                                   IN THE
                           TENTH COURT OF APPEALS

                                  No. 10-14-00229-CR

JAMES TYRONE RIGGS,
                                                              Appellant
v.

THE STATE OF TEXAS,
                                                              Appellee



                            From the 66th District Court
                                Hill County, Texas
                               Trial Court No. 38026


                CONCURRING AND DISSENTING OPINION


       I join the majority opinion on issues one, two, and three, and I concur in the

disposition of issue four, but I disagree with issue five’s disposition.

       Riggs allegedly fled from a police officer who was pursuing him because Riggs

was wanted on a Class C warrant and his driver’s license was suspended. The car chase

lasted less than a minute and covered four-tenths of a mile. It ended when Riggs parked

in his own backyard, got out of his car, and immediately walked to the patrol car. There

was no injury or property damage. Riggs was charged with the third-degree felony of
evading arrest or detention with a vehicle, which has a punishment range of two to ten

years. TEX. PENAL CODE ANN. § 12.34 (West 2011), § 38.04(a), (b)(2)(A) (West Supp. 2015).

        Riggs was also charged as a habitual felon. He pled “true” to two prior felony

convictions (a 1990 conviction for delivery of a controlled substance and a 1993 conviction

for possession of a prohibited weapon). He pled “not true” to a 2005 felony conviction

for possession of a firearm by a felon, but the jury found it “true.” These prior non-violent

felonies enhanced the punishment range to 25 to 99 years or life. TEX. PENAL CODE ANN.

§ 12.42(d) (West Supp. 2015).

        Wendell Harris testified that, after a verbal confrontation with Riggs and his two

sons stemming from Riggs’s oldest son’s past affair with Harris’s wife, he heard a

gunshot that struck him in the right hand. Harris turned around and saw Riggs pointing

a gun at him, and as he fled, Riggs kept shooting at him.1 Leslie Johnson, Harris’s cousin,

said she saw Riggs shoot Harris.           Johnson admitted she had a “back and forth”

relationship with Riggs’s nephew and she had “messed around” with one of Riggs’s sons.

        Riggs testified that the verbal confrontation with Harris was because Harris had

been “meddling” with Riggs’s son who had had an affair with Harris’s wife. Riggs said

that he himself had also had a relationship with Harris’s wife. Riggs testified that he did

not have a gun that night. He said that because Harris was cussing him and his sons, he

turned to go away and told his sons to come with him, and then he heard two shots and

everyone ran. Riggs testified that he was not guilty of shooting Harris.



1
 Harris’s and Riggs’s testimony indicate that Riggs had been charged with aggravated assault with a
deadly weapon and that the case had not yet gone to trial.

Riggs v. State                                                                              Page 2
        The trial court must give a reasonable-doubt instruction at punishment, even if not

requested, regarding extraneous-offense evidence; the trial court must instruct the jury

that the extraneous-offense evidence may not be considered in assessing punishment

until the jury is satisfied beyond a reasonable doubt that the offense is attributable to the

defendant. Huizar v. State, 12 S.W.3d 479, 484 (Tex. Crim. App. 2000) (op. on reh’g). This

instruction is especially important when the defendant, like Riggs, testifies and denies

committing the extraneous offense.

        The trial court failed to give a reasonable-doubt instruction, and Riggs, age 59, was

given a 65-year prison sentence for what otherwise would have been a non-violent third-

degree felony. Cf. Graves v. State, 176 S.W.3d 422, 435 (Tex. App.—Houston [1st Dist.]

2004, pet. struck) (finding error harmless in part because defendant received 8-year

sentence, “far below the maximum, and only three years above the minimum”). Because

I believe that the totality of the record shows that Riggs suffered egregious harm from

the trial court’s error in failing to provide a reasonable-doubt instruction in the

punishment charge for the controverted extraneous offense of aggravated assault with a

deadly weapon, I respectfully dissent. I would sustain issue five and remand the case for

a new punishment hearing.


                                                  REX D. DAVIS
                                                  Justice

Concurring and dissenting opinion delivered and filed December 10, 2015
Publish




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