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 TEX. PENAL CODE ANN. § 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 the trial court’s judgment.

BACKGROUND

Jones was accused of burglarizing a camper/trailer in which Walter Hartsfield and 
Jones 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. 

PUNISHMENT INSTRUCTIONS

At the punishment phase of a trial, the trial court is required to include certain 

instructions in the charge to the jury. See TEX. CODE CRIM. PROC. ANN. 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 his trial: the parole and good time 

instruction, see id. 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 charge 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 

article 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 contest 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 

an affidavit prepared by Amanda Henderson, an accomplice, in which she took 

responsibility for an extraneous burglary, evidence of which was admitted during 
Jones v. State Page 3

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

extraneous offenses 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 concerning 

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 disagree.

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, 144 (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 accused. 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 the 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/innocence, 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 included burglary, false report, theft, criminal 

mischief, criminal trespass, DWI, driving while license invalid, possession of marijuana, 

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 beyond 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, there 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

Although 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 State distinguished 

Ngo, stating that unlike in Ngo, the trial court in this case did not specifically state, and 

the prosecutor did not argue, that a unanimous punishment verdict was not required.2

CONCLUSION

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.