                        PD-1672-15                                              PD-1672-15
                                                               COURT OF CRIMINAL APPEALS
                                                                               AUSTIN, TEXAS
                                                             Transmitted 12/28/2015 9:18:56 AM
                                                               Accepted 12/28/2015 1:40:26 PM
                              PD-______                                         ABEL ACOSTA
                                                                                        CLERK

                IN THE COURT OF CRIMINAL APPEALS
                     OF THE STATE OF TEXAS



                          CHARLES ROBERTS
                           Petitioner/Appellant

                                   v.

                         THE STATE OF TEXAS
                          Respondent/Appellee


On Petition for Discretionary Review from the Fourteenth Court of Appeals
         in Cause No. 14-14-00874-CR, affirming the conviction in
 Cause Number 1381559 from the 177th District Court of Harris County


                PETITION FOR DISCRETIONARY REVIEW




 ORAL ARGUMENT NOT REQUESTED                  ALEXANDER BUNIN
                                              Chief Public Defender
                                              Harris County, Texas

                                              ANGELA CAMERON
                                              Assistant Public Defender
                                              Harris County, Texas
                                              Texas Bar No. 00788672
                                              1201 Franklin, 13th Floor
                                              Houston, Texas 77002
                                              Phone: (713) 368-0016
        December 28, 2015                     Fax: (713) 368-9278
                                              angela.cameron@pdo.hctx.net

                                              Counsel for Appellant
               IDENTITY OF PARTIES AND COUNSEL


APPELLANT:                            Charles Roberts #01962903
                                      Telford Unit
                                      3899 Hwy 98
                                      New Boston, Texas 75570


TRIAL PROSECUTORS:                    Nathan Hennigan
                                      Assistant District Attorney
                                      Harris County, Texas
                                      1201 Franklin Avenue
                                      Houston, Texas 77002


DEFENSE COUNSEL AT TRIAL:             Ellis McCullough
                                      4008 Louetta Road, Suite 365
                                      Houston, Texas 77388


COUNSEL ON APPEAL FOR APPELLANT:      Angela L. Cameron
                                      Assistant Public Defender
                                      Harris County, Texas
                                      1201 Franklin Ave, 13th Floor
                                      Houston, Texas 77002


PRESIDING JUDGE:                      Hon. Ryan Patrick
                                      177th District Court
                                      Harris County, Texas
                                      1201 Franklin Avenue, 19th floor
                                      Houston, Texas 77002




                              ii
                                                   TABLE OF CONTENTS

Identity of Parties and Counsel..............................................................................................ii

Table of Contents ...................................................................................................................iii

Index of Authorities .............................................................................................................. iv

Statement Regarding Oral Argument................................................................................... 1

Statement of the Case ............................................................................................................ 1

Statement of Procedural History .......................................................................................... 1

Ground for Review ................................................................................................................ 1

Reason for Review.................................................................................................................. 1

Statement of Facts .................................................................................................................. 2

Argument ................................................................................................................................. 4

Issue for Review ..................................................................................................................... 4

          Did the Court of Appeals err in failing to address the merits of Mr.
          Roberts’ claim that the trial court erred in allowing Roberts to be
          impeached with evidence of a previous conviction for assault family
          violence against his father as being more prejudicial than probative.


PRAYER .................................................................................................................................. 6

CERTIFICATE OF SERVICE .................................................................................................... 6

CERTIFICATE OF COMPLIANCE ........................................................................................... 7

APPENDIX ................................................................................................................................ 8




                                                                     iii
                                              INDEX OF AUTHORITIES


Cases

Light v. State, 15 S.W.3d 104 (Tex. Crim. App. 2000) ..................................................... 1, 5

Roberts v. State, No. 14-14-00874-CR, 2015 WL 9246779 (Tex. App. – Houston
  [14th Dist.], December 17, 2015) (mem. op., not designated for publication) ........ 1, 5

Theus v. State, 845 S.W.2d 874 (Tex. Crim. App. 1992) ...................................................... 4

Statutes

Tex. Pen. Code §19.02 ........................................................................................................... 1

Rules

Tex. R. App. P. 47.1 ........................................................................................................... 5, 6

Tex. R. App. P. 66.3(c) ........................................................................................................... 1




                                                                 iv
                    STATEMENT REGARDING ORAL ARGUMENT

       Oral argument is not requested.

                              STATEMENT OF THE CASE

       Mr. Roberts was charged with murder. See Tex. Pen. Code §19.02 (C.R. at 15).

Roberts entered a plea of “not guilty” (3 R.R. at 8). After a jury trial, Roberts was found

guilty and sentenced by a jury to fifty (50) years imprisonment in the Texas Department

of Corrections – Institutional Division (C.R. at 199). Timely notice of appeal was filed

(C.R. at 202).

                       STATEMENT OF PROCEDURAL HISTORY

       In an unpublished opinion, the Fourteenth Court of Appeals affirmed Mr.

Roberts’ conviction. Roberts v. State, No. 14-14-00874-CR, 2015 WL 9246779 (Tex.

App. – Houston [14th Dist.], December 17, 2015) (mem. op., not designated for

publication). No motion for rehearing was filed. This petition is timely if filed on or

before January 18, 2016.

                                GROUNDS FOR REVIEW

       Did the Court of Appeals err in failing to address the merits of Mr.
       Roberts’ claim that the trial court erred in allowing Roberts to be
       impeached with evidence of a previous conviction for assault family
       violence against his father as being more prejudicial than probative.

                                 REASON FOR REVIEW

       The Fourteenth Court of Appeals’ opinion fails to address every issue
       raised and necessary to final disposition of Mr. Roberts’ appeal contrary
       to Tex. R. App. Proc. 47.1 and this Court’s decision in Light v. State, 15
       S.W.3d 104, 105 (Tex. Crim. App. 2000). Tex. R. App. P. 66.3(c).

                                             1
                                STATEMENT OF FACTS

      On December 31, 2012, Albert Terepo was found shot in the parking lot of a

HEB grocery store (4 R.R. at 9 & 11). Terepo died as a result of the gunshot wound

he received (5 R.R. at 27-28). There were no eyewitnesses to the shooting, and no

useable fingerprints or foreign DNA was found (3 R.R. at 49, 53) (4 R.R. at 19). None

of the surveillance cameras at the HEB captured the murder because Terepo’s minivan

was parked in blind spot outside the view of the cameras (4 R.R. at 37-38). Terepo’s

cell phone was found at the scene (4 R.R. at 20).

      An examination of the cell phone revealed several texts, including texts between

Terepo and a person listed as “Lil Chucky” who was later identified as being Appellant,

Charles Roberts (4 R.R. at 20-22). The texts indicated Roberts was to meet Terepo at

the HEB to buy two ounces of marijuana (4 R.R. at 23-26).

      Detectives obtained Roberts’ cell phone records through a court order (4 R.R. at

41). The records indicated that within minutes before the shooting, Roberts’ cell phone

pinged off the cell tower located a quarter mile from the HEB and stated that most

towers have a range of distance of two to three miles (4 R.R. at 52-55 & 64). However

the officer agreed the tower information was not GPS and could not pinpoint exactly

where an individual was when the tower received the signal, only that the phone was

within close range of the tower (4 R.R. at 40).

      Roberts took the stand on his own behalf. Roberts confirmed he was going to

purchase hydro marijuana from Terepo and that he was at HEB shortly before the 911

                                            2
call was made (5 R.R. at 67-68, 79, 82, 89). Roberts also agreed he was on the phone

with Terepo approximately five minutes before 911 was called1 (5 R.R. at 89).

       Roberts testified it was during this phone call he told Terepo he was not willing

to complete the purchase (5 R.R. at 95-96). Roberts decided to abandon the transaction

because when he arrived at the HEB, Terepo was not alone as Terepo had said he would

be, he was driving in a different vehicle than he had told Roberts he would be driving,

and Roberts saw an uniformed officer at the HEB gas station, (5 R.R. at 66-68). Roberts

testified he never got out of his vehicle, and instead returned home (5 R.R. at 68 & 95).

Roberts specifically denied shooting Terepo (5 R.R. at 70).

       Roberts turned himself in to authorities the day after he learned there was a

warrant for his arrest (5 R.R. at 71). While in the Inmate Processing Center he saw

Mark Williams, the father of one of Robert’s cousin’s children (5 R.R. at 46 & 72).

Williams testified Roberts told him that he had committed the murder while the two

were at the Inmate Processing Center (4 R.R. at 84-86). Roberts admitted talking to

Williams but argued that Williams was lying (5 R.R. at 72, 110-112). Roberts testified

there was “bad blood” between Williams and Roberts’ family, due in part, to an incident

where Roberts’ mother had security escort Williams from a trail ride after Williams,

Roberts and one of Roberts’ cousins got into a physical altercation (5 R.R. at 64-65).



1
 The phone records indicate a call between Roberts and Terepo at 5:19 p.m. which lasted 34 seconds,
or until 5:20 p.m. (5.R.R. at 89). The testimony at trial was the 911 call reporting the shooting was
made at 5:24 p.m. (4 R.R. at 18).

                                                 3
                                       ARGUMENT

       Did the Court of Appeals err in failing to address the merits of Mr.
       Roberts’ claim that the trial court erred in allowing Roberts to be
       impeached with evidence of a previous conviction for assault family
       violence against his father as being more prejudicial than probative?

       In his first point of error, Roberts argued the trial court abused its discretion in

admitting evidence of Roberts’ prior conviction for assault family violence against his

biological father, for impeachment purposes. Roberts argued first the conviction was

not a conviction of moral turpitude because misdemeanor assaults between men have

traditionally not been crimes of moral turpitude and the mere finding of a family

biological relationship should not transform the conviction into a crime of moral

turpitude when Roberts had not seen his father since he was four years old. (Appellant’s

brief pp. 17-19).      Roberts then argued alternatively, the evidence should have been

excluded under the probative versus prejudicial analysis in Theus v. State, 845 S.W.2d.

874, 880 (Tex. Crim. App. 1992). (Appellant’s brief pp. 19-22).

       The entirety of the Court of Appeals’ opinion regarding Roberts’ first point of

error is as follows:

       In his first issue, appellant argues that the trial court abused its discretion
       by admitting the evidence of his assault conviction. Appellant argues that
       this evidence was inadmissible under Rule 609 of the Texas Rules of
       Evidence because an assault against a man is not considered a crime
       involving moral turpitude. The State responds that this complaint has not
       been preserved. We agree with the State.

       To preserve a complaint for appellate review, the record must show that
       the complaint was made to the trial court by a timely objection, stating the
       grounds for the ruling sought with sufficient specificity to make the trial

                                              4
       court aware of the complaint, unless the specific grounds were apparent
       from the context. See Tex.R.App. P. 33.1(a). The purpose for requiring a
       timely, specific objection is twofold: (1) it informs the judge of the basis
       of the objection, affording the judge an opportunity to rule on it; and (2)
       it gives opposing counsel an opportunity to respond to the complaint. See
       Resendez v. State, 306 S.W.3d 308, 312 (Tex.Crim.App.2009). Although we
       are not hyper-technical in our examination of whether error was
       preserved, we do adhere to the general rule that the argument on appeal
       must comport with the objection made at trial. See Bekendam v. State, 441
       S.W.3d 295, 300 (Tex.Crim.App.2014).

       Here, the only legal objection asserted at trial was that the evidence of the
       assault was more prejudicial than probative. This objection did not put the
       trial court on notice of the complaint appellant now asserts on appeal—
       that the assault was not a crime involving moral turpitude. We conclude
       that appellant's argument on appeal does not comport with the objection
       he made at trial, and thus, his complaint has not been preserved for
       appellate review. Cf. Douds v. State, No. PD0857–14, ––– S.W.3d ––––,
       2015 WL 5981121, at *4–5 (Tex.Crim.App. Oct. 14, 2015) (defendant's
       trial argument that the requirements of a mandatory blood-draw statute
       had not been met did not preserve a constitutional complaint on appeal
       that the blood draw violated the Fourth Amendment where there was no
       showing of exigent circumstances).

Roberts v. State, No. 14-14-00874-CR, 2015 WL 9246779, at *2 (Tex. App. – Houston

[14th Dist.] Dec. 17, 2015).

       Tex. R. App. Proc. 47.1 requires the court of appeals “hand down a written

opinion… that addresses every issue raised and necessary to final disposition of the

appeal.” Failure by a court of appeals to address a point of error properly raised by a

party requires remand for consideration of that point of error. Light v. State, 15 S.W.3d

104, 105 (Tex. Crim. App. 2000). The Court of Appeals’ opinion wholly fails to conduct

any review of the trial court’s determination of the probative versus prejudicial value of

the prior conviction. The opinion only mentions probative verse prejudicial when it

                                             5
states, this was the legal objection made at trial by trial counsel. Thus the opinion is

not in compliance with Tex. R. App. Proc. 47.1.

                                           PRAYER

      For these reasons, Mr. Roberts prays this Court to grant discretionary review and

remand to the Court of Appeals to conduct a review of Roberts’ point of error alleging

the prior conviction was more prejudicial than probative.

                                               Respectfully submitted,

                                               ALEXANDER BUNIN
                                               Chief Public Defender
                                               Harris County Texas

                                               /s/ Angela Cameron
                                               ANGELA CAMERON
                                               Assistant Public Defender
                                               1201 Franklin, 13th floor
                                               Houston Texas 77002
                                               (713) 368-0016
                                               TBA No. 00788672
                                               email: angela.cameron@pdo.hctx.net




                              CERTIFICATE OF SERVICE

I certify that I provided a copy of the foregoing petition to the Harris County District

Attorney and the State Prosecuting Attorney via e-filing service on the 28th day of

December 2015.

                                               /s/ Angela Cameron
                                               ANGELA CAMERON

                                           6
                           CERTIFICATE OF COMPLIANCE

      Pursuant to Rule 9.4(i)(3), undersigned counsel certifies that this brief complies

with the type-volume limitations of Tex. R. App. Proc. 9.4(e)(i).

1.     This petition for discretionary review contains 2,132 words printed in a

proportionally spaced typeface.

2.    This brief is printed in a proportionally spaced, serif typeface using Garamond

14 point font in text and Garamond 12 point font in footnotes produced by Microsoft

Word software.

3.    Upon request, undersigned counsel will provide an electronic version of this brief

and/or a copy of the word printout to the Court.

4.    Undersigned counsel understands that a material misrepresentation in completing

this certificate, or circumvention of the type-volume limits in Tex. R. App. Proc. 9.4(j),

may result in the Court's striking this brief and imposing sanctions against the person

who signed it.

                                                /s/ Angela Cameron
                                                ANGELA L. CAMERON




                                            7
Roberts v. State, Not Reported in S.W.3d (2015)


                                                                   vehicle, parked just outside of a grocery store. The shooter
                                                                   left no physical evidence at the scene, and there were no
                  2015 WL 9246779
                                                                   eyewitnesses or surveillance footage of the shooting.
    Only the Westlaw citation is currently available.

          SEE TX R RAP RULE 47.2 FOR                               Police came to suspect that appellant may have been involved
    DESIGNATION AND SIGNING OF OPINIONS.                           in the murder. Text messages revealed that the complainant
                                                                   had gone to the grocery store to sell appellant two ounces
     DO NOT PUBLISH—TEX. R. APP. P. 47.2(B).                       of hydroponic marijuana. Phone records also showed that
            Court of Appeals of Texas,                             appellant was within range of a cell phone tower next to the
              Houston (14th Dist.).                                grocery store at the time of the shooting.

               Charles Roberts, Appellant
                                                                   Appellant turned himself in to police when he learned that
                            v.                                     a warrant had issued for his arrest. Before he was released
               The State of Texas, Appellee                        on bond, appellant encountered a family acquaintance in jail.
                                                                   The acquaintance wrote a letter to his jailors, claiming that
       NO. 14–14–00874–CR | Memorandum
                                                                   appellant had confessed to killing a man for two ounces of
           Opinion filed December 17, 2015                         hydroponic marijuana.
On Appeal from the 177th District Court, Harris County,
                                                                   At trial, appellant admitted that he had spoken with the
Texas, Trial Court Cause No. 1381559
                                                                   acquaintance in jail, but he denied having made a confession
Attorneys and Law Firms                                            of murder. Appellant further admitted that he had gone to
                                                                   the grocery store to purchase the hydroponic marijuana, but
Angela Lee Cameron, for Charles Roberts.                           he testified that he left without completing the transaction
                                                                   because he did not trust the complainant. According to
Devon Anderson, Alan Curry, Carly Dessauer, for The State
                                                                   appellant, the complainant was not alone like he had said he
of Texas.
                                                                   would be, and the complainant was in a different vehicle than
Panel consists of Chief Justice Frost and Justices Christopher     what he had previously described.
and Donovan.
                                                                   The jury rejected appellant's testimony, convicted him
                                                                   of murder, and assessed his punishment at fifty years'
                                                                   imprisonment.
               MEMORANDUM OPINION

Tracy Christopher, Justice
                                                                                     PRIOR CONVICTION
 *1 We consider three issues in this appeal from a conviction
for murder: (1) whether the trial court abused its discretion      Before appellant took the stand, the trial court conducted a
by admitting evidence of a prior conviction, (2) whether           hearing outside the presence of the jury to determine if there
defense counsel rendered ineffective assistance by failing to      were any “impeachable priors” at issue. Appellant stated that,
object that appellant was in shackles during the punishment        although he had no felonies on his record, he did have two
phase of trial, and (3) whether the trial court reversibly erred   misdemeanor convictions for assault and another conviction
when it failed to give a reasonable-doubt instruction for          for possession of marijuana. Because one of the assault
unadjudicated bad acts. We overrule each issue and affirm the      convictions involved a family member, the State argued that
trial court's judgment.                                            it constituted a crime involving moral turpitude.

                                                                   Appellant personally explained to the trial court that the
                      BACKGROUND                                   assault was just a fight between him and his father.
                                                                   Appellant's defense counsel then argued that, to whatever
The complainant in this case died of a single gunshot              extent the evidence of the assault conviction was relevant,
wound to the abdomen. His body was found inside of his             the trial court should exclude it because it was more



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           1
Roberts v. State, Not Reported in S.W.3d (2015)


prejudicial than probative. The trial court determined that the    Appellant took the stand during the punishment phase of
evidence of the assault conviction was admissible, and the         trial, wearing shackles or leg irons. Defense counsel did not
State impeached appellant with that evidence at the end of         object to appellant being in any kind of restraints. At the end
appellant's cross-examination.                                     of appellant's testimony, both sides rested and the jury was
                                                                   removed from the courtroom. The trial court then put the
 *2 In his first issue, appellant argues that the trial court      following comments on the record:
abused its discretion by admitting the evidence of his
assault conviction. Appellant argues that this evidence was          All right. I also want the record to reflect that once the
inadmissible under Rule 609 of the Texas Rules of Evidence           —once the Defendant was found guilty, it's the deputy's
because an assault against a man is not considered a crime           policy to put him in leg irons. And when he was called
involving moral turpitude. The State responds that this              to testily here in punishment, he got up and his legs [sic]
complaint has not been preserved. We agree with the State.           irons started banging around and clanking when he started
                                                                     walking to the witness stand before I had a chance to
To preserve a complaint for appellate review, the record must        admonish him or the jury on that.
show that the complaint was made to the trial court by a
                                                                     So I assume the jury may have seen that he had leg irons,
timely objection, stating the grounds for the ruling sought
                                                                     but he basically got up and started walking toward the box
with sufficient specificity to make the trial court aware of the
                                                                     before I had a chance to say anything. So made that kind
complaint, unless the specific grounds were apparent from the
                                                                     of issue moot.
context. See Tex.R.App. P. 33.1(a). The purpose for requiring
a timely, specific objection is twofold: (1) it informs the
                                                                   Appellant now argues in his second issue that he received
judge of the basis of the objection, affording the judge an
                                                                   ineffective assistance of counsel because defense counsel did
opportunity to rule on it; and (2) it gives opposing counsel
                                                                   not object to appellant being in shackles while in the presence
an opportunity to respond to the complaint. See Resendez v.
                                                                   of the jury. We review claims of ineffective assistance
State, 306 S.W.3d 308, 312 (Tex.Crim.App.2009). Although
                                                                   of counsel under the standard set forth in Strickland v.
we are not hyper-technical in our examination of whether
                                                                   Washington, 466 U.S. 688 (1984). Under Strickland, the
error was preserved, we do adhere to the general rule that
                                                                   defendant must prove that his trial counsel's representation
the argument on appeal must comport with the objection
                                                                   was deficient, and that the deficient performance was so
made at trial. See Bekendam v. State, 441 S.W.3d 295, 300
                                                                   serious that it deprived him of a fair trial. Id. at 687.
(Tex.Crim.App.2014).
                                                                   Counsel's representation is deficient if it falls below an
                                                                   objective standard of reasonableness. Id. at 688. A deficient
Here, the only legal objection asserted at trial was that the
                                                                   performance will only deprive the defendant of a fair trial
evidence of the assault was more prejudicial than probative.
                                                                   if it prejudices the defense. Id. at 691–92. To demonstrate
This objection did not put the trial court on notice of the
                                                                   prejudice, there must be a reasonable probability that, but for
complaint appellant now asserts on appeal—that the assault
                                                                   counsel's unprofessional errors, the result of the proceeding
was not a crime involving moral turpitude. We conclude that
                                                                   would have been different. Id. at 694. Failure to make the
appellant's argument on appeal does not comport with the
                                                                   required showing of either deficient performance or sufficient
objection he made at trial, and thus, his complaint has not
                                                                   prejudice defeats the claim of ineffectiveness. Id. at 697. This
been preserved for appellate review. Cf. Douds v. State, No.
                                                                   test is applied to claims arising under both the United States
PD0857–14, ––– S.W.3d ––––, 2015 WL 5981121, at *4–
                                                                   and Texas Constitutions. See Hernandez v. State, 726 S.W.2d
5 (Tex.Crim.App. Oct. 14, 2015) (defendant's trial argument
                                                                   53, 56–57 (Tex.Crim.App.1986).
that the requirements of a mandatory blood-draw statute had
not been met did not preserve a constitutional complaint on
                                                                    *3 Our review of defense counsel's performance is highly
appeal that the blood draw violated the Fourth Amendment
                                                                   deferential, beginning with the strong presumption that
where there was no showing of exigent circumstances).
                                                                   counsel's actions were reasonably professional and were
                                                                   motivated by sound trial strategy. See Jackson v. State, 877
                                                                   S.W.2d 768, 771 (Tex.Crim.App.1994). When the record
                        SHACKLES                                   is silent as to counsel's strategy, we will not conclude
                                                                   that the defendant received ineffective assistance unless the
                                                                   challenged conduct was “so outrageous that no competent


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Roberts v. State, Not Reported in S.W.3d (2015)


attorney would have engaged in it.” See Goodspeed v.               Here, the record does not reflect any special circumstances
State, 187 S.W.3d 390, 392 (Tex.Crim.App.2005). Rarely             that would justify the use of shackles. The trial court
will the trial record contain sufficient information to permit     commented that shackles were employed pursuant to a
a reviewing court to fairly evaluate the merits of such a          “policy” of restraining the defendant once he has been
serious allegation. See Bone v. State, 77 S.W.3d 828, 833          found guilty, which actually suggests the absence of special
(Tex.Crim.App.2002). In the majority of cases, the defendant       circumstances. 1
is unable to meet the first prong of the Strickland test because
the record on direct appeal is underdeveloped and does not         1      While we question the need for such a “policy,” the trial
adequately reflect the alleged failings of trial counsel. See
                                                                          court must be mindful of its obligations to ensure that the
Mata v. State, 226 S.W.3d 425, 430 (Tex.Crim.App.2007).
                                                                          shackles are not visible to the jury.

A sound trial strategy may be imperfectly executed, but the        Assuming for the purposes of argument that there was no
right to effective assistance of counsel does not entitle a        reason for appellant's compelled restraint, the record does
defendant to errorless or perfect counsel. See Robertson v.        not reflect defense counsel's reasons for failing to object to
State, 187 S.W.3d 475, 483 (Tex.Crim.App.2006). Isolated           the shackles. Appellant did not move for a new trial, and
instances in the record reflecting errors of omission or           defense counsel did not file an affidavit or otherwise explain
commission do not render counsel's performance ineffective,        his tactics or reasoning.
nor can ineffective assistance of counsel be established
by isolating one portion of counsel's performance for               *4 The State argues that defense counsel may have willfully
examination. See Ex parte Welborn, 785 S.W.2d 391, 393             chosen to allow appellant to take the stand in shackles in an
(Tex.Crim.App.1990). Moreover, it is not sufficient that the       effort to elicit the jury's sympathy and obtain a more lenient
defendant show, with the benefit of hindsight, that counsel's      sentence. This explanation would be consistent with the sole
actions or omissions during trial were merely of questionable      theme of appellant's statements on direct examination, which
competence. See Mata, 226 S.W.3d at 430. Rather, to                was that the jury had made a mistake and was about to
establish that counsel's acts or omissions were outside the        send an innocent man to jail. If that were counsel's strategy,
range of professionally competent assistance, the defendant        it may have been risky, but not objectively unreasonable.
must show that counsel's errors were so serious that he was        Cf. Estelle v. Williams, 425 U.S. 501, 508 (1976) (“[I]t is
not functioning as counsel. See Patrick v. State, 906 S.W.2d       not an uncommon defense tactic to produce the defendant
481, 495 (Tex.Crim.App.1995).                                      in jail clothes in the hope of eliciting sympathy from the
                                                                   jury.”). On this record, appellant has not overcome the strong
Shackles are “inherently prejudicial” when used                    presumption that counsel's failure to object was consistent
conspicuously in front of the jury. See Holbrook v. Flynn,         with sound trial strategy. See Goodspeed, 187 S.W.3d at
475 U.S. 560, 568 (1986). During the guilt phase of                392 (stating that an appellate court should not find deficient
trial, they can undermine the presumption of innocence,            performance on a silent record unless the challenged conduct
interfere with the defendant's ability to communicate with         was “so outrageous that no competent attorney would have
his counsel, and affront the dignity and decorum of the            engaged in it”).
judicial process. See Deck v. Missouri, 544 U.S. 622, 630–
31 (2005). Related concerns are implicated in the punishment
phase as well. Shackles can threaten the accuracy of reliable                           CHARGE ERROR
decisionmaking, especially in capital cases, by suggesting to
the jury that the defendant is a danger to the community.          During the punishment phase, the State elicited testimony of
Id. at 632–33. Due process accordingly forbids the routine         appellant's disciplinary records from when he was in jail. The
use of shackles that are visible to the jury, except in            records showed that appellant had been cited for fighting,
“special circumstances,” such as where there are case-specific     disruptive conduct, and threatening another man. Appellant
security needs or a risk of escape. Id. at 633. Even in such       had explanations for each of these citations. On the fighting
circumstances, the trial court must make all efforts to prevent    charge, appellant testified that he and another man were
the jury from seeing the defendant in shackles. See Bell v.        “horseplaying,” which he suggested was nonaggression. As
State, 415 S.W.3d 278, 281 (Tex.Crim.App.2013).                    for the disruptive-conduct charge, appellant indicated that he
                                                                   misbehaved because some of his food had been taken after



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                     3
Roberts v. State, Not Reported in S.W.3d (2015)


a “shakedown.” And as for the threatening charge, appellant        State throughout the trial and never shifts to the defendant.”
explained that he “had some words” with another man who            We conclude that this factor is neutral in our assessment of
“came into the tank thinking he was running things and             egregious harm. See Martinez v. State, 313 S.W.3d 358, 367
changed the TV.”                                                   (Tex.App.–Houston [1st Dist.] 2009, pet. ref d) (examining a
                                                                   punishment charge with identical language).
The trial court did not give a reasonable-doubt instruction
in its punishment charge as it related to these unadjudicated       *5 The Evidence as a Whole. The evidence against
bad acts. Appellant did not request such an instruction either.    appellant was largely circumstantial, but the circumstantial
Nevertheless, appellant argues in his third issue that the trial   evidence was also strong. Phone records established that
court reversibly erred by failing to give the instruction sua      appellant arranged a meeting with the complainant to
sponte.                                                            purchase two ounces of hydroponic marijuana. The records
                                                                   also established that appellant was near the scene of the crime
When deciding whether there is reversible error in a jury          when the complainant was shot. After his body was found,
charge, we must first determine whether error exists, and          there were no drugs on the complainant's person, but inside
if error does exist, we must then determine whether the            of his car, police discovered the lid to the mason jar that had
defendant was harmed by the error. See Middleton v. State,         stored the hydroponic marijuana.
125 S.W.3d 450, 453 (Tex.Crim.App.2003). If, as in this case,
the defendant did not object to the charge at trial, we can        According to a family acquaintance, appellant admitted
only reverse the trial court's judgment if the defendant was       when he was in jail that he had killed the complainant
egregiously harmed by the trial court's error. See Almanza v.      for the hydroponic marijuana. At trial, appellant tried to
State, 686 S.W.2d 157, 171 (Tex.Crim.App.1984).                    discredit the acquaintance by suggesting that the acquaintance
                                                                   could have read about the murder in an online newspaper
The State concedes that it was error for the trial court to omit   article. However, there was no evidence that the acquaintance
the instruction and we agree. See Huizar v. State, 12 S.W.3d       had seen the article, and in his letter to the jailors, the
479, 484 (Tex.Crim.App.2000) (holding that no objection or         acquaintance specifically mentioned that appellant had shot
request is required to receive a reasonable-doubt instruction).    the complainant over marijuana of the hydroponic variety, a
However, because appellant did not object to the omission of       detail that had not been mentioned in the article.
the instruction, appellant must show that he was egregiously
harmed to be entitled to relief. The State contends that           As for his prior convictions, appellant admitted during the
appellant cannot meet this difficult burden. We agree here as      guilt phase that he had been convicted of misdemeanor
well.                                                              assault, and during the punishment phase, the State introduced
                                                                   evidence of appellant's misdemeanor possession conviction.
Any harm that is inflicted by an erroneous charge must be          No reasonable-doubt instruction was required as to these
assayed in light of the entire jury charge, the evidence as        extraneous offenses because they had already been proven in
a whole, the arguments of counsel, and any other relevant          another proceeding. See Bluitt v. State, 137 S.W.3d 51, 54
information revealed by the record. See Stuhler v. State,          (Tex.Crim.App.2004).
218 S.W.3d 706, 719 (Tex.Crim.App.2007). An error is
egregiously harmful only when it affects the very basis of         Also during the punishment phase, the State elicited
the case, deprives the defendant of a valuable right, or vitally   testimony about appellant's disciplinary record in jail,
affects a defensive theory. Id. This is a difficult standard       which was composed of certain unadjudicated bad acts. As
to prove and such a determination must be done on a case-          mentioned above, appellant admitted to having some level of
by-case basis. See Hutch v. State, 922 S.W.2d 166, 171             involvement in each of the bad acts, which weighs against
(Tex.Crim.App.1996).                                               any suggestion that the jury would have disregarded the
                                                                   bad acts had a reasonable-doubt instruction been provided.
The Entire Jury Charge. In this case, the punishment charge        Considering further the seriousness of the murder charge
did not specifically address the unadjudicated bad acts or the     and the strength of the evidence in support of the murder
burden of proof that must be met before the bad acts could be      conviction, the evidence of the unadjudicated bad acts does
considered. However, the charge generally informed the jury        not make the case for punishment clearly more persuasive.
that “[t]he burden of proof in all criminal cases rests upon the   See Martinez, 313 S.W.3d at 368.



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            4
Roberts v. State, Not Reported in S.W.3d (2015)


                                                                     requested, which was sixty years. Appellant did not argue for
                                                                     a specific term of years. This factor does not weigh greatly in
The Arguments of Counsel In its closing statements, the State
                                                                     favor of finding egregious harm.
made no reference to appellant's prior bad acts, whether they
were adjudicated or unadjudicated. Defense counsel, on the
                                                                     Having considered all of the factors together, we conclude
other hand, acknowledged that appellant had “a record of
                                                                     that appellant was not egregiously harmed by the trial court's
some misconduct,” but counsel said that the record was “not
                                                                     failure to sua sponte give a reasonable-doubt instruction on
egregious.” Because neither side emphasized appellant's prior
                                                                     the matter of appellant's unadjudicated bad acts.
bad acts, this factor weighs against a finding of egregious
harm.

Other Relevant Information. We may consider the severity                                    CONCLUSION
of the punishment assessed, which may indicate egregious
harm in some situations. Id. Here, appellant was sentenced           *6 The trial court's judgment is affirmed.
to fifty years' imprisonment, which is in the midrange for a
felony of the first degree. See Tex. Penal Code § 12.32. This
                                                                     All Citations
sentence is slightly higher than the minimum sentence that
was advocated by the State, which was forty-five years, but          Not Reported in S.W.3d, 2015 WL 9246779
it is also lower than the sentence that the State specifically

End of Document                                                  © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                5
