Ellison v. State, 86 S.W.3d 226 (Tex. Crim. App. 2002). · Go Syfert
Ellison v. State, 86 S.W.3d 226 (Tex. Crim. App. 2002). Cases Citing This Book View Copy Cite
388 citation events (388 in the last 25 years) across 5 distinct courts.
Strongest positive: Jesse Espinoza Herrera v. the State of Texas (txctapp2, 2026-06-11)
Treatment trajectory · 2002 → 2026 · click a year to view as-of
2002 2014 2026
Top citers, strongest first. 50 distinct citers. How cited ↗
cited Cited as authority (rule) Jesse Espinoza Herrera v. the State of Texas
txctapp2 · 2026 · confidence medium
This is a “difficult standard and must be proved on a case-by-case basis.” Ellison v. State, 86 S.W.3d 226, 227 (Tex. Crim.
cited Cited as authority (rule) Christopher Broadus v. the State of Texas
txctapp3 · 2026 · confidence medium
Ellison v. State, 86 S.W.3d 226, 227 (Tex. Crim.
cited Cited as authority (rule) Bruce Allan Tucker v. the State of Texas
Tex. App. · 2025 · confidence medium
Ellison v. State, 86 S.W.3d 226, 227 (Tex. Crim.
cited Cited as authority (rule) Rudy Valdez v. the State of Texas
Tex. App. · 2025 · confidence medium
This is a “difficult standard and must be proved on a case-by- case basis.” Ellison v. State, 86 S.W.3d 226, 227 (Tex. Crim.
cited Cited as authority (rule) Cody Braggs v. the State of Texas
Tex. App. · 2024 · confidence medium
This is a “difficult standard and must be proved on a case-by-case basis.” Ellison v. State, 86 S.W.3d 226, 227 (Tex. Crim.
cited Cited as authority (rule) Johnny Len Kellogg v. the State of Texas
Tex. App. · 2022 · confidence medium
App. 2018) (citing Ellison v. State, 86 S.W.3d 226, 227 (Tex. Crim.
cited Cited as authority (rule) Benjamin Grig Baldiviez v. the State of Texas
Tex. App. · 2022 · confidence medium
Ellison v. State, 86 S.W.3d 226, 227 (Tex. Crim.
cited Cited as authority (rule) Darron Dewayne Denbow Jr. v. the State of Texas
Tex. App. · 2021 · confidence medium
In that 30 Almanza, 686 S.W.2d at 171 . 31 Id. 32 See Allen v. State, 253 S.W.3d 260, 264 (2008). 33 Ellison v. State, 86 S.W.3d 226, 228 (Tex. Crim.
cited Cited as authority (rule) Jerry Lynn Turner v. the State of Texas
Tex. App. · 2021 · confidence medium
Ellison v. State, 86 S.W.3d 226, 227 (Tex. Crim.
discussed Cited as authority (rule) Daniel Aragon MacHado v. State
Tex. App. · 2021 · confidence medium
We do not consider theoretical harm to Appellant by the admission of the extraneous-offense evidence; rather, we consider the “impact of the omission in the jury charge of a reasonable-doubt instruction.” Ellison v. State, 86 S.W.3d 226, 228 (Tex. Crim.
cited Cited as authority (rule) Agustin Osorio AKA Agustin Osorio-Solorzano v. State
Tex. App. · 2021 · confidence medium
Ellison v. State, 86 S.W.3d 226, 227 (Tex. Crim.
discussed Cited as authority (rule) Ernestina Flores v. State
Tex. App. · 2020 · confidence medium
We do not consider the possible harm to Appellant by the admission of the extraneous-offense evidence; rather, we consider the “impact of the omission in the jury charge of a reasonable-doubt instruction.” Ellison v. State, 86 S.W.3d 226, 228 (Tex. Crim.
cited Cited as authority (rule) Ethaniel Farrar v. State
Tex. App. · 2020 · confidence medium
Ellison v. State, 86 S.W.3d 226, 227 (Tex. Crim.
cited Cited as authority (rule) Amber Lynn Haugen v. State
Tex. App. · 2019 · confidence medium
Ellison v. State, 86 S.W.3d 226, 227 (Tex. Crim.
cited Cited as authority (rule) Dennis Ray Avery v. State
Tex. App. · 2019 · confidence medium
Ellison v. State, 86 S.W.3d 226, 228 (Tex. Crim.
cited Cited as authority (rule) Tam Ha Huynh v. State
Tex. App. · 2018 · confidence medium
Ellison v. State, 86 S.W.3d 226, 227 (Tex. Crim.
cited Cited as authority (rule) German Perez-Vasquez v. State
Tex. App. · 2018 · confidence medium
See Cornett, 405 S.W.3d at 761 ; Ellison v. State, 86 S.W.3d 226, 227 (Tex. Crim.
cited Cited as authority (rule) Paroline v. State
Tex. App. · 2017 · confidence medium
Beham v. State, 476 S.W.3d 724, 735 (Tex. App.—Texarkana 2015, no pet.) (citing Ellison v. State, 86 S.W.3d 226, 227 (Tex. Crim.
cited Cited as authority (rule) Brian Darnell Johnson v. State
Tex. App. · 2016 · confidence medium
Ellison v. State, 86 S.W.3d 226, 227 (Tex. Crim.
cited Cited as authority (rule) John Hernandez v. State
Tex. App. · 2016 · confidence medium
Ellison v. State, 86 S.W.3d 226, 227 (Tex. Crim.
cited Cited as authority (rule) Frank Antonio Simonetti v. State
Tex. App. · 2016 · confidence medium
Ellison v. State, 86 S.W.3d 226, 228 (Tex.Crim.App. 2002); Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985)(op. on reh’g).
cited Cited as authority (rule) Mashood Uddin v. State
Tex. App. · 2015 · confidence medium
Ellison v. State, 86 S.W.3d 226, 227 (Tex. Crim.
cited Cited as authority (rule) Elizabeth Vera v. State
Tex. App. · 2015 · confidence medium
Ellison v. State, 86 S.W.3d 226, 227 (Tex. Crim.
discussed Cited as authority (rule) Jones, Lonnie James Jr. (2×) also: Cited "see, e.g."
Tex. App. · 2015 · confidence medium
COURT OF APPEALS REVERSIBLY.ERRED AND ABUSED ITS DISCRETION IN OVERRULING ISSUE TWO WHEN THE CUMULATIVE IMPACT OF THE ABOVE ERRORS WAS SO GREAT THAT REVERSAL IS REQUIRED 12-13 PRAYER 13 CERTIFICATE OF SERVICE 14 (APPENDIX) COURT OF APPEALS OPINION A ill TABLE OF AUTHORITIES CASES: PAGE: •ALAMANZA v. STATE, 686 S.W.2d 157, 171 (TEX.CRIM.APP. 1985) 7 •DAVIS v. STATE, 313 S.W.3d 317, 350 (TEX.CRIM.APP.2010) 11 •DIXON v. STATE, 244 S.W.3d 472, 479 (TX.APP.2007) 11 •ELLISON v. STATE, 86 S.W.3d 226, 228 (TEX.CRIM.APP.2002). 8 •EX PARTE: NAILOR, 149 S.W.3d 125, 132 (TEX.CRIM.APP.2004) 4 •…
cited Cited as authority (rule) Brian Darnell Johnson v. State
Tex. App. · 2015 · confidence medium
Ellison v. State, 86 S.W.3d 226, 227 (Tex. Crim.
discussed Cited as authority (rule) Kimberly Clark Saenz v. State (2×) also: Cited "see"
Tex. App. · 2015 · confidence medium
As the court in Ellison v. State, 86 S.W.3d 226, 227 (Tex. Crim.
discussed Cited as authority (rule) Kimberly Clark Saenz v. State (2×) also: Cited "see"
Tex. App. · 2015 · confidence medium
As the court in Ellison v. State, 86 S.W.3d 226, 227 (Tex.Crim.App.2002), opined, it is a “difficult standard.” We consider the following factors in evaluating harm: (1) “the entire jury charge”; (2) “the state of the evidence, including the contested issues and weight of probative evidence”; (3) the parties’ arguments at voir dire and at trial; and (4) all other relevant information in the record.
cited Cited as authority (rule) Drake Jordan Finch v. State
Tex. App. · 2015 · confidence medium
This “is a difficult standard and must be proved on a case-by- case basis.” Ellison v. State, 86 S.W.3d 226, 227 (Tex.Crim.App. 2002).
discussed Cited as authority (rule) Segura, Randy Allen (2×)
Tex. App. · 2015 · confidence medium
The lower court should have determined whether petitioner suffered egregious harm by analyzing the impact of the omission of the voluntariness instruction, not by analyzing the impact of the admission of the videotaped statement See Ellison v. State, 86 S.W.3d 226, 228 (Tex. Crim.
cited Cited as authority (rule) Ricky Ramos v. State
Tex. App. · 2015 · confidence medium
Ellison v. State, 86 S.W.3d 226, 227 (Tex. Crim.
cited Cited as authority (rule) Christopher Siebert v. State
Tex. App. · 2015 · confidence medium
Ellison v. State, 86 S.W.3d 226, 227 (Tex. Crim.
discussed Cited as authority (rule) Martinez-Hernandez, Kassandra (2×) also: Cited "see"
Tex. App. · 2015 · confidence medium
The Dallas Court of Appeals’s holding is explicitly reliant upon that rightfully disapproved reasoning ............................................. 15 Prayer ........................................................................................................ 17 Certificate of Service ................................................................................ 19 Certificate of Compliance ......................................................................... 19 Appendix ................................................................................................... 20 3 Index o…
discussed Cited as authority (rule) Martinez-Hernandez, Kassandra (2×) also: Cited "see"
Tex. · 2015 · confidence medium
The Dallas Court of Appeals’s holding is explicitly reliant upon that rightfully disapproved reasoning ............................................. 15 Prayer ........................................................................................................ 17 Certificate of Service ................................................................................ 19 Certificate of Compliance ......................................................................... 19 Appendix ................................................................................................... 20 3 Index o…
examined Cited as authority (rule) Michael Jason Tucker v. State (4×) also: Cited "see"
Tex. App. · 2014 · confidence medium
When the error is an omission of a reasonable doubt instruction, “[p]ossible harm to appellant because of the admission of evidence of extraneous offenses is not the issue . . . .” Ellison v. State, 86 S.W.3d 226, 228 (Tex. Crim.
cited Cited as authority (rule) Robert Larry Lodge v. State
Tex. App. · 2014 · confidence medium
Ellison v. State, 86 S.W.3d 226, 227 (Tex. Crim.
cited Cited as authority (rule) Ladondrell Montgomery v. State
Tex. App. · 2014 · confidence medium
Ellison v. State, 86 S.W.3d 226, 228 (Tex. Crim.
cited Cited as authority (rule) Derrick Florence v. State
Tex. App. · 2014 · confidence medium
Ellison v. State, 86 S.W.3d 226, 227 (Tex. Crim.
cited Cited as authority (rule) McDonald, Neiman Laquinta v. State
Tex. App. · 2013 · confidence medium
Ellison v. State, 86 S.W.3d 226, 227 (Tex. Crim.
cited Cited as authority (rule) Conner Benjamin Polen v. State
Tex. App. · 2013 · confidence medium
Ellison v. State, 86 S.W.3d 226, 227 (Tex. Crim.
cited Cited as authority (rule) Damian Ricardo Flores v. State
Tex. App. · 2013 · confidence medium
Ellison v. State, 86 S.W.3d 226, 227 (Tex.Crim.App.2002) (en banc) (citing Powell v. State, 63 S.W.3d 435, 438 (Tex.Crim.App.2001)).
cited Cited as authority (rule) Esteban Chavez v. State
Tex. App. · 2013 · confidence medium
Ellison v. State, 86 S.W.3d 226, 227 (Tex. Crim.
cited Cited as authority (rule) Matthew Ryan Wilson v. State
Tex. App. · 2012 · confidence medium
Ellison v. State, 86 S.W.3d 226, 227 (Tex.Crim.App. 2002).
discussed Cited as authority (rule) Rene Daniel Villarreal v. State (2×) also: Cited "see"
Tex. App. · 2012 · confidence medium
It is a “difficult standard.” Ellison v. State, 86 S.W.3d 226, 227 (Tex.Crim.App.2002).
cited Cited as authority (rule) Billy Dee Riley, Jr. v. State
Tex. App. · 2012 · confidence medium
Ellison v. State, 86 S.W.3d 226, 227 (Tex. Crim.
cited Cited as authority (rule) Jose Alonzo v. State
Tex. App. · 2012 · confidence medium
Ellison v. State, 86 S.W.3d 226, 227 (Tex. Crim.
cited Cited as authority (rule) Stevie Leon Stenson v. State
Tex. App. · 2012 · confidence medium
App. 2008), citing Ellison v. State, 86 S.W.3d 226, 228 (Tex. Crim.
cited Cited as authority (rule) Renrick Decarlos Taylor v. State
Tex. App. · 2012 · confidence medium
Ellison v. State, 86 S.W.3d 226, 227 (Tex. Crim.
cited Cited as authority (rule) Bernell Deon McClay v. State of Texas
Tex. App. · 2012 · confidence medium
Ellison v. State, 86 S.W.3d 226, 227 (Tex. Crim.
cited Cited as authority (rule) Darwin N. White v. State
Tex. App. · 2012 · confidence medium
Ellison v. State, 86 S.W.3d 226, 227 (Tex.Crim.App. 2002); Hutch, 922 S.W.2d at 171 .
cited Cited as authority (rule) Darwin N. White v. State
Tex. App. · 2012 · confidence medium
Ellison v. State, 86 S.W.3d 226, 227 (Tex.Crim.App. 2002); Hutch, 922 S.W.2d at 171 .
Retrieving the full opinion text from the archive…
Bobby Joe ELLISON, Appellant,
v.
the STATE of Texas
1609-01.
Court of Criminal Appeals of Texas.
Oct 2, 2002.
86 S.W.3d 226
Clement Dunn, Longview, for Appellant., Betty Marshall, Assistant State’s Attorney, Matthew Paul, State’s Attorney, Austin, for State.
Johnson.
Cited by 375 opinions  |  Published

OPINION

JOHNSON, J.,

delivered the unanimous opinion of the Court.

Following a jury trial, appellant was convicted of aggravated robbery. The jury assessed punishment at ninety-nine years in prison and a $5000 fine. During the punishment phase of trial, the trial court admitted evidence of extraneous offenses, but failed to instruct the jury that, before it could consider the extraneous-offense evidence, it must find that the state had proved those acts beyond a reasonable doubt. Appellant did not object to the omission in the jury charge.

On appeal, appellant argued that the trial court had erred in admitting evidence of extraneous offenses during the punishment phase of trial even though the state failed to prove beyond a reasonable doubt that he had committed the acts. Appellant also contended that the trial court had erred by failing to instruct the jury sua sponte that, before it could use the extra[*227] neous-offense evidence against appellant, it must first find beyond a reasonable doubt that appellant had committed the offenses. [1]

The court of appeals began its analysis by correctly noting that “[e]vidence of extraneous crimes or bad acts is admissible during the punishment phase of a trial to the extent that the trial court deems it relevant to sentencing. Tex.Code Crim. Proo. Ann. art. 37.07, § 3(a) (2001).” Ellison v. State, 51 S.W.3d 393, 396 (Tex.App.-Texarkana 1998, pet. granted). It further noted that, if such evidence is offered by the state, the jury cannot consider the evidence unless the jury is convinced beyond a reasonable doubt that the defendant committed the acts. Id. The issue was framed as a determination of whether the trial court was required to give, sua sponte, the reasonable-doubt instruction. Id. Citing Huizar v. State, 12 S.W.3d 479, 483-84 (Tex.Crim.App.2000)(op. on reh’g), the court of appeals held that the trial court was so required and that it had erred in failing to give the reasonable-doubt instruction. Id.

Beginning its harm analysis, the court of appeals noted that, because the failure to give the reasonable doubt instruction is statutory and because appellant failed to object to the omission, it must review the error under the egregious-harm standard. Ellison, 51 S.W.3d at 396, citing Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1985). The court went on to say that, when making this determination, it must attempt to illuminate the actual, not just the theoretical harm to appellant and, therefore, must assess the degree of harm in light of the entire jury charge, the state of the evidence, including contested issues and the weight of the probative evidence, the argument of counsel, and all other relevant information revealed by the record as a whole. Ellison at 396-97, citing Mann v. State, 964 S.W.2d 639, 641 (Tex.Crim.App.1998); Almanza v. State, 686 S.W.2d at 171; Rudd v. State, 921 S.W.2d 370, 373 (Tex.App.-Texarkana 1996, pet. ref'd). It also correctly stated that egregious harm is a difficult standard and must be proved on a case-by-case basis. Ellison at 397. The court concluded “we cannot speculate as to what punishment the jury would have assessed without the evidence of the extraneous offenses, but we conclude that the evidence made the case for serious punishment significantly more persuasive to the jury.... Accordingly, we cannot say with fair assurance that the sentence was not substantially affected by the error.” Ellison at 397 (emphasis added). It is at this point that the opinion of the court of appeals appears to have lost sight of the issue.

The harm analysis appears to assume that the evidence of the extraneous offenses was improperly admitted against appellant. This is not the case. The decision of the trial court to admit extraneous offenses is reviewed under the abuse-of-discretion standard. Powell v. State, 63 S.W.3d 435, 438 (Tex.Crim.App.2001). There is no showing that the trial court abused its discretion in admitting testimony, in the punishment phase, that appellant had been arrested for the burglary of a vehicle and had admitted to law enforcement officers that he had trafficked in drugs and had committed hate crimes.

As the court of appeals correctly noted, the error was in the trial court’s failure to give, sua sponte, a reasonable-doubt instruction regarding the extraneous offenses. See e.g. Allen v. State, 47 S.W.3d[*228] 47, 50 (Tex.App.2001)(“Thus, the trial court is required, when punishment phase evidence of extraneous offenses or bad acts evidence is admitted, to sua sponte instruct the jury on the reasonable-doubt standard of proof concerning the extraneous offenses and bad acts.”); Huizar v. State, 12 S.W.3d 479, 483, 484 (Tex.Crim.App.2000). Possible harm to appellant because of the admission of evidence of extraneous offenses is not the issue here. The harm which must be considered is the impact of the omission in the jury charge of a reasonable-doubt instruction.

The court of appeals correctly stated that the error must be reviewed under the egregious-harm standard of Almanza and correctly set out the Almanza criteria (“In making [a harm] determination, we assess the degree of harm in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel, and all other relevant information revealed by the record as a whole.”) Ellison at 396. However, after setting forth the proper harm-analysis procedure, the court of appeals applied it to the wrong issue. The court of appeals’ analysis appears to be based on a finding that the error was the admission of the evidence rather than the omission of the reasonable-doubt instruction. The analysis, therefore, does not properly apply the factors required by Almanza to the question of the impact of the omission of that instruction.

Accordingly, we remand this cause to the court of appeals for a harm analysis, of the impact of the omission of the reasonable-doubt instruction, that follows the test set forth in Almanza and its progeny and, if necessary, a review of appellant’s remaining complaints.

1

. Appellant also asserted ineffective assistance of counsel at the punishment stage. Because the court of appeals found harm from the trial court’s omission of the reasonable-doubt instruction, it did not address that issue.