Appeal from the 56th District Court Galveston County, Texas
Trial Court Cause Nos. 15-CR-0454, 15-CR-0455, 15-CR-0456
consists of Justices Busby, Brown, and Jewell.
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.
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
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
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
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.
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.
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. 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.
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.
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
trial court sentenced appellant to fifty-five years'
confinement in each cause, to be served
concurrently. In pronouncing appellant's punishment,
the trial judge made the following comments, ...