1 John T. Boyd, Chief Ju stice (Re t.), Seven th Court of Appeal s, sittin g by assi gnment.

Tex. Gov ’t Code A nn. §75.0 02(a)(1) (Vernon S upp. 200 4-2005). NO. 07-97-0489-CR NO. 07-97-0490-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL E SEPTEMBER 20, 2004

______________________________ RANDY LEE MOORE, APPELLANT

v. THE STATE OF TEXAS, APPELLE E

_________________________________ FROM THE 320 TH DISTRICT COURT OF POTTER COUNTY; NO. 38,172-D AND 38,173-D; HON. DON EMERSON, PRES IDING

_______________________________ Before REAVIS and CAMPBELL, JJ., and BOYD, S.J. 1

ON REMAND FROM COURT OF CRIMINAL APPEA LS
In each of thes e compan ion cases, appellant Randy Lee Moore was convicted by
a Potter Co unty jury

of attempted capital murder. H is punis hment was assessed by the ju ry in each case at 99 years imp risonment and a $10,000 fine. These convictions and the2

ensuing sentences were affirmed by t his court on March 3 0, 1999. See Moore v . State, Nos. 07-97-0 489-CR and 07-97-0490-CR, 199 9 WL 173563 (Tex. App.–Amarillo March 30, 1999, pet. dis m’d) (not designa ted for pu blicatio n). Beca use we h ad not h ad the be nefit of the court’s decision in Huizar v. State , 12 S.W.3d 479 (Tex . Crim. Ap p. 2000) at the tim e of our deci sion, theCourt of Criminal Appeals remanded the caseto us for the purpose of conducting a harm analysis concerning the omission in the trial court’s pun ishment charge of a burden of proof instruction restricting the jury’s consideration of extraneous offenses to those proven b eyond a r easonabl e doubt. See Moore v. State , Nos. 1038-03 and 1039- 03, 2004 WL231316 (Tex. Crim. App. January 21, 2004) (not desi gnated for publication)

. For the re asons wediscussbelow, we affirm th e judgmen ts of the t rial cou rt.
In its reman d, becaus e the omi ssion of the reaso nable do ubt instr ucti on was no t objected to at trial, the high court instructed us to revie w the evi dence pro duced at trial to determine whether the charge error resulted in “egregious harm” to appe llan t as defined in the semi nal caseof Almanz a v. State , 686 S.W.2d 157 (Tex. Crim. App. 1985). In Hutch
v. State , 922 S.W. 2d 166 (T ex. Crim . App. 19 96), the court furth er expli cated tha t errors that result in egregious harm are “those which affect ‘the very basis o f the case,’ deprive the defendant of a ‘valuable right,’ or ‘vitally affect a defensive theory,’” and it does not require d irect evi dence of the harm to establ ish that it was eg regious. Id . at 171.
In conducting our harm analys is, the Hut ch court further instructed that we may consider four facto rs: 1) thecharge i tself, 2) the stateof the evidence including contested issues and the weight of the probative evidence, 3) arguments of counsel, and 4) any other relevantinformation revealed by the record of the trial as a w h ole. Id. Fu rther, in3

conducting our analysis, we must examine: 1) the source of the error, 2) the nature of the error, 3) wheth er, and to what ex tent it wa s emphasi zed by th e State, 4 ) its proba ble collateral implica tions, 5) how much weight ajuror would probably put upon the error, and 6) whether declarin g the erro r harmles s would encourag e the Sta te to rep eat it wi th impunity

. Harris v. State , 790 S.W. 2d 568, 5 87-88 (Te x. Crim. App. 198 9).
The question posed by the remand r equire s us to review the pertinent evidence produced at trial. The evidence in the casewas that early on October 30, 1996, appellant and othe rs were in the motel room of Katrina Attebury, an admitted former prostitute and recovering drug addict . Attebury averred that appellant possessed two firearms and
numerous cartridges, which he had said “are for the cops” because he “was wan ted.” On that day, two Amarillo police officers arrived at the motel to arrest, with a warrant, another individual and, as well, to question appellant about a recent robbery. After bei ng told that police officers were outside the room, appellant left for the stated purposeof getting a tape from his car. As the officers approached, appellant was partially within and partially without
a parked car wor ki ng under the dash with a screwdriver in hi s hand. When one of the officers, with a gun in his hand, directed a ppellant to dr op the screwdriver, appellant fled toward a room in the mo tel. The offi cers appr oached h im and at

tempted to

handcuff

him. Appellant

resisted , secured a handg un, shot o ne of theofficers in the ca lf of h is leg, and fled while exchanging shots with the officers. A search of the area was conducted by the police and they later found a ppellant, still in possession of the handgu n he had used in shooting at the officer, hiding in the bed of a pi ckup located about a block from the motel.4

The testimony about extraneous offenses at the guilt-innocence p hase of the tria l
came from Katri na Atte bury, Janet McKee (appe llant’s community supervis ion officer), Africa Moore, and Robert Preston. Attebury testified that on the day of the occurrence, up until about an hour and a half before the shootin g incid ent, s he and appellant, among others, smoked c r ack cocaine. McKee testified that at the time of the incid ent, appellant
was under deferred adjudication probation for aggravated robbery with a deadly weapon, and that a motion to proceed with adjudication on that offense wa s pending. She also said that atthe time of her testimony, appellant had not actually been convicted of any offense made the basis of the motion. Moore testified that four days before the events giving rise to appellant’s trial, appellant shot and kicked in the door of her house and, at gunpoin t, took money from her

person. Preston testified that on t he day of the occu rrence gi ving ris e to this trial, appellan t tol d Preston that he was in trouble for stealing hi s parents’ guns. He also told Preston that he had used a gun in robbing a couple of crack houses and his gun had “gon e off.”
In our original opinion, we held the admission of Attebury’s tes timony about appellant’s use of crack cocaine on the day in question waserror, but no attempt was made to associate drug use to the offense, and reference to it was minimal. Thus, we concluded, its admissi on “w as too insi gnifican t for the ju rors to gi ve it any meaning ful weig ht or to di sr upttheir ord erly eval uation o f the admi ssible e vidence. ” Moore v. S tate, 1999 WL 173563 at 4. The remainder of the extraneous offense testimony was admissible, we held, because it was relevant to explain appell ant’s motive in attempting “to avoid apprehension for proba tion revo cation a nd to avo id quest ioning a bout a re cent robb ery.” Id. at 3.5

Atthe trial court’s punishment hearing, the State’s only testimony wasthat of the two officers. Each was asked about his family an d the number of years he h ad served as a police officer. They were not asked questions about the p unis hment that should be assessed, nor were they asked about possible leniency for appellant. In seeking a lenient sentence and to show that he could be a productive member of society if he was granted leniency, appellant called three witness es, Dona ld Train er, Willi am Jones, and hismother, Barbara Moore. All three averred thatappellant was entitled to a lenient sentence. Trainer and Jones we re longtime family friends and testified about appellan t’s strong church participation in his youth.
Duri ng the cro ss-examination of Trainer, the prosecutor asked Trainer if he was familiar with thefa ct that app ellant committed robberies in 1986 and 1996, as well as appellant’s drug use . Traine r denied any know ledge of t hose matters. During Jones’s cross-examination, Jones admitted he had heard that ap p ellant was on probation for robbery in 1986, but when asked if he had he ard that a ppellan t committe d anothe r robbery in 1996 or that appellant had used firearms in those two occurrences, he replied that he had not h eard that

was the case.
Barbara Moore testified that she was aware that appellant had been placed up on probation when he was 18 years old. On cross-examination, over objection, she was asked if she was aware of 1994 probation revocation motions based up on an al leged DW I conviction, carrying an illegal weapon, and failure to pay probation fees. Shedenied any such knowledge. She also de nied tha t she was aware of a 1996 probation revocation motion based upon an a lleged failure to pay probation fees and to report a change of6

address. However, she averred appellant had almost compl eted the ten-year probation term without incident

when he had a relationship break-up, wh ich caused him depression. In its argument at the punishment hearing , the State argued t hat the o fficers w ere family men serving the public who nearly met death during the incident because appellant
was seeking to avoid arrest for robb ing a crack hou se and vi olating his prob ationary
co nditions. The prosecutor also argued the severity of shooting peace offic ers, an d referenced appellant’s commission of an armed robbery while he was on proba tion for an earlier aggravated robbery.
Reiter ated, our task is limited to a determination of whether appella nt suffered egregious harm from the omission of the reasonab le dou bt instruction in the punishment hearing charge. In that connection, we note that the testimony about the two most serious extraneous offenses, namely the aggravated robbery offenses, was uncontroverted either by c ross-examination or through the tender of direct evidence to the contrary. Th a t testimony was received during the guilt-innocence phase of the trial, at the conclusi on of which the jury was given a general “beyond a reaso n able d oubt” charge. Moreover, the events giving rise to the pr os ecution were serious. The evidence showed that appellant shotand wounded one of the witnesses and , in the process of attempting his escape, he fired other shots. Beyond the extraneous offense testimony received during the guilt-innocence phase , the State introduced very little specific evidence during the punishment hearing . The only references to other

bad acts occurred during the State’s cross-examinations of appellant’s7

witnesses. Those were inferences that appel lant h ad driven while intoxicated, had unlawfully

carried a weapon and failed to r eport t o his probation officer. The gist of the State’s argument was that appellant should not be treated l ightly because of the seriousness of the offense an d his demonstrated lack of ability to conform to proper conduct.
In sum, under th is record , the fail ure to give the reasonable doubt instruction at the punishmenthearing was not sufficient to affect the very basis of the ca se, to deprive appellant

of a val uable ri ght, or to vitally affect a defensive theory. That being so, appellant did not suffer egregious harm by the failure t o give the extraneous offense reasonable doubtinstruction. Accordingly, no reversible error is shown and the judgments of the trial court are affirmed.
John T. Boyd Senior Justice Do not pu blish.