### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 18
- 00703
- CR

Veronica Ann Arroyo, Appellant

v. The State of Texas, Appellee

FROM THE 340TH DISTRICT COURT OF TOM GREEN COUNTY NO. C
- 17
- 0314
- SB, THE HONORABLE BARBARA L. WALTHER, JUDGE PRESIDI NG

M E M O R A N D U M O P I N I O N
A jury convicted appellant Veronica Ann Arroyo of assault on a public servant and assessed her punishment, enhanced by a prior felony conviction, at confinement for twelve years in the Texas Department of Crimi na l Justice. See Tex. Penal Code §§ 12.42(a),
22.01 (a)(1), (b)(1). On appeal, appellant complains about a “ misstatement ” of the law by the trial court when it respond ed to an objection and error in the punishment charge. We affirm the trial court’s judgme n t o f conviction.

BACKGROU ND

The evidence at trial showed that Frank Flores and Kyle Green, patrol officers with the San Angelo Police Department, responded to appellant’s apartment for an “unknown problem” when appellant’s neighbor called police to rep or t “banging” in the ap artme nt next door and cracking of the shared wall between the apartments. Appellant , who was in the apartment2

with her three

- year - old daughter, answered the doo r when the officers knocked

. On making
cont act with appellant, t he o ffi ce rs noticed signs indicative of narcotics usage . A ppell ant w as “disheveled” and exhibited “erratic behavior”

— she was “uneasy,” “fidgety,” and “very talkative”

— and had an “excited pitch ” in her voice . The officers also noted that she had bloodshot eyes a nd d ilated pupils. Appellant gave the officers permiss ion t o enter the apartment to check on things.

On entering the apartment, the o fficers saw a large hole in the wall in the dining

area , hammer marks on the wall, and a hammer on the floor. T he offic er s also saw a nother big hole in the ceili ng of the closet with pieces of sheetrock on the floor . Appellant told the officers that she had recently caused the damage , explaining that she had been rob bed and had made the holes to put her child in to hide h er . 1 During their interaction with appellant, the officers saw a plastic baggy containing a green leafy substance believed to be marijuana and rolling papers in plain vie w on the top of the re friger ator

. After finding the contraband, t he office rs decided t o arrest appellant for possessi on of marijuana because t hey had concerns about the safety of the child given appellant’s “very erratic ” behavior

. They discussed making arrangements for the care of the young child with appellant. She ref used t o contact a family member or a friend and

e xpres sed that she preferred to have CPS take custody of her daughter. The officers contacted

1 Appellant g av e a continuousl y ch anging, som ewhat confusing, story about the robbery. She first indic a ted that t wo men had come into her apartment a nd robb ed her o f some Nike Air Jordan shoes. Officers found the shoes on the ground in front of her apartm ent. She nex t indicated that the robbers wer e a man and a woman and that she had thrown the shoes out the window to them.3

CPS and informed appellant that they were placing her under arrest and that one of the officers would remain at t he apa rtment wit h the child to await CPS while an other transported her to jail. 2

When Officer Flores reached for appellant ’s right hand to place her in handcuffs , appellant “became combative” and “lunged [ toward Officer Flores ] with both hands and grabbe d [his ] duty

- iss ue d holster, which had [his] pist ol, a nd began yanking on it. ” 3 Both officers responded by pushing appellant back into the wall to se cure her

. 4 The impact of the struggling trio damaged the dry wall. Appellant began “ flailing” and “twisti ng , ” f ighting t he officers. The officers took ap pella nt to the ground to gain control over her . She continued fighting the officers: “ kicking ,” “ thrashing ,” “punching,” and “ clawing .” She punched Officer Flores in the face, in the eye area, and scratche d his neck, lea v ing three bleeding scratch marks. Off icer Green was injured during the altercation when his eye struck the corner of a drawer that was on the floor. Ultimately, the officers secured appellant and were able to handcuff her.

Appellant was char g ed in a t w o - count indictment with assault o n a p ublic servant and attempt ing to take a weapon from a peace officer , both stemming from her altercation with Officer Flores

. See Tex. Penal Code §§ 22.01(a)(1), (b)(1) , 38.14 (b). At trial, t he three pa trol

o fficers t e stified, describing the e ncoun ter and ensu ing altercation with appellant. In addition, photographs of appellant’s apartmen t , showing the holes in the dining

- area wall and closet

2 By this time , Francisco Carril lo , a th ird patrol officer who was nearby when the dispatch call was made, had arrived on the scene. He ultimately t ra nsported appell ant to the jail

.

3 The evidence reflected that Officer Flores was a K

- 9 offic er, whose uniform differed from that of the typical patrol officer in that his firearm was holstered down lower on the outside of his thigh rather than on his utility be lt

. T h e holster was secur ed to his thigh with two elastic straps. A ccordin g to Office r Flores, a ppellant “yanked” with suc h force she dis placed the holster , moving it from the outside of his thigh to the front of his th i g h

.

4 Officer Car rillo explained that as soon a s appellant be came combative, he picked up the child and took her to the hallway “ to put her out of any poten tial fu rther ri sk of harm or injury. ”4

ceiling ; photographs of O fficer Flores and Officer Green , sh o wing t heir inju r ies ; and an audio record ing f

rom the body mic associated with the dashcam of Officer Green’s patrol car, chronicling the encounter , were admitted into evidence

. 5 The jury convicted appellant of assaulting Officer Flores but acquitted her o f att e mpting to take his weapon. At the begin ning of the punishment phase, a pp ellant pled true to the enhancement paragraph of the indictment , which alleged a prior conviction for escape

. A copy of a pen pack, which reflected appellant’s felony convicti o n for escape as well as t wo st ate

- jail felony convictions for p ossession of a controlled substance , was admitted without objection. A ppellant testified on her own behalf and called a psychologist to testify about her mental

- health issues. The jury found the e n hancement all egati on to be tru e and, pursuant to the repeat

- offender provision of the Penal Code, assessed her punishment a t twelve years in prison and a $500 fine. Appellant filed a motion for new trial , which the trial court denied. 6 See T e x. R. App. P . 21.8. T his appeal followed.

DISCUSSI ON Appellant raise s two points of error on appeal. First, she complains about a purportedly erroneous statement of law by the trial court when it r esponded to her objection during the State ’ s closing argument in th e p unishme nt p hase of trial. S e cond, she argues that the trial court ’ s omission of an instruction on the reasonable

- doubt burden of proof for extraneous offenses in the punishment charge caused her egregious harm.

5 The record reflects that Officer F l o res ’ s body mic was not working during the encounter with appellant

.

6 Appellant filed a tim ely motion for new trial and an unti mely amended motion for new trial, to which the S tate o b j ected. The tri al court conducted a hearing on the amended motion for new trial, allowing appellant to proceed on the untimel y motion ov er the S t ate’s objection, an d verbally denied the motion. The t rial court’s docket sheet reflects the denial o f the mo ti on but n o writt en order denying the motion appears in the record.5 Trial C ourt ’ s Statement
In h er first p o i n t of er ro r, appellant argues that s he suffered “sev ere harm” from the trial court’s purported misstatement of the law when the court implicitly overruled her objection during the prosecutor’s punishment argument.

D uring jury argument at the punishment p h ase of tr ia l, the following transpired:
[PROS ECUTOR] : You have got someone who has not only one prior felony

conviction, but three prior felony convictions. You have got someone, who the doctor testifies, whether she is on a narcotic or not or having a n episode o r n ot, is going to be unable to respo nd to a stre ssful situation. And so when they call it a bad decision, unfortunately, based on Dr. Wright ’ s testimony, this sounds like the only way that it ’ s ever going to end up. If she is not going to do s o mething t o g et better, then in any stressful s ituatio n she is going to react something like this. She is going to go for a gun or attack an officer or flail and scream and [resist] arrest. So

— [ APPELLANT ] : Your Honor, I object to the testimony about going fo r a

gun . This is not considering the conviction for att empti ng to take a weapon. Now, he is addressing it as if it is and that they should consider that she has been convicted of taking a weapon and I object to it, Your Honor. [PROSECUTOR] : I would ask t h e m to consider all the evidence from the

guilt/innocen ce ph ase as well as this phase; which I think is what the law is. THE COURT: The law is that you may consider any evidence admitted.

T he prosecutor then resumed jury argument, describing appellant a s “ som eone with a history of not being able to do what s he is supposed to do .”

To preserve a complaint for appellate review, a party must timely object and state the grounds for the objection with enough specificity to make the trial judge aware of the6

c o m p lai nt, unless the specific grounds were a pparent from the context. Tex. R. App. P. 33.1(a)(1)(A); see Thomas v. State , 505 S.W.3d 916, 924 (Tex. Crim. App. 2016)

. While it is not necessary to employ “magic words” or cit e to specific statutes or rules , a par ty m ust convey the substance of the co mplaint to t he tr ial court. Pena v. State , 353 S.W.3d 797, 807 (Tex. Crim. App. 2011) (citing Ford v. State, 305 S.W.3d 530, 533 (Tex. Crim. App. 2009) ) ; see Vasquez

v. State , 483 S.W.3d 550, 554 (Tex. Crim. App

. 2 016 ). A “general or imprecise objection” will not pr eserv e error “unless the legal basis for the objection is obvious to the court and to opposing counsel.” Vasquez , 483 S.W.3d at 554 (quoting Buchanan v. State , 207 S.W.3d 772, 775 (Tex. Crim. App. 20 0 6 ) )

. The record must make it clear that both the trial court and the opposing party understood the legal basis for the complaint. Thomas v. State , 408 S.W.3d 877, 884 (Tex. Crim. App. 2013); see Pena , 353 S.W.3d at 807.

While appellant alludes to “i m p r oper argu ment” in her briefing , we observe that her objection to the trial court did not communicate that she was complaining about improper jury argument by the prosecutor. Appellant objected to “testimony about going for a gun.” She stated n o l egal bas i s fo r th e objection, and the comments that fo llowe d her objection did not identify a legal basis for the objection. From the context of the exchange, it appears that the trial court and prosecutor understood appellant’s complaint to relate to w h a t eviden c e th e ju ry could properly consider during punishment d elibe rations. On the basis of the record before us, we cannot conclude that the trial court necessarily understood the nature of appellant ’ s objection to be an objection to improper jury argu m ent. S e e Vas quez , 483 S.W .3d at 554

.

M ore over , appellant’s specif ic ar gument on appeal is that the trial court ’s
statement in response to h er trial objection misstated the law because article 37.07 of the Code of Criminal P rocedure requires a jury to b e lieve b e yond a re asonable doubt that a defendant7

committed an extran eous bad act before considering it when assessing punishment , s ee Tex. Code Crim. Proc. art. 37.07, § 3(a)(1) (allowing either party to offer “any ot her evidence of an extraneous crime or bad act that i s s ho wn beyond a reasonable doubt by evidence to have been committed by the defendant or f or whic h he could be held criminally responsible”) , and that the trial court ’ s statement that the jury could consider “ any evidence admitted ” was a mis statement of t h e l aw that c aused h e r “severe harm

. ” However, appellant did not raise any complaint about the tri al court’s statement in the court below. Her only ob jecti on was to “ the testimony about going for a gun.” Because appellant did not object to the co u r t’s p urpo rted misstatement of the law at trial and, further, because her trial objection does not comport with her complaint on appeal, she failed to preserve for appellate re view any error in the trial court’s statement

. See Tex. R. App. P. 33.1(a)(1); H allma rk v . Sta t e , 541 S.W.3d 167, 171 (Tex. Crim. App. 2017) ( confirming that complaint on appeal must comport with trial objection to preserve err or); Thomas , 505 S.W.3d at 924 (“ If a trial objection does not comport with arguments on appeal , error has no t bee n pr eserv e d. ”)

.

Preservation of error is a systemic requirement on appeal. Darcy v. State , 488 S.W.3d 325, 327 (Tex. Crim. App. 2016); Beken dam v. State , 441 S.W.3d 295, 299 (Tex. Crim. App. 2 014). A reviewing court should not addre ss the merits o f an issu e th a t has not been preserved for appeal. Blackshear v. State , 385 S.W.3d 589, 590 (Tex. Crim. App. 2012); Wilson
v. State , 311 S.W.3d 45 2, 473

– 74 (Tex. Crim. App. 2010). Accordingly, we overr ule appellant ’ s first point of error d ue to lack of p reser vati on .8 Reasonable
- Doubt Instruction A trial court is statutorily obligated to instruct the jury on the “law applicable to the case.” See Tex. Code Crim. Proc. art. 36.14; Mendez v. State , 545 S.W.3d 548, 552 (Tex. Crim. A pp. 2018). The trial co urt’s d uty to i nstruct the jury on the “law applicable to the case” exists even when defense counsel fails to object to inclusions or exclusions in the charge. Mendez , 545 S.W.3d at 552; Vega v. S tate , 394 S.W.3d 5 14, 519 (Tex. Cri m. App. 20 1 3). The tria l court is “ul t imately responsible for the accuracy of the jury charge and accompanying instructions.” Mendez , 545 S.W.3d at 552 (quoting Delgado v. State , 235 S.W.3d 244, 249 (Tex. Crim. App. 200 7)).

We review a lleged jury

- charg e error in two steps: fi rst, w e de term i ne whether error exists; if so, we then evaluate whether sufficient harm resulted from the error to require reversal. Arteaga v. State , 521 S.W.3d 329, 333 (Tex. Crim. App. 2017); Ng o v. State , 175 S .W.3d 738, 743

– 44 (Tex. Cri m . App. 2005). The degr ee of harm required for reversal depends on whether the jury charge error was preserved in the trial court. Marshall v. State , 479 S.W.3d 840, 843 (Tex. Crim. App. 2016); see Almanza v. St ate , 686 S.W.2d 1 57, 171 (Tex. Cri m. App. 19 8 5) (op. on r eh’g) (set ting f orth procedure for appellate review of claim of jury charge error). If the charge error was not properly preserved by an objection or request for instruction, see Tex. Code Crim. Pro c. arts. 36.14, 3 6.15, as is the c ase here, t he error req uires

reve rsal o nly if it was “egregious” in that it “created such harm that the [defendant] was deprived of a fair and impartial trial.” Chambers v. State , 580 S.W.3d 149, 154 (Tex. Crim. App. 2019 );

see Almanza , 6 86 S.W.2d at 171.9 In her s econd point of err or, appel l ant contends that s he was egregiously harmed by the trial court’s omission of a reasonable

- doubt burden

- of

- proof instruction concerning extraneous offenses in the punishment charge.

Af ter a finding o f guilt, a t the p unishment phase of tri al, ev iden ce ma y be offered by both the State and the defendant pursuant to section 3(a ) (1) of article 37.07 of the Code of Criminal Procedure

. The statute , which governs the admissibility of e vidence at puni shment in all non

- capital cases , Rogers v . Stat e , 991 S.W .2d 263, 26 5 (Tex. Crim. App. 1999) , provides that:
evidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including but not limited to the prior criminal record of the defendant, h i s gen e ral rep utat ion , his c h aracter, an opinion regarding his character, the circumstances of the offense for which he is being tried, and

. . . any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to ha v e been commit ted by the def e ndant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act [.]

Tex. Code Crim. Proc. art. 37. 07, § 3(a)(1).

Although the stat u te doe s not ex pres sly requi r e a jury instruction concerning the burden of proof for extraneous offenses , the Court of Criminal Appeals has held that “such
instruct ion is logical ly required if th e jury is to consider extraneous

- offense and bad

- act evidence under the stat utor ily presc r ibed reasonable

- doubt standard.” Huizar v. State , 12 S.W.3d 479, 484 (Tex. Crim. App. 2000). Therefore, the trial court must sua spon te charge the jury under sectio n 3(a) when extraneous

- act evidence i s admitted in the punish m ent ph ase of t rial

. Huizar , 12 S.W.3d at 484; s ee Delgado , 235 S.W.3d at 252 ( confirming that article 37.07 “ is ‘ the law applicable ’ to all n on - capital punish ment proceedings ” so tri a l court “ must sua sponte instruct10

the jury at the punishment phase conc e rning that law , in cluding t h e fact that the State must prove any extraneous offenses beyond a reasonable doubt ” )

.

Appellan t relies on Huizar to argue that th e trial court was required to give a reasonable

- doubt burden

- o f

- proof instruction for extraneous offens es in th e pu nishment c harge
in this case. She contends that the absence of such an instruction in the charge combined wit h the State’s clos ing punishment argument (that, in a stressful situation appellant “is going to go for a gun”) allowed the ju r y to er roneousl y co nsider ev idence of appellant grabbing Officer Flores’s holstered weapon when assessing appellant ’ s pu nishment even thou gh the jury had

a cquitted her of the offense of attempting to take a weapon from a peace officer. Appellant
appears t o sugge st that th e State’s j ury argument rendered the evidence that appellant grabb ed the officer’s holstered weapon , ad mitted during the guilt

- innocence p hase of trial , an extraneous
matter under article 37.07, section 3(a) that entitled her to the requi r ed sua sponte

r ea so nable

- dou bt instruction in the punishment charge under Huizar

. We are unpersuaded by appellant ’ s argument. 7

First, appellant’s argum ent misconstrues the jury’s verdict. She assumes that the jury’s not

- guilty verdict represents a fi n ding th at appe ll an t did not e ngage in the conduct underlying the indictment allegation or described by the officers. However, as the United States Supreme Court has explained:

7 As an initial matter, we note that a trial court does no t

— and indee d could not

—have a duty to instruct the jury in its punishment charge based on a jury argument that had yet to occur. A n inst ruction o n the burden of proof as to extraneous offenses, and whether such an instruction is requi red to be given by th e trial cou rt sua sponte , depends on the trial evidence

. See Huizar v. St ate , 12 S.W.3d 479, 4 83

– 84 (Tex. Crim. App. 2000 ).11

[a]n a cquittal on crim inal charges does not prove that the defendant is innoce nt; it merely pro ves th e existence of a reasonable doubt as to his guilt. . . . [I] t is impossible to know exactly why a jury found a defendant not guilty on a certain charge. [A]n acquittal is not a finding of any fact. An acquittal can only be an ackn owle dgm ent that t he g ov ernment f ai led to prove an essential element of the offense beyond a reasonable doubt. Without specific jury findings, no one can logically or realistically draw any factual finding inferences

. Thus,

. . . the jury cannot be said to hav e ‘ necessari ly r ejected ’ an y facts when it returns a general verdict of not guilty.

United States v. Watts , 519 U.S. 148, 155 (1997) (internal quotation marks and citation omitted).

The acquittal here simply indicates that the jury did not unanim ousl y f ind tha t the evid e nce demonstrated beyond a reasonable doubt all the elements o f the alleged offense, which included not only that appellant engaged in the conduct described by the officers but that she d id so with the re quisite culpable mental stat e

— wi th the int ent to har m Officer Flores 8

— and that the conduct amounted to an attempt to take the weapon “with force

. ” Cf. Chadwick v. State , 277 S.W.3d 99, 107 (Tex. App.

— Austin 2009), aff ’ d , 309 S.W.3d 558 (T ex. Crim. App. 20 10) ( concluding that “pullin g on th e gun, an act tha t would tend to dislodge the weapon and thus allow [the defendant] to take possession and control of it, constitutes attempt to take the weapon”). Further, t he trial evidence was undisputed that , at the beginning of th e altercation wit h t he offi cers, in r e sisting her arrest, appellant grabbed Officer Flores’s holstered firearm. 9

8 Subseque nt to appellant’s trial, Penal Code section 38.14(b) was amended an d the language concerning the intent to harm the ind i vidual fro m whom the weapon was taken (or attempted to be taken) was remo ved from the statute, th er eby eliminat ing the in tent to harm as an element of the offense. See Act of May 22, 2019, 86th Leg., R.S., ch. 647 , § 1, 2019 Tex. Ge n. Law s

— , — ( current version at T e x. Penal C ode § 38.14(b))

.

9 In closing argument , appellant’s counsel c onced ed that appellant ha d “a hold o n” the holstere d weapon but argued the distinction between “ one of those grabs [ th at ] might end up on the holster, ” which he agreed was a “ hand on , a hold . . . ahold of ” the holster ed firearm , and attempt ing to take the firearm away “ with force. ”12

The dispute involved whether she reached for it with one or both hands, did so with the intent to harm Officer Flores, and attempted to rem ov e the firearm “wit h f orce.”
Seco nd , a ppellant’s argument is premised on a misunderstanding of the burden of proof concerning punishment evidence. Regarding evidence of an extraneous offense or bad act admitted during the punishment ph ase of trial purs u ant to article 37.0 7, the Cou rt of Crim i nal Appeals has explained that
the question at punishment is not whether the defendant has committed a crime, but instead what sentence should be assessed. Whereas the guilt

- innocence stage requir es the jury to fi n d the defendant gui lty beyond a reas onab le doubt of each element of the offense, the punishment phase requires the jury only find that these prior acts are attributable to the defendant beyond a reasonable doubt.

H aley v. State , 173 S.W. 3d 510, 515 (Tex. Crim. App. 2005 ). T hu s, to pr ove an extr aneous offense at punishment, the State is only required to prove beyond a reasonable doubt a defendant’s involvement in the bad act: a finding of guilt for a crime is not required. Id. ; Gomez
v. S tate , 380 S.W.3d 8 30, 838

– 39 (Tex . Ap p.

— Houston [14th Dis t .] 2012, pet. ref’d); see Haley , 173 S.W.3d at 515 (interpreting article 37.07 “to require the burden of proof to be applied to a defendant’s involvement in the act itself, instead of the elements of a crime necess a ry for a findin g of g uilt”) ; Hanson v. S tate , 269 S.W.3d 130, 133

– 34 (Tex. App.

— Amarillo 2008, no pet.) (“When an extraneous bad act is admitted for c onsiderati on duri ng the punishment phase, the jury is not required to assess whether a statutory crime occurred; rather, its ob ligation is to det e rmine, beyond a reasonable doubt, whether that appellant was involved in the bad act being offered as evidence .” ) ; Terre ll v. S tate , No. 03

- 06

- 00250

- CR, 2006 WL 3246504, at *4 (Tex. App.

— Austin Nov. 10, 2006, no pet.) (mem. op., no t de si gnated f or pub lica t ion) (observing that article 37.07 “requires ‘the burden of proof to be applied to a defendant’s involvement i n the act13

itself, instead of the elements of a crime necessary for a finding of guilt’” so that “ before the trier of fact can c onsider the ev iden c e in assessing punishment, ‘it must be satisfied beyond a
reasonable doubt that the acts are attributable to t he defenda nt’” ( q uoting Haley , 173 S.W.3d at 514

– 15) )

. Thus, the jury ’s failure to find the elements of the alleged offense of attempting to tak e a weapon from a peace officer beyond a reasonable doubt does not preclude the jury’s
consideration of appellant’s act of grabbing Officer Flores’s holstered firearm if the jury believed, beyond a reasonable doubt, that the act was a t tri butable to app ella nt.

However, in this case, th e “attributable to appellant” burden of proof does not appl y to the evidence of appellant grabbing the officer’s holster ed firea rm . As t his Court has previously explained, “ Huizar held that ar ticle 37.0 7 , s ection 3(a) is sta tutorily prescribed law applicable to the case at the penalty stage of the trial. The express language is specifically restricted to the penalty stage of the tr ial. ” Wright v. State , 212 S.W.3d 768, 779 (Tex. App.

— Austin 2 006, pet. r ef ’ d) (cit ing Hui zar , 12 S.W.3d at 483); see Delgado , 235 S.W.3d at 252 ( “ A rticle 37.07 “ is ‘ the law applicable ’ to all n on - capital punish ment proceedings

. ” (emphasis added) )

. Here, the evidence that appellant grabbed the officer’s holstered fi rearm was a dmi tted during th e gu ilt

- innocence p hase of trial. 10 It was not offered or admitted into evidence unde r article 3 7.07, section 3(a) during the punishment phase of trial

. Mo reover, the record reflects that it was not evidence of an extraneous of fense or ba d a ct. “An extr an eo us offense is a ny act of misconduct, whether resulting in prosecution or not, tha t is not sh own in the charging papers.” Manning v. State , 114 S.W.3d 92 2, 926 (Tex.

10 At t he guil t

- innoce nce phase of trial, Off ic er Flores testified that appellant “immediately lunged forward with both hands and grabbed my duty

- issued h olster, whi ch had my pistol, and began yanking on it.” Officer Green sai d that appellant “lunged at Offic er Flores’ [s] serv ice weapon and tried to un ho lster it.”14

Crim. App. 2003) (citing Rankin v. State , 953 S.W.2d 740, 741 (Tex. Crim . App. 1996)); acc ord Rodriguez v. State , 31 S.W.3d 772, 775 (Tex. App.

— Austin 2000), aff’d , 104 S .W.3d 87 (T ex. Crim. App. 2003). “It is an offense that is ‘ extra, beyo nd, or foreign to the offense for which the party is on trial. ’ ” Mannin g , 114 S.W. 3d at 926

– 27 (quo ti ng Powell v. Stat e , 137 S.W.3d 84, 89 (Tex. App.

— Tyler 2000) , re v ’ d on other gr ounds , 63 S.W.3d 435 (Tex. Crim. App. 2001)). In this case, the State charged appellant in a two

- count indictment. Count Two alleg ed tha t appellant “did th en a nd there, wit h the intention of harming Frank Flores, intentionally and knowing ly and with force attempt to take a firearm from Frank Flores, a peace officer.” So the evidence of appellant grabbing O fficer Flores ’s holste red weapon was not an extraneous a ct

— it

was ev id ence of the charged offense of attempting to take a weapon from a peace offi cer. Cf. i d. at 927 (“ If it is an offense for which the ac cused had no notice, based on the charging instrument, then it is extrane ous. ”); see also King v. Stat e , No

. 14

- 02

- 0020 4

- CR, 2003 WL 1884295, at *2 (Tex. App.

— Houston [14th Dist.] Apr. 1 7, 2003, no pet.) (mem. op., not designated for publication) (concluding that, i n consolidated case, evidence of misconduct charged in

one indi ctment is n ot evidence of ext raneo us misconduc t as t o any of indictments in consolidated case )

.

Furthermore, th e evidence of appe llant grabbing Officer Flores’s holstered
firearm constitute d “same transaction contextual evidence.” “ ‘ Same transaction con textual evi dence ’ ” refers to those events and ci rcum stances that are intertwined, inseparable parts of an
event t hat, if vie wed in isolation, would make no sense at all. ” Delgado , 235 S.W.3d at 253 ; see Devoe v. State , 354 S.W.3d 457, 469 (Tex. Crim. App. 20 11) (explai ning that evidence o f another crim e , w rong, or act is same transaction contextual evidence “ where ‘ sev eral crimes are in termixed, or blended with one another, or connected so that they form an indivisible criminal15

transaction, and full proof by testimony .

. . of any one of t hem cannot be g ive n without showing the others ’ ” (quoting Wyatt v. State , 23 S.W.3 d 18, 25 (T ex. Crim. App. 2000) )). Such evidence gives the jury information “essential to understanding the context and circumstances of event s which, al though legally sep ar ate offenses, a re blended or interwoven.” Camacho v. State , 864 S.W.2d 5 24, 534

– 3 5 (Tex. Cri m. App. 1993) ; see Devoe , 354 S.W.3d at 469 ( “ The jury is entitled to know all relevant surrounding facts and circumstances of the c harged offe nse. ” ).

Because sa me transaction con textual evidence serves to explain the circumstances surrounding the offens e, it falls within the “circumstances of the offense” language of article 37.07, section 3(a)(1) rather than the “other evidence of an extraneo us crime o r bad ac t” language of t h e s tatutory provision

. Screws v. State , — S.W.3d.

— , No. 11

- 18

- 00 183

- CR,
202 0 WL 3980192, at *5 (Tex. App.

— Eastland July 9, 2020, no pet.) ; Harper v. State , No. 05

- 15

- 01211

- CR, 2017 WL 541537, at *1

– 3 (Tex. A pp.

— Dallas Feb. 10, 2017, no pe t.) (mem. op., not designated for publication); cf. Worthy v. State , 312 S.W.3d 34 , 39 (Tex. Crim. App. 2010) (recognizing that “ ‘ same - transaction contextual evidence ’ is intrinsic to the offense; it is not ‘ an extraneous cri me or bad a ct ’ t o which [noti ce requirements o f] A rticle 37.07, § 3(g), explicitly refers ”)

. “ By its terms, sect ion 3(a)(1) ’ s reasonable

- doubt standard applies only to extraneous offenses and does not apply to evidence that arises in the ‘ circumstances of the offens e for which he is be ing tried. ’ ” L opez v. State , 515 S.W.3d 547, 552 (Tex. App.

— Houston [14th Dist.] 2017, pet. ref ’ d) (citing T e x. Code Cr i m. Proc. art

. 37.07, § 3(a)) ; s ee Bluitt v. State , 137 S.W.3d 51, 54 (Tex. Crim. App. 2004) (clarifying which types of a rticle 37. 07 pu nishment evide n ce r equire reasonable

- doubt instruction and observing that only ex traneous of fenses and bad acts have articulated burden of proof ) ; Donald v. State , 543 S.W.3d 466, 483

– 84 (Tex.16

App.

— Houston [14th Dist.] 2018, no pet.) ( “ The only type of [pu nishment] evid e nce that must be proved beyond a reasonable doubt is an unadjudica ted offense or bad act. ”)

.

Consequently , same transaction contextual evidence admitted or used during the punishment phase does not require a reasonab le

- doubt instruct ion un der section 3(a )(1) of article
37.07 nor does the trial court err in failing to g ive such an instruction sua sponte
. See Lopez , 515 S.W.3d at 552 (holding that reasonable

- doubt instruction is not required for “same

transact ion conte xt ual evidence” a dmitte d during pu nish ment phase ) ; Harper , 2017 WL 541537,
at *1

– 3 (same) ; Atkinson v. S tate , 404 S .W.3d 567, 575 (Tex. App.

— Houston [1st Dist.] 2010, pet. ref ’ d) ( conclud ing that appellant was not entitled to reasonable

- doubt inst ruction d ur ing punishment phase for same tr ansa ctio n contextual evidence admitted during guilt

- innocence phase ) ; Glockzin v. State , 220 S.W.3d 140, 15 1

– 5 2 (Tex. App.

— Waco 2007, pet. ref’d) ( same ) ; Garza v. State , 2 S.W.3d 331, 335 (Tex. App.

— San Antonio 19 99, pet. re f ’ d) (concludin g that , since sam e tr ansa ction contextual evidence is offered “ simply to explain the ci rcumstances of the offense, ” reasonable

- doubt instruction at punishment phase of trial is not required )

.

In this case, the evidence of appel lant grabbi ng Officer Flor es’s h olstered fi rear m ,

a lthough conduct forming the basis for a legally separate offen se, was conduct that was ble nded or interwoven with the charged offense of assault on a public servant

. Therefore, such evidence

was same tran saction con textual evidence and was not subje ct to the requirement of reasonable

- doubt instruction of article 37.07 under Huiz a r . See Lopez , 515 S.W.3d at 552

– 53 ;

s ee also Bluitt , 137 S.W.3d at 54 ; see e.g. , Martinez v. State , No. 01

- 09

- 00724

- CR,
2010 WL 724524, at *4 (Tex. App.

— Houston [1st Dist.] Ma rch 4, 2010, pet. ref ’ d) (mem. op., not designated for pu blication) ( concl uding that guilt

- innocence evidence of appel lant’s bad acts during course of aggravated robbery was same transaction contextual evidenc e ; thus, no17

reasonable

- doubt ins truction was re quir ed at punishment) ; Duchane v. State , No. 05

- 00

- 01141

- CR , 2002 WL 23285 1, at *5 (Tex. App.

— Dallas Feb. 8, 2002, no pet.) (mem. op., not designated for publication) ( hold ing that “same transaction contextual evidence” is not subject to rea sonable

doubt c harg e - instruction requirement o f article 37.07, section 3 (a) , so trial cou rt ’ s failure to sua sponte include instructi on in punis hment charge was not error )

.

For the above reasons, we conclude that the recor d does not support appellant’s

c ontention that an i nstruction on the burden of proof for extraneous offe nses was required in this

case. 11 Thus, the trial court did n ot err by not includ ing sua sponte the reasonable

- doubt instruction in the punishment charge

. Fi nding no error in the puni shment charge, we o verrule appellant ’ s second point of error. 12

11 W e also note that , for the same reasons, the State’s punishment argument that appellant wa s “ going to go for a gun ” was proper jury argument , and the trial court ’ s respon se to appellant’s objection du r in g t he prosecuto r’s punishment arg ument was not a misstatement of the law

. See Milton v. State , 57 2 S.W.3d 234, 239 (Tex. Crim. App. 2019) (explain ing that “ proper jury argument generall y falls within one of four areas: (1) summation of the evidence, (2) r ea sonable dedu ction from the evidence, (3) answer to an argument of opposing counsel, and (4) plea fo r law enforcement ”); Gaddis v. Sta te , 753 S.W.2d 396, 398 (Tex. Crim. App. 1988) ( rec ognizing that “ [c] oun s el is allowed wide latitude without limitation i n drawing infe rences from the evidence so long as the inferences drawn are reasonable, fair, legitima te , and offered i n good faith ”); see also Alexander v. State , 740 S.W.2d 749, 761 (T ex. Crim. App. 1987) ( “It is well settled that in assessing punishment th e jury may c onsider all of the evid ence adduced at the guilt stage of the trial.”) ; Wright v. Stat e , 212 S.W.3d 768 , 776 (Tex. App.

— Austin 2006, pet. ref’d) (observing that evidence f rom guilt phase of tr i al is “automatically” before jury at penalty phas e by operation of law, and jury may c onsider all evidence adduced at guilt

- innocence phase in assess in g defendant’s p unishment).

12 B ecause we conclude that no error exists in the punishment charge, we nee d not reach appellant ’ s claim that s he suffered “e gr egious harm. ” See Celis v. State , 41 6 S.W.3d 419, 423 (Tex. Crim. App. 2013); Barrios v. State , 283 S .W.3d 348, 353 (Tex. Crim. App. 2009).18 CON CLUSION Having concluded that appellant failed to preserve for appellate review her complai nt about the trial court ’ s p urportedly erroneous statement when r espon ding to appellant’s object ion during the p rosecuto r ’ s jury argument and that the trial court did not err in failing to include sua sponte a reasonab le

- doubt inst ruction on the bu rd en of proof for extraneous offenses in the punishment charge , we affi rm the tria l court’s judgment of conv iction

.

___________ _______________________________ Edward Smith , Justice Before C hief Justi ce Rose, J ustices Tri ana and Smith Affirmed Filed: September 30, 2020 Do Not Publish