NO. 07-08-00087-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO

PANEL D JUNE 4, 2010

DELVETRA LASHER L JENNINGS, Appellant v. THE STATE OF TEXAS, Appellee

____________________________ FROM THE 64TH DISTRICT COURT OF HALE COUNTY; NO. A17382-0710; HONORABLE ROBERT W. KINKAID JR., PRESIDING

Memorandum Opinion on Remand from Court of Criminal Appeals

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ. Before us is the second chapter of Jennings v. State . In the first, we concluded that because she failed to object, appellant waived her complain t about omitting from

the verdict form reference to the possibility of her being “not guilty” of the lesserincluded offense, that is, t he offense of which she was convicted. Upon negating its own precedent holding ot herwise, the Court of Criminal Appeals concluded that an objection was not n eeded to preserve the complaint. See Jennings v. State, 3022 S.W.3d 306, 310-11 (Tex. Crim. App. 2010). It fu rther held that the om ission constituted charge error and remanded the cause to us for a harm analysis per Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985). See Jennings v. State, 302 S.W.3d at 306. We find no egregious harm and affirm the judgment. Appellant was convicted of burglarizing a habitation with the intent to commit simple assault. She, her boyfriend Presto n Alexander, and a third man entered the home of Michael Ray (the victim) without hi s consent. They then assaulted him and vandalized his home. Though t he State indicted app ellant for the offense of burglary with the intent to commit aggravated assault, it was not the only accusation submitted to the jury. The trial court also charged it on t he lesser offense of burglary with intent to commit simple assault. However, it omitted from its verdic t form a provision allowing the jury to find appellant not guilty of the lesse r offense, though such provision was made

viz the greater crime. No one obje cted to the omissi on. Thus, under Almanza , we need only decide whether the omission constituted egregious harm. Almanza v. State, 686 S.W.2d at 171. And, that obligates us to review the en tire jury charge, the state of the evidence, the argument of counsel, and any other relevant information. Id. As previously mentioned, the trial court charged the jury on both the greater and lesser offense. Furthermore, the jurors we re directed to “acquit the defendant and say by your verdict not guilty” if they had a reasonable doubt “that the defendant [was] guilty

of any offense . . . .” (Emphasis added). So too were the jurors told that the presumption of innocence “alone [was] su fficient to acquit the defendant, unless the jurors are satisfied beyond a reasonable doubt of the defendant’s guilt . . .” and that the burden lay with the prosecution to prove guilt “beyond a reasonabl e doubt and, if it fails3 to do so, you will find the defendant not guilty of that offense.” (Emphasis added). These instructions, which we must presume were followed, Williams v. State, 937 S.W.2d 479, 490 (Tex. Crim. App. 1996), made it clear to the jury that it had the option to acquit appellant of both the greater and lesser offense if it so chose. So, it cannot be said that the jurors were somehow duped into believing that they had to convict her for something. See Boyett v. State, 692 S.W.2d 512, 516 (Tex. Cr im. App. 1985) (stating that a jury instruction to acquit if the jury had a “reasonable doubt as to defendant’s guilt after considering all the evidence before y ou and these instructions” is in essence the

same as an instruction to ac quit “if it has a reasonable doubt as to whether appellant is guilty of any offense” and as a whol e adequately instru cts the jury). Moreover, the evidence at tr ial consisted of testimony fr om Michael Ray, his wife, and two police officers. Ray testified that 1) appellant had previously threatened him, 2) appellant and Alexander came into his hom e without consent, and 3) both appellant and

Alexander assaulted him and th reatened to come back if he called the police. Also admitted into evidence were photographs of Ray’s injuries and testimony about the house being ransacked. Appellant ackno wledged, via her attorney during closing argument, that some altercation had occurred. Indeed, it seemed as if her focus lay upon whether appellant’s home was a business, which wa s an element common to both offenses. And though the evidence indicat ed the victim conduct ed business from his home, it also illustrated that he resided there. If this was indeed a matter in question for the jury, it knew, via the court’s instructions , that it could acquit appellant of both offenses if the locale was truly not a residence as charged.4 So, given the statements in the char ge regarding the State’s burden, the obligation to forego conviction for any offens e if any reasonable doubt of guilt existed, and the large quantum of evidence establishi ng appellant’s guilt of the lesser offense, we cannot say that appellant suffered egregi ous harm due to the omission of the “not guilty” form in question. The judgment is affirmed.

Brian Quinn Chief Justice

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