burden of proof instruction in Texas

2013Id.

2009See Huizar v. State , 12 S.W.3d 479, 484 (Tex. Crim.

2012Underwriters, 157 Tex. 475 , 304 S.W.2d 265, 266 (1957) (per curiam)); (2) the failure to give mandatory statutory admonishments in a juvenile delinquency proceeding, id. (citing In re C.O.S., 988 S.W.2d 760, 767 (Tex. 1999)); and (3) the constitutionality of the burden of proof instruction in a juvenile delinquency proceeding, id. (citing State v. Santana, 444 S.W.2d 614, 615 (Tex. 1969)).

2003See In re C.O.S., 988 S.W.2d at 767 (reviewing a trial court’s failure to give mandatory statutory admonishments in a juvenile delinquency proceeding); State v. Santana, 444 S.W.2d 614, 615 (Tex.1969), vacated on other grounds, 397 U.S. 596 , 90 S.Ct. 1350 , 25 L.Ed.2d 594 , on remand, 457 S.W.2d 275 (Tex.1970) (reviewing the constitutionality of the burden of proof instruction in a juvenile delinquency proceeding).

2010See Escovedo v. State, 902 S.W.2d 109, 115 (Tex.App.-Houston [1st Dist.] 1995, pet. refd) (finding no indication that jury would have “disregarded or discounted the extraneous offense[s] and assessed a lighter sentence with a burden of proof instruction”); Yates v. State, 917 S.W.2d 915, 923 (Tex.App.-Corpus Christi 1996, pet. refd) (holding that if only one extraneous offense is contested, failure to give burden of proof instruction does not create egregious harm when numerous other extraneous offenses are included in testimony).

2009See Escovedo v. State , 902 S.W.2d 109, 115 (Tex. App.--Houston [1st Dist.] 1995, pet. ref'd) (finding no indication that jury would have "disregarded or discounted the extraneous offense[s] and assessed a lighter sentence with a burden of proof instruction" ); Yates v. State , 917 S.W.2d 915, 923 (Tex. App.--Corpus Christi 1996, pet. ref'd) (holding that if only one extraneous offense is contested, failure to give burden of proof instruction does not create egregious harm when numerous other extraneous offenses are included in testimony).

2012“As long as the punishment charge properly requires the State to prove the special issues, other than the mitigation issue, beyond a reasonable doubt, there is no unfairness in not having a burden of proof instruction concerning extraneous offenses.” Ladd v. State, 3 S.W.3d 547, 574-75 (Tex. Crim.

2012"As long as the punishment charge properly requires the State to prove the special issues, other than the mitigation issue, beyond a reasonable doubt, there is no unfairness in not having a burden of proof instruction concerning extraneous offenses." Ladd v. State , 3 S.W.3d 547, 574-75 (Tex. Crim.

2024See Loge v. State, 550 S.W.3d 366, 384 (Tex. App.—Houston [14th Dist.] 2018, no pet.) (lack-of-reasonable-doubt instruction in punishment phase not egregious harm when “the charge generally told the jury that the State had the burden of proof throughout the trial”); Cf. Zarco v. State, 210 S.W.3d 816, 827 (Tex. App.—Houston [14th Dist.] 2006, no pet.) (no egregious harm in absence of reasonable-doubt instruction 7 although no new evidence was received in punishment phase).

2024See Loge v. State, 550 S.W.3d 366, 384 (Tex. App.—Houston [14th Dist.] 2018, no pet.) 5 (lack-of-reasonable-doubt instruction in punishment phase not egregious harm when “the charge generally told the jury that the State had the burden of proof throughout the trial”); Cf. Zarco v. State, 210 S.W.3d 816, 827 (Tex. App.—Houston [14th Dist.] 2006, no pet.) (no egregious harm in absence of reasonable-doubt instruction although no new evidence was received in punishment phase).

2011The Evidence "In examining whether egregious harm occurred from the failure to include the burden-of-proof instruction for unadjudicated extraneous offenses admitted in the punishment phase of trial," we may "compare the evidence related to the unadjudicated extraneous offenses with the other guilt and punishment evidence in the case." Id. at 368 ; see Escovedo v. State, 902 S.W.2d 109, 115 (Tex. App.—Houston [1st Dist.] 1995, pet. ref'd) (finding no indication that jury would have "disregarded or discounted the extraneous offense[s] and assessed a lighter sentence with a burden of proof 2 In

2010See Escovedo v. State, 902 S.W.2d 109, 115 (Tex.App.-Houston [1st Dist.] 1995, pet. refd) (finding no indication that jury would have “disregarded or discounted the extraneous offense[s] and assessed a lighter sentence with a burden of proof instruction”); Yates v. State, 917 S.W.2d 915, 923 (Tex.App.-Corpus Christi 1996, pet. refd) (holding that if only one extraneous offense is contested, failure to give burden of proof instruction does not create egregious harm when numerous other extraneous offenses are included in testimony).

2010Bluitt v. State, 137 S.W.3d 51, 54 (Tex.Crim.App.2004) (“While the prior convictions must be properly proved, to require that prior convictions be re-proved beyond a reasonable doubt would be an absurd result, as the very fact of conviction is evidence that the burden of proving guilt *367 beyond a reasonable doubt has already been met in a prior proceeding.”)- The trial court did err, however, in failing to include a burden of proof instruction concerning the unadjudicated offenses introduced in the punishment phase of trial, which include evidence that appellant assaulted DeJesus in August 2

2010Bluitt v. State, 137 S.W.3d 51, 54 (Tex.Crim.App.2004) (“While the prior convictions must be properly proved, to require that prior convictions be re-proved beyond a reasonable doubt would be an absurd result, as the very fact of conviction is evidence that the burden of proving guilt *367 beyond a reasonable doubt has already been met in a prior proceeding.”)- The trial court did err, however, in failing to include a burden of proof instruction concerning the unadjudicated offenses introduced in the punishment phase of trial, which include evidence that appellant assaulted DeJesus in August 2

2014A. Standard of review Appellant and the State agree that because appellant’s trial counsel failed to object to the trial court’s error in omitting the burden-of-proof instruction, we review the error under the egregious harm standard announced in Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim.

2003However, when an appellant fails to object to the charge, that appellant must show the harm was so egregious that he A has not had a fair and impartial trial. @ Almanza v. State , 686 S.W.2d 157 , 171 B 72 (Tex. Crim .

2008See Olivas , 202 S.W.3d at 148 (finding that any harm caused by a jury charge that lacks a burden of proof instruction is lessened when the defense counsel correctly instructed the jury on the burden of proof issue).

2008See Olivas, 202 S.W.3d at 148 (finding that any harm caused by a jury charge that 20 lacks a burden of proof instruction is lessened when the defense counsel correctly instructed the jury on the burden of proof issue).

2012Underwriters, 157 Tex. 475 , 304 S.W.2d 265, 266 (1957) (per curiam)); (2) the failure to give mandatory statutory admonishments in a juvenile delinquency proceeding, id. (citing In re C.O.S., 988 S.W.2d 760, 767 (Tex. 1999)); and (3) the constitutionality of the burden of proof instruction in a juvenile delinquency proceeding, id. (citing State v. Santana, 444 S.W.2d 614, 615 (Tex. 1969)).

2012Underwriters, 157 Tex. 475 , 304 S.W.2d 265, 266 (1957) (per curiam)); (2) the failure to give mandatory statutory admonishments in a juvenile delinquency proceeding, id. (citing In re C.O.S., 988 S.W.2d 760, 767 (Tex. 1999)); and (3) the constitutionality of the burden of proof instruction in a juvenile delinquency proceeding, id. (citing State v. Santana, 444 S.W.2d 614, 615 (Tex. 1969)).

2009See McClenton v. State , 167 S.W.3d 86 (Tex. App.--Waco 2005, no pet.); Bolden v. State , 73 S.W.3d 428 (Tex. App.--Houston [1st Dist.] 2002, pet. ref'd); Yates v. State , 917 S.W.2d 915 (Tex. App.--Corpus Christi 1996, pet. ref'd).

2007See McClenton v. State, 167 S.W.3d 86 (Tex.App.-Waco 2005, no pet.); Bolden v. State, 73 S.W.3d 428 (TexApp.-Houston [1st Dist.] 2002, pet. refd); Yates v. State, 917 S.W.2d 915 (Tex. App.-Corpus Christi 1996, pet. refd).

2015S.W.2d 261, 269 (Mo.l963) (court will reverse for manifest injustice or miscarriage ofjustice); State ex. rel [105] Strickland, 466 U.S. at 690 , 104 S.Ct. 2052 .

2002App.1995). [103] See State v. Santana, 444 S.W.2d 614, 615 (Tex.1969) (holding that a jury charge submitting preponderance of the evidence as the burden of proof was error that could be raised for the first time on appeal), vacated on other grounds, 397 U.S. 596 , 90 S.Ct. 1350 , 25 L.Ed.2d 594 (1970); R.A.M. v. State, 599 S.W.2d 841, 844-45 (Tex.Civ.App.-San Antonio 1980, no writ). [104] 802 S.W.2d 647 (Tex.1990). [105] Strickland, 466 U.S. at 690 , 104 S.Ct. 2052 . [106] 455 U.S. 745, 769 , 102 S.Ct. 1388 , 71 L.Ed.2d 599 (1982). [1] See, e.g., Hill v. Sherwood, 488 So.2d 1357, 1359 (Ala.198

2015Bradley v. Co., 40 & (Tex.l969) (holding that a jury charge submitting Mass,App.Ct. 914, 661 N.E.2d 1352, 1353 (1996) (plain preponderance of the evidence as the burden of proof was error is that which results in manifest injustice); Napier v, error that could be raised for the first time on appeal), Jacobs, 429 Mich. 222 , 414 N.W.2d 862, 871 (1987) vacated on other grounds, 397 U.S. 596 , 90 S.Ct. 1350 , (plain error is that which results in manifest miscarriage 25 L.Ed.2d 594 (1970); RAM. v. State, 599 S.W.2d 841 , ofjustice); Alpha Gulf Coast, Inc. v. Jackson, 801 So.2d 844 -45 (Tex.Civ.Ap

2002App.1995). [103] See State v. Santana, 444 S.W.2d 614, 615 (Tex.1969) (holding that a jury charge submitting preponderance of the evidence as the burden of proof was error that could be raised for the first time on appeal), vacated on other grounds, 397 U.S. 596 , 90 S.Ct. 1350 , 25 L.Ed.2d 594 (1970); R.A.M. v. State, 599 S.W.2d 841, 844-45 (Tex.Civ.App.-San Antonio 1980, no writ). [104] 802 S.W.2d 647 (Tex.1990). [105] Strickland, 466 U.S. at 690 , 104 S.Ct. 2052 . [106] 455 U.S. 745, 769 , 102 S.Ct. 1388 , 71 L.Ed.2d 599 (1982). [1] See, e.g., Hill v. Sherwood, 488 So.2d 1357, 1359 (Ala.198

2024See Loge v. State, 550 S.W.3d 366, 384 (Tex. App.—Houston [14th Dist.] 2018, no pet.) (lack-of-reasonable-doubt instruction in punishment phase not egregious harm when “the charge generally told the jury that the State had the burden of proof throughout the trial”); Cf. Zarco v. State, 210 S.W.3d 816, 827 (Tex. App.—Houston [14th Dist.] 2006, no pet.) (no egregious harm in absence of reasonable-doubt instruction 7 although no new evidence was received in punishment phase).

2024See Loge v. State, 550 S.W.3d 366, 384 (Tex. App.—Houston [14th Dist.] 2018, no pet.) 5 (lack-of-reasonable-doubt instruction in punishment phase not egregious harm when “the charge generally told the jury that the State had the burden of proof throughout the trial”); Cf. Zarco v. State, 210 S.W.3d 816, 827 (Tex. App.—Houston [14th Dist.] 2006, no pet.) (no egregious harm in absence of reasonable-doubt instruction although no new evidence was received in punishment phase).

2014However, because the evidence about which appellant specifically complains in his first issue does not, as he asserts, constitute evidence of an extraneous offense, wrong, or bad act, but rather general background evidence, I concur in the judgment of this Court affirming his conviction of the offense of felony murder. 1 In his first issue, appellant argues that his trial counsel provided him with ineffective assistance because counsel “fail[ed]- to request a limiting instruction and a burden-of-proof instruction on extraneous offenses.” A defendant is “entitled to be tried on the accusations

2014However, because the evidence about which appellant specifically complains in his first issue does not, as he asserts, constitute evidence of an extraneous offense, wrong, or bad act, but rather general background evidence, I concur in the judgment of this Court affirming his conviction of the offense of felony murder.1 In his first issue, appellant argues that his trial counsel provided him with ineffective assistance because counsel “fail[ed] to request a limiting instruction and a burden-of-proof instruction on extraneous offenses.” A defendant is “entitled to be tried on the accusations ma

2014However, because the evidence about which appellant specifically complains in his first issue does not, as he asserts, constitute evidence of an extraneous offense, wrong, or bad act, but rather general background evidence, I concur in the judgment of this Court affirming his conviction of the offense of felony murder. 1 In his first issue, appellant argues that his trial counsel provided him with ineffective assistance because counsel “fail[ed]- to request a limiting instruction and a burden-of-proof instruction on extraneous offenses.” A defendant is “entitled to be tried on the accusations

2014App. 2001) (orig. proceeding) (quoting Wilkerson v. State, 736 S.W.2d 656, 659 (Tex. Crim.

2013Cf. Francis v. Franklin, 471 U.S. 307, 319-20, 105 S.Ct. 1965 , 85 L.Ed.2d 344 (1985) (general instructions with respect to the burden of proof and presumption of innocence "d[id] not dissipate the error in the challenged portion of the instructions” that shifted the burden of proof with respect to the element of intent in an unconstitutional manner). .

2013Cf. Francis v. Franklin, 471 U.S. 307, 319-20, 105 S.Ct. 1965 , 85 L.Ed.2d 344 (1985) (general instructions with respect to the burden of proof and presumption of innocence "d[id] not dissipate the error in the challenged portion of the instructions” that shifted the burden of proof with respect to the element of intent in an unconstitutional manner). .

2008See Yates v. State , 917 S.W.2d 915, 923 (Tex. App.—Corpus Christi 1996, pet. ref’d); see also Johnson v. State , 181 S.W.3d 760, 767 (Tex. App.—Waco 2005, pet. ref’d) (finding that no harm exists in omitting a burden of proof instruction when the evidence is “clear cut”). 13: These counts represent the two counts of aggravated robbery for which Appellant received this life sentence.

2008See Yates v. State, 917 S.W.2d 915, 923 (Tex. App.—Corpus Christi 1996, pet. ref’d); see also Johnson v. State, 181 S.W.3d 760, 767 (Tex. App.—Waco 2005, pet. ref’d) (finding that no harm exists in omitting a burden of proof instruction when the evidence is “clear cut”). 17 may be avoided where the general jury instructions regarding the burden of proof were sufficient to alert the jury as to the requisite burden of proof.

2008See Stone v. Powell , 428 U.S. 465, 493 (1976) ("[T]he additional contribution, if any, of the consideration of search-and-seizure claims of state prisoners on collateral review is small in relation to the costs."). 23.

2008App. November 7, 2007)(stating there is no error in not having a burden-of-proof instruction concerning extraneous offenses as long as the punishment charge properly requires the State to prove the special issues, other than mitigation and affirmative defenses, beyond a reasonable doubt). 22 See Stone v. Powell, 428 U.S. 465, 493 (1976) (“[T]he additional contribution, if any, of the consideration of search-and-seizure claims of state prisoners on collateral review is small in relation to the costs.”). 23 Art. 37.071, § 2(f).

2008Jackson, 992 S.W.2d at 477 (trial court was not required to give an instruction on the burden of proof at the time evidence of unad-judicated offenses and bad acts was admitted during penalty phase of capital murder trial); see also Hunter v. State, 243 S.W.3d 664, 674 (Tex.Crim.App.2007) (no error in declining to give a burden-of-proof instruction concerning extraneous offenses in capital punishment phase as long as the punishment charge properly requires the State to prove the special issues, other than mitigation, beyond a reasonable doubt), cert. denied,—U.S.—, 129 S.Ct. 51 , — L.Ed.2d—(20

1999Jackson v. State, 992 S.W.2d 469, 477 (Tex.Crim.App.1999); Burks v. State, 876 S.W.2d 877, 911 (Tex.Crim.App.1994), cert. denied, 518 U.S. 1114 , 115 S.Ct. 909 , 130 L.Ed.2d 791 (1995).

2007Garcia v. State , 57 S.W.3d 436, 442 (Tex. Crim.

2007Garcia v. State, 57 S.W.3d 436, 442 (Tex.Crim.App. 2001); see also Gallo, 239 S.W.3d at 778 .

2003Ellison v. State , 86 S.W.3d 226, 228 (Tex. Crim.

2003Ellison v. State, 86 S.W.3d 226, 228 (Tex. Crim.

2015Bradley v. Co., 40 & (Tex.l969) (holding that a jury charge submitting Mass,App.Ct. 914, 661 N.E.2d 1352, 1353 (1996) (plain preponderance of the evidence as the burden of proof was error is that which results in manifest injustice); Napier v, error that could be raised for the first time on appeal), Jacobs, 429 Mich. 222 , 414 N.W.2d 862, 871 (1987) vacated on other grounds, 397 U.S. 596 , 90 S.Ct. 1350 , (plain error is that which results in manifest miscarriage 25 L.Ed.2d 594 (1970); RAM. v. State, 599 S.W.2d 841 , ofjustice); Alpha Gulf Coast, Inc. v. Jackson, 801 So.2d 844 -45 (Tex.Civ.Ap

2015Bradley v. Co., 40 & (Tex.l969) (holding that a jury charge submitting Mass,App.Ct. 914, 661 N.E.2d 1352, 1353 (1996) (plain preponderance of the evidence as the burden of proof was error is that which results in manifest injustice); Napier v, error that could be raised for the first time on appeal), Jacobs, 429 Mich. 222 , 414 N.W.2d 862, 871 (1987) vacated on other grounds, 397 U.S. 596 , 90 S.Ct. 1350 , (plain error is that which results in manifest miscarriage 25 L.Ed.2d 594 (1970); RAM. v. State, 599 S.W.2d 841 , ofjustice); Alpha Gulf Coast, Inc. v. Jackson, 801 So.2d 844 -45 (Tex.Civ.Ap

2000But see Merritt, 982 S.W.2d at 637 (finding that the defendant has the burden of proof based on interpretations of the jury charge statute) . 12 As we recently held in McGowen , neither party has the burden of proof under rule 44.2(b), and for purposes of determining harm, we will look to the record ourselves. 25 S.W.3d at 746 .

2000But see Merritt, 982 S.W.2d at 637 (finding that the defendant has the burden of proof based on interpretations of the jury charge statute) [12] As we recently held in McGowen , neither party has the burden of proof under rule 44.2(b), and for purposes of determining harm, we will look to the record ourselves. 25 S.W.3d at 746 .

2020And even when a Rule 404(b) limiting instruction would be proper to give, the trial court has “no duty to include one in the jury charge for the guilt phase [when] appellant fail[s] to request one at the time the evidence was offered.” Id. at 254 . 25 This is true for the burden-of-proof instruction for extraneous acts too.

2015See Delgado v. State, 235 S.W.3d 244, 251 (Tex. Crim.

2015See, e.g., McNeil v. State, 452 S.W.3d 408, 415 (Tex. App.—Houston [1st Dist.] 2014, pet. 14 filed); Gholson v. State, 5 S.W.3d 266, 273 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d).

2003Gholson , 5 S.W.3d at 271 .

2014Id. at 368 .

2011The Evidence "In examining whether egregious harm occurred from the failure to include the burden-of-proof instruction for unadjudicated extraneous offenses admitted in the punishment phase of trial," we may "compare the evidence related to the unadjudicated extraneous offenses with the other guilt and punishment evidence in the case." Id. at 368 ; see Escovedo v. State, 902 S.W.2d 109, 115 (Tex. App.—Houston [1st Dist.] 1995, pet. ref'd) (finding no indication that jury would have "disregarded or discounted the extraneous offense[s] and assessed a lighter sentence with a burden of proof 2 In