Opinion issued November 4, 2014




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                              NO. 01-13-00254-CR
                           ———————————
                         TIMOTHY SPIVY, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 351st District Court
                           Harris County, Texas
                       Trial Court Case No. 1364113


                         MEMORANDUM OPINION

      Timothy Spivy appeals a judgment convicting him of unauthorized use of a

motor vehicle. See TEX. PENAL CODE ANN. § 31.07(a) (West 2011). After a jury

found him guilty, Spivy pleaded true to two enhancement paragraphs and the jury

assessed punishment of 20 years in prison and a $10,000 fine. In his sole issue on
appeal, Spivy contends that he was egregiously harmed by the trial court’s error in

failing to instruct the jury during punishment that it could not consider extraneous

offenses unless they were proven beyond a reasonable doubt. We affirm.

                                   Background

      During the guilt-innocence phase, Freeda Berry, a 70-year-old retired

widow, testified that Spivy came to her home in Judsonia, Arkansas, offering to

make home repairs. Berry signed a contract to pay Spivy $2,460 to make several

repairs, including replacing her bathroom floor. She gave Spivy $200 as an initial

payment. After three days, Spivy ripped up two bathroom tiles, then told Berry

that he needed more money to buy supplies. He asked for additional money

several times.

      Several weeks after the contract was signed, Spivy had not completed any

further work. He called Berry and asked her to meet him at a Chili’s 40 miles from

her home to give him more money. Berry borrowed the money from her son-in-

law and drove to meet Spivy. Spivy took the money and got into his truck, but the

truck broke down.

      Spivy asked Berry if he could borrow her car, and she refused. He asked

again and she agreed to drive him to the store where he had told her he intended to

purchase supplies. Spivy took the keys from Berry and told her he would see her




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in half an hour. When Spivy did not return, Berry called him repeatedly, but there

was no answer. Berry waited nine hours before contacting the police.

      Several days later, Berry contacted Spivy, and he told her he would return

her car to a nearby grocery store parking lot. However, Spivy later called her and

said he would not return the car.

      Houston Police Officer J. Morin testified that a month and a half after Spivy

took Berry’s car, he and his partner were on patrol in Houston and ran the license

plate of an out-of-state car with an Arkansas license plate. The car had been

reported stolen, so they stopped the car. Spivy was driving the car and asked the

officers why he had been stopped. They told him that the vehicle had been

reported stolen, and he told them he had borrowed it from his girlfriend and should

have returned it. Morin contacted Berry, who confirmed that the car had been

stolen.

      During punishment, Berry testified that Spivy took approximately $4,000

from her. She had no cash available the day that Spivy took her car and borrowed

money from her son-in-law to give to Spivy. After Spivy took the money, she was

unable to afford her medication and considered filing for bankruptcy.

                                    Discussion

      In his sole point of error, Spivy contends that the trial court erred in failing

to instruct the jury during punishment that it could not consider evidence regarding



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the money he stole from Berry unless the theft was proven beyond a reasonable

doubt.

A.       Standard of Review

         In analyzing a jury-charge issue, our first duty is to decide if error exists.

See Almanza v. State, 686 S.W.2d 157, 174 (Tex. Crim. App. 1985) (op. on reh’g);

Tottenham v. State, 285 S.W.3d 19, 30 (Tex. App.—Houston [1st Dist.] 2009, pet.

ref’d). Only if we find error do we then consider whether an objection to the

charge was made and analyze for harm. Tottenham, 285 S.W.3d at 30; see also

Warner v. State, 245 S.W.3d 458, 461 (Tex. Crim. App. 2008) (“The failure to

preserve jury-charge error is not a bar to appellate review, but rather it establishes

the degree of harm necessary for reversal.”).

         “The degree of harm necessary for reversal depends upon whether the error

was preserved.” Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996).

Error properly preserved by a timely objection to the charge will require reversal

“as long as the error is not harmless.” Almanza, 686 S.W.2d at 171. The Court of

Criminal Appeals has interpreted this to mean that any harm, regardless of degree,

is sufficient to require reversal. Arline v. State, 721 S.W.2d 348, 351 (Tex. Crim.

App. 1986). However, when the charging error is not preserved “and the accused

must claim that the error was ‘fundamental,’ he will obtain a reversal only if the

error is so egregious and created such harm that he ‘has not had a fair and impartial



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trial’—in short ‘egregious harm.’” Almanza, 686 S.W.2d at 171; see Nava v. State,

415 S.W.3d 289, 298 (Tex. Crim. App. 2013) (egregious harm “is a difficult

standard to meet and requires a showing that the defendants were deprived of a fair

and impartial trial.”). Fundamental errors that result in egregious harm are those

which affect “the very basis of the case,” deprive the defendant of a “valuable

right,” or “vitally affect his defensive theory.” Almanza, 686 S.W.2d at 172.

      When considering whether a defendant suffered harm, the reviewing court

must consider: (1) the entire jury charge; (2) the state of the evidence, including the

contested issues and weight of probative evidence; (3) the argument of counsel;

and (4) any other relevant information revealed by the record of the trial as a

whole. Id. at 171. The reviewing court must conduct this examination of the

record to “illuminate the actual, not just theoretical, harm to the accused.” Id. at

174; see Nava, 415 S.W.3d at 298 (record must disclose “actual rather than

theoretical harm”) (quoting Cosio v. State, 353 S.W.3d 766, 777 (Tex. Crim. App.

2011).

B.    Applicable Law

      When evidence of extraneous offenses or bad acts is admitted during the

punishment phase, the trial court is usually required to instruct the jury sua sponte

on the reasonable-doubt standard of proof. See Huizar v. State, 12 S.W.3d 479,

484 (Tex. Crim. App. 2000). However, some Texas appellate courts have held that



                                          5
an instruction is not required where the extraneous offenses are same-transaction

contextual evidence. See, e.g., Roberts v. State, 2009 WL 6338618, at *10 (Tex.

App.—Houston [14th Dist.] Sept. 24, 2009, pet. ref’d) (mem. op., not designated

for publication); Garza v. State, 2 S.W.3d 331, 335 (Tex. App.—San Antonio

1999, pet. ref’d).    Same-transaction contextual evidence imparts to the jury

information essential to understanding the context and circumstances of events

which may constitute legally separate offenses, but are blended or interwoven with

the charged offense. See Camacho v. State, 864 S.W.2d 524, 532 (Tex. Crim. App.

1993).

C.    Analysis

      Spivy asserts that he was egregiously harmed by the trial court’s failure to

instruct the jury during punishment that it should consider the Berry theft only if it

was proven beyond a reasonable doubt. The State argues that the trial court did not

err in failing to give the instruction because evidence of the theft was same-

transaction contextual evidence, and that even if the instruction was required,

Spivy was not egregiously harmed by its omission.

Was there error in the charge?

      Under Almanza, our first duty it to determine whether there was error in the

charge. Almanza, 686 S.W.2d at 174; Tottenham, 285 S.W.3d at 30. We conclude

that there was.



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      It is undisputed that the charge did not instruct the jury that extraneous

offenses, other than those included in the two enhancement paragraphs, must be

proven beyond a reasonable doubt. The State argues that the instruction was not

required, because evidence of the Berry theft was same-transaction contextual

evidence. But we do not agree with the State’s contention that all of the evidence it

adduced constituted same-transaction contextual evidence.

      Some of it was. In particular, evidence that Spivy had agreed to do home

repair work for Berry, arranged the meeting at Chili’s, asked to borrow Berry’s car

to purchase supplies, and promised to return the car shortly was necessary for the

jury to understand why Berry met Spivy and did not immediately call the police

when Spivy left the Chili’s with Berry’s car. But all of this evidence could have

been presented without mention of the fact that Spivy took money from Berry, or

the financial and emotional impact that Spivy’s theft of Berry’s money had on her.

See Rogers v. State, 853 S.W.2d 29, 33 (Tex. Crim. App. 1993) (en banc) (same-

transaction contextual evidence is admissible where “several crimes are

intermixed, or blended with one another, or connected so that they form an

indivisible criminal transaction, and full proof by testimony, whether direct or

circumstantial, of any one of them cannot be given without showing the others.”).

Although the theft of Berry’s money and the unauthorized use of the vehicle were

related, information about the theft was not “essential” to understanding the events



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surrounding the unauthorized use of the vehicle, and evidence regarding the events

surrounding the unauthorized use of the vehicle could be presented without

showing evidence regarding the theft. See Camacho, 864 S.W.2d at 532; Rogers,

853 S.W.2d at 33. Accordingly, the evidence of Spivy’s theft of money from

Berry was not same-transaction contextual evidence, and a reasonable doubt

instruction was required when the State presented evidence regarding the theft

during punishment. See Huizar, 12 S.W.3d at 484. The trial court erred in failing

to give the instruction. See id.

Was Spivy egregiously harmed?

      Having concluded there was error in the charge, we examine the degree, if

any, to which the error harmed Spivy. It is undisputed that Spivy did not preserve

the error; accordingly, Spivy bears the burden to demonstrate that the error caused

him egregious harm, i.e., deprived him of a fair trial or vitally affected a defensive

theory. See TEX. CODE CRIM. PROC. ANN. art. 36.19 (West 2011) (when reviewing

the jury charge on appeal, “the judgment shall not be reversed unless the error

appearing from the record was calculated to injure the rights of defendant, or

unless it appears from the record that the defendant has not had a fair and impartial

trial”); Almanza, 686 S.W.2d at 171 (“[I]f no proper objection was made at trial

and the accused must claim that the error was ‘fundamental,’ he will obtain a

reversal only if the error is so egregious and created such harm that he ‘has not had



                                          8
a fair and impartial trial’—in short ‘egregious harm.’”); see also Woodard v. State,

322 S.W.3d 648, 658 (Tex. Crim. App. 2010) (citing Almanza, 686 S.W.2d at 171–

72 (“[W]hen no proper objection is made to jury-charge error at trial, a defendant

may obtain a reversal only in those few situations where the error is ‘fundamental’

or is ‘egregious[ly] harmful.’”). To determine whether the charge error caused

egregious harm, we consider the entire jury charge, the state of the evidence,

counsel’s argument, and any other relevant information revealed by the record of

the trial as a whole. Almanza, 686 S.W.2d at 171.

      1.     The charge

      The punishment charge did not instruct the jury to consider the

unadjudicated theft only if it was proven beyond a reasonable doubt, but it did state

that the jury should find the enhancement paragraphs relating to Spivy’s prior

convictions true only if they were proven beyond a reasonable doubt. Spivy argues

that the inclusion of a reasonable doubt instruction directed at the enhancement

paragraphs, with no comparable instruction directed at other extraneous offenses,

implied to the jury that it did not have to find the extraneous theft was proven

beyond a reasonable doubt. Spivy also notes that the charge instructed the jury that

it could consider all the facts shown by the evidence admitted, which he argues

“explicitly grants permission to consider the extraneous offenses without

limitation.” As the State points out, the omission was mitigated somewhat by the



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fact that the charge also instructed the jury that the burden of proof throughout the

entire trial rests on the State. Relying upon Martinez v. State, 313 S.W.3d 358

(Tex. App.—Houston [1st Dist.] 2009, pet. ref’d), the State argues that the entire

charge does not weigh for or against a finding of egregious harm. However, in

Martinez, the instruction that the burden of proof always rests upon the State was

the only instruction in the charge related to burdens of proof. Here, the charge also

included a reasonable doubt instruction that was directed at the enhancement

paragraphs, which, as Spivy argues, could imply that the other offenses did not

have to by proven beyond a reasonable doubt. Thus, our analysis under the first

Almanza factor weighs in favor of finding egregious harm. See Almanza, 686

S.W.2d at 171.

      2.     The evidence

      Under the second Almanza factor, we consider the state of the evidence and,

in particular, whether the evidence of the Berry theft was clear, strong, direct, and

unimpeached. See Martinez, 313 S.W.3d at 367 (citing Zarco v. State, 210 S.W.3d

816, 824–25 (Tex. App.—Houston [14th Dist.] 2006, no pet.) (concluding that

“clear, direct, and unimpeached testimony” during guilt-innocence phase of trial

contributed to finding that defendant was not egregiously harmed by lack of

sentencing phase instruction regarding burden of proof for extraneous offenses)).

Berry’s testimony that Spivy took money from her, but did none of the work he



                                         10
agreed to do other than pulling up two floor tiles, was uncontradicted. Spivy

argues that the evidence could support a conclusion that Berry voluntarily gave

Spivy both the money and the use of her vehicle because they were friends, but

Spivy made this argument to the jury during guilt-innocence and the jury rejected it

when it found Spivy guilty of unauthorized use of Berry’s vehicle. See Zarco, 210

S.W.3d at 826–27 (where testimony regarding extraneous offenses was of same

character and strength as testimony on charged offense and jury believed testimony

regarding charged offense, no harm in omission of reasonable doubt instruction

from punishment charge); Martinez, 313 S.W.3d at 368 (jury likely believed

evidence of extraneous offenses beyond a reasonable doubt because evidence that

offenses occurred was clear, strong, direct and unimpeached).

      During punishment, the State also introduced Spivy’s stipulation regarding

seven prior convictions and evidence regarding those convictions. Spivy was

previously convicted of felony theft, where he stole $80,000 from a 78-year-old

victim, and of engaging in organized criminal activity, where he stole $74,000

from a 91-year-old victim. The State presented evidence that he was sentenced to

5 years in prison for the first offense and 20 years in prison for the second offense.

The State also presented evidence that Spivy had convictions for misdemeanor

theft, felony forgery, bail jumping, and two additional felony theft charges. In

each of the felony cases, he was sentenced to five years in prison.



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      Considering all of the evidence and the jury’s rejection during guilt-

innocence of Spivy’s defensive theory to the effect that Berry consented to Spivy’s

use of her car, we conclude that the second Almanza factor weighs against a

finding of egregious harm. See Zarco, 210 S.W.3d at 826–27.

      3.    Counsel’s argument

      Each side presented a short closing argument during punishment. Spivy’s

counsel did not address the evidence regarding the Berry theft, and focused

primarily on the purposes of punishment. The State briefly mentioned the Berry

theft in its closing, but it focused primarily on the evidence of Spivy’s previous

convictions. The gist of the State’s closing was that Spivy made a career of

victimizing the elderly and that his record of previous convictions showed that he

had not learned from his previous offenses and punishments. It was on this basis

that the State urged the jury to give Spivy the maximum sentence possible, arguing

that he did not get the message before.      Accordingly, we conclude that the

arguments of counsel weighs against a finding of egregious harm. See Martinez,

313 S.W.3d at 368–69 (where references in closing argument to extraneous offense

were merely part of State’s general theme, and State relied primarily on other

evidence to argue for maximum sentence, counsel’s argument weighed against

finding of egregious harm).




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      4.     Other information in the record

      Spivy argues that the fact that the jury assessed the maximum sentence

supports a finding of egregious harm. However, “a maximum punishment alone

does not indicate egregious harm.” Martinez, 313 S.W.3d at 369 (citing Huizar, 12

S.W.3d at 484). There is no egregious harm if the jury would have assessed the

sentence imposed, even if properly instructed. See id.

      Here, the State adduced evidence of Spivy’s lengthy criminal record, and

urged the jury to assess the maximum punishment because Spivy was a repeat

offender. Given Spivy’s seven prior convictions, including five felonies, and

lengthy prior sentences, we are unpersuaded that it was evidence of the Berry theft

(rather than Spivy’s criminal record) that caused the jury to assess the maximum

sentence available. Accordingly, we conclude that, on this record, the jury’s

assessment of the maximum sentence does not weigh in favor of finding egregious

harm. See Martinez, 313 S.W.3d at 369 (maximum sentence weighed against

finding of egregious harm where appellant had lengthy criminal record).

      In sum, having reviewed the entire record, we conclude that only the first

Almanza factor weighs in favor of a finding of egregious harm, and the remaining

factors do not. Accordingly, we cannot conclude that Spivy was denied a fair and

impartial trial or that the failure to instruct regarding the reasonable doubt burden

of proof during punishment vitally affected his defensive theory. See TEX. CODE



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CRIM. PROC. ANN. art. 36.19; Almanza, 686 S.W.2d at 171. We hold that the

omission of the reasonable doubt instruction did not egregiously harm Spivy. See

Martinez, 313 S.W.3d at 370 (defendant not egregiously harmed by omission of

reasonable doubt instruction where evidence, argument, and other factors weighed

against finding egregious harm).

      We overrule Spivy’s sole issue.

                                   Conclusion

      We affirm the trial court’s judgment.




                                                Rebeca Huddle
                                                Justice

Panel consists of Justices Massengale, Brown, and Huddle.

Do not publish. TEX. R. APP. P. 47.2(b).




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