Ellison v. State
| Decision Date | 26 June 2001 |
| Docket Number | No. 06-99-00186-CR,06-99-00186-CR |
| Citation | 51 S.W.3d 393 |
| Parties | (Tex.App.-Texarkana 2001) BOBBY JOE ELLISON, Appellant v. THE STATE OF TEXAS, Appellee |
| Court | Texas Court of Appeals |
Page 393
v.
THE STATE OF TEXAS, Appellee
Decided June 5, 2001
Rehearing Overruled June 26, 2001.
On Appeal from the 124th Judicial District Court Gregg County, Texas Trial Court No. 27,067-B
Page 394
Before Cornelius, C.J., Grant and Ross, JJ.
Opinion by Chief Justice Cornelius
A jury convicted Bobby Joe Ellison of aggravated robbery.1 The jury assessed his punishment at ninety-nine years in
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prison and a $5,000 fine. On appeal Ellison contends that the trial court committed reversible error by admitting evidence of extraneous offenses at the punishment phase of the trial and by failing to instruct the jury, sua sponte, on the burden of proof required for such offenses. Ellison also alleges that his trial counsel rendered ineffective assistance by failing to object and request instructions regarding the admissibility of the extraneous offenses. Because we find that the admission of extraneous offense evidence during the punishment phase prejudiced Ellison, we affirm his conviction, but reverse and remand the cause for a new trial on punishment.
At about 5:15 p.m. on August 24, 1999, Diane Turner was leaving her place of employment when she was attacked by a disguised assailant, later identified as Ellison. Ellison brandished a gun and ordered Turner not to move. Shortly thereafter, Ellison struck Turner to the point of rendering her unconscious, and he fled with her 1999 Toyota as well as her purse. When Turner regained consciousness, she walked about a quarter of mile to seek assistance at Trinity Industries. Jerry Elliott, the emergency care attendant for Trinity, tended to Turner while the plant superintendent called 9-1-1. Turner was subsequently taken to the hospital. She had sustained a skull fracture and laceration requiring nine stitches, two large bumps on the side of her head, and a cut under her eye. Gregg County Sheriff's deputies interviewed Turner, and she gave them a description of the assailant. They put out a five-state look-out bulletin the following evening. Mike Claxton, investigator for the Gregg County Sheriff's Department, was notified by representatives of Rusk County that a deputy was pursuing a suspect vehicle and that in order to stop the vehicle they had to "spike it out."2 Once the vehicle was stopped, Ellison got out and fled into a nearby wooded area. Various law enforcement agencies joined the search for Ellison, including the Federal.Bureau of Investigation, the Texas Rangers, local authorities, and a Department of Public Safety helicopter crew. Ellison was eventually apprehended. After appearing before magistrates in both Rusk and Gregg Counties, Ellison was transported to the Gregg County Sheriff's Department. During his detention, Ellison agreed to make a statement. In his statement, Ellison said that after happening upon Turner, he hit her with the back of his hand and with a nine millimeter Ruger, and then fled the scene in her vehicle. He went on to state that he drove the vehicle around to pick up both rock and powder cocaine, as well as methamphetamine.
Ellison contends that the trial court erred in admitting evidence of extraneous offenses during the punishment phase of the trial when the State failed to prove beyond a reasonable doubt that he committed the extraneous acts. He further contends that the trial court erred by failing to sua sponte instruct the jury that before it could consider the extraneous offense evidence, it must find that the State had proved those acts beyond a reasonable doubt. The extraneous offenses proffered during the punishment phase consisted of Ellison's involvement in the burglary of a Blanco County constable's vehicle, during which various items were removed, including a rifle and handgun, as well as his involvement in the Aryan Brotherhood and various hate crimes in North Carolina and
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Missouri.3 Evidence of extraneous crimes or bad acts is admissible during the punishment phase to the extent the trial court deems it relevant to sentencing. Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a) (Vernon Supp. 2001).4 If the State offers such...
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Strange v. State, No. 14-05-00756-CR (Tex. App. 4/12/2007)
...because, although he denied hitting the victim, he admitted to pleading guilty to the probated extraneous offense), with Ellison v. State, 51 S.W.3d 393, 397 (Tex. App.-Texarkana 2001, pet.) (holding that appellant was egregiously harmed because his sentence could have been substantially af......
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Bluitt v. State
..."None." See Tex. Code Crim. Proc. Ann. art. 36.19 (Vernon 1981); Almanza, 686 S.W.2d at 171-72; see also Ellison v. State, 51 S.W.3d 393, 396 (Tex.App.-Texarkana 2001, pet. granted) (holding trial court's failure to give reasonable-doubt instruction regarding extraneous offense sua sponte w......
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Ellison v. State
...committed by Ellison, they must find beyond a reasonable doubt that Ellison actually committed those acts. See Ellison v. State, 51 S.W.3d 393 (Tex.App.-Texarkana 2001), rev'd, 86 S.W.3d 226 2002). The Court of Criminal Appeals reversed our decision because we used an improper analysis in d......
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Ellison v. State
...the trial court deems it relevant to sentencing. TEX.CODE CRIM. PROC. ANN. art. 37.07, § 3(a) (2001)." Ellison v. State, 51 S.W.3d 393, 396 (Tex.App.-Texarkana 1998, pet. granted). It further noted that, if such evidence is offered by the state, the jury cannot consider the evidence unless ......