Mapel Ntoke Bateki v. the State of Texas

Affirmed and Memorandum Opinion filed August 20, 2024.

In The

Fourteenth Court of Appeals

NO. 14-23-00398-CR

MAPEL NTOKE BATEKI, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 248th District Court
Harris County, Texas
Trial Court Cause No. 1682021

MEMORANDUM OPINION

A jury found appellant Mapel Ntoke Bateki guilty of aggravated robbery of
complainant William Koetting. Tex. Penal Code Ann. § 29.03(a), (b) (felony of
first degree). The jury assessed punishment at imprisonment for 33 years. Tex.
Penal Code Ann. § 12.32(a). Appellant argues the trial court erred by: (1) denying
his right to cross-examine and confront complainant about pending criminal
charges; (2) denying the motion to withdraw filed by appellant’s trial counsel;
(3) allowing evidence in the punishment phase of an alleged plot formed by
appellant to smuggle drugs into jail during his trial; (4) allowing the courtroom
deputy to testify about appellant’s alleged plot to smuggle drugs; (5) excluding a
jury instruction about the burden of proof for extraneous offenses and bad acts in
the punishment-phase jury charge; and (6) denying appellant’s requested jury
instruction for the lesser-included offense of aggravated assault.

We affirm the judgment of the trial court as challenged on appeal.

I. BACKGROUND

In June 2020, complainant met appellant at a gas station by chance and
saved his number anticipating a future purchase of illegal drugs. Complainant
contacted appellant a few days later to arrange the purchase of illegal drugs. They
met in a fast-food parking lot in southwest Houston. When he arrived, complainant
got into appellant’s car for a few minutes to complete the transaction.

At trial, complainant testified he sought to buy “weed” or marijuana.
According to complainant, appellant tried to sell him a different drug, not the
marijuana he alleges he requested. When complainant refused, he testified that
appellant demanded all his cash and car keys and pointed a gun at complainant.
Appellant also testified at trial. In contrast, appellant testified that complainant
sought to buy “mask” or crack cocaine. He alleged that he provided complainant
with the cocaine and that, instead of paying, complainant took the drugs and left.

The aftermath was caught, in part, on surveillance video. Appellant got out
of his car and followed complainant into his car. Complainant testified that
appellant “pistol whipped” complainant with appellant’s gun and then shot
complainant in the leg at point blank range as complainant tried to drive off.
Although shot by appellant, complainant was able to drive away and leave the
parking lot. He passed out from blood loss on the tollway and crashed his car.

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After he shot complainant, appellant returned to his car and drove away.
Complainant told one of the peace officers who responded to his crash that he was
trying to buy “weed” and had been shot. Appellant was later found and charged
with aggravated robbery.

Most of appellant’s allegations of error on appeal stem from an incident that
occurred during trial. Appellant’s mother attempted to give appellant’s trial
counsel papers for her son. The attorney refused and appellant’s mother put the
papers in clothing that was supposed to go back to appellant. However, the
courtroom deputy searched the clothing and located the papers. Recordings from
jail introduced into evidence in the punishment stage reflect that appellant was
trying to smuggle papers laced with drugs into the jail through the courthouse.

II. ANALYSIS

A. Cross-examination on pending criminal charges

In issue 1, appellant argues the trial court erred when it denied appellant the
right to cross-examine and confront complainant about pending criminal charges.
At pretrial, appellant made the trial court aware of three different pending charges
against the complainant. One of the charges occurred two years after the offense at
issue and a year before appellant’s trial. The other two charges occurred just a few
days before trial. Appellant argued that he was entitled to cross-examine
complainant as to whether complainant received any favorable treatment with
respect to his pending charges in exchange for his testimony in appellant’s case.

The trial court denied appellant’s request to cross-examine complainant
about his pending charges because the trial court did not see “any connection
between the charges pending . . . that are really logical or causal connections.”

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1. Applicable law

The right to confront one’s accuser necessarily includes the right to
cross-examine. Carroll v. State, 916 S.W.2d 494, 497 (Tex. Crim. App. 1996).
Exposing a witness’s motivation to testify for or against the accused or the State is
a proper and important purpose of cross-examination. Carpenter v. State, 979
S.W.2d 633, 634 (Tex. Crim. App. 1998); see also Carroll, 916 S.W.2d at 498
(“This broad scope necessarily includes cross-examination concerning criminal
charges pending against a witness and over which those in need of the witness’[s]
testimony might be empowered to exercise control.”). Parties are allowed great
latitude to show “any fact which would or might tend to establish ill feeling, bias,
motive and animus on the part of the witness.” London v. State, 739 S.W.2d 842,
846 (Tex. Crim. App. 1987). But the trial court may limit cross-examination as
inappropriate for several reasons. Carroll, 916 S.W.2d at 498 (citing Delaware v.
Van Arsdall, 475 U.S. 673, 679 (1986) (e.g., trial court may exercise discretion to
prevent harassment, prejudice, confusion of issues, and marginally relevant
interrogation)).

To impeach a witness with evidence of pending criminal actions, the
proponent of the evidence must establish that the evidence is relevant. Carpenter,
979 S.W.2d at 634; Carroll, 916 S.W.2d at 494; London, 739 S.W.2d at 846–48.
“Evidence that a witness is on probation, is facing pending charges, or has a prior
juvenile record is not relevant for purposes of showing bias or a motive to testify
absent some plausible connection between that fact and the witness’s testimony.”
Irby v. State, 327 S.W.3d 138, 149 (Tex. Crim. App. 2010); see also Carpenter,
979 S.W.2d at 634–35 & n.5. The required “causal connection” is a matter of
relevance. See Tex. R. Evid. 401; Carpenter, 979 S.W.2d at 634. The
cross-examiner must show the relevance of the “vulnerable status” or other source

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of bias to the witness’s testimony. Irby, 327 S.W.3d at 151–52. We review this
issue for abuse of discretion. Id. at 154.

2. No abuse of discretion

One of the pending charges—assault causing bodily injury—occurred two
years after the offense involving appellant. The other two charges stemmed from
the conduct the weekend before trial—DWI and evading arrest in a motor vehicle.
Appellant admitted he was not aware of any plea deal given to complainant related
to any of his pending charges in exchange for his testimony in appellant’s case, but
argued he should be entitled to cross-examine the complainant concerning whether
his testimony might be affected by the pending charges. Appellant did not establish
a causal connection between the pending charges against complainant and
complainant’s testimony against appellant. He did not make an offer of proof
providing any further evidence to support his contention that complainant was
motivated to testify in a certain way because of his vulnerable relationship with the
State.

The State represented to the trial court that complainant had fully cooperated
and been willing to testify before any of the pending charges arose. As an example,
complainant appeared at the 2022 trial setting ready testify before the trial was
continued. The State also represented that the prosecutor on appellant’s case had
no communication with prosecutors working on complainant’s pending cases.
Further, the State argued that complainant was shot by appellant and therefore
possessed a motivation to testify independent of any pending charges he might
have.

Though the constitutional right to confront witnesses encompasses “the
opportunity to show that a witness is biased or that his testimony is exaggerated or
unbelievable,” a trial court “retains wide latitude to impose reasonable limits on
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such cross-examination ‘based on concerns about, among other things, harassment,
prejudice, confusion of the issues, the witness’[s] safety, or interrogation that is
repetitive or only marginally relevant.’” Irby, 327 S.W.3d at 145 (quoting Van
Arsdall, 475 U.S. at 679). Because appellant simply argued the mere existence of
pending charges, we cannot say the trial court abused its discretion by refusing to
permit cross-examination on complainant’s pending criminal charges.

We overrule issue one.

B. Denial of motion to withdraw

In issue two, appellant argues the trial court committed structural error by
denying his trial counsel’s motion to withdraw after it came to light that appellant
was attempting to involve his counsel in criminal activity, i.e., appellant’s attempt
to smuggle papers laced with drugs into the jail. Appellant’s trial counsel sought to
withdraw from his representation of appellant because he was concerned that he
could not “ethically and effectively go forward with the representation of”
appellant after appellant tried to involve him in a crime.

The trial court denied the motion. Appellant argues the trial court committed
a structural error by forcing appellant to accept an attorney who, on discovery of a
serious conflict of interest, had expressed his inability to thereafter provide
effective assistance.

1. Applicable law

The Sixth Amendment to the United States Constitution provides that “[i]n
all criminal prosecutions, the accused shall enjoy the right . . . to have the
Assistance of Counsel for his defence.” U.S. Const. amend. VI. The Sixth
Amendment guarantees not just the right to counsel, but the right to the reasonably
effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686

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(1984). Ineffective assistance of counsel may result when a counsel labors under a
conflict of interest. Id. at 692. In such a situation, counsel may breach the duty of
loyalty, perhaps the most basic of counsel’s duties. Id.

Most claims of ineffective assistance of counsel are reviewed under the
analytical framework set forth in Strickland. Although Strickland governs claims
of ineffective assistance of counsel based on counsel’s error, claims involving an
actual conflict of interest are reviewed under Cuyler v. Sullivan. 1 446 U.S. 335,
350 (1980); see also Odelugo v. State, 443 S.W.3d 131, 136 (Tex. Crim. App.
2014) (“[T]he proper standard by which to analyze claims of ineffective assistance
of counsel due to a conflict of interest is the rule set out in Cuyler v. Sullivan.”).

A defendant can demonstrate a violation of his right to the reasonably
effective assistance of counsel if he can show (1) that his counsel was burdened by
an actual conflict of interest and (2) that the conflict had an adverse effect on
specific instances of counsel’s performance. Cuyler, 446 U.S. at 348–350. An
“actual conflict of interest” exists if counsel is required to make a choice between
advancing his client’s interest in a fair trial or advancing other interests (perhaps
counsel’s own) to the detriment of his client’s interest. Monreal v. State, 947
S.W.2d 559, 564 (Tex. Crim. App. 1997).

2. Actual conflict of interest

Counsel stated that he could not ethically and effectively represent appellant
because appellant’s attempt to involve him in a crime would negatively affect their
relationship. Although appellant’s attempt to involve his counsel in criminal
activity might affect trust between counsel and client, counsel never stated that he
1
The critical difference between the Cuyler test and the Strickland test is there is a lesser
burden when the claim of ineffective assistance of counsel involves a conflict of interest than
when a claim is based on error. Thompson v. State, 94 S.W.3d 11, 16 (Tex. App.—Houston [14th
Dist.] 2002, pet. ref’d).

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could no longer represent appellant’s interest due to a conflict with his own
interests or the interests of another.

Counsel further stated that he would not be able to call appellant’s mother as
a witness because of her involvement in the alleged plot to smuggle drugs into the
jail. However, based on her alleged involvement in the smuggling plot, appellant’s
mother likely could not have been called as a witness by any lawyer.

A criminal defendant’s attempt to involve his lawyer in a criminal enterprise
could result in a possible legal conflict between the two. However, here, there was
no indication there was an actual conflict. None of the evidence at trial suggested
that appellant’s counsel was part of the plot or a willing participant in the plot. A
potential conflict of interest is insufficient to reverse a conviction. Cuyler, 446 U.S.
at 350. Therefore, appellant did not demonstrate his counsel was forced to choose
between advancing appellant’s interest in a fair trial and advancing other interests
to his detriment. See Monreal v. State, 947 S.W.2d at 564.

3. Adverse effect on performance

Even if we were to conclude that appellant’s attempt to involve his trial
counsel in unlawful activity posed an actual conflict, we conclude there was no
evidence of any adverse effect on counsel’s representation of appellant. To meet
the second prong of the Cuyler analysis, appellant needed to demonstrate what
information would have benefitted him and how his trial counsel could have
represented him more effectively had counsel not been impaired with a conflict.
See Thompson v. State, 94 S.W.3d 11, 19–20 (Tex. App.—Houston [14th Dist.]
2002, pet. ref’d).

“In order to determine whether [defendant’s] attorney refrained from
cross-examination in certain areas and whether [his] supposed inability to

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cross-examine more thoroughly could be considered detrimental to [defendant], we
must be able to discern from the record the nature of the information that could
have been developed by counsel.” Id. at 21. Counsel called appellant as a witness
in the guilt phase of trial and presented appellant’s version of the events to the jury.
Counsel also cross-examined witnesses during the punishment phase of trial and
objected to the introduction of the extraneous-offense evidence of the plot to
smuggle drug-laced papers into the courthouse. Although counsel did not call
appellant’s mother as a witness, appellant’s trial counsel called appellant’s father
and uncle to testify as to appellant’s character and mental-health issues.

On this record, there was no evidence counsel’s representation was
adversely affected or deficient; nor did appellant demonstrate “how or whether
counsel was impaired in [his] representation of appellant.” Id. at 22. We overrule
issue two because appellant did not satisfy either prong of the Cuyler analysis. See
Cuyler, 446 U.S. at 348–350.

C. Evidence of extraneous offenses or bad acts in punishment phase

In issue three, appellant argues the trial court erred by allowing evidence of
the alleged drug-smuggling plot into the record because the plot was irrelevant and
inadmissible as there was no proof of the alleged offense beyond a reasonable
doubt. In response, the State argues appellant did not preserve this issue for appeal.
Even if he had, the State further asserts that the plot to smuggle drugs into jail was
admissible in the punishment phase of trial because it was probative of appellant’s
character. We begin with the question of whether appellant preserved this issue for
appellate review.

After the State sought to have the trial court’s courtroom deputy testify to his
receipt of clothing from appellant’s mother, his search of the clothing and his
discovery of papers that were alleged to have contained drugs, appellant made the
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following comments and objections:

[COUNSEL FOR APPELLANT]: Well, let me say, Judge, I
don’t know that we even know that at this point. That’s another thing
I’d like to point out.
THE COURT: And I understand.
[COUNSEL FOR APPELLANT]: They haven’t even tested the
papers as far as I know.
THE COURT: We don’t. We don’t.
[COUNSEL FOR APPELLANT]: And that would be another
objection I would make. We’re talking about a possible drug deal. But
my understanding is they submitted the paper, I guess, to a lab or
whatever; but I don’t think we know for certain that actually is the
case. I think that’s an important thing we need to know before we try
to suggest something that we may know — it may not even be true. I
mean, what if it comes back in and the paper doesn’t have any drugs
on it.
THE COURT: The issue is what was being set up and what was
being done. Deputy Bowers, can you please speak with the DA for a
minute, please? Off the record.

Although he objected to various pieces of evidence that were admitted
regarding the alleged drug-smuggling plot, appellant never objected to the
introduction of “plot” as a whole. Although appellant discussed the lack of
evidence of drugs, he never objected in the trial court as to the issue raised on
appeal—that the entire plot was irrelevant and inadmissible at the punishment
phase of trial because there was no proof “that the offense was proven beyond a
reasonable doubt.” Because the trial court had no opportunity to consider and rule
on the legal issue raised on appeal, we conclude that appellant has not preserved
the issue for appellate review. Tex. R. App. P. 33.1(a); Lovill v. State, 319 S.W.3d
687, 691–92 (Tex. Crim. App. 2009) (defendant fails to preserve error when
contention urged on appeal does not match with specific complaint made in trial
court).

We overrule issue three.
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D. Testimony of courtroom deputy

In issue four, appellant argues the trial court “fundamentally erred when it
allowed [the] courtroom deputy to testify at punishment despite apparent unfair
prejudice and resulting comment on the evidence.” Appellant’s arguments in issue
four raise two separate claims of error on the part of the trial court: (1) comments
made by the trial court to the jury about the courtroom deputy and (2) the trial
court’s decision to allow the courtroom deputy to testify about his search of
appellant’s clothes and the papers he discovered.

1. Applicable law

And although appellant refers to fundamental error in his issue description,
his argument addresses structural error. See Tex. R. Evid. 103(e) (“In criminal
cases, a court may take notice of a fundamental error affecting a substantial right,
even if the claim of error was not properly preserved.”). Fundamental errors are
category-one and -two Marin errors. Proenza v. State, 541 S.W.3d 786, 795 (Tex.
Crim. App. 2017) (citing Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App.
1993)). Fundamental error occurs when: (1) “rights [] widely considered so
fundamental to the proper functioning of our adjudicatory process as to enjoy
special protection in the system” are violated or when (2) rights are lost which can
only be forfeited or waived by parties. Marin, 851 S.W.2d at 278–79.

Structural errors are a subset of fundamental error. Only federal
constitutional errors can be “structural,” though most federal constitutional errors
are not structural. Lake v. State, 532 S.W.3d 408, 411 (Tex. Crim. App. 2017). The
Supreme Court has recognized the following errors as structural: total deprivation
of counsel at trial, a biased judge, the unlawful exclusion of members of the
defendant’s race from a grand jury, denial of the right to self-representation at trial,
and denial of the right to a public trial. Ex parte Fierro, 934 S.W.2d 370, 372 (Tex.
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Crim. App. 1996). An error is structural “only if it is the kind of error that affects
the framework in which the trial takes place and defies analysis by harmless error
standards trial.” Id. In contrast, trial error may “be quantitatively assessed in the
context of other evidence presented in order to determine whether its admission
was harmless.” Id. at 372–73.

Both fundamental and structural errors may be raised for the first time on
appeal barring an express waiver of the right. See Mendez v. State, 138 S.W.3d
334, 342 (Tex. Crim. App. 2004); Marin, 851 S.W.2d at 280.

2. Trial court’s comments

Appellant highlights comments made by the trial court to the jury about the
courtroom deputy including:

You’ve already met Deputy Carter over there. I will tell you that if
you are selected to sit on this jury, he’s going to be the person who is
in charge of you. If you haven’t noticed, he’s funny, he’s got a good
personality, and if you’re really nice he’ll even dance.

Appellant did not object to the comments made by the trial court. Therefore, we
must consider whether they constitute structural or fundamental error, which
appellant can raise for the first time on appeal. See Mendez, 138 S.W.3d at 342;
Marin, 851 S.W.2d at 280. All the comments made by the trial court relating to the
courtroom deputy were made before it was known that the deputy might be a
witness. The comments appear intended to make the jury feel comfortable with the
deputy who would be supervising their daily movements.

The court of criminal appeals has recognized the trial court has great
influence over a jury and concluded remarks made to the jury may taint due
process. See Blue v. State, 41 S.W.3d 129, 131–32 (Tex. Crim. App. 2000).
However, we are not confronted by a situation in which the trial court knowingly

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commented on evidence after it was received at trial. The trial court made
comments to the jury about Deputy Carter’s personality before Deputy Carter
became a fact witness. Once the smuggling plot was revealed and the trial court
was aware that Deputy Carter would need to testify, another deputy was placed in
charge of the jury.

Although appellant argues the trial court’s comments gave Deputy Carter
more credibility with the jury, we cannot conclude the comments, at the time they
were made, were fundamental or structural error such that the very framework of
appellant’s trial or due process was affected. Remarks by the trial court will
constitute bias only if they reveal such a high degree of favoritism or antagonism
as to make fair judgment impossible. Luu v. State, 440 S.W.3d 123, 128–29 (Tex.
App.—Houston [14th Dist.] 2013, no pet.). Here, the comments made by the trial
court did not reflect that a fair judgment was impossible or that appellant was
deprived of his constitutional right to an impartial judge. See id.

Having concluded that the trial court’s comments did not constitute
fundamental or structural error, appellant did not preserve a complaint for appellate
review as to the comments made by the trial court about Deputy Carter. See Tex.
R. App. P. 33.1(a).

3. Overruling appellant’s objection to Deputy Carter’s testimony

Appellant properly and timely objected to the testimony of Deputy Carter
arguing that his relationship and authority over the jury throughout the trial would
give the deputy more credibility in front of the jury. Although in the trial court
appellant did not cite any specific rule, he argues on appeal that his objection was
effectively a Rule 403 objection. See Tex. R. Evid. 403 (relevant evidence may be
excluded if probative value is outweighed by unfair prejudice).

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The purpose of a punishment proceeding is not to prove guilt, but instead to
allow a jury to assess punishment in line with the objectives of the Penal Code.
Rogers v. State, 991 S.W.2d 263, 266 (Tex. Crim. App. 1999); see generally Tex.
Penal Code Ann. § 1.02(1) (expressing general purposes of Penal Code). The test
for relevancy is much broader during the punishment phase because it allows a jury
to consider more evidence in exercising its discretion to assess punishment within
the appropriate range. See Sims v. State, 273 S.W.3d 291, 295 (Tex. Crim. App.
2008) (“When the jury assesses punishment, it must be able to tailor the sentence
to the particular defendant, and relevance is simply a question of what is helpful to
the jury in determining the appropriate sentence for a particular defendant in a
particular case.”).

A Rule 403 objection requires that the trial court balance the probative value
of the evidence against its potentially prejudicial effect. Montgomery v. State, 810
S.W.2d 372, 388–90 (Tex. Crim. App. 1990 & 1991) (op. on reh’g). Such a
balancing test includes, but is not limited to, four factors: (1) the probative value of
the evidence; (2) the potential to impress the jury in some irrational yet indelible
way; (3) the time needed to develop the evidence; and (4) the proponent’s need for
the evidence. Id. at 389–90; see also Sunbury v. State, 88 S.W.3d 229, 235 (Tex.
Crim. App. 2002) (suggesting in dicta that Montgomery factors apply to Rule 403
decisions on punishment evidence).

We conclude appellant’s Rule 403 arguments are without merit. Although
Deputy Carter’s testimony was undoubtedly prejudicial, the trial court did not
abuse its discretion in concluding that its probative value was not substantially
outweighed by the danger of unfair prejudice. Deputy Carter’s testimony as to part
of the smuggling plot was highly probative of appellant’s character and thus
important in giving complete information to the jury so that it could tailor an

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appropriate sentence. See Erazo v. State, 144 S.W.3d 487, 491 (Tex. Crim. App.
2004). Moreover, Deputy Carter was the only person who searched appellant’s
clothing and found the papers. The State had no other way to introduce the
evidence. Finally, Deputy Carter’s testimony was very brief and simply established
that appellant’s mother handed him clothing in which he found at least two
discolored sheets of paper.

We conclude the trial court did not abuse it discretion by overruling
appellant’s objection to the testimony of Deputy Carter as unfairly prejudicial. We
overrule issue four.

E. Jury-charge error

In issue five, appellant argues the trial erred by failing to instruct the jury sua
sponte regarding the standard of proof applicable to extraneous offenses and bad
acts in the punishment phase of trial.

1. Standard of review

A review of alleged jury-charge error involves a two-step analysis. Ngo v.
State, 175 S.W.3d 738, 743–44 (Tex. Crim. App. 2005); Abdnor v. State, 871
S.W.2d 726, 731–32 (Tex. Crim. App. 1994). First, we must determine whether the
charge contains any actual error; second, if there is actual error, we must determine
whether the error resulted in sufficient harm to require reversal. Ngo, 175 S.W.3d
at 744; Abdnor, 871 S.W.2d at 731–32. If the defendant preserved the error by
timely objecting to the charge, an appellate court will reverse so long as the
defendant demonstrates that he suffered some harm. Sakil v. State, 287 S.W.3d 23,
25–26 (Tex. Crim. App. 2009). By contrast, if a defendant does not properly
preserve error by objection, any error in the charge “should be reviewed only for
‘egregious harm’ under Almanza.” Madden v. State, 242 S.W.3d 504, 513 (Tex.

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Crim. App. 2007) (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App.
1984 & 1985)).

2. Applicable law

Code of Criminal Procedure article 37.07, section 3(a)(1) provides,

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 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)(1). Because “Article 37.07 is ‘the
law applicable’ to all non-capital punishment proceedings[,] . . . the trial judge
must sua sponte instruct the jury at the punishment phase concerning that law,
including the fact that the State must prove any extraneous offenses beyond a
reasonable doubt.” Delgado v. State, 235 S.W.3d 244, 252 (Tex. Crim. App. 2007);
Huizar v. State, 12 S.W.3d 479, 484 (Tex. Crim. App. 2000); see also Tex. Code
Crim. Proc. Ann. art. 36.14 (trial court shall include in jury charge “the law
applicable to the case”). The trial court has the responsibility to provide a
reasonable-doubt instruction sua sponte. See Huizar, 12 S.W.3d at 483–84.

3. Harm analysis

The trial court did not include a reasonable-doubt instruction in the charge.
Therefore, we hold that the trial court erred when it did not include the extraneous-
offense instruction in the jury charge.

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Having found charge error, we next analyze whether the error caused
appellant to suffer egregious harm. “An egregious harm determination must be
based on a finding of actual rather than theoretical harm.” Cosio v. State, 353
S.W.3d 766, 777 (Tex. Crim. App. 2011). “To be reversible, any unpreserved
jury-charge error must result in egregious harm which affects the very basis of the
case, deprives the defendant of a valuable right, or vitally affects a defensive
theory.” Olivas v. State, 202 S.W.3d 137, 144 (Tex. Crim. App. 2006) (citations
and internal quotation marks omitted). In Almanza, the court of criminal appeals
outlined four factors that reviewing courts should consider when determining
whether a jury-charge error resulted in egregious harm: “[T]he 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.

The entire jury charge

First, we consider the entire jury charge. The punishment charge did not
include an instruction about the State’s burden of proof regarding
extraneous-offense evidence. The punishment charge did, however, include the
following instruction: “The burden of proof in all criminal cases rests upon the
State throughout the trial and never shifts to the defendant.” The jury was further
instructed that they “may take into consideration all the facts shown by the
evidence admitted before you in the full trial of this case and the law as submitted
to you in this charge.” The jury charge in the guilt-innocence phase contained an
instruction explaining the jury must find from the evidence beyond a reasonable
doubt that appellant committed the charged offense.

We conclude the general jury-charge instruction is a consideration that

17
weighs neither for nor against the conclusion that appellant suffered egregious
harm. See Loge v. State, 550 S.W.3d 366, 384 (Tex. App.—Houston [14th Dist.]
2018, no pet.) (lack-of-reasonable-doubt instruction in punishment phase not
egregious harm when “the charge generally told the jury that the State had the
burden of proof throughout the trial”); Cf. Zarco v. State, 210 S.W.3d 816, 827
(Tex. App.—Houston [14th Dist.] 2006, no pet.) (no egregious harm in absence of
reasonable-doubt instruction although no new extraneous-offense evidence was
received in punishment phase).

The state of the evidence

Next, we evaluate the state of the evidence. In determining whether the
charge error caused actual harm, we consider whether the extraneous-offense
evidence received during the punishment phase was “clear, strong, direct and
unimpeached” such that the jury charge “would not have made a difference in how
the jury considered the evidence.” Martinez v. State, 313 S.W.3d 358, 368 (Tex.
App.—Houston [1st Dist.] 2009, pet. ref’d).

One of the investigating officers, Detective Le, testified that he listened to
calls made from appellant’s inmate identification number and heard evidence of
the smuggling plot. Audio was played for the jury of a telephone call from
appellant to his mother, as well as other calls made by another inmate who used
appellant’s inmate identification number to call both a dealer as well as appellant’s
mother. The courtroom deputy also testified that he searched clothes intended for
appellant given to him by appellant’s mother and found papers in them. Two of the
sheets were blank and appeared to be yellowed. The testimony “was clear, strong,
direct and unimpeached” such that the jury charge “would not have made a
difference in how the jury considered the evidence.” See Orellana v. State, 489
S.W.3d 537, 543 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d); Martinez,

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313 S.W.3d at 368. Appellant did not present any evidence challenging the
testimony or evidence presented regarding the alleged smuggling plot.

Considering the “clear, strong, direct and unimpeached” testimony presented
by the State’s witnesses in the punishment phase, we conclude it is unlikely an
extraneous-offense instruction would have changed how the jury considered the
evidence. See Martinez, 313 S.W.3d at 368. It is, therefore, less likely that the
jury-charge error caused appellant harm. See Cosio, 353 S.W.3d at 778. Given the
record, we conclude the second factor weighs against a conclusion of egregious
harm.

The parties’ arguments

We next consider whether either parties’ arguments during the trial
“exacerbated or ameliorated error in the charge.” Arrington v. State, 451 S.W.3d
834, 844 (Tex. Crim. App. 2015). Here, the record shows neither party referenced
nor misstated the State’s burden of proof regarding the extraneous-offense
evidence.

Appellant’s closing argument focused on seeking probation and, like the
appellant in Martinez, did not “mount any serious challenge to the extraneous
offenses.” Id. at 369. His closing arguments effectively conceded the
drug-smuggling plot and argued that his mother had enabled him to behave badly:

You know, this issue about — you have heard there was testimony
that supposedly his mother was trying to smuggle some drugs into the
jail, I guess, on a piece of paper is what the testimony was.
....
First of all, obviously the mother is not the best influence in his life.
The mother, she is smuggling drugs. And I’m not saying he’s not to
blame, but I am talking about the mother right now. The mother is
literally bringing drugs to the courtroom for him to have in jail. I
mean, what does that say? I mean, you have heard the word enabler. I
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mean, that to me sounds — she’s just an enabler out to the ozone, in
my opinion.

The State’s closing focused on the escalation in appellant’s behavior over
time, as appellant had multiple prior misdemeanor convictions to which he
stipulated at trial. The State referenced the fact that appellant had received
probation several times for his prior offenses and yet continued to engage in
violent and dangerous behaviors. The offense against complainant was committed
with a gun that appellant was not legally allowed to possess under the conditions of
his probation. The State discussed the severity of the underlying offenses and
appellant’s actions in shooting complainant at some length. The State did also
address the extraneous-offense evidence challenged on appeal by arguing:

And while he’s on trial for a first degree felony, what did we hear on
those jail calls? While you and I are sitting here working, what is he
doing? He’s convincing his mom to bring drugs into the jail so that he
can deal drugs inside the jail.
He had zero remorse. He’s putting zero effort to just be a good person.
Zero effort to be a contributing member of society.

The State then suggested the jury start in the middle of the punishment range. See
Martinez, 313 S.W.3d at 368–69 (inclusion of extraneous-offense evidence as part
of general theme of appellant’s character did not weigh in favor of finding
egregious harm).

Considering the State gave multiple reasons for requesting the mid-range of
punishment unrelated to the extraneous offense, and the focus of the State’s
arguments was on appellant’s escalating violence, we conclude that the arguments
of counsel weigh against a conclusion of egregious harm. See Orellana, 489
S.W.3d at 545; Martinez, 313 S.W.3d at 369.

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Other relevant information

Among the other relevant information that we can consider is the severity of
the punishment assessed. See Loge, 550 S.W.3d at 385. Here, the jury assessed
punishment at imprisonment for 33 years, which is in the middle of the statutory
range. We conclude the severity of the sentence does not weigh in favor of a
conclusion that appellant suffered egregious harm.

No egregious harm shown

Applying the egregious-harm standard to this record, we conclude that a
review of all relevant factors shows that appellant was not egregiously harmed by
the omission of a reasonable-doubt instruction regarding evidence of the
extraneous offense—smuggling drugs into the courthouse—during the punishment
phase. The charge error did not affect the very basis of the case, deprive appellant
of a valuable right, or vitally affect a defensive theory. See Taylor v. State, 332
S.W.3d 483, 490 (Tex. Crim. App. 2011); Loge, 550 S.W.3d at 385–86.

We overrule issue five.

F. Lesser-included-offense instruction

In issue six, appellant argues the trial court erred by denying his requested
jury instruction for the lesser-included offense of aggravated assault. Maintaining
that the jury could have been unsure about whether appellant intended to commit
theft, appellant argues the trial court was required to instruct the jury on aggravated
assault. He further asserts there was no evidence that appellant ever tried to
possess, or did possess, any of complainant’s property. Therefore, appellant asserts
there was more than a scintilla of evidence that was consistent with a finding that
appellant was guilty only of the aggravated assault.

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1. Standard of review and applicable law

We review a trial court’s refusal to submit a lesser-included-offense
instruction for an abuse of discretion. See Chavez v. State, 666 S.W.3d 772, 776–
77 (Tex. Crim. App. 2023).

Whether a defendant is entitled to a lesser-included-offense instruction turns
on a two-part test. Rousseau v. State, 855 S.W.2d 666, 672 (Tex. Crim. App.
1993). First, we compare the statutory elements of the alleged lesser offense with
the statutory elements of the greater offense and any descriptive averments in the
indictment. Safian v. State, 543 S.W.3d 216, 220 (Tex. Crim. App. 2018). If proof
of the lesser offense is included within proof of the greater offense, the first step
has been satisfied. Id.; Tex. Code Crim. Proc. Ann. art. 37.09(1). Second, there
must be evidence from which a rational jury could find the defendant guilty of only
the lesser offense. Guzman v. State, 188 S.W.3d 185, 188–89 (Tex. Crim. App.
2006).

The court of criminal appeals has said that the guilty-only requirement is
met if there is affirmative evidence of a factual dispute that raises the lesser offense
and rebuts or negates other evidence establishing the greater offense. Roy v. State,
509 S.W.3d 315, 319 (Tex. Crim. App. 2017). But the evidence must be directly
germane to the lesser-included offense and present the lesser-included offense as a
valid, rational alternative to the greater offense. Goad v. State, 354 S.W.3d 443,
446 (Tex. Crim. App. 2011). “[I]f the defendant presents evidence that he
committed no offense at all . . . or if he presents no evidence . . . and there is no
evidence otherwise raising the issue, a charge on [a] lesser offense . . . is not
required.” Chavez, 666 S.W.3d at 777 (quoting Aguilar v. State, 682 S.W.2d 556,
558 (Tex. Crim. App. 1985)).

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2. Application to facts

Aggravated assault may be a lesser-included offense of aggravated robbery,
depending on the facts proved. Ex parte Denton, 399 S.W.3d 540, 545 (Tex. Crim.
App. 2013). The parties both agree, on the facts in this case, that aggravated assault
is a lesser-included offense of aggravated robbery. 2 Therefore, we turn to the
question of whether any evidence exists in the record that would permit a rational
jury to find appellant is guilty only of aggravated assault.

At trial, appellant argued to the trial court that if the jury did not believe
complainant’s testimony that a robbery took place, but did believe that an
aggravated assault took place, that he was entitled to the lesser-included-offense
instruction. On appeal, appellant reasserts the argument that a reasonable jury
might have disbelieved appellant and was unsure about whether a robbery took
place. However, the court of criminal appeals has clearly held the mere disbelief of
evidence “establishing commission of the greater offense” is insufficient by itself
to justify submission of a lesser offense. Chavez, 666 S.W.3d at 777 (“This is
because the disbelief of evidence is not evidence.”).

Neither in his argument in this court or in the trial court did appellant cite to
any evidence supporting a finding by the jury that appellant was guilty of only
aggravated assault. Although he testified during the guilt-innocence phase of trial,
appellant testified that he did not have gun, did not shoot complainant, did not

2
The State’s indictment alleges that in the “course of committing theft of property owned
by [complainant], and with intent to obtain and maintain control of the property, [appellant did]
intentionally and knowingly threaten and place [complainant] in fear of imminent bodily injury
and death, and [appellant] did then and there use and exhibit a deadly weapon, namely, a
firearm.” Given that proof a person intentionally, knowingly, or recklessly caused serious bodily
injury to another or that he used a deadly weapon in the commission of an assault establishes the
offense of aggravated assault, we agree with the parties that aggravated assault is a
lesser-included offense of aggravated robbery here. Tex. Penal Code Ann. §§ 22.02 (assault),
29.03 (aggravated robbery).

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know who did, and did not intend to rob or harm complainant. He further testified
that appellant punched him and assaulted him first. Appellant’s defense was that
complainant took drugs from him without paying and he alleges he pursued
complainant to recover the drugs. None of appellant’s testimony establishes any
evidence that appellant was guilty only of an aggravated assault.

The other evidence on this issue in the record is complainant’s testimony.
Complainant testified that when he got into appellant’s car to purchase drugs, he
got out his money and was then offered something other than the drug he was
seeking. Complainant testified at that point appellant pulled out appellant’s gun
and threatened complainant while demanding complainant’s money and car keys.
Given the evidence received at trial, there is no evidence that supports a conclusion
that appellant intended to commit only an aggravated assault. Appellant further
cites no evidence in the record reflecting that he was guilty of the lesser offense,
but not the greater. Therefore, we conclude appellant did not meet the second part
of the Rosseau test requiring evidence such that a rational jury could find appellant
guilty of only the lesser offense.

We overrule issue six.

III. CONCLUSION

We affirm the judgment of the trial court as challenged on appeal.

/s/ Charles A. Spain
Justice

Panel consists of Justices Wise, Spain, and Hassan.

Do Not Publish—Tex. R. App. P. 47.2(b).

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