                                                                                        PD-1169-15
                                                                       COURT OF CRIMINAL APPEALS
                                                                                       AUSTIN, TEXAS
                                                                     Transmitted 10/8/2015 10:16:10 AM
                                                                        Accepted 10/8/2015 4:10:43 PM
                                                                                        ABEL ACOSTA
                               NO. PD-1169-15                                                   CLERK

                                IN THE
                      COURT OF CRIMINAL APPEALS
                              OF TEXAS
                              AT AUSTIN
                         _________________________

                     ERRINGTON CHARLES HATCH,
                                 Appellant

                                         v.
October 8, 2015
                          THE STATE OF TEXAS,
                                      Appellee
                         _________________________

                     On appeal in Cause No. F11-59284-K
                     from the Criminal District Court No. 4
                             Of Dallas County, Texas
                  And on Petition for Discretionary Review from
                       the Fifth District of Texas at Dallas
                          In Cause No. 05-13-01710-CR
                         _________________________

      APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                   _________________________

                                                Counsel of Record:

             Lynn Richardson                    Nanette Hendrickson
             Chief Public Defender              Assistant Public Defender
                                                Dallas County Public Defender’s Office
             Katherine A. Drew                  State Bar Number: 24081423
             Chief, Appellate Division          133 N. Riverfront Blvd., LB 2
                                                Dallas, Texas 75207-399
                                                (214) 653-3550 (telephone)
                                                (214) 653-3539 (fax)

                      ATTORNEYS FOR PETITIONER/APPELLANT
                            LIST OF PARTIES


TRIAL COURT JUDGE
Dominique Collins –Criminal District Court No. 4

APPELLANT
Errington Charles Hatch

APPELLANT’S ATTORNEYS
AT TRIAL
Paul Brauchle, State Bar No. 02918000
4131 North Central Expressway, Ste. 680
Dallas, Texas 75204-2171

ON APPEAL
Nanette R. Hendrickson, State Bar No. 24081423
Assistant Public Defender
Dallas County Public Defender’s Office
Frank Crowley Courts Building
133 N. Riverfront Blvd., LB 2
Dallas, Texas 75207-4399

STATE’S ATTORNEYS
AT TRIAL
George B. Lewis, II, State Bar No. 24060167
Assistant District Attorney
Dallas County District Attorney’s Office
Frank Crowley Courts Building
133 N. Riverfront Blvd., LB-19
Dallas, Texas 75207-4399

ON APPEAL
Patricia Poppoff Noble, State Bar No. 15051250
Assistant District Attorney
Dallas County District Attorney’s Office
Frank Crowley Courts Building
133 N. Riverfront Blvd., LB-19
Dallas, Texas 75207-4399



                                     ii
                                       TABLE OF CONTENTS


LIST OF PARTIES ................................................................................................... ii
INDEX OF AUTHORITIES ....................................................................................iv
STATEMENT REGARDING ORAL ARGUMENT ............................................... 1
STATEMENT OF THE CASE ................................................................................. 1
STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE .................... 1
STATEMENT OF FACTS ........................................................................................ 2
GROUND FOR REVIEW ......................................................................................... 2
          Whether the Court of Appeals failed to apply this Court’s ruling
          that requires the trial court to apply the specific facts of a case to
         the law of parties in the jury charge upon the objection and request
                                    of the defendant.
ARGUMENT ............................................................................................................. 2
         FACTS ............................................................................................................. 3
         APPLICABLE LAW ....................................................................................... 5
         THE COURT OF APPEALS’ HOLDING IS INCORRECT ......................... 5
         CONCLUSION ............................................................................................... 9
PRAYER FOR RELIEF ..........................................................................................10
CERTIFICATE OF SERVICE ................................................................................10
CERTIFICATE OF COMPLIANCE .......................................................................11




                                                          iii
                                   INDEX OF AUTHORITIES

Cases
Campbell v. State,
 910 S.W.2d 475 (Tex. Crim. App. 1995) ............................................. 2, 5, 6, 7
Hatch v. State,
 No. 05-13-01710-CR, 2015 Tex. App. LEXIS 8358 (Tex. App.—Dallas
 August 10, 2015) ...........................................................................................2, 6
Johnson v. State,
  739 S.W.2d 299 (Tex. Crim. App. 1987) ..........................................................5
Jones v. State,
  815 S.W.2d 667 (Tex. Crim. App. 1991) ..........................................................5
Vasquez v. State,
  389 S.W.3d 361 (Tex. Crim. App. 2012) ................................................. 5, 6, 8
Statutes
TEXAS PENAL CODE § 29.03 ..................................................................................3
Rules
TEX. R. APP. P. 68.4(i) ..........................................................................................2




                                                        iv
TO THE HONORABLE COURT OF CRIMINAL APPEALS:

      Errington Charles Hatch, Appellant, respectfully presents to this

Honorable Court his Petition for Discretionary Review of the Fifth District

Court of Appeals’ Opinion affirming the trial court’s judgment.

           STATEMENT REGARDING ORAL ARGUMENT

      Appellant requests oral argument because this case presents a question of

law on issues having statewide impact and possible reoccurrence. Oral

argument may be helpful to the members of this Court in the resolution of the

issues presented.

                     STATEMENT OF THE CASE

      Appellant was charged by indictment with aggravated robbery with a

deadly weapon. (CR: 12). On November 26, 2013, Appellant pled not guilty

to the indictment and was tried and convicted by a jury. (RR2: 118; RR3:

99). The trial court determined punishment at a hearing on November 26,

2013. (RR4: 1-95). Following the punishment hearing, the trial court

sentenced Appellant to forty years’ imprisonment. (RR5: 14; CR: 67).

Appellant timely filed his notice of appeal on November 26, 2013. (CR: 72).

 STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE

      On August 10, 2015, in an unpublished opinion authored by Justice

Francis, the Court of Appeals for the Fifth District of Texas affirmed the



                                     1
trial court’s judgment. Hatch v. State, No. 05-13-01710-CR, 2015 Tex. App.

LEXIS 8358, * 17 (Tex. App.—Dallas August 10, 2015). This Court granted

an extension of time to file a Petition for Discretionary Review, which is

timely if filed on or before October 9, 2015.

                          STATEMENT OF FACTS

      The facts of this case, which are extensive, are adequately recited in

the Court of Appeal’s opinion, which is attached to this Petition as required

by TEX. R. APP. P. 68.4(i).

      Suffice it to say that Appellant was charged with and convicted of

aggravated robbery with a deadly weapon. (CR: 12; 67).

                          GROUND FOR REVIEW

   Whether the Court of Appeals failed to apply this Court’s ruling that
  requires the trial court to apply the specific facts of a case to the law of
parties in the jury charge upon the objection and request of the defendant.

                                 ARGUMENT

      The Court of Appeals failed to apply the standard stating that “[a]

defendant who objects to a general reference to the law of parties in the

application paragraph is entitled to increased specificity and to have the law of

parties applied to the facts of the case.” Campbell v. State, 910 S.W.2d 475, 477

(Tex. Crim. App. 1995).




                                      2
FACTS

Appellant was indicted of aggravated robbery with a deadly weapon, a

firearm, pursuant to Texas Penal Code § 29.03. (CR: 12). The indictment

stated that Appellant did the following:

      On or about the 28th day of August, 2011 in the County of
      Dallas, did then and there intentionally and knowingly while in
      the course of committing theft of property and with intent to
      obtain or maintain control of said property, threaten and place
      BREYSHAIA THOMAS in fear of imminent bodily injury and
      death, and the defendant used and exhibited a deadly weapon,
      to-wit: A FIREARM…

(CR: 12). The trial court included two paragraphs in its application

paragraph of the jury charge. (CR: 77-78). The first paragraph instructed the

jury on aggravated robbery. (CR: 77). The second paragraph was an

instruction regarding the lesser-included offense of robbery, as requested by

Appellant. (CR: 77; RR3: 66). The application paragraphs read as follows:

             Now, therefore, if you believe from the evidence beyond
      a reasonable doubt that, the defendant, ERRINGTON
      CHARLES HATCH, acting as a party, entered into a
      conspiracy to rob BREYSHIA THOMAS, on or about the 28th
      day of August, A.D., 2011, in DALLAS COUNTY, Texas,
      while in the course of committing theft of personal property,
      from BREYSHIA THOMAS, by intentionally or knowingly,
      while in the course of committing theft of property and with
      intent to obtain or maintain control of said property, and the
      defendant, ERRINGTON CHARLES HATCH, pursuant to said
      conspiracy, if any, with the intent to promote or assist
      DOMINIC EDWARDS or MICHAEL LOCKETT in the
      commission of said robbery, BREYSHIA THOMAS was
      threatened or placed in fear of imminent bodily injury or death,

                                      3
      and at the time of the robbery, if any, was acting or and aiding
      the said DOMINICK EDWARDS and MICHAEL LOCKETT
      of said robbery of BREYSHIA THOMAS, and was done in
      furtherance of the conspiracy to rob BREYSHIA THOMAS, if
      any, and was an offense that should have been anticipated as a
      result of the carrying out of the conspiracy, then you will find
      the defendant, ERRINGTON CHARLES HATCH, guilty of
      Aggravated Robbery.

            Unless you so find beyond a reasonable doubt, or if you
      have a reasonable doubt thereof, you will acquit the defendant
      of Aggravated Robbery and consider the lesser offense of
      Robbery.

            Now, if you find from the evidence beyond a reasonable
      doubt that on or about the 28th day of August, A.D., 2011 in
      Dallas County, Texas, the Defendant, ERRINGTON
      CHARLES HATCH, while in the course of committing theft of
      property, and with intent to obtain or maintain control of said
      property of BREYSHIA THOMAS, hereinafter called
      complainant, by threatening or placing complainant in fear of
      imminent bodily injury or death, then you will find the
      Defendant guilty of ROBBERY.


(CR: 77-78). Appellant objected to the charge and requested the trial court

include the specific conduct by Appellant that constituted party liability in

the application paragraph. (RR3: 65-68). Specifically, Appellant asked that

the jury charge state what Appellant did “to solicit, encourage, direct, aid or

attempt to aid that person in his threatening Breyshia Thomas.” (RR3: 65).

The trial court denied Appellant’s motion. (RR3: 68).




                                      4
APPLICABLE LAW

         “The application paragraph of a jury charge is that which authorizes

conviction, and an abstract charge on a theory of law which is not applied to

the facts is insufficient to bring that theory before the jury.” Campbell, 910

S.W.2d at 477, citing Jones v. State, 815 S.W.2d 667, 669 (Tex. Crim. App.

1991). “If the application paragraph of the jury charge refers to the law of

parties in the abstract portion of the charge, then the jury is authorized to

convict upon a parties theory.” Id., citing Johnson v. State, 739 S.W.2d 299,

305 n. 4 (Tex. Crim. App. 1987) (overruled on other grounds).

         A defendant who objects to the charge and requests a more specific

application of the facts of the case to the law of parties in the application

paragraph is entitled to that instruction. Id. Therefore, it is reversible error

for the trial court to deny a defendant’s request to specifically apply the facts

of the case to the law of parties in the application paragraph of the jury

charge if the defendant has suffered harm to his rights. Vasquez v. State, 389

S.W.3d 361, 368 (Tex. Crim. App. 2012).

THE COURT OF APPEALS’ HOLDING IS INCORRECT

         The Court of Appeals’ decision is in conflict with the holding of this

Court.




                                       5
          The Court of Appeals in its opinion cited Vasquez v. State to say a

“defendant, upon request, is entitled to a narrowing of the specific statutory

modes of conduct that constitute party liability—whether he solicited,

encouraged, directed, aided or attempted to aid another specified person to

commit the offense.” Hatch, 2015 Tex. App. LEXIS 8358, at *11, quoting

Vasquez v. State, 389 S.W.3d 361, 368 (Tex.Crim. App. 2012). Yet, in the same

paragraph, the opinion states the following:

          [a]ppellant has not cited us to any law, nor have we found any,
          that requires the trial court to set out the “specific acts”
          constituting the statutory mode of conduct. Because the trial
          court did not err in denying appellant’s request, we overrule the
          third issue.

Id. at *11-12. In that statement, the Court of Appeals ignored the fact that

they cited the applicable law, Vasquez, just two sentences prior. Vasquez,

389 S.W.3d at 368 (Tex.Crim. App. 2012). In fact, Vasquez specifically

states:

          if the defendant does request that the application paragraph
          refer only to those specific party-liability acts that are supported
          by the evidence, then he is entitled to such a narrowing. The
          failure to narrow the specific modes of party-liability conduct
          when properly requested is reversible error if the defendant has
          suffered actual harm to his rights.

Id. Furthermore, Appellant cited both Vasquez v. State and Campbell v. State

in its brief. See Appellant’s Brief at p. 13, citing Vasquez, 389 S.W.3d at

368; quoting Campbell v. State, 910 S.W.2d 475, 477 (Tex. Crim. App.

                                           6
1995). Campbell states “a defendant who objects to a general reference to

the law of parties in the application paragraph is entitled to increased

specificity and to have the law of parties applied to the facts of the case.” Id.

      Despite the fact the Court of Appeals had the applicable law before

them; they failed to apply it in Appellant’s case. Had the Court of Appeals

done so, the proper analysis would have been as follows: the record shows

Appellant objected to the charge and moved the trial court to specifically

include in the jury charge what Appellant did “to solicit, encourage, direct,

aid or attempt to aid that person in his threatening Breyshia Thomas.” (RR3:

65). The trial court denied Appellant’s motion. (RR3: 68).

      According to Campbell, Appellant was entitled to an instruction

specifically applying the facts of his case to the law of parties upon

Appellant’s request. Id. Since Appellant was entitled to that instruction upon

objection and request, it was error for the trial court to deny Appellant’s

motion to apply the facts of his case to the law of parties in the jury charge.

As such, the Court of Appeals should have found as error the trial court’s

refusal of Appellant’s objection and request.

      Moreover, Appellant certainly sustained harm from failure to apply

the specific facts of his case to the parties’ language as he requested. In

analyzing the harm to Appellant, the trial court must look at the entire



                                        7
charge as a whole, the evidence at trial, and the arguments of counsel.

Vasquez, 389 S.W.3d 371-372.

      The charge, as a whole, was very confusing. The trial court included

both parties and conspiracy language throughout the charge. Conspiracy

requires an agreement and an overt action, no matter how small pursuant to

that agreement. However, conviction under a theory of party liability

requires a party acting with intent to promote or assist the commission of the

offense to solicit, encourage, direct, aid or attempt to aid the other person.

(CR: 76-77). The difference in the definitions created great potential for

confusion among the jury. If the trial court had been specific regarding

Appellant’s actions possibly showing party liability, it might have helped

clarify the confusion. However, it did not; therefore, the jury was left with

three offenses to find Appellant guilty of instead of two, contributing to the

possibility Appellant could have been convicted of an offense he was not

charged with or improperly convicted under a theory of party liability.

      The evidence at trial did not show Appellant possessed a gun;

however, he was helping the other two men carry items in and out of the

apartment. Depending on whether the jury believed the witnesses’ testimony

regarding the gun, it is possible that Appellant could have been found guilty,

certainly of robbery, as a principal. It certainly would have aided the jury if



                                      8
the specific actions of Appellant had been delineated for the jury in the

charge as he requested.

      The argument of defense counsel was that Appellant was not a party,

but merely present at the scene. Defense counsel emphasized that the charge

did not state what actions Appellant did to incur liability as a party. (RR3:

88-92). Furthermore, counsel argued that since the trial court did not

specifically include what he did to incur that liability, the jury could not find

him guilty as a party. (RR3: 92). The State argued that Appellant driving and

carrying items out of the home could make him liable as a party. (RR3: 95-

96). Therefore, there was some discrepancy in how the law was interpreted

during closing argument, which would contribute to any confusion caused

by the errors in the charge.

      The jury charge error affected Appellant’s basic rights to have every

element of the charge determined by a jury beyond a reasonable doubt and a

jury verdict based only on the offense for which he was indicted. Therefore,

the Court of Appeals should not only have found error in Appellant’s case,

but that Appellant was harmed as a result.

CONCLUSION

      The Court of Appeals’ decision to affirm the trial court’s ruling is

contrary to the rulings of this Court. This Court should grant discretionary



                                       9
review to resolve this discrepancy between the Court of Appeal’s ruling and the

ruling of this Court.

                           PRAYER FOR RELIEF

      For the reasons herein alleged, Appellant prays this Court grant this
petition and, upon reviewing the judgment entered below, remand the case for a
new trial.
                                     Respectfully submitted,
                                     Lynn Richardson
                                     Chief Public Defender
                                     /s/ Nanette Hendrickson
                                     Nanette Hendrickson
                                     Assistant Public Defender
                                     State Bar No. 24081423

                        CERTIFICATE OF SERVICE

      I hereby certify that on the 8th day of October, a true copy of the
foregoing petition for discretionary review was served on Lori Ordiway,
Assistant District Attorney, Dallas County Criminal District Attorney’s Office,
133 N. Riverfront Blvd., LB-19, 10th Floor, Dallas, Texas, 75207, by electronic
and hand delivery; and was also served on, Lisa C. McMinn, State Prosecuting
Attorney, P.O. Box 13046, Austin, Texas, 78711 by electronic delivery and by
depositing same in the United States Mail, Postage Prepaid.

                                     /s/ Nanette Hendrickson
                                     Nanette Hendrickson




                                    10
                   CERTIFICATE OF COMPLIANCE

      I certify that the foregoing Petition for Discretionary Review contains
2,697 words.


                                      /s/ Nanette Hendrickson
                                      Nanette Hendrickson




                                     11
User Name: nanette hendrickson
Date and Time: Oct 06, 2015         2:18 p.m. EDT
Job Number: 24657832


Document(1)

1.   Hatch v. State, 2015 Tex. App. LEXIS 8358
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                                                nanette hendrickson
No Shepard’s Signal™
As of: October 6, 2015 2:18 PM EDT


                                                      Hatch v. State
                                       Court of Appeals of Texas, Fifth District, Dallas
                                                August 10, 2015, Opinion Filed
                                                      No. 05-13-01710-CR

Reporter
2015 Tex. App. LEXIS 8358

ERRINGTON CHARLES HATCH, Appellant v. THE                          Judgment affirmed.
STATE OF TEXAS, Appellee
                                                                   LexisNexis® Headnotes
Notice: PLEASE CONSULT THE TEXAS RULES OF
APPELLATE PROCEDURE FOR CITATION OF
UNPUBLISHED OPINIONS.                                                 Criminal Law & Procedure > ... > Standards of Review >
                                                                      Harmless & Invited Error > Jury Instructions
Prior History: [*1] On Appeal from the Criminal District              Criminal Law & Procedure > Appeals > Reversible Error > Jury
Court No. 4, Dallas County, Texas. Trial Court Cause No.              Instructions
F-1159284-K.
                                                                      Criminal Law & Procedure > Trials > Jury Instructions >
                                                                      Objections
Core Terms
                                                                      Criminal Law & Procedure > ... > Reviewability > Preservation
                                                                      for Review > Failure to Object
deadly weapon, trial court, conspiracy, aggravated robbery,
indictment, shoots, gun, argues, robbery, issues, jury charge,     HN1 Appellate review of claims of jury charge error
firearms, dark skinned, exhibition, commission of the
                                                                   involves a two-step process. The appellate court first
offense, parties, robber, party liability, extraneous, comments,
                                                                   determines whether error exists in the charge; if not, the
overrule, pet, beyond a reasonable doubt, complaints,
complains, egregious, murder, autopsy report, light skinned,       analysis ends. If error occurred, then the appellate court
living room                                                        analyzes that error for harm, with the standard of review for
                                                                   harm being dependent on whether error was preserved for
                                                                   appeal. When the defendant fails to object, the appellate
Case Summary
                                                                   court will not reverse for jury charge error unless the record
                                                                   shows egregious harm to the defendant.
Overview
HOLDINGS: [1]-Where defendant was charged as a                        Criminal Law & Procedure > Accessories > General Overview
co-conspirator under the law of parties and found guilty of           Criminal Law & Procedure > ... > Indictments > Contents >
aggravated robbery with a deadly weapon under Tex. Penal              General Overview
Code Ann. § 29.03(a)(2), the trial court properly instructed
the jury on criminal responsibility and the charge contained       HN2 A person may be convicted as a party to an offense if
the statutory definition of conspiracy requested by defendant;     the offense is committed by his own conduct, by the conduct
[2]-The trial court committed harmless error because the           of another for which he is criminally responsible, or both.
application paragraph omitted the deadly weapon element;           Tex. Penal Code Ann. § 7.01(a) (2011). The law of parties,
[3]-The state of the evidence supported the conclusion that
                                                                   as set out in Tex. Penal Code Ann. § 7.02, may be applied to
defendant either used or exhibited a deadly weapon or was
                                                                   a case even though no such allegation is contained in the
aware his co-conspirators did; [4]-The trial court did not err
by entering the deadly weapon finding in the judgment;             indictment. Under Tex. Penal Code Ann. § 7.02(a), a person
[5]-The record on appeal did not support defendant’s               is criminally responsible as a party if, acting with intent to
ineffective assistance of counsel claim.                           promote or assist the commission of the offense, he solicits,
                                                                   encourages, directs, aids, or attempts to aid the other person
Outcome                                                            to commit the offense. Tex. Penal Code Ann. § 7.02(a)(2).

                                                     nanette hendrickson
                                                                                                                      Page 2 of 10
                                                 2015 Tex. App. LEXIS 8358, *1

   Criminal Law & Procedure > ... > Inchoate Crimes >                to which the application paragraph necessarily and
   Conspiracy > Elements                                             unambiguously refers, or contains some logically consistent
   Criminal Law & Procedure > Criminal Offenses > Classification     combination of such paragraphs.
   of Offenses > Felonies
                                                                        Criminal Law & Procedure > Accessories > Aiding & Abetting
HN3 See Tex. Penal Code Ann. § 7.02(b).
                                                                        Criminal Law & Procedure > Criminal Offenses > Acts &
                                                                        Mental States > Actus Reus
   Criminal Law & Procedure > Criminal Offenses > Classification
   of Offenses > Felonies                                            HN9 A defendant, upon request, is entitled to a narrowing
   Criminal Law & Procedure > ... > Inchoate Crimes >                of the specific statutory modes of conduct that constitute
   Conspiracy > Elements                                             party liability—whether he solicited, encouraged, directed,
                                                                     aided or attempted to aid another specified person to
HN4 See Tex. Penal Code Ann. § 15.02(a).                             commit the offense. No law requires the trial court to set out
                                                                     the specific acts constituting the statutory mode of conduct.
   Criminal Law & Procedure > ... > Standards of Review >
   Harmless & Invited Error > General Overview
                                                                        Criminal Law & Procedure > ... > Weapons Offenses > Use of
                                                                        Weapons > General Overview
HN5 Under the doctrine of invited error, if a party requests
or moves the court to make an erroneous ruling, and the                 Criminal Law & Procedure > Trials > Entry of Judgments
court rules in accordance with the request or motion, the               Criminal Law & Procedure > ... > Indictments > Contents >
party responsible for the court’s action cannot take advantage          General Overview
of the error on appeal.
                                                                        Criminal Law & Procedure > Juries & Jurors > Province of
                                                                        Court & Jury > Factual Issues
   Criminal Law & Procedure > ... > Standards of Review >
   Harmless & Invited Error > Jury Instructions
                                                                     HN10 If the use of a deadly weapon is an element of the
   Criminal Law & Procedure > ... > Jury Instructions > Particular   charged offense and is alleged in the indictment, and the
   Instructions > Elements of Offense                                jury finds the defendant guilty as alleged in the indictment,
                                                                     then that finding necessarily supports entry of an affirmative
HN6 A jury charge must distinctly set out the law applicable
                                                                     finding in the use or exhibition of a deadly weapon in the
to the case and all the essential elements of the offense.
                                                                     judgment.
When an element of an offense has been omitted, there is
jury charge error, and it is subject to harm analysis.                  Criminal Law & Procedure > ... > Standards of Review > Abuse
                                                                        of Discretion > Evidence
   Criminal Law & Procedure > ... > Standards of Review >
   Harmless & Invited Error > General Overview                          Evidence > Admissibility > Conduct Evidence > Prior Acts,
                                                                        Crimes & Wrongs
HN7 To determine egregious harm, the appellate court                    Criminal Law & Procedure > Sentencing > Imposition of
examines the entire jury charge, the state of the evidence,             Sentence > Evidence
including contested issues and weight of probative evidence,
                                                                        Evidence > ... > Procedural Matters > Objections & Offers of
the arguments of counsel, and other relevant information
                                                                        Proof > Objections
revealed by the record of the trial as a whole. Errors that
result in egregious harm are those that deprive appellant of            Criminal Law & Procedure > ... > Reviewability > Preservation
a valuable right, affect the very basis of the case, or vitally         for Review > Evidence
affect a defensive theory.
                                                                     HN11 The only review possible of the sufficiency of the
   Criminal Law & Procedure > Trials > Jury Instructions >           proof of an extraneous offense offered at the punishment
   General Overview                                                  stage is a review under an abuse of discretion standard of
                                                                     the trial court’s threshold ruling on admissibility. If the
HN8 A jury charge is adequate if it contains an application          judge is satisfied there is evidence upon which a rational
paragraph specifying all of the conditions to be met before          factfinder could find beyond a reasonable doubt that the
a conviction under such theory is authorized, contains an            defendant committed the extraneous misconduct, the
application paragraph authorizing a conviction under                 defendant must object to the admissibility of the evidence to
conditions specified by other paragraphs of the jury charge          preserve error.

                                                       nanette hendrickson
                                                                                                                    Page 3 of 10
                                                 2015 Tex. App. LEXIS 8358, *1

   Criminal Law & Procedure > ... > Reviewability > Preservation       Criminal Law & Procedure > ... > Review > Specific Claims >
   for Review > Constitutional Issues                                  Ineffective Assistance of Counsel

   Criminal Law & Procedure > ... > Reviewability > Preservation    HN15 A silent record which provides no explanation for
   for Review > Requirements                                        counsel’s actions will not overcome the strong presumption
   Governments > Courts > Judges                                    of reasonable assistance. Counsel should ordinarily be
                                                                    accorded the opportunity to explain his actions before being
   Evidence > ... > Judicial Intervention in Trials > Comments by
                                                                    denounced as ineffective. Because the reasonableness of
   Judges > General Overview
                                                                    trial counsel’s choices often involve facts that do not appear
   Criminal Law & Procedure > Appeals > Reversible Error >          in the appellate record, an application for writ of habeas
   Structural Errors                                                corpus is the more appropriate vehicle to raise ineffective
                                                                    assistance of counsel claims.
HN12 Most appellate complaints must be preserved by a
timely request for relief at the trial court level. Tex. R. App.    Counsel: For Appellants: Nanette Hendrickson, Katherine
P. 33.1. Even claims involving constitutional error, including      A. Drew, Lynn Pride Richardson, Dallas, TX.
claims that due process rights have been violated, must be
preserved by objection or are waived. This general rule             For Appellees: Patricia Poppoff Noble, Susan Hawk, Dallas,
applies to complaints regarding improper judicial comments,         TX.
except when the judicial comments rise to the level of
fundamental error.                                                  Judges: Before Justices Bridges, Francis, and Lang. Opinion
                                                                    by Justice Francis.
   Criminal Law & Procedure > ... > Counsel > Effective
   Assistance of Counsel > Tests for Ineffective Assistance of
                                                                    Opinion by: MOLLY FRANCIS
   Counsel

HN13 To successfully assert an ineffective assistance of            Opinion
counsel challenge on direct appeal, an appellant must show
that (1) counsel’s representation fell below an objective
                                                                    MEMORANDUM OPINION
standard of reasonableness; and (2) the deficient performance
prejudiced him; that is, but for the deficiency, there is a
                                                                    Opinion by Justice Francis
reasonable probability that the result of the proceeding
would have been different.
                                                                    After a jury convicted Errington Charles Hatch of aggravated
                                                                    robbery with a deadly weapon, the trial court assessed
   Criminal Law & Procedure > ... > Counsel > Effective
                                                                    punishment at forty years in prison. In fifteen issues,
   Assistance of Counsel > General Overview
                                                                    appellant brings complaints about the jury charge, the
   Criminal Law & Procedure > Appeals > Procedural Matters >        affirmative deadly weapon finding, extraneous offense
   Records on Appeal                                                evidence, the trial court’s partiality, and his counsel’s
                                                                    representation of him. Having reviewed his complaints, we
HN14 An ineffective assistance of counsel claim must be
                                                                    conclude they are without merit and affirm the trial court’s
firmly founded in the record, and the record must
                                                                    judgment.
affirmatively demonstrate the claim has merit. The appellate
court commonly assumes a strategic motive if any can be
                                                                    On the night of August 28, 2011, Breyshia Thomas was at
imagined and finds counsel’s performance deficient only if
                                                                    home with her younger siblings, twelve-year-old Jamyra
the conduct was so outrageous that no competent attorney
                                                                    and five-year-old Bryan. Breyshia was in her bedroom,
would have engaged in it.
                                                                    Jamyra was in her bedroom, and Bryan was in the living
                                                                    room. At about 11:15 p.m., Breyshia heard a ″loud boom,″
   Criminal Law & Procedure > Appeals > Procedural Matters >
                                                                    realized someone had kicked in the door to their apartment,
   Records on Appeal
                                                                    and knew they were being robbed. Three black men entered
   Criminal Law & Procedure > ... > Counsel > Effective             her room. Two of the men were darker skinned, and the third
   Assistance of Counsel > General Overview                         was ″bright″ or light skinned and had a cross [*2] tattoo on
   Evidence > Inferences & Presumptions > Presumptions >            his face. The light-skinned robber, ultimately identified as
    Rebuttal of Presumptions                                        Dominic Edwards, pointed a gun in Breyshia’s face and

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                                              2015 Tex. App. LEXIS 8358, *2

demanded money or he would shoot her. The two other              At trial, appellant was charged as a co-conspirator under the
robbers went into her sister’s room.                             law of parties, and the jury found him guilty of aggravated
                                                                 robbery with a deadly weapon. Appellant elected to have the
Edwards pulled Breyshia into the living room so that she         trial court determine his punishment. At the punishment
could turn off the security alarm, but Breyshia pretended she    hearing, the State presented evidence of appellant’s
did not know the code. Bryan was crying, and Edwards             involvement, two months before this offense, in a capital
threatened to shoot both of them if he did not stop. Breyshia    murder/attempted murder that left one man dead and another
and her brother went with Edwards to their mother’s              injured.
bedroom, where Breyshia found a safe in the closet.
Edwards took the safe and left the room.                         Terrance Robertson, the surviving witness in the prior
                                                                 offenses, testified he and a friend, Geoffrey Sowels, were
When Breyshia thought the men had left the house, she and
                                                                 sitting in a truck outside his apartment on June 5, 2011 when
her brother went into the living room, but the men returned
                                                                 two black men approached them asking for drugs. Robertson
and continued to remove property. The men were talking
                                                                 said one of the men was slim and light skinned and the other
among each other, and all of them were carrying property
                                                                 was heavy set and dark skinned. The dark-skinned man
out of the apartment. They took several electronic items, the
                                                                 pulled a gun, reached in the truck, patted Sowels’s pockets,
safe, and an unopened surround sound system. Although she
                                                                 and demanded everything he had. [*5] Sowels said he did
only saw Edwards handling a gun, she saw a second gun on
                                                                 not have anything, and the man shot Sowels and told his
the floor of the living room. Breyshia said she had never
                                                                 cohort to ″[r]un around there and shoot him,″ referring to
seen any of the men before that night.
                                                                 Robertson. The light-skinned man shot Robertson in the
Jamyra testified that when she heard the ″loud boom,″ she        side, and then both men fled. Sowels died, and Robertson
hid in her closet. From there, she watched a short, [*3] fat     was hospitalized for a week.
black man with a gun and a mask or hat come into her room
and go through her belongings. This robber, ultimately           During his testimony, Robertson did not identify appellant
identified as Michael Lockett, took her laptop, iPad, and        as one of the assailants, and after the defense cross-examined
other things and left her room. After that, Jamyra ended up      him, the trial judge asked some questions to clarify which
in the living room, where she saw a tall, darker-skinned man     robber shot which person:
who told them to be quiet and asked for ″the dope.″ In all,
Jamyra said she saw three robbers: the short, fat black man;         THE COURT: So when all this is happening, you saw
the tall, darker-skinned man, and a light-skinned man with           the guy with the tattoo on his face?
a tattoo on his face. Two had guns: the short, fat black man         [ROBERTSON]: I didn’t see no guy with a tattoo on his
and the tall, darker-skinned man. Jamyra said it was clear           face.
the men were working together to rob them.
                                                                     THE COURT: Which one shoots, the light skinned one,
Senior Corporal Cathy Blanchard of the Dallas Police                 right?
Department was on patrol when she received a call for a
                                                                     [ROBERTSON]: The dark skinned one. The heavy set
burglary in progress. As she headed to the scene, she passed
                                                                     one.
a vehicle matching the description of the suspect vehicle
and turned around. From behind, she could see it was                 THE COURT: The dark skinned one.
occupied by three black males as had also been described in
                                                                     [PROSECUTOR]: Just, let me clear it up. The dark
the call. Blanchard stopped the vehicle and identified the
                                                                     skinned one shoots Geoffrey, correct?
occupants: appellant was driving, and Edwards and Lockett
were passengers. Items taken in the burglary were found              [ROBERTSON]: Right.
inside. In addition, a revolver, semiautomatic handgun, [*4]
                                                                     THE COURT: And the light skinned one shoots you?
and ski mask were found under the rear passenger seat
cushion. The three men were arrested.                                [ROBERTSON]: Shoots me.

Hours after the robbery, Breyshia and Jamyra were shown              [THE COURT]: All right. So the dark skinned one
photographic lineups, and Edwards and Lockett were                   shoots [Sowels]?
identified as two of the robbers. Appellant was not identified
                                                                     [ROBERTSON]: Yes.
by either Breyshia or Jamyra, but his fingerprints were
found inside the apartment.                                          [THE COURT]: And the light skinned one shoots him?

                                                   nanette hendrickson
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                                                  2015 Tex. App. LEXIS 8358, *5

    [PROSECUTOR]: Yes.                                               HN1 Appellate review of claims of jury charge error
                                                                     involves a two-step process. Ngo v. State, 175 S.W.3d 738,
    [THE COURT]: The dark skinned one is Mr. Lockett?
                                                                     743 (Tex. Crim. App. 2005). We first determine whether
    [PROSECUTOR]: Judge, at this point there hasn’t been             error exists in the charge; if not, our analysis ends. Id. If
    any evidence [*6] of any identification, but if you are          error occurred, then we analyze that error for harm, with the
    asking me, the State tenders to the Court that Mr. Hatch         standard of review for harm being dependent on whether
    was the dark skinned shooter.                                    error was preserved for appeal. See id. When the defendant
    [THE COURT]: Okay. That’s what I’m trying to figure              fails to object, we will not reverse for jury charge error
    out, who is the dark skinned one. Is it Hatch or Lockett?        unless the record shows ″egregious harm″ to the defendant.
                                                                     Id.
    [PROSECUTOR]: It’s Hatch.
                                                                     Appellant was indicted on a charge of aggravated robbery
After this exchange, Robertson asked to be allowed to show           that alleged he used or exhibited a deadly weapon. See TEX.
the trial court how the shootings occurred, and the trial court      PENAL CODE ANN. § 29.03(a)(2) (West 2011). The abstract
                                                                     portion of the charge defined party liability and party
agreed. Robertson then described how the shootings occurred
                                                                     liability as a co-conspirator under penal code section 7.02
in more detail.
                                                                     and further defined conspiracy under penal code section
Following Robertson’s testimony, the investigating detective         15.02. See id. §§ 7.02(a)(2),(b) (criminal responsibility for
testified about how he identified appellant as the                   the conduct of another) & 15.02(a)(1)(2),(b) (criminal
dark-skinned shooter in the June 5 offenses. According to            conspiracy) (West 2011). The application paragraph then
the detective, the bullet recovered from Sowels’s body was           authorized appellant’s conviction for aggravated robbery on
fired from one of the guns found in the back seat of the             the conspiracy theory of party liability and read as follows:
getaway vehicle in the aggravated robbery at issue here. As               Now, therefore, if you believe from the evidence
a result, the detective began investigating the three suspects            beyond a [*9] reasonable doubt that, the defendant,
in this offense, including appellant. He learned appellant’s              ERRINGTON CHARLES HATCH, acting as a party,
cell phone number and obtained his cell phone records,                    entered into a conspiracy to rob BREYSHIA THOMAS,
which showed appellant made and received several calls in                 on or about the 28th day of August, A.D., 2011, in
the area both before and after the shooting. The detective                DALLAS COUNTY, Texas, while in the course of
also learned from a witness that Edwards (the light-skinned               committing theft of personal property, from BREYSHIA
suspect) and appellant were at the location [*7] that night               THOMAS, by intentionally or knowingly, while in the
before the shootings.                                                     course of committing theft of property and with intent
                                                                          to obtain or maintain control of said property, and the
The State attempted to call the medical examiner to explain
                                                                          defendant, ERRINGTON CHARLES HATCH, pursuant
the autopsy report on Sowels, but the trial court refused,
                                                                          to said conspiracy, if any, with the intent to promote or
saying the court could read the autopsy report. Thereafter,
                                                                          assist DOMINIC EDWARDS or MICHAEL LOCKETT
the autopsy report, firearms report, National Integrated
                                                                          in the commission of said robbery, BREYSHIA
Ballistics Information Network (NIBIN)1 hit reports, and
                                                                          THOMAS was threatened or placed in fear of imminent
autopsy photographs were admitted without objection. After
                                                                          bodily injury or death, and at the time of the robbery, if
hearing the evidence and argument of counsel, the trial court
                                                                          any, was acting or and aiding the said DOMINIC
assessed punishment at forty years in prison and indicated
                                                                          EDWARDS and MICHAEL LOCKETT of said robbery
its decision was impacted by Robertson’s testimony.
                                                                          of BREYSHIA THOMAS, and was done in furtherance
In his first, second, and third issues, appellant contends he             of the conspiracy to rob BREYSHIA THOMAS, if any,
is entitled to reversal because of errors in the jury charge.             and was an offense that should have been anticipated as
Specifically, he argues the trial court erred by (1) instructing          a result of the carrying out of the conspiracy, then you
the jury on the unindicted offense of conspiracy, (2) failing             will find the defendant, ERRINGTON CHARLES
to include the element of a deadly weapon in the application              HATCH, guilty of Aggravated Robbery.
 [*8] paragraph, and (3) denying his request to include the               Unless you so find beyond a reasonable doubt, or if you
specific acts of party liability in the application paragraph.            have a reasonable doubt [*10] thereof, you will acquit

1
   NIBIN is a ballistics database that stores the imaging of bullet and casing signatures and allows law enforcement agencies to compare
bullets and casings found at different crime scenes for connections between crimes. Kathryn E. Carso, Comment, Amending the Illinois
Postconviction Statute to Include Ballistics Testing, 56 DEPAUL L. REV. 695, 701-01 (2007).

                                                       nanette hendrickson
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                                              2015 Tex. App. LEXIS 8358, *10

    the defendant of Aggravated Robbery and consider the              (2) he or one or more of them performs an overt act in
    lesser offense of Robbery.                                        pursuance of the agreement.

In his first issue, appellant argues the trial court improperly       An agreement constituting [*12] a conspiracy may be
included the definition of conspiracy in the abstract and             inferred form the acts of the parties.
application paragraphs of the charge when appellant was not
                                                                  HN5 Under the doctrine of invited error, if a party requests
indicted on a conspiracy charge. By doing so, he asserts the
                                                                  or moves the court to make an erroneous ruling, and the
trial court authorized conviction for an offense—criminal
                                                                  court rules in accordance with the request or motion, the
conspiracy—not alleged in the indictment. The State counters
                                                                  party responsible for the court’s action cannot take advantage
that appellant ″confuses″ an instruction on the separate
                                                                  of the error on appeal. Prystash v. State, 3 S.W.3d 522, 531
offense of criminal conspiracy with the instruction actually
                                                                  (Tex. Crim. App. 1999); Willeford v. State, 72 S.W.3d 820,
given, criminal responsibility under the conspiracy theory
                                                                  823-24 (Tex. App.—Fort Worth 2002, pet. ref’d). Here,
of law of parties. We agree with the State.
                                                                  appellant urged the court to include in the charge the penal
HN2 A person may be convicted as a party to an offense if         code definition of conspiracy. Having done so, he is now in
the offense is committed by his own conduct, by the conduct       no position to complain about the definition in the charge
of another for which he is criminally responsible, or both.       when he requested it. See Willeford, 72 S.W.3d at 823-24.
See TEX. PENAL CODE ANN. § 7.01(a) (West 2011). The law of        Regardless, the court of criminal appeals addressed a similar
parties, as set out in section 7.02, may be applied to a case     complaint in Montoya, rejecting the argument that including
even though no such allegation is contained in the indictment.    the theory of conspiracy in the court’s charge erroneously
Montoya v. State, 810 S.W.2d 160, 165 (Tex. Crim. App.            allowed the jury to consider whether the defendant was
1989). Under section 7.02(a), a person is criminally              guilty of the separate offense of criminal conspiracy under
responsible as a party if, acting with intent to promote or       section 15.02. 810 S.W.2d at 165. The court held the charge,
assist the commission of the offense, he solicits, encourages,    which defined the term ″conspiracy,″ ″merely contained an
directs, aids, or attempts [*11] to aid the other person to       alternative ’parties’ charge as provided″ in section 7.02(b).
commit the offense. TEX. PENAL CODE ANN. § 7.02(a)(2).            Id.; see Murkledove v. State, 437 S.W.3d 17, 22-23 (Tex.
Section 7.02(b) provides another theory of party liability as     App.—Fort Worth 2014, pet. dism’d, untimely filed).
a co-conspirator:                                                 Likewise, in this case, the charge contained a parties charge
                                                                  with the statutory definition of conspiracy requested by
    HN3 If, in the attempt to carry out a conspiracy to           appellant. We overrule the first issue.
    commit one felony, another felony is committed by one
                                                                  In his second issue, appellant contends the trial court erred
    of the conspirators, all conspirators are guilty of the
                                                                  when [*13] it charged the jury on aggravated robbery with
    felony actually committed, though having no intent to
                                                                  a deadly weapon but omitted the deadly weapon element
    commit it, if the offense was committed in furtherance
                                                                  from the application paragraph. He argues he was
    of the unlawful purpose and was one that should have
                                                                  egregiously harmed by the omission because he was denied
    been anticipated as a result of the carrying out of the
                                                                  his right to have a jury determine every element of the
    conspiracy.
                                                                  offense beyond a reasonable doubt.
Id. § 7.02(b). The abstract portion of the court’s charge         HN6 A jury charge must distinctly set out the law applicable
included instructions from both (a) and (b) of section 7.02.      to the case and all the essential elements of the offense.
At the charge conference, appellant objected that the charge      Martin v. State, 200 S.W.3d 635, 639 (Tex. Crim. App.
did not contain a definition of conspiracy and urged the          2006). When an element of an offense has been omitted,
court to include the penal code definition. Although the          there is jury charge error, and it is subject to harm analysis.
court initially balked at appellant’s request, it ultimately      Olivas v. State, 202 S.W.3d 137, 143 (Tex. Crim. App. 2006).
included the following HN4 section 15.02(a) definition:           Here, the indictment alleged aggravated robbery with a
                                                                  deadly weapon; thus, use or exhibition of a deadly weapon
A person commits criminal conspiracy if, with intent that a
                                                                  was an element of the offense. Because the application
felony be committed:
                                                                  paragraph omitted the deadly weapon element, it was
    (1) he agrees with one or more persons that they or one       incomplete and constituted error.
    or more of them engage in conduct that would constitute       Having so concluded, we next decide whether sufficient
    the offense; and                                              harm was caused by the error to require reversal. Because

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                                             2015 Tex. App. LEXIS 8358, *13

appellant did not object, we consider whether the error was     With regard to the jury arguments, defense counsel argued
egregious. Warner v. State, 245 S.W.3d 458, 461-62 (Tex.        appellant should be acquitted because the State had not
Crim. App. 2008). HN7 To determine egregious harm, we           identified any ″overt act″ by appellant and had shown
examine the entire jury charge, the state of the evidence,      nothing more [*16] than appellant’s presence at the scene.
including contested issues and weight of probative evidence,    In response, the State pointed out evidence to show the three
the arguments of counsel, and other relevant information        men were working together in the commission of the
revealed by the record of [*14] the trial as a whole. Id.       aggravated robbery. Beginning with Breyshia’s testimony,
Errors that result in egregious harm are those that deprive     the State detailed how the robbers kicked in the door and
appellant of a valuable right, affect the very basis of the     entered her room, and the ″ringleader″ Edwards pointed a
case, or vitally affect a defensive theory. Id.                 gun at her ″while the other two are standing right behind
                                                                him. Errington Hatch and Michael Lockett.″ The State also
HN8 A jury charge is adequate if it contains an application     recalled Jamyra’s testimony that the tall, dark robber, who
paragraph specifying all of the conditions to be met before     jurors could reasonably conclude was appellant, asked for
a conviction under such theory is authorized, contains an       ″the dope.″ The State pointed out that appellant was driving
application paragraph authorizing a conviction under            the getaway car, where the stolen property, ski mask, and
conditions specified by other paragraphs of the jury charge     guns were found, and also reminded jurors that appellant’s
to which the application paragraph necessarily and              fingerprints were found in the apartment.
unambiguously refers, or contains some logically consistent
combination of such paragraphs. Plata v. State, 926 S.W.2d      Finally, we consider other relevant information revealed by
300, 304 (Tex. Crim. App. 1996), overruled on other             the record of the trial as a whole. The record shows the
grounds by Malik v. State, 953 S.W.2d 234, 239 (Tex. Crim.      indictment was read to the jury at the commencement of
App. 1997).                                                     trial, and alleged appellant ″used and exhibited a deadly
Looking at the charge as a whole, the abstract portions         weapon, to-wit: A FIREARM.″ Because the jury found
accurately stated the substantive law on aggravated robbery,    appellant guilty as charged in the indictment, it necessarily
thus informing the jury of what the State had to prove. The     found the commission of aggravated robbery also involved
first sentence of the charge informed the jury that appellant   the use or exhibition [*17] of a deadly weapon.
was charged by indictment with aggravated robbery. The
                                                                Having considered the error in light of the entire jury
abstract portion then defined aggravated robbery as a
                                                                charge, the state of the evidence, the arguments of counsel,
robbery committed with the use or exhibition of a deadly
                                                                and other relevant information, we conclude the error did
weapon. See TEX. PENAL CODE ANN. § 29.03(a)(2). Robbery
                                                                not cause egregious harm. We overrule the second issue.
and deadly weapon were both correctly defined. See id. §§
29.02(a)(1) (robbery) & 1.07(a)(17)(A),(B) (deadly weapon).
                                                                In his third issue, appellant argues the trial court erred by
 [*15] The application paragraph then referred to aggravated
                                                                denying his request to set out in the application paragraph
robbery. In the verdict form, the jury found appellant guilty
                                                                the specific acts upon which party liability was based. He
of aggravated robbery ″as charged in the indictment.″ We
                                                                argues the trial court was required, upon his request, to
conclude the instructions and verdict form, read together,
                                                                ″specifically include in the charge what [a]ppellant did ’to
communicated to the jury that it had to find appellant was
                                                                solicit, encourage, direct, aid, or attempt to aid that person
aware a deadly weapon was being used in the commission
                                                                in his threatening Breyshia Thomas.’″ We disagree.
of the offense before it could convict him of aggravated
robbery.                                                        HN9 A defendant, upon request, is entitled to a narrowing
As for the state of the evidence, it supported the conclusion   of the specific statutory modes of conduct that constitute
that appellant either used or exhibited a deadly weapon or      party liability—whether he solicited, encouraged, directed,
was aware his co-conspirators did. Jamyra testified she saw     aided or attempted to aid another specified person to
two men with guns, one of whom was tall and dark skinned,       commit the offense. Vasquez v. State, 389 S.W.3d 361, 368
and the jury could have concluded that man was appellant.       (Tex. Crim. App. 2012). Here, the charge alleged appellant
At the very least, the evidence shows appellant was aware       ″was acting . . . or aiding″ Edwards and Lockett in the
his cohorts were using guns during the robbery. Breyshia        robbery of Breyshia; thus, the charge narrowed the specific
testified three men came into her room, and one of the men,     statutory mode of conduct that constituted party liability.
identified as Edwards, had a gun. From this, a jury could       Appellant has not cited us to any law, nor have we found
have concluded appellant was aware a gun was being used         any, that requires the trial court [*18] to set out the ″specific
to commit the robbery.                                          acts″ constituting the statutory mode of conduct. Because

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                                               2015 Tex. App. LEXIS 8358, *18

the trial court did not err in denying appellant’s request, we     LEXIS 5463, 2006 WL 1738303, at *3 (Tex. App.—Dallas
overrule the third issue.                                           [*20]     June 27, 2006, no pet.) (not designated for
                                                                   publication). If the judge is satisfied there is evidence upon
In his fourth and fifth issues, appellant argues the trial court   which a rational factfinder could find beyond a reasonable
erred by entering a deadly weapon finding in the judgment          doubt that the defendant committed the extraneous
because it is not supported by an express jury finding.            misconduct, the defendant must object to the admissibility
Additionally, he asserts the trial court did not make a            of the evidence to preserve error. Malpica, 108 S.W.3d at
specific finding that appellant, who was convicted under the       379; see Martinez v. State, No. 05-04-01491-CR, 2006 Tex.
law of parties, knew the firearm would be used during the          App. LEXIS 4506, 2006 WL 1430060, at *3 (Tex.
commission of the crime. He argues that when the law of            App.—Dallas May 25, 2006, no pet.) (not designated for
parties is applied, an affirmative finding of a deadly weapon      publication). Here, appellant did not object below that the
may only be entered when the court finds the appellant             evidence was insufficient to establish that he committed the
knew the deadly weapon would be used in the commission             offense and thus inadmissible. Consequently, he has forfeited
of the offense.                                                    his complaint. TEX. R. APP. P. 33.1(a); Malpica, 108 S.W.3d
                                                                   at 379; Martinez, 2006 Tex. App. LEXIS 4506, 2006 WL
HN10 If the use of a deadly weapon is an element of the
                                                                   1430060, at *3. We overrule the sixth issue.
charged offense and is alleged in the indictment, and the
jury finds the defendant guilty as alleged in the indictment,      In his seventh, eighth, and ninth issues, appellant contends
then that finding necessarily supports entry of an affirmative     the trial judge failed to act as an impartial tribunal in
finding in the use or exhibition of a deadly weapon in the         determining punishment. Specifically, he argues the trial
judgment. Sarmiento v. State, 93 S.W.3d 566, 570 (Tex.             court (1) improperly considered ″extrajudicial information
App.—Houston [14th Dist.] 2002, pet. ref’d).                       such as the police report, autopsy report, firearms examiner’s
                                                                   report, and autopsy photos″ that were unauthenticated and
Here, appellant was charged with aggravated robbery, and           hearsay, (2) questioned the complaining witness in an
the indictment included, as one of the elements, the allegation    extraneous offense and the prosecutor to obtain an in-court
that he [*19] ″used and exhibited a deadly weapon, to-wit:         identification of appellant, and (3) prevented two State’s
A FIREARM.″ The jury found appellant guilty ″as charged            witnesses—the medical examiner and firearms
in the indictment.″ Thus, before the jury was authorized to        examiner—from [*21] testifying. Appellant argues these
find appellant guilty, even as a party, it first had to believe    issues together.
beyond a reasonable doubt that he knew a deadly weapon
would be used in the commission of the offense. See id.;           With respect to the first complaint, the autopsy report,
Hurd v. State, 322 S.W.3d 787, 793 (Tex. App.—Fort Worth           firearms report, and autopsy photos were all admitted into
2010, no pet.). By its verdict, the jury necessarily made the      evidence without objection and therefore were not
factual finding to support entry of the affirmative finding of     ″extrajudicial information.″ As for the third complaint, the
the use or exhibition of a deadly weapon in the judgment.          record shows the State indicated it wanted to call the
Accordingly, the trial court did not err by entering the           firearms examiner as a witness but never actually did so.
finding in the judgment. We overrule the fourth and fifth          When the trial judge indicated it did not need to hear from
issues.                                                            the medical examiner, appellant did not object or indicate he
                                                                   wanted the opportunity to cross-examine him on his report.
In his sixth issue, appellant contends the trial court erred by    The second complaint involves the trial judge’s action, as
admitting evidence of the extraneous offenses of capital           set out previously, in attempting to clarify evidence presented
murder/attempted murder during the punishment phase                to her at punishment. Appellant did not complain below
because there was insufficient evidence to show he                 about any of the conduct at the time nor did he raise the
committed the offenses beyond a reasonable doubt.                  matters in a motion for new trial. Additionally, appellant has
                                                                   not argued that he was not required to preserve error.
Although appellant couches his issue in terms of sufficiency,
HN11 the only review possible of the sufficiency of the            HN12 Most appellate complaints must be preserved by a
proof of an extraneous offense offered at the punishment           timely request for relief at the trial court level. See TEX. R.
stage is a review under an abuse of discretion standard of         APP. P. 33.1; Unkart v. State, 400 S.W.3d 94, 98 (Tex. Crim.
the trial court’s threshold ruling on admissibility. Malpica v.    App. 2013); Marin v. State, 851 S.W.2d 275, 278 (Tex. Crim.
State, 108 S.W.3d 374, 379 (Tex. App.—Tyler 2003, pet.             App. 1993), overruled on other grounds by Cain v. State,
ref’d); Garcia v. State, No. 05-05-00926-CR, 2006 Tex. App.        947 S.W.2d 262, 264 (Tex. Crim. App. 1997). Even claims

                                                     nanette hendrickson
                                                                                                                  Page 9 of 10
                                              2015 Tex. App. LEXIS 8358, *21

involving constitutional error, including claims that due        admission of unauthenticated, hearsay [*24] autopsy,
process rights have been violated, must be preserved [*22]       firearms, and NIBIN hit reports as well as fourteen autopsy
by objection or are waived. Hull v. State, 67 S.W.3d 215, 218    photographs, all related to the extraneous capital
(Tex. Crim. App. 2002); Briggs v. State, 789 S.W.2d 918, 924     murder/attempted murder offenses. In addition, he complains
(Tex. Crim. App. 1990). More particularly, this general rule     counsel did not object when the trial court barred two
applies to complaints regarding improper judicial comments,      State’s witnesses—the medical examiner and the firearms
except when the judicial comments rise to the level of           examiner—from testifying about the information in those
fundamental error. See Unkart, 400 S.W.3d at 99; Jasper v.       reports, which he contends then prevented counsel from
State, 61 S.W.3d 413, 420-21 (Tex. Crim. App. 2001)              cross-examining the witnesses about the reports. He argues
(concluding several types of comments—such as                    that trial counsel should have objected to all of the evidence
interjections by judge to correct misstatement or                as irrelevant because he was not identified by the surviving
misrepresentation of previously admitted testimony,              victim as the perpetrator and there was no strategic reason
comments showing judge’s irritation at defense counsel,          not to object.
comments related to maintaining control and expediting
trial, and comments aimed at clearing up points of               HN13 To successfully assert an ineffective assistance of
confusion—do not rise to level of fundamental error and          counsel challenge on direct appeal, an appellant must show
objection required to preserve error).                           that (1) counsel’s representation fell below an objective
                                                                 standard of reasonableness and (2) the deficient performance
The Texas Court of Criminal Appeal has, however, granted         prejudiced him; that is, but for the deficiency, there is a
relief on an improper judicial comment complaint that was        reasonable probability that the result of the proceeding
not preserved at trial. See Blue v. State, 41 S.W.3d 129 (Tex.   would have been different. Rylander v. State, 101 S.W.3d
Crim. App.) (plurality op.). There, the trial judge apologized   107, 110 (Tex. Crim. App. 2003). HN14 An ineffective
to the jurors about the delay in the case, telling them the      assistance of counsel claim must be ″firmly founded in the
defendant was still deciding whether to accept the State’s       record,″ and the record must ″affirmatively demonstrate″
offer or go to trial. The trial judge told the jurors he would   the claim has merit. Goodspeed v. State, 187 S.W.3d 390,
″prefer the defendant to plead″ because it would give him        392 (Tex. Crim. App. 2005). We commonly [*25] assume a
″more time to get things done.″ Id. at 130. A plurality of the   strategic motive if any can be imagined and find counsel’s
Court decided the judge’s remarks vitiated the defendant’s       performance deficient only if the conduct was so outrageous
presumption of innocence and were fundamental [*23] error        that no competent attorney would have engaged in it.
of constitutional dimension that required no objection. Id. at   Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App.
131-32. Since Blue, the Court has explained it is without        2005).
″precedential value″ as a plurality opinion and may only be
considered for any persuasive value it may have. The             The court of criminal appeals has made clear that, in most
complained-of comments and conduct in this case, however,        cases,HN15 a silent record which provides no explanation
did not implicate appellant’s ″presumption of innocence″         for counsel’s actions will not overcome the strong
and were not made to a jury, so any ″persuasive value″ Blue      presumption of reasonable assistance. Rylander, 101 S.W.3d
could have is simply not present.                                at 110. Further, counsel should ordinarily be accorded the
                                                                 opportunity to explain his actions before being denounced
Here, appellant did not object to any of the comments or         as ineffective. Menefield v. State, 363 S.W.3d 591, 593 (Tex.
conduct by the trial court that he complains about on appeal.    Crim. App. 2012). Because the reasonableness of trial
When the trial court asked if there was any reason why           counsel’s choices often involve facts that do not appear in
appellant should not be sentenced, defense counsel said,         the appellate record, an application for writ of habeas corpus
″No, Your Honor.″ Because the record does not demonstrate        is the more appropriate vehicle to raise ineffective assistance
the unique circumstances that would allow us to review the       of counsel claims. See Mitchell v. State, 68 S.W.3d 640, 642
issues in the absence of objection, we conclude appellant        (Tex. Crim. App. 2002).
has failed to preserve these complaints for our review. We
overrule issues seven, eight, and nine.                          In this case, appellant did not file a motion for new trial
                                                                 addressing the reasons for trial counsel’s actions and thus
In issues ten through fifteen, appellant argues counsel          has not developed a record showing why counsel failed to
provided ineffective assistance at punishment by failing to      object to the admission of the various evidence. Appellant’s
object to evidence of the extraneous offense evidence.           complaints may or may not be grounded in sound trial
Specifically, he argues counsel failed to object to the          strategy, but the record is silent as to trial counsel’s reasons

                                                   nanette hendrickson
                                                                                                            Page 10 of 10
                                             2015 Tex. App. LEXIS 8358, *25

for doing or failing to do the things of which appellant        JUSTICE
complains. Because the record [*26] provides no explanation     Do Not Publish
for counsel’s actions or inactions, appellant has not met his
burden of overcoming the strong presumption of reasonable       TEX. R. APP. P. 47.2(b)
assistance. We overrule issues ten through fifteen.
                                                                JUDGMENT
We affirm the trial court’s judgment.
                                                                Based on the Court’s opinion of this date, the judgment of
/Molly Francis/                                                 the trial court is AFFIRMED.
                                                                Judgment entered August 10, 2015.
MOLLY FRANCIS




                                                   nanette hendrickson
