Opinion issued June 19, 2014




                                    In The

                             Court of Appeals
                                   For The

                         First District of Texas
                          ————————————
                             NO. 01-12-00687-CR
                          ———————————
                 WILLIE DEWAYNE ROLAND, Appellant
                                      V.
                     THE STATE OF TEXAS, Appellee



                   On Appeal from the 337th District Court
                           Harris County, Texas
                       Trial Court Case No. 1258147



                         MEMORANDUM OPINION

      A jury convicted appellant Willie Dewayne Roland of aggravated robbery

with a deadly weapon See TEX. PENAL CODE ANN. § 29.03 (West 2011). During

the punishment phase of trial, the State questioned Roland about a prior bad act
which had not been finally adjudicated. The jury assessed punishment at 45 years

in prison, and the judgment assessed statutory court costs in the amount of $284. In

his first issue, Roland challenges the trial court’s failure to sua sponte instruct the

jury that it must find beyond a reasonable doubt that he committed an extraneous

act before considering that act in assessing his punishment. In his second issue, he

challenges the sufficiency of the evidence to support the imposition of $284 in

court costs.

      We affirm.

                                    Background

      Jeff Richardson was a real estate investor who leased apartments. He kept

large sums of cash in a safe in his home to use at real estate auctions and

foreclosure sales. Late one night in March 2010, five men dressed in overalls with

bandanas covering their faces kicked open the door to Richardson’s home. They

were all carrying guns. Richardson had seen them approaching his house and was

in his home office reaching for a gun when the men came upon him. One man put

a gun to Richardson’s head and told him to hand over his weapon, which he did.

But the robber’s bandana slipped and before he could pull it back up, Richardson

recognized him as a former resident of an apartment on Wiley Street that he had

leased to Roland’s mother. Richardson knew the man by his nickname, “Poo.”




                                          2
         Another man shot Richardson in the hip. He was bleeding profusely and told

the robbers that they would get no money if he died. The robbers dragged or

followed Richardson to his bedroom where he kept a personal safe. His wife was

asleep in bed, and the intruders roused her at gunpoint. Richardson opened the

safe, removed a total of nearly $20,000, and handed it to the men, who left soon

after.

         After the police arrived, Richardson was taken by ambulance to the hospital.

He later told the police that he recognized one of the robbers as “Poo.” The police

determined that “Poo” was a nickname for appellant Willie Dewayne Roland and

compiled a photographic lineup. Richardson positively identified Roland as the

robber who had held a gun to his head.

         Several of Roland’s relatives testified that he was in a relative’s house the

night of the robbery, “locked in” behind burglar bars, and without access to a key.

Roland testified at the guilt-or-innocence phase, denying any participation in the

crime. At that time, his attorney elicited testimony that he had been convicted in

2009 of the state-jail felony offense of attempted possession of a weapon by a

felon.

         The jury rejected the alibi testimony and found Roland guilty of committing

aggravated robbery with a deadly weapon. Roland elected jury sentencing. While

several of Roland’s relatives testified that a lenient punishment should be imposed



                                           3
so that he might be able to provide for and participate in the life of his family,

Richardson gave victim-impact testimony about being robbed at gunpoint and shot

in his home with his wife and grandchildren sleeping nearby.

      The State introduced Roland’s stipulation that he had previously been

convicted of the following crimes: (1) attempted possession of a weapon by a felon

in 2009; (2) possession of less than a gram of cocaine on four separate occasions

between 1999 and 2001; (3) misdemeanor possession of marijuana on two

occasions in 1999 and 2000; and (4) evading arrest on two occasions in 1999.

      In addition, while cross-examining Roland during the punishment phase, the

State inquired about an extraneous offense that occurred approximately three

months after Roland was released from jail after serving his sentence for attempted

possession of a weapon by a felon and approximately three weeks before the

robbery. On February 25, 2010, police officers executed a search warrant on

Roland’s home. They found a shotgun, two rocks of crack cocaine weighing 62

and 83 grams, respectively, 304 grams of marijuana, approximately $1900 in cash,

and beakers, a whisk, and a scale. Roland said the shotgun and cash belonged to

his roommate William Akins. But he admitted that he sold drugs with Akins and

that the beakers, whisk, and scale were used to measure drugs for sale. He also

admitted that as a result of the search of his home, he was arrested for possession

of a controlled substance with intent to deliver, a first-degree felony.



                                           4
      The punishment charge informed the jury that the range of punishment for

this offense was five to 99 years or life in prison and a fine of up to $10,000. There

was no instruction that the jury could consider evidence of extraneous offenses

only if it believed beyond a reasonable doubt that Roland committed those

offenses. There was no objection to the charge.

      In closing argument, Roland’s attorney asked the jury for leniency, noting

that his prior offenses were remote, nonviolent, and related to his prior personal

use of drugs. The State urged the jury to consider the facts of the robbery as

weighing in favor of a more stringent punishment in this case. The State argued

that life in prison was the appropriate punishment but that the jury should sentence

Roland to no less than 47.5 years. Without objection, the prosecutor stated that the

robbery and the arrest for possession with intent to deliver drugs showed both

recidivism and a pattern of increasing severity of offense, explaining:

      The Defense wants to tell you that these are problems and
      indiscretions of his youth. They go back to the use of drugs. Well,
      Willie Roland graduated. Because he stops being just someone who
      uses petty drugs, and he became someone who deals them and defends
      them.

      And he picks up his attempted possession of a weapon by a felon
      charge, six months in state jail in July of 2009. And just when he
      graduates from someone who merely has a weapon or may use drugs,
      by February of 2010, he is in a house that he tells you he lives in. You
      heard from Jeff Richardson early on that Willie Roland was someone
      who hung out with people who did and sold drugs. By February, just
      two weeks before the aggravated robbery that brings us here today,
      Willie Roland is in a house with almost 150 grams of cocaine. This

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      isn’t the petty 1 gram he might have had in his pocket to use on his
      own at 18 or 19 years old. These are the drugs that lead to guns and
      money and turf wars and gangs and violence, and Willie Roland is at
      the center of that.

      The jury assessed punishment of 45 years in prison, the trial court imposed

punishment and assessed $284 in statutory court costs, and Roland appealed.

                                      Analysis

 I.   Punishment phase jury instruction

      In his first issue, Roland argues that the court erred by not sua sponte

instructing the jury that it could not consider evidence of extraneous offenses in

assessing punishment unless it found beyond a reasonable doubt that Roland

committed such extraneous offenses.

      Charge error is not reversible unless it is shown to be harmful. Ngo v. State,

175 S.W.3d 738, 743 (Tex. Crim. App. 2005). Moreover, when the appellant fails

to object or states that he has no objection to the charge, we will not reverse unless

the error was egregious and created harm such as would deny the appellant a fair

trial. See Warner v. State, 245 S.W.3d 458, 461 (Tex. Crim. App. 2008); see

Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). We determine

whether the alleged harm was egregious by examining “the entire jury charge, the

state of the evidence, including the contested issues and weight of probative

evidence, the argument of counsel, and any other relevant information revealed by

the record of the trial as a whole.” Almanza, 686 S.W.2d at 171. To warrant

                                          6
reversal, the record must show that the appellant suffered actual, rather than merely

theoretical, harm. See Warner, 245 S.W.3d at 461.

          After a finding of guilt, both the State and the defendant may offer evidence:

          as to any matter the court deems relevant to sentencing, including . . .
          the prior criminal record of the defendant . . . [and] any other 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, regardless of whether
          he has previously been charged with or finally convicted of the crime
          or act.

TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1) (West Supp. 2013). The Court

of Criminal Appeals has held that a trial court is required to instruct the jury that

evidence of extraneous offenses and bad acts may not be considered in assessing

punishment unless proven beyond a reasonable doubt to be attributable to the

defendant. Huizar v. State, 12 S.W.3d 479, 484 (Tex. Crim. App. 2000); see

Rayme v. State, 178 S.W.3d 21, 25 (Tex. App.—Houston [1st Dist.] 2005, pet.

ref’d).

          Here, the State questioned Roland during the punishment phase of trial about

the police search of his home and his arrest for possession with intent to distribute

a controlled substance, which occurred several weeks before the robbery. At the

time of trial in this case, Roland had been tried and convicted of that crime, but it

was not final because it was pending on appeal. It also was not part of Roland’s

stipulated criminal record. The court did not instruct the jury as to the need to find



                                             7
beyond a reasonable doubt that Roland committed the extraneous offense. And

Roland did not object to the charge.

      Relying on Bluitt v. State, 137 S.W.3d 51 (Tex. Crim. App. 2004), the State

argues that no extraneous offense instruction was required because a jury found

him guilty of that crime beyond a reasonable doubt. At the punishment phase in

Bluitt, the State re-offered all the evidence previously presented, including three

exhibits showing that Bluitt had previously served probation and been placed on

deferred adjudication for extraneous offenses. Bluitt, 137 S.W.3d at 52. On appeal

Bluitt challenged the trial court’s failure to instruct the jury that it could consider

evidence of these extraneous offense only if it found beyond a reasonable doubt

that he had committed them. Id.

      The Court of Criminal Appeals explained the difference between the “prior

criminal record of the defendant,” as to which Article 37.07 of the Code of

Criminal Procedure does not impose a burden of proof, and “extraneous offenses

and bad acts,” as to which the Code imposes a beyond-a-reasonable-doubt burden

of proof:

      While the prior convictions must be properly proved, 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.




                                          8
Id. at 54. The Court noted that Bluitt had admitted to these offenses during the

guilt-or-innocence phase of trial and explained that these offenses were part of his

prior criminal record and not extraneous offenses or bad acts as contemplated by

Article 37.07:

      In any final conviction, the evidence was subjected to judicial testing
      of guilt with a standard of proof of beyond a reasonable doubt, and the
      burden of proof was met. In any probation, the defendant has plead
      guilty or been found guilty by a judge or jury. In any deferred
      adjudication, the defendant has plead guilty, and the court has found
      sufficient evidence to support a finding of guilty. In all these
      circumstances, the burden of proof has been met. Thus, in all such
      cases no further proof of guilt is required.

Id. The Court held that the trial court did not err in failing to give the extraneous

offense instruction because “all of the evidence as to appellant’s criminal behavior

was in the form of prior offenses which had been subjected to judicial testing under

the proper burden and the burden had been met.” Id.

      The State argues that Roland had been convicted of possession with intent to

deliver a controlled substance and regardless of the appellate status of that case, the

beyond-a-reasonable-doubt burden of proof had been met. However, there was no

proof introduced at trial that Roland had been convicted of that crime. Finding that

the conviction was pending on appeal and could not be used to impeach Roland

under Rule of Evidence 609, the trial court in this case ruled that the State could

not ask Roland whether he had been convicted of that crime. The State did not

attempt to introduce a judgment into evidence. While Bluitt explains the difference

                                          9
between the defendant’s criminal record and extraneous offenses, it does not

excuse the State from its burden of properly proving the defendant’s prior

convictions. See id. Here the State did not properly prove that Roland had been

convicted of possession with intent to deliver a controlled substance, so the

evidence would be properly viewed as an extraneous offense. Cf. id. Therefore the

trial court was required to give the extraneous-offense burden-of-proof instruction,

and it erred by not doing so. See Huizar, 12 S.W.3d at 484.

      However, the record here does not show that the trial court’s error caused

egregious harm. Roland argues that he was egregiously harmed because

insufficient evidence was introduced to show beyond a reasonable doubt that he

committed the extraneous offense of possession with intent to deliver a controlled

substance. He contends that “a proper burden of proof instruction” was therefore

not moot. He also argues that because the jury charge did not include the

extraneous-offense burden-of-proof instruction, it did not ameliorate any harm

from the State’s failure to prove the extraneous offense beyond a reasonable doubt.

He contends that the prosecutor’s reference to the extraneous offense in closing

argument “was powerful and capable of inciting the jury to make a punishment

decision based on emotions and cause them to hold Roland responsible for

numerous crimes other than the one for which they were to assess punishment.”

Finally Roland argues that had the jury been properly charged, it “likely” would



                                        10
have disregarded the extraneous offense evidence and “likely” “would have

assessed a sentence less than forty-five (45) years.”

      In reviewing a claim of egregious harm, we consider the allegation “in light

of (1) the entire jury charge, (2) the state of the evidence, (3) the argument of

counsel, and (4) any other relevant information revealed by the record of the trial

as a whole.” Almanza, 686 S.W.2d at 171; see Ngo, 175 S.W.3d at 750 n.48. “We

engage in this assessment to illuminate the actual, not just theoretical, harm to the

accused.” Martinez v. State, 313 S.W.3d 358, 367 (Tex. App.—Houston [1st Dist.]

2009, pet. ref’d).

      First, we consider the entirety of the charge. As in Martinez, “[a]lthough the

trial court failed to instruct the jury to not consider the extraneous evidence unless

it was proven beyond a reasonable doubt, the charge in the sentencing phase of the

trial generally told the jury that the State had the burden of proof throughout the

trial.” Id. The trial court’s charge to the jury stated, “The burden of proof in all

criminal cases rests upon the State throughout the trial and never shifts to the

defendant.” However, because the jury charge did not specifically address the

burden of proof for extraneous offenses, we conclude that “the general charge

instructing the jury that the State has the burden of proof throughout the trial is a

circumstance that weighs neither for or against a finding of egregious harm.” Id.




                                         11
      Second, we consider the state of the evidence. In considering the harm

caused by the failure to properly instruct the jury, we consider whether the

evidence of the extraneous offense was “clear, strong, direct, and unimpeached.”

Id. Here, Roland denied owning the money and the gun, but he freely admitted

selling drugs. Thus, the inclusion of the extraneous-offense jury charge likely

would not have made a difference in how the jury considered the evidence that he

was violating the law by selling illegal drugs.

      To determine whether the failure to include the burden of proof instruction

in the jury charge on punishment caused egregious harm, we also compare the

evidence of the unadjudicated extraneous offense with other guilt and punishment

evidence. Id. at 368. The evidence showed that Roland committed aggravated

robbery with four other men. Together they kicked open the door to Richardson’s

home, in the middle of the night, while his wife and grandchildren slept. Roland

held a gun to Richardson’s head, robbed him of nearly $20,000, and shot him in

the hip causing him to lose a large amount of blood and require emergency medical

care. During guilt-or-innocence Roland admitted to having previously been

convicted of the state-jail felony offense of attempted possession of a weapon by a

felon. During the punishment phase of trial, Roland stipulated to his criminal

record, which included prior convictions for: (1) attempted possession of a weapon

by a felon in 2009; (2) possession of less than a gram of cocaine on four separate



                                          12
occasions between 1999 and 2001; (3) misdemeanor possession of marijuana on

two occasions in 1999 and 2000; and (4) evading arrest on two occasions in 1999.

Rather than showing that he had reformed, the criminal record along with the

evidence of the aggravated robbery showed a pattern of recidivism. In light of this

evidence, the evidence that he may have possessed illegal narcotics with intent to

deliver them does not make the case for punishment clearly more persuasive. See

id.

      We next consider the argument of counsel. See id. Here, the State referred to

the unadjudicated extraneous offense in response to Roland’s counsel’s argument

that his prior criminal convictions were no more than youthful indiscretions. But

the focus of the State’s argument during punishment was on his pattern of

disrespect for the law, the violence and baselessness of the aggravated robbery

itself, and the lack of mitigating factors for his commission of the crime. In light of

the evidence of guilt and Roland’s prior criminal record, the jury’s acceptance of

the State’s version of the events by virtue of its guilty verdict, and Roland’s

admission that he sold illegal drugs, we conclude that the arguments of counsel

weigh against a finding of egregious harm. See id.

      Finally, we consider any other relevant information, including the severity of

punishment. See id. In this case, the range of punishment was five to 99 years or

life in prison and up to a $10,000 fine. See TEX. PENAL CODE ANN. § 29.03(b)



                                          13
(aggravated robbery is first-degree felony); id. § 12.32 (West 2011) (punishment

for first-degree felony). The State urged the jury to impose a sentence of life in

prison, but in no event less than 47.5 years. The jury assessed punishment at 45

years in prison and no fine. In light of the evidence of Roland’s guilt and pattern of

disregard for the law, including two convictions for evading arrest, we conclude

that the punishment imposed weighs against a finding of egregious harm. See id.;

Huizar v. State, 29 S.W.3d 249, 251 (Tex. App.—San Antonio 2000, pet. ref’d)

(holding that 99 year sentence was within sentencing range for aggravated sexual

assault and therefore no egregious harm was shown)

      “In determining whether appellant was egregiously harmed, the harm which

we must consider is the impact of the omission of a reasonable doubt instruction

concerning the unadjudicated offenses.” Martinez, 313 S.W.3d at 369–70. Based

on our review of the record and the Almanza factors, we cannot conclude that

Roland was denied a fair and impartial trial in the jury’s determination assessing a

sentence of 45 years in prison. We overrule Roland’s first issue.

II.   Sufficiency of the evidence of costs

      In his second issue, Roland argues that the evidence is insufficient to support

the assessment of $284 in statutory court costs.

      A supplemental clerk’s record was filed in this case with a “J.I.M.S. Cost

Bill Assessment.” Roland filed an objection to the supplemental clerk’s record on



                                         14
the grounds that it was not a cost bill, supplementation of the record was improper,

and there was no evidence that this document was ever presented to the trial court.

The Court of Criminal Appeals has rejected all of these arguments. See Johnson v.

State, No. PD-0193-13, 2014 WL 714736, at *4–7 (Tex. Crim. App. Feb. 26,

2014). Accordingly, we overrule Roland’s objection to the supplemental record.

See id.

      Roland further argues that the evidence is insufficient to support the

judgment against him assessing court costs of $284.00. “[W]e review the

assessment of costs to determine if there is a basis for the cost, not to determine if

there was sufficient evidence offered at trial to prove each cost.” Id. at *2. A

defendant convicted of a felony offense must pay certain statutorily mandated costs

and fees. See id. These fees vary depending on the type of offense and procedural

history of the case. See, e.g., Owen v. State, 352 S.W.3d 542, 546 n.5 (Tex. App.—

Amarillo 2011, no pet.) (providing an extensive list of Texas statutes requiring

convicted persons to pay costs and fees). The record demonstrates that Roland was

convicted of two felonies in district court, supporting each of the following costs:

      (1) $50.00 for executing or processing an issued arrest warrant,
          capias, or capias pro fine; 1

1
      TEX. CODE CRIM. PROC. ANN. art. 102.011(a)(2) (West Supp. 2013) (“A
      defendant convicted of a felony or a misdemeanor shall pay the following
      fees for services performed in the case by a peace officer . . . $50 for
      executing or processing an issued arrest warrant, capias, or capias pro
      fine.”).

                                         15
    (2) $5.00 for making an arrest without a warrant;2

    (3) $5.00 as a commitment fee;3

    (4) $5.00 as a release fee for each release on each case including
        release to the Texas Department of Criminal Justice; 4

    (5) $40.00 to the clerk’s office; 5

    (6) $5.00 security fee; 6

    (7) $133.00 consolidated court cost for conviction of a felony; 7

    (8) $4.00 jury reimbursement fee; 8




2
    Id. art. 102.011(a)(1) (“$5 for . . . making an arrest without a warrant”).
3
    Id. art. 102.001(a)(6) (“A defendant convicted of a felony or a misdemeanor
    shall pay the following fees for services performed in the case by a peace
    officer . . . $5 for commitment or release.”).
4
    Id.
5
    Id. art. 102.005(a) (West 2006) (“A defendant convicted of an offense in a
    county court, a county court at law, or a district court shall pay for the
    services of the clerk of the court a fee of $40.”).
6
    Id. art. 102.017(a) (West Supp. 2013) (“A defendant convicted of a felony
    offense in a district court shall pay a $5 security fee as a cost of court.”).
7
    TEX. LOC. GOV’T CODE ANN. § 133.102(a)(1) (West Supp. 2013) (“A person
    convicted of an offense shall pay as a court cost, in addition to all other costs
    . . . $133 on conviction of a felony.”).
8
    TEX. CODE CRIM. PROC. ANN. art. 102.0045(a) (West Supp. 2013) (“A
    person convicted of any offense, other than an offense relating to a
    pedestrian or the parking of a motor vehicle, shall pay as a court cost, in
    addition to all other costs, a fee of $4 to be used to reimburse counties for

                                          16
        (9) $25.00 district court records preservation fee; 9

        (10) $2.00 for support of indigent defense; 10

        (11) $6.00 for support for the judiciary; 11 and

        (12) $4.00 for the court technology fund. 12

These fees total $284.00, the same amount of costs assessed in the judgment in this

case:




        the cost of juror services as provided by Section 61.0015, Government
        Code.”).
9
        Id. art. 102.005(f) (“A defendant convicted of an offense in a . . . district
        court shall pay a fee of $25 for records management and preservation
        services performed by the county as required by Chapter 203, Local
        Government Code.”).
10
        TEX. LOC. GOV’T. CODE ANN. § 133.107(a) (West Supp. 2013) (“A person
        convicted of any offense, other than an offense relating to a pedestrian or the
        parking of a motor vehicle, shall pay as a court cost, in addition to other
        costs, a fee of $2 to be used to fund indigent defense representation through
        the fair defense account established under Section 79.031, Government
        Code.”).
11
        Id. § 133.105(a) (West 2008) (“A person convicted of any offense, other than
        an offense relating to a pedestrian or the parking of a motor vehicle, shall pay
        as a court cost, in addition to all other costs, a fee of $6 to be used for court-
        related purposes for the support of the judiciary.”).
12
        TEX. CODE CRIM. PROC. ANN. art. 102.0169(a) (West Supp. 2013) (“A
        defendant convicted of a criminal offense in a . . . district court shall pay a
        $4 county and district court technology fee as a cost of court.”).

                                            17
   $ 133.00 (consolidated court cost for conviction of a felony)
   $ 50.00 (arrest fee)
   $ 40.00 (clerk’s office fee)
   $ 25.00 (district court records preservation fee)
   $ 6.00 (support for the judiciary fee)
   $ 5.00 (making arrest without a warrant)
   $ 5.00 (release fee)
   $ 5.00 (commitment fee)
   $ 5.00 (security fee)
   $ 4.00 (jury reimbursement fee)
   $ 4.00 (court technology fund)
   $ 2.00 (support of indigent defense fee)
   $ 284.00

      Accordingly, we hold that the record demonstrates the basis for the court

costs assessed by the trial court. See Johnson, 2014 WL 714736, at *2, 7.

                                    Conclusion

      We affirm the judgment of the trial court.




                                                Michael Massengale
                                                Justice

Panel consists of Chief Justice Radack and Justices Massengale and Huddle.

Do not publish. TEX. R. APP. P. 47.2(b).




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