Dominique Reed v. State ( 2020 )

Affirmed and Memorandum Opinion filed April 30, 2020.
In The
Fourteenth Court of Appeals
NO. 14-18-00748-CR
DOMINIQUE REED, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 177th District Court
Harris County, Texas
Trial Court Cause No. 1570531
MEMORANDUM OPINION
Appellant Dominique Reed appeals his conviction for the felony offense
of burglary of a vehicle with two prior convictions for the same offense. 1 He
contends the trial court (1) erroneously allowed the State to discuss his two prior
convictions for burglary of a vehicle during voir dire and offer evidence of these
prior convictions during the guilt-innocence phase of trial and (2) committed jury
1
See Tex. Penal Code Ann. § 30.04(d)(2)(A).
charge error that egregiously harmed him. We affirm.
BACKGROUND
Complainant is a Houston police officer who, at the time of the charged
offense, had been working in the narcotics division for over 30 years and had years
of surveillance experience. Complainant’s wife, Mary, had been a special agent
for over 15 years and a criminal investigator for 10 years; she had extensive
experience in physical and electronic surveillance.
At about 3:00 a.m. on November 12, 2017, Complainant woke up to use
the bathroom. As he walked into the bathroom, he looked outside his window. He
noticed three men approach his truck, which was parked on the street in front of his
house. Complainant saw the men trying to pry his truck’s passenger door open;
one of the men broke the passenger side window and climbed into his truck.
Complainant got his clothes, identification, and pistol and woke up his wife.
Shortly thereafter, his truck’s alarm went off and the men fled.
Complainant and his wife got into their other vehicle and started driving
eastward because going east would have been the “quickest route of egress” for the
men. As Complainant was driving, Mary accessed the three video recordings from
their home surveillance cameras (which had captured the burglary) on her phone.
The third video showed the men had fled eastward, as Complainant anticipated,
and he continued to drive in that direction around the neighborhood. Soon,
Complainant and Mary saw Appellant walking down the street and Mary realized
he was the same man whose image was captured by their surveillance cameras
“walking up and down the sidewalk and he was casing the cars.” Mary recognized
him by his gait and his unique clothing—especially his jacket, which was light and
had a black trim “around the neck, the arms and the waist” as well as pockets and
black patches on the front of the jacket.
2
Complainant drove past Appellant a few times and Appellant looked at
Complainant and his wife. Complainant had no doubt Appellant was the man he
saw captured on video and recognized Appellant “by the distinctive clothing he
was wearing.” Complainant continued to follow Appellant and paralleled his
movements from “a couple hundred yards” while Mary called 9-1-1, requested a
marked police unit, and led police to Appellant’s location. When Appellant saw
the marked police car, he immediately “ducked” and turned (from the bike path on
which he was walking) towards the train tracks. Police arrested Appellant. At the
time of his arrest, Appellant was wearing the same unique jacket as one of the
burglars captured on the video.
In December 2017, Appellant was charged with burglary of a vehicle with
two prior convictions for the same offense. A trial was held from August 15, 2018,
to August 18, 2018. A jury found Appellant guilty as charged, and the trial court
assessed Appellant’s punishment at 17 months’ confinement. Appellant filed a
timely appeal.
ANALYSIS
I. Prior Convictions
Appellant contends in his first issue that the trial court erred by permitting
the State to (1) bring up his two prior convictions during voir dire of the jury and
(2) introduce evidence of the two prior convictions in the form of redacted
judgments during the guilt-innocence phase of trial.
A. Standard of Review and Governing Law
We review a trial court’s decision to admit evidence (as well as its
decision as to whether the probative value of evidence was substantially
outweighed by the danger of unfair prejudice) under an abuse of discretion
3
standard. Gonzalez v. State, 544 S.W.3d 363, 370 (Tex. Crim. App. 2018). A trial
court abuses its discretion when its decision lies outside the zone of reasonable
disagreement. Id.
Relevant evidence is generally admissible, and irrelevant evidence is
inadmissible. Id. However, if the probative value of relevant evidence is
substantially outweighed by the danger of unfair prejudice, confusing the issues,
misleading the jury, undue delay, or needlessly presenting cumulative evidence,
the evidence is inadmissible under Texas Rule of Evidence 403. See Tex. R. Evid.
404; see also Gonzalez, 544 S.W.3d at 371. Rule 403 does not exclude all
prejudicial evidence; instead, it focuses on the danger of “unfair” prejudice. State
v. Mechler, 153 S.W.3d 435, 440 (Tex. Crim. App. 2005). “‘Unfair prejudice’
refers only to relevant evidence’s tendency to tempt the jury into finding guilt on
grounds apart from proof of the offense charged.” Id.
A person commits the offense of burglary of a vehicle if that person,
without the effective consent of the owner, breaks into or enters a vehicle or any
part of a vehicle with the intent to commit any felony or theft. Tex. Penal Code
Ann. § 30.04(a); Jones v. State, 418 S.W.3d 745, 747 (Tex. App.—Houston [14th
Dist.] 2013, no pet.). The offense is a state jail felony if “it is shown on the trial of
the offense that the defendant has been previously convicted two or more times of
an offense under this section.” Tex. Penal Code Ann. § 30.04(d)(2)(A); Jones, 418
S.W.3d at 747. The two-prior-conviction provision in section 30.04(d)(2)(A) is
jurisdictional because the prior convictions are necessary to establish a felony to
give the district court jurisdiction. See Oliva v. State, 548 S.W.3d 518, 528 (Tex.
Crim. App. 2018) (holding that two prior driving while intoxicated (DWI)
convictions are jurisdictional elements because they are necessary to establish a
felony DWI to give the district court jurisdiction).
4
Thus, when two prior convictions elevate a misdemeanor offense to a
felony offense, they are jurisdictional elements of the offense and the State must
both plead the two prior convictions and prove them at trial. See Martin v. State,
200 S.W.3d 635, 638, 640 (Tex. Crim. App. 2006); Hollen v. State, 117 S.W.3d
798, 801-02 (Tex. Crim. App. 2003); see also Hernandez v. State, 109 S.W.3d 491,
493 (Tex. Crim. App. 2003). A defendant is entitled to stipulate to jurisdictional
prior convictions thereby preventing the State from offering otherwise admissible
evidence of those convictions. See Martin, 200 S.W.3d at 638. A defendant’s
stipulation places the prior convictions into evidence, making the jury aware of
their existence and satisfying evidentiary requirements “while avoiding the unfair
prejudice that would accompany further mention of the convictions.” See
Hernandez, 109 S.W.3d at 495. However, the State is permitted to: (1) read the
indictment at the beginning of trial (including the prior convictions that are
jurisdictional only); (2) introduce the defendant’s stipulation into evidence; and (3)
refer to the prior convictions in a legitimate manner during voir dire, opening
statements, and closing arguments. See Hollen, 117 S.W.3d at 802; Tamez v. State,
11 S.W.3d 198, 202 (Tex. Crim. App. 2000).
B. Voir Dire
Appellant argues in his first issue that the trial court erroneously allowed
the State to “discuss” his two prior convictions during voir dire. More specifically,
he contends the State “positively hammered” on his two prior convictions and
called them “the most important thing” during its voir dire. According to
Appellant, this “psychologically manipulate[d]” the venire members so that “[i]t
defies common sense to believe the twelve people who ultimately served on the
jury were able to” adhere to the admonishments they were given to not consider
Appellant’s prior convictions in determining his guilt or innocence.
5
In support of his contentions, Appellant quotes only limited excerpts from
the State’s voir dire in his appellate brief. However, to properly address
Appellant’s contentions, we set out the State’s complete statements relating to
Appellant’s prior convictions in context:2
[THE STATE]: . . . I have to prove to you every element beyond a
reasonable doubt, and these are the elements that I have to prove to
you.
I have to prove to you that on November 12th, 2017, within
Harris County, Texas, Dominique Reed, unlawfully and with the
intent to commit theft, broke into and entered a vehicle owned by
[Complainant], a person who had a greater right to that vehicle. I
have to prove to you that the defendant did not have any consent or
permission to be within that vehicle. And I also have to prove to you
that there are at least two prior convictions for BMV. This is a
burglary of a motor vehicle third case which is why we’re here today.
I do not have to prove to you why the car was broken into. I
don’t have to prove to you damage to the vehicle. I don’t have to
prove to you any certain value. And I actually don’t even have to
prove to you that there was ever any theft that was committed, just the
intent to commit theft.
So these are the things that are my elements. These are the
things that I have to prove, every single one of these things, to those
12 jurors that are going to sit there beyond a reasonable doubt
(indicating).
So I want to talk about the most important thing is the prior
convictions. Now, the reason why I have to prove to you that this is a
third and not a second or a first is that the fact that it’s a third gets us
right here in district court. I have to prove to you that there are two
prior convictions. This is really, really important because the law
says that I have to prove to you that there are two prior convictions.
But the fact that there are two prior convictions for burglary of a
motor vehicle are not relevant to this case’s guilt or innocence. You
cannot use those prior convictions on whether this case happened
2
We have italicized the limited portions Appellant quoted in his brief to support his
argument.
6
here today. It is not to prove whether the defendant did or did not
commit burglary of a motor vehicle on November 12th of 2017. You
absolutely cannot consider it.
* * *
[After several more pages of voir dire unrelated to the prior
convictions, the State questioned the venire members.]
Now, before I get to the law of parties, is there anybody here —
now, when I was talking about this being a BMV third, I told you
cannot consider that in guilt and innocence. Is there anyone here that
won’t be able to do that, that thinks that if they hear about convictions
that they’re going to automatically assume that if they hear about
prior convictions that this person is guilty before they’ve heard
anything else, before they’ve looked at any other evidence? Anyone
on the first row? . . .
Juror No. 54. So you feel like if you heard about prior
convictions that you would automatically assume guilt before you
hear any other evidence? You’re going to be blinded by that?
VENIREPERSON: Yes.
[THE STATE]: And, Juror No. 56, you feel the same way?
VENIREPERSON: Yes.
THE COURT: Thank you all for your honesty. Thank you.
Anyone else?
[THE STATE]: Is there anyone else on the back row over
here? Juror No. 60?
VENIREPERSON: Yes.
[THE STATE]: Anyone else?
So everybody else can promise me that that is not something
you will hold against the defendant? That is not fair. That is not the
intention of the law. And you have to understand that everything is in
its moment. We are just here to judge the guilt and innocence of what
happened on November 12th, 2017, not the day before, not a day
after.
So everyone else who didn’t raise their cards can promise that
they will not hold that against the defendant?
I mean, it’s not — and here’s the thing. These rights, they’re
7
not just his. They’re my rights. They’re all of our rights. You would
want the same thing if you were sitting where he’s sitting here today.
That’s why I’m really trying to push it and argue it.
For several reasons, we reject Appellant’s contention that the trial court committed
error in permitting the State to bring up Appellant’s prior convictions during voir
dire.
First, Appellant cites no authority in support of his assertion that the trial
court erroneously allowed the State to discuss his two prior convictions. The State
was allowed to speak of Appellant’s two prior convictions in a legitimate manner
during voir dire. See Hollen, 117 S.W.3d at 802. In Hollen,3 the defendant’s
indictment for felony DWI included allegations of two prior DWI convictions, and
defendant provided a stipulation. Id. at 799. Over the defendant’s objections, the
indictment (including the two prior DWI conviction allegations) was read to the
jury; the State referenced the prior convictions in voir dire, opening statements,
and closing argument; the stipulation was admitted into evidence; and the jury
charge mentioned the prior convictions along with a limiting instruction. Id. The
Court of Criminal Appeals held that, because the two prior convictions are
jurisdictional elements of the offense that must be proven to the factfinder to
establish the offense of felony DWI, the jury could be informed of the stipulation
and the stipulation could be admitted into evidence. Id. at 802. The court also held
that because the two prior offenses were properly mentioned in the indictment and
introduced into evidence by stipulation, “there was likewise no error in the jury
instructions, and the prior convictions were the legitimate subject of voir dire,
opening statements, and closing arguments.” Id. Mentioning prior convictions
3
Although the defendant in Hollen was charged with a felony DWI third offense (and
therefore involved two prior convictions for DWI that were jurisdictional elements), we see no
reason why Hollen’s rationale is not equally applicable in this case involving two prior
convictions for burglary of a vehicle that are jurisdictional elements for Appellant’s state jail
felony offense.
8
that are jurisdictional elements of the charged offense during voir dire is not
improper but a legitimate subject of voir dire. See id. at 801-02.
Second, Appellant claims the State “hammered on the prior convictions”
during its voir dire. However, the State’s voir dire in the record spans over 29
pages but fewer than three pages relate to Appellant’s prior convictions. The
above quoted portions of the State’s voir dire are the only statements the State
made regarding Appellant’s prior convictions. The record does not support
Appellant’s claim.
Third, reading the State’s voir dire in context, the State merely (1)
discussed Appellant’s prior convictions because they are jurisdictional elements it
was required to prove to the jury; (2) wanted to impart the importance of not
considering Appellant’s prior convictions in determining Appellant’s guilt or
innocence in the present case; and (3) wanted to ensure that venire members could
be fair and unbiased once they knew of Appellant’s prior convictions.
Fourth, there is no evidence or authority to support Appellant’s assertion
that jurors were “psychologically manipulat[ed]” by the State’s references to
Appellant’s prior convictions and the State’s “negative framing” that his prior
convictions cannot be considered in determining his guilt or innocence in this case.
There is no evidence that the jurors failed to adhere to the State’s admonishments
(or the trial court’s instructions) and considered Appellant’s prior convictions in
finding him guilty.
Finally, we reject Appellant’s claim that only a defendant may question
venire members “about whether they could be fair to a defendant with two prior
convictions.” Just as a trial court may permit the defendant to question the venire
to ensure that the seated jury is fair, impartial, unbiased, will follow the applicable
law, and from protecting adjudications of guilt from reversal on appeal, the trial
9
court may permit the State to do so. Inquiring whether venire members can follow
the law as instructed and can be fair and unbiased after hearing about a defendant’s
prior convictions seems to be a legitimate subject for voir dire. See Hollen, 117
S.W.3d at 802. Bringing biases to light before a jury is seated is of utmost
importance in ensuring a fair judicial process.
“‘The voir dire process is designed to ensure, to the fullest extent possible,
that an intelligent, alert, disinterested and impartial jury will perform the duty
assigned to it.’” Franklin v. State, 12 S.W.3d 473, 477 (Tex. Crim. App. 2000)
(quoting Salazar v. State, 562 S.W.2d 480, 482 (Tex. Crim. App. [Panel Op.]
1978)). A trial court abuses its discretion if it prohibits “a proper question about a
proper area of inquiry.” See Samaripas v. State, 454 S.W.3d 1, 5 (Tex. Crim. App.
2014); Ripstra v. State, 514 S.W.3d 305, 314 (Tex. App.—Houston [14th Dist.]
2016, pet. ref’d). The State and defendant have the right to question venire
members to expose any interest or partiality in order to use peremptory strikes
intelligently. Franklin, 12 S.W.3d at 477. Questions are also proper if they
uncover grounds for challenges for cause, such as an inquiry whether a venire
member (1) possesses a bias or prejudice in favor of or against a defendant; (2)
possesses a bias against a phase of the law upon which the State or the defendant is
entitled to rely; or (3) already has decided the defendant’s guilt or punishment. See
Barajas v. State, 93 S.W.3d 36, 38-39 (Tex. Crim. App. 2002).
Here, the State properly inquired whether venire members could follow
the law as instructed and could be fair and unbiased knowing that Appellant has
two prior convictions. See Franklin, 12 S.W.3d at 477; Barajas, 93 S.W.3d at 38-
39.
We conclude the trial court did not abuse its discretion when it permitted
the State to “discuss” Appellant’s prior two convictions during voir dire. We
10
overrule Appellant’s first issue with regard to Appellant’s voir dire arguments.
C. Guilt-Innocence Phase
Appellant also argues in his first issue that the trial court abused its
discretion by allowing the State to introduce (during the guilt-innocence phase of
trial) redacted judgments evidencing his two prior convictions when Appellant
signed a stipulation regarding both convictions. Citing Robles v. State, Appellant
contends the admission of evidence of his two prior convictions is error (even
though they are jurisdictional elements of the charged offense) because the danger
of unfair prejudice from introduction of the evidence substantially outweighs its
probative value. 85 S.W.3d 211, 214 (Tex. Crim. App. 2002).
The State counters that it was not error to admit the redacted judgments of
Appellant’s two prior convictions in this case because “the judgments did not
reveal information not already known to the jury.” The State argues that, unlike
here where the admitted judgments were redacted, the Court of Criminal Appeals
in Robles found the trial court erred when it admitted judgments of jurisdictional
prior convictions in addition to the defendant’s stipulation because the judgments
were unredacted, contained references to other prior convictions, and showed the
sentences imposed. Id. at 213-14. In support of its contention, the State points to
the following language from Robles:
Each judgment contained a notation that it was a DWI-third offense.
Also, the judgments contained the sentences that were imposed in
each case. Therefore, a jury could have gleaned, during the guilt-
innocence phase, that the DWI charged here was the appellant’s fifth
alcohol-related offense and that the appellant had not served his full
term for his last prior conviction. That kind of evidence is prejudicial
and possesses no probative value.
Id. at 213.
Assuming arguendo the trial court abused its discretion in allowing the
11
State to introduce the redacted judgments into evidence during the guilt-innocence
phase of trial, we nonetheless conclude any error was harmless.
Error in the admission of evidence of prior convictions when a defendant
has stipulated to the prior convictions constitutes non-constitutional error and is
reviewed under the standard set out in Texas Rule of Appellate Procedure 44.2(b).
See Tex. R. App. P. 44.2(b); Herring v. State, 147 S.W.3d 390, 396 (Tex. Crim.
App. 2004). Rule 44.2(b) provides that we must disregard any error that does not
affect an appellant’s substantial rights. See Tex. R. App. P. 44.2(b); Herring, 147
S.W.3d at 396; McIlroy v. State, 188 S.W.3d 789, 796 (Tex. App.—Fort Worth
2006, no pet.). A substantial right is affected when the error had a substantial and
injurious effect or influence in determining the jury’s verdict. Scales v. State, 380
S.W.3d 780, 786 (Tex. Crim. App. 2012). In conducting a harm analysis, we
examine the entire trial record, “including any testimony or physical evidence
admitted for the jury’s consideration, the nature of the evidence supporting the
verdict, the character of the alleged error and how it might be considered in
connection with other evidence in the case.” Motilla v. State, 78 S.W.3d 352, 355
(Tex. Crim. App. 2002).
During the guilt-innocence phase of trial, the State introduced Appellant’s
signed stipulation into evidence, which provided that Appellant was convicted (1)
on October 24, 2016, of burglary of a motor vehicle, a Class A misdemeanor “for
which [he] was sentenced to 200 days in the Harris County Jail”; and (2) on May
25, 2017, of burglary of a motor vehicle, a state jail felony “for which [he] was
sentenced to 6 months in the State Jail.” The State also introduced the judgments
of Appellant’s two prior convictions into evidence. These judgments were heavily
redacted and provided less information than what Appellant had provided in his
stipulation. In fact, the redacted judgments revealed only that Appellant had been
12
convicted twice of burglary of a vehicle, the courts in which he was convicted, and
the dates of conviction.
The State mentioned the two prior judgments only when it offered them into
evidence together with Appellant’s stipulation. The trial court admitted the
stipulation and redacted judgments into evidence as exhibits 9, 10, and 11. With
regard to the prior judgments, the trial court gave the following limiting instruction
to the jury:
Ladies and gentlemen of the jury, you are instructed that such
evidence, specifically Exhibits 10 and 11, cannot be considered by
you in any manner proving or tending to prove that the defendant, Mr.
Reed, burglarized a motor vehicle on or about the 12th day of
November, 2017.
That is the limiting instruction I am giving you concerning those two
exhibits that have been admitted into evidence. They are for
jurisdictional purposes only. All right? Thank you.
The State published the stipulation and the two redacted judgments by reading only
excerpts from them to the jury.
The State never mentioned the judgments again during the guilt-innocence
phase of the trial. The State also never mentioned the judgments during its
opening and closing statements. Additionally, the trial court provided the
following limiting instruction in the jury charge:
With respect to the evidence admitted in this case concerning the
defendant’s having been previously convicted two times of the
offense of burglary of a motor vehicle . . . , you are instructed that
such evidence cannot be considered by you as in any manner proving
or tending to prove that the defendant burglarized a motor vehicle, if
he did, on or about the 12th day of November, 2017.
Moreover, the evidence of Appellant’s guilt was strong. Complainant testified that
when he woke up in the middle of the night, he looked outside a window and saw
three men approach his truck, which was parked on the street in front of his house.
13
Complainant saw the men trying to pry his truck’s passenger door open.
Complainant testified he woke up his wife Mary and they heard the truck’s alarm
go off. They got into their other vehicle to pursue the men.
As they drove around the neighborhood, Complainant and Mary saw
Appellant walking down the street and recognized him as the man from the
surveillance video because of his unique clothing—especially his jacket, which
was light and had a black trim “around the neck, the arms and the waist” as well as
pockets and black patches on the front of the jacket.
Complainant testified he had no doubt Appellant was the male he saw
captured on video. Complainant testified that when Appellant saw the marked
police car, Appellant immediately turned in another direction. When the police
arrested Appellant, he was wearing the same unique jacket that the burglar
captured on the video was wearing.
The jury also viewed the three video recordings, which showed one of the
burglars wearing the same unique jacket as Appellant wore when he was arrested.
In the first video, the burglar wearing the unique jacket can be seen shining a
flashlight into the passenger window of Complainant’s personal truck, which was
parked on the street in front of Complainant’s house. That burglar then walks
down the sidewalk away from Complainant’s truck to Complainant’s work truck,
which was parked behind his personal truck on the street. The burglar wearing the
unique jacket shines a flashlight into the passenger window of Complainant’s work
truck, turns around, and walks away down the sidewalk to the left out of the
camera’s view.
In the second video, the burglar with the unique jacket and another man can
be seen walking on the sidewalk, while a third man can be seen standing by
Complainant’s work truck shining a flashlight into the truck’s passenger widows.
14
The burglar with the unique jacket then walks over to the third man and
Complainant’s work truck, and the two walk away from Complainant’s work truck
and back to the sidewalk. The third man walks over to Complainant’s personal
truck and shines a flashlight into the passenger window. The third man walks
away and hands the flashlight to the burglar with the unique jacket, who then walks
to Complainant’s personal truck and attempts to open the passenger window and
door while the other two men stand on the sidewalk and watch.
The third video shows the two other burglars standing close to
Complainant’s personal truck. The truck’s alarm goes off, those two burglars run
away, and the burglar wearing the unique jacket climbs out of the passenger
window of Complainant’s truck and also runs away. In addition to the three
surveillance videos, the State also introduced close-up screenshots from the
surveillance videos of the burglar with the unique jacket and a close-up photo,
which shows him walking on the bike trail next to the train tracks and wearing the
same jacket he can be seen wearing in the surveillance videos the jury viewed.
After examining the entire record, we have fair assurance that, even if the
trial court erred by admitting the two redacted judgments, the admission of the
evidence did not have a substantial and injurious effect or influence on the jury.
See Tex. R. App. P. 44.2(b). We conclude that any error in admitting the redacted
judgments during the guilt-innocence phase of trial was harmless, and we therefore
overrule Appellant’s first issue.
II. Jury Charge
Appellant argues in his second issue that he was egregiously harmed
because the jury charge did not instruct the jury on the stipulation’s legal effect and
instead instructed the “jury to consider the evidence of the convictions.”
15
A. Standard of Review and Governing Law
A jury charge must set forth the law applicable to the case and set out all
essential elements of the offense, including jurisdictional elements. Martin, 200
S.W.3d at 639. Therefore, the charge must inform the jury of the existence of the
two prior burglary of a vehicle convictions (to which the defendant stipulated) on
which the State relies for conviction of a felony burglary of a vehicle offense. See
id. Accordingly, the jury charge must include some reference to the (1)
jurisdictional element of two prior burglary of a vehicle convictions in a felony
burglary of a vehicle trial; and (2) defendant’s stipulation and its legal effect of
establishing the jurisdictional element. Id. at 640-41.
The Court of Criminal Appeals outlined two ways a trial court can instruct
a jury about such stipulated prior convictions. Id. at 639. The first way is to
include the specific indictment allegations of the two prior burglary of a vehicle
convictions in the application paragraph with a separate paragraph stating that the
defendant has stipulated to the existence of the two prior convictions, thereby
establishing the jurisdictional element. See id. “This separate paragraph would
also instruct the jury to find that the jurisdictional prior convictions may not be
used for any other purpose in determining the guilt of the defendant on the charged
occasion.” Id. The second “way is to simply charge the elements of the
underlying offense and include a paragraph stating that the defendant has stipulated
to the existence of two (specified or unspecified) prior convictions, and thus the
jury is directed to find that those elements of felony are established.” See Martin,
200 S.W.3d at 639. The court also stated that the parties and the trial court “may
devise other, entirely satisfactory, instructions to inform the jury of the existence of
the defendant’s stipulation and of its effect.” Id. Further, the trial court is
authorized to give other limiting instructions appropriate to the case. Id.
16
A trial court errs in submitting a jury charge that does not contain some
reference to the jurisdictionally required prior convictions or does not contain some
reference to the defendant’s stipulation and its legal effect of establishing the
jurisdictional element. Id. at 639-41. Such a charge error should be reviewed
under the standards set out in Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App.
1984), superseded on other grounds by rule as stated in Rodriguez v. State, 758
S.W.2d 787, 788 (Tex. Crim. App. 1988). Id. at 639, 641. If the defendant objects
to the failure to include any reference to the jurisdictional element or the
stipulation and its legal effect, he only needs to show some actual harm calculated
to injure his rights. Id. at 639. However, if the defendant, as in this case, does not
object to the jury charge, he must show that the jury charge caused him such
egregious harm that he did not have a fair and impartial trial. Id. at 639-40.
Egregious harm requires that a defendant suffered actual harm rather than
theoretical harm. Chambers v. State, 580 S.W.3d 149, 154 (Tex. Crim. App.
2019). In examining the record for egregious harm, we consider the entire jury
charge, the state of the evidence, the arguments of the parties, and any other
relevant information in the record. Arteaga v. State, 521 S.W.3d 329, 338 (Tex.
Crim. App. 2017); see also Martin, 200 S.W.3d at 642. Jury charge error is
egregiously harmful if it affects the very basis of the case, deprives a defendant of
a valuable right, or vitally affects a defensive theory. Arteaga, 521 S.W.3d at 338.
B. Application
In this case, Appellant signed a written stipulation regarding his two prior
convictions for burglary of a vehicle. The stipulation was admitted without
objection into evidence during the State’s case-in-chief, and the State read the
stipulation but omitted the cause numbers and sentences imposed for the prior
convictions. Appellant did not object to the charge or otherwise draw to the trial
17
court’s attention that the charge did not instruct the jury regarding the legal effect
of his stipulation. The jury charge’s application paragraph required the jury to
determine whether Appellant previously had been convicted of the two prior
burglary of a vehicle offenses alleged in the indictment, but the jury charge did not
specifically address the stipulation. The charge did instruct the jury that it could
not consider the evidence admitted regarding the two prior burglary of a vehicle
convictions “in any manner proving or tending to prove” that Appellant
burglarized a vehicle in the instant case.
The trial court erred by submitting a jury charge that did not contain some
reference to Appellant’s stipulation and its legal effect of establishing the
jurisdictional element of two prior burglary of a vehicle convictions. See Martin,
200 S.W.3d at 639, 641. However, after examining the record, we cannot conclude
that Appellant was egregiously harmed by the trial court’s error.
First, we note that although the jury charge is deficient, it is not so
deficient that it would prejudice Appellant’s rights. See id. The charge instructed
the jury regarding the jurisdictional element of two prior burglary of a vehicle
convictions, but it failed to instruct the jury on Appellant’s stipulation and its legal
effect of establishing the jurisdictional element. Had the trial court so instructed
the jury, the State would have been relieved of its burden to prove the required
jurisdictional element. The lack of instruction was not detrimental to Appellant.
Also, the trial court instructed the jury that it could not consider Appellant’s prior
two convictions in determining his guilt in the present case. We generally presume
the jury follows the trial court’s instructions. Beltran De La Torre v. State, 583
S.W.3d 613, 620 (Tex. Crim. App. 2019); Thrift v. State, 176 S.W.3d 221, 224
(Tex. Crim. App. 2005). The trial court’s instruction would thus counterbalance
potential harm, if there were any.
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Second, the state of the evidence weighs against a finding of harm, much
less egregious harm. As we have outlined in detail above, the evidence of
Appellant’s guilt was strong. Evidence at trial included testimony from
Complainant, testimony from his wife, three videos that captured the burglary, and
photos of Appellant shortly thereafter that showed him wearing the same
distinctive jacket as one of the burglars and from which the jury could have
identified Appellant as the burglar wearing the jacket.
Third, the State never mentioned Appellant’s two prior convictions during
its opening statement or closing argument. The State focused its closing argument
entirely on what occurred on November 12, 2017. Defense counsel also never
spoke about the prior convictions in his closing argument.
Fourth, with regard to other relevant information in the record, Appellant
claims that the State “emphasized to the jury over and over, throughout the trial”
that Appellant had two prior convictions for burglary of a vehicle. However, as
discussed above, Appellant’s assertion is not supported by the record.
Additionally, we note the record shows that (1) the State emphasized to the jury
that it should not consider Appellant’s prior convictions in determining his guilt in
this case; and (2) the trial court instructed the jury several times to not consider
Appellant’s prior convictions in deciding whether he committed the charged
offense.
Having examined the record before us, we conclude that the absence of an
instruction regarding Appellant’s stipulation and the stipulation’s legal effect did
not result in egregious harm to Appellant’s right to a fair and impartial trial. See
Martin, 200 S.W.3d at 642. We therefore overrule Appellant’s second issue.
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CONCLUSION
We affirm the trial court’s judgment.
/s/ Meagan Hassan
Justice
Panel consists of Chief Justice Frost and Justices Wise and Hassan.
Do Not Publish — Tex. R. App. P. 47.2(b).
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