AFFIRM; and Opinion Filed February 5, 2018.




                                             In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-17-00013-CR
                                      No. 05-17-00014-CR

                             DEION XAVIER JONES, Appellant
                                         V.
                             THE STATE OF TEXAS, Appellee

                     On Appeal from the 292nd Judicial District Court
                                  Dallas County, Texas
                   Trial Court Cause Nos. F-1520892-V and F-1520893-V

                             MEMORANDUM OPINION
                          Before Justices Francis, Evans, and Boatright
                                  Opinion by Justice Boatright
       A jury convicted Deion Xavier Jones of two aggravated robbery offenses arising from the

same criminal transaction. The jury assessed punishment at 25 years’ imprisonment for the first

charged offense and six years’ imprisonment for the second. The trial court rendered separate

judgments of conviction that ordered the sentences to run concurrently. Jones appeals and raises a

single issue contending that each of the punishment charges in his trial was fundamentally

erroneous. We affirm.

       The State’s cases against Jones were tried together. The State presented evidence during

the punishment phase of the trial that Jones was criminally responsible for two extraneous murders.

This evidence could not be considered by the jury in assessing punishment unless it was satisfied

beyond a reasonable doubt that the extraneous offenses were attributable to Jones. Huizar v. State,
12 S.W.3d 479, 484 (Tex. Crim. App. 2000). The trial court was also required to submit an

instruction in the punishment charge that the jury could not consider evidence of extraneous bad

acts and offenses unless it was satisfied beyond a reasonable doubt that such acts and offenses

were attributable to Jones. Id. Accordingly, each punishment charge in Jones’s trial instructed the

jury that:

           [I]f there is any testimony before you in this case regarding the defendant having
           committed offenses or acts other than the offense alleged against him in the
           indictment in this case, you cannot consider such testimony for any purpose unless
           you find and believe beyond a reasonable doubt that the defendant committed such
           other offenses or acts, if any were committed.

Notwithstanding this instruction, Jones faults each punishment charge for not also setting forth the

elements of the offense of murder.

           In reviewing a complaint of alleged jury charge error, we first determine whether the charge

was erroneous. Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009).1 Jones contends

that “the jury must be informed of the factual circumstances under which they can find that the

State has proven commission of an offense and such is the heart and soul of the jury charge,”

relying on Vasquez v. State, 389 S.W.3d 361, 367 (Tex. Crim. App. 2012), and on Riley v. State,

447 S.W.3d 918, 922 (Tex. App.—Texarkana 2014, no pet.). The foregoing cases address the

requirements of a guilt-innocence charge. Because such a charge is the instrument by which the

jury convicts, it must set out all of the essential elements of the offense. Vasquez, 389 S.W.3d at

366; Riley, 447 S.W.3d at 922. In contrast, the trial court need not charge the jury on the essential

elements of an extraneous offense offered during the punishment phase. Adams v. State, 502

S.W.3d 238, 245 (Tex. App.—Houston [14th Dist.] 2016, pet ref’d). This is so because the burden

of proof in the punishment phase is “applied to a defendant’s involvement in the act itself, instead



     1
       Even if there was error, it must be “fundamental” if, as in this case, the defendant did not object. Barrios, 283 S.W.3d at 350. However, our
determination that there was no error here renders unnecessary any consideration as to whether the purported error was fundamental.

                                                                       –2–
of the elements of a crime necessary for a finding of guilt.” Haley v. State, 173 S.W.3d 510, 515

(Tex. Crim. App. 2005). The question at punishment is not whether the defendant has committed

a crime, but instead what sentence should be assessed. Id. While the guilt-innocence phase requires

the jury to find the defendant guilty beyond a reasonable doubt of each element of the charged

offense, “the punishment phase requires the jury only [to] find that these prior acts are attributable

to the defendant beyond a reasonable doubt.” Id.

       In sum, the district court did not err in failing to charge the jury on the elements of the

offense of murder during the punishment phase of Jones’s trial. We overrule Jones’s sole issue and

affirm the district court’s judgments.




                                                    /Jason Boatright/
                                                    JASON BOATRIGHT
                                                    JUSTICE


Do Not Publish
TEX. R. APP. P. 47.2

170013F.U05




                                                 –3–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

 DEION XAVIER JONES, Appellant                     On Appeal from the 292nd Judicial District
                                                   Court, Dallas County, Texas
 No. 05-17-00013-CR         V.                     Trial Court Cause No. F-1520892-V.
                                                   Opinion delivered by Justice Boatright.
 THE STATE OF TEXAS, Appellee                      Justices Francis and Evans participating.

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


Judgment entered this 5th day of February, 2018.




                                             –4–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

 DEION XAVIER JONES, Appellant                     On Appeal from the 292nd Judicial District
                                                   Court, Dallas County, Texas
 No. 05-17-00014-CR         V.                     Trial Court Cause No. F-1520893-V.
                                                   Opinion delivered by Justice Boatright.
 THE STATE OF TEXAS, Appellee                      Justices Francis and Evans participating.

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


Judgment entered this 5th day of February, 2018.




                                             –5–
