                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-17-00101-CR

JAMES EDWARD JONES,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee


                            From the 13th District Court
                              Navarro County, Texas
                            Trial Court No. D34884-CR


                           MEMORANDUM OPINION

      James Edward Jones was convicted of burglary of a habitation and sentenced to 18

years in prison. See TEX. PENAL CODE ANN. § 30.02(c)(2) (West 2011). In three issues, Jones

contends he was egregiously harmed by the trial court’s failure to include three

instructions in its charge on punishment to the jury. Because Jones was not egregiously

harmed, we affirm the trial court’s judgment.

BACKGROUND

      Jones was accused of burglarizing a camper/trailer in which Walter Hartsfield and
his wife would stay in overnight on most weekends. Two accomplices testified as to

Jones’s involvement in the burglary. Two other witnesses testified that Jones and one of

the accomplices sold televisions to them which were stolen from the camper/trailer.

PUNISHMENT INSTRUCTIONS

        At the punishment phase of a trial, the trial court is required to include certain

instructions in the charge to the jury. See TEX. CODE CRIM. PROC. ANN. art. 37.07, secs. 3

& 4 (West 2006). Jones asserts that three of these required instructions were omitted from

the charge to the jury at the punishment phase of his trial: the parole and good time

instruction, see id. sec. 4(c); the unanimous verdict instruction, see id. sec. 3(c); and the

extraneous offense/belief beyond a reasonable doubt instruction, see id. sec. 3(a)(1).

        The State concedes that the jury charge was erroneous in that it omitted the

parole/good conduct time instruction and the unanimous verdict instruction. We agree.

See Luquis v. State, 72 S.W.3d 355, 363 (Tex. Crim. App. 2002) (parole/good conduct time

instruction); Sanchez v. State, 23 S.W.3d 30, 34 (Tex. Crim. App. 2000) (explaining that

article 37.07, § 3(c) requires the jury to unanimously agree as to the amount of punishment

for the purpose of ensuring “thorough jury deliberation does not cease once a simple

majority is achieved…”).

        The State does contest the necessity of the extraneous offense/beyond a reasonable

doubt instruction, arguing no extraneous offense evidence was admitted during the

punishment phase of the trial. However, at the end of Jones’s testimony, he pointed to

an affidavit prepared by Amanda Henderson, an accomplice, in which she took

responsibility for an extraneous burglary, evidence of which was admitted during

Jones v. State                                                                         Page 2
guilt/innocence, and informed the jury that “what she wrote here ain’t true.” On cross-

examination, the State asked Jones if he just told the jury that he committed the

extraneous burglary for which Amanda had taken responsibility. Jones replied, “She lied

about that. She didn’t do it. I did, yes.” Accordingly, because one of the complained-of

extraneous offenses was admitted in the punishment phase of Jones’s trial, the trial court

was required to instruct the jury on the reasonable doubt standard of proof concerning

the extraneous offense. Allen v. State, 47 S.W.3d 47, 50 (Tex. Crim. App. 2001); Huizar v.

State, 12 S.W.3d 479, 483, 484 (Tex. Crim. App. 2000) (op. on reh'g). Because the trial court

omitted the instruction, it erred.

Egregious Harm

        Jones admits he made no objections to any of the complained-of omissions; and

the State does not disagree.1 Under Almanza v. State, unobjected-to jury charge error will

not result in reversal of a conviction in the absence of "egregious harm." Almanza v. State,

686 S.W.2d 157, 171 (Tex. Crim. App. 1985). Jury charge error is egregiously harmful if 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

examining the record for egregious harm, we consider the entire jury charge, the state of

the evidence, the arguments of the parties, and any other relevant information revealed

by the record of the trial as a whole. Olivas v. State, 202 S.W.3d 137, 144 (Tex. Crim. App.




1
 We cannot confirm that no objections were made to the charge on punishment because our record does
not include the charge conference at punishment. Because the State does not contest Jones’s admission, we
assume it is correct.

Jones v. State                                                                                    Page 3
2006). The purpose of this review is to illuminate the actual, not just theoretical, harm to

the accused. Almanza, 686 S.W.2d at 174; Allen v. State, 47 S.W.3d 47, 51 (Tex. App.—Fort

Worth 2001, pet. ref’d).

Application

        Although the punishment charge consisted of only a few paragraphs, the charge

on guilt/innocence contained the appropriate definitions and instructions for the offense,

including extraneous offense/reasonable doubt and unanimous verdict instructions. At

guilt/innocence, Jones’s theory was that, because of his mental health disorders and the

violent nature of Amanda, Jones was not capable of committing the offense, but Amanda

was capable of committing the offense and blaming Jones for it. At the punishment

phase, the State introduced a long list of convictions Jones received over the years without

objection from Jones. Those convictions included burglary, false report, theft, criminal

mischief, criminal trespass, DWI, driving while license invalid, possession of marijuana,

possession of a controlled substance in a correctional facility, and violation of the Clean

Air Act (burning copper).      Because they were convictions and not unadjudicated

extraneous offenses, they did not require further proof of Jones’s guilt beyond a

reasonable doubt. See Bluitt v. State, 137 S.W.3d 51, 54 (Tex. Crim. App. 2004). Jones also

admitted to being arrested for domestic violence and admitted to committing the

complained-of extraneous burglary.

        Further, there was nothing in the record that shows the jury inquired about or

considered the effects of parole law or good conduct time. And, when the jury returned

its verdict on punishment, the trial court confirmed that the verdict was unanimous.

Jones v. State                                                                        Page 4
Although Jones argues that, based on Ngo v. State, 175 S.W.3d 738 (Tex. Crim. App. 2005),

he was actually harmed due to the lack of a unanimity instruction, the State distinguished

Ngo, stating that unlike in Ngo, the trial court in this case did not specifically state, and

the prosecutor did not argue, that a unanimous punishment verdict was not required.2

CONCLUSION

        Based on this record, we cannot say that Jones was egregiously harmed by the

omitted instructions. Accordingly, Jones’s three issues are overruled, and the trial court’s

judgment is affirmed.



                                                 TOM GRAY
                                                 Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed October 31, 2018
Do not publish
[CR25]




2
 The Court’s record does not include the punishment charge conference, the reading of the charge, or the
arguments of counsel. Jones does not dispute the State’s characterization of the State’s argument; thus, we
accept the State’s characterization.

Jones v. State                                                                                      Page 5
