Ruben Antonio Jaramillo v. The State of Texas--Appeal from 187th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-07-00102-CR
Ruben Antonio JARAMILLO,
Appellant
v.
The STATE of Texas,
Appellee
From the 187th Judicial District Court, Bexar County, Texas
Trial Court No. 2006-CR-0190
Honorable Pat Priest, Judge Presiding

Opinion by: Phylis J. Speedlin, Justice

 

Sitting: Alma L. L pez, Chief Justice

Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

 

Delivered and Filed: September 12, 2007

 

AFFIRMED

Jaramillo appeals his conviction for aggravated robbery of an elderly person, arguing the trial court erred in submitting an extraneous offense instruction to the jury that was too broad. We overrule his sole issue on appeal, and affirm the trial court's judgment.

 

Analysis

Jaramillo was charged with and convicted of the aggravated robbery of Zulema Huerta, a 74 year old woman, by shocking her with a stun gun during the course of committing theft of property. See Tex. Penal Code Ann. 29.03(a)(3)(A) (Vernon 2003). (1)

The jury assessed a sentence of forty-five years imprisonment, which was imposed by the court. In his sole issue on appeal, Jaramillo argues the extraneous offense instruction submitted in the jury charge was overly broad, and therefore permitted the jury to convict him on character conformity evidence in violation of Rule 404(b). Tex. R. Evid. 404(b) (providing that evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith, and designating certain limited purposes for which such evidence is admissible).

At trial, both Zulema and Ignacio Huerta identified their daughter's ex-boyfriend, Jaramillo, as the person who attacked them in their driveway with a stun gun, handcuffed them, and stole their van. In addition, the State admitted into evidence several items found at the scene: a stun gun; boxes of handcuffs; several letters written by Jaramillo to their daughter; a "to do" list; and a paycheck stub with Jaramillo's name. The "to do" list described the following plan: "pick up check cash it, buy stun gun and 4 sets of handcuffs rent trailer locate parents (mom and dad only) handcuff mom and dad pick up trailer with van drop off [at] mom's house about 8p - 9p. Lock gates head toward Mexico drop parents off in ditch . . . ." Finally, Zulema described the relationship between her daughter and Jaramillo, stating they had been "boyfriend and girlfriend" for several years, but that her daughter had tried to end the relationship during the last years; however, Jaramillo was "after her all the time." On cross-examination, Zulema Huerta testified to the following other crimes or bad acts by Jaramillo: (1) when her daughter told Jaramillo to leave her alone one time, he "took the knife at her;" (2) her daughter had recently gone into hiding with some friends because Jaramillo would threaten her and her parents; and (3) her daughter could not even come to her parents' house because she was afraid of Jaramillo. There was no defense objection; therefore, the extraneous offense evidence was not limited to any particular purpose at the time of its admission. When Jaramillo testified, he admitted that he had some protective orders with respect to Ms. Huerta's daughter but also stated that he did not mean to hurt her parents.

In the jury charge, the trial court included the following limiting instruction with respect to the extraneous offense evidence:

You are instructed that if there is any testimony before you in this case regarding the defendant's having committed acts of misconduct other than the offense alleged against him in the indictment in this case, you cannot consider said testimony for any purpose unless you find and believe beyond a reasonable doubt that the defendant committed such acts of misconduct, if any were committed, and even then you may only consider the same in determining the plan, identity, or absence of mistake by the defendant in connection with the offense alleged against him in the indictment in this case, and for no other purpose.

 

Jaramillo concedes, and the record confirms, that he did not object to the instruction, which he now challenges on appeal. Therefore, even if we determine that the instruction was erroneous, we may only reverse if Jaramillo has established that he suffered egregious harm as a result of the erroneous instruction. Skinner v. State, 956 S.W.2d 532, 544 (Tex. Crim. App. 1997) (egregious harm is "harm so great that appellant was denied a fair and impartial trial"); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). We conclude the instruction is not erroneous because the extraneous offense evidence could properly be considered for the purposes of proving "plan, identity or absence of mistake" by Jaramillo, all of which were legitimate issues raised by other evidence in the case. Rather than permitting the jury to consider the evidence for any purpose without restriction, which could have resulted in the jury using it as character conformity evidence as feared by Jaramillo, the trial court properly limited the jury's consideration of the evidence to a permissible purpose under Rule 404(b). See Tex. R. Evid. 404(b). Having found no error in the jury instruction, we need not conduct a harm analysis. Jaramillo's sole issue is overruled and the trial court's judgment is affirmed.

Phylis J. Speedlin, Justice

DO NOT PUBLISH

1. A second count in the indictment also charged Jaramillo with aggravated robbery against Zulema's husband Ignacio Huerta, but the cases were tried separately. The jury was instructed there was no robbery charge pertaining to Ignacio involved in this trial, and that any evidence pertaining to the alleged robbery of Ignacio was to be considered only as part of the circumstances surrounding the alleged robbery of Zulema.