Jordan v. State

859 S.W.2d 418, 1993 Tex. App. LEXIS 1521, 1993 WL 175232
Court of Appeals of Texas·Decided May 27, 1993·No. 01-92-01002-CR·Published·Cited by 23 cases

Opinions

OPINION

HEDGES, Justice.

A jury found appellant, Victor Maurice Jordan, guilty of two counts of aggravated robbery. The jury then assessed his punishment, enhanced by one prior felony conviction, at 99-years confinement and fined him $5,000.

Appellant’s court-appointed counsel filed a brief stating his opinion that the appeal is [420] wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), by presenting a professional evaluation of the record and advancing an arguable ground of error on appeal. Gainous v. State, 436 S.W.2d 137 (Tex.Crim.App.1969); see also High v. State, 573 S.W.2d 807 (Tex.Crim.App.1978); Jackson v. State, 485 S.W.2d 553 (Tex.Crim.App.1972).

Appellate counsel delivered a copy of his brief to appellant and advised appellant that he had a right to file a pro se brief. On January 7, 1992, this Court granted appellant’s motion to file a pro se brief not later than February 6, 1992. Appellant failed to file his brief by that date.

We conducted an independent review of the record in compliance with Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App.1991), and we do not find any grounds for reversible error. We affirm.

On June 29, 1992, shortly after midnight, Richie Alidon and his date Lynette Kish stopped for gas after seeing a movie. They testified that appellant came up behind Mr. Alidon when he went to the cashier’s window to pay for gas. Appellant asked Mr. Alidon repeatedly, “How are you doing?” Appellant then put the gun to the back of Mr. Alidon’s head and asked for money. Mr. Alidon gave appellant his wallet. Appellant asked for more money, then hit Mr. Alidon on the back of his head behind the ear, drawing blood. Mr. Alidon testified that he was in fear of imminent bodily injury and death in that he thought appellant would shoot him because he had no money.

After hitting Mr. Alidon again, appellant walked over to Ms. Kish, demanding money. She gave him her wallet. Appellant hit her on the forehead, breaking the skin. She tried to give him her watch. Appellant hit her on the back of the head. The gun discharged, and Ms. Kish fell to the ground.

Houston police officers Mark Myskowski and Brian Bufkin had just stopped at a red light at Fondren and West Belfort when they saw appellant run from a Metro bus stop across Fondren to a gas station. Intent on seeing where appellant had gone, the officers made a U-turn on Fondren to return to the gas station. Shortly after making the U-turn, they heard a gunshot in the vicinity of the gas station.

When they turned into the gas station, they saw appellant pointing a gun at Mr. Alidon. They saw Ms. Kish lying on the ground near the driver’s door. The officers radioed for backup, got out of their patrol car, drew their weapons, and walked toward appellant shouting, “Drop your gun.” Appellant dropped his gun and stood where he was. When he refused the officers’ order to lay down, they physically put him on the ground and handcuffed him. Appellant appeared intoxicated — he smelled of alcohol and his eyes were bloodshot. The weapon, a .32 caliber semi-automatic, was recovered at the scene. A discharged bullet was recovered near the driver’s door. The officers also recovered two shell casings, a live round, and a discharged round at the scene.

In his brief, appellate counsel raised a defect in the charge, which read as follows:

You are instructed that each count is to be considered separately from the other count. The law applicable to each of said counts is as follows:
Our law provides that a person commits the offense of robbery if, in the course of committing theft, as that term is hereinafter defined, and with intent to obtain and maintain control of property of another, he intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.

This instruction is defective because the second count in the indictment did not allege “intentionally or knowingly threatens or places another in fear,” but alleged that appellant “intentionally and knowingly cause[d] bodily injury to Lynette Kish by striking Lynette Kish with a deadly weapon, namely a firearm, and the Defendant did then and there use and exhibit a deadly weapon, to-wit, a firearm.” Trial counsel did not object to the charge.

[421] Article 86.19 of the Texas Code of Criminal Procedure prescribes the manner in which jury charge error is reviewed on appeal. Arline v. State, 721 S.W.2d 348, 351 (Tex.Crim.App.1986); Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1984).

[T]he judgment shall not be reversed unless the error appearing from the record was calculated to injure the rights of the defendant, or unless it appears from the record that the defendant has not had a fair and impartial trial. All objections to the charge and to the refusal of special charges shall be made at the time of the trial.

Tex.Code CRIM.P.Ann. art. 36.19 (Vernon 1981).

Before reversing a conviction for a jury charge error, the appellate court must first determine whether there' was error in the charge, then decide whether sufficient harm was caused to require reversal. Arline, 721 S.W.2d at 351. If a proper objection was not made at trial, the error must be so harmful the defendant was denied “a fair and impartial trial.” Id. In other words, the defendant must have suffered “egregious” harm. Id. The extent of harm suffered must be determined in “light of the entire jury charge, the state of the evidence, including contested issues and the weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole.” Arline, 721 S.W.2d at 351.

We find that this error was not harmful. The application paragraph of the charge tracked the indictment and correctly instructed:

Now, if you find from the evidence beyond a reasonable doubt that on or about the 29th day of June, 1992, in Harris County, Texas, the defendant, Victor Maurice Jordan, did then and there unlawfully, while in the course of committing theft of property owned by Lynette Kish, and with intent to obtain or maintain control of the property, intentionally or knowingly cause bodily injury to Lynette Kish by striking Lyneete [sic] Kish with a deadly weapon, namely, a firearm, and the defendant did then and there use or exhibit a deadly weapon, to-wit, a firearm, then you will find the defendant guilty of aggravated robbery as charged in count two of the indictment.
Unless you so find from the evidence beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will acquit the defendant and say by your verdict “Not Guilty” in count two of the indictment.

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Jordan v. State, 859 S.W.2d 418, 1993 Tex. App. LEXIS 1521, 1993 WL 175232 (Tex. Ct. App. 1993).

859 S.W.2d 418 (Jordan v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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Jordan v. State
859 S.W.2d 418 (Court of Appeals of Texas, 1993)