AFFIRM; and Opinion Filed February 5, 2018.

In The 

## Court of Appeals Fifth District of Texas at Dallas

No. 05
- 17
- 00013
- CR No. 05
- 17
- 00014
- CR DEION XAVIER JONES , Appellant

V. THE STATE OF TEXAS , Appellee On Appeal from the 292nd Judicial District Court

Dallas County, Texas Trial Court Cause No s . F
- 1520892
- V and F
- 1520893
- V 

### MEMORANDUM OPINION Before Justices Francis, Evans, and Boatright Opinion by Justice Boatright A jury convicted Deion Xavier Jones of two aggravated robbery offenses arising from the same criminal transaction

. The jury assessed punishment at 25 years’ imp risonment for the first charged offense and six years’ imp risonment for the second

. The trial court rendered separate judgments of conviction that ordered the sentences to run concurrently

. Jones appeals and raises a single issue contending that each of the punishment charge s in his trial was fundamentally

erroneous. We affirm. The State’s cases against Jones were tried together

. T he State presented evidence durin g the punishment phase of the trial that Jones was criminally responsible for two extraneous murders. This evidence could not be considered by the jury in asse ssing punishment unless it was satisfied beyond a rea sonable doubt that the extraneou s offenses were attributable to Jones

. Huizar v. State ,– 2

–

12 S.W.3d 479, 484 (Tex. Crim. App. 20 00)

. The trial court was also required to submit an instruction in the punishment charge that the jury could not consider evidence of extraneous bad acts and offenses unless it was satisfied beyond a reasonable doubt that such acts and offe nses were attributable to Jones

. Id. Accordingly , e ach punishment charge in Jones’s trial instructed the jury that: [I]f there is any testimony be fore you in this case regarding the defendant having committed offenses or acts other than the offense alleged against him in the indictment in this case, you cannot consider such testimony for any purpose unless you find and believe beyond a reasonable do ubt that the defendant committed such other offenses o r acts, if any were committed

. Notwithstanding this instruction, Jones faults each punishment charge for not also setting forth the elements of the offense of murder. In reviewing a complaint of all eged jury charge error, we first determine whether the charge

was erroneous. Barrios v. State , 283 S.W.3d 348, 350 (Tex. Crim. App. 2009). 1 Jones contends that “the jury must be informed of the factual circumstances under which they can find that the State has proven commission of an offense and such is the heart and soul of the jury charge , ” relying on Vasquez v. State , 389 S.W.3d 361 , 367 ( Tex. Crim. App. 2012) , and on Riley v. State , 447 S.W.3d 918, 922 (Tex

. App.

— Texarkana 2014, no pet.)

. The foregoing cases address the requirements of a guilt

- innocence cha rge. Because such a charge is the instrument by which the jury convicts, it must set out all of the essential elements of the offense. Vasquez , 389 S.W.3d at
366 ; Riley , 447 S.W.3d at 922 . In contrast , the trial court need not charge the jury on the essential element s of an extraneous of fense offered during the punishment phase. Adams v. State , 502 S.W.3d 238 , 2 45 (Tex. App.

— Houston [14th Dist.] 2016, pet ref’d). This is so because the burden of proof in the punishment phase is “applied to a defendant’s involvement in the act itself, instead

1 Even if there was error, it must be “fundamental” if, as in this case, the defendant di d not object

. Barrios , 283 S.W.3d at 350

. However, our determin ation that there was no error here renders unnecessary any consideration as to whether the purported error was fundamental.– 3

–

of the elements of a crime necessary for a findi ng of guilt.” Haley v. State , 173 S.W.3d 510, 5 15 (Tex. Crim. App. 2005). The question at punishment is not whether the defendant has committed a crime, but instead what sentence should be assessed. Id. W hile the guilt

- innocence phase requires the jury to find the defendant guilty beyond a reasonable doubt of each element of the charged offense, “ the punishment phase requires the jury only [ to ] find that these prior acts are attributable to the defendant beyond a reasonable doubt. ” Id.
In sum , t he district court did not err in failing to charge the jury on the elements of the offense of murder during the punishment phase of Jones’s trial. We overrule Jones’s sole issue and affirm the district court’s judgments.

Do Not Publish T EX
. R. A PP
. P. 47 .2 170013F.U05 /Jason Boatright/ JASON BOATRIGHT JUSTICE– 4

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## Court of Appeals Fifth District of Texas at Dallas

JUDGMENT
DEION XAVIER JONES, Appellant
No. 05

- 17

- 00013

- CR V. THE STATE OF TEXAS, Appellee On Appeal from the 292nd Judicial District Court, Dallas County, Texas Trial Court Cause No. F

- 1520892

- V. Opinion delivered by Justice Boatright. Justices Francis and Evans participating. Based on the Court’s opinion of this date, the judgment of the trial court is A FFIRMED

. Judgment entered this 5th day of February, 2018.– 5

– 

## Court of Appeals Fifth District of Texas at Dallas

JUDGMENT
DEION XAVIER JONES, Appellant
No. 05

- 17

- 00014

- CR V. THE STATE OF TEXAS, Appellee On Appeal from the 292nd Judicial District Court, Dallas County, Texas Trial Court Cause No. F

- 1520893

- V

. Opinion delivered by Justice Boatright. Justices Francis and Evans participating. Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED

. Judgment e ntered this 5 th day of February, 2018.