### IN THE TENTH COURT OF APPEALS
No. 10
- 14
- 00229
- CR JAMES TYRONE RIGGS , Appellant v. THE STATE OF TEXAS , Appellee

From the 66th District Court Hill County, Texas Trial Court No. 38026

CONCURRING AND D ISSENTING OPINION

I join the majority opinion on issues one , two, and three, and I concur in the disposition of issue four, but I disagree with issue five’s disposition. Riggs allegedly fle d from a police officer who was pursuing him because Riggs
was wanted on a Class C warrant and his driver’s license was suspended. The car chase
lasted less than a minute and covered four

- tenths o f a mile. It ended when Riggs parked in his own backyard , got out of his car , and immediately walked to the patrol car

. There was no injur y or property damage. Riggs was charged with the third

- degree felony ofRiggs v. State Page 2

evading arrest or detention wi th a vehicle, which has a punishment range of two to ten
years. T EX
. P ENAL C ODE A NN
. § 12.34 (West 2011) , § 38.04(a), (b)(2)(A) (West Supp. 20 15 ). Riggs was also charged as a habitual felon . H e pled “ true ” to two prior felony convictions (a 1990 convict ion for delivery of a controlled substance and a 1993 conviction for possession of a prohibited weapon )

. He pled “not true” to a 2005 felony conviction for possession of a firearm by a felon, but the jury found it “ true. ” These prior non

- violent
felonies enhanced the punishment range to 25 to 99 years or life. T EX
. P ENAL C ODE A NN
. § 12.42(d) (West Supp. 2015 ). Wendell Harris testified that, after a verbal confrontation with Riggs and his two

sons stemming from Riggs’s oldest son’s past affair with Harris ’s wife, he heard a gunshot that struck him in the right hand . Harris turned around and saw Riggs pointing a gun at him, and as he fled , Riggs kept sho o t ing at him

. 1 Leslie Johnson, Harris’s cousin,
said she saw Riggs sho o t Harris. Johnson admitted she had a “back and forth” relationship with Riggs’s nephew and she had “messed aro und” with one of Riggs’s sons. Riggs testified that the verbal confrontation with Harris was because Harris had been “meddling” with Riggs’s son who had h ad an affair with Harris’s wife. Riggs said
that he himself had also had a relationship with Harris’s wife. Riggs testified that he did not have a gun that night . He said that because Harris was cussing him and his sons, he turned to go away and told his sons to come with him, and then he heard two shots and everyone ran. Riggs testified that he was not guilty of shooting Harris.

1 Harris ’s and Riggs’s testimony indicate that Riggs had been charged with aggravated assault with a deadly weapon and that th e case had not yet gone to trial

.Riggs v. State Page 3

The trial court must give a reasonable

- doubt instruction at punishment, even if not requested, regarding extraneous

- offens e evidence ; the trial court must instruct the jury
that the extraneous

- offense evidence may not be considered in assessing punishment until the jury is satisfied beyond a reasonable doubt that the offense is attributable to the
defendant

. Huizar v. State , 12 S.W.3d 479, 484 (Tex. Crim. App. 2000) (op. on reh’g). This instruction is especially important when the defendant, like Riggs, testifies and denies committing the extraneous offense. The trial court failed to give a reasonable

- doubt instruction, an d Riggs, age 59, was given a 65

- year prison sentence for what otherwise would have been a non

- violent third

degree felony. Cf. Graves v. State, 176 S.W.3d 422, 435 (Tex. App.

— Houston [1st Dist.] 2004, pet. struck ) (finding error harmless in part because defendant received 8

- year sentence, “far below the maximum, and only three years above the minimum”)

. Because
I believe that the totality of the record shows that Riggs suffered egregious harm from
the trial court’s error in fail ing to provide a reasonabl e - doubt instruct ion in the punishment charge for th e controverted extraneous offense of aggravated assault with a deadly weapon , I respectfully dissent. I would sustain issue five and remand the case for a new punishment hearing.

REX D. DAVIS Justice Concurring and d issenting o pini on delivered and filed December 10 , 2015 Publish