Allen v. State

• Decision Date: 15 March 2001
• Docket Number: No. 2-00-193-CR,2-00-193-CR
• Citation: 47 S.W.3d 47
• Parties: (Tex.App.-Fort Worth 2001) DANIEL L. ALLEN, SR., APPELLANT v. THE STATE OF TEXAS, STATE
• Court: Texas Court of Appeals

Page 47

47 S.W.3d 47 (Tex.App.-Fort Worth 2001)

DANIEL L. ALLEN, SR., APPELLANT v. THE STATE OF TEXAS, STATE

No. 2-00-193-CR

Court of Appeals of Texas, Fort Worth.

March 15, 2001

FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY

PANEL A: CAYCE, C.J.; DAY and WALKER, JJ.

OPINION

WALKER, JUSTICE

The State charged appellant Daniel Allen, Sr. with one count of attempted capital murder and one count of attempted murder. A jury returned a verdict of not guilty on the attempted capital murder count but found appellant guilty of attempted murder. The jury sentenced appellant to twenty years' confinement.

Appellant argues in three issues that his trial counsel provided ineffective assistance and that the trial court erred by not instructing the jury during the punishment phase on the reasonable-doubt standard concerning extraneous offenses and bad acts. We will affirm.

STATEMENT OF FACTS

On the morning of March 19, 1999, Barbara Pagel, appellant's ex-wife, was driving to work. A car pulled up beside her on the left, and Pagel heard a bang. She looked to her left and saw appellant in the adjacent car shooting at her. He fired three shots at her and sped away. The third shot shattered the driver's side window of Pagel's car. The broken glass hit Pagel in the head, causing her to bleed. A passing motorist stopped and called police for Pagel.

JURY CHARGE

In his third issue, appellant contends that the trial court erred by not instructing the jury during the punishment phase on the reasonable-doubt standard of proof concerning extraneous offenses and bad acts. He asserts that he suffered egregious harm from this trial court error.

1. Relevant facts.

During the guilt-innocence phase, the State introduced evidence that, after Pagel informed appellant of her intention to file for divorce, he began making harassing phone calls to her home,¹ driving past her house, following her to and from work, and throwing rocks at her car. The State also introduced evidence that in February 1999, less than a month before the shooting at issue, appellant fired three shots into Pagel's house at approximately 8:30 in the morning.

The State argued that appellant's motive for the present offense, shooting at Pagel in March as she was driving, was to retaliate against her for giving his name to police as a suspect in the February shooting. Thus, the State asserts that it introduced the extraneous offense and bad acts evidence to prove its theory of attempted capital murder.

The State presented no evidence of extraneous offenses or bad acts during the punishment phase. The trial court did not instruct the jury that for purposes of punishment they could consider the extraneous offense or bad acts evidence introduced at the guilt-innocence phase only if they found that appellant had committed such offenses or acts beyond a reasonable doubt. Appellant did not object to the trial court's failure to include this instruction.

2. The law concerning consideration of extraneous offenses and bad acts in assessing punishment.

Texas Code of Criminal Procedure, article 37.07, section 3(a) governs the admissibility of punishment phase extraneous offense and bad acts evidence. It provides, in part:

Regardless of the plea and whether the punishment be assessed by the judge or the jury, evidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including but not limited to the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried, and notwithstanding Rules 404 and 405, Texas Rules of Criminal Evidence, 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) (Vernon Supp. 2001) (emphasis added). Pursuant to article 37.07, section 3(a), evidence of extraneous offenses or bad acts may not be considered in assessing punishment until the fact-finder is satisfied beyond a reasonable doubt that such offenses are attributable to the defendant. Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a); see also Huizar v. State, 12 S.W.3d 479, 484 (Tex. Crim. App. 2000) (op. on reh'g); Fields v. State, 1 S.W.3d 687, 688 (Tex. Crim. App. 1999). Once the fact-finder is satisfied beyond a reasonable doubt that such offenses or acts are attributable to the defendant, the fact-finder may use the extraneous offense or bad acts evidence however it chooses in assessing punishment. Huizar, 12 S.W.3d at 484; see also Taylor v. State, 970 S.W.2d 98, 101-02 (Tex. App.--Fort Worth 1998, pet. ref'd) (trial court gave proper punishment phase reasonable-doubt instruction concerning extraneous offense evidence).

Texas Code of Criminal Procedure article 37.07, section 3(a)'s requirement that the jury be satisfied of the defendant's culpability of the extraneous offenses or bad acts is "law applicable to the case" in the non-capital punishment context. Huizar, 12 S.W.3d at 484. Thus, the trial court is required, when punishment phase evidence of extraneous offenses or bad acts evidence is admitted, to sua sponte instruct the jury on the reasonable-doubt standard of proof concerning the extraneous offenses and bad acts. Id. at 483-84. The failure of the trial court to submit an instruction to the jury at the punishment phase on the reasonable-doubt standard of proof concerning extraneous offense or bad acts evidence is error. Id.

3. Standard of review and analysis.

In the present case, extraneous offense and bad acts evidence was introduced at the guilt-innocence phase of the trial, not at the punishment phase as in Huizar. We do not find this distinction material. The State offered the extraneous offense and bad acts evidence at guilt-innocence to prove motive. In most cases, however, extraneous offense and bad acts evidence will become admissible only at the punishment phase. See Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a). If extraneous offense or bad acts evidence is before the jury, regardless of whether such evidence was introduced at the guilt-innocence or punishment phase, article 37.07, section 3(a) requires that the jurors be instructed not to consider such extraneous offenses or bad acts in assessing the defendant's punishment unless they find the defendant culpable for such offenses or acts under the statutorily prescribed reasonable-doubt standard. Accord Huizar, 12 S.W.3d at 484-85; Fields, 1 S.W.3d at 688. Because no such instruction was given in this case, we agree with appellant that the trial court's punishment phase jury charge was erroneous.

The error in failing to give the required punishment phase reasonable-doubt burden of proof instruction concerning the extraneous offense or bad acts evidence is not, however, "constitutional error." Huizar, 12 S.W.3d at 481-82. It is purely "charge error." Id. at 484-85. Accordingly, we apply the Almanza² harm analysis. Id. Because appellant did not object at trial to this error in the court's charge, under the Almanza harm analysis, we examine the entire record to determine whether the error was so egregious and created such harm that appellant did not receive a fair and impartial trial. See Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996); Almanza, 686 S.W.2d at 171; see also Tex. Code Crim. Proc. Ann. art. 36.19 (Vernon 1981).

In making this 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." Almanza, 686 S.W.2d at 171; see generally Hutch, 922 S.W.2d at 172-74. The purpose of this review is to illuminate the actual, not just theoretical, harm to the accused. Almanza, 686 S.W.2d at 174.

The San Antonio Court of Appeals' opinion on remand in Huizar is instructive. The court of criminal appeals remanded Huizar to the San Antonio Court of Appeals for an Almanza harm analysis of the trial court's unobjected to error in failing to instruct the jury at the punishment phase on the reasonable-doubt standard concerning extraneous offenses. Huizar, 12 S.W.3d at 485. On remand, the San Antonio Court of Appeals noted that the State "relied on substantial evidence of extraneous conduct in seeking punishment" and commented during closing argument at the punishment phase of the trial that "the State had no burden of proof during the punishment trial." Huizar v. State, 29 S.W.3d 249, 250 (Tex. App.--San Antonio 2000, pet. filed). Nonetheless, the San Antonio Court held that based on the record as a whole and because the ninety-nine year punishment assessed by the jury was within the authorized range of punishment, it could not conclude that the error in failing to instruct the jury at punishment on the reasonable-doubt standard concerning extraneous offenses rose to the level of egregious harm.

Based on our review of the entire record of appellant's trial including the charge, the state of the evidence, the contested issues, the weight of probative evidence, the argument of counsel, and all relevant information revealed by the record of the trial as a whole, we are unable to conclude that the trial court's error in failing to instruct the jury in the punishment phase charge concerning the extraneous offense and bad acts burden of proof is not so egregious and did not create such harm that appellant did not receive a fair and impartial trial. See Almanza, 686 S.W.2d at 171.

The record reflects that appellant's trial counsel vigorously defended appellant. Appellant's trial counsel conducted an effective voir dire which...