Opinion
No. 04-16-00443-CR
06-14-2017
Joshua Douglas ADAMS, Appellant v. The STATE of Texas, Appellee
MEMORANDUM OPINION
From the 198th Judicial District Court, Bandera County, Texas
Trial Court No. CR-15-0000133
Honorable M. Rex Emerson, Judge Presiding Opinion by: Karen Angelini, Justice Sitting: Karen Angelini, Justice Marialyn Barnard, Justice Luz Elena D. Chapa, Justice AFFIRMED
Joshua Douglas Adams was convicted by a jury of burglary. On appeal, Adams contends the jury charge impermissibly enlarged the indictment, and the trial court erred in ordering him to pay court-appointed attorney's fees as part of the court costs. We affirm the trial court's judgment.
ENLARGEMENT OF THE INDICTMENT
In his first issue, Adams contends the jury charge impermissibly enlarged the indictment, asserting the indictment alleged he committed the offense of burglary by entering the victims' habitation and committing the offense of theft while the jury charge permitted his conviction if the jury found he entered the habitation and attempted to commit theft or had the intent to commit theft. Because the jury charge contained theories that were different from the theory alleged in the indictment, Adams contends the jury charge contained error. Acknowledging that no objection was made to the jury charge, Adams also asserts he suffered egregious harm as a result of the erroneous charge.
When reviewing a jury charge issue, we initially determine whether error exists. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). If so, we then determine whether the error caused harm. Id. When, as here, the defendant fails to object to the charge, "we will not reverse for jury-charge error unless the record shows 'egregious harm' to the defendant." Id. at 743-44.
We first consider whether the jury charge contained error. A defendant may be tried only on the offenses alleged in the indictment. Abdnor v. State, 871 S.W.2d 726, 738 (Tex. Crim. App. 1994); Head v. State, 299 S.W.3d 414, 439 (Tex. App.—Houston [14th Dist.] 2009, pet. ref'd). A jury charge may not enlarge the offense alleged and authorize the jury to convict a defendant on a basis or theory permitted by the jury charge but not alleged in the indictment. Reed v. State, 117 S.W.3d 260, 265 (Tex. Crim. App. 2003); Trevino v. State, 470 S.W.3d 660, 663 (Tex. App.—Houston [14th Dist.] 2015, pet. ref'd); Castillo v. State, 7 S.W.3d 253, 258 (Tex. App.—Austin 1999, pet. ref'd).
A person commits the offense of burglary if, without the effective consent of the owner, the person:
(1) enters a habitation, or a building (or any portion of a building) not then open to the public, with intent to commit a felony, theft, or an assault; orTEX. PENAL CODE ANN. § 30.02(a) (West 2011). The indictment in this case alleged Adams committed the offense of burglary by entering the victims' habitation and committing theft. The jury charge allowed the jury to convict Adams if the jury found he entered the victims' habitation and either attempted to or committed theft. Finally, the verdict form signed by the jury foreman stated the jury found Adams guilty of the offense of "BURGLARY OF A HABITATION WITH INTENT TO COMMIT THEFT." Because the jury charge contained theories of the offense that were different from the theory alleged in the indictment, the jury charge contained error. See Shaw v. State, 557 S.W.2d 305, 306-07 (Tex. Crim. App. 1977) (holding jury charge contained error where indictment alleged burglary under section 30.02(a)(3) but jury charge applied law in section 30.02(a)(1)).
(2) remains concealed, with intent to commit a felony, theft, or an assault, in a building or habitation; or
(3) enters a building or habitation and commits or attempts to commit a felony, theft, or an assault.
Because Adams did not object to the jury charge, the record must establish egregious harm to Adams as a result of the error. Ngo, 175 S.W.3d at 743-44. "'Jury-charge error is egregiously harmful if it affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory.'" State v. Ambrose, 487 S.W.3d 587, 597-98 (Tex. Crim. App. 2016) (quoting Marshall v. State, 479 S.W.3d 840, 843 (Tex. Crim. App. 2016)). In reviewing a record for egregious harm, we consider: "(1) the entirety of the jury charge, (2) the state of the evidence, (3) counsel's arguments, and (4) any other relevant information revealed by the entire trial record." Id.
In this case, Adams broke into the victims' home with two other co-defendants and stole property. The victims discovered the theft upon returning home. The burglary and theft were captured on a security camera and recorded on a DVR. Although the DVR was also stolen, it was subsequently recovered, and a video of the DVR recording was played for the jury. The video showed Adams assisting in the efforts to break into the house. The investigating detective testified a portion of the video could not be transferred from the DVR to the video shown to the jury. The detective testified that portion of the video showed Adams and the other two co-defendants removing items from the victims' house and placing them in the car in which they later drove away. One of the victims also testified Adams subsequently spoke with her and told her about his involvement. Therefore, the evidence established Adams committed theft and did not just attempt to commit theft or just intend to commit theft. Furthermore, the State did not argue Adams committed the burglary offense only by attempting to commit theft or intending to commit theft. Therefore, we hold the record does not show the jury charge resulted in egregious harm. See Sanchez v. State, 376 S.W.3d 767, 775 (Tex. Crim. App. 2012) (noting presence of overwhelming evidence of guilt may be considered when assessing jury-charge error); Rivera v. State, 12 S.W.3d 572, 577 (Tex. App.—San Antonio 2000, no pet.) (noting "[n]o harm is shown where: (1) the evidence clearly supports the defendant's guilt under alternate theories unaffected by the erroneous portion of the charge; (2) the State relies most heavily on the alternate theories; and (3) it is very likely that the jury's verdict was based on an alternate theory."). Adams's first issue is overruled.
In his brief, Adams describes the video as being "far from clear" and asserts the identities of the individuals on the video are "impossible to make out." Having viewed the video, we disagree with this description and believe the witnesses could identify Adams from the video.
COURT-APPOINTED ATTORNEY'S FEES
In his second issue, Adams contends the evidence is insufficient to support the trial court's judgment requiring him to pay court-appointed attorney's fees because the presumption that he is indigent was never rebutted.
A trial court may order a defendant to repay costs of court-appointed legal counsel if the court finds the defendant is able to pay. TEX. CODE CRIM. PROC. ANN. art. 26.05(g) (West Supp. 2016). If a defendant has been found to be indigent, the trial court cannot order the defendant to repay the costs of court-appointed legal counsel unless the record contains evidence supporting a subsequent finding that the defendant is able to repay those costs. Cates v. State, 402 S.W.3d 250, 251-52 (Tex. Crim. App. 2013).
In this case, Adams was found indigent when the trial court appointed counsel to represent him, and the record does not contain any subsequent finding that Adams is able to repay the costs of his court-appointed legal counsel. The judgment, however, does not order him to do so.
The judgment requires Adams to pay $319.00 in court costs and $0 in restitution. In his brief, Adams cites the bill of costs prepared by the district clerk to support his argument. The bill of costs, however, lists the "total court costs and fees" as $319.00. The bill of costs then lists the amount of $2,160 as "Restitution for Court Appointed Attorney." Because the judgment did not require Adams to pay any restitution, the judgment did not require Adams to repay the costs of his court-appointed legal counsel. Adams's second issue is overruled.
CONCLUSION
The judgment of the trial court is affirmed.
Karen Angelini, Justice DO NOT PUBLISH