IN THE

TENTH COURT OF APPEALS

No. 10-09-00225-CR

DEVYN JERAN LAKOSE,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 19th District Court

McLennan County, Texas

Trial Court No. 2008-1549-C1

MEMORANDUM OPINION

A jury convicted Devyn Jeran Lakose of murder and sentenced Lakose to ninetynine years in prison. In two issues, Lakose challenges instructions given in the trial 

court’s punishment charge. We affirm.

STANDARD OF REVIEW

When reviewing a jury charge, we first examine the charge for error. See Ngo v. 

State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005) (citing Middleton v. State, 125 S.W.3d 

450, 453 (Tex. Crim. App. 2003)). If error occurred, we then decide whether the error 
Lakose v. State Page 2

caused harm. Id. When, as here, an appellant fails to object to the charge at trial, he 

must show egregious harm to prevail on appeal. Id. at 743-44; see Almanza v. State, 686 

S.W.2d 157, 171 (Tex. Crim. App. 1985).

THE PUNISHMENT CHARGE

The trial court’s punishment charge states, in pertinent part:

The State has introduced evidence of extraneous crimes or bad acts other 

than the one charged in the indictment in this case. This evidence was 

admitted only for the purpose of assisting you, if it does, in determining 

the proper punishment for the offense for which you have found the 

defendant guilty. You may not consider such testimony for any purpose unless 

you, as an individual juror, believe beyond a reasonable doubt that the defendant 

committed such other crimes or bad acts, if any were committed. It is not 

necessary that all of you agree that the Defendant committed these other crimes or 

acts, but unless you, as an individual juror, believe beyond a reasonable doubt 

that the Defendant committed such acts, you may not consider this evidence for 

any purpose. Even if you do believe beyond a reasonable doubt that the 

Defendant committed such acts, you may not consider them to show that 

he is predisposed to commit such acts but only to assist you in assessing 

the proper punishment in this case.

You are further instructed that if you, as an individual juror, believe 

beyond a reasonable doubt that the Defendant committed such other 

offenses, if any were committed, you may consider those offenses for the 

purpose of assisting you, if it does assist you, in assessing the credibility of the 

Defendant’s testimony. Unless you believe beyond a reasonable doubt that 

the Defendant committed such offenses or conduct, you may not consider 

this evidence for any purpose.

UNANIMITY

In issue one, Lakose complains that the trial court erred by instructing the jury 

that unanimity is not required with regard to extraneous-offense evidence. He argues 

that, like aggravating factors and the issue of sudden passion, extraneous offenses 

require jury unanimity.
Lakose v. State Page 3

The State may introduce, at punishment, 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...” TEX. CODE 

CRIM. PROC. ANN. art. 37.07 §3(a)(1) (Vernon Supp. 2009).

Prior crimes or bad acts are introduced to provide additional information 

which the jury may use to determine what sentence the defendant should 

receive. The statute requires that such evidence may not be considered in 

assessing punishment until the fact-finder is satisfied beyond a reasonable 

doubt that these prior acts are attributable to the defendant. Once this 

requirement is met, the fact-finder may use the evidence however it 

chooses in assessing punishment.

Fields v. State, 1 S.W.3d 687, 688 (Tex. Crim. App. 1999). Article 37.07 does not “deprive 

the jury of its ultimate fact finding role.” Escovedo v. State, 902 S.W.2d 109, 114 (Tex. 

App.—Houston [1st Dist.] 1995, pet.).

Lakose cites several out-of-state cases for the proposition that, like aggravating 

factors, extraneous offenses require jury unanimity. See State v. Simon, 737 A.2d 1, 33 

(N.J. 1999); see also State v. Kirkley, 302 S.E.2d 144, 157 (N.C. 1983), overruled on other 

grounds by State v. Shank, 367 S.E.2d 639 (N.C. 1988); Commonwealth v. Cox, 863 A.2d 536, 

553 (Pa. 2004). In Texas, jury unanimity is not required as to the specific aggravating 

factor underlying a general verdict. See Leal v. State, 303 S.W.3d 292, 297 (Tex. Crim. 

App. 2009).

On the other hand, a sudden passion finding does require jury unanimity: (1) 

“the evident purpose of the statute -- to increase the reliability of jury verdicts -- is best 

achieved if the statute is interpreted to apply to the jury’s preliminary vote on sudden 

passion;” and (2) “if the Legislature intended to exempt the jury’s decision on the 
Lakose v. State Page 4

sudden passion issue from the statutory unanimity requirement, it would have stated 

its intention expressly.” Sanchez v. State, 23 S.W.3d 30, 34 (Tex. Crim. App. 2000).

According to the El Paso Court, Sanchez left open the question of whether 

“unanimity is required as to the preliminary factual issues such as findings with regard 

to prior felony convictions and their sequencing as opposed to unanimity regarding the 

jury’s ultimate decision regarding the amount of punishment:”

[I]n the context of allegations of alternate manners or means of 

committing a single offense, “there is no general requirement that the jury 

reach agreement on the preliminary factual issues which underlie the 

verdict.” The State maintains that as the charge required the jury to 

unanimously find Appellant’s status as a habitual offender and the 

number of years to be assessed, the charge does not violate the holding in 

Sanchez. We agree. The fact that the charge did not require unanimity 

regarding the preliminary facts leading to the finding of habitual offender 

status, does not require a finding that the charge was erroneous.

Valdez v. State, No. 08-04-00104-CR, 2006 Tex. App. LEXIS 2025, at *20-21 (Tex. App.—El 

Paso Mar. 16, 2006) (not designated for publication) (emphasis added) (internal citations 

omitted). The Court of Criminal Appeals affirmed:

The jury’s finding in this case that appellant “had been finally convicted of 

at least one [felony] offense on two separate occasions from at least two”

of the enhancement paragraphs is a unanimous finding that appellant 

committed at least “two felony offenses” even though some of the jurors 

may have believed that he committed at least one of the felonies set out in 

paragraphs “a” and “b,” and some of the jurors may have believed that he 

committed at least one of the felonies set out in paragraphs “b” and “c,”

and the rest of the jurors may have believed that he committed at least one 

of the felonies set out in paragraphs “a” and “c.” This applies to any other 

similar combination of findings. In cases like this, when a combination of 

more than two felonies is charged for enhancement purposes, jury 

unanimity is not required on any two specific felonies out of this 

combination.
Lakose v. State Page 5

Valdez v. State, 218 S.W.3d 82, 84-85 (Tex. Crim. App. 2007) (internal citations and 

footnotes omitted).

Moreover, the California Supreme Court rejected the argument that “the jury 

must be instructed not to consider evidence of ‘other crimes’ unless it unanimously 

agreed that the prosecution met its burden of proof on such crimes:”

In so asserting, defendant misunderstands the penalty determination 

process. Section 190.3 provides that a jury may consider a number of 

factors in determining the appropriate penalty. To impose a penalty of 

death, each juror must evaluate the evidence and then unanimously 

determine that the aggravating factors outweigh the mitigating factors. 

There is no requirement that the jury agree on which factors were used to 

reach the decision. It is therefore unnecessary that the entire jury find the 

prosecutor met his burden of proof on the “other crimes” evidence before 

a single juror may consider this evidence.

People v. Miranda, 744 P.2d 1127, 1152-53 (Cal. 1987), disapproved of on other grounds by 

People v. Marshall, 790 P.2d 676 (Cal. 1990). Unanimity is required on a “final verdict or 

special finding,” but not a “foundational matter.” Id. at 1153. The defendant is 

“entitled to a unanimous jury verdict in the final determination as to penalty.” Id.

Article 37.07 requires the jury to unanimously agree on the amount of 

punishment. See Sanchez, 23 S.W.3d at 33; see also TEX. CODE CRIM. PROC. ANN. art. 37.07 

§3(c). In doing so, the jury may consider extraneous offenses, provided the jurors 

believe the offenses are proven beyond a reasonable doubt. See TEX. CODE CRIM. PROC.

ANN. art. 37.07 §3(a)(1). However, extraneous offenses are merely “additional 

information,””foundational matters,” or “preliminary factual issues” used to assess

punishment. Fields, 1 S.W.3d at 688; Miranda, 744 P.2d at 1152-53; Valdez, 2006 Tex. App. 

LEXIS 2025, at *20-21. The jury need not agree on the specific extraneous offense or 
Lakose v. State Page 6

offenses underlying its general verdict on punishment. See Miranda, 744 P.2d at 1152-53; 

see also Valdez, 218 S.W.3d at 84-85; Valdez, 2006 Tex. App. LEXIS 2025, at *20-21. All to 

which a defendant is entitled is a “unanimous jury verdict in the final determination as to 

penalty.” Miranda, 744 P.2d at 1152-53.

In this case, the trial court instructed the jury that its final verdict on punishment 

must be unanimous. We assume that the jury followed this instruction. See Hooper v. 

State, 255 S.W.3d 262, 271 (Tex. App.—Waco 2008, pet. ref’d). Because jury unanimity 

was required as to the amount of punishment, but not as to the extraneous offenses 

underlying its verdict, we cannot say that Lakose’s right to a unanimous jury verdict

was violated by the trial court’s instruction. We overrule issue one.

LIMITING INSTRUCTION

In issue two, Lakose contends that the punishment charge limited the jury’s 

consideration of extraneous-offense evidence to an improper purpose, i.e., matters 

involving his credibility.

Citing Rivera v. State, 233 S.W.3d 403 (Tex. App.—Waco 2007, pet. ref’d), Lakose 

contends that, just as the guilt/innocence charge cannot limit the jury’s use of 

extraneous offenses to credibility, nor can the punishment charge. In Rivera, we 

explained:

Except for prior convictions admitted under Rule of Evidence 609, 

extraneous-offense evidence is not admissible to impeach a testifying 

defendant. The defendant can “open the door” by leaving a false 

impression with the jury about a relevant act or character trait, and 

evidence of an extraneous act that tends to rebut the false impression may 

be admissible to impeach the defendant, but with a limiting instruction

informing the jury that it may use the extraneous-offense evidence to 
Lakose v. State Page 7

gauge the defendant's credibility. But in a case such as this where the 

extraneous offenses are the unelected offenses that were admissible under 

section 2 of article 38.37 and the defendant merely testifies that he did not 

commit the elected offenses and the now-extraneous (i.e., unelected) 

offenses, a limiting instruction to the jury that it may use those extraneous 

offenses to pass on the credibility of the defendant’s testimony is 

erroneous. 

Rivera, 233 S.W.3d at 406 (emphasis added) (internal citations omitted). Article 38.37, 

section 2, addresses “evidence of other crimes, wrongs, or acts committed by the 

defendant against the child who is the victim of the alleged offense.” TEX. CODE CRIM.

PROC. ANN. art. 38.37 § 2 (Vernon Supp. 2009). Rivera is inapplicable.

Lakose further relies on Rules 608 and 609 to support his position:

Specific instances of the conduct of a witness, for the purpose of attacking 

or supporting the witness' credibility, other than conviction of crime as 

provided in Rule 609, may not be inquired into on cross-examination of 

the witness nor proved by extrinsic evidence.

For the purpose of attacking the credibility of a witness, evidence that the 

witness has been convicted of a crime shall be admitted if elicited from the 

witness or established by public record but only if the crime was a felony 

or involved moral turpitude, regardless of punishment, and the court 

determines that the probative value of admitting this evidence outweighs 

its prejudicial effect to a party.

TEX. R. EVID. 608(b); TEX. R. EVID. 609(a). Rule 609 applies “only to convictions 

introduced for impeachment purposes.” Barnett v. State, 847 S.W.2d 678, 679-80 (Tex. 

App.—Texarkana 1993, no pet.). “Convictions admissible under TEX. CODE CRIM. PROC.

ANN. art. 37.07, § 3(a) are not for impeachment purposes, but for assessing 

punishment.” Id. at 680.

 
Lakose v. State Page 8

Moreover, the Court of Criminal Appeals has held: “Article 37.07 governs the 

admissibility of evidence during the punishment stage of a non-capital criminal trial.” 

McGee v. State, 233 S.W.3d 315, 318 (Tex. Crim. App. 2007). The rule allows evidence to 

be offered on “any matter the court deems relevant to sentencing,” including extraneous 

crimes and bad acts. TEX. CODE CRIM. PROC. ANN. art. 37.07 §3(a)(1) (emphasis added). 

In McGee, after McGee testified at guilt/innocence, the State offered witness 

testimony at punishment for the “purpose of showing that appellant’s guilt-stage 

testimony had been a lie and, therefore, an ‘extraneous crime or bad act’ within the 

meaning of Article 37.07, § 3(a), of the Texas Code of Criminal Procedure.” McGee, 233 

S.W.3d at 316. The Court of Criminals Appeals agreed:

In this case, the trial court, during the punishment stage, admitted 

evidence offered by the State for the purpose of showing that appellant 

lied on the witness stand during the guilt stage. Clearly, the trial court 

could have reasonably concluded that such evidence would be helpful to 

the jury in determining the appropriate sentence for appellant in this case. 

As the United States Supreme Court has noted, “[a] defendant’s 

truthfulness or mendacity while testifying on his own behalf, almost 

without exception, has been deemed probative of his attitudes toward 

society and prospects for rehabilitation and hence relevant to sentencing.”

Id. at 318 (quoting U.S. v. Grayson, 438 U.S. 41, 50, 98 S. Ct. 2610, 2616, 57 L. Ed. 2d 582 

(1978)).

In light of Article 37.07 and McGee, when considering extraneous crimes and bad 

acts for the purpose of assessing punishment, the jury may use such evidence to pass

upon the defendant’s credibility because the defendant’s “truthfulness” and 

“mendacity” are relevant to the issue of punishment. See McGee, 233 S.W.3d at 318.
Lakose v. State Page 9

In this case, Lakose testified at the punishment phase. Extraneous-offense 

evidence would have been relevant to the issue of punishment because it is probative of 

Lakose’s “truthfulness or mendacity.” Because Lakose’s truthfulness is a proper 

purpose for evaluating extraneous-offense evidence introduced at punishment, we 

cannot say that the trial court erred by so limiting the jury’s consideration of such

evidence. See McGee, 233 S.W.3d at 318. We overrule issue two.

Having overruled Lakose’s two issues, we affirm the trial court’s judgment. 

FELIPE REYNA

Justice

Before Chief Justice Gray,

Justice Reyna, and

Justice Davis

Affirmed

Opinion delivered and filed August 4, 2010

Do not publish

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