Kenny Jimenez v. State

Court of Appeals of Texas

Kenny Jimenez v. State

DecidedJanuary 7, 2015

Docket07-13-00061-CR

StatusPublished

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Kenny Jimenez v. State, (Tex. Ct. App. 2015).

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Opinion

In The Court of Appeals Seventh District of Texas at Amarillo ________________________

No. 07-13-00061-CR ________________________

KENNY JIMENEZ, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 364th District Court Lubbock County, Texas Trial Court No. 2012-435437; Honorable Brad Underwood, Presiding

January 6, 2015

MEMORANDUM OPINION Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

Following a jury trial, Appellant, Kenny Jimenez, was found guilty of aggravated

robbery and sentenced to confinement for life.1 Appellant asserts on appeal that the

trial court erred by (1) omitting the theory of “law of parties” in the application paragraph

1 See TEX. PENAL CODE ANN. § 29.03 (West 2011). An offense under this section is a felony of the first degree. of the jury charge and (2) admitting his personal rap lyrics during the punishment phase

of the trial. We affirm.

BACKGROUND

In July 2012, a three count indictment was filed alleging that, on or about June

10, 2012, Appellant, “did then and there, while in the course of committing theft of

property and with intent to obtain or maintain control of said property, intentionally or

knowingly threaten or place [Chelsea Betenbrough (Count 1), Brianna Neighbors (Count

2), and Brittany Lancaster (Count 3)] in fear of imminent bodily injury or death, and

[Appellant] did then and there use or exhibit a deadly weapon, to-wit: a firearm.” At trial,

Chelsea, Brianna and Brittany identified Appellant as the person who robbed them at

gunpoint in a nightclub parking lot. They testified that, at approximately 11:45 p.m., they

were between two cars parked facing a brick wall when a silver SUV pulled behind the

cars blocking their exit. Appellant emerged from the SUV carrying a shotgun. He

cocked the gun and ordered each of them to give him their “stuff.” They gave him their

cellphones, purses, I.D.s, $30 (a ten and a twenty dollar bill), and a wristlet. During the

robbery, other persons in the SUV were yelling encouragement to Appellant. After

taking their property, Appellant returned to the SUV. The SUV then backed into a

parked car and sped away.

Officer Andrew Evans received a radio dispatch describing the SUV and spotted

a vehicle matching its description at a convenience store. As he pulled beside the SUV,

he saw Appellant. He activated his lights and the SUV accelerated. Officer Evans gave

chase. After several miles, the SUV made a sharp turn, hit a curb and completely rolled

2 over. Appellant’s wife picked up the child thrown from the SUV and ran. Appellant also

fled. Two other occupants were apprehended at the scene of the accident. In an

inventory search of the SUV, Officers found and confiscated Chelsey’s, Brianna’s and

Brittany’s property, as well as the shotgun used in the robbery. Appellant, his wife and

his child were taken into custody after officers searched the surrounding yards. When

searched, Appellant had a shotgun shell of the same caliber as the shotgun retrieved

from the SUV in his pocket.

On February 13, 2013, the court submitted Count 1 of the indictment to the jury.

The jury found Appellant guilty as charged and assessed his sentence at confinement

for life. The trial court entered a judgment in accordance with the jury’s verdict and this

appeal followed.

JURY CHARGE

In analyzing a jury-charge issue, we first determine if error occurred, and if so,

we conduct a harm analysis. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App.

2005). The degree of harm required for reversal depends on whether appellant has

preserved error by objection. Id. A jury-charge error requires reversal when, after

proper objection, the appellant suffers Asome harm@ to his rights. Id.; Almanza v. State,

686 S.W.2d 157, 174 (Tex. Crim. App. 1985) (op. on reh=g), reaffirmed, Middleton v.

State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003). Because Appellant did not object

to the omission of the “law of parties” theory in the application paragraph, reversal is not

required unless Appellant has shown Aegregious harm.@ Almanza, 686 S.W.2d at 174.

“Egregious harm” is a difficult standard to meet. Taylor v. State, 332 S.W.3d 483, 490

3 (Tex. Crim. App. 2011). The record must show “actual, not just theoretical, harm to the

accused,” id. at 490-91, and the appellate court must be able to conclude that, as a

result of the complained of error, the defendant has been “deprived of a fair and

impartial trial.” Id. at 490.

The State candidly concedes the trial court committed charge error by the

complained of omission, but it goes on to assert Appellant was not harmed thereby.

Appellant asserts the omission “vitally affected [his] defensive theory” at trial. This

assertion is, however, counter to the position Appellant took at trial. During trial,

Appellant’s counsel objected to any language in the charge relating to the law of parties,

asserting Appellant was indicted as a principal and the law of parties was not raised by

the trial’s evidentiary record.2 Further, we find Appellant suffered little, if any, harm from

the omission because of the overwhelming evidence of his guilt as a principal, i.e., the

testimony of three eyewitnesses identifying him as the perpetrator, describing the SUV

in which he was a passenger and the shotgun used in the robbery, plus the presence of

the stolen property and shotgun at the scene of the SUV accident where he was

apprehended. Appellant’s first issue is overruled.

PUNISHMENT PHASE—RAP LYRICS

Appellant asserts the trial court erred by permitting the State to introduce

Appellant’s own rap lyrics in the punishment phase of the trial. Appellant wrote the

lyrics while he was incarcerated and published them over the jail’s telephone and by

2 At trial, defense counsel stated: “Your Honor . . . I’m going to object to the inclusion of the parties language in the charge on Page 8, and anywhere else any parties language appears, because he was indicted as a principal. I’d submit that the law of the parties issue hasn’t been raised by the evidentiary records of this particular case, and amounts to a comment on the weight.”

4 letter. The lyrics describe various acts of violence as well as other crimes.3 Appellant

asserts the lyrics were inadmissible under the First Amendment of the United States

3 In part, the song lyrics read to the jury were as follows:

New wipe foreign car movin slow motion, butterfly, suicidal when them doors open. Press a button, then the engine will start, tires thick, and the rhymes got you in the dark. Hittin hard while I’m ridin through the block, or the hood, turn the music up a bit, represent for the hoods. Bad bitch down, the ride she be keeping it hood. Still I do what I want cuz I know that I could. Smellin good beer, white diamond chain on my neck. I hold it down for the south, north, east and the west. East coat and west coast movin city to state. San Antone’s where I’m from, got me pushin the weight. I’m eatin cake non-stop, man. I’m going to survive high pitch, low pitch, yellow bone on the side. Young G’s been the name ever since I was five. Young killa, hard hitta, shit, I’m one of a kind. Keep it movin player.

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