COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-10-00021-CR

DAVION DEMON CALLOWAY 

A/K/A DAVION CALLOWAY

APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY

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MEMORANDUM OPINION1

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In one point, appellant Davion Demon Calloway a/k/a Davion Calloway 

appeals his conviction for aggravated robbery, which is a first-degree felony.

2

 

We affirm.

 

1See Tex. R. App. P. 47.4.

2See Tex. Penal Code Ann. § 29.03(a)(2), (b) (Vernon 2003).
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Background Facts3

A grand jury indicted appellant for aggravated robbery; the indictment 

alleged that he used or exhibited a deadly weapon while committing theft. 

Appellant entered an open guilty plea, waived constitutional and statutory rights, 

entered a judicial confession, and elected the jury to assess his punishment.

4

During the trial on punishment, the State presented testimony from several 

witnesses about extraneous bad acts that the State contended appellant had 

been involved with. Specifically, the witnesses discussed an October 2008

shooting and a summer 2009 threat of a detention officer while appellant was 

incarcerated. Appellant stipulated that he had been previously convicted of theft 

and assault by contact, and the State presented evidence about the facts of the 

theft.

Appellant testified about the aggravated robbery in this case and his 

previous convictions. Although he admitted being present at the October 2008 

shooting, he denied participating in it, and he also denied threatening the 

detention officer. Appellant also called character witnesses, including a pastor

and his aunt.

 

3Because appellant’s sole complaint on appeal concerns alleged jury 

charge error, we will provide only a brief summary of the facts relevant to this 

appeal.

4Appellant repeated his guilty plea in the jury’s presence. His aggravated 

robbery concerned a September 2008 incident at a Dollar Tree store in which he 

approached an employee with a gun and took the store’s money and the 

employee’s cell phone.
3

After both parties rested and presented closing arguments, the jury 

convicted appellant and assessed his punishment at forty years’ confinement, 

and the trial court sentenced him to the same. Appellant filed notice of this 

appeal.

Jury Charge Instruction

In his only point, appellant contends that the trial court erred by excluding 

his requested jury instruction about ―the burden of proof and the law of parties

. . . as to the extraneous offense evidence offered at trial.‖ Specifically, he 

argues that the ―trial court reversibly erred and abused its discretion in denying 

[his] requested jury charge as to applying reasonable doubt to the extraneous 

offense evidence before the jury.‖

Appellate review of error in a jury charge involves a two-step process. 

Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994); see also Sakil v. 

State, 287 S.W.3d 23, 25–26 (Tex. Crim. App. 2009). Initially, we must 

determine whether error occurred; if so, we must then evaluate whether sufficient 

harm resulted from the error to require reversal. Abdnor, 871 S.W.2d at 731–32.

For a jury to consider a defendant’s extraneous offenses and bad acts that 

are presented during the punishment phase of a trial, such acts must be proved 

beyond a reasonable doubt. See Tex. Code Crim. Proc. Ann. art. 37.07, 

§ 3(a)(1) (Vernon Supp. 2010); Moore v. State, 165 S.W.3d 118, 123 (Tex. 

App.—Fort Worth 2005, no pet.). Thus, when evidence of extraneous offenses 

or bad acts is admitted at punishment, a trial court must give a beyond-a-
4

reasonable-doubt instruction in the jury charge. Moore, 165 S.W.3d at 123–24 

(citing Huizar v. State, 12 S.W.3d 479, 484 (Tex. Crim. App. 2000)); see Allen v. 

State, 47 S.W.3d 47, 49–50 (Tex. App.—Fort Worth 2001, pet. ref’d).

The trial court’s charge included the following language:

You may consider evidence of an extraneous crime or bad act 

in assessing punishment even if the Defendant has not yet been 

charged with or finally convicted of the crime or act. However, you 

may consider such evidence only if the extraneous crime or bad act 

has been shown by the State beyond a reasonable doubt to have 

been attributable to the Defendant or is one for which the Defendant 

could be held criminally responsible.

The prosecution does not have to prove an extraneous crime 

or bad act beyond all possible doubt. The prosecution’s proof must 

exclude all reasonable doubt concerning the extraneous crime or 

bad act.

Therefore, if you find and believe beyond a reasonable doubt 

that the Defendant committed an extraneous crime or bad act . . . , 

then you may consider such evidence in assessing the Defendant’s 

punishment. However, if you have a reasonable doubt that the 

Defendant committed an extraneous crime or bad act . . . , then you 

may not consider such evidence in assessing punishment.

Therefore, the record does not support appellant’s complaint that the trial court 

erred by omitting an explanation of the application of the reasonable doubt 

standard to the extraneous offenses that were presented to the jury.

Although not expressly articulated in his brief, appellant might be 

complaining about other requested language that the trial court did exclude from 

the jury charge. After the parties rested, before the submission of the case to the 

jury, the court asked whether the parties had reviewed the proposed charge.

Appellant’s counsel expressed her belief that the charge should have told the jury 
5

that the State had to ―prove each and every element‖ of the extraneous offenses 

it had presented, including that appellant was a party to the shooting or was 

aware of it. Over appellant’s objection, the trial court declined to include the 

following paragraph, which would have explained whether appellant could be 

criminally responsible for another person’s conduct (because there was more 

than one person involved in the shooting):

Each party to an offense may be charged with the commission 

of the offense. A person is criminally responsible for an offense 

committed by the conduct of another if acting with intent to promote 

or assist the commission of the offense, he solicits, encourages, 

directs, aids or attempts to aid the other person to commit the 

offense. Mere presence alone will not constitute one a party to an 

offense.[

5

]

This instruction would have correctly stated the law. See Tex. Penal Code 

Ann. § 7.02(a)(2) (Vernon 2003). However, the instruction was not necessary

because the jury’s task was not to determine whether appellant could be 

convicted for extraneous acts under the law of parties but to decide whether the 

extraneous, bad acts were attributable to him. See Haley v. State, 173 S.W.3d 

510, 515 (Tex. Crim. App. 2005) (―We interpret [article 37.07] to require the 

burden of proof to be applied to a defendant’s involvement in the act itself, 

instead of the elements of a crime necessary for a finding of guilt.‖). In other 

 

5

The charge stated, however, that a ―person is criminally responsible as a 

party to an offense if the offense is attributable to his own conduct, by the 

conduct of another for which he is criminally responsible, or by both.‖ This 

instruction accurately states the law (albeit incompletely with regard to defining 

criminal responsibility), and appellant did not object to it. See Tex. Penal Code 

Ann. § 7.01(a) (Vernon 2003).
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words, ―the statutorily imposed burden of proof beyond a reasonable doubt does 

not require the offering party to necessarily prove that the act was a criminal act 

or that the defendant committed a crime.‖ Id.; see Spence v. State, 795 S.W.2d 

743, 759 (Tex. Crim. App. 1990) (explaining that there is ―no requirement in our 

law that all of the statutory elements of an offense must be proven before a prior 

unadjudicated extraneous offense may be admitted at the punishment phase‖), 

cert. denied, 499 U.S. 932 (1991); Hanson v. State, 269 S.W.3d 130, 133–34 

(Tex. App.—Amarillo 2008, no pet.) (―When an extraneous bad act is admitted for 

consideration during the punishment phase, the jury is not required to assess 

whether a statutory crime occurred; rather, its obligation is to determine, beyond 

a reasonable doubt, whether that appellant was involved in the bad act being 

offered as evidence‖); Malpica v. State, 108 S.W.3d 374, 378 (Tex. App.—Tyler 

2003, pet. ref’d); Taylor v. State, 970 S.W.2d 98, 101 (Tex. App.—Fort Worth 

1998, pet. ref’d) (―[T]here is no requirement that the jury be instructed that it can 

only find the commission of an extraneous offense if the State proves each and 

every element beyond a reasonable doubt.‖). Because the jury was not required 

to decide whether appellant could be convicted of the shooting under the law of 

parties to consider whether the shooting was attributable to him beyond a 

reasonable doubt, we hold that the trial court did not err by excluding the criminal 

responsibility paragraph quoted above. See Haley, 173 S.W.3d at 515.

For these reasons, we overrule appellant’s only point.
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Conclusion

Having overruled appellant’s only point, we affirm the trial court’s 

judgment.

TERRIE LIVINGSTON

CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; MEIER and GABRIEL, JJ.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: March 3, 2011