Delvetra Lasherl Jennings v. The State of Texas--Appeal from 64th District Court of Hale CountyAnnotate this Case
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
JUNE 4, 2010
DELVETRA LASHERL JENNINGS,
THE STATE OF TEXAS,
FROM THE 64TH DISTRICT COURT OF HALE COUNTY;
NO. A17382-0710; HONORABLE ROBERT W. KINKAID JR., PRESIDING
Memorandum Opinion on
Remand from Court of Criminal
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Before us is the second chapter of Jennings v. State. In the first, we concluded
that because she failed to object, appellant waived her complaint about omitting from
the verdict form reference to the possibility of her being “not guilty” of the lesserincluded offense, that is, the offense of which she was convicted. Upon negating its
own precedent holding otherwise, the Court of Criminal Appeals concluded that an
objection was not needed to preserve the complaint.
See Jennings v. State, 302
S.W.3d 306, 310-11 (Tex. Crim. App. 2010). It further held that the omission constituted
charge error and remanded the cause to us for a harm analysis per Almanza v. State,
686 S.W.2d 157 (Tex. Crim. App. 1985). See Jennings v. State, 302 S.W.3d at 306.
We find no egregious harm and affirm the judgment.
Appellant was convicted of burglarizing a habitation with the intent to commit
simple assault. She, her boyfriend Preston Alexander, and a third man entered the
home of Michael Ray (the victim) without his consent. They then assaulted him and
vandalized his home. Though the State indicted appellant for the offense of burglary
with the intent to commit aggravated assault, it was not the only accusation submitted to
the jury. The trial court also charged it on the lesser offense of burglary with intent to
commit simple assault. However, it omitted from its verdict form a provision allowing the
jury to find appellant not guilty of the lesser offense, though such provision was made
viz the greater crime. No one objected to the omission. Thus, under Almanza, we need
only decide whether the omission constituted egregious harm. Almanza v. State, 686
S.W.2d at 171. And, that obligates us to review the entire jury charge, the state of the
evidence, the argument of counsel, and any other relevant information. Id.
As previously mentioned, the trial court charged the jury on both the greater and
lesser offense. Furthermore, the jurors were directed to “acquit the defendant and say
by your verdict not guilty” if they had a reasonable doubt “that the defendant [was] guilty
of any offense . . . .”
So too were the jurors told that the
presumption of innocence “alone [was] sufficient to acquit the defendant, unless the
jurors are satisfied beyond a reasonable doubt of the defendant’s guilt . . .” and that the
burden lay with the prosecution to prove guilt “beyond a reasonable doubt and, if it fails
to do so, you will find the defendant not guilty of that offense.” (Emphasis added).
These instructions, which we must presume were followed, Williams v. State, 937
S.W.2d 479, 490 (Tex. Crim. App. 1996), made it clear to the jury that it had the option
to acquit appellant of both the greater and lesser offense if it so chose. So, it cannot be
said that the jurors were somehow duped into believing that they had to convict her for
something. See Boyett v. State, 692 S.W.2d 512, 516 (Tex. Crim. App. 1985) (stating
that a jury instruction to acquit if the jury had a “reasonable doubt as to defendant’s guilt
after considering all the evidence before you and these instructions” is in essence the
same as an instruction to acquit “if it has a reasonable doubt as to whether appellant is
guilty of any offense” and as a whole adequately instructs the jury).
Moreover, the evidence at trial consisted of testimony from Michael Ray, his wife,
and two police officers. Ray testified that 1) appellant had previously threatened him, 2)
appellant and Alexander came into his home without consent, and 3) both appellant and
Alexander assaulted him and threatened to come back if he called the police. Also
admitted into evidence were photographs of Ray’s injuries and testimony about the
house being ransacked.
Appellant acknowledged, via her attorney during closing
argument, that some altercation had occurred. Indeed, it seemed as if her focus lay
upon whether appellant’s home was a business, which was an element common to both
offenses. And though the evidence indicated the victim conducted business from his
home, it also illustrated that he resided there. If this was indeed a matter in question for
the jury, it knew, via the court’s instructions, that it could acquit appellant of both
offenses if the locale was truly not a residence as charged.
So, given the statements in the charge regarding the State’s burden, the
obligation to forego conviction for any offense if any reasonable doubt of guilt existed,
and the large quantum of evidence establishing appellant’s guilt of the lesser offense,
we cannot say that appellant suffered egregious harm due to the omission of the “not
guilty” form in question. The judgment is affirmed.
Do not publish.