## In t he Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 23

- 00045

- CR

COREY BRANDON MORRISON , Appellant

V. THE STATE OF TEXAS , Appellee

On Appeal from the 115th District Court Marion County, Texas Trial Court No. F15259

B efore Stevens , C.J., van Cleef and Rambin , JJ. Memorandum Opinion by Chief Justice Stevens2 

### ME MORANDUM OPINION
A Marion County jury convicted Corey Brandon Morrison of aggravated assault with a deadly weapon and assessed a sentence of ten years’ impr isonment. See T EX
. P ENAL C ODE A NN
. § 22.02(a)(2) (Supp.)

. On appeal, Morrison argues that the evidence was legally insufficient to support the jury’s verdict of guilt. Morrison also argues that the trial court erred by failing to include an extraneous

- o ffense instruction in the jury charge on punishment. Becaus e we find that the jury’s verdict was supported by legally sufficient evidence and that Morrison was not egregiously harmed by any alleged jury

- charge error , we affirm the trial court’s judgmen t

. I. The Evidence Was Legally Sufficient to Support the Jur y’ s Verdict of Guilt A. Standard of Review “In evaluating legal sufficiency, we review all the evidence in the light most favorable to the trial court’s judgment to determine whether any ration a l j ury could have found the essential elements of the offense beyond a reasonable doubt.” Williamson v. State , 589 S.W.3d 292, 297 (Tex. App.

— Texarkana 2019 , pet. ref’d) (citing Brooks v. State , 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (plurality op.) ; J a c kson v. Virginia , 443 U.S. 307, 319 (1979); Hartsfi eld v.
State , 305 S.W.3d 859, 863 (Tex. App.

— Texarkana 2010, pet. ref’d)). “Our rigorous [ legal sufficiency ] review focuses on the quality of the evidence presented.” Id

. (citing Brooks , 323 S.W.3d a t 9 1 7

– 18 (Cochran, J., concurring)). “We examine legal sufficiency under the direction of the Brooks opinion, while giving deference to the responsibility of the jury ‘to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable i n f erences from basic facts to ultimate facts. ’ ” Id. (quoting Hooper v. State , 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) ).3

“Legal sufficiency of the evidenc e is measured by the elements of the offense as defined by a hypothetically correct jury charge.” Id. at 298 (quoting Malik v. State , 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). “The ‘hypothetically correct’ jury charge is ‘one that accurately sets

out t he law, is authorized by the indictment, does not unnecessaril y increase the State’s burden of proof or unnecessarily restrict the State’s theories of liability, and adequately describes the particular offense for which the defendant was tried.’” Id

. (qu o tin g Ma lik , 953 S.W.2d at 240)

. Here, the State alleged that Morrison “intentionally or knowingly t hreaten[ed] another, namely, HARRELL GENE CAMPBELL, with imminent bodily injury and

. . . did then and there use or exhibit a deadly weapon, to

- wi t: a sc rewdriver, during the commission of said assault .”
B. Analysis
Morrison ’s sole challenge is to th e element of identity. According to Morrison, the evidence is legally insufficient to support the jury’s verdict because Campbell never id ent ifie d Morrison as the person who assaulted him with a screwdriver. We disagree with Morrison since the record dem o n strates that Camp bell identified him as the perpetrator of the offe nse. At trial, Campbell testified that he was mowing his yar d at 10: 30 a.m . o n July 1, 2020, when he noticed a n unfamiliar vehicle in his driveway . Campbell approached the vehicle on hi s lawnmower and asked the person sitting inside if he could help him. According to Campbell, the person “r eached down and got a screwdriv er and th rust at [him] out of the [open] window and said, ‘I’ll kill you, you s

- o - b

. ’ ” Campbell rode his lawnmower ba c k toward his house and called the police. During cross - examination, when Morrison ’s c ounsel asked, “So you pull up beside
him

. . . and that’s w h en you talked to my client , ” Campbell responded by saying , “ Right.”4

When Morrison ’s counsel asked, “ [W] as my c lient sitting in the car in the driver’s seat,” Campbell said, “He was sitting in th e driver’s seat.” By making those statement s , Campbell identif i ed Morrison as the perpetrator of the offense. Also, Alisha Riehl, a sergeant with the Marion County Sher i f f’s Department, testified that she was dispatched to Campbell’s home, found a car matchin g the description of the suspect vehicle in Ca mpbell’s dri v eway, and “observed a gentleman sitting in the driver’s seat .” Riehl made an in

- court identification of M o rrison and said Morrison was the person who she saw in the driver’s seat of the car on Cam pbell’s property. According to Riehl, Morriso n attempted t o start his car to drive away, but she immediately ordered him out of the car and placed him in handcuffs. Riehl testified that the perpetrator h ad cards in his wallet issued to “Corey Morrison ” and that “the jail was able to pull some recor ds to find o u t that he was actually Corey Morrison.” Most importantly, Riehl’s body

- camera footage , which clearly depic t e d Morrison , was played for the jury. 1
Our review of the record shows th at the evidence was legally sufficient for t he jury to find that Morriso n was th e person who committed the aggravated assault against Campbell with the screwdriver. As a result, w e overrule Morrison’ s first point of error.
II. Morrison Was Not Egregiously Harmed b y Any Ju ry - Charge Error
In his last point of error, Morris o n argues that he was egregiously harmed when the trial court failed to include an extraneous

- offense instru c t ion during puni shment. We disagree.

1 Morrison doe s not challenge the deadly weapon finding. Riehl testified that the screwdriver recovered a t the scene was ca p a ble of causing serious bodily injury or death and that a person in Campbell’s circumstances would believe imminent bodily injury was “poss ible and like ly

. ”5

A. Standard of Review

“ ‘ [T]he jury is the exclusive judge of the facts,’ but the trial court submits a charge t o the jury ‘distinctly setting forth the law applicable to the case.’” Alcoser v. State , 663 S.W.3d 160,
1 6 4 (Tex. Crim. Ap p. 2022) (alteration in original) (quoting T EX
. C ODE C R IM
. P ROC
. A NN
. arts. 36.13, 36.14). “The charg e is meant to inform the jury of the applicable law and how to apply it to the facts of the case.” Id. at 164

– 65 (citing Delgado v. Stat e , 235 S.W.3d 244 , 249 (Tex. Crim. App. 2007)). “A jury

- charge

- claim ana lysi s involves two steps: First, we determine whether the charge is erroneo u s.” Id. at 165. “If it is, then we must decide whether the appellant was harmed by the erroneous charge.” Id. (citing Woo ten v. State , 400 S.W.3d 601, 606 (Tex. Crim. App.
2013 ); N go v. State , 175 S.W.3d 738, 744 (Tex. Crim . App. 2005)). “There are tw o standards of review for jury

- charge

- error claims.” Id. (citing Almanza v. State , 686 S.W.2d 157, 171 (Tex

. Crim. App. 1984 ) (op. on reh’g)). As in this case, “[i]f there was no t a timely objection, the record must show ‘egr egious harm.’” Id. (quoting A lmanza , 686 S.W.2d at 171). “An erroneous jury charge is egregiously harmful if it affects the very basis o f the case, dep rives the accused of a valuable right, or vitally affec ts a defensive theory.” Id. (citing Almanza , 6 86 S.W.2d at 171). “A findin g of egregious harm must be based on ‘actual harm
rather than theoretical harm. ’ ” Id. (quoting Cosio v. Sta t e , 353 S.W.3d 76 6, 777 (Tex. Crim. App. 2011)). “Egregious harm is a di ffi cult standard to meet, and the analysis is a fact

- specific one.” Id. (ci t ing Villarreal v. State , 453 S.W.3d 429, 433 (Tex. Crim. App. 2015)). “Neither6

party bears the burden to s h o w harm.” Id. ( citing Marshall v. State , 479 S.W.3d 840, 842

– 43 (Tex. Cri m. App. 2016)).
B. Analysis

“ During the punish ment phase, extraneous offens e evidence may be offered for any relevant purpose, including proof of the defendant ’ s character or propensi t y . ” Delgado v. State , 235 S.W.3d 244, 252 (Tex. Crim. App. 2007)

. Under Article 37.07 of the Texas Code of Criminal Pro cedure , “ the Legislature h a s deemed that extraneous offense evidence is admissible for any relevant purpose during the punishment phas e , but only if the State can offer proof that would allow a reasonable fact

- finder to conclude, beyond a reasonable dou bt, that the defendant could b e held criminally responsible for that act. ” Id. (citing T EX
. C ODE C RIM
. P ROC
. A NN
. art. 37.07). Because “ A rticle 37.07 is ‘ the la w applicable ’ to all non

- capital punishment
procee dings [ , ]

. . . the trial judge must sua spon te instruct the jury at the p u nishment phase concerning that law, i ncluding the fact that the State must prove any extraneous offenses be y o nd a reasonable doubt. ” Id. For purposes of our analysis, we assume er ror. Even so , because Morrison did not obje ct to the omission at trial, w e will reverse only if he was egregiously harmed. Morrison argues that he was egregiously harmed by the in t r oduction of four prior ju dgments of conviction , which were admitted “by a greement of counsel ” with no objectio n. We disagree. The prior judgme n ts showed that Morrison pled guilty to and was convicted of the following four offenses: (1) conspiracy to d i stribut e a controlled substance, (2) engaging in monetary transa ctions in property derived from specif ied unlawful activity, (3) criminal7

misc h ief, and (4) assault causing bodily injury to a family member. The evidence also showed that two of the con vi c t i ons became final as a result of M orrison ’s plea of “ true ” to an allegation that he violated the terms and conditions of his federal probation by testing positive for methamphetamine. “In any final conviction, the evidence was subjected to ju di cial test i n g of guilt with a standard of proof of beyond a reasonable doubt , and the burden of proof was met. ” B luitt v.
State , 137 S.W.3d 51, 54 (Tex. Cr i m. App. 2004). “ In any probation, the defendant has [ple d] guilty or been found guilty by a judge o r jury. ” I d. “ In all these circumstances, the burden of proof has b een met. Thus, in all such cases no further proof of guilt is required. ” Id. The Sta te rested its punishment case after publishing the prior jud gments , which were sufficient to prove th e extrane o u s offenses to the jury beyond a reasonable doubt. As a re sult, we find that Morrison was not egre giously harmed by the lack of an extraneous

- of fe nse instruction at punishment. 2 We overrule his last poi nt of error.

2 During the State’s cross - examination of Morrison’s mother , she testifie d that Morrison last held a job “ four or five years ago.” In response, th e State introduced Morrison’s sworn application for a court

- appointed attorney, which stated that his l ast employment was in 2013. Morrison’s mother then t estified that she “guess[ed]” Morrison was correct a b o ut his last employment. Morrison argues that this shows egregious harm because the application for appoi nted counsel was shown “for the purpose of show in g Appellant’s mother’s credibility as well as Appellant’s lack of work [ ] history.” The State did not c haracterize Morrison’s lack of work history as an extraneous offense or p rior bad act , and we decline to treat it as such.8

III. Conclusion We affirm the trial c ourt’s judgment.

Scott E. Stevens Chief Justice
Dat e Submitted: August 1, 2023 Date Decided : August 1 6 , 2023 Do Not Publish