Clarence B. Honer v. The State of Texas--Appeal from 180th District Court of Harris County

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Opinion to: SJR TGT SN TJ EVK ERA GCH LCH JB

Opinion issued January 4, 2007



In The

Court of Appeals

For The

First District of Texas


NOS. 01-05-01143-CR

01-05-01144-CR


CLARENCE B. HONER, Appellant

V.

THE STATE OF TEXAS, Appellee


On Appeal from the 180th District Court

HarrisCounty, Texas

Trial Court Cause Nos. 999877 & 999878



MEMORANDUM OPINION

A jury convicted Clarence Honer of two felony offenses: (1) possession with intent to deliver ecstasy in an amount weighing more than four grams but less than four hundred grams[1] and (2) possession with intent to deliver cocaine in an amount weighing four hundred grams or more.[2] The jury assessed punishment at thirty-seven years confinement and a $10,000 fine for the ecstasy offense, and at thirty-five years confinement and a $50,000 fine for the cocaine offense. Honer raises a single issue on appeal, contending that the trial court erred in the punishment phase of trial by failing to sua sponte instruct the jury that it could not consider evidence offered by the State of extraneous crimes or bad acts unless it believed beyond a reasonable doubt that Honer had in fact committed the alleged prior crimes or bad acts. See Tex. Code Crim. Proc. Ann. art. 37.07, 3(a)(1) (Vernon 2006). We affirm.

Background

In September 2004, during a routine traffic stop near Baytown, Officer O. Jacobs arrested Honer after discovering 127.91 grams of ecstasy and 991.46 grams of cocaine in the vehicle Honer was driving. The State indicted Honer on two felony counts of possession with intent to deliver a controlled substance. The jury found Honer guilty of both counts.

During the sentencing phase, the State called Officer Jacobs to testify. Jacobs testified that he had asked Honer about his criminal status while he was driving Honer to the police station. Honer informed Jacobs that he was on federal probation for a drug trafficking charge. The State also introduced into evidence and played for the jury a videotape from Jacobs s patrol car containing a recording of the conversation, which corroborated Jacobs s account of Honer s statements.

Defense counsel objected to this evidence on the ground that the conversation between Honer and Jacobs had occurred too long after Honer received his Miranda[3] warnings. The trial court overruled the objection and allowed the jury to hear the evidence.

Honer did not object to the trial court s charge. The jury assessed punishment at thirty-seven years confinement and a $10,000 fine for the ecstasy offense, and at thirty-five years confinement and a $50,000 fine for the cocaine offense. This appeal followed.

Analysis

Honer contends that the trial court erred in failing to instruct the jury at sentencing not to consider evidence offered by the State of extraneous crimes or bad acts committed by Honer unless it concluded beyond a reasonable doubt that Honer had committed the alleged crimes or bad acts.[4] See Tex. Code Crim. Proc. Ann. art. 37.07, 3(a)(1). Specifically, Honer maintains that the trial court should have given such an instruction sua sponte because the State introduced evidence at sentencing of a past drug trafficking offense via Officer Jacobs s testimony recounting Honer s admission and the corresponding videotape of Honer s discussion with Jacobs in the police car. Both Officer Jacobs s testimony and the videotape recording of the conversation reflect that Honer told Jacobs that he was currently on federal probation for a prior drug trafficking offense. Honer did not request such an instruction, but he asserts that the trial court s failure to instruct the jury resulted in egregious harm.

Honer relies on Huizar v. State, in which the Court of Criminal Appeals held that Texas Code of Criminal Procedure article 37.07, section 3(a) requires trial courts to give juries a reasonable doubt instruction sua sponte when evidence of prior extraneous offenses or bad acts is introduced at sentencing. 12 S.W.3d 479, 484 (Tex. Crim. App. 2000). Honer, however, fails to discuss Bluitt v. State, in which the Court of Criminal Appeals clarified the type of evidence that triggers the requirement for a reasonable doubt instruction. 137 S.W.3d 51, 54 (Tex. Crim. App. 2004).

In Bluitt, the Court of Criminal Appeals explained that article 37.03, section 3 requires that the jury be given a reasonable doubt instruction only for unadjudicated offenses or bad acts. Id. When the State offers evidence of a prior conviction, a reasonable doubt instruction is not required because the very fact of conviction is evidence that the burden of proving guilt beyond a reasonable doubt has already been met in a prior proceeding. Id. Thus, [i]f an offense has been subject to such scrutiny and the burden of proof has been met, . . . it is part of a defendant s criminal record, and Art. 37.03, 3, does not require further proof of guilt beyond a reasonable doubt. Id.

In this case, the State offered evidence indicating that Honer was on probation for a past drug trafficking offense. As the Bluitt court stated, In any probation, the defendant has plead guilty or been found guilty by a judge or jury. . . . In . . . these circumstances, the burden of proof has been met. Thus, . . . no further proof of guilt is required. Id. Accordingly, we conclude that the trial court did not err in omitting a reasonable doubt instruction from the jury charge at sentencing.

Conclusion

We affirm the judgment of the trial court.

Jane Bland

Justice

Panel consists of Chief Justice Radack and Justices Alcala and Bland.

Do not publish. Tex. R. App. P. 47.2(b).


[1] See Tex. Health & Safety Code Ann. 481.103(a)(1) (Vernon Supp. 2006); id. 481.113(a), (d) (Vernon 2003).

[2] See id. 481.102(3)(d) (Vernon Supp. 2006); id. 481.112(a), (f) (Vernon 2003).

[3] Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966); see also Tex. Code Crim. Proc. Ann. art. 38.22, 2 (Vernon 2005).

[4] Although Honer did not object to the jury charge at trial, [a]n appellant may raise such unobjected-to charge error on appeal, but may not obtain a reversal for such error unless it resulted in egregious harm. Bluitt v. State, 137 S.W.3d 51, 53 (Tex. Crim. App. 2004).