair and impartial trial.” Arline v. State, 721

S.W.2d 348, 352 (Tex. Crim. App. 1986). To constitute reversible error, a defendant must

have suffered actual “egregious” harm and not merely theoretical harm. Id. at 351-52;

see Sanchez v. State, 376 S.W.3d 767, 775 (Tex. Crim. App. 2012). The actual degree of

harm must be assayed “in light of the entire jury charge, the state of the evidence,

including 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 Olivas v. State, 202 S.W.3d 137, 144 (Tex. Crim. App.

2006). Jury-charge error is egregiously harmful if it affects the very basis of the case,

deprives the defendant of a valuable right, or vitally affects a defensive theory. Stuhler

v. State, 218 S.W.3d 706, 719 (Tex. Crim. App. 2007); Sanchez v. State, 209 S.W.3d 117, 121

(Tex. Crim. App. 2006).

        Based on our review of the record, we cannot say that appellant was egregiously

harmed by the trial court’s failure to sua sponte issue a reasonable-doubt instruction as

to all of appellant’s extraneous offenses and bad acts that were presented. We arrive at

this conclusion based on several factors. First, the record reflects that appellant pleaded

guilty to the charged offense, and he pleaded “true” to the enhancement and habitual

allegations contained in the indictment. The jury could have sentenced appellant based

Williams v. State                                                                    Page 5
solely on the testimony describing the incident and the uncontested enhancement

convictions to which appellant pleaded true, without reference to the extraneous

evidence. See Allen v. State, 47 S.W.3d 47, 51-53 (Tex. App.—Fort Worth 2001, pet. ref’d)

(finding no egregious harm based on the totality of the evidence and notwithstanding

the State’s use of extraneous offenses in punishment argument); see also Rachell v. State,

No. 14-05-00122-CR, 2006 Tex. App. LEXIS 3264, at **19-20 (Tex. App.—Houston [14th

Dist.] Apr. 13, 2006, pet. ref’d) (mem. op., not designated for publication) (“Given A.C.’s

own testimony, it is likely that the jury sentenced appellant to six years’ confinement on

the facts of the convicted crime alone.     A.C.’s testimony alone supports the jury’s

imposition of this sentence.”).

        In addition, the State sought a sentence of life imprisonment; however, the jury

disagreed and assessed punishment at seventy-five years. See Jones v. State, 111 S.W.3d

600, 610 (Tex. App.—Dallas 2003, pet. ref’d) (finding no egregious harm for the trial

court’s failure to give a reasonable-doubt instruction for extraneous acts presented

during the punishment phase because of, among other things, “the jury assessed

punishment far below the maximum punishment available, despite the State’s plea for

the maximum”). This sentence corresponded with the applicable sentencing range in

this case—twenty-five to ninety-nine years or life—and was lower than the maximum.

See TEX. PENAL CODE ANN. § 12.42(d) (West Supp. 2012); see also Jones, 111 S.W.3d at 610.

        Furthermore, the record does not indicate that the jury would have disregarded

or discounted the extraneous offenses and assessed a lighter sentence, especially

considering that appellant had already served a portion of a twenty-year sentence

Williams v. State                                                                    Page 6
associated with his August 10, 2000 conviction for unlawful possession of a controlled

substance and that Officer Rush’s testimony about the arrest was uncontroverted. See

Escovedo, 902 S.W.2d at 115 (“Nothing in this record tends to show the jury would not

have considered or would have discounted the extraneous offense if the burden of

proof had been included in the charge.”).              And while we recognize that the State

mentioned Officer Rush’s testimony in its closing argument, we do not believe that this

comment affected the very basis of the case, deprived appellant of a valuable right, or

vitally affected a defensive theory.1 See Stuhler, 218 S.W.3d at 719; see also Sanchez, 209

S.W.3d at 121. In fact, most of the State’s closing argument focused on the incident and

appellant’s uncontroverted criminal history, rather than Officer Rush’s testimony about

appellant resisting arrest and grabbing his handgun.

        Accordingly, we cannot say that appellant was egregiously harmed by the failure

of the trial court to include a reasonable-doubt instruction as to all of appellant’s

extraneous offenses and bad acts that were presented. See Olivas, 202 S.W.3d at 144; see

also Almanza, 686 S.W.2d at 171. Therefore, we overrule appellant’s sole issue on appeal.

                                          IV.     CONCLUSION

        Having overruled appellant’s sole issue on appeal, we affirm the judgment of the

trial court.




        1  The portion of the State’s closing argument that appellant complains about is as follows: “And
that’s why we brought Officer Rush to tell you about what happened. Because we wanted you to get the
full picture of what this defendant is capable of.”

Williams v. State                                                                                 Page 7
                                             AL SCOGGINS
                                             Justice


Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed September 26, 2013
Do not publish
[CRPM]




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