Affirm and Opinion Filed July 30, 2013




                                                      S  In The
                                                   Court of Appeals
                                            Fifth District of Texas at Dallas

                                                    No. 05-11-01315-CR

                                             ODIS C. BANKS, Appellant
                                                       V.
                                           THE STATE OF TEXAS, Appellee

                                On Appeal from the 204th Judicial District Court
                                             Dallas County, Texas
                                     Trial Court Cause No. F10-59004-Q

                                           MEMORANDUM OPINION
                                       Before Justices Bridges, Lang, and Richter1
                                               Opinion by Justice Bridges
          Odis C. Banks appeals his aggravated assault conviction. A jury convicted appellant and

sentenced him to ninety-nine years’ confinement and a $10,000 fine. In a single point of error,

appellant argues the trial court erred in failing to instruct the jury that it could consider evidence

of extraneous offenses only if it believed beyond a reasonable doubt that appellant committed

those offenses. We affirm the trial court’s judgment.

          On July 31, 2010, Monica Pearson called appellant because her “daughter needed some

medicine.” At the time, Pearson was in an “open relationship” with appellant in which appellant

bought drugs for Pearson in exchange for sex. Appellant picked up Pearson, took her to the

“drug house and went to his house.” Pearson “did [her] drug and [she and appellant] got


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       The Hon. Martin Richter, Justice, Assigned
intimate.” After having sex, Pearson and appellant walked outside and saw a mailman. Pearson

was “ready to go,” but the mailman wanted to play dominos. Pearson “had a fit because I was

ready to go.” In the course of her “fit,” Pearson took the seat covers off the seats in appellant’s

car. Appellant got up, got a tree branch from a downed tree, and began hitting Pearson with the

branch. Appellant said he would “kill” Pearson and “beat [her] ass.” During the assault, which

lasted “probably thirty minutes,” the mailman was “sitting down, just sitting.” Appellant stopped

beating Pearson when his cell phone started ringing, and he answered it. Pearson called 911

using her cell phone. Appellant “start[ed] acting normal” and was “ready to take [Pearson]

home.” Pearson got in the car with appellant because she was “ready to go. It was hot, and [she]

was just ready to go home.” Appellant and Pearson drove away, but police arrived and pulled

appellant over. Police took pictures of Pearson’s bruises caused by appellant hitting her with a

stick. Pearson’s arm, thigh, and calf were swollen, and her pinky was “split.” Appellant was

subsequently charged with aggravated assault, enhanced with prior aggravated assault and

murder convictions. A jury found appellant guilty and sentenced him to life imprisonment. This

appeal followed.

       In a single issue, appellant argues the trial court erred at the punishment phase in failing

to instruct the jury that it could consider evidence of extraneous offenses only if it believed

beyond a reasonable doubt that appellant committed those offenses. Specifically, appellant

complains State’s Exhibit 8, the judgment and sentence from his prior murder conviction, also

contained five pages of disciplinary reports from his time in the penitentiary. Appellant points

out the jury was given “no guidance about how or even whether to consider these extraneous

incidents.” There was no testimonial evidence presented at the punishment phase of trial,

Appellant argues this lack of other evidence “makes the disciplinary reports appear more




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prominent and significant” and made the State’s case at punishment “significantly more

persuasive.”

       A trial court is not required to instruct the jury that prior convictions must be proved

beyond a reasonable doubt. Bluitt v. State, 137 S.W.3d 51, 54 (Tex. Crim. App. 2004). To

require that prior convictions be re-proved beyond a reasonable doubt would be an absurd result,

as the very fact of conviction is evidence that the burden of proving guilt beyond a reasonable

doubt has already been met in a prior proceeding. Id. Thus, as to the murder conviction

established by State’s Exhibit 8, no reasonable doubt instruction was required. See id.

       To the extent appellant complains of the inclusion of disciplinary reports from appellant’s

time in the penitentiary without a reasonable doubt instruction, we note appellant did not object

to the admission into evidence of State’s Exhibit 8 and did not request an instruction requiring

the jury to consider evidence of extraneous offenses only if it believed beyond a reasonable

doubt that appellant committed those offenses.        However, a reasonable doubt instruction

regarding extraneous offense evidence is “law applicable to the case” and therefore must be

given at punishment, even if not requested. Huizar v. State, 12 S.W.3d 479, 483-84 (Tex. Crim.

App. 2000). Here, appellant did not object to the alleged error in the charge or the admission of

State’s Exhibit 8, so we must decide whether the error, if any, was so egregious and created such

harm that he did not have a fair and impartial trial – in short, whether “egregious harm” has

occurred. Brown v. State, 45 S.W.3d 228, 230 (Tex. App.—Fort Worth 2001, pet. ref’d).

       The disciplinary reports attached to State’s Exhibit 8 show appellant (1) possessed

dominoes belonging to another inmate, (2) use of indecent/vulgar language, (3) having dirty bars

on his cell, (4) failing to “make the turnout for AM school with the rest of the students” and not

having a “medical lay-in,” and (5) responding “No, I will not” when asked to “help cook meat on

the grill. The evidence of prior convictions showed appellant had previously committed murder

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and aggravated assault. Thus, the jury, having already found appellant guilty of aggravated

assault, was able to consider his commission of a prior murder and aggravated assault in

assessing punishment.     Assuming without deciding that the disciplinary reports constituted

“extraneous offenses” and the trial court erred in failing to give a reasonable doubt instruction

regarding them, we conclude such error, if any, was not so egregious that appellant did not have

a fair and impartial trial. See id. We overrule appellant’s point of error.

       We affirm the trial court’s judgment.




                                                      /David L. Bridges/
                                                      DAVID L. BRIDGES
                                                      JUSTICE



Do Not Publish
TEX. R. APP. P. 47

111315F.U05




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                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

ODIS C. BANKS, Appellant                              On Appeal from the 204th Judicial District
                                                      Court, Dallas County, Texas
No. 05-11-01315-CR         V.                         Trial Court Cause No. F10-59004-Q.
                                                      Opinion delivered by Justice Bridges.
THE STATE OF TEXAS, Appellee                          Justices Lang and Richter participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 30th day of July, 2013.




                                                      /David L. Bridges/
                                                      DAVID L. BRIDGES
                                                      JUSTICE




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