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Thomas v. State

Court of Appeals of Texas, Fourteenth District

May 31, 2018


          On Appeal from the 56th District Court Galveston County, Texas Trial Court Cause Nos. 15-CR-0454, 15-CR-0455, 15-CR-0456

          Panel consists of Justices Busby, Brown, and Jewell.



         The issue in this appeal is appellant's claim that the trial court erred by basing its sentence partly on the court's determination that appellant testified untruthfully during the punishment hearing. According to appellant, courts must assess punishment under Texas Code of Criminal Procedure article 37.07, section 3(a) while disregarding a defendant's false testimony during a punishment hearing, because lying under oath is not "bad acts" evidence probative of suitable punishment. We hold that a trial court may consider a defendant's untruthfulness when assessing punishment and accordingly affirm the judgment.


         A Galveston County grand jury indicted appellant Kaleb Jakobi Thomas on three charges of aggravated robbery. The State alleged that appellant committed the charged offenses against three complainants, Chance Maynard, Amie Maynard, and Lerry Hollis. Appellant pleaded guilty to the charges. There was no agreement between the State and appellant as to punishment, and the trial court held a punishment hearing, with appellant's consent.

         All three complainants testified for the State. The testimony presented by the State revealed the following. Chance lived with his mother, Amie, and Amie's boyfriend, Lerry, at a home in Galveston County. Chance worked with Antonio Elizondo. One weekend in February 2015, Elizondo bailed Chance out of jail. Elizondo drove his car to the jail to pick up Chance following Chance's release. Also in Elizondo's car were appellant and another man, James Washington. Elizondo drove appellant and Washington to Houston, then drove Chance to his home in Galveston. Elizondo left.

         Later that night, Chance was awakened from sleep by appellant "pistol whipp[ing]" him. Appellant demanded money, and Chance gave him $200. Appellant told Chance to go to the living room, where Elizondo and Washington had forcibly deposited Amie and Lerry after awakening them. The assailants duct-taped the victims' hands and wrapped plastic bags around their heads. Appellant told Chance that the assailants were "going to take y'alls life." Washington repeatedly hit and choked Amie. Appellant directed Elizondo to "go get the gasoline." At some point, a fourth man came to the front door and admonished the assailants to be quiet.

         Chance was able to free himself, and he fled the house. Chance heard gunshots but did not see who fired or who was shot. He returned to the house once police arrived. Chance and a police officer entered the house and found Amie had been shot. She survived but cannot walk due to a spinal injury from the gunshot. Lerry also escaped, but one of the assailants pursued and shot him. Lerry also survived but suffered severe internal injuries and brain damage. At trial, Lerry could not identify his assailant.

         Appellant testified in his defense. His account varied markedly from the State's witnesses. Appellant said he, Elizondo, Washington, and a fourth man, Clifton Dixon, were at Washington's apartment the afternoon before the robberies. Appellant overheard Elizondo talking about selling a car, and appellant said that his uncle was looking to buy a car. Elizondo said the car was in Galveston, and he wanted to go get it and sell it to appellant's uncle that night. Appellant did not want to go, but all four men ultimately drove to Galveston.[1]

         When the men reached Chance's house, appellant realized that the car Elizondo wanted to sell actually belonged to Chance. Elizondo, Dixon, and Washington went inside Chance's house-according to appellant, they were "just going in there and getting the car keys and leaving"-but appellant stayed in the car to work on a school project.[2] After about forty-five minutes passed, appellant knocked on the front door "to tell them to come on." Washington came out, carrying a gun. Appellant tried to leave, but Washington threatened him with harm if he left. Dixon gave appellant a gun, and then Dixon left the house. Now inside the house, appellant saw Elizondo assault Chance in order to obtain drugs. Elizondo then left the house. According to appellant, Elizondo was "supposed to be going [to] put some gas in the -- in the Chrysler." This left only Washington and appellant inside the house with Chance, Amie, and Lerry. Once Chance broke free from the duct tape and fled the house, Washington told appellant to pursue Chance but appellant instead fled and hid.

         Appellant testified that he pleaded guilty because he was at the scene and he knew a car was going to be stolen. Appellant asked the court to sentence him to probation.

         On cross-examination, appellant admitted that he had lied to the police on several occasions, and that his account of events had changed numerous times. Appellant also admitted that police found Chance's car keys in appellant's apartment.

         The trial court sentenced appellant to fifty-five years' confinement in each cause, to be served concurrently.[3] In pronouncing appellant's punishment, the trial judge made the following comments, ...

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