                                                                                    ACCEPTED
                                                                                14-14-00874-CR
                                                                FOURTEENTH COURT OF APPEALS
                                                                             HOUSTON, TEXAS
                                                                            7/9/2015 3:49:27 PM
                                                                          CHRISTOPHER PRINE
                                                                                         CLERK


                      No. 14-14-00874-CR
                              In the                          FILED IN
                        Court of Appeals               14th COURT OF APPEALS
                                                          HOUSTON, TEXAS
                              For the
                                                        7/9/2015 3:49:27 PM
               Fourteenth Judicial District of Texas
                                                       CHRISTOPHER A. PRINE
                            At Houston                          Clerk

                   
                          No. 1381559
                  In the 177th District Court of
                      Harris County, Texas
                   
                     CHARLES ROBERTS
                             Appellant
                               v.
                   THE STATE OF TEXAS
                             Appellee
                   
                 STATE’S APPELLATE BRIEF
                   
                                               DEVON ANDERSON
                                               District Attorney
                                               Harris County, Texas
                                               CARLY DESSAUER
                                               Assistant District Attorney
                                               NATHAN HENNIGAN
                                               Assistant District Attorney
                                               Harris County, Texas
                                               1201 Franklin, Suite 600
                                               Houston, Texas 77002
                                               Tel.: 713/755-5826
                                               Fax No.: 713/755-5809

ORAL ARGUMENT REQUESTED ONLY IF REQUESTED BY APPELLANT
                 STATEMENT REGARDING ORAL ARGUMENT
      Pursuant to Texas Rule of Appellate Procedure 9.4(g) and Texas Rule of

Appellate Procedure 39.1, the State requests oral argument only if appellant requests

oral argument.

                     IDENTIFICATION OF THE PARTIES
      Pursuant to Texas Rule of Appellate Procedure 38.2(a)(1)(A), a complete list of

the names of all interested parties is provided below.

      Counsel for the State:

             Devon Anderson  District Attorney of Harris County

             Carly Dessauer  Assistant District Attorney on appeal

             Nathan Hennigan  Assistant District Attorney at trial

      Appellant or criminal defendant:

             Charles Roberts

      Counsel for Appellant:

             Angela L. Cameron  Attorney on appeal

             Ellis McCullough  Attorney at trial

      Trial Judge:

             Hon. Ryan Patrick




                                           ii
                                       TABLE OF CONTENTS

STATEMENT REGARDING ORAL ARGUMENT .................................................... ii

IDENTIFICATION OF THE PARTIES ......................................................................... ii

TABLE OF AUTHORITIES .............................................................................................. v

STATEMENT OF THE CASE .......................................................................................... 1

STATEMENT OF FACTS .................................................................................................. 1

SUMMARY OF THE ARGUMENTS ............................................................................... 2

REPLY TO APPELLANT’S FIRST POINT OF ERROR............................................. 3

I. Appellant did not preserve his argument that the trial court should not have
   allowed the State to impeach him with his prior conviction for assault of
   a family member because it was not a crime of moral turpitude, and even if
   appellant preserve his argument, any error would be harmless. ................................. 3
    a. Appellant failed to preserve his argument that his prior conviction of
       assault of a family member was not a crime of moral turpitude because
       appellant did not raise this argument before the trial court................................... 7
    b. Even if appellant had preserved his argument that the trial court should
       not have found his conviction of assault of a family member to be a
       crime of moral turpitude, any error would have been harmless. .......................... 8
REPLY TO APPELLANT’S SECOND POINT OF ERROR .................................... 11

II. Appellant has not met his burden of proving that his trial counsel was
    ineffective for failing to object to the trial court’s shackling of appellant
    during the punishment phase of trial or of showing that, but for his
    counsel’s alleged ineffectiveness, there is a reasonable probability that the
    result of the proceeding would have been different. .................................................. 11
    a. Appellant has not meet his burden of showing that his counsel was
       ineffective for failing to object to the trial court allowing appellant to be
       shackled during the punishment phase of trial because the record is
       silent as to his counsel’s possible reasons for not objecting. ............................... 15


                                                          iii
    b. Assuming that appellant’s counsel rendered ineffective assistance of
       counsel by failing to object to appellant’s leg irons during the
       punishment phase of trial, appellant has not shown a reasonable
       probability that, but for his counsel’s failure, the result of the proceeding
       would have been different. ...................................................................................... 19
REPLY TO APPELLANT’S THIRD POINT OF ERROR ........................................ 22

III.Appellant was not egregiously harmed by the trial court’s failure to instruct
    the jury that it had to find that appellant committed his extraneous bad acts
    of fighting, disruptive conduct, and threatening beyond a reasonable doubt. ........ 22
CONCLUSION ................................................................................................................... 31

CERTIFICATE OF COMPLIANCE .............................................................................. 32

CERTIFICATE OF SERVICE ......................................................................................... 33




                                                               iv
                                        TABLE OF AUTHORITIES
CASES
Allen v. State,
  47 S.W.3d 47 (Tex. App.—Fort Worth, pet. ref’d) ..................................................... 25
Almanza v. State,
  686 S.W.2d 157 (Tex. Crim. App. 1984) ................................................................. 22, 23
Andrews v. State,
  159 S.W.3d 98 (Tex. Crim. App. 2005) ......................................................................... 12
Bagheri v. State,
  119 S.W.3d 755 (Tex. Crim. App. 2003) ................................................................... 9, 11
Batiste v. State,
  73 S.W.3d 402 (Tex. App.—Dallas 2002, no pet.)....................................................... 30
Bekendam v. State,
  441 S.W.3d 295 (Tex. Crim. App. 2014) ..................................................................... 5, 8
Bell v. State,
   415 S.W.3d 278 (Tex. Crim. App. 2013) ....................................................................... 14
Bluitt v. State,
   137 S.W.3d 51 (Tex. Crim. App. 2004) ......................................................................... 26
Bone v. State,
  77 S.W.3d 828 (Tex. Crim. App. 2002) ................................................................... 14, 17
Campos v. State,
  458 S.W.3d 120 (Tex. App.—Houston [1st Dist.] 2015, pet. filed)..................... 4, 5, 9
Cedillos v. State,
  250 S.W.3d 145 (Tex. App.—Eastland 2008, no pet.) ................................................ 18
Chambliss v. State,
  No. 14-10-00035-CR, 2011 WL 665323
  (Tex. App.—Houston [14th Dist.] Feb. 24, 2011, pet. ref’d)
  (mem. op., not designated for publication)..................................................................... 9
Deck v. Missouri,
  544 U.S. 622 (2005).................................................................................................... 14, 20
Garza v. State,
  213 S.W.3d 338 (Tex. Crim. App. 2007) ....................................................................... 13



                                                               v
Glasscock v. State,
  No. 06-11-00239-CR, 2012 WL 2127514
  (Tex. App.—Texarkana June 13, 2012, pet. ref’d)
  (mem. op., not designated for publication)................................................................... 20
Goodspeed v. State,
  187 S.W.3d 390 (Tex. Crim. App. 2005) ................................................................. 13, 18
Hardeman v. State,
  868 S.W.2d 404 (Tex. App.—Austin 1993, pet. dism’d) ........................................... 5, 9
Huerta v. State,
  359 S.W.3d 887 (Tex. App.—Houston [14th Dist.] 2012, no pet.) ........................... 13
Huizar v. State,
  12 S.W.3d 479 (Tex. Crim. App. 2000) ................................................................... 23, 24
Huizar v. State,
  29 S.W.3d 249 (Tex. App.—San Antonio 2000, pet.) ........................................... 28, 29
Jackson v. State,
   877 S.W.2d 768 (Tex. Crim. App. 1994) ................................................................. 13, 15
King v. State,
  953 S.W.2d 266 (Tex. Crim. App. 1997) ................................................................... 9, 11
Lopez v. State,
  343 S.W.3d 137 (Tex. Crim. App. 2011) ................................................................. 13, 18
Ludwig v State,
  969 S.W.2d 22 (Tex. App.—Fort Worth 1998, pet. ref’d) ............................................ 9
Martinez v. State,
 313 S.W.3d 358 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d) ..............24, 26, 27
Menefield v. State,
  363 S.W.3d 591 (Tex. Crim. App. 2012) ....................................................................... 13
Middleton v. State,
  125 S.W.3d 450 (Tex. Crim. App. 2003). ...................................................................... 22
Ngo v. State,
  175 S.W.3d 738 (Tex. Crim. App. 2005) ....................................................................... 23
Norris v. State,
   902 S.W.2d 428 (Tex. Crim. App. 1995),
  overruled on other grounds, Roberts v. State,
  273 S.W.3d 322 (Tex. Crim. App. 2008) ....................................................................... 10

                                                       vi
Potier v. State,
  68 S.W.3d 657 (Tex. Crim. App. 2002) ........................................................................... 9
Rylander v. State,
  101 S.W.3d 107 (Tex. Crim. App. 2003) ....................................................................... 13
Saenz v. State,
  421 S.W.3d 725 (Tex. App.—San Antonio 2014),
  reversed on other grounds, 451 S.W.3d 388 (Tex. Crim. App. 2014) ................................ 16
Sansom v. State,
  292 S.W.3d 112 (Tex. App.—Houston [14th Dist.] 2008, pet. ref’d) ....................... 24
Stevens v. State,
   No. 01-07-00111-CR, 2008 WL 2743947
   (Tex. App.—Houston [1st Dist.] July 10, 2008, no pet.)
   (mem. op., not designated for publication)................................................................... 18
Strickland v. Washington,
   466 U.S. 668 (1984)..............................................................................................12, 13, 19
Stuhler v. State,
   218 S.W.3d 706 (Tex. Crim. App. 2007) ....................................................................... 22
Theus v. State,
  845 S.W.2d 874 (Tex. Crim. App. 1992) ..................................................................... 4, 9
Thompson v. State,
  9 S.W.3d 808 (Tex. Crim. App. 1999) ........................................................................... 12
Wiseman v. State,
 223 S.W.3d 45 (Tex. App.—Houston 2006, pet. ref’d) .............................................. 18
Zarco v. State,
  210 S.W.3d 816 (Tex. App.—Houston [14th Dist.] 2006, no pet.) ........................... 28
Ziolkowski v. State,
  223 S.W.3d 640 (Tex. App.—Texarkana 2007, pet. ref’d) .......................................... 19

STATUTES
TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007) .................................................... 23
TEX. CODE CRIM. PROC. ANN. art. 37.07, §3(a)(1) (West Supp. 2014) .......................... 23




                                                             vii
RULES

TEX. R. APP. P. 9.4(g) ............................................................................................................. ii
TEX. R. APP. P. 9.4(i). ........................................................................................................... 32
TEX. R. APP. P. 33.1(a)(1) .................................................................................................. 5, 7
TEX. R. APP. P. 38.2(a)(1)(A) ................................................................................................. ii
TEX. R. APP. P. 39.1 ................................................................................................................ ii
TEX. R. APP. P. 44.2(b) ..................................................................................................... 9, 11
TEX. R. EVID. 609............................................................................................................... 4, 8




                                                                 viii
TO THE HONORABLE COURT OF APPEALS:

                            STATEMENT OF THE CASE
       Appellant was charged with murder (CR at 15; 3 RR at 7-8). After pleading not

guilty, a jury trial was held to determine appellant’s guilt (CR at 172, 199; 3 RR at 8).

The jury found appellant guilty, and per the jury’s determination, the trial court

sentenced appellant to incarceration for fifty years (CR at 189, 197, 199; 5 RR at 127;

6 RR at 30-31). The court certified appellant’s right to appeal, and appellant filed a

timely notice of appeal (CR at 179, 202-03).

                              STATEMENT OF FACTS
       As appellant’s points of error involve aspects of his trial rather than the

evidence of the offense, the State will present a brief recitation of the facts.

       Appellant and Albert Terepo had formerly worked together (3 RR at 35, 124).

On New Year’s Eve 2012, appellant texted Albert to see if he had any marijuana for

sale (3 RR at 24; State’s Ex. 44). Albert arranged to sell appellant over $500 of

hydroponic marijuana at an HEB parking lot (3 RR at 18; 4 RR at 25, 26, 29, 32, 85; 5

RR at 76). Appellant traveled to the location, but shortly after he arrived, Albert was

shot and killed (4 RR at 46, 48-49, 50-52; 5 RR at 27; State’s Exs. 47, 48, 49, 50).

Responding police did not find any marijuana on Albert or in his vehicle but found a

mason jar lid from the container in which Albert had stored the marijuana (3 RR at

44, 59, 61; 4 RR at 120).




                                             1
      Using Albert’s cellphone history and appellant’s phone records, the police

suspected appellant’s involvement and had him arrested for Albert’s murder (4 RR at

36, 39, 43, 62). While in jail, appellant admitted to a family acquaintance that he had

killed a man for hydroponic marijuana (4 RR at 82, 84, 85).

                       SUMMARY OF THE ARGUMENTS
      Appellant did not preserve his argument that the trial court should not have

admitted his prior conviction for assault of a family member for impeachment

purposes during the guilt phase of trial. As the record establishes, appellant did not

argue that his prior conviction was not a crime of moral turpitude to the trial court.

His factual claim regarding the identity of the complainant was not a legal objection to

the admissibility of the conviction and did not inform that trial court of the legal

theory appellant raises on appeal. However, even if appellant’s argument had been

preserved at trial, any error would be harmless.

      Appellant has not met his burden of showing that his counsel was ineffective

for failing to the trial court’s decision to shackle appellant during the punishment

phase of trial. Appellant has not shown that his attorney lacked any strategic reason

for not objecting because the record is silent regarding any plausible considerations

for counsel’s actions. Additionally, the record is underdeveloped regarding what

occurred at trial regarding appellant’s leg irons and, more importantly, whether the

jury perceived them. Further, appellant has not shown that, but for his counsel’s




                                           2
     ineffectiveness, if any, there was a reasonable probability that the result of the

     proceeding would have been different.

           Appellant was not egregiously harmed by the trial court’s omission of an

     instruction regarding the State’s burden of proof for extraneous offenses and bad acts

     introduced during the punishment phase of trial.

                REPLY TO APPELLANT’S FIRST POINT OF ERROR
I.      Appellant did not preserve his argument that the trial court should not have
        allowed the State to impeach him with his prior conviction for assault of
        a family member because it was not a crime of moral turpitude, and even if
        appellant preserve his argument, any error would be harmless.

           In his first point of error, appellant argues that the trial court abused its

     discretion when it allowed the State to impeach him with a prior conviction for assault

     of a family member. Appellant argues in his brief that the conviction was not a crime

     of moral turpitude because the assault was against his father. Arguing that crimes of

     violence against men are not considered crimes of moral turpitude, appellant alleges

     that the trial court erred in ruling the evidence admissible. However, when making

     this argument, appellant overlooks that the record does not reflect that he articulated

     this specific reason for why the conviction was in admissible at trial. As appellant or

     his counsel failed to object to the admissibility of his prior conviction under the

     grounds that it was not a crime of moral turpitude, appellant has not preserved at trial

     the argument he advances on appeal. Thus, his first point of error is waived.




                                                3
                                 Standard of Review

      The trial court has “wide discretion” to decide whether to admit evidence of a

defendant’s prior convictions. Theus v. State, 845 S.W.2d 874, 881 (Tex. Crim. App.

1992). Reviewing courts will only reverse a trial court’s ruling admitting evidence of a

defendant’s prior convictions upon a showing of a clear abuse of discretion that lies

outside the zone of reasonable disagreement. Theus, 845 S.W.2d at 881.

                                   Applicable Law

      Under Rule 609 of the Texas Rules of Evidence, evidence that a witness has

been convicted of a crime is admissible to attack the witness’s credibility if the crime

was a felony or involved moral turpitude and the court determines that the probative

value of the evidence outweighs its prejudicial effect. TEX. R. EVID. 609(a).

      Courts have recognized crimes of moral turpitude to involve “dishonesty,

fraud, deceit, misrepresentation, or deliberate violence,” matters of “personal

morality,” conduct committed “knowingly contrary to justice, honesty, principle, or

good morals,” “baseness, vileness, or depravity,” conduct “immoral in itself,

regardless of whether it is punishable by law,” in that the “doing of the act itself, and

not its prohibition by statute, fixes the moral turpitude,” or “immoral conduct” that is

“willful, flagrant, or shameless, and which shows a moral indifference to the opinion

of the good and respectable members of the community.” Campos v. State, 458 S.W.3d

120, 149 (Tex. App.—Houston [1st Dist.] 2015, pet. filed) (quoting Escobedo v. State,

202 S.W.3d 844, 848 (Tex. App.—Waco 2006, pet. ref’d).

                                           4
      While most misdemeanor assaultive offenses do not constitute crimes of moral

turpitude, courts have recognized exceptions based on the identity of the victim.

Campos, 458 S.W.3d at 149 (holding assault committed against a child was a crime of

moral turpitude as “an assault committed against a child is ‘generally regarded by the

members of our society as more morally culpable and that the offense involves

conduct that is ‘knowingly contrary’ to ‘good morals’”); see Hardeman v. State, 868

S.W.2d 404, 407 (Tex. App.—Austin 1993, pet. dism’d) (holding that an assault

against a woman is a crime of moral turpitude).

      To preserve error on appeal, Texas Rule of Appellate Procedure 33.1 requires

that a party present its timely objection to the trial court in a manner that states “the

grounds for the ruling that the complaining party sought from the trial court with

sufficient specificity to make the trial court aware of the complaint, unless the specific

grounds [are] apparent from the context.” TEX. R. APP. P. 33.1(a)(1); see Bekendam v.

State, 441 S.W.3d 295, 299 (Tex. Crim. App. 2014) (noting that preservation of error is

a systemic requirement on appeal). To preserve error, “[t]he complaining party must

let the trial judge know what [he] wants and why [he] thinks [he] is entitled to it, and

do so clearly enough for the judge to understand.” Bekendam, 441 S.W.3d at 299.

While reviewing courts do not examine with hyper-technical scrutiny whether a party

preserved error, the objection made at trial must comport with the argument made on

appeal. Bekendam, 441 S.W.3d at 299.




                                            5
                                    Relevant Facts

      Appellant decided to testify during the guilt phase of trial, but before he took

the stand, the trial court held a hearing regarding the admissibility of appellant’s prior

convictions outside the presence of the jury (5 RR at 54-55). The record reflects the

following exchange between the court, the attorneys, and appellant during this

conference:

      The Court: Are there any impeachable priors that are at issue?
      Mr. Mccullough [Appellant’s Counsel]: We would ask that he be - -
      [Prosecutor]: There’s - -
      Mr. Mccullough: - - allowed to testify free of cross-examination for - -
      [Prosecutor]: He has a prior for marijuana, but let me make sure that
      there are no felonies.
      [Appellant]: I don’t have any felonies.
      Mr. Mccullough: I think there’s two assaults I was given notice of.
      [Prosecutor]: Right.
      [Appellant]: Two assaults and a possession.
      The Court: [Appellant], you said two assaults and a possession?
      [Appellant]: Yes, sir.
      [Prosecutor]: He had a probation for assault family member which was
      revoked. He was convicted of that. It’s a crime of moral turpitude.
      The Court: From what year? Where?
      [Prosecutor]: It was in Liberty County. It says County Court, Liberty,
      sentenced in 2012.
      The Court: Okay.
      Mr. Mccullough: I would --
      [Appellant]: Me and my father.
      Mr. Mccullough: If the Court deems those are relevant, I would ask
      that the Court to consider that they are more prejudicial than probative.
      The Court: Is there anything else from the State?
      [Prosecutor]: That’s the only crime of moral turpitude or felony.



                                            6
      The Court: Okay. Well, it being a conviction for a crime of moral
      turpitude, assault family member, then I will allow that to be admissible.
              So let’s take a short break and we’ll come back and we’ll begin
      this. (5 RR at 55-57).

      When the trial resumed, the State asked appellant on cross-examination if it

was true that he had “previously been convicted of assault of a family member,” and

appellant answered: “In ‘09, yes, sir, me and my father” (5 RR at 101).

                                       Analysis

   a. Appellant failed to preserve his argument that his prior conviction of
      assault of a family member was not a crime of moral turpitude because
      appellant did not raise this argument before the trial court.

      Appellant failed to preserve his argument that the trial court erred when finding

his assault of a family member conviction admissible because appellant failed to argue

to the court that the conviction was not a crime of moral turpitude. TEX. R. APP. P.

33.1(a)(1). As the record shows, appellant only requested that the trial court allow him

to testify free from impeachment and for the trial court to find his prior convictions

more prejudicial than probative (5 RR at 55-57). Appellant did not advance the

argument that he raises on appeal that the trial court should not have ruled the

conviction admissible on the grounds that it was not a crime of moral turpitude (5 RR

at 55-57). Indeed, the record establishes that appellant asked the court to allow him

to testify free from impeachment of his prior convictions or find that the convictions

were more prejudicial than probative (5 RR at 55-57). Thus, appellant preserved an

objection to the admissibility of his conviction for its prejudicial nature but did not


                                           7
advance a specific objection to the conviction on the grounds that it was not a crime

of moral turpitude. TEX. R. EVID. 609(a).

       While appellant points to the fact that appellant stated on the record that “the

assault was between his father and himself,” Appellant’s Br. 16, his nebulous remark,

“me and my father,” did not transform his attorney’s request that appellant be able to

testify free from impeachment or his objection to the prior convictions for their

prejudicial    value     into     a preserved      argument       that    the     conviction      was

inadmissible because it was not a crime of moral turpitude (5 RR at 56). His

argument on appeal simply does not comport with his argument at trial. Bekendam,

441 S.W.3d at 299. As such, appellant waived the argument he raises in his first point

of error, and this Court should overrule it for lack of preservation.

    b. Even if appellant had preserved his argument that the trial court should
       not have found his conviction of assault of a family member to be a
       crime of moral turpitude, any error would have been harmless.

       Assuming for the sake of argument that appellant preserved his argument that

his prior conviction of assault of a family member was not a crime of moral turpitude

and assuming that the trial court’s ruling was erroneous, appellant was not harmed by

the admission of the evidence.1

1
  Because appellant’s argument was not preserved, the trial court was not faced with deciding
whether appellant’s conviction for assaulting his father was a crime of moral turpitude. Thus, it is
impossible to say whether the trial court would have erred in ruling the conviction admissible in light
of such an argument. No case has discussed whether an assault of a family member or an assault of
a parent by a child is a crime of moral turpitude. However, if confronted with such an argument, a
ruling favoring admissibility of such an offense of an adult child assaulting a parent could be within


                                                  8
                                        Applicable Law
       Errors in evidentiary rulings are generally non-constitutional error. See Potier v.

State, 68 S.W.3d 657, 662-63 (Tex. Crim. App. 2002). Reviewing courts will reverse a

conviction for the erroneous admission of defendant’s prior conviction if that

admission affected his substantial rights by exerting “a substantial and injurious effect

or influence in determining the jury’s verdict.” King v. State, 953 S.W.2d 266, 271 (Tex.

Crim. App. 1997); see TEX. R. APP. P. 44.2(b). However, the error is harmless if the

reviewing court has “fair assurance that the error did not influence the jury, or had but

a slight effect.” Bagheri v. State, 119 S.W.3d 755, 763 (Tex. Crim. App. 2003).

                                             Analysis

       Even assuming that the admission of appellant’s prior conviction for assault of

a family member was error, appellant’s substantial rights were not affected. The

State’s question regarding appellant’s conviction and his acknowledgement of its

existence were brief (5 RR at 101).             The jury merely heard that appellant was


the wide zone of discretion trial courts have when determining the admissibility of evidence. See
Theus, 845 S.W.2d at 881. A trial court would be within the zone of reasonable disagreement when
finding that assaulting one’s parent is “morally culpable” and involves “conduct that is ‘knowingly
contrary’ to ‘good morals.’” Campos, 458 S.W.3d at 149; see Hardeman, 868 S.W.2d at 405 (defining
crime of moral turpitude as “a crime involving grave infringement of the moral sentiment of the
community”); see also Ludwig v State, 969 S.W.2d 22, 29-30 (Tex. App.—Fort Worth 1998, pet. ref’d)
(noting that the legislature has condemned family violence when finding Ludwig’s offense of
violating a protective order to be a crime of moral turpitude); but see Chambliss v. State, No. 14-10-
00035-CR, 2011 WL 665323, at *2 (Tex. App.—Houston [14th Dist.] Feb. 24, 2011, pet. ref’d)
(mem. op., not designated for publication) (refusing to hold that dating violence, as a category of
family violence, was a crime of moral turpitude when committed against a man).




                                                  9
convicted of assault of a family member in 2009 (5 RR at 101). The State did not

emphasize appellant’s prior conviction, and indeed, it was not mentioned again until

the punishment phase of trial where appellant’s mother offered more circumstances

regarding the offense to the jury (6 RR at 7). See Norris v. State, 902 S.W.2d 428, 441

(Tex. Crim. App. 1995), overruled on other grounds, Roberts v. State, 273 S.W.3d 322 (Tex.

Crim. App. 2008) (holding that any error in the admission of prior conviction for

impeachment purposes was harmless when State elicited the evidence during cross-

examination and did not mention the conviction in closing arguments).

      Indeed, in their closing arguments during the guilt phase, neither the State nor

appellant mentioned appellant’s conviction. Instead, both focused on the evidence

involving the charged offense and credibility determinations that the jury had to make

(5 RR at 108-26).     While the State’s case against appellant was circumstantial, the

evidence regarding appellant’s effort to obtain marijuana from Albert, their cellphone

communications, the cellphone triangulation testimony establishing appellant’s

location around the time of the murder, appellant’s own admission of seeing Albert at

the time he was killed, the missing marijuana, and appellant’s admission to a fellow

inmate of killing a man support the jury’s determination of appellant’s guilt (3 RR at

59, 61; 4 RR at 22, 24-25, 29, 84-86, 157-58; 5 RR at 88; State’s Ex. 46-49).

      Since the evidence introduced at trial supports the jury’s verdict and neither

side mentioned appellant’s prior conviction after its brief introduction, this Court can

have more than a “fair assurance” that if the trial court erred by admitting the

                                           10
      evidence of appellant’s prior conviction for assault of a family member, the error did

      not influence the jury. Bagheri, 119 S.W.3d at 763. As the record supports that the

      admission of appellant’s prior conviction did not have “a substantial and injurious

      effect or influence in determining the jury’s verdict,” even if the trial court erred by

      ruling the evidence admissible, appellant was not harmed.     King, 953 S.W.2d at 271;

      TEX. R. APP. P. 44.2(b). As such, even if this Court were to find that appellant

      preserved his objection to the trial court’s ruling, this Court should nevertheless hold

      that appellant was not harmed and overrule his first point of error.

                REPLY TO APPELLANT’S SECOND POINT OF ERROR
II.      Appellant has not met his burden of proving that his trial counsel was
         ineffective for failing to object to the trial court’s shackling of appellant
         during the punishment phase of trial or of showing that, but for his
         counsel’s alleged ineffectiveness, there is a reasonable probability that the
         result of the proceeding would have been different.

            In his second point of error, appellant contends that his trial counsel rendered

      ineffective assistance of counsel by failing to object to the trial court’s shackling of

      appellant during the punishment phase of trial.        However, the record is silent

      regarding appellant’s counsel’s reasons for not objecting and is undeveloped in

      regards to what occurred at trial. Because the record does not show if counsel had a

      plausible strategic reason for not objecting to appellant’s shackles during the

      punishment phase of trial and this Court must strongly presume that counsel’s

      conduct falls within a wide range of reasonable professional assistance, appellant has



                                                11
not met his burden of showing that his trial counsel was ineffective.            Further,

assuming for the sake of argument that appellant’s counsel was ineffective for his

failure to object, the record does not support that, but for counsel’s ineffectiveness,

the result of the proceeding would have been different.

                                 Standard of Review

      The United States Supreme Court has established a two-pronged test for

reviewing claims of ineffective assistance of trial counsel. Strickland v. Washington, 466

U.S. 668, 687, 694 (1984). To prevail under Strickland, a defendant must show 1) by a

preponderance of the evidence that his counsel’s performance fell below an objective

standard of reasonableness, and 2) that, but for counsel’s unprofessional error, there

was a reasonable probability that the result of the proceeding would have been

different. Strickland, 466 U.S. at 687, 694; Andrews v. State, 159 S.W.3d 98, 101 (Tex.

Crim. App. 2005). Unless the defendant makes both showings, the Court of Criminal

Appeals has noted that “it cannot be said that his conviction is rendered unreliable by

a breakdown in the adversarial process.” Andrews, 159 S.W.3d at 101.

      Reviewing courts examine the totality of counsel’s representation and the

particular circumstances of the case when evaluating counsel’s effectiveness. Thompson

v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). “The proper measure of attorney

performance remains simply reasonableness under prevailing professional norms.”

Strickland, 466 U.S. at 688. When reviewing courts apply this standard, they do so

deferentially because “[i]t is all too tempting for a defendant to second-guess counsel’s

                                           12
assistance after conviction.” Id. at 689; see Garza v. State, 213 S.W.3d 338, 348 (Tex.

Crim. App. 2007).

      Along with a high level of deference, reviewing courts also presume that,

considering the circumstances, a lawyer’s choices were reasonably professional and

motivated by sound trial strategy. Strickland, 466 U.S. at 689. The defendant has the

burden to rebut this presumption by presenting evidence illustrating why counsel

acted as he did.    Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).

However, trial counsel should ordinarily be afforded an opportunity to explain his

actions before being denounced as ineffective. Rylander v. State, 101 S.W.3d 107, 110-

11 (Tex. Crim. App. 2003). Absent such an opportunity, the reviewing court should

presume that counsel had a plausible reason for his actions. Lopez v. State, 343 S.W.3d

137, 142-43 (Tex. Crim. App. 2011).

       “An ineffective-assistance claim must be ‘firmly founded in the record’ and

‘the record must affirmatively demonstrate’ the meritorious nature of the claim.”

Menefield v. State, 363 S.W.3d 591, 592 (Tex. Crim. App. 2012) (quoting Goodspeed v.

State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005)). The reviewing court should not

find an attorney’s performance deficient unless the challenged conduct was so

outrageous that no competent attorney would have engaged in it. Goodspeed v. State,

187 S.W.3d 390, 392 (Tex. Crim. App. 2005). Indeed, the defendant must show that

counsel’s error was so serious that he was not functioning as counsel. Huerta v. State,

359 S.W.3d 887, 891 (Tex. App.—Houston [14th Dist.] 2012, no pet.). The record

                                          13
on appeal usually will be insufficient to show that counsel’s representation was so

deficient or lacking in tactics or strategy as to overcome the presumption that

counsel’s conduct was reasonable and professional. Bone v. State, 77 S.W.3d 828, 833

(Tex. Crim. App. 2002).

                                     Applicable Law

       Due process prohibits the use of physical restraints visible to the jury unless the

trial court in its discretion finds that they are justified by the presence of special needs.

Deck v. Missouri, 544 U.S. 622, 626, 627 (2005); see Bell v. State, 415 S.W.3d 278, 281

(Tex. Crim. App. 2013). In Deck v. Missouri, the Supreme Court discussed how

shackling interferes with the presumption of the defendant’s innocence until proved

guilty, diminishes the defendant’s right to “secure a meaningful defense” by

potentially limiting communication with his attorney, and undermines the dignity of

the judicial process. Deck, 544 U.S. at 630-31.

       The Court of Criminal Appeals has held that, while a trial court has the

discretion to shackle a defendant, the shackling must be “necessary for a particular

defendant in a particular proceeding.” Bell, 415 S.W.3d at 281. The record also “must

manifest the trial judge’s reasons for restraining a defendant,” and if the record fails to

contain the court’s grounds for restraint, the court errs in shackling a defendant. Bell,

415 S.W.3d at 281.




                                             14
                                   Relevant Facts

      After appellant testified during the punishment phase of trial, the trial court

noted for the record that:

      [O]nce [appellant] was found guilty, it’s the deputy’s policy to put him in
      leg irons. And when he was called to testify here in punishment, he got
      up and his [sic] legs irons started banging around and clanking when he
      started walking to the witness stand before I had a chance to admonish
      him or the jury on that.

      So I assume the jury may have seen that he had leg irons, but he basically
      got up and started walking toward the box before I had a chance to say
      anything. So made that kind of issue moot (6 RR at 21-22).

Appellant’s counsel did not object to the shackling of appellant (6 RR).

                                       Analysis

   a. Appellant has not meet his burden of showing that his counsel was
      ineffective for failing to object to the trial court allowing appellant to be
      shackled during the punishment phase of trial because the record is
      silent as to his counsel’s possible reasons for not objecting.

      Despite appellant’s claim that his trial court rendered ineffective assistance of

counsel by failing to object when the trial court allowed appellant to be shackled for

the punishment phase of trial, appellant has not met his burden of overcoming the

strong presumption that his counsel’s conduct might have been the result of sound

trial strategy because the record does not contain counsel’s reasons for not objecting.

Jackson, 877 S.W.2d at 771.

      While appellant asserts that the record at hand supports ineffectiveness because

the trial court’s shackled appellant without a specific reason and the record indicates


                                          15
that the jury possibly perceived appellant’s leg irons, the record in this case does not

contain an account of counsel’s trial strategy and is underdeveloped regarding whether

the jury actually observed appellant’s shackles. As such, this Court must presume that

appellant’s counsel had a plausible reason for not objecting to the court’s decision to

shackle appellant. Lopez, 343 S.W.3d at 142-43. Appellant’s trial counsel might not

have objected to or pressed the issue of appellant’s being shackled when noted on the

record because of what he observed in the courtroom or his perception of what the

jury could notice. The record is silent in this regard.

       Indeed, the record is far from confirming even whether the jury perceived

appellant’s leg irons. The trial court’s language in its statement regarding the shackles

is couched in speculation: “I assume the jury may have seen that he had leg irons” (6

RR at 22) (emphasis added). From his position in the courtroom, appellant’s counsel

might have observed something different and not wanted to press the issue to avoid

developing a negative record for appellant by questioning the jury, giving his own

perspective, or allowing the prosecutor to note what he observed. See Saenz v. State,

421 S.W.3d 725, 755-56 (Tex. App.—San Antonio 2014), reversed on other grounds, 451

S.W.3d 388 (Tex. Crim. App. 2014) (holding that Saenz did not establish ineffective

assistance of counsel for failing to object when the trial court noted its observation

that a juror was sleeping during trial because of considerations of trial strategy

involving what counsel could establish regarding the sleeping juror). As such, the




                                            16
record is not developed enough to support more than speculation regarding trial

counsel’s actions.

       It is also possible that counsel may have had a different strategic reason for not

objecting to the court’s decision to allow appellant to be shackled during punishment.

See Bone, 77 S.W.3d at 833 (noting that the record on direct appeal is insufficient to

overcome the presumption that counsel was acting in accordance with tactics or

strategy).   Perhaps in a murder case built on circumstantial evidence, counsel

strategically believed that the sight of appellant shackled could invoke sympathy in

members of the jury. As counsel was present in the courtroom and able to observe

the reactions of the jurors, counsel might not have objected to appellant’s leg irons if

he thought the sight would reveal to members of the jury the immediate

consequences for appellant of its guilty verdict and hoped the image would sway some

members to be lenient in punishment. However, the record does not contain any

indication of what counsel had in mind when not objecting on the record when the

trial court mentioned that appellant was shackled. Since the record does not contain

testimony from trial counsel regarding possible trial strategy, this Court must presume

that counsel had a plausible reason for his action.

       Because the silent record does not reveal whether appellant’s counsel relied on

strategic reasons for not objecting to appellant’s leg irons during the punishment

phase of trial and he plausibly had reasons for not objecting, appellant has not met his

burden under the first prong of Strickland of showing that his counsel was ineffective.

                                           17
Appellant’s counsel has not had the opportunity to explain his conduct, and in such

cases, the Court of Criminal Appeals has held that the reviewing court must presume

that counsel had a plausible reason for his decisions at trial. See Lopez, 343 S.W.3d at

140, 144 (overruling holding of lower court that found no plausible reason for

counsel’s action when the record was silent). In light of this presumption, appellant

has not met this burden of showing that counsel could not have had a strategic reason

for not objecting to appellant being shackled with leg irons during punishment. As

such, this Court should over rule appellant’s second point of error.2




2
  Additionally, appellant has not shown that his counsel’s failure to object was so unreasonable that
no other attorney would engage in it. See Goodspeed, 187 S.W.3d at 392. Indeed, the record infers the
opposite as the trial court stated that it is its deputy’s policy to shackle every defendant once he is
found guilty (6 RR at 21). From the trial court’s own statement, per deputy’s police, the court allows
every defendant before it to be shackled during the punishment phase of trial. However, the State
has not found any reversals arising from this policy of the 177th District Court under its current
judge suggesting that the attorneys for those defendants must not have objected as well. See Stevens v.
State, No. 01-07-00111-CR, 2008 WL 2743947, at *7-10 (Tex. App.—Houston [1st Dist.] July 10,
2008, no pet.) (mem. op., not designated for publication) (holding that the 177th District Court did
not abuse its discretion in shackling Stevens throughout his entire trial for security reasons). While
trial counsel in other courts have preserved error, see Wiseman v. State, 223 S.W.3d 45 (Tex. App.—
Houston 2006, pet. ref’d) (granting new trial to defendant who was shackled for the duration of his
trial), others have not. See Cedillos v. State, 250 S.W.3d 145, 149, 154 (Tex. App.—Eastland 2008, no
pet.) (holding Cedillos failed to preserve error when his counsel did not object to him being shackled
during trial but finding that the record did not support finding his counsel ineffective for his failure
to object).


                                                  18
   b. Assuming that appellant’s counsel rendered ineffective assistance of
      counsel by failing to object to appellant’s leg irons during the
      punishment phase of trial, appellant has not shown a reasonable
      probability that, but for his counsel’s failure, the result of the proceeding
      would have been different.

      Even if appellant could met his burden of proof to show that his counsel was

ineffective for failing to object to the trial court allowing appellant to be shackled

during the punishment phase of trial, the record does not help appellant met his

burden of proof to show that, but for his counsel’s failure, the result of the

proceeding would have been different. Strickland, 466 U.S. at 687, 694.

      Firstly, the record does not reveal whether the jury noticed that appellant was

shackled during the punishment phase of trial. While the trial court noted that

appellant’s leg irons started “banging and clanking” when he approached the stand to

testify, the court merely “assumed the jury may have seen that he had leg irons” (6 RR

at 21-22). The trial court’s assumption suggested the possibility that the jury might

have perceived appellant’s shackled legs, but nothing else in the record provides any

indication regarding the strength of the court’s assumption that the jury possibly

perceived appellant’s leg irons.     Without any further indication on the record

regarding whether the jury saw appellant’s leg iron, this Court can only assume, like

the trial court did, that “the jury may have seen” the shackles and speculate what

affect, if any, the jury may have given them if perceived (6 RR at 22). See Ziolkowski v.

State, 223 S.W.3d 640, 644-45 (Tex. App.—Texarkana 2007, pet. ref’d) (holding that



                                           19
Ziolkowski was not harmed by the trial court’s erroneous shackling of him during trial

when there was no evidence in the record that jurors saw the shackles or that the jury

took the shackles to be an indication of Ziolkowski’s guilt).

       Secondly, because the record only contains the trial court’s assumption that the

jury perceived appellant’s leg irons, it is also an assumption to speculate whether the

shackling diminished appellant’s presumption of innocence regarding the evidence of

his extraneous acts admitted during punishment or contributed to his sentence.3 See

Deck, 544 U.S. at 630-31 (shackling diminishes presumption of innocence); Glasscock v.

State, No. 06-11-00239-CR, 2012 WL 2127514, at *3 (Tex. App.—Texarkana June 13,

2012, pet. ref’d) (mem. op., not designated for publication) (holding that shackling

during the punishment phase of trial could infringe upon a defendant’s presumption

of innocence regarding extraneous offenses).                Indeed, the jury’s assessment of

punishment does not support a reasonable probability that appellant was harmed by

his counsel’s failure to object to his leg irons as the jury’s verdict falls far below the

maximum range of punishment and is even below the sentence suggested by the State

as appropriate.




3
  Discussed below in Reply to Appellant’s Third Point of Error, the State introduced evidence of
appellant’s three prior convictions at punishment as well as evidence of disciplinary infractions
appellant incurred while in jail (5 RR at 101; 6 RR at 15-16, 17, 18; State’s Ex. 63). Appellant
admitted that he had been convicted of his three prior convictions but gave qualifications regarding
his two prior assault convictions (6 RR at 15-20). He also denied one of the disciplinary infractions,
acknowledged the other two, but then gave qualifications for his actions (6 RR at 15-20).


                                                 20
       As appellant was charged with murder, he faced a sentence of incarceration for

not less than five but no more than ninety-nine years or life (CR at 192).        In its

closing argument, the State implored the jury to assess a punishment of sixty years as

an appropriate sentence for Albert’s murder (6 RR at 29). However, the State also

suggested that forty-five years was the minimum punishment the jury should consider

(6 RR at 29). Despite the State telling the jury in its closing argument that appellant

deserved a sixty years sentence, the jury assessed punishment at fifty years (6 RR at

30).   As the jury’s verdict on punishment fell in the middle of the range of

punishment appellant faced for murder and towards the lower end of the range

suggested by the State, the jury’s sentence does not suggest that it was influenced to

give appellant a harsher sentence if it perceived his leg irons. Indeed, the jury’s

assessment of punishment does not provide a reasonable probability that appellant

was prejudiced by his trial counsel’s failure to object, if his failure constituted

ineffective assistance of counsel.

       Because the record does not suggest a reasonable probability that but for

appellant’s counsel’s failure to object to appellant’s leg irons during the punishment

phase of trial, the result of the proceeding would have been different, appellant

cannot meet his burden of showing that he was prejudiced by his counsel’s

ineffectiveness, if any. As such, this Court should overrule his second point of error.




                                           21
                  REPLY TO APPELLANT’S THIRD POINT OF ERROR
III.      Appellant was not egregiously harmed by the trial court’s failure to instruct
          the jury that it had to find that appellant committed his extraneous bad acts
          of fighting, disruptive conduct, and threatening beyond a reasonable doubt.

             In his final point of error, appellant argues that he was egregiously harmed by

       the court’s charge to the jury at the punishment phase of trial because the court failed

       to instruct the jury that it needed to find beyond a reasonable doubt that appellant

       committed extraneous bad acts while in jail.        While the trial court should have

       included the instruction, appellant was not egregiously harmed by the omission.

                                        Standard of Review

             In determining whether there is reversible error in the jury charge, reviewing

       courts first decide whether error exists, and if error exists, then determine whether the

       defendant was harmed by the error. Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim.

       App. 2003). When the court erred in its jury charge and the defendant failed to object

       to the charge at trial, the reviewing court can only reverse if the defendant was

       egregiously harmed by the error. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim.

       App. 1984).

             Jury charge error is egregiously harmful when “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). In determining whether a

       defendant was egregiously harmed, “the actual degree of harm must be assayed in

       light of the entire jury charge, the state of the evidence, including the contested issues


                                                  22
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 Ngo v. State, 175 S.W.3d 738, 750 n.48 (Tex. Crim. App. 2005). The reviewing

court looks for actual and not just theoretical harm. Almanza, 686 S.W.2d at 171.

                                    Applicable Law

       Article 37.07, section 3 of the Texas Code of Criminal Procedure provides that

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

deems relevant to sentencing, including […] any other 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,

regardless of whether he has been charged with or finally convicted of the crime or

act.” TEX. CODE CRIM. PROC. ANN. art. 37.07, §3(a)(1) (West Supp. 2014). The trial

court has a duty to instruct the jury sua sponte that evidence of extraneous offenses

introduced at the punishment phase of trial must be proven beyond a reasonable

doubt before the jury can consider them. Huizar v. State, 12 S.W.3d 479, 484 (Tex.

Crim. App. 2000); see TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007) (requiring

the trial court to instruct the jury on the “law applicable to the case”).

                                         Analysis

       At the punishment phase of appellant’s trial, the trial court failed to include a

reasonable doubt instruction regarding the jury’s consideration of the evidence of

appellant’s extraneous offenses and bad acts (CR at 192-95). Consequently, the trial

                                            23
court did not instruct the jury on the law applicable to this evidence which resulted in

error in the jury charge. Huizar, 12 S.W.3d at 484. However, appellant failed to

object to the court’s failure to include the appropriate instruction in the jury charge (6

RR at 22). Thus, to obtain relief, appellant must have been egregiously harmed by the

trial court’s error. See Sansom v. State, 292 S.W.3d 112, 132 (Tex. App.—Houston

[14th Dist.] 2008, pet. ref’d). The record as a whole does not support such a finding.

   a. The court’s charge as a whole

      Firstly, while the jury charge does not contain an instruction informing the jury

that it had to find that appellant committed his extraneous bad acts beyond a

reasonable doubt before considering them, the charge as a whole does not support or

refute a finding that appellant was egregiously harmed.

      After charging the jury on the range of punishment and parole law but before

its general instructions, the court instructed the jury that “[t]he burden of proof in all

criminal cases rest upon the State throughout the trial and never shifts to the

defendant” (CR at 194). When conducting an egregious harm analysis on an identical

instruction in Martinez v. State, this Court’s sister court found that the charge did not

support or refute a finding of egregious harm. Martinez v. State, 313 S.W.3d 358, 367

(Tex. App.—Houston [1st Dist.] 2009, pet. ref’d) (holding that when the charge stated

“The burden of proof in all criminal cases rests upon the State throughout the trial

and never shifts to the defendant” but did not specifically address the State’s burden




                                           24
of proof for adjudicated extraneous offenses and bad acts, the jury charge weighed

neither for nor against a finding of egregious harm).

       While appellant points to the next paragraph in the charge that instructs the

jury that it “may take into consideration all the facts shown by the evidence admitted

before you in the full trial of this case” as an instruction granting the jury the ability to

consider the evidence without limitations, from the beginning of jury selection, the

court and attorneys reiterated that the State’s burden of proof was beyond a

reasonable doubt (3 RR at 17-21, 69, 76, 77, 79). But see Allen v. State, 47 S.W.3d 47,

52 (Tex. App.—Fort Worth, pet. ref’d) (holding that the jury charge did not

egregiously harm Allen but noting that the language in the jury charge informing the

jury to “take into consideration all the facts shown by the evidence” was troubling

when combined with the State’s arguments regarding Allen’s extraneous bad acts).

Indeed, the court’s instruction placing the burden of proof on the State was

reminiscent of the court’s discussion with the jury panel during voir dire when the

court informed the jury that the State bore the burden of proof and appellant bore no

burden at all (3 RR at 23). Combined with the repetition in jury selection that the

State held the burden of proof and that burden of proof was beyond a reasonable

doubt, the court’s charge as a whole, especially when considered in light of the legal

introduction given to the jury during voir dire, does not show that appellant was

egregiously harmed by the court’s omission.




                                             25
      Given that the trial court did not give an instruction on the State’s burden of

proof, the jury could have applied the burden repeated to them again and again during

jury selection: beyond a reasonable doubt.       However, since there is not a clear

instruction in the jury charge, the charge as a whole neither supports nor refutes a

finding of egregious harm. See Martinez, 313 S.W.3d at 367 (noting that the whole

charge weighed neither for nor against a finding of egregious harm).

   b. The state of the evidence

      Secondly, the state of the evidence presented at appellant’s trial does not

support that appellant was egregiously harmed by the trial court’s charge.

      Despite being circumstantial, the testimony and other evidence presented at the

guilt phase of trial proved beyond a reasonable doubt that appellant shot Albert in the

HEB parking lot and took the two ounces of marijuana that Albert had agreed to sell

him (3 RR at 59, 61; 4 RR at 22, 24-25, 29, 157-58; 5 RR at 88). Appellant’s cellphone

records established his movements and location around the time of the murder and

place appellant at the scene of the crime (State’s Ex. 46-49).         And additionally,

appellant later admitted to the murder (8 RR 84-86).

      As for the evidence regarding appellant’s prior extraneous convictions, the

State introduced the judgment from appellant’s misdemeanor possession of

marijuana, and appellant admitted to fighting with his father and being convicted of

one other assault, proving them beyond a reasonable doubt (5 RR at 101; 6 RR at 15-

16, 17, 18; State’s Ex. 63). See Bluitt v. State, 137 S.W.3d 51, 54 (Tex. Crim. App. 2004)

                                           26
(holding that prior final convictions do not need to be re-proven beyond a reasonable

doubt to be admissible under Article 37.03, section 3 when the conviction has already

been proven in another proceeding).

       As for the evidence regarding appellant’s disciplinary problems while in jail, the

record shows that while appellant denied fighting, he acknowledged his other

disciplinary violations:

       [Appellant]: …[B]ut all those charges are not correct.
       [Prosecutor]: Okay. So this fighting case --
       [Appellant]: The fighting case, that was horseplaying. We both ended
       up with a fighting case. It was horseplaying.
       [Prosecutor]: Okay. And then disruptive conduct?
       [Appellant]: Yes, I did because they had a shakedown and some of my
       food was stolen.
       [Prosecutor]: Okay. So you were the victim in that one, too. But you
       still lost your visitation for that?
       [Appellant]: Yes.
       [Prosecutor]: And then threatening, also. Who were you threatening?
       [Appellant]: We was watching TV and a dude came into the tank
       thinking he was running things and changed the TV and me and him had
       some words.
       [Prosecutor]: Okay. And so you lost your privileges for seven days?
       [Appellant]: Yes (6 RR at 16-17).

Appellant’s testimony and his disciplinary records are the only evidence the State

offered to prove appellant’s extraneous bad acts; however, his disciplinary problems

of fighting, disruptive conduct, and threatening are not as serious as the charged

offense of murder and his prior convictions for assault (6 RR at 5-16, 17, 18; State’s

Ex. 63). See Martinez, 313 S.W.3d at 368 (holding that in light of the evidence of

Martinez’s guilt of aggravated robbery and criminal history, the evidence of his


                                           27
unadjudicated offenses did not make the case for punishment clearly more

persuasive). In light of his prior convictions for assault and the jury’s determination

of his guilt in Alfred’s murder, appellant’s disciplinary infractions of fighting,

disorderly conduct, and threatening would not have made the case for appellant’s

punishment more persuasive. Thus, he was not egregiously harmed by the evidence

of them.

   c. The arguments of counsel

      Additionally, the arguments of counsel indicate that appellant was not

egregiously harmed by the trial court’s omission of the instruction in the jury charge.

The State did not mention appellant’s prior disciplinary infractions, much less his

prior convictions, in its arguments on punishment (6 RR at 26-29). See Zarco v. State,

210 S.W.3d 816, 827 (Tex. App.—Houston [14th Dist.] 2006, no pet.) (holding that

Zarco was not egregiously harmed by the lack of instruction regarding the State’s

burden of proof regarding extraneous offense evidence at the punishment phase even

though the State did mentioned the evidence in closing). While appellant’s counsel

did mention appellant’s “record of some misconduct,” he pointed out to the jury that,

while “any record […] is serious in some perspective,” appellant’s prior history was

“not egregious” (6 RR at 25). The arguments of counsel and their lack of emphasis

on appellant’s extraneous offenses and convictions weigh against a finding of

egregious harm. See Huizar v. State, 29 S.W.3d 249, 250 (Tex. App.—San Antonio

2000, pet.) (finding that omission of the State’s burden in the jury charge at

                                          28
punishment did not egregiously harm Huizar despite the State relying on “substantial

evidence of extraneous conduct” and remarking during closing arguments that “the

State had no burden of proof during the punishment trial”).

   d. Other relevant information

       Finally, the record does not support a finding of egregious harm because the

jury’s assessment of punishment was far below the maximum available sentence for

appellant’s offense of murder. Martinez, 313 S.W.3d at 369 (“In addressing other

relevant information, we may consider the severity of the punishment assessed, which

may indicate egregious harm in some situations.”). Appellant faced a punishment

range of five years to ninety-nine years or life incarceration, but the jury assessed fifty

years as his punishment (CR at 192, 197, 199; 6 RR at 30-31). See Huizar, 29 S.W.3d at

250 (concluding that Huizar did not suffer egregious harm from the trial court’s

failure to instruct the jury on the State’s burden at punishment when the punishment

assessed by the jury was within the authorized range of punishment). Appellant’s

sentence was well within the range authorized for his offense of murder.

       Indeed, not only was appellant’s sentence within the middle of the authorized

range of punishment, the jury’s assessment of punishment was also below the

sentence the State request that it give appellant (6 RR at 29). In its closing arguments,

the State asked that the jury assess sixty years for appellant’s punishment but told the

jury not to assess anything less than forty-five years (6 RR at 29). The fifty year

sentence assessed by the jury is much closer to the minimum range suggested by the

                                            29
State in its argument. Batiste v. State, 73 S.W.3d 402, 408 (Tex. App.—Dallas 2002, no

pet.) (finding no egregious error when the jury’s assessment of punishment was far

below the maximum available even though the State suggested that the jury start “at

the top” of the punishment range).

      Because the jury’s assessment of punishment was in the middle of the

authorized range for appellant’s offense of murder and was below the sixty year

sentence suggested by the State, appellant’s sentence does not support a finding that

he was egregiously harmed.

      Indeed, the record as a whole does not support a finding that appellant was

egregiously harmed by the trial court’s jury instruction. Because the jury charge as a

whole, the evidence presented, the arguments of counsel, and the jury’s assessment at

punishment do not suggest that appellant was egregiously harmed by the court’s

charge, this Court should overrule appellant’s third point of error and affirm his

conviction.




                                         30
                                   CONCLUSION
      The State of Texas respectfully urges the Court to overrule appellant’s points of

error and affirm his conviction.

                                                     DEVON ANDERSON
                                                     District Attorney
                                                     Harris County, Texas

                                                     /s/                   Carly Dessauer
                                                     ____________________________________________________________________________________________________________________________________________________________________________________




                                                     CARLY DESSAUER
                                                     Assistant District Attorney
                                                     Harris County, Texas
                                                      1201 Franklin, Suite 600
                                                     Houston, Texas 77002
                                                     (713) 755-5826
                                                     State Bar No. 24069083
                                                     dessauer_carly@dao.hctx.net
                                                     curry_alan@dao.hctx.net




                                         31
                      CERTIFICATE OF COMPLIANCE
      The undersigned attorney certifies that this computer-generated document has

a word count of 7,983 words, based upon the representation provided by the word

processing program that was used to create the document. TEX. R. APP. P. 9.4(i).




                                                    /s/                   Carly Dessauer
                                                    ____________________________________________________________________________________________________________________________________________________________________________________




                                                    CARLY DESSAUER
                                                    Assistant District Attorney
                                                    Harris County, Texas
                                                     1201 Franklin, Suite 600
                                                    Houston, Texas 77002
                                                    (713) 755-5826
                                                    State Bar No. 24069083




                                         32
                         CERTIFICATE OF SERVICE
      The State will serve a copy of the foregoing instrument to appellant’s attorney

though TexFile:

Angela L. Cameron
Assistant Public Defender, Harris County
1201 Franklin Street, 13th Floor
Houston, Texas 77002
angela.cameron@pdo.hctx.net



                                                    /s/                   Carly Dessauer
                                                    ____________________________________________________________________________________________________________________________________________________________________________________




                                                    CARLY DESSAUER
                                                    Assistant District Attorney
                                                    Harris County, Texas
                                                     1201 Franklin, Suite 600
                                                    Houston, Texas 77002
                                                    (713) 755-5826
                                                    State Bar No. 24069083




Date: July 9, 2015




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