Affirmed and Memorandum Opinion filed March 7, 2013.




                                    In The

                   Fourteenth Court of Appeals

                             NO. 14-12-00202-CR



                  PIERRE SENTEL BUCKLEY, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee

                   On Appeal from the 228th District Court
                           Harris County, Texas
                       Trial Court Cause No. 1275419


                      MEMORANDUM OPINION

      Appellant Pierre Sentel Buckley was indicted for capital murder, and a jury
convicted him of the lesser-included offense of aggravated robbery and assessed
punishment at 60 years’ confinement. We affirm.
                                 BACKGROUND

      The appellant has not challenged the sufficiency of the evidence supporting
his conviction; therefore, we recite only those facts necessary to the disposition of
this appeal.

      On July 14, 2010, the complainant Ontonio Cooper and his cousin, Keith
Jett, decided to purchase 100 pounds of marijuana. Jett contacted his regular drug
dealer Marcus Roberson (a/k/a “Smoke”) to set up the purchase. Cooper and Jett
went to Roberson’s apartment where they met Roberson, Edward Lacy, and the
appellant.     Cooper produced $30,000 in cash; after the men counted it out,
Roberson advised Cooper and Jett that it would take him several hours to secure
the marijuana. Cooper and Jett returned to their truck with the $30,000, and
Roberson sent Lacy and the appellant “to ride with [them] and make sure
everything is all right.”

      After driving about 10 minutes, Cooper parked the truck, and Lacy got out to
use the restroom. Jett was smoking a cigarette outside the truck when the appellant
shot him once in the neck and shot Cooper four times in the back before grabbing
the $30,000 and fleeing. Cooper was killed, but Jett survived.

      The appellant was indicted for capital murder. At trial, ballistics evidence
showed that Cooper had been killed with .38 caliber bullets, and evidence was
admitted that the appellant’s girlfriend had purchased a silver .38 caliber revolver
and a black 9mm automatic pistol shortly before Cooper’s death. The appellant’s
objections to the admission of this evidence were overruled.

      The jury was instructed on capital murder and the lesser-included offense of
aggravated robbery. The jury convicted the appellant of aggravated robbery and
sentenced him to 60 years’ confinement. This appeal followed.
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                                         ANALYSIS

I.     Unanimity

       In his first issue, the appellant argues that the jury charge violated his
constitutional and statutory right to a unanimous verdict because it instructed the
jury on two separate crimes — robbery aggravated by a serious bodily injury1 and
robbery aggravated by the use or exhibition of a deadly weapon2 — but failed to
require the jury to unanimously determine which crime the appellant committed
before finding the appellant guilty of aggravated robbery. The State concedes that
it was error to omit such a requirement from the jury charge but insists that the
error was harmless.

       We review claims of charge error under a two-pronged test. Almanza v.
State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh’g); Rolle v. State,
367 S.W.3d 746, 757 (Tex. App.—Houston [14th Dist.] 2012, pet. ref’d). We first
determine whether error exists. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim.
App. 2005); Rolle, 367 S.W.3d at 757. If error exists, we then evaluate the harm
caused by that error. Ngo, 175 S.W.3d at 743; Rolle, 367 S.W.3d at 757. The
degree of harm required for reversal depends on whether the error was preserved in
the trial court. When error is preserved in the trial court by timely objection, the
record must show only “some harm.” Rolle, 367 S.W.3d at 757. If the error was
not objected to, then it must be “fundamental error” and requires reversal only if it
was so egregious and created such harm that the defendant has not had a fair and
impartial trial. Id.



       1
           Tex. Penal Code § 29.03(a)(1) (Vernon 2011).
       2
           Tex. Penal Code § 29.03(a)(2) (Vernon 2011).
                                                3
      An egregious harm determination must be based on a finding of actual rather
than theoretical harm. Cosio v. State, 353 S.W.3d 766, 777 (Tex. Crim. App.
2011). Actual harm is difficult to prove and depends on the facts of each particular
case. Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996). A reviewing
court considers charge error in the context of (1) the entire charge; (2) the state of
the evidence, including contested issues and the weight of the probative evidence;
(3) arguments of counsel; and (4) any other relevant information revealed by the
record of the trial as a whole. Id.

      The appellant did not object to the jury charge below. Therefore, we apply
the egregious harm standard. See Rolle, 367 S.W.3d at 757.

      The appellant contends that he was egregiously harmed because “serious,
unanswered questions about what facts the jury accepted and rejected”
compounded the charge error and deprived him of his valuable right to a
unanimous verdict.

      A.     The Entire Jury Charge

      The copy of the jury charge included in this record has several handwritten
notations in the margins as well as some underlining. Within the instructions on
capital murder, several passages on intent are underlined; within the instructions on
aggravated robbery, only one passage contains underlining.

      If you find from the evidence beyond a reasonable doubt that [the
      appellant] and Marcus Roberson and/or Edward Lacy entered into an
      agreement to commit the felony offense of robbery of Ontonio
      Cooper, and pursuant to that agreement, if any, they did carry out their
      conspiracy and that in Harris County, Texas, on or about the 14th day
      of July, 2010, while in the course of committing such robbery of
      Ontonio Cooper, Marcus Roberson and/or Edward Lacy threatened or
      placed Ontonio Cooper in fear of imminent bodily injury or death by

                                          4
      using or exhibiting a deadly weapon, namely a firearm, and said
      offense was committed in furtherance of the conspiracy and was an
      offense that should have been anticipated by the defendant as a result
      of carrying out the conspiracy, then you will find [the appellant] guilty
      of aggravated robbery.

According to the appellant, this underlining “indicates that there may have been a
disagreement among jurors on whether Cooper was intentionally killed or merely
threatened with a deadly weapon.”       Nothing in the record explains why the
notations were made, who made them, or what they signify. Even assuming that
these notes were made by the jury, this court has previously refused to engage in
the “pure speculation” of interpreting juror underlining. See Bolden v. State, No.
14-96-00319-CR, 1998 WL 255170, at *5 (Tex. App.—Houston [14th Dist.] May
21, 1998, pet. ref’d) (not designated for publication). We see no reason here to
depart from this approach; the underlining does not compound the charge error for
purposes of an Almanza analysis. See id.; see also Chapman v. State, 859 S.W.2d
509, 514 (Tex. App.—Houston [1st Dist.] 1993) (“The record contains no
indication as to who underscored the lines. We will not accept as fact appellant’s
assertions in his appellate brief, which the State disputes as speculative, and which
are not supported by the record.”), rev’d on other grounds, 921 S.W.2d 694 (Tex.
Crim. App. 1996).

      Unanimity is mentioned once in the 17-page charge, in the boilerplate
section regarding the selection of the jury foreman:

            After you retire to the jury room, you should select one of your
      members as your foreman. It is his or her duty to preside at your
      deliberations, vote with you, and when you have unanimously agreed
      upon a verdict, to certify your verdict by using the appropriate form
      attached hereto and signing the name as Foreman.


                                         5
This instruction does not cure the charge error. See Ngo v. State, 175 S.W.3d 738,
745 (Tex. Crim. App. 2005); Marinos v. State, 186 S.W.3d 167, 175 (Tex. App.—
Austin 2006, pet. ref’d).

       We note, however, that the portion of the jury charge at issue here is not
directly related to any defensive theory raised by the evidence, nor does it
affirmatively misstate the State’s burden of proof. See Villareal v. State, No. 04-
11-007771-CR, __ S.W.3d __, 2012 WL 6028981, at *7 (Tex. App.—San Antonio
Dec. 5, 2012, no pet.) (“Without the presumption of reasonableness instruction,
Villareal’s only defense was significantly undermined.”); State v. Sanchez, No. 08-
11-00380-CR, __ S.W.3d __, 2012 WL 4910163, at *4 (Tex. App.—El Paso Oct.
17, 2012), pet. struck by No. PD-1656-12, 2013 WL 458167 (Tex. Crim. App.,
Feb. 6, 2013) (Charge defining aggravated sexual assault “without reference to the
aggravating element that [the complainant] feared her death was imminent”
omitted “the critical portions of the charge.”).

       We conclude that the jury charge weighs only slightly in favor of concluding
that the appellant has suffered egregious harm. See Hayes v. State, 265 S.W.3d
673, 692 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d) (concluding the trial
court’s failure to categorize “delivery” as “constructive delivery” in one portion of
the jury charge had small effect on Almanza analysis).

       B.    The State of the Evidence

       The second factor of the Almanza analysis requires a determination of
whether the jury charge error related to a contested issue. Hutch, 922 S.W.2d at
173.

       The appellant was indicted and tried for capital murder, and he did not
dispute the fact of Cooper’s death. Neither the appellant nor the State asserted that
                                           6
Cooper had been threatened before he was shot four times; the appellant’s trial
strategy focused on attacking the sufficiency of the evidence linking the appellant
to Cooper’s death. On this record, the jury charge seems to be the first time the use
or exhibition of a deadly weapon as an aggravating factor is discussed. During
trial proceedings, the evidence of Cooper’s death was undisputed, uncontradicted,
and seemed to have been taken as a “given” by the parties. See Kucha v. State, 686
S.W.2d 154, 156 (Tex. Crim. App. 1985).

      We conclude that the state of the evidence weighs against egregious harm.

      C.     Jury Argument

      The third factor of Almanza harm analysis is the jury argument. Hutch, 922
S.W.2d at 173; Toney v. State, 3 S.W.3d 199, 207 (Tex. App.—Houston [14th
Dist.] 1999, pet. ref’d). Jury argument alone is never a controlling factor in an
Almanza harm analysis. Hutch, 922 S.W.2d at 174; Toney, 3 S.W.3d at 207.

      Here, the omission in the jury charge was not argued to the jury. Both the
appellant and the State focused their arguments on the credibility of witnesses and
the strength of other evidence linking the appellant to Cooper’s death. Neither side
argued that the appellant had threatened Cooper.

      We conclude that the jury argument factor weighs against egregious harm.

      D.     The Record as a Whole

      The appellant argues that, when the record is examined as a whole, “warts
and all,” it supports a finding of egregious harm. He argues:

      Lacy testified that plans to rob Cooper by merely threatening him with
      a firearm were discussed, that [the appellant] suggested shooting
      Cooper and Jett, and that Lacy and Roberson wanted no part in a
      murder. Roberson denied that any plans were discussed. [Witness]
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      Breanna Morris was unable to identify the shooter. [Witness Alicia]
      Randel’s testimony does not indicate which person shot Cooper or
      Jett. Finally, Jett originally identified Lacy as the shooter. There are
      facts sufficient to support a verdict of aggravated robbery “by threats
      made using a deadly weapon,” and a verdict of aggravated robbery
      “by serious bodily injury.” [The appellant’s] liability for the two
      offenses may or may not have been mutually exclusive, and this Court
      cannot determine from the [s]tate of the evidence whether the jury
      favored either or both theories of culpability. Therefore, the improper
      charge in this case resulted in egregious harm to [the appellant].

Even if the jury were to believe all of the facts as alleged by the appellant, nothing
in the record supports a finding that the appellant or his codefendants ever
threatened Cooper.     Accordingly, we reject the contention that a unanimity
instruction would have affected the jury’s decision.

      We conclude that the appellant has failed to demonstrate egregious harm,
and we overrule his first issue.

II.   Evidence Concerning the Guns

      In his second issue, the appellant argues that the trial court erred by
admitting evidence that the appellant’s girlfriend had purchased a silver .38 caliber
revolver and a black 9mm automatic pistol shortly before Cooper’s death.
According to the appellant, those weapons were unconnected with Cooper’s death;
therefore, evidence relating to them was irrelevant and inadmissible. Alternatively,
the appellant argues that, if evidence concerning the guns was relevant, its
probative value was substantially outweighed by the danger of unfair prejudice.
We will address each of these arguments in turn.




                                          8
      A.     Relevance

      Evidence is relevant if it has “any tendency to make the existence of any fact
that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence.” Tex. R. Evid. 401. “Evidence
which is not relevant is inadmissible.” Tex. R. Evid. 402. Questions of relevance
should be left largely to the trial court, relying on its own observations and
experience, and will not be reversed absent an abuse of discretion. Goff v. State,
931 S.W.2d 537, 553 (Tex. Crim. App. 1996).

      Though a trial court has substantial discretion, it can abuse its discretion if
its rulings are outside that zone within which reasonable persons might disagree.
Nickerson v. State, 312 S.W.3d 250, 255 (Tex. App.—Houston [14th Dist.] 2010,
pet. ref’d); see Apolinar v. State, 155 S.W.3d 184, 186 (Tex. Crim. App. 2005). A
trial court’s ruling on the admissibility of evidence will be upheld if the record
reasonably supports the ruling. Brito Carrasco v. State, 154 S.W.3d 127, 129
(Tex. Crim. App. 2005).

      The trial court admitted evidence that the appellant’s girlfriend purchased
two different guns — a silver .38 caliber revolver and a black 9mm semiautomatic
pistol — shortly before Cooper’s death and that the appellant had been present for
both of those purchases. The appellant objected to this evidence on the grounds
that it was irrelevant and that its probative value was substantially outweighed by
the danger of unfair prejudice. The trial court overruled the appellant’s objections.

      On appeal, the appellant argues that the only firearm connected to Cooper’s
death was a black .38 caliber gun. This assertion is based on the appellant’s
contentions that (1) undisputed ballistics evidence showed that a .38 caliber gun
was used to kill Cooper and (2) witness Alicia Randel testified that she saw the
                                          9
appellant with a black gun immediately after the shooting. Because neither gun
purchased by the appellant’s girlfriend matches this description, the appellant
argues that neither gun was relevant to the State’s prosecution.

      Randel’s testimony with respect to seeing a black gun is not as definitive as
the appellant suggests. Randel testified that she did not see the shooting actually
occur, and her testimony about the gun’s color was equivocal. The following
exchange occurred during cross-examination:

      Q. [Defense counsel] And [the appellant] was putting something in [a
      backpack], which you thought was a gun?
      A. [Randel] Yes.
      Q. But you couldn’t tell what color it was.
      A. I don’t remember. I believe it was black though.
      Q. Okay. All right. And why is it that you believe it was black? I’m
      not going to argue with you because I don’t know what you saw. I’m
      just asking.
      A. I just believe it was black.
      Q. Okay. So, when you say you don’t remember, you believe it was
      black. You’re not positive, but your best guess is it was black?
      A. Yes, sir.
      Q. Do you know that guns sometimes are silver? Sometimes they’re
      like chrome.
      A. Yes.
      Q. Was it a chrome gun?
      A. I don't know.
      Q. Okay. Well, there’s a lot of difference between a chrome gun and
      a black gun, right?
      A. Yes.
      Q. And your best recollection is it was a black gun?
      A. I believe so.

Further, one of the appellant’s codefendants testified that the appellant had used a
silver gun.


                                         10
      Lacy testified that the appellant was carrying a “[c]hrome .38, snub-nose
revolver” on the day Cooper was killed; the appellant discounts this testimony as
“provably false” because Lacy testified that he had seen the appellant with that
gun several different times. The appellant argues that “Lacy could not possibly
have seen [the appellant] carrying around the .38 revolver on multiple occasions
because [the appellant’s girlfriend] purchased the revolver only two days before
the July 14, 2010 shooting.” The appellant does not address the possibility that
Lacy had seen the appellant multiple times within that two-day period.

      We conclude that the trial court did not abuse its discretion by implicitly
finding that the evidence concerning the guns was relevant.

      B.    Unfair Prejudice

      “Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues,
or misleading the jury, or by considerations of undue delay, or needless
presentation of cumulative evidence.”      Tex. R. Evid. 403.     When Rule 403
provides that evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, it simply means that trial courts
should favor admission in close cases, in keeping with the presumption of
admissibility of relevant evidence. Moreno v. State, 22 S.W.3d 482, 487 (Tex.
Crim. App. 1999). In reviewing the trial court’s balancing test determination, a
reviewing court is to reverse a trial court’s judgment rarely and only after a clear
abuse of discretion. Mozon v. State, 991 S.W.2d 841, 847 (Tex. Crim. App. 1999);
State v. Mechler, 123 S.W.3d 449, 454 (Tex. App.—Houston [14th Dist.] 2003),
aff’d, 153 S.W.3d 435 (Tex. Crim. App. 2005).



                                        11
       “Unfair prejudice” refers to a tendency to suggest decision on an improper
basis, commonly, though not necessarily, an emotional one. Casey v. State, 215
S.W.3d 870, 879 (Tex. Crim. App. 2007). Evidence might be unfairly prejudicial
if, for example, it arouses the jury’s hostility or sympathy for one side without
regard to the logical probative force of the evidence. Id. at 880. Unfair prejudice
does not arise from the mere fact that evidence injures a party’s case. Id. at 883.
Virtually all evidence that a party offers will be prejudicial to the opponent’s case,
or the party would not offer it. Id. Evidence is unfairly prejudicial only when it
tends to have some adverse effect upon a defendant beyond tending to prove the
fact or issue that justifies its admission into evidence. Id.

       The inherent probative force of the evidence concerning the guns was its
tendency to show that the appellant was the shooter. The appellant argues that the
evidence is unfairly prejudicial for the same reason — its tendency to show that the
appellant was the shooter.       Though this evidence may be prejudicial to the
appellant’s case, it is not unfairly prejudicial.

       We overrule the appellant’s second issue.

                                   CONCLUSION

       Having overruled the appellant’s issues on appeal, we affirm the judgment
of the trial court.




                                         /s/    William J. Boyce
                                                Justice

Panel consists of Chief Justice Hedges and Justices Boyce and Donovan.
Do Not Publish — Tex. R. App. P. 47.2(b).
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