# (Z1'tS

NO. (o,q-)a-o\M\3-^R
IN THE COURT OF CRIMINAL APPEALS OF TEXAS AT AUSTIN, TEXAS

ERIK JACKSON - PETITIONER

vs . -STATE OF TEXAS - APPELLEE

PETITION FOR DISCRETIONARY REUIEU

FROM THE 5th COURT OF APPEALS AT DALLAS, TEXAS. ON APPEAL FROM CRIMINAL DISTRICT COURT NO. 1, OF DALLAS COUNTY, TX IN CAUSE NO. F11-63319-H 

# ORIGINAL

FILED IN COURTOFCRIMINALAPPEALS 

## mar27z::3 Abel Acosta, Clerk



## RECEIVEDIN COURTOFCRIMINALAPPEALS MAR 262015 

## Abel Acosta, Clerk

Erik Jackson
- Pro se TDC3. NO. 1B16262 Ferguson Unit 1212 0 Savage Dr. Midway, Tx. 75852

NO ORAL ARGUMENT REQUESTED (*)Jackson vs State Contents ;
Cover Page • • -pg. * Contents' -Page--• • Pg •i Parties Page pg.ii Oral Argument Page' ---• r-- pg.iii Authorities Page pg.iv Case History Page P9^v Statement of facts Page- -: pg.vi 

### Issue;. ONE pg.01 Did the Fifth Court of Appeals err by finding that the petitioner uas not entitled to a lesser included instruction on Theft ? 

### Issue; TWO pg.OB Did the Fifth Court of Appeals err by finding that the petitioner uas not entitled to an accomplice- witness instruction ? Appendix; Motion to waive duplicate copies of PDR. » Exhibit (a)
Prayer for Relief & Cert, of Service pg . vn

(i)Parties;
Petitioners

Trial Counsel

Appeal Counsel

State trial Counsel

Presiding Judge Jackson vs State

Erik Jackson / pro sle / TDC .181 6262 Ferguson Unit
- 12120 Savage Dr. Midway, Tx. 75852
Robert C-. Hunger - Bar # 240 0 6 923 P0. Box 670959
- Dallas, Tx. 75367 John Q;. Gal van - Bar # 2 4 010 044 14001 Dallas Pkwy. Ste . -1200 Dallas, Tx. 75240
Catherine-.C . Bernhard
- Bar # 02216575 ,P0. Box 2BT7
- Red A-o-k, Tx. 75154 Jason Fine -Bar # 24055477 Dallas Cnty. Dist/. Att.. Office 133 N. Riverfront Blvd. Lb. 19
Leah Thomson
- Bar # 24036177 Address
- Same as above

Honorable Rober-t Burns Crim.. Dist. Ct. - Dallas Cnty, Tx.

(ii)Jackson vs State Oral Argument;
NO ORAL ARGUMENT REQUESTED.

(iii)Jackson vs State Authorities; 

### Almanza v State, 686 sw 2d 157 (T.C.A. 19B5) pg.06, .,10 Arline v State. 721 sw 2d 3--51- (T.C.A. T9B6) pg.10 Barris v State-, 2B3 sw 3d 34B (T.C.A. 2009) pg.10 

### Bignall v State, 899 sw ,2d 2B2 (Tx. App. Hous .-1 4.1 995 pg.01 

### Bignall v State, 887 sw 2d 21 (T.C.A. 1994) pg.02 Campbell v State, 571 su 2d 161 (T .C .;A. T978) pg.06 Casanova v State,. 383 sw 3d 530 (T.C.A. 2012) pg.11 Freeman v State, 3,52 sw 3d 77 (Tx. App. Hous .14. 2D1 1 ) pg.09 Freeman v State, 359 sw 3d 646 (T.C.A. 2012) pg.09 Goff v State, 931 sw 2d 537 (T.C.A. 1996) pg.09 Griffen v State, 614 sw 2d 155 (T.C.A. 1981) pg.06 Guzman v State-, 18-8 sw 3d 185 (T.C.A. 2006) • pg.01 Hall v State, 225- sw 3d 524 (T.C.A. 2D07) pg.03 Hampton v State, 109 sw 3d 4-37 (T.C.A. 2003) pg.01 Hooper v -State, 214 sw 3d 9 (T.C.A. 2007) pg.01 Jackson v State, -160 sw 3d 56B (T.C.A. 3005) . ,. pg.02 Masterson v State, 155 sw 3d .167 (T.C.A. 2005) pg.07 

### Makeig v State, -802 sw 2d 59 (T.C.A. 1990) pg.02 Ngo v State, 175 sw 3d 738 (T.C.A. 2005) •• pg.10 Oursbourn v State, 259 sw 3d 159 (T.C.A. 2008) pg.09 Ovalle v State, 13 sw 3d 774 (T. C. A. 2000) pg.06 Parr v State, 658 sw 2d. 620 (T.C.A. 1983) pg.06 Rousseau v State, 855 sw 2d 666 (T.C.A. 1992) pg.01 Saunders v State,: 840 s-w 2d 390 (T.C.A. 1992) pg.01 Saunders v State, 91 3 sw 2d 564 (T.C.A. 1995) ---.- pg.07 Saunders v State-, 817 sw 2d 68B (T.C.A. 1991) pg.10 

### Sharp v State, 707 sw 2d 611 (T.C.A. 1986) pg.04 Smith v State-, 332 sw 3d 425 (T.C.A. 20.11) pg.OB Solisv State, 792 sw 2d 95 (T.C.A. 1990) pg^09 Travino v State, 100 sw 3d 232 (T.C.A. 2003) pg.06 Zamora v State, 411 sw 3d 504 (T.C.A. 2013)
- pg.OB (iv)Jackson vs State Case History; The petitioner, Erik Jackson, was tried and convicted on for the offenseof Aggravated Robbery and sentenced to FIFTEEN years in the Texas State Penitentiary. The petitioner filed a 

### timely notice of Appeal. The petitioner's PDR. was formerly due oin 1/31/201-5. The petitioner requested an extension of time to file his PDR. which was-granted. The petitioner's PDR. is now due on or before; 3/31/2015.

(v)Jackson vs State Statement of Facts The 5th Court of Appeals opinion includes several renditions of the facts. Some of which include testimony of the petitioner, Erik Jackson; his friend Demone Butler, and the "alleged" victim, Ramiro Adame. However, each witness's testimony contradicts the others. The Court's opinion also contains "hearsay" statements that were allegedly made by the petitioner's girlfriend, Monique 

### Adley, who incidently did not testify at the petitioner's trial. The petitioner adopts his appellate counsel's statement of facts in pertinent part as follows.
On the night of December 23-rd. 2011, the petitioner engaged in a conspiracy to solicit for prostitution. Petitioner Jackson staged Monique in a Club parking lot and. drove around the corner to wait for Monique to call him to pick her up upon completion. Somehow the pick up point became confused and the petitioner was unable to locate Monique. When he finally found .Monique she was 

### walking near some warehouses. She. had an Iphone , Credit Cards, and approx. a Hundred Dollars in Cash that she didn't have when the petitioner had dropped her off earlier.

(vi)Jackson vs State Issue; ONE Did the Fifth Court of Appeals err by finding that the petitioner was not entitled to a lesser included--instruct ion on Theft ? Standard of review; An accused is 'entitled to an instruction' on every defensive issue raise.d by the evidence;- regardless of whether such evidence is strong., weak, unimpeacheo or otherwise. See; Saunders v State B40 sw 2d 390, 391 (T.C.A. 1992). In order to determine whether

an accused is entitled to a-lesser included offense instruction a reviewing court applies the traditional two part "Rousseau" test. See; Rousseau v State, 85 5 sw 2d 666, 6 73 (T.C.A.. 1992). First, the lesser offense must be included within the proof necessary to establish the 'greater' offense. See; Bignall v State, BB7 sw 2d 

### 21, 23 (T.C.A. 19 94). Secondly, some evidence must exist within the record which would permit a re asonable juror to conclude that if the accused is guilty-- he is guilty only of a lesser offense. See; Guzman v State, 188 sw 3d 18 5,. 187 (T..C.A. 2006). If there is more than a "scintilla" of evidence that raises the-issue of a lesser included offense- a c-har-ge; ri-n str-uct ion mus ib :•: be ,.g iven .. See; Hampton v State, 109 sw .3d 437, 441 (T .C .A . 200 3) . Summery of Argument; In the instant case, the Honorable Fifth Court of Appeals has applied an erroneous: analysis by !?r;e.'^:w:eig;hiTrg-^t'h'e-;evd-dence-"- which conflicts with a ~G ou-r-tvof -.;C rimin al-
- App e a 1s ...prlo r ••deci s i •ni\ i < Se e ; 

### Hooper v State, 214 sw 3d 9, 12 (T.C.A. 2007). (1)Jackson vs State Arguments & Authorities; The petitioner argues that the Court of Criminal Appeals have previously determined that Theft can be a lesser included offense 

### of Robbery and/or Aggravated Robbery. See; Bignall vs State, 887 sw 2d 21, 25 (T.C.A. 1994). The statutory elements of Aggravated Robbery include the commission of Robbery. Likewise the elements of Robbery include the commission of Theft:.. See; Tx. Penal Code 

### §29.02 (Robbery); §29.03 (Agg. Robbery); §31.03 (Theft).

A trial court's decision on whether or not to submit a lesser included offense instruction is reviewed for abuse of discretion. See; Jackson vs State, 160 sw 3d 568, 575 (T.C.A. 2005). A trial court "abuses it's discretion" when it's decision is arbitrary or unreasonable or without reference to guiding rules or principles. 

### See; Makeig v State, 802 sw 2d 59, 61 (T.C.A. 1990)'. In the case at bar, the Court of Appeals basically condoned the trial court's 

### decision to deny the jury an- opportunity to weigh the credibility of the witnesses testimony as well as the circumstantial evidence 

### and any reasonable inferences thereof. A person commits Theft if he or she unlawfully appropriates property with the intentions of 

### depriving the rightful owner of said property. The appropriation 

### of property is an unlawful act if said property is stolen and the actor appropriates the property "knowing" that it was "stolen" by 

### another. See; Tx. Penal Code §31.03 (a) & §31.03 (b). (2)Jackson vs State In the instant case, the Court of Appeals declared that there

was not so much as a "scintilla" of testimonial or circumstantial evidence, nor even the possibility that a single juror might have drawn a reasonable inference from the same that if the petitioner is guilty, he is guilty only of the lesser charge of Theft. See; Hall v State, 225 sw 3d 524, 536 (T .C .A, •20:07 ) . Indeed, the Court of Appeals stated in no uncertain terms; "There-is <.NO ;<£uT'D:ENCE in the record showing that Jackson 'knew' the IPhone was stolen...". See; COA. Op in. pg. 7. The Court of Appeals further stated that; 

### "[t] tiere was no way for him [petitioner] to 'know' the IPhone was stolen". See ; C0A . Opin . pg .8 . The petitioner "whole heartedrly" disagrees, with the 5th Court of Appeals findings for "several" reasons. First,', the petitioner 

### argues that the Court of Appeals utilized an "erroneous" standard of analysis. The Court of Criminal Appeals stated that the Court of Appeals S'hould not determine whether an inference is or is not reasonable based on the combined/cumulative force of the evidence when viewed in the light most favorable to the conviction. See; Hooper v State, 214 sw 3d 9, 12 (T.C.A. 2007). In this case, the 

### Court of Appeals clearly re-weighed the testimonys and decided to 

### desregard that of Demone Butler who's testimonial,evidence surely exceeds the ••" scintilla" necessary to warrant,a Theft instruction. 

### See; Hampton v State, 109 sw 3d 437, 441 (T.C.A. 2003). (3)Jackson vs State On review of Demone Butler's version of the events the jurors were provided the choice to believe all, part or none of Butler's testimony. The petitioner argues- that Butler's version is not so incredible under such circumstances that it would be unreasonable 

### far a rational jury to have believed that Jackson knew the IPhone
was stolen. It is the jurors perogative to believe all, part, or 

### none of any witness's testimony. See-; Sharp vs State, 707 sw 2d 611, 614 (T.C.A. 19B6). Mr. Butler's testimony supports numerous reasonable inferences that could have been drawn regarding Theft, 

### rather than Aggravated Robbery, had the instruction on Theft been 

### given as requested. Butler testified that himself and petitioner and the petitioner's girlfriend, Monique. Adley,, had planned to go to a Club called Cowboys Red River. They arrived too late to get in. Butler testified that after being turned away from the Club, 

### The- petitioner said; Okay, "let's go make some money...". Butler testified that he took that to mean that the -petitioner was going 

### to send his girlfriend; Monique, out "Hustling" since that's what 

### she usually did. See;RR.Vol.2-pg.21 5. Butler testified that he and the petitioner drove Monique to a nearby Club and dropped her off in the Club parking lot. Shortly thereafter, Monique texted the petitioner and advised him that she had been I'.pieked.tupIV/by a 

### guy in a silver Nissan,. Butler, testified that M'onique\:h:adt,Gredit Cards and t-tie SERhd-oe-i!5huahein•&:*heape111m eraeeadntid:foims'elfdpaieked pher up. See-; COA. Opin. pg.3. (MJackson vs State The evidence of the petitioner's criminal intent to engage in
a conspiracy to "aid or assist" in the commission of prostitution
was clearly raised through, the •testimony of Butler in the instant
case. The fact that Monique-'s original intent to commit one type of criminal offense (prostitution); resulted in the commission of
a collateral Theft makes no difference at all. The petitioner is just as guilty of stealing the Credit Cards and IPhone as Monique 

### under the law of parties-. See; Tx. Pen. Code §7.02. A person is criminally responsible for the offense committed by another where acting with intent to promote the commission of an offense;.; he or she solicits, encourages, directs or aids the other person innithe 

### commission of that offense. .- See; Tx. Pen. Code §7.02 (a)(2). In 

### the instant case, the' jurors could have quite reasonably inferred 

### that the petitioner knew the IPhone was stolen simply because his girlfriend returned with it under these particular circumstances. Further still. Officer Dillon testified that the petitioner was a 

### YIN Nation gang member according to his "facebook" page. The YTN 

### Nation gang was known for engaging in property offenses according 

### to OffiierrDi)llonnwh.ba.is3th;B-esup-.eEvisarxof the- gang, unit division of the Dallas Police Department. See; RR.UQ-13-3-pg.T39,, 143, 148. If this is not enough upon which the jurors could have reasonably 

### inferred that the petitioner knew the IPhone was stolen, consider the fact that when the petitioner realized that the officers were 

### going to stop him, he grabbed the IPhone from Monique and gave it to Butler to hide- in the bear, armrest. See; RR .Vol . 2-pg .227-28 . (5)Jackson vs State The Court of Criminal Appeals decided long ago that Theft can be a lesser included offense- of Robbery under some circumstances. See; Campbell « State, 571 sw 2d 161 (T.C.A. 1978); Parr v State, 65B sw 2d 620, 626 (T.C.A. 19B3); Griffen vs State. 614 sw 2d 155 

### 159 (T.C.A. 1981). The petitioner contends that he has satisfied the first prong of the Rousseau test by showing- that "Theft^ is a 

### lesser included offense of Robbery/Aggravated Robbery . Further, the petitioner contends that he- has satisfied the second prong of the Rousseau test by showing that the- record supports more- than a

" scintilla" of evidence; albeit possibly circumstantial, which is all it takes to warrant an inclusion of a lesser included offense instruction on Theft. See; Rousseau, Supra. Harm & Prejudice; 

### The trial court's refusal to give the lesser included offense instruction on Theft caused SOMB.HARM to the defendant. Pursuant to Almanza v State, 686 sw 2d 157, 171 (T.C.A. 1984),. when a jury charge contains error, and that error has been ..properly preserved 

### by an objection, or requested ins traction; a reversal is required if the error is "calculated to injure the rights" of a defendant; 

### meaning, there must be •" Some Harm":.. ': See; TEX. CC'Riifi Art. §36.19; Travino v State, 100 sw 3d 232, 242 (T.C.A. 2003); Almanza @ 171. The degree of harm must be considered in light of the entire jury 

### charge, state of the evidence, including contested issues and the weight of probative evidence ;aBiidg-umg-ntsnof o-fiuiisB-G] jr-eand any other 

### relevant info.rm-a-S'e-eijv.. Ov-Sile vvSfcatev fr-3a-sia,. 3d3734 :(iiD .C .A. 2000 ) : C6)Jackson vs State Harm exists where the penalty imposed for the charged offense "exceed" the "potential penalty" for the lesser included offense. See; Bignall vs State, 899 sw 2d 282, 284 (Tx. App. Houston, 14th Dist. 1995, no pet). Harm also exists when the failure to submit
a lesser included offense instruction leaves the jury with a sole option of either convicting the defendant of the greater offense,
or "acquitting" him altogether even- though he is obviously guilty of a lesser- offense. See; Saunders vs State, 913 sw 2d 564. 571 (T.C.A. 1995) . In the instant case, the "actuallvalue••" of the IPhone was not conclusively established. Theft of property valued at less than 

### $1,500.oo is a misdemeanor . The petitioner was given (T5) years; which is significantly more than it would have been had the trial court included the Theft instruction requested. TherB«uaere "No" intervening lesser included offensesdthat the- jury rejected which would allowuithe court to conclude that the jurors were not put on the i'lhoions of a delemma" ofi whether to convict of the only option 

### available or acquit him altogether. See; Masterson vs State, 155
sw 3d 167, 172 (T.C.A. 2005); Beck v Alabama, 447 US. 625, 634-36 (1980). The failure to provide a lesser included instruction on Theft caused "Some Harm" under Almanza, thus requiring a reversal and remand for a new trial. (7)Jackson vs State Issue; TWO Did the Fifth Court of Appeals err by finding that the petitioner was not entitleddto an accomplice witness instruction ? Standard of review; Whe;oe ttehe e ew-iden-e-es--s;hoias'tt-h' a t a auiwi-ib-ne s s ii s a a naaccomjb.-l.iee-i!) a s s a matter of 1aw ,th-frstr.iallcourt tmamttine.tr.iaottt.'ra-es juj.ry-.sp-acee-D.ddJrag|$|r-!3 A witness who is indicted for the {Isame-V of fense -, oitixesenaaaiesseci included offense as the defendantsisnancaooprnplicesas aamatterfof 

### law; See; Smith v State-, 332 sw 3d 425, 439 (T.C.A. 2011). Summery of Argument; In the Instant case, the Honorable
-Fifth Court of Appeals has 

### erred in finding that the trialkcourt had i'lnoiBduipiytUvtpajiiirdi^'id.e an 

### accomplices-witness instruction sua sponte; See; Zamora vs State, 411 sw 3d 504, 510 (T.C.A. 2013)(Id. @ 513). Aurgument & Authorities; 

### When Demone Butl ex t es tif1 ed ;f:ifim,±:W&&$!fe8-&\&Bh'titrnsn-lii-aiea^^'ElDe was under indictment for the "same "• aggravated robbery which Erik 

### Johnson was charged with.. Se-e ; RR .Vol .2-p:g .20 3^0 4We;Me*fc^e;iL-ess-3s . 

### no accomplice witness instruction was either requested by defense nor provided sua sponte by the trial court. fli-hespstltibneiugfinds it somewhat premature to argue ineffective -assistance: of counsel; 

### but inst-eddaa-5.g:ues,t-th.attthe;t:txial-.ccoatt:h;hadaa-BE-o:n.-§tlibiii±ioh-al#dillt;y. 

### to pinoliiid-e- the acedmpii ce'.nwitne&s-ainstructlon Asees-apom te'.' . See; Zamora, supra. © 513. (B)Jackson vs State If a prosecution witness is an accomplice as a matter of law a 

### the trial court has a duty to instruct the- jury that a conviction cannot be had based on the testimony of that witness unless it is "corroborated by other evidence- tending to connect the defendant" with the charged offense; See; Blake v State, 871 sw 2d 451, 452 

### (T.C.A. 1998). A witness that has been indicted for the same, or lesser included offense such as Demone Butler is an accomplice as a matter of law. See; Goff v State, 931 sw 2d 537 (T.C.A. 1996). 

### The accomplice- witness instruction is part of the "law applicable 

### to. the case", thus the trial court is "obligated" to instruct the jurorsasua sponta. Failure to do so is error, regardless whether the defense requests the-instruction . See-; Soils v State, 792 sw 2d 95,98 (T.C.A.19 90). In the- instant case, it appears the trial court's decision to withhold the instruction was based on Mr. Butler's testimony that he took no part in the alleged robbery. See; RR.Uol.3-pg . 98 . It is logical that since Butler was indicted for the same offense as the petitioner, there was a motive to "lie" in order to shift the blame, and avoid punishment. A failure to.include an accomplice witness instruction was error, especially considering such charge is "implicitly required by statute anytime the accomplice witness issue is .raised by the evidence":; See; Freeman vs State-, 352. sw 

### 3d 77, 82 (Tx.. App. 2011 pet. ref'd-)(359 sw 3d 646 (T.C.A-. 2012), 

### citing; Oursbourn vs State, 259 sw 3d 159, 1 BO (T.C.A. 200B). (9)Jackson vs State Harm & -Prejudice; Having demonstrated that the jury charge was deficient due to the trial court's failure to sua sponte submit accomplice witness instructions, the next step is to address the "harm sustained" by the•• petitioner due to the trial court's error. See; Ngo vs- State 175 su 3d 738, 743 (T.C.A. 2005); Barris vs State, 2B3 sw 3d 348 350 (T.C.A. 2009),; Almanza vs State, 6 86 sw 2d 157 (T.C.A. 1985). In the instant case, the defenseudid not challenge or request the accomplice "as a matter of law" instruction. Nor did he "object" to it's omission. When charge error is not preserved a defendant 

### must show, egregious harm. See; Arline v -Statev 721 sw 2d 351 ,35 3 (T.C.A. T9B6)(Id. @ 351-52). The- "actual degree- of -harm" must be evaluated in light of the entire charge; state of evidence, which include contested iss.ue-s, weight- of probative evidence, arguments 

### of counsel and any other relevant information revealed by record. 

### See; Almanza § 171; & Tx. CCP Art. §36.19. The failure to receive a fair trial is shown where-a rational 

### juror could have found the -State-' s case "less persuasive" if they had been told that the accomplice's testimony may not be accepted for a basis -cf conviction without some corroborating testimony or 

### evidence. -See; Saunders v State . 81 7 sw 2d 688-93 (T. C .A.11)991 ). In assessing harm the reviewing court must look to the "strength" of the corroborating evidence. (10)Jackson vs State When the evidence is exceedingly weak as in the instant case, egregious harm is shown. See; Casanova vs •State-.,. 383 sw 3d 530, 

### 533 (T.C.A. 2012)(Id. @ 539). The alleged victim testified that he was "unable to identify" his attackers. See ; RR.Uol . 2-pg.TB9 . The petitioner's connection to the offense comes largely from his possession of the stolem IPhone. Butlerrtestified; Monique; Adley had the IPhone when she returned to the vehicle with Mr. Jackson. See; COiA. Opin. pg.3. Demone- Butler was the "only witness" that
even "remotely" implicatedda possibility of Jackson's presence at the scene of the crime. However, even at that rate, one can only speculate-, since- Butler testified that he "did not see where"- the petitioner went when he exited the vehicle. See-; CO A. Opin pg.3. In sum, without Butler's "circumstantial evidence" testimony, the State]s case against Jackson would have been "significantly less" persuasive. The weakness of the State's case was quite apparent. The petitioner was given a Fifteen year sentence for a crime that carries 5-99 to Life. It is clear that the jurors were- "looking" for a lesser included offense option. The trial Court's failure to sua sponte instruct the jury that Butler's. testimony needed to be corroborated egregiously harmed Jackson, requiring a reversal.

(11 )Jackson vs State

APPENDIXJackson vs State Grayer for relief; Wherefore , premises considered; there.jbeing reversible errorfs] in the trial of this- case, the:petitioner prays this Court will
reverse this judgment and remand for a new trial, or any relief this court finds fitting and proper under the circumstances.be granted. Signature; Erik Jackson 

# Signature; (JZ!\h ^A^SoO

Certificate of Service; I, E-RIK-^l-A-EKSON, do hereby certify that the above is true and correct. The aforegoing petition for discretionary, review is 

## being placed in the US,, prison mail box on yAcxCCVx SD-\ , 2015 and is addressed to the Court of Criminal Appeals at Austin; 

## 1230B Capital Station, Austin, Tx. >1^J\ \ Signature; Erik Jackson 

# signature; /)g,V\ Oft2)4ft7A
TDCJ. No. 1B16 262 Ferguson Unit 12120 Savage Dr. Midway, Tx. 75B52

(vii)Jackson vs State 

### Exparte § In the- 1st. judicial Erik Jackson § district court of 

### § Dallas,County, Tx. § Motion to waive copies of the Petition for Discretionary Review
Comes Now, Erik Jackson, pro se-, petitioner, in the above styled and numdered cause, and requests this Honorable Court "WAIUE" any 

### additional copies of this Petition for Discretionary Review, and would show the following in support thereof;
I. 

### The' petitioner is unable to access a copy machine on this unit for the purpose of copying personal legal work. 

# ; cW ^ACKSon Signature Erik Jackson

Exhibit (a)

### AFFIRMED; Opinion FiledDecember31, 2014.

In The 

## Court ofAppeals 

## Mttii district of(teas at Ballas No. 05-12-01413-CR 

### ERIKJAMALJACKSON, Appellant V. 

### THE STATE OFTEXAS, Appellee OnAppealfrom the CriminalDistrictCourtNo. 1 Dallas County, Texas Trial Court Cause No. F-1163319-H 

### MEMORANDUM OPINION BeforeJustices FitzGerald, Fillmore, and Stoddart 

### OpinionbyJustice Stoddart 

### A jury convicted ErikJamal Jackson of aggravated robbery and sentenced him to 15 years' confinement. In two issues, Jackson argues the trial court erred by failing to instruct the 

### jury on thelesser-includedoffense of theft and by failing to instruct the jury on theaccomplice witness rule. We affirmthe trial court'sjudgment. 

### The State alleged Jacksonintentionallyandknowingly, while in the course of committing 

### theft of property and with the intent to obtain ormaintaincontrol of theproperty, threatened and 

## placedthevictim infearofimminentbodilyinjuryanddeath, andJacksonusedandexhibiteda firearm. At trial, the victim of the crime was the State's first witness. RamiroAdametestified that on December 23, 2011, he left a bar about 1:00a.m. He saw a "girl" in the parking lot and, 

### because it was cold outside, Adame asked the girl if he could help her. The girl told Adame she 

## waswaitingfor afriend, butacceptedAdame'soffertowaitinhiscaruntilherfriendarrived.

### Adame testified that once the girl was in the car, she was texting with someone on her 

### phone. Adame stated "she kept saying that she had a friend coming by or close by, and he's going to pick me up." After about 10 minutes, her friend still had not arrived. The girl asked 

### Adamefor money. When he said he was not goingto give moneyto her, she offeredto have sex with Adameformoney; hedeclinedthis offer. A gas station was down the streetfrom the bar. Adame wanted to go to the gas station and get something to drink and the girl rode in the car with him. During this time, the girl continuedtextingon herphone. 

### When they returned to the car after going into the gas station, Adame offered to take the girl back to the bar. Instead, as they drove back, she instructed him to turn on to a side street and said her friends would pick her up there. At some point, the girl told Adame to park. He 

### described the area where he parked: "There's a small convenience store, kind oflike a gas station, and there's a warehouse there and there's a parking lot. Eventually there's a lot, a 

### parking lot, so she told me to park right behind there or rightjustkind of like behind the gas station at the warehouse, and I parked right there where she told me to." No other cars were in the parking lot. 

### As soon as Adame parked, someone opened his car door. Adame testified: "So they pull me out and say get out of the car. I kind of tried to turn around, and I didn't have a chance 

### because they told me to don't [sic] look at them, and they had a gun pointed at me, so they told me to don't [sic] look at them so I just followed their directions." Adame thought there was 

### more than one attacker. The people who took him out of his car, took everything he had in his 

### pockets, includinghis wallet andiPhone. They also took someitemsfromthe car.

### Adame testifiedthe girl was not robbed and did not seem scared; she left with the people who robbed him. Adame stated he did not see his attackers well and would not be able to 

### identifythem. Demone Butlertestified as the State's second witness. He was charged with aggravated robbery along with Jackson and Monique Adley, the "girl" who was in the car with Adame. 

### Adley was Jackson's girlfriend. Butler testified he attempted to go to a club with Jackson, Adley, Jackson's brother, and some other people on December 23, 2011, but they were not 

### admitted because they were underage. Butler andJackson's brother each had a gun. Butler testified that after they were turned away from the club, Jackson said "he's about to go make some money." Butler believed this meant Jackson planned to have Adley prostitute 

### herself. They left the club and Jackson drove his car (carrying Butler and Adley) to a parking lot wheretheydroppedoffAdley. 

### Butler testified he and Jackson drove away after droppingoffAdley and went to avacant 

### "road next to some office buildings." Jackson said the location was where they would pick up 

### Adley. When they parked near the office buildings, a car carrying Jackson's brother and his friends parked alongside them. Jackson, his brother, and his brother's friends all got out of their cars. Butler testified that when Jackson was exiting the car, he asked Butler for Butler's gun. Butlerrefusedto give it to him. 

### Butler stayed inJackson's car and the other men retreated into the darkness. He did not 

### see where they went or whathappened, he did not see arobbery occur, he did not see whether 

### anyone had agun. After acouple ofminutes, themen andAdley returned to the cars and the cars droveaway. When Jackson and Adley got back into the car, Adley was "goingthrough 

## some card's," credit cards. They also had an iPhone with them. No one talked about what happened.
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### Jackson drove to a restaurant and then a gas station. Butler testified that at the gas 

### station, a"copcar startedpullingup, and one ofthe cops gets out, and he was like wetracked her righthere orwhateverand Ithinkhe's like that. And then [Jackson] grabbedthe phonefrom her, 

### and he hands it to me and he told me to put it up." Butler testified he put the phone in the armrestin the backseat. Thepolice arrestedJackson, Butler, and Adley. 

### OfficerDonaldRitchie was aDallas police officeron December23, 2011. On thatnight, he received a call at 2:28 a.m. about a robbery. He met Adame at a gas station. Adame told Ritchie he had been robbed by several black males and a black female; they took his money, 

### wallet, phone, and property. When Ritchie learnedAdame's phone was an iPhone, Ritchie used his own iPhoneto track it. Ritchie was "ableto see thatthe phone was, still active and moving at 

### that time." Ritchie began driving and following the iPhone; he followed the iPhone to a gas station. The iPhone signal was stationary at the gas station for a while. When the signal moved 

### again, Richie was able to determine which car the phone was in. Ritchie relayed the vehicle's information to anotherofficerwho stopped the car. The officerfound the iPhone, several other 

### cell phones, a gun, a Halloween mask, and cash in the car. He did not find a wallet or credit cards. Jackson, Butler, and Adley were in the car. The iPhone was located in the backseatofthe carwhere Butlerhad been sitting. Jacksontestified in his defense. Jackson stated he and Adley wentto a club that was in 

### close proximity to the club where Adame met Adley. Butler was with them. Jackson and Adley had an argument. After they were unable to get into the club, Jackson testified he told Adley "I 

### wasn't going to waste no more gas or time on taking her nowhere else." Adley got out of the car 

### and began pacing back andforth in front of the car. Adley thenretrievedher purse from the car and walked away. Jackson said he did not leave the parking lot because he was expecting his brotherto cometo the club. Tento fifteen minutes later, his brotherandtwo friends arrived.

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### Jackson sentAdley atext that said "go to the spot?" Thirty seconds later, Adley replied "goto the spot." Jacksontestifiedarestaurantwas "the spot." Jackson testified he and his brother drove their cars to a nearby restaurant. Jackson 

### looked inside the restaurantto see if Adley was there. When hediscovered she was not, Jackson called her on her phone. Adley told him that she was at a gas station; a guy had seen herwalking and offered to give her a ride. Adley told Jackson she would ask the man to take her to the 

### restaurant. The phone hung up and Adley did not arrive at the restaurant. Jackson called Adley again, but she did not answer. Jackson became concerned because she was not answering her 

### phone, her phone had hung up while they were talking, and Adley was in the car with a man. Jackson stated he decided to go to the gas station to find Adley; his brother was going to drive his owncar to the gas station. 

### As they drove, Jackson noticed his brother was in the wrong lane. His brother was following a car matching the description ofAdame's car. Adame turned on a side street and Jackson's brother followed. Due to traffic lights and the laneJacksonwas in, he was delayed in 

### following Adame and his brother. When Jackson turned on the side street, he did not see Adame's or his brother's car. Jackson began driving through the warehouses and "I come out of the last one and I see Ms. Adley coming up the street, on the sidewalk." Adley got into Jackson's car. Jackson testified: "She had a puzzled look on her face, and she got in the car. . . I 

### kind of started yelling at her because I'm not understanding why you're over here anyways, what's going on or why are you even over here." 

### Jackson said Adley told him the following story about encountering Adame: That's when she tells me about how she got in the car with Adame. She 

### said that she ~ that Adame had seen her walking west of the club, Club Kendall's, 

### and he had stopped and offeredheraride. She told him no. He offered again. She told him no, that she had a ride,she's good, shedoesn'tneed a ride from him. So 

### he tried to bribe her to get in the car, it was coldoutside. So she finally was like oh, okay, so she got in the car. From thereAdame said well, let me go to the store

### first, so he made a stop at the store. That's when I found out that that's —the RaceTrac is where they was at. That's how I found out that they got to the RaceTrac. 

### AfterJackson picked up Adley, he contacted his brotherand they agreedto meet at a gas station. When Jackson arrived at the station, his brother was already there. He testified his brother walked to his car and "[fjhat's when he handed me the phone." It was an iPhone. Jackson stated he sat down in his car with the iPhone; Jackson did not know how the iPhone 

### cameto be in the backseatofthe carwherethe policefound it. 

### Jackson denied he was present when Adame was robbed. He did not see Adame's car 

### parked. Jackson stated Butler also did not participate in the robbery. He stated the money in Adley's purse was from Adame because Adame paid Adley for sex. Although Jackson stated several times he believed no robbery occurred, in a separate proceeding Adley pleaded guilty to aggravatedrobbery. In his first issue, Jackson asserts theft is a lesser-included offense ofaggravated robbery 

### and the trial court erred by failing to instruct the jury on theft. In his brief, Jackson argues the basis for his request for the theft instruction is Butler's testimony that when the police 

### approached Jackson's car, Jackson gave the phone to Butler to put in the armrest. Jackson argues this action is some evidence Jackson knew the phone was stolen. The trial court's decision to submit or deny a lesser included offense instruction is reviewed for an abuse ofdiscretion. Threadgillv.State, 146 S.W.3d 654, 666 (Tex. Crim. App. 

### 2004). We apply a two-pronged test to determine if the trial court should have given a jury 

### charge on alesser-included offense. Hallv. State, 225 S.W.3d 524, 535-36 (Tex. Crim. App. 2007). We first determine if the proof necessary to establish the charged offense includes the lesser offense. Id. If it does, we then review theevidencetodeterminethat ifappellantis guilty, 

### he is guilty onlyofthe lesser offense. Id.at 536. -6-

### The second step is a question offact and is based on the evidence presented at trial. Cavazosv. State, 382 S.W.3d 377, 383 (Tex. Crim. App. 2012). This step requiresthe reviewing 

### courtto determine whether "there is some evidence in the record which would permit ajury to rationally find that, if the defendant is guilty, he is guilty only ofthe lesser-included offense." Ricev. State, 333 S.W.3d 140, 145 (Tex. Crim. App. 2011). This evidence must show the lesser includedoffense is a "valid, rational alternativeto the chargedoffense." Id. Moreover, it "is not 

### enough that thejury may disbelieve crucial evidence pertaining to the greater offense. Rather there must be some evidence directly germane to a lesser-included offense for the factfinder to consider before an instruction on a lesser-included offense is warranted." Skinner v. State, 956 

### S.W.2d 532, 543 (Tex. Crim. App. 1997). Even if we were to conclude thattheft is a lesser-included offense ofaggravated robbery 

### in this case, we cannot conclude that ifJackson is guilty, he is only guilty oftheft. A person 

### commits the offense oftheft if he unlawfully appropriates property with the intent to deprive the owner of the property. TEX.PENALCODE § 31.03(a). An appropriation of property is unlawful if it iswithoutthe owner's effective consentor if the property is stolen and the actor appropriates 

### the property knowing it was stolen by another. Id. § 31.03(b). In his brief, Jackson argues the latter: he took possessionofthe iPhone knowing it was stolen. There is noevidence in the record showingthat Jackson knew the iPhone was stolen, but 

### did not participate in the robbery. Jackson denied being involved in the robbery, said he did not 

### see arobbery occur, andtestified he did notbelieve arobbery occurred. He didacknowledge 

### taking possession of Adame's iPhone and nowargues there was some evidence heknew the iPhone was stolen even though he did not participate in the robbery. The record does not support this conclusion. Based on the evidence presented at trial, the only means by which Jackson would have knownAdame's iPhone was stolen when he took possession ofit—whetherhe took
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### possession at the scene ofthe crime or at the gas stationwhen his brotherhanded it to him—is if 

### Jackson participated in the robbery. If Jackson did not participate in the robbery and did not 

### have knowledge ofa robbery, as he maintained in his testimony, then there was no way for him to know the iPhone was stolen. Therefore, Jackson could not have been only guilty oftheft and 

### the trial court did not abuse its discretion by denying Jackson's request for a lesser-includedoffense instruction. We overrule Jackson's first issue. 

### In his second issue, Jackson argues that, with respect toButler'stestimony, the trial court 

### erred by failing to instruct thejuryon the accomplice witness rule. A "convictioncannot be had 

### upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed." TEX. CODE. CRIM. PROC. Ann. art. 38.14; see also 

### Herronv. State, 86 S.W.3d 621, 632 (Tex. Crim. App. 2002) (accomplice-witness instruction

### informs jury it cannot use accomplice-witness testimony unless there also exists some nonaccomplice evidence connecting defendant to the offense). 

### Jackson did not object at trial to the trialcourt's failure to include an accomplice-witness 

### instruction in the jury charge. Therefore, we reverse the trial court only if the record demonstrates that the error resulted in egregious harm. Casanovav. State,383 S.W.3d 530, 533 

### (Tex. Crim. App. 2012). The court of criminal appeals has articulated the standard for determining egregious harm underAlmanza v. State, 686 S.W.2d 157, 174 (Tex. Crim. App. 1985) (op. on reh'g)) in the context of the failure to submit anaccomplice-witness instruction. Id. InCasanova, the court stated that if "the omission is not made known to the trial judge in 

### time to correct his error,appellatereview mustinquire whetherthe jurors would havefound the 

## corroborating evidence so unconvincing in fact as to render the State's overall case for convictionclearlyand significantlylesspersuasive." Id. (quotingSaundersv. State, 817 S.W.2d 688, 692(Tex. Crim. App. 1991)); see alsoHerron, 86S.W.3d at 632(under egregious harm
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### standard, omission of accomplice witness instruction is generally harmless unless the 

### corroborating (non-accomplice) evidence is "so unconvincing in fact as to render the State's overallcase forconvictionclearlyand significantlyless persuasive."). Whether the trial court's error in failing to submit an accomplice-witness instruction is harmful is "a function ofthe strength ofthe corroborating evidence." Casanova, 383 S.W.3d at 539. The Casanova court stated: 

### As the strength ofthe corroborating evidence increases, however, a reviewing court may no longer be able to declare that the lack ofan accomplice-witness instruction resulted in egregious harm . . . And as the corroborating evidence 

### gains in strength to the point that it becomes implausible that ajurywould fail to find that ittends to connectthe accusedto the commissionofthe charged offense, 

### then a reviewing court may safely conclude that the only resultant harm is purely theoretical and thatthere is no occasionto reverse the conviction, even in the face 

### of an objection, since the jury would almost certainly have found that the accomplice witness's testimony was corroborated had it been properly instructed that it must do so in orderto convict. 

### Id. at 539-40 (internal citations omitted) 

### The State showedJackson's girlfriend, Adley, acceptedAdame's offer to stay in his car while she waited for some friends. While she was in the car, she constantly was texting 

### someone. At Adley's direction, Adame parked his car in a vacant parking lot. As soon as 

### Adame parked, he was robbed at gunpoint; the people who robbed him took his iPhone and wallet. However, Adley was not robbed, did not seem scared, and left with the people who robbed Adame. Adley subsequently pleaded guilty to aggravated robbery. 

### Jackson admitted to being in the vicinity where the robbery occurred at the time the 

### robbery occurred. HeadmittedAdley had been in his car and she got out of his car in the same 

## geographic vicinity. Jackson admittedthatbeforetherobberyheexchangedtextmessageswith Adley about "go[ing] to the spot." He also admitted to being in possession of the stolen iPhone—afact confirmed by the policeofficer'stestimony.

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### The non-accomplicetestimony in this case is not so unconvincing as to renderthe State's case clearly and significantly less persuasive. See id.at 533; Herron, 86 S.W.3d at 632. Rather, the corroborating evidence and the inferences to be drawn from the evidence more than 

### sufficiently tend to connect Jackson to the robbery. It is implausible that thejury would have failed to find the corroborating evidenceconnectedJacksonto the offense. Had it been properly 

### instructed, thejuryalmost certainly would have found Butler'stestimony was corroborated. See Casanova, 383 S.W.3d at 539-40. Therefore, we conclude Jackson did not suffer egregious 

### harm from the trial court's failure to include an accomplice-witness instruction in the jury charge. We overruleJackson's second issue. We affirmthe trial court'sjudgment.

Do Not Publish Tex. R. App. P. 47 121413F.U05 

### /Craig Stoddart/ CRAIG STODDART JUSTICE

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## Court ofAppeals 

## iffiftlj Htstrtct ofatexas at Uallas JUDGMENT 

### ERIKJAMALJACKSON, Appellant No. 05-12-01413-CR V. 

### THE STATEOFTEXAS, Appellee OnAppealfrom the Criminal DistrictCourt No. 1,Dallas County, Texas Trial Court Cause No. F-1163319-H. 

### OpiniondeliveredbyJustice Stoddart. Justices FitzGerald and Fillmore 

### participating. 

### Based on theCourt'sopinion of this date, thejudgmentofthe trial court isAFFIRMED. Judgmententered this 31stdayofDecember, 2014.

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