### IN THE TENTH COURT OF APPEALS
No. 10
- 17

- 00101
- CR JAMES EDWARD JONES , Appellant v. THE STATE OF TEXAS , Appellee

From the 13th District Court Navarro County, Texas Trial Court No. D34884
- CR

MEMORANDUM OPINION
James Edward Jones was convicted of burglary of a habitation and sentenced to 18 years in prison. See T EX

. P ENAL C ODE A NN . § 30.02(c)(2) (West 2011 ). In three issues, Jones contends he was egregiously harmed by the trial court’s failure to include three instructions in its charge on punishment to the jury. Because Jones was not egregiously harmed, we affirm t he trial court’s judgment.
B ACKGROUND Jones was accused of burglarizing a camper/trailer in which Walter Hartsfield andJones v. State Page 2

his wife would stay in overnight on most weekends. Two accomplices testified as to Jones’ s involvement in the burglary. Two other witnesses testified that Jones and one of the accomplices sold televisions to them which were stolen from the camper/trailer.
P UNISHMENT I NSTRUCTIONS At the punishment phase of a trial, the trial court is required to include certain
instructions in the charge to the jury. See T EX

. C ODE C RIM

. P ROC

. A NN . art. 37.07, secs. 3 & 4 (West 2006 ). Jones asserts that three of these required instructions were omitted from the charge to the jury at the punishment phase of hi s trial: the parole and good time instruction, see i d . sec. 4(c); the unanimous verdict instruction, see id . sec. 3(c); and the
extraneous offense / belief beyond a reasonable doubt instruction, see id . sec. 3(a)(1). The State concedes that the jury charg e was erroneous in that it omitted the parole/good conduct time instruction and the unanimous verdict instruction. We agree. See Luquis v. State , 72 S.W.3d 355, 363 (Tex. Crim. App. 2002) (parole/good conduct time instruction); Sanchez v. State , 23 S.W.3d 30, 34 (Tex. Crim. App. 2000) (explaining that

a rticle 37.07, § 3(c) requires the jury to unanimously agree as to the amount of punishment for the purpose of ensuring “ thorough jury deliberation does not cease once a simple majority is achieved ...”).
The State does c ontest the necessity of the extraneous offense/beyond a reasonable
doubt instruction , arguing no extraneous offense evidence was admitted during the punishment phase of the trial. However, at the end of Jones’ s testimony, he pointed to

a n affidavit prepared by Amanda Henderson, an accomplice , in which she took responsibility for an extraneous burglary , evidence of which was admitted duringJones v. State Page 3

guilt/innocence , and informed the jury that “what she wrote here ain’t true.” On cross

examination, the State asked Jones if he just told the jury that he committed the

extraneous burglary for which Amanda had taken responsibility. Jones replied, “She lied about that. She didn’t do it. I did, yes.” Accordingly, because one of the complained

- of

extra neous offense s was admitted in the punishment phase of Jones’s trial, the trial court was required to instruct the jury on the reasonable doubt standard of proof co ncerning
the extraneous offense

. Allen v. State , 47 S.W.3d 47, 50 ( Tex. Crim. App. 2001 ) ; Huizar v.
State , 12 S.W.3d 479, 483, 484 (Tex. Crim. App. 2000) (op. on reh'g). Because the trial court omitted the instruction, it erred. Egregious Harm Jones admits he made no objections to any of the complained

- of omissions; and
the State does not disa gree
. 1 Under Almanza v. State , unobjected

- to jury charge error will not result in reversal of a conviction in the absence of "egregious harm." Almanza v. State , 686 S.W.2d 157 , 171 (Tex. Crim. App. 1985). Jury charge error is egregiously harmful if it affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory. Stuhler v. State , 218 S.W.3d 706, 719 (Tex. Crim. App. 2007). In examining the record for egregious harm, we consider the entire jury charge, the state of the evidence, the arguments of the parties, and any other relevant information revealed by the record of the trial as a whole. Olivas v. State , 202 S.W.3d 137, 14 4 (Tex. Crim. App.

1 We cannot confirm that no objections were made to the charge on punishment because our record does not include the charge conference at punishment. Because the State does not contest Jones’ s admission, we assume it is correct.Jones v. State Page 4

2006). The purpose of this review is to illuminate the actual, not just theoretical, harm to
the accus ed. Almanza , 686 S.W.2d at 174; Allen v. State , 47 S.W.3d 47, 51 (Tex. App.

— Fort
Worth 2001 , pet. ref’d )

. Application Although t h e punishment charge consisted of only a few paragraphs , the charge on guilt/innocence contained the appropriate definitions and instructions for the offense, including extraneous offense/reasonable doubt and unanimous verdict instructions . At guilt/innoce nce, Jones ’s theory was that , because of his mental health disorders and the
violent nature of Amanda , Jones was not capable of committing the offense , but Amanda was capable of committing the offense and blaming Jones for it. At the punishment phase, the State introduced a long list of convictions Jones received over the years without objection from Jones. Those convictions in cluded burglary, false report, t heft, criminal mischief, criminal trespass, DWI, driving while license invalid, possession of mari juana, possession of a controlled substance in a correctional facility, and violation of the Clean Air Act (burning copper). Because they were convictions and not unadjudicated
extraneous offenses , they did not require further proof of Jones’s guilt beyon d a
reasonable doubt

. See Bluitt v. State , 137 S.W.3d 51, 54 (Tex. Crim. App. 2004)

. Jones also admitted to being arrested for domestic violence and admitted to committing the complained

- of extraneous burglary

. Further, th ere was nothing in the record that shows the jury inquired about or considered the effects of parole law or good conduct time. And, when the jury returned
its verdict on punishment , the trial court confirmed that the verdict was unanimous.Jones v. State Page 5

A lthough Jones argues that , based on Ngo v. State , 175 S.W.3d 738 (Tex. Crim. App. 2005) , he was actually harmed due to the lack of a unanimity instruction, the S tate distinguished Ngo , stating that unlike in Ngo , the trial court in this case did not specifically state , and the prosecutor did no t argue , that a unanimo us punishment verdict was not required. 2
C ONCLUSION Based on this record, we cannot say that Jones was egregiously harmed by the omitted instructions. Accordingly, Jones’ s three issues are overruled, and the trial court’s judgment is affirmed.

TOM GRAY Chief Justice Before Chief Justice Gray, Justice Davis, and Justice Scoggins Affirmed Opinion delivered and filed October 31 , 2018 Do not publish [CR25]

2 The Court’s record does not include the punishment charge conference, the reading of the charge, or the arguments of counsel. Jones does not dispute the State’s characterization of the State’s argument; thus, we accept the State’s characterization.