                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                              NO.   2-08-254-CR
                              NO.   2-08-255-CR
                              NO.   2-08-256-CR
                              NO.   2-08-257-CR


SAMUEL AGUILERA                                                APPELLANT

                                        V.

THE STATE OF TEXAS                                                  STATE

                                    ------------

     FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY

                                    ------------

                        MEMORANDUM OPINION 1

                                    ------------

     A jury convicted Appellant Samuel Aguilera upon his pleas of guilty to

two counts of burglary of a habitation and two counts of aggravated robbery

with a deadly weapon, with each offense charged in a separate indictment.

The jury assessed his punishment at ten years’ confinement in each of the


     1
         … See Tex. R. App. P. 47.4.
burglary cases and thirty years’ confinement in each of the aggravated robbery

cases. The trial court sentenced him accordingly and ordered all four sentences

to be served concurrently.

      In one issue, Appellant argues that the trial court committed reversible

error by failing to give sua sponte a limiting instruction that the jury could

consider the extraneous offenses only if the extraneous offenses were proved

beyond a reasonable doubt. It is uncontested that such failure was error. But

because the error did not result in egregious harm to Appellant, we affirm the

trial court’s judgments.

      Appellant admitted that he had participated in the burglary of two

separate homes and in two separate aggravated robberies in which a firearm

was used. The two robberies took place on the parking lots of two apartment

complexes in Arlington, Texas. During the first robbery, Francisco Rodriguez,

who identified himself to the police at the time as Javier Barron, and his wife,

Christina, were parked in the parking lot of their apartment complex.       The

couple was approached by two Hispanic males, and one pointed a firearm at

them. When the two men tried to take Rodriguez’s property, he fought them,

and two shots were fired. The couple later identified Appellant as one of the

robbers.

      Shortly after the first robbery, a teenager was putting his Play Station

Portable (PSP) in a car in the parking lot of his apartment complex when two


                                       2
Hispanic males, one of whom was Appellant, approached with a firearm. They

asked the teenager if he had anything and then searched his pockets and the

car, finding the PSP. One of the robbers assaulted the teenager.

      Arlington Police Officer Jonathan Mohr responded to the robbery call and

saw two Hispanic males matching the description that had been broadcast. As

the officer approached the men, Appellant started running. Officer Mohr caught

him, and the teenager identified Appellant as one of the robbers.

      When Appellant’s SUV was searched, the police officers discovered

property taken in the burglaries. The complainants in the two burglary cases

testified that their homes had been burglarized and that the property taken from

Appellant’s SUV was theirs.

      Because the only issue for the jury to decide was that of punishment, the

State called Tempie Johnson to testify that she had been robbed at gunpoint

in front of her home and that a shot had been fired at her vehicle. The shot

penetrated the door and lodged in the front seat of her vehicle. She identified

Appellant as on of the robbers by his ears.

      Appellant took the stand and admitted that he had committed the primary

offenses, but he strenuously and repeatedly denied that he had committed the

extraneous robbery of Tempie Johnson. Appellant personally asked the jury for

community supervision in each of the four cases. In final argument, defense

counsel asked for community supervision.         The prosecutor argued that


                                       3
community supervision was not appropriate and reminded the jury of the

extraneous robbery of Tempie Johnson. The jury charge did not contain an

instruction that the jury could consider the extraneous offense only if they

believed beyond a reasonable doubt that Appellant had committed it. Appellant

did not request the instruction and did not object to the jury charge for failure

to include the instruction.

      Article 37.07, section 3(a)(1) of the code of criminal procedure requires

the trial court to instruct the jury that they cannot consider extraneous offenses

unless they believe beyond a reasonable doubt that the defendant committed

those extraneous offenses.2 The court of criminal appeals has held that the

instruction does not require a request, but rather, that the trial court must give

the instruction sua sponte. Failure to give the instruction is error.3 As the

State candidly concedes, the trial court erred by failing to give the required

instruction sua sponte.

      Because such failure constitutes charge error, we apply the standard

enunciated in Almanza v. State.4 Appellant did not object to the failure of the




      2
      … Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (Vernon Supp.
2008).
      3
          … Huizar v. State, 12 S.W.3d 479, 484 (Tex. Crim. App. 2000) (op. on
reh’g).
      4
      … 686 S.W.2d 157, 171–72 (Tex. Crim. App. 1985) (op. on reh’g); see
also Huizar, 12 S.W.3d at 484.

                                        4
trial court to include the instruction and did not request the instruction.

Almanza mandates an analysis of the record to determine whether the charge

error caused Appellant egregious harm.5 Egregious harm is harm that affects

the very basis of the case, deprives the defendant of a valuable right, or vitally

affects a defensive theory.6

      In making an egregious harm determination, “the actual degree of harm

must be assayed in light of 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.” 7 The purpose of this review is to illuminate the actual, not just

theoretical, harm to the accused.8 Egregious harm is a difficult standard to

prove and must be determined on a case-by-case basis.9

      Considering the entire record and the entire jury charge, we note that the

issue of the extraneous offense was hotly contested by Appellant. Only one


      5
      … Almanza, 686 S.W.2d at 171; see Tex. Code Crim. Proc. Ann. art.
36.19 (Vernon 2007); Allen v. State, 253 S.W.3d 260, 264 (Tex. Crim. App.
2008); Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996).
      6
      … Allen, 253 S.W.3d at 264 & n.15; Olivas v. State, 202 S.W.3d 137,
144, 149 (Tex. Crim. App. 2006); Almanza, 686 S.W.2d at 172.
      7
     … Almanza, 686 S.W.2d at 171; see generally Hutch, 922 S.W.2d at
172–74.
      8
          … Almanza, 686 S.W.2d at 174.
      9
      … Ellison v. State, 86 S.W.3d 226, 227 (Tex. Crim. App. 2002); Hutch,
922 S.W.2d at 171.

                                        5
prosecutor, however, argued the extraneous offense to the jury, and that

argument was minimal.

      The State did not otherwise emphasize the extraneous offense. The jury

heard about four felony offenses committed in a very short period of time—a

crime spree spawned by Appellant’s desire for drugs and to pay for his vehicle.

The jury heard about the assault of a teenager, a firearm’s being wielded and

actually fired, and a struggle with Rodriguez for his property.      Despite the

exhibition of a firearm in both charged robberies, its firing in one robbery, and

physical assaults in both robberies, the jury assessed only a thirty-year sentence

for each aggravated robbery conviction.10 And the jury assessed a sentence of

only ten years’ confinement in each of the burglary of a habitation cases, not

an extraordinarily high sentence. 11

      Although the State did not prove that Appellant had previously been

convicted of any offense, and although Appellant was only seventeen years old

at the time he committed the offenses, we hold that the omission of the

required jury instruction did not egregiously harm Appellant. It is not our job to



      10
         … See Tex. Penal Code Ann. §§ 12.32(a) (providing range of
confinement for first degree felony is life or any term of not more than 99 years
or less than 5 years), 29.03(b) (providing that aggravated robbery is first degree
felony) (Vernon 2003).
      11
        … See id.§§ 12.33(a) (providing range of confinement for second degree
felony is from not less than two to not more than twenty years), 30.02(c)(2)
(providing that burglary of a habitation is a second degree felony).

                                        6
consider the possible harm to Appellant caused by the admission of evidence

of the extraneous offense; the harm which we must consider is the impact of

the omission in the jury charge of a reasonable-doubt instruction.12 Applying

the factors required by Almanza to the question of the impact of the omission

of that instruction, we conclude that any harm to Appellant caused by the

omission of the reasonable-doubt instruction does not rise to the level of

egregious harm. We, therefore, overrule Appellant’s sole issue and affirm the

trial court’s judgments.




                                               LEE ANN DAUPHINOT
                                               JUSTICE

PANEL: CAYCE, C.J.; DAUPHINOT and MEIER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: July 9, 2009




      12
           … See Ellison, 86 S.W.3d at 228.

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