AFFIRMED; Opinion Filed November 5, 2015.

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-14-00918-CR

ORINTHIOUS DEONTE BROWN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court No. 2

Dallas County, Texas

Trial Court Cause No. F-1241281-I

MEMORANDUM OPINION

Before Justices Lang, Evans, and Whitehill

Opinion by Justice Evans

Appellant Orinthious Deonte Brown appeals his conviction for the offense of aggravated 

assault with a deadly weapon. In his sole issue, appellant contends that the trial court erred by 

failing to instruct the jury that it could consider evidence of an extraneous offense only if the jury 

believed the testimony about the extraneous offense beyond a reasonable doubt. Appellant seeks 

a reversal and remand for further proceedings. We affirm.

BACKGROUND

On July 5, 2012, Gloria Prox was sitting on an apartment balcony at the Hickory Tree 

Apartments overlooking the parking lot when she saw a young woman get into a white car. A

black SUV entered the parking lot and parked in front of the woman’s car. Prox saw a man exit 

the SUV and walk towards the driver’s side of the car yelling and trying to get into the car. Prox 
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testified that the woman locked the car doors and eased her car around the SUV to exit the 

parking lot. The man started running after and shooting at the car. Prox further testified that she 

heard about five shots and that afterwards the man—whom she identified as appellant—got back 

in his car and followed behind the woman. 

Terry Derr, a UPS driver, made a delivery to the Hickory Tree Apartments on July 5, 

2012. Derr testified that he heard gunshots and saw a black man wearing white clothes shooting 

a gun at a white car that was driving away. Derr saw the man get into a black SUV and leave. 

After this incident, the police requested that he return to the crime scene because they thought his 

truck had been hit by the gunfire. The police recovered a bullet from the truck’s headlight. 

Detective Bo Davenport, a Mesquite police officer, testified that he was dispatched to the

shooting site where nine shell casings were recovered. He spoke with the victim, Domionna 

Moffit, and she provided appellant’s name, what he was wearing (all white), and a description of

his vehicle (black Escalade). Detective Davenport testified that when appellant was 

apprehended, he was wearing all white. Detective Davenport spoke with Moffit again at the 

police station and she provided a sworn, written statement that was read to the jury and entered 

into evidence. In the statement dated July 5, 2012, Moffit wrote that appellant told her he was 

going to kill her and that she was afraid for her life. She also wrote that as she drove off, she 

looked back and saw appellant reaching into his SUV and she heard about eight pops. 

Moffit did not testify at appellant’s trial. Ireana Longoria, an investigator for the Dallas 

County District Attorney’s Office, testified that her attempts to locate and subpoena Moffit were

unsuccessful. Longoria retrieved the recorded calls made by appellant while in jail to Moffit and 

burned CDs of those calls which were played for the jury. In one of the calls, appellant asked 

Moffit to file an affidavit of nonprosecution. Longoria testified that in this type of affidavit the 

victim requests that she no longer wants to pursue charges.
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The jury found appellant guilty of aggravated assault and the punishment hearing

commenced. During the punishment hearing, appellant stipulated to ten of his prior convictions. 

The State read the jury the stipulated evidence, which included the following convictions: two 

former assaults (one for domestic violence), two unlawful carrying of a weapon, two driving 

while intoxicated, three possessions of marijuana, and recklessly discharging a firearm. 

Appellant then called Lilly Mae Brown, his grandmother, as his first witness. On direct 

examination, Ms. Brown testified that appellant lived with her and worked for her and that she 

believed he would abide by probation. On cross-examination, however, Ms. Brown admitted 

that appellant was living with her in 2012 when he committed this offense and that she cannot 

control his actions. Ms. Brown also conceded that appellant committed another assault while he 

was bonded in this case and that he did not abide by the conditions of his release on bond. Ms. 

Brown further conceded that appellant’s bond was revoked for allegedly committing a family 

violence offense. Appellant did not testify in the punishment hearing.

After both sides closed, the trial court read its charge to the jury regarding punishment. 

The charge did not include a reasonable doubt instruction regarding extraneous bad acts or 

offenses. Appellant did not object to the omission of this instruction. The jury then sentenced 

appellant to four years’ imprisonment. 

ANALYSIS

Appellant contends that the trial court erred by failing to instruct the jury that it could 

consider evidence of an extraneous offense only if the jury believed the testimony about the 

extraneous offense beyond a reasonable doubt. Appellant specifically objects to the testimony 

from his grandmother regarding the fact that while he was released on bond in this case, the bond 

was subsequently revoked when he allegedly committed a family violence offense. At trial, 
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appellant did not object to the jury charge, but on appeal he argues that he was egregiously 

harmed by error in the charge. We disagree.

When we review claims of jury charge errors, we first decide whether there was error in 

the charge. Ferguson v. State, 335 S.W.3d 676, 684 (Tex. App.—Houston [14th Dist.] 2011, no 

pet.). If there was error and appellant objected to the error at trial, then only “some harm” is 

necessary to reverse the trial court’s judgment. See Almanza v. State, 686 S.W.2d 157, 171 (Tex. 

Crim. App. 1985) (op. on reh’g). If, however, the appellant failed to object at trial—as in this 

case—then the appellant will obtain a reversal “only if the error is so egregious and created such 

harm that he ‘has not had a fair and impartial trial’—in short ‘egregious harm.’” Id. Egregious 

harm is the type and degree of harm that affects the very basis of the case, deprives the defendant 

of a valuable right, or vitally affects a defense theory. Allen v. State, 253 S.W.3d 260, 264 (Tex. 

Crim. App. 2008). In making an egregious harm determination, “the actual degree of harm must 

be assayed in light of the entire jury charge, the state of the evidence, including the contested 

issues and weight of probative evidence, the argument of counsel and any other relevant 

information [revealed] by the record of the trial as a whole.” Trejo v. State, 280 S.W.3d 258, 261 

(Tex. Crim. App. 2009) (quoting Almanza, 686 S.W.2d at 171). Egregious harm is a difficult 

standard to meet and must be determined on a case-by-case basis. See Ellison v. State, 86 

S.W.3d 226, 227 (Tex. Crim. App. 2002).

Article 37.07 of the Texas Code of Criminal Procedure provides that evidence may be 

offered by the state and the defendant as to any matter the court deems relevant to sentencing 

including, but not limited to, evidence of an extraneous crime or bad act that is shown beyond a 

reasonable doubt by evidence to have been committed by the appellant. See TEX. CODE CRIM.

PROC. art. 37.07 §3(a)(1) (West Supp. 2014). During the punishment phase in this case, the State 

introduced evidence of appellant’s extraneous offenses and bad acts. The trial court did not 
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instruct the jury regarding the burden of proof for such evidence and appellant did not request 

such instruction or object to its omission from the charge. Failure to give this instruction is jury 

charge error. Huizar v. State, 12 S.W.3d 479, 484 (Tex. Crim. App. 2000). Thus, we will 

proceed to conduct a harm analysis using the Almanza factors to determine whether the error was 

egregious. See Doughtery v. State, PD-1411-05, 2006 WL 475802, at *1 (Tex. Crim. App. 

March 1, 2006) (per curiam) (not designated for publication) (reversing appellate court that did 

not conduct analysis using all Almanza factors); Huizar, 12 S.W.3d at 484–85 (“The error in this 

case derives from statutory violations of articles 36.14 and 37.07, and is purely ‘charge error’

under article 36.19. Almanza sets forth the appropriate harm analysis for charge error under 

article 36.19.”). 

The first Almanza factor requires consideration of the entire jury charge. See Almanza, 

686 S.W.2d at 171. Here, the jury charge regarding punishment neither mentions the extraneous 

offense at issue nor instructs the jury that it could only consider such evidence if the jury 

believed the testimony about the extraneous offense beyond a reasonable doubt. However, the 

jury charge did include the following instruction:

You are instructed that any statements of counsel made during the course of the 

trial or during argument, not supported by the evidence, or statements of law

made by counsel not in harmony with the law, as stated to you by the Court in 

these instructions, are to be wholly disregarded.

The second Almanza factor involves the state of the evidence, including the contested 

issues and weight of the probative evidence. See Almanza, 686 S.W.2d at 171. During the 

guilt/innocence portion of the trial, the State presented a strong case against appellant. Prox 

testified that she saw appellant shooting at Moffit’s car and identified appellant in court. 

Detective Davenport testified that he recovered nine shell casings from the crime scene. 

Detective Davenport also spoke with Moffit at the crime scene and she provided appellant’s 

name, what he was wearing (all white), and a description of his vehicle (black Escalade). 
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Detective Davenport also spoke with Moffit again at the police station and she provided a sworn, 

written statement that was read to the jury and entered into evidence. In the statement, Moffit

wrote that appellant told her he was going to kill her and that she was afraid for her life. She also 

wrote that as she drove off, she looked back and saw appellant reaching into his SUV and she 

heard about eight pops. During the punishment phase of the trial, appellant stipulated to ten of 

his prior convictions. Further, appellant’s grandmother conceded during the punishment phase 

that appellant had committed another assault while he was bonded in this case and that he did not 

abide by the conditions of his release on bond. His grandmother further conceded that his bond 

was revoked when appellant allegedly committed another assault family violence offense. 

Appellant complains that the failure to instruct the jury about the extraneous offense lead to 

appellant not receiving probation for the offense. In light of the evidence supporting appellant’s 

conviction at guilt/innocence and his lengthy list of his prior offenses disclosed at the 

punishment phase, the State’s case for punishment was not significantly more persuasive because 

of the lack of the instruction. Further, the fact that the jury’s sentence—four years—was not 

only within the range of punishment but it was on the lower end of the available punishment

does not demonstrate egregious harm to appellant.

1

 It appears likely that the jury declined 

probation and assessed punishment on the facts surrounding appellant’s offense. See Allen v. 

State, 47 S.W.3d 47, 52 (Tex. App.—Fort Worth 2001, pet ref’d) (facts surrounding offense 

supported the punishment assessed by the jury). As such, the state of the evidence does not favor 

a finding of egregious harm. 

The third Almanza factor involves the argument of counsel. See Almanza, 686 S.W.2d at 

171. Appellant’s counsel argued that appellant should be given probation in this case. In its 

closing argument regarding punishment, the State argued against probation and noted that

 

1 The range of punishment for this offense was not less than two and not more than twenty years. 
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appellant’s “bond was revoked because he picked up an assault family violence -- or he was 

arrested for an assault family violence in 2013.” The State argued that appellant had not changed 

and should be incarcerated, not probated: “We don't have any evidence of any wrong acts from 

2011. But from 2010 -- or 2000 -- from 2010 and 2012 and June 2013, when he was arrested for 

that assault family violence, we absolutely can show you that the defendant has not changed.” 

The State further argued that if given probation, appellant would not abide by the necessary 

terms: “And if nothing is more of an indicator that the defendant is not going to follow the 

conditions of probation, you have to think about the fact that he was on bond for a very serious 

crime. And while on bond, he was arrested for a felony assault family violence offense. If being 

on bond for a felony doesn’t deter you from picking up a new case, I don't know what will.” The 

State mentioned the assault family violence offense on three different occasions in its closing 

argument during the punishment phase. The State, however, primarily relied upon his ten prior 

convictions and his repeated criminal behavior over the last fourteen years. The State further 

argued that appellant’s crimes were getting more violent, appellant showed no remorse and he 

deserved incarceration, not an eleventh chance. After a review of the record, we cannot conclude 

that the argument of counsel favors a finding of egregious harm.

The final Almanza factor addresses any other relevant information revealed by the record 

of the trial as a whole. See Almanza, 686 S.W.2d at 171. We are not aware of “any other 

relevant information” that we should consider. 

After a review of the Almanza factors, we are unable to conclude that appellant suffered 

egregious harm from the lack of an reasonable doubt instruction regarding the extraneous offense 

in punishment jury charge. The State’s evidence connected appellant to the crime and the jury 

assessed punishment well below the maximum punishment available. It is entirely plausible that 
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the jury declined probation and assessed punishment based on the facts of the offense alone. 

Accordingly, we overrule appellant’s sole issue.

CONCLUSION

We resolve appellant’s issue against him and affirm the trial court’s judgment.

/ David Evans/

DAVID EVANS

JUSTICE

Do Not Publish

TEX. R. APP. P. 47

140918F.U05
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Court of Appeals

Fifth District of Texas at Dallas

JUDGMENT

ORINTHIOUS DEONTE BROWN, 

Appellant

No. 05-14-00918-CR V.

THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court 

No. 2, Dallas County, Texas

Trial Court Cause No. F-1241281-I.

Opinion delivered by Justice Evans. 

Justices Lang and Whitehill participating.

Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered this 5th day of November, 2015.