(Z 1'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

COURT OFCRIMINAL APPEALS

mar 27 z::3

Abel Acosta, Clerk

RECEIVED IN

COURT OF CRIMINAL APPEALS

MAR 26 2015

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--• • P g •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. T 978) 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 .1 4. 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 a sonable 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-h ar-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 o u-r-tv o f -.; C r im in al- -App e a 1 s ... prlo r •• d eci s i • n i\ i < S e 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; CO A. Op in. pg. 7. The Court of Appeals further stated that;

"[t] tie re 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'.p ieked.tup IV/by a

guy in a silver Nissan,. Butler, testified that M'onique\:h:adt,Gre dit

Cards and t-ti e SERhd-o e-i!5 hua hein •&:* heape 111 mera eeadnti d: fo ims'elf dpai ek ed pher

up. See-; COA. Opin. pg.3.

(M
Jackson 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-ntsn of 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;

W he;oe tteh e e e w-id e n-e-es--s;h oias'tt-h' a t a a uiwi-ib-n e s s ii s a a n aa c com jb.-l.i e e-i!) a s s a

matter of 1 aw ,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 -, oitix esenaaaiesseci

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 Dem one Butl ex t es tif1 ed ;f:ifim,±:W&&$!fe8-&\&B h'titrns n-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-he spstltibneiugf inds

it somewhat premature to argue ineffective -assistance: of counsel;

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

to pi no liii d-e- the ace dmp i i c e'.nwitne &s-a instruc tl on Asees-ap omt e '.' . 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.1990).

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 any time 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 7 38, 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 -State v 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

APPENDIX
Jackson 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;

12 30B 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

Ex parte § 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.

Signature ; cW ^ACKSon

Erik Jackson

Exhibit (a)
AFFIRMED; Opinion Filed December 31, 2014.

In The

Court of Appeals

Mttii district of (teas at Ballas

No. 05-12-01413-CR

ERIK JAMAL JACKSON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court No. 1

Dallas County, Texas

Trial Court Cause No. F-1163319-H

MEMORANDUM OPINION

Before Justices FitzGerald, Fillmore, and Stoddart

Opinion by Justice Stoddart

A jury convicted Erik Jamal 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 the lesser-included offense of theft and by failing to instruct the jury on the accomplice

witness rule. We affirm the trial court's judgment.

The State alleged Jackson intentionally and knowingly, while in the course of committing

theft of property and with the intent to obtain or maintain control of the property, threatened and

placed the victim in fear of imminent bodily injury and death, and Jackson used and exhibited a

firearm. At trial, the victim of the crime was the State's first witness. Ramiro Adame testified

that on December 23, 2011, he left a bar about 1:00 a.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

was waiting for a friend, but accepted Adame's offer to wait inhis caruntil herfriend arrived.
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

Adame for money. When he said he was not going to give money to her, she offered to have sex

with Adame for money; he declined this offer.

A gas station was down the street from 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

continued texting on her phone.

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 of like 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 right just kind 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, including his wallet and iPhone. They also took some items from the car.
Adame testified the 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

identify them.

Demone Butler testified 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 and Jackson'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

where they dropped off Adley.

Butler testified he and Jackson drove away after dropping off Adley and went to a vacant

"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.

Butler refused to give it to him.

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

see where they went or what happened, he did not see a robbery occur, he did not see whether

anyone had a gun. After a couple of minutes, the men and Adley returned to the cars and the

cars drove away. When Jackson and Adley got back into the car, Adley was "going through

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 "cop car started pulling up, and one ofthe cops gets out, and he was like we tracked her

right here or whatever and I think he's like that. And then [Jackson] grabbed the phone from her,

and he hands it to me and he told me to put it up." Butler testified he put the phone in the

armrest in the back seat. The police arrested Jackson, Butler, and Adley.

Officer Donald Ritchie was a Dallas police officer on December 23, 2011. On that night,

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 learned Adame's phone was an iPhone, Ritchie used

his own iPhone to track it. Ritchie was "able to see that the 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 another officer who stopped the car. The officer found 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 backseat of the

car where Butler had been sitting.

Jackson testified in his defense. Jackson stated he and Adley went to 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 and forth in front of the car. Adley then retrieved her purse from the car

and walked away. Jackson said he did not leave the parking lot because he was expecting his

brother to come to the club. Ten to fifteen minutes later, his brother and two friends arrived.

• -4-
Jackson sent Adley a text that said "go to the spot?" Thirty seconds later, Adley replied

"go to the spot." Jackson testified a restaurant was "the spot."

Jackson testified he and his brother drove their cars to a nearby restaurant. Jackson

looked inside the restaurant to see if Adley was there. When he discovered she was not, Jackson

called her on her phone. Adley told him that she was at a gas station; a guy had seen her walking

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 own car 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 of Adame's car. Adame turned on a side street and

Jackson's brother followed. Due to traffic lights and the lane Jackson was 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 offered her a ride. She told him no. He offered again. She

told him no, that she had a ride, she's good, she doesn't need a ride from him. So

he tried to bribe her to get in the car, it was cold outside. So she finally was like

oh, okay, so she got in the car. From there Adame 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.

After Jackson picked up Adley, he contacted his brother and they agreed to 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

came to be in the backseat ofthe car where the police found 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

aggravated robbery.

In his first issue, Jackson asserts theft is a lesser-included offense of aggravated 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 of discretion. Threadgill v. 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 a lesser-included offense. Hall v. 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 the evidence to determine that if appellant is guilty,

he is guilty only ofthe lesser offense. Id. at 536.

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The second step is a question of fact and is based on the evidence presented at trial.

Cavazos v. State, 382 S.W.3d 377, 383 (Tex. Crim. App. 2012). This step requires the reviewing

court to determine whether "there is some evidence in the record which would permit a jury to

rationally find that, if the defendant is guilty, he is guilty only of the lesser-included offense."

Rice v. State, 333 S.W.3d 140, 145 (Tex. Crim. App. 2011). This evidence must show the lesser

included offense is a "valid, rational alternative to the charged offense." Id. Moreover, it "is not

enough that the jury 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 that theft is a lesser-included offense of aggravated robbery

in this case, we cannot conclude that if Jackson is guilty, he is only guilty of theft. A person

commits the offense of theft if he unlawfully appropriates property with the intent to deprive the

owner of the property. TEX. PENAL CODE § 31.03(a). An appropriation of property is unlawful if

it is without the owner's effective consent or 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 possession ofthe iPhone knowing it was stolen.

There is no evidence in the record showing that 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 a robbery occur, and testified he did not believe a robbery occurred. He did acknowledge

taking possession of Adame's iPhone and now argues there was some evidence he knew 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 known Adame's iPhone was stolen when he took possession of it—whether he took

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possession at the scene of the crime or at the gas station when his brother handed it to him—is if

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

have knowledge of a 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 of theft 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 to Butler's testimony, the trial court

erred by failing to instruct the jury on the accomplice witness rule. A "conviction cannot 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

Herron v. 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 trial court'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. Casanova v. State, 383 S.W.3d 530, 533

(Tex. Crim. App. 2012). The court of criminal appeals has articulated the standard for

determining egregious harm under Almanza v. State, 686 S.W.2d 157, 174 (Tex. Crim. App.

1985) (op. on reh'g)) in the context of the failure to submit an accomplice-witness instruction.

Id. In Casanova, the court stated that if "the omission is not made known to the trial judge in

time to correct his error, appellate review must inquire whetherthe jurors would have found the

corroborating evidence so unconvincing in fact as to render the State's overall case for

conviction clearly and significantly less persuasive." Id. (quoting Saunders v. State, 817 S.W.2d

688, 692 (Tex. Crim. App. 1991)); see also Herron, 86 S.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

overall case for conviction clearly and significantly less persuasive.").

Whether the trial court's error in failing to submit an accomplice-witness instruction is

harmful is "a function of the strength of the corroborating evidence." Casanova, 383 S.W.3d at

539. The Casanova court stated:

As the strength of the corroborating evidence increases, however, a reviewing

court may no longer be able to declare that the lack of an accomplice-witness

instruction resulted in egregious harm . . . And as the corroborating evidence

gains in strength to the point that it becomes implausible that a jury would fail to

find that it tends to connect the accused to the commission of the charged offense,

then a reviewing court may safely conclude that the only resultant harm is purely

theoretical and that there is no occasion to 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 order to convict.

Id. at 539-40 (internal citations omitted)

The State showed Jackson's girlfriend, Adley, accepted Adame'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. He admitted Adley had been in his car and she got out of his car in the same

geographic vicinity. Jackson admitted that before the robbery he exchanged text messages with

Adley about "go[ing] to the spot." He also admitted to being in possession of the stolen

iPhone—a fact confirmed by the police officer's testimony.

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The non-accomplice testimony in this case is not so unconvincing as to render the 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 the jury would have

failed to find the corroborating evidence connected Jackson to the offense. Had it been properly

instructed, the jury almost certainly would have found Butler's testimony 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 overrule Jackson's second issue.

We affirm the trial court's judgment.

Do Not Publish

Tex. R. App. P. 47

121413F.U05

/Craig Stoddart/

CRAIG STODDART

JUSTICE

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Court of Appeals

iffiftlj Htstrtct of atexas at Uallas

JUDGMENT

ERIK JAMAL JACKSON, Appellant

No. 05-12-01413-CR V.

THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court

No. 1, Dallas County, Texas

Trial Court Cause No. F-1163319-H.

Opinion delivered by Justice Stoddart.

Justices FitzGerald and Fillmore

participating.

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

Judgment entered this 31st day of December, 2014.

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