                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-09-00225-CR

DEVYN JERAN LAKOSE,
                                                          Appellant
v.

THE STATE OF TEXAS,
                                                          Appellee



                          From the 19th District Court
                           McLennan County, Texas
                          Trial Court No. 2008-1549-C1


                          MEMORANDUM OPINION


      A jury convicted Devyn Jeran Lakose of murder and sentenced Lakose to ninety-

nine years in prison. In two issues, Lakose challenges instructions given in the trial

court’s punishment charge. We affirm.

                              STANDARD OF REVIEW

      When reviewing a jury charge, we first examine the charge for error. See Ngo v.

State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005) (citing Middleton v. State, 125 S.W.3d

450, 453 (Tex. Crim. App. 2003)). If error occurred, we then decide whether the error
caused harm. Id. When, as here, an appellant fails to object to the charge at trial, he

must show egregious harm to prevail on appeal. Id. at 743-44; see Almanza v. State, 686

S.W.2d 157, 171 (Tex. Crim. App. 1985).

                               THE PUNISHMENT CHARGE

        The trial court’s punishment charge states, in pertinent part:

        The State has introduced evidence of extraneous crimes or bad acts other
        than the one charged in the indictment in this case. This evidence was
        admitted only for the purpose of assisting you, if it does, in determining
        the proper punishment for the offense for which you have found the
        defendant guilty. You may not consider such testimony for any purpose unless
        you, as an individual juror, believe beyond a reasonable doubt that the defendant
        committed such other crimes or bad acts, if any were committed. It is not
        necessary that all of you agree that the Defendant committed these other crimes or
        acts, but unless you, as an individual juror, believe beyond a reasonable doubt
        that the Defendant committed such acts, you may not consider this evidence for
        any purpose. Even if you do believe beyond a reasonable doubt that the
        Defendant committed such acts, you may not consider them to show that
        he is predisposed to commit such acts but only to assist you in assessing
        the proper punishment in this case.

        You are further instructed that if you, as an individual juror, believe
        beyond a reasonable doubt that the Defendant committed such other
        offenses, if any were committed, you may consider those offenses for the
        purpose of assisting you, if it does assist you, in assessing the credibility of the
        Defendant’s testimony. Unless you believe beyond a reasonable doubt that
        the Defendant committed such offenses or conduct, you may not consider
        this evidence for any purpose.

                                         UNANIMITY

        In issue one, Lakose complains that the trial court erred by instructing the jury

that unanimity is not required with regard to extraneous-offense evidence. He argues

that, like aggravating factors and the issue of sudden passion, extraneous offenses

require jury unanimity.



Lakose v. State                                                                                Page 2
        The State may introduce, at punishment, 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…” TEX. CODE

CRIM. PROC. ANN. art. 37.07 §3(a)(1) (Vernon Supp. 2009).

        Prior crimes or bad acts are introduced to provide additional information
        which the jury may use to determine what sentence the defendant should
        receive. The statute requires that such evidence may not be considered in
        assessing punishment until the fact-finder is satisfied beyond a reasonable
        doubt that these prior acts are attributable to the defendant. Once this
        requirement is met, the fact-finder may use the evidence however it
        chooses in assessing punishment.

Fields v. State, 1 S.W.3d 687, 688 (Tex. Crim. App. 1999). Article 37.07 does not “deprive

the jury of its ultimate fact finding role.” Escovedo v. State, 902 S.W.2d 109, 114 (Tex.

App.—Houston [1st Dist.] 1995, pet.).

        Lakose cites several out-of-state cases for the proposition that, like aggravating

factors, extraneous offenses require jury unanimity. See State v. Simon, 737 A.2d 1, 33

(N.J. 1999); see also State v. Kirkley, 302 S.E.2d 144, 157 (N.C. 1983), overruled on other

grounds by State v. Shank, 367 S.E.2d 639 (N.C. 1988); Commonwealth v. Cox, 863 A.2d 536,

553 (Pa. 2004). In Texas, jury unanimity is not required as to the specific aggravating

factor underlying a general verdict. See Leal v. State, 303 S.W.3d 292, 297 (Tex. Crim.

App. 2009).

        On the other hand, a sudden passion finding does require jury unanimity: (1)

“the evident purpose of the statute -- to increase the reliability of jury verdicts -- is best

achieved if the statute is interpreted to apply to the jury’s preliminary vote on sudden

passion;” and (2) “if the Legislature intended to exempt the jury’s decision on the


Lakose v. State                                                                         Page 3
sudden passion issue from the statutory unanimity requirement, it would have stated

its intention expressly.” Sanchez v. State, 23 S.W.3d 30, 34 (Tex. Crim. App. 2000).

        According to the El Paso Court, Sanchez left open the question of whether

“unanimity is required as to the preliminary factual issues such as findings with regard

to prior felony convictions and their sequencing as opposed to unanimity regarding the

jury’s ultimate decision regarding the amount of punishment:”

        [I]n the context of allegations of alternate manners or means of
        committing a single offense, “there is no general requirement that the jury
        reach agreement on the preliminary factual issues which underlie the
        verdict.” The State maintains that as the charge required the jury to
        unanimously find Appellant’s status as a habitual offender and the
        number of years to be assessed, the charge does not violate the holding in
        Sanchez. We agree. The fact that the charge did not require unanimity
        regarding the preliminary facts leading to the finding of habitual offender
        status, does not require a finding that the charge was erroneous.

Valdez v. State, No. 08-04-00104-CR, 2006 Tex. App. LEXIS 2025, at *20-21 (Tex. App.—El

Paso Mar. 16, 2006) (not designated for publication) (emphasis added) (internal citations

omitted). The Court of Criminal Appeals affirmed:

        The jury’s finding in this case that appellant “had been finally convicted of
        at least one [felony] offense on two separate occasions from at least two”
        of the enhancement paragraphs is a unanimous finding that appellant
        committed at least “two felony offenses” even though some of the jurors
        may have believed that he committed at least one of the felonies set out in
        paragraphs “a” and “b,” and some of the jurors may have believed that he
        committed at least one of the felonies set out in paragraphs “b” and “c,”
        and the rest of the jurors may have believed that he committed at least one
        of the felonies set out in paragraphs “a” and “c.” This applies to any other
        similar combination of findings. In cases like this, when a combination of
        more than two felonies is charged for enhancement purposes, jury
        unanimity is not required on any two specific felonies out of this
        combination.




Lakose v. State                                                                         Page 4
Valdez v. State, 218 S.W.3d 82, 84-85 (Tex. Crim. App. 2007) (internal citations and

footnotes omitted).

        Moreover, the California Supreme Court rejected the argument that “the jury

must be instructed not to consider evidence of ‘other crimes’ unless it unanimously

agreed that the prosecution met its burden of proof on such crimes:”

        In so asserting, defendant misunderstands the penalty determination
        process. Section 190.3 provides that a jury may consider a number of
        factors in determining the appropriate penalty. To impose a penalty of
        death, each juror must evaluate the evidence and then unanimously
        determine that the aggravating factors outweigh the mitigating factors.
        There is no requirement that the jury agree on which factors were used to
        reach the decision. It is therefore unnecessary that the entire jury find the
        prosecutor met his burden of proof on the “other crimes” evidence before
        a single juror may consider this evidence.

People v. Miranda, 744 P.2d 1127, 1152-53 (Cal. 1987), disapproved of on other grounds by

People v. Marshall, 790 P.2d 676 (Cal. 1990). Unanimity is required on a “final verdict or

special finding,” but not a “foundational matter.”         Id. at 1153.   The defendant is

“entitled to a unanimous jury verdict in the final determination as to penalty.” Id.

        Article 37.07 requires the jury to unanimously agree on the amount of

punishment. See Sanchez, 23 S.W.3d at 33; see also TEX. CODE CRIM. PROC. ANN. art. 37.07

§3(c). In doing so, the jury may consider extraneous offenses, provided the jurors

believe the offenses are proven beyond a reasonable doubt. See TEX. CODE CRIM. PROC.

ANN. art. 37.07 §3(a)(1).      However, extraneous offenses are merely “additional

information,””foundational matters,” or “preliminary factual issues” used to assess

punishment. Fields, 1 S.W.3d at 688; Miranda, 744 P.2d at 1152-53; Valdez, 2006 Tex. App.

LEXIS 2025, at *20-21. The jury need not agree on the specific extraneous offense or


Lakose v. State                                                                         Page 5
offenses underlying its general verdict on punishment. See Miranda, 744 P.2d at 1152-53;

see also Valdez, 218 S.W.3d at 84-85; Valdez, 2006 Tex. App. LEXIS 2025, at *20-21. All to

which a defendant is entitled is a “unanimous jury verdict in the final determination as to

penalty.” Miranda, 744 P.2d at 1152-53.

        In this case, the trial court instructed the jury that its final verdict on punishment

must be unanimous. We assume that the jury followed this instruction. See Hooper v.

State, 255 S.W.3d 262, 271 (Tex. App.—Waco 2008, pet. ref’d). Because jury unanimity

was required as to the amount of punishment, but not as to the extraneous offenses

underlying its verdict, we cannot say that Lakose’s right to a unanimous jury verdict

was violated by the trial court’s instruction. We overrule issue one.

                                LIMITING INSTRUCTION

        In issue two, Lakose contends that the punishment charge limited the jury’s

consideration of extraneous-offense evidence to an improper purpose, i.e., matters

involving his credibility.

        Citing Rivera v. State, 233 S.W.3d 403 (Tex. App.—Waco 2007, pet. ref’d), Lakose

contends that, just as the guilt/innocence charge cannot limit the jury’s use of

extraneous offenses to credibility, nor can the punishment charge.            In Rivera, we

explained:

        Except for prior convictions admitted under Rule of Evidence 609,
        extraneous-offense evidence is not admissible to impeach a testifying
        defendant. The defendant can “open the door” by leaving a false
        impression with the jury about a relevant act or character trait, and
        evidence of an extraneous act that tends to rebut the false impression may
        be admissible to impeach the defendant, but with a limiting instruction
        informing the jury that it may use the extraneous-offense evidence to


Lakose v. State                                                                         Page 6
        gauge the defendant's credibility. But in a case such as this where the
        extraneous offenses are the unelected offenses that were admissible under
        section 2 of article 38.37 and the defendant merely testifies that he did not
        commit the elected offenses and the now-extraneous (i.e., unelected)
        offenses, a limiting instruction to the jury that it may use those extraneous
        offenses to pass on the credibility of the defendant’s testimony is
        erroneous.

Rivera, 233 S.W.3d at 406 (emphasis added) (internal citations omitted). Article 38.37,

section 2, addresses “evidence of other crimes, wrongs, or acts committed by the

defendant against the child who is the victim of the alleged offense.” TEX. CODE CRIM.

PROC. ANN. art. 38.37 § 2 (Vernon Supp. 2009). Rivera is inapplicable.

        Lakose further relies on Rules 608 and 609 to support his position:

        Specific instances of the conduct of a witness, for the purpose of attacking
        or supporting the witness' credibility, other than conviction of crime as
        provided in Rule 609, may not be inquired into on cross-examination of
        the witness nor proved by extrinsic evidence.

        For the purpose of attacking the credibility of a witness, evidence that the
        witness has been convicted of a crime shall be admitted if elicited from the
        witness or established by public record but only if the crime was a felony
        or involved moral turpitude, regardless of punishment, and the court
        determines that the probative value of admitting this evidence outweighs
        its prejudicial effect to a party.

TEX. R. EVID. 608(b); TEX. R. EVID. 609(a).       Rule 609 applies “only to convictions

introduced for impeachment purposes.” Barnett v. State, 847 S.W.2d 678, 679-80 (Tex.

App.—Texarkana 1993, no pet.). “Convictions admissible under TEX. CODE CRIM. PROC.

ANN. art. 37.07, § 3(a) are not for impeachment purposes, but for assessing

punishment.” Id. at 680.




Lakose v. State                                                                         Page 7
        Moreover, the Court of Criminal Appeals has held: “Article 37.07 governs the

admissibility of evidence during the punishment stage of a non-capital criminal trial.”

McGee v. State, 233 S.W.3d 315, 318 (Tex. Crim. App. 2007). The rule allows evidence to

be offered on “any matter the court deems relevant to sentencing,” including extraneous

crimes and bad acts. TEX. CODE CRIM. PROC. ANN. art. 37.07 §3(a)(1) (emphasis added).

        In McGee, after McGee testified at guilt/innocence, the State offered witness

testimony at punishment for the “purpose of showing that appellant’s guilt-stage

testimony had been a lie and, therefore, an ‘extraneous crime or bad act’ within the

meaning of Article 37.07, § 3(a), of the Texas Code of Criminal Procedure.” McGee, 233

S.W.3d at 316. The Court of Criminals Appeals agreed:

        In this case, the trial court, during the punishment stage, admitted
        evidence offered by the State for the purpose of showing that appellant
        lied on the witness stand during the guilt stage. Clearly, the trial court
        could have reasonably concluded that such evidence would be helpful to
        the jury in determining the appropriate sentence for appellant in this case.
        As the United States Supreme Court has noted, “[a] defendant’s
        truthfulness or mendacity while testifying on his own behalf, almost
        without exception, has been deemed probative of his attitudes toward
        society and prospects for rehabilitation and hence relevant to sentencing.”

Id. at 318 (quoting U.S. v. Grayson, 438 U.S. 41, 50, 98 S. Ct. 2610, 2616, 57 L. Ed. 2d 582

(1978)).

        In light of Article 37.07 and McGee, when considering extraneous crimes and bad

acts for the purpose of assessing punishment, the jury may use such evidence to pass

upon the defendant’s credibility because the defendant’s “truthfulness” and

“mendacity” are relevant to the issue of punishment. See McGee, 233 S.W.3d at 318.




Lakose v. State                                                                        Page 8
        In this case, Lakose testified at the punishment phase.      Extraneous-offense

evidence would have been relevant to the issue of punishment because it is probative of

Lakose’s “truthfulness or mendacity.”       Because Lakose’s truthfulness is a proper

purpose for evaluating extraneous-offense evidence introduced at punishment, we

cannot say that the trial court erred by so limiting the jury’s consideration of such

evidence. See McGee, 233 S.W.3d at 318. We overrule issue two.

        Having overruled Lakose’s two issues, we affirm the trial court’s judgment.




                                                       FELIPE REYNA
                                                       Justice
Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Affirmed
Opinion delivered and filed August 4, 2010
Do not publish
[CRPM]




Lakose v. State                                                                       Page 9
