NO. 07-08-00087-CR 

IN THE COURT OF APPEALS 

FOR THE SEVENTH DISTRICT OF TEXAS 

AT AMARILLO 

PANEL D 

JUNE 4, 2010 

DELVETRA LASHERL 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 complaint about omitting from 

the verdict form reference to the possibility of her being “not guilty” of the lesserincluded offense, that is, the offense of which she was convicted. Upon negating its 

own precedent holding otherwise, the Court of Criminal Appeals concluded that an 

objection was not needed to preserve the complaint. See Jennings v. State, 302 
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S.W.3d 306, 310-11 (Tex. Crim. App. 2010). It further held that the omission 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 Preston Alexander, and a third man entered the 

home of Michael Ray (the victim) without his consent. They then assaulted him and 

vandalized his home. Though the State indicted appellant 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 the lesser offense of burglary with intent to 

commit simple assault. However, it omitted from its verdict form a provision allowing the 

jury to find appellant not guilty of the lesser offense, though such provision was made 

viz the greater crime. No one objected to the omission. 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 entire 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 were 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] sufficient 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 reasonable doubt and, if it fails 
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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. Crim. 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 you and these instructions” is in essence the 

same as an instruction to acquit “if it has a reasonable doubt as to whether appellant is 

guilty of any offense” and as a whole adequately instructs the jury). 

 Moreover, the evidence at trial consisted of testimony from Michael Ray, his wife, 

and two police officers. Ray testified that 1) appellant had previously threatened him, 2) 

appellant and Alexander came into his home without consent, and 3) both appellant and 

Alexander assaulted him and threatened 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 acknowledged, 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 was an element common to both 

offenses. And though the evidence indicated the victim conducted 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. 
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 So, given the statements in the charge regarding the State’s burden, the 

obligation to forego conviction for any offense if any reasonable doubt of guilt existed, 

and the large quantum of evidence establishing appellant’s guilt of the lesser offense, 

we cannot say that appellant suffered egregious harm due to the omission of the “not 

guilty” form in question. The judgment is affirmed. 

 Brian Quinn 

 Chief Justice 

Do not publish.