Charles Hugh Firth v. State

• Court: Court of Appeals of Texas
• Decided: June 23, 2005
• Docket: 06-04-00094-CR
• Status: Published

Opinion

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-04-00094-CR

CHARLES FIRTH, Appellant

 

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the Fifth Judicial District Court

Bowie County, Texas

Trial Court No. 03F0701-005

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Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION

            On August 11, 2003, while investigating Bowie County burglaries committed by someone driving a red car, sheriff's deputy George Huggins interviewed Charles Firth, after Firth waived his Miranda rights. Sheriff's investigator Joe Langehennig witnessed the interview. Firth commented that he did not drive a red car, but instead drove a purple or burgundy Toyota Corolla. Langehennig asked Firth no questions during that interview, but remembered a report by Sally LaBombard that, apparently unrelated to the "red car" burglaries being investigated, a man in a burgundy Toyota Corolla had burglarized her home August 7. Firth was asked no questions about the LaBombard burglary at the time. No part of the August 11 interview was electronically recorded.

            Langehennig later confirmed the vehicle description with LaBombard. He then prepared a photographic lineup, from which LaBombard identified Firth as the man who burglarized her home. On August 13, Langehennig interviewed Firth concerning the LaBombard burglary. Firth was warned of his rights, but waived those rights and gave a written statement in which he confessed to the LaBombard burglary. Langehennig later located Firth's burgundy Toyota at a local car dealership.

            Before his resulting trial for burglary of a habitation, Firth moved to suppress his written statement, arguing that his August 11 oral statement's "noncompliance with Article 38.22" rendered the August 13 written statement "fruit of the poisonous tree." The trial court overruled Firth's motion to suppress and entered its findings of fact and conclusions of law. The trial court found that the officers warned Firth of his constitutional rights pursuant to Miranda and that Firth waived those rights before making incriminating statements. A Bowie County jury found Firth guilty and recommended the maximum sentence of twenty years. The trial court sentenced Firth accordingly.

            The written statement was properly admitted, so we affirm the judgment. We reach that conclusion because we hold (1) the August 11 statement was admissible under Article 38.22, and (2) even if the August 11 statement was inadmissible, the August 13 statement was not excludable on either constitutional or statutory grounds.

            In reviewing the trial court's ruling on a motion to suppress, we apply a bifurcated standard of review. See Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). We give almost total deference to the trial court's determination of historical facts and review de novo the trial court's application of the law to those facts. See id.

(1)       The August 11 Statement Was Admissible Under Article 38.22

            Article 38.22 of the Texas Code of Criminal Procedure sets out the conditions to be met before the State may use a suspect's oral statement against him or her:

No oral . . . statement of an accused made as a result of custodial interrogation shall be admissible against the accused in a criminal proceeding unless:

(1) an electronic recording . . . is made of the statement;

(2) prior to the statement but during the recording the accused is given the warning in Subsection (a) of Section 2 above and the accused knowingly, intelligently, and voluntarily waives any rights set out in the warning;

          (3) the recording device was capable of making an accurate recording, the operator was competent, and the recording is accurate and has not been altered;

           (4) all voices on the recording are identified; and

            (5) not later than the 20th day before the date of the proceeding, the attorney representing the defendant is provided with a true, complete, and accurate copy of all recordings of the defendant made under this article.

Tex. Code Crim. Proc. Ann. art. 38.22, § 3(a).

            Article 38.22 also provides that, if a suspect's custodial statement contains incriminating facts that are later found to be true, the statement is admissible at trial:

Subsection (a) of this section shall not apply to any statement which contains assertions of facts or circumstances that are found to be true and which conduce to establish the guilt of the accused, such as the finding of secreted or stolen property or the instrument with which he states the offense was committed.

Tex. Code Crim. Proc. Ann. art. 38.22, § 3(c). The phrase "found to be true" means something "the police are unaware [of] at the time of the confession [and is] later, after the confession, found to be true." Romero v. State, 800 S.W.2d 539, 544–45 (Tex. Crim. App. 1990). Such corroborated oral statements need only circumstantially demonstrate the defendant's guilt. Moore v. State, 999 S.W.2d 385, 400–01 (Tex. Crim. App. 1999). The two examples listed in Section 3(c) are for illustrative purposes only and do not act as a limitation on qualifying oral statements. Port v. State, 791 S.W.2d 103, 106 (Tex. Crim. App. 1990).

            Here, LaBombard had reported to Langehennig that, when she approached her house on August 7, there was a burgundy Toyota Corolla parked in her driveway. So, Langehennig knew, before the interview, that the suspect in that burglary drove such a car. Firth's statement, however, that he owned a burgundy Corolla was previously unknown by the police officers. Langehennig confirmed this fact and located the vehicle. His ownership of the car connected him to the LaBombard robbery. Therefore, this single assertion of fact was conducive toward Firth's guilt and thus rendered the oral statement admissible in its entirety.

            We do not have any details as to the means of corroborating Firth's ownership of the burgundy Corolla. However, the Texas Court of Criminal Appeals has confirmed that Article 38.22 places "no limitation" on the manner in which the facts asserted are corroborated. See id.; Briddle v. State, 742 S.W.2d 379, 388 (Tex. Crim. App. 1987). Langehennig does not testify to the details of that part of his investigation. The record shows only that he did confirm Firth owned the burgundy Corolla shown in the photograph. So, the record provides sufficient evidence to draw the conclusion that Langehennig did corroborate the information in Firth's oral statement to the officers. Regardless of how Langehennig located the vehicle, the important consideration is that he did, in fact, locate it. See Port, 791 S.W.2d at 108.

            A potential issue could arise by focusing on the fact that Langehennig already knew that a burgundy Corolla was used in the August 7 burglary. The impact that prior knowledge has on the "found to be true" element of Subsection (c) was outlined in Port. During the course of the investigation of a missing postal carrier, Debra Sue Schatz, Port's father reported that his son was missing and that there were bullet holes inside their house. Id. at 105. The father also handed over a pistol that smelled as if it had been fired recently. Id. A consensual search of the Port home yielded further incriminating evidence against the missing Port. Id.

            When Port was apprehended and after he was read his Miranda rights, Port explained that he shot the victim in the head twice with his .22 caliber pistol. Id. Later, when Port saw the gun that had been given to the police, he asked if that was his gun and stated he recognized it as the gun he used to kill the victim. Id. at 106. On appeal, Port challenged the admission of these two statements  at  trial,  arguing  that  the  circumstances  did  not  satisfy  Tex.  Code  Crim.  Proc. Ann. art. 38.22, § 3(c). Id. at 104. The intermediate court of appeals had held that Port's statements were inadmissible because the incriminating facts in Port's statements were either already known or failed to conduce to show guilt. Id. The Texas Court of Criminal Appeals rejected the court of appeals' interpretation of Article 38.22, Section 3(c), concluding that the results of the victim's autopsy confirmed the victim had been shot twice in the head. Id. at 108. Therefore, the first statement was rendered admissible under Article 38.22. Id. As to the second statement, the court noted the police already had custody of the gun. Id. However, the court pointed out, Port's assertion that the gun was the one he used to kill the victim was not found to be true until ballistics tests confirmed that the gun in question was the gun used to kill the victim. Id.

            In contrast, when the record contained no evidence that the fact was actually corroborated in any manner, the Texas Court of Criminal Appeals held that the Section 3(c) exception was not satisfied. See Romero, 800 S.W.2d at 545. Such is not the case here. While, here, we have scant evidence of the manner in which Langehennig corroborated Firth's statement, we do have evidence that he did corroborate the fact by locating the car. Under the current state of the law concerning Section 3(c), we conclude the record contains sufficient corroboration to establish the reliability of Firth's oral statement. See Briddle, 742 S.W.2d at 388.

            We conclude the limited exception of Tex. Code Crim. Proc. Ann. art. 38.22, § 3(c) applies to the unrecorded oral statement here since the statement led to corroboration of previously-unknown facts which tended to prove Firth's guilt in this case. Application of this exception touches on the admissibility of only the unrecorded oral statement, not the subsequent written statement, the admission of which Firth complains. Nevertheless, since the unrecorded oral statement could have been properly admitted into evidence, there can be no taint that would follow from it and attach to the subsequent written statement.

(2)       Even if the August 11 Statement Was Inadmissible, the August 13 Statement Was Not Excludable on Either Constitutional or Statutory Grounds

            Even if Article 38.22, Section 3(c) did not apply to the unrecorded statement taken August 11, that does not require exclusion of the August 13 written statement. To fully understand this point, we examine Article 38.22 in its two major components: the constitutional safeguards consistent with Miranda and the statutory guidelines for admissibility of an oral statement. See Heiselbetz v. State, 906 S.W.2d 500, 512 (Tex. Crim. App. 1995). The Fifth Amendment privilege against self-incrimination is protected during custodial interrogation by certain procedural safeguards delineated in Miranda. These constitutional safeguards have been codified in the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 38.22. Beyond the constitutional requirements, the additional recording requirements with which law enforcement officers must comply in order for an oral statement to be admissible have been treated as evidentiary in nature rather than constitutionally protected.

            Firth does not contend the oral statement of August 11 was involuntary or coerced. Firth contends, merely, that "his written confession was obtained following a previous oral statement which was inadmissible pursuant to Article 38.22 of the Texas Code of Criminal Procedure, thereby making his written confession 'fruit of the poisonous tree.'"

            Whether Firth complains of a failure to provide him warnings in compliance with Miranda or  a  failure  to  record  the  oral  statement  pursuant  to  Tex. Code Crim. Proc. Ann. art. 38.22, § 3(a)(1), we hold that any noncompliance with Article 38.22 did not taint the subsequent written statement. That is true because (a) officers complied with Miranda and (b) noncompliance with Article 38.22's statutory component does not require exclusion of a subsequent statement.

            (a)       The Officers Complied with Miranda

            Under our standard of review, we afford a great deal of deference to the trial court's findings when those findings turn on issues of credibility. Here, both officers testified that Firth was warned of his constitutional rights before the August 11 questioning and that Firth waived those rights.

            We defer to the trial court's finding that Deputy Huggins properly warned Firth in compliance with Miranda and Article 38.22's codification of Miranda. The uncontroverted evidence in the record supports this conclusion. To the extent Firth's point of error raises noncompliance with Miranda and Section 3(a)(2) of Article 38.22, we overrule those contentions.

            (b)       Noncompliance with Article 38.22's Statutory Component Does Not Require Exclusion of a Subsequent Statement

            We next address Firth's point of error as one raising only the failure of the officers to comply with the statutory requirements of Article 38.22, Section 3. Absent an exception, the failure to record Firth's oral statement made August 11 would render Firth's oral statement inadmissible. Such a failure would not, however, implicate Firth's constitutional rights against self-incrimination. It follows, as well, that such a failure would have no bearing on the admissibility of any subsequent written statement.

            The United States Constitution does not require the electronic recording of oral statements made in response to custodial interrogation. See United States v. Yunis, 859 F.2d 953, 961 (D.C. Cir. 1988); Hawes v. State, 125 S.W.3d 535, 541 (Tex. App.—Houston [1st Dist.] 2002, no pet.). The Texas Constitution also does not require recording oral statements. Hawes, 125 S.W.3d at 541.

            Admission of statements in violation of the recording requirement of Article 38.22 is nonconstitutional error. Nonn v. State, 117 S.W.3d 874, 879–80 (Tex. Crim. App. 2003); Hawes, 125 S.W.3d at 541; see Hernandez v. State, 114 S.W.3d 58, 65 (Tex. App.—Fort Worth 2003, pet. ref'd); Davidson v. State, 42 S.W.3d 165, 167 (Tex. App.—Fort Worth 2001, pet. ref'd). Because errors committed with respect to the recording requirements of Article 38.22 do not implicate a defendant's constitutional rights, the effect of any such error would have been limited to the oral statement alone. The "fruit of the poisonous tree" doctrine is a constitutional doctrine and does not apply to statutory noncompliance. No taint would follow to attach to a later statement lawfully taken.

            The Austin Court of Appeals applied such a distinction in a recent case with similar facts concerning an appellant's statements to officers. Millslagle v. State, 150 S.W.3d 781, 784 (Tex. App.—Austin 2004, pet. dism'd). In Millslagle, the court treated the issue strictly in terms of statutory application and held the failure to record appellant's oral statements did not render his later written statement inadmissible. Id. Millslagle contended that his written statement should not have been admitted because the interrogation that immediately preceded it was not recorded. The Austin court noted that Article 38.22 did not "speak directly to his contention." Id. Although the failure to record appellant's oral statements to officers did render those oral statements inadmissible under Section 3 of the statute, the court pointed out that Section 3 does not govern the admissibility of Millslagle's subsequent written statement. The admissibility of his written custodial statement was governed by Section 2 of Article 38.22, and requirements of Section 2 were clearly satisfied. Id.

            The court went on to discuss its opinion in Horton v. State, 78 S.W.3d 701 (Tex. App.—Austin 2002, pet. ref'd), in which it similarly upheld the admission of a written statement made immediately after the accused made a voluntary, but unrecorded, oral statement. The court dispelled Millslagle's misunderstanding of its holding in Horton, reiterating that the written statement was not tainted by the inadmissible oral statement. Id.

            We conclude Firth's contention fails because his unrecorded oral statement was admissible under Article 38.22, Section 3(c) of the Texas Code of Criminal Procedure. The factual assertions he made in that statement were later found to be true and tended to show his guilt. Even if that conclusion is incorrect, the officers' noncompliance with respect to Firth's oral statement did not taint his subsequent written confession. The trial court properly admitted the written statement. We affirm the trial court's judgment.

                                                                                    Josh R. Morriss, III

                                                                                    Chief Justice

Date Submitted:          March 29, 2005

Date Decided:             June 23, 2005

Do Not Publish

nce>^[1] in Texarkana, Texas.  On several occasions, he allowed Donna Taylor and Annie Bagsby, prostitutes, to stay in his apartment where they could shower and sleep.  Nelson would sleep in his bed; the women, on a couch.  Nelson was a crack cocaine dealer, and the women had regularly purchased drugs from him.  On December 19, 2007, the women had been in and out of Nelson’s apartment, which they said was normal.  At one point, they came to the apartment to buy twenty dollars’ worth of crack cocaine.  Taylor said Nelson was very intoxicated at the time.  When he could not find the drugs, he accused the women of stealing them.  Although they denied his accusation, Nelson pointed a gun at them and told them to take off their clothes so he could search them.  The drugs were not found, and Nelson allowed the women to dress.  At that point, continuing his accusations, he shot Bagsby in the abdomen or midsection.  He then told Taylor to inspect Bagsby’s vaginal area, ordering Taylor to pull Bagsby’s pants down.  Nelson again shot Bagsby—this time in the buttocks—and told Taylor to “Get this white bitch out of his house.”  Before the women could leave, though, Nelson pointed his pistol at Bagsby’s head and threatened to kill her.  Taylor helped Bagsby out of the apartment and to a nearby hospital. 

            When Nelson was later approached by police, he denied knowledge of the shooting and did not make any assertions of stolen drugs or that he had been the victim of any burglary.  A Bowie County jury found Nelson guilty of aggravated assault with a deadly weapon.  At punishment, after Nelson pled “true” to two enhancement allegations, the jury found those enhancements true and recommended a sentence of sixty years’ imprisonment.

(1)        Nelson Was Not Entitled to a Jury Instruction on Defense of Property

            At trial, Nelson asked for an instruction in the jury charge “about an individual’s right to protect their property or protect their home in the event of a burglary.”  The trial court denied the request, saying there was no evidence to support the instruction.

            An accused is entitled to an instruction on any defensive issue raised by the evidence, whether that evidence is weak or strong, whether it is unimpeached or contradicted, and regardless of what the trial court may think about the credibility of the evidence.  Granger v. State, 3 S.W.3d 36, 38 (Tex. Crim. App. 1999); Hamel v. State, 916 S.W.2d 491, 493 (Tex. Crim. App. 1996).  If the evidence does not raise an issue on the defense, an instruction is not required.  See Dyson v. State, 672 S.W.2d 460, 463 (Tex. Crim. App. 1984).

A person in lawful possession of land or tangible, movable property is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to prevent or terminate the other’s trespass on the land or unlawful interference with the property.

Tex. Penal Code Ann. § 9.41(a) (Vernon 2003).  Nelson’s theory is that Taylor and Bagsby took his crack cocaine, which fact then triggered Nelson’s right to defend his property.  This theory fails for various reasons.

            First, Nelson could not have “lawful possession” of crack cocaine.  Breakiron v. State, 79 S.W.3d 103, 106 (Tex. App.—Texarkana 2002, no pet.).  Breakiron contended he had a greater right to either cocaine or marihuana, which he claimed had been taken by the victim, and he therefore was entitled to a jury instruction of defense of property.  Writing for this Court, former Chief Justice Cornelius pointed out that “[l]awful possession is defined as the possession of a controlled substance that has been obtained in accordance with state or federal law.”  Tex. Health & Safety Code Ann. § 481.002(24) (Vernon 2010).  As in Breakiron, the instant record has no evidence that Nelson somehow had lawful possession of the crack cocaine he accused Bagsby and Taylor of stealing.

            Breakiron bore another similarity to the instant case.  In Breakiron, the victim, Breakiron’s girlfriend, testified the two argued, which led to Breakiron assaulting the girlfriend, because Breakiron thought she had “stole[n] his drugs again.  He was angry . . . .”  Breakiron, 79 S.W.3d at 106.  Our opinion pointed out there was no testimony or evidence that Breakiron was

trying to prevent the taking or interference with his drugs, or that there was any struggle between Breakiron and the victim over the possession of any drugs or any other property.  The most that may be inferred from the testimony is that Breakiron was angry with the victim for some previous event and was assaulting her in retribution for that.  Such evidence does not raise an issue of protection or defense of property.

Id.  In Nelson’s case, the two women testified Nelson was drunk and could not find his crack cocaine, and then accused them of taking it.  This does not raise an issue of protection or defense of property. 

            Second, in order to claim defense of property, a defendant must admit to the criminal conduct with which he or she has been charged and then assert the statutory defense.  VanBrackle v. State, 179 S.W.3d 708, 715 (Tex. App.—Austin 2005, no pet.) (citing Young v. State, 991 S.W.2d 835, 838 (Tex. Crim. App. 1999)).  Accordingly, a defendant is not entitled to a jury instruction on defense of property “if, through his own testimony or the testimony of others, he claims he did not perform the assaultive acts alleged, or that he did not have the requisite culpable mental state, or both.”  Id. at 715.  Compare also Juarez v. State, No. PD-0666-09, 2010 WL 1222680 (Tex. Crim. App. Mar. 31, 2010) (confession and avoidance doctrine applies where defendant sought instruction on defense of necessity; defendant entitled to defense instruction because, under facts of case, he admitted to offensive conduct and to statutory mens rea).  Here, Nelson did not admit shooting Bagsby.  Detective Lisa Green stated that, when she tried to talk to Nelson about the incident, he claimed to know nothing about the shooting, and he said nothing to the detective about any alleged burglary.^[2] 

            Nelson was not entitled to an instruction on defense of property, and the trial court did not err in denying Nelson’s request.

(2)        The Trial Court Has Remedied the Lack of an Affirmative Deadly-Weapon Finding in Nelson’s Judgment

            The jury found Nelson “guilty of Aggravated Assault with a Deadly Weapon as charged in the indictment”; and the verdict included an affirmative finding on a separate “special issue,” finding Nelson “used a deadly weapon, a pistol, during the commission of the offense.”  In fact, after the jury verdict was read, stating the jury found Nelson “guilty of aggravated assault with a deadly weapon as charged in the indictment,” the State asked if there had been a finding on the submitted special issue of use of a deadly weapon.  The jury had answered that question “Yes.”  Later, after the trial court had dismissed the jury and pronounced sentence, the attorney for the State made the following comment:

            [State’s Attorney]  Judge, the only other thing, I believe that in that judgment it needs to also pronounce the fact that there was an affirmative finding of the use of a deadly weapon.

            THE COURT:  Yeah, and the jury did find that and that was listed in the document, but I would note that the jury previously did find that it was aggravated assault with a deadly weapon with an affirmative finding of a deadly weapon.

Although the trial court’s statement may not be perfectly clear, the jury’s verdict contained an explicit affirmative finding, and Nelson never argued or objected that a deadly-weapon finding had not been made.  Here, the record presents a situation where the oral pronouncement of sentence did not agree with the written judgment.  The trial court’s judgment listed the offense for which Nelson had been convicted as “AGGRAVATED ASSAULT BODILY INJURY – DEADLY WEAPON,” but in the space to indicate whether the judgment included a finding on deadly weapon, the judgment reads, “N/A.”  The trial court later entered an amended judgment, however, stating in the same space that a deadly weapon, a firearm, had been used.

            As a general rule, when the oral pronouncement of sentence and the written judgment differ, the oral pronouncement controls.  Ex parte Huskins, 176 S.W.3d 818, 820 (Tex. Crim. App. 2005); see also Ex parte Thompson, 273 S.W.3d 177, 178 n.3 (Tex. Crim. App. 2008) (when oral pronouncement of sentence and written judgment vary, oral pronouncement controls and written judgment can be corrected via nunc pro tunc).  A nunc pro tunc judgment is appropriate to correct clerical errors in a judgment.  A clerical error is one “in which no judicial reasoning contributed to [its] entry, and for some reason [was] not entered of record at the proper time.”  State v. Bates, 889 S.W.2d 306, 309 (Tex. Crim. App. 1994); State v. Dudley, 223 S.W.3d 717, 721–22 (Tex. App.—Tyler 2007, no pet.); see also Tex. R. App. P. 23.1.  Nunc pro tunc orders are not appropriate to address “judicial errors,” that is, errors that are the product of judicial reasoning or determination.  Bates, 889 S.W.2d at 309; Dudley, 223 S.W.3d at 722.

            Here, the trial court’s amended judgment was an appropriate remedy to make the written judgment correctly reflect proceedings in the trial court; the jury clearly made an affirmative finding that Nelson used or exhibited a deadly weapon, and the trial court’s judgment now correctly reflects that finding.  See Ex parte Poe, 751 S.W.2d 873, 875–76 (Tex. Crim. App. 1988) (en banc) (once jury finds defendant used or exhibited deadly weapon during commission of  offense, trial court must enter in judgment a finding that deadly weapon was used or exhibited);  Jones v. State, 795 S.W.2d 199, 200 n.1 (Tex. Crim. App. 1990) (purpose of nunc pro tunc order is to have court records accurately reflect judgment actually rendered).

            These points of error are overruled.

(3)        Nelson Failed to Preserve His Complaint Regarding Notice of Enhancement Allegations

            At the beginning of the punishment phase, the State read to the jury two prior felony convictions for the purpose of seeking an elevated punishment range.  See Tex. Penal Code Ann. § 12.42(d) (Vernon Supp. 2009).  The indictment had alleged two prior Texas convictions, but when the State’s attorney read the enhancement allegations at the beginning of punishment, he instead read one of the Texas convictions specified in the indictment and a felony conviction from Arkansas.  Nevertheless, Nelson pled true to both allegations.  Nelson now claims that the oral notice of the State reading that Arkanasas conviction was insufficient.  We need not address that claim, because no error was preserved.

            We find nothing in the record indicating the State ever gave any form of notice that it would use an Arkansas conviction to enhance Nelson’s range of punishment.  Nevertheless, when the State read the details of that Arkansas conviction as well as one of the Texas convictions contained in the indictment’s habitual-offender paragraph, Nelson made no objection.^[3]  Rather, he pled “true” to both enhancement allegations.  When the State offered pen packets, containing judgments of conviction for the Arkansas felony and the two Texas felonies, Nelson, through his attorney, said, “Your Honor, those have been provided to me.  We have no objections.”   No objection having been made, we find Nelson failed to preserve for appellate complaint his argument that he did not receive sufficient notice of the State’s intent to use the Arkansas conviction for enhancement purposes.

            Nelson cites Luken v. State, 780 S.W.2d 264, 268 (Tex. Crim. App. 1989), for the proposition that “a defendant need not object to an indictment that lacks a notice of enhancement in order to preserve the issue for review.”  However, Luken involved the State’s failure to give the defendant notice that the State would seek an affirmative finding on the use or exhibition of a deadly weapon.  Luken did not object to the indictment’s lack of a deadly-weapon allegation.  The Texas Court of Criminal Appeals pointed out that, in the circumstances of that case, Luken had no reason to suspect the State would seek such a finding until it asked for a special issue on the matter in the guilt/innocence charge.  It is true the Luken court “analogize[d] . . . to submission of enhancement counts at the punishment stage of trial.”  Luken, 780 S.W.2d at 268.  But that discussion, and indeed most of the discussion in Luken, focused on the indictment’s lack of notice that the State would seek a finding on use or exhibition of a deadly weapon.  The holding of the Texas Court of Criminal Appeals in Luken centers on the fact that, in light of the then recently enacted Texas Code of Criminal Procedure Article 1.14(b), an indictment is not defective merely because it omits a deadly-weapon notice, or, conceivably, enhancement allegations.  It may be that Nelson interprets the following as relieving him of the duty to object to the lack of notice:

we would not hold that a trial court is authorized to find, or to submit the question to the jury whether an accused has been formerly convicted for purposes of enhancement of punishment under Chapter 12 of the Penal Code, on the theory that the accused failed to object that the indictment did not include enhancement allegations. Again, there is no “defect, error, or irregularity” in an indictment containing no enhancement counts.  It simply fails to place the accused’s status as a recidivist in issue. . . .  We similarly decline to hold that under Article 1.14(b), supra, an accused must object before trial to the failure of the State’s pleadings to allege use or exhibition of a deadly weapon in order to preserve any challenge to submission of that issue to the factfinder.

Id.

            Unlike Luken, Nelson was made aware that his status as a recidivist was in issue, as the indictment alleged two prior felony convictions under the title “HABITUAL OFFENDER NOTICE” and the possibility of an enhanced range of punishment of not less than twenty-five years, or more than ninety-nine years or life, was discussed at voir dire.

            We also find it significant that Luken predates Marin v. State, 851 S.W.2d 275, 279–80 (Tex. Crim. App. 1993), which detailed three categories of rights:  those which must be specifically invoked or else forfeited, those which must be explicitly waived, and those which cannot be waived.  We have found no authority indicating that notice of enhancement allegations, especially in a situation such as this where the defendant was clearly on notice that enhancement was being pursued, is a right which either cannot be waived or must be explicitly waived.  We, therefore, find that Nelson failed to preserve his claim of lack of advance notice regarding the State’s use of the Arkansas conviction for enhancement purposes.  See Harris v. State, 204 S.W.3d 19, 27 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d).^[4]  In this connection, it is worth emphasis that Nelson evinced no surprise or objection when the prospect of the enhanced sentence range was broached in voir dire, that he later pled true to the announced enhancement convictions, and that, when the State tendered into evidence the pen packets—providing the judgments establishing the enhancement allegations—he affirmatively stated that he had no objection to their admission and expressly acknowledged that they had been provided to him earlier.

            Finally, we point out that Nelson’s situation is different from those where a defendant pleads “true” to enhancement allegations or otherwise fails to object; but later complains that a prior conviction used for enhancement purposes was not final or otherwise did not properly engage the applicability of the habitual-offender statute.  See Williams v. State, No. 06-09-00133-CR, 2010 Tex. App. LEXIS 2257 (Tex. App.—Texarkana Mar. 31, 2010, pet. filed); Ex parte Rich, 194 S.W.3d 508, 513–14 (Tex. Crim. App. 2006); Sanders v. State, 785 S.W.2d 445 (Tex. App.—San Antonio 1990, no pet.).  Nelson’s situation is notice related, in other words, purely procedural, as contrasted to the other situation, in which there is a substantive defect in the prior conviction.

            Nelson failed to preserve this claim for appellate review.^[5]  Thus, the result reached by the trial court should be affirmed.

            There is, however, a small adjustment needed in the judgment.  The trial court’s amended judgment reads “N/A” in the blanks for pleas to, and findings on, enhancement paragraphs.  We reform the trial court’s judgment to indicate that Nelson pled true to the first and second enhancement paragraphs and that both paragraphs were found to be true.  See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993).

            We affirm the trial court’s judgment, as reformed.

                                                                                    Josh R. Morriss, III

                                                                                    Chief Justice

Date Submitted:          May 10, 2010 

Date Decided:             June 29, 2010

Do Not Publish          

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^[1]There was some indication Nelson’s “apartment” was a room in his parents’ home. 

^[2]It is worth pointing out that, even if there was any evidence entitling Nelson to assert his claim of defense of property, the record is completely devoid of any justification for his use of deadly force—shooting Bagsby twice and putting the gun to her head and threatening to kill her.  See Armstrong v. State, 179 S.W.3d 84, 88 (Tex. App.—Fort Worth  2005, no pet.) (no evidence supporting Armstrong’s assertion victim had knife, and therefore, Armstrong was justified in stabbing victim); Hudson v. State, 145 S.W.3d 323, 325 (Tex. App.—Fort Worth 2004, pet. ref’d) (“When there is no evidence of a belief that force is needed to defend property, a criminal defendant is not entitled to a jury instruction on defense of property.”); Hernandez v. State, 914 S.W.2d 218, 224 (Tex. App.—El Paso 1996, pet. ref’d) (although there was evidence defendant’s home had been site of drive-by shooting, that event had already occurred earlier in evening, hence no evidence to support defensive use of deadly force).

^[3]The Texas Court of Criminal Appeals has held that when the enhancement allegations are read at the beginning of the punishment phase, and the defendant offers no defense and does not request a continuance, constitutionally sufficient notice has been provided.  Villescas v. State, 189 S.W.3d 290, 294 (Tex. Crim. App. 2006) (“due process does not even require that the notice be given before the guilt phase begins”; and where defendant does not offer defense to enhancement allegations or suggest he or she needs continuance in order to prepare defense, “notice given at the beginning of the punishment phase satisfies the federal constitution” ).

^[4]Harris was convicted of felony DWI, and his sentence was enhanced under Section 12.42(d) of the Texas Penal Code.  On appeal, he claimed error, saying that one misdemeanor DWI conviction was used to elevate his instant charge to a felony; but that same misdemeanor had previously been used as a predicate to secure a prior felony DWI conviction, which was then used to enhance his range of punishment at his current trial.  The appellate court found that Harris failed to preserve this complaint with a timely trial objection.  Harris, 204 S.W.3d at 27.  Harris, just like Nelson, was clearly aware that enhancement was being sought.

^[5]See also Marshall v. State, 185 S.W.3d 899, 903 (Tex. Crim. App. 2006).  The State alleged prior felony convictions, but with citation to Section 12.42(b) of the Texas Penal Code, which would expose Marshall to a first-degree punishment range.  Tex. Penal Code Ann. § 12.42(b) (Vernon Supp. 2009).  Other felony convictions were noticed, in a pleading expressing intent to introduce evidence of extraneous acts.  Tex. Code Crim. Proc. Ann. art. 37.07, § (3)(a), (g) (Vernon Supp. 2009).  The Texas Court of Criminal Appeals noted that, in the particular circumstances of that case, Marshall may not have been aware the State was seeking the higher range of punishment provided in Section 12.42(d).  “However, when the jury charge was read and it became abundantly clear that the state was asking for enhancement far beyond that specified in its notice to appellant, appellant was bound to object.”  Marshall, 185 S.W.3d at 903.