Escovedo v. State

• Decision Date: 15 June 1995
• Docket Number: No. 01-94-00485-CR,01-94-00485-CR
• Parties: Andrew J. ESCOVEDO, Appellant, v. The STATE of Texas, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 109

902 S.W.2d 109

Andrew J. ESCOVEDO, Appellant, v. The STATE of Texas, Appellee.

No. 01-94-00485-CR.

Court of Appeals of Texas Houston (1st Dist.).

June 15, 1995.

Tony Aninao, Houston, for appellant.

John B. Holmes, Jr. and Julie Klibert, Houston, for appellees.

Before OLIVER-PARROTT, C.J., and O'CONNOR and TAFT, JJ.

OPINION

O'CONNOR, Justice.

The primary issue in this appeal is whether a trial court is required to give an instruction on reasonable doubt regarding an extraneous offense at punishment. We hold it must.

A jury found the appellant, Andrew J. Escovedo, guilty of aggravated robbery and assessed punishment at 20 years in prison. We affirm.

Facts

The complainant, Victoria Cortinez, worked part-time at the Gutierrez Food Market, located at 7313 Market Street in Houston. She was the only employee in the store during her shift from 10:00 a.m. to 2:00 p.m. On February 9, 1994, she opened the store about 10:00 a.m. About five minutes later, a young man came in the store to play the pinball machine. At about 10:15 or 10:20 a.m., the appellant came into the store. The appellant asked her if the guy that worked at the store was there. Cortinez told the appellant he would not be in until 2:00 or 2:30 p.m. The appellant told her he needed to wait for him because he did not have gas and his car was stalling. Although Cortinez did not see the appellant arrive, she noticed a light blue Buick parked in front of the store.

The appellant and Cortinez had several conversations while the appellant was in the store. He told her his name was Jessie Garza, and he had just gotten off work at Brown & Root. He told her he could get her husband a job at Brown & Root because his step-father was a supervisor. At about 12:30 p.m., the young man finished playing pinball and left the store. As Cortinez was leaning on the counter watching television, the appellant reached across the counter and put a knife to her throat. The knife blade was about four inches long. The appellant told Cortinez to give him the money in the cash register. When she saw the knife, Cortinez threw herself backwards. When she fell back, the knife cut her neck just below her left ear.

As Cortinez got up, she grabbed an umbrella and began to swing it and to scream. The appellant repeatedly told her to give him the money in cash register. He then tried to open the register but could not. Cortinez continued to scream for the woman who lived next door. The appellant walked to the front door as if he were leaving, but then turned around, again demanded money, and threatened to kill her. About that time a car drove up, and the appellant left in the blue Buick.

Houston Police Officer Alberto Garcia received information about the robbery and developed a suspect. He completed a photo spread and took it to Cortinez. Based on the photo spread, Officer Garcia obtained an arrest warrant for the appellant. At the time of his arrest, the appellant was driving a light blue Buick.

Jury charge

In point of error one, the appellant contends the trial court erred by refusing to instruct the jury during the punishment phase of trial on the burden of proof on the extraneous offense.

During the punishment phase of trial, the State offered evidence of an extraneous offense committed by the appellant. Guadeloupe Perez testified that, on February 9, 1994, before 3:00 p.m., the appellant entered the fruit stand where she worked. He told her he was waiting for someone. He hung around her fruit stand and the taqueria next door for about four hours. At about 7:00 p.m., the appellant pulled out a gun and pointed it at her. He threatened to kill her and demanded the $50 she had in her hand. He took the money and left. Later, she identified him in a photo spread.

The appellant took the stand at punishment and denied that he robbed either woman. He also denied that he drove a blue Buick and that he was arrested while in a blue Buick.

The appellant objected to the charge and requested the court to include an instruction that the jury should not consider the extraneous offense unless it believed beyond a reasonable doubt the appellant committed the offense. The trial court denied the request.

The appellant argues the instruction was required under TEX.CODE CRIM.P. art. 37.07, § 3(a) (Vernon Supp.1995). That provision of the Code of Criminal Procedure 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.

(Emphasis added.) Since the amendment, which was adopted in 1993, the Court of Criminal Appeals has not addressed the issue whether the trial court is required to give an instruction on reasonable doubt about extraneous offenses during the punishment phase of the trial. ¹

The Court of Criminal Appeals has addressed the issue whether an instruction on burden of proof regarding an extraneous offense is necessary at the guilt-innocence phase of trial (not at punishment, as here). In George v. State, 890 S.W.2d 73, 76 (Tex.Crim.App.1994), the court held the trial court must, if properly requested, instruct the jury at the guilt-innocence phase of trial not to consider an extraneous offense unless the jury believes beyond a reasonable doubt that the defendant committed the extraneous offense. The court acknowledged that the burden of proof in the jury instruction is tied to the burden of proof imposed on the State to prove the defendant committed the extraneous offense. Id. at 75. The court held the burden of proof imposed on the State is that the State must prove an extraneous offense at the guilt-innocence stage of the trial beyond a reasonable doubt. Id.; see also Harrell v. State, 884 S.W.2d 154, 159 (Tex.Crim.App.1994). In a footnote, the court said, "We are not concerned with the jury instruction given at punishment. But cf. TEX.CODE CRIM.PROC. art. 37.07, § 3(a)." 890 S.W.2d at 76 n. 8.

One court has addressed the same issue as we address in this case. In Mitchell v. State, 892 S.W.2d 213, 215 (Tex.App.--Texarkana 1995, pet. filed), the court held no burden of proof instruction on extraneous offenses was required at the punishment phase of the trial. The court held that proof beyond a reasonable doubt was a preliminary requirement for the admissibility of the evidence of extraneous offenses, not part of the State's case. Thus, the court reasoned, the trial court, not the jury, makes the determination at the punishment phase of trial. Id.

The dissent in Mitchell agreed with the majority, that the amendment to TEX.CODE CRIM.P. art. 37.07, § 3(a) creates a threshold of admissibility requiring the trial court to determine whether the extraneous offense has been shown beyond a reasonable doubt. 892 S.W.2d at 216. The dissent noted the instruction, if requested by the defendant, is required during the guilt-innocence phase and argued there is nothing in article 37.07 to indicate the instruction does not apply in the punishment phase. Id. The dissent concluded that, if no instruction is required, the trial court would become the exclusive fact finder instead of the jury and the legislature had not specifically provided that the trial court would preempt the jury's fact finding role. Id. at 216-17.

Here, the State urges us to adopt the opinion of the majority in Mitchell. The State argues that article 37.07, section 3(a) provides the State may offer evidence of extraneous offenses that it shows beyond a reasonable doubt the defendant committed; therefore, the admission of the evidence is predicated on the State proving the appellant committed the offense beyond a reasonable doubt. The statute requires the trial court to determine, beyond a reasonable doubt, the defendant committed the offense before the State may offer, and the court may admit, the evidence. The State argues the trial court is required by the statute to find beyond a reasonable doubt that the appellant committed the extraneous offense; however, the statute does not make it an issue for the jury to determine. Therefore, it is a question of law for the court to determine and not a question of fact for the jury. ²

The appellant, on the other hand, urges us to adopt the dissenting opinion in Mitchell. The appellant argues that, because the standard of proof for the admissibility of extraneous offense evidence is the same at the guilt-innocence phase and at the punishment phase, there is no reason not to require the burden of proof instruction at the punishment phase when it is required at the guilt-innocence phase. We agree with the appellant and the dissent in Mitchell.

The legislature decided to allow the admission of extraneous offense evidence at the punishment phase, but in doing so placed a burden on the State to prove the extraneous offense beyond a reasonable doubt. There is nothing in article 37.07 that reflects the legislature's decision to deprive the jury of its ultimate fact finding role. The Court of Criminal Appeals decisions in Harrell and George make it clear there is an indivisible connection between the standard of proof for the admissibility of extraneous offense evidence and the jury instruction at the guilt-innocence phase of trial. Harrell, 884 S.W.2d at 157. We find nothing in article 37.07 severs that connection at the punishment phase of...