                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana
        ______________________________

              No. 06-09-00197-CR
        ______________________________


             KEVIN HOGUE, Appellant

                          V.

         THE STATE OF TEXAS, Appellee




   On Appeal from the County Court at Law No. 2
                Hunt County, Texas
           Trial Court No. CR0900774




     Before Morriss, C.J., Carter and Moseley, JJ.
      Memorandum Opinion by Justice Moseley
                                 MEMORANDUM OPINION

       After having been observed exceeding the speed limit in a school zone, Kevin Hogue was

pulled over by peace officers and subsequently charged with misdemeanor driving while

intoxicated. A Hunt County jury convicted Hogue of the charge and then assessed punishment at

180 days‟ confinement in the county jail.    In its punishment charge to the jury, the trial court

failed to instruct the jury that any extraneous offenses must be proven beyond a reasonable doubt.

Finding this error did not cause egregious harm to Hogue, we affirm the trial court‟s judgment and

sentence.

       At the punishment stage of Hogue‟s trial, the State offered (without objection from Hogue)

documents establishing prior misdemeanor charges to which Hogue had pled guilty, these being

admitted into evidence. The State did not elect to present any further evidence. Hogue then took

the stand and asked the jury to suspend any sentence and recommend community supervision.

During his testimony, he indicated that consumption of alcohol was part of his lifestyle. During

the course of the State‟s cross-examination, Hogue was asked how he intended to curtail his

alcohol drinking if he was placed on community supervision (as that would be one of the court‟s

requirements of supervision). Hogue said he would just “[q]uit.” When the State asked him how

he would quit, Hogue responded that he had avoided alcohol for a period of two years after he had




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wrecked his truck in 1994. The State then asked how he had wrecked his truck. Hogue‟s

answer: “Drunk.”1

         On appeal, Hogue argues that his gratuitous admission of having wrecked his vehicle while

drunk constituted evidence of an extraneous offense or bad act, and, therefore, the trial court

should have instructed the jury that it could not consider any such conduct unless convinced such

bad act was proven beyond a reasonable doubt. See TEX. CODE CRIM. PROC. ANN. art. 37.07, §

3(a) (Vernon Supp. 2009); Huizar v. State, 12 S.W.3d 479, 484 (Tex. Crim. App. 2000). A

defendant is entitled to have the jury receive a reasonable doubt instruction regarding extraneous

offenses without request. Huizar, 12 S.W.3d at 484. It is error if the trial court fails to apply this

jury instruction sua sponte when it is appropriate to do so. Id. Hogue did not request such an

instruction and did not otherwise object to the jury charge; absent such an objection or request, we

will not reverse on this point of error unless the record demonstrates resulting egregious harm to

him under the standard set out in Almanza. Ngo v. State, 175 S.W.3d 738, 743–44 (Tex. Crim.

App. 2005) (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh‟g));

Mathonican v. State, 194 S.W.3d 59, 62, 66 (Tex. App.––Texarkana 2006, no pet.).2


1
 One observes that there were numerous ways that Hogue could have made this response, such as by describing the
nature of the wreck. The statement that he had been intoxicated at the time in response to the question which was
asked appears to have been nothing more than an unsolicited admission.
2
 In analyzing a jury charge complaint, we first determine whether error exists in the charge and, then, if there was
error, whether sufficient harm resulted from the error to compel reversal. Ngo, 175 S.W.3d at 743–44. If error
occurs because of a failure to properly instruct the jury, the standard of review depends on whether the defendant
lodged a proper objection. If a proper objection was raised, reversal is required if the error is “calculated to injure the

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         Under Almanza, the record must show that Hogue suffered actual, rather than merely

theoretical, harm from jury instruction error. Ngo, 175 S.W.3d at 750. “[E]rrors which result in

egregious harm are those which affect „the very basis of the case,‟ deprive the defendant of a

„valuable right,‟ or „vitally affect a defensive theory.‟” Hutch v. State, 922 S.W.2d 166, 171 (Tex.

Crim. App. 1996) (quoting Almanza, 686 S.W.2d at 172).                            In making an egregious harm

determination, we evaluate (1) the entire jury charge, (2) the state of the evidence, including the

contested issues and weight of probative evidence, (3) the arguments of counsel, and (4) any other

relevant information revealed by the record as a whole. Almanza, 686 S.W.2d at 171.

Almanza Analysis

         We first consider the charge as a whole; except for the omission of an instruction that

extraneous acts must be proved beyond a reasonable doubt, Hogue‟s jury charge on punishment

was legally adequate. 3 We next consider the state of the evidence. The evidence from the

guilt/innocence phase of trial was available for the jury‟s consideration at punishment. Wright v.

State, 212 S.W.3d 768, 776 (Tex. App.––Austin 2006, pet. ref‟d). Although the State did not

explicitly re-offer the evidence from the first phase of trial, such act is not required. Trevino v.



rights of defendant.” Almanza, 686 S.W.2d at 171. In other words, an error that has been properly preserved is
reversible unless it is harmless. Id. If a defendant does not object to the charge, reversal is required only if the harm
is so egregious that the defendant has not had a fair and impartial trial. Rudd v. State, 921 S.W.2d 370, 373 (Tex.
App.––Texarkana 1996, pet. ref‟d).
3
 Although the charge contains language instructing the jury not to consider Hogue‟s failure to testify as evidence
against him, when the trial court read the charge to the jury, it told the jury that paragraph did not apply because Hogue
in fact testified.

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State, 100 S.W.3d 232, 238 (Tex. Crim. App. 2003). At guilt/innocence, the State proved that

shortly after his arrest, Intoxilyzer results showed Hogue had breath-alcohol contents of .200 and

.205, well above the legal limit of .08. Hogue told the arresting officer that he (Hogue) had a

drinking problem and that it was a good thing he had been arrested. Hogue was stopped for

speeding in a school zone, going fifty-three miles per hour where the limit was thirty-five. His

eyes were glassy and bloodshot; his speech slightly slurred; and he could not successfully

complete the field sobriety tests asked of him. The only contrary evidence was the opinion of

Hogue‟s passenger. At the time of the traffic stop, Hogue was driving an elderly woman for

whom he worked to the doctor. She opined he was not drunk at the time of the stop, although she

acknowledged he had drunk two beers between 11:00 a.m. and about 2:50 p.m. Obviously, the

jury could consider Hogue‟s admission he had had one wreck previously while intoxicated.

       As for argument of counsel, the State did not mention Hogue‟s admission in closing

argument; only in rebuttal argument did the State reference Hogue‟s statement and then only

briefly. The State requested a sentence near the high end of the range of punishment, “from like

90 to 180 [days].”

Egregious Harm Not Shown

       Hogue has not demonstrated there was actual harm and not just theoretical harm by the

absence of the proper instruction in the punishment charge. See Dickey v. State, 22 S.W.3d 490,

492 (Tex. Crim. App. 1999). We cannot say that he was deprived of any valuable right or that the


                                                5
charge error affected the very basis of the case or vitally affected any defensive theory. We

overrule Hogue‟s point of error and affirm the judgment of the trial court.



                                             Bailey C. Moseley
                                             Justice

Date Submitted:       May 7, 2010
Date Decided:         May 10, 2010

Do Not Publish




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