Opinion issued August 16, 2016
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-15-00043-CR ——————————— DEJESUS FOBBS, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 356th District Court Hardin County, Texas1 Trial Court Case No. 22960
MEMORANDUM OPINION
1 Pursuant to its docket equalization authority, the Supreme Court of Texas transferred the appeal to this court. See Misc. Docket No. 14–9246 (Tex. Dec. 15, 2014); see also TEX. GOV’T CODE ANN. § 73.001 (Vernon 2013) (authorizing transfer of cases). A jury found appellant, Dejesus Fobbs, guilty of the felony offense of
possession of a controlled substance, namely cocaine, weighing more than four
grams but less than 200 grams.2 After finding true the allegations in two
enhancement paragraphs that appellant had been twice previously convicted of
felony offenses, the jury assessed his punishment at confinement for ninety-nine
years. In four issues, appellant contends that the evidence is legally insufficient “to
prove [that] the first enhancement paragraph [concerns] a valid prior conviction” and
the trial court erred in omitting an application paragraph regarding its instruction to
the jury to disregard unlawfully obtained evidence,3 admitting certain “contextual”
evidence during the guilt phase of trial, and admitting “a noncertified copy of a
judgment” of prior conviction during the punishment phase of trial.
We modify the trial court’s judgment and affirm as modified.
Background
Former Silsbee Police Department Officer T. Hartless testified that while on
patrol at 2:30 a.m. on May 20, 2014, he “noticed an interior light on” and
“something” in a car stopped in a driveway. At the start of his shift that night,
Hartless had been “notified” about an increase in “[a]uto burglaries” in the area, and
2 See TEX. HEALTH & SAFETY CODE ANN. § 481.002(5) (Vernon Supp. 2015), §§ 481.102(3)(D), 481.115(a), (d) (Vernon 2010). 3 See TEX. CODE CRIM. PROC. ANN. art. § 38.23(a) (Vernon 2005).
2 he had previously spoken to homeowners who had requested “extra patrol[s]”
because of the “recent auto burglaries.” Thus, the activated “interior light” in the
car, the “recent reports of auto burglaries,” and the “time of night or early morning”
are what prompted Hartless to stop to investigate.
Officer Hartless explained that when he activated the “overhead alley light”
on his patrol car, he “noticed someone in the vehicle moving about” and “slumped
over the console.” When he exited his patrol car and approached the driver’s side
window of the car, he saw appellant, the person inside the car, “pop[] open [a]
newspaper to . . . hinder [Hartless’s] ability to observe what was going on inside the
vehicle.” When Hartless knocked on the driver’s side window, appellant
“[c]racked” or “[r]olled . . . down” the window “three or four inches.” Hartless then
smelled, “coming out of the vehicle,” an odor, which, based on his training and
experience as a law enforcement officer, he identified as “burnt marijuana.”
Officer Hartless then asked appellant to “step out of the vehicle.” After he
did, Hartless “physically patted him down” to check for weapons, handcuffed him,
and placed him in the back of his patrol car because of “officer safety” concerns.
Hartless then returned to appellant’s car to conduct a search because of “the odor of
burnt marijuana.”
Upon returning to appellant’s car, Officer Hartless saw “in plain view” in the
“open” center console several “bags” of “Kush, K2,” also known as “synthetic
3 marijuana,” and a “small bag” of marijuana. He then returned to his patrol car to
determine whether appellant was “holding” any other contraband “on his person.”
While searching appellant, Hartless found $1802 in his left-front pocket and a
“magazine for a gun, fully loaded with ammunition,” in his right-rear pocket. When
Hartless “removed” appellant’s hat, he saw “two bags” of cocaine “sitting on [top of
appellant’s] head.” Hartless, based on his training and experience, opined that the
substance in the “two bags” was cocaine, and he placed appellant under arrest.
Officer Hartless returned to appellant’s car because he had discovered a “fully
loaded magazine” on appellant’s person, but “no firearm.” He then found “a Beretta
handgun -- pistol,” “sitting between the [front] passenger seat and the center
console.” And inside the handgun was “a magazine clip with bullets.” Hartless
explained that he also saw “burnt marijuana” in the car’s ashtray, but he did not
collect or photograph it.
Jennifer Johnson, a forensic scientist for the Texas Department of Public
Safety Crime Lab in Houston, testified that she analyzes unknown substances that
are suspected to be controlled substances. In this case, she analyzed “an off-white
substance,” which was found in “two packages.” The substance from the first
package weighed 4.53 grams, and the substance from the second package weighed
4.24 grams. Johnson’s testing revealed that the substance contained in each package
was cocaine.
4 Article 38.23 Instruction
In his first issue, appellant argues that the trial court erred in “failing to include
an application paragraph” regarding its instruction to the jury to disregard unlawfully
obtained evidence, thereby “depriv[ing]” him of “a fair and impartial trial,” because
“[i]t is not sufficient for the jury to receive an abstract instruction on the law” and
“an application paragraph is a necessary portion of the charge.” See TEX. CODE
CRIM. PROC. ANN. art. 38.23(a) (Vernon 2005).
We review jury charge error in a two-step process. Ngo v. State, 175 S.W.3d
738, 743–44 (Tex. Crim. App. 2005). First, we determine whether error exists in the
charge. Id. If so, we turn to the record to determine whether the error caused
sufficient harm to require reversal of the conviction. Id. If, as here, a defendant did
not make a proper objection at trial, he will obtain a reversal only if the error was so
egregiously harmful that he did not have a fair and impartial trial.4 See id.; Almanza
v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984).
Article 38.23 provides in pertinent part:
No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.
In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the
4 In his brief, appellant concedes that he “did not object at trial and therefore, . . . must show egregious harm that deprived him of a fair and impartial trial.”
5 evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained.
TEX. CODE CRIM. PROC. ANN. art. 38.23(a). In other words, if a fact issue exists
concerning whether evidence was unlawfully obtained, then a trial court must
instruct the jury that if it believes that the evidence was so obtained, then it should
disregard such evidence. Madden v. State, 242 S.W.3d 504, 509–11 (Tex. Crim.
App. 2007); Pierce v. State, 32 S.W.3d 247, 251 (Tex. Crim. App. 2000). Notably
though, a defendant’s right to the submission of an instruction under article 38.23(a)
“is limited to disputed issues of fact that are material to his claim of a constitutional
or statutory violation that would render evidence inadmissible.” Madden, 242
S.W.3d at 509–10. And before a defendant is entitled to the submission of a jury
instruction under article 38.23(a), he must meet three requirements: “(1) [t]he
evidence heard by the jury must raise an issue of fact; (2) [t]he evidence on that fact
must be affirmatively contested; and (3) [t]h[e] contested factual issue must be
material to the lawfulness of the challenged conduct in obtaining the evidence.” Id.
at 510.
Under the first requirement, there must be a genuine dispute about a material
issue of fact before an article 38.23 instruction is warranted; if there is no disputed
fact issue, the court alone determines the legality of the conduct, as a matter of law.
Id. In order for there to be a conflict in the evidence that raises a disputed fact issue,
6 there must be some affirmative evidence in the record that puts the existence of the
fact in question. Id. at 513. Furthermore, if other facts, not in dispute, are sufficient
to support the lawfulness of the challenged conduct, then the disputed fact issue is
not material to the ultimate admissibility of the evidence and is not to be submitted
to the jury. Id. at 510. The disputed fact issue must be essential to deciding the
lawfulness of the challenged conduct. Id. at 511.
Appellant asserts that the evidence raised a fact issue regarding “the existence
of the burnt marijuana that led to the search and then . . . to the discovery of the
cocaine.” He notes that “[d]uring cross-examination, Officer Hartless admitted that
he took no photographs at the scene,” “[t]here are no pictures of any burnt
marijuana,” and although Hartless “testified that he saw burnt marijuana,” “he did
not recover the burnt marijuana.”
Officer Hartless testified that after he approached the car in which appellant
was sitting, he knocked on the driver’s side window. Appellant then “[c]racked” or
“[r]olled . . . down” the window “three or four inches.” Hartless could smell,
“coming out of the vehicle,” an odor, which, based on his training and experience as
a law enforcement officer, he identified as “burnt marijuana.”
After detaining appellant in the back of his patrol car, Hartless returned to
appellant’s car to conduct a search because of “the odor of burnt marijuana coming
out of it.” He then saw “in plain view” in the “open” center console several “bags”
7 of “Kush, K2,” also known as “synthetic marijuana,” and a “small bag” of marijuana.
And Hartless explained that he saw “burnt marijuana” in the car’s ashtray. He
admitted, however, that he did not collect or photograph it.
Appellant did not present any evidence or elicit any testimony to contradict
Officer Hartless’s testimony. Thus, he did not raise a fact question about the
“existence of the burnt marijuana.” See Rose v. State, 470 S.W.2d 198, 200 (Tex.
Crim. App. 1971) (no jury issue raised where defendant called no witness to
controvert law enforcement officers’ testimony about events and circumstances at
time of arrest, and cross-examination did not raise fact issue); Shpikula v. State, 68
S.W.3d 212, 216–17 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d) (type of
factual dispute article 38.23 contemplates not raised where defendant “did not testify
or call any witness who controverted the State’s proof”).
The record does not demonstrate that any factual dispute exists as to how
Officer Hartless obtained the evidence in this case; his testimony on the matter was
uncontroverted. Because the evidence presented at trial did not raise a fact issue,
appellant was not entitled to the submission of an article 38.23 instruction. And
because appellant was not entitled to an article 38.23 instruction in the first place,
the trial court did not err in not submitting to the jury an “application paragraph”
regarding its instruction to disregard unlawfully obtained evidence. See, e.g., Jones
v. State, No. 01-03-00161-CR, 2004 WL 396443, at *3 (Tex. App.—Houston [1st
8 Dist.] Mar. 4, 2004, pet. ref’d) (mem. op., not designated for publication) (where
defendant “did not present a factual dispute” and “was not entitled to an article 38.23
instruction,” “trial court did not err by failing to give [his] requested article 38.23
application paragraph in the charge”); Lopez v. State, No. 01-02-00576-CR, 2003
WL 22456108, at *2 (Tex. App.—Houston [1st Dist.] Oct. 30, 2003, pet. ref’d)
(mem. op., not designated for publication) (overruling defendant’s complaint, “trial
court erred by failing to include an application paragraph” and “allowing the jury
charge to proceed with an abstract statement of article 38.23,” where defendant “had
no right to an article 38.23 instruction at all”).
Accordingly, we hold that the trial court did not err in not including in its
charge to the jury an application paragraph regarding its instruction to disregard
unlawfully obtained evidence.
We overrule appellant’s first issue.
Admission of Evidence
In his second issue, appellant argues that the trial court erred in admitting
“contextual” evidence that he was “in possession of a magazine loaded with
ammunition and a pistol was found in the vehicle where he was sitting” because
“[t]he events surrounding [his] arrest for possession of cocaine could have easily and
fully been described to the jury without the admission” of such evidence.
9 We review a trial court’s decision to admit or exclude evidence for an abuse
of discretion. See Rodriguez v. State, 203 S.W.3d 837, 841 (Tex. Crim. App. 2006).
A trial court abuses its discretion if it acts arbitrarily, unreasonably, or without
reference to any guiding rules or principles. Montgomery v. State, 810 S.W.2d 372,
380 (Tex. Crim. App. 1990). When considering a trial court’s decision to admit
evidence, we will not reverse the trial court’s ruling unless it falls outside the “zone
of reasonable disagreement.” Green v. State, 934 S.W.2d 92, 102 (Tex. Crim. App.
1996) (internal quotations omitted). We will uphold a trial court’s evidentiary ruling
if it is correct on any theory of law applicable to that ruling. De La Paz v. State, 279
S.W.3d 336, 344 (Tex. Crim. App. 2009).
Appellant asserts that “[t]he State was able to fully describe why [Officer
Hartless] approached [him], why [Hartless] decided to search the vehicle,” and “why
[Hartless] further searched [him] and located the cocaine” “without any need to
mention the loaded magazine located in [his] pocket” or the handgun found in his
car. Appellant further asserts that “[a]ny argument that the introduction of the
handgun was necessary to the search for and locating of the cocaine is simply false”
and “[t]he fact that [Hartless] found a magazine with ammunition is . . . without
consequence to the finding of the cocaine.”
Officer Hartless did testify about his discovery of a “magazine for a gun, fully
loaded with ammunition in it” in appellant’s right-rear pocket, “a Beretta
10 handgun -- pistol,” “sitting between the [front] passenger seat and the center
console” of appellant’s car, and “a magazine clip with bullets” inside the handgun
found in appellant’s car. And the State did introduce into evidence photographs of
both magazines, the ammunition, and the handgun during Hartless’s testimony.
However, we need not decide whether the trial court erred in admitting this evidence
because, even were we to conclude that it so erred, appellant has not shown that he
was harmed by the admission of the evidence.
The erroneous admission of evidence constitutes non-constitutional error.
Coble v. State, 330 S.W.3d 253, 280 (Tex. Crim. App. 2010); Solomon v. State, 49
S.W.3d 356, 365 (Tex. Crim. App. 2001). Non-constitutional error requires reversal
only if it affects the substantial rights of the accused. See TEX. R. APP. P. 44.2(b);
Barshaw v. State, 342 S.W.3d 91, 93–94 (Tex. Crim. App. 2011). “A substantial
right is affected when the error had a substantial and injurious effect or influence in
determining the jury’s verdict.” King v. State, 953 S.W.2d 266, 271 (Tex. Crim.
App. 1997). We will not overturn a criminal conviction for non-constitutional error
if, after examining the record, we have fair assurance that the error did not influence
the jury, or had but a slight effect. Barshaw, 342 S.W.3d at 93–94.
We review the entire record to ascertain the effect or influence of the
wrongfully admitted evidence on the verdict. Id. In assessing the likelihood that the
jury’s decision was improperly influenced, we consider the record as a whole,
11 including testimony and physical evidence, the nature of the evidence supporting the
verdict, and the character of the alleged error and how it might be considered in
connection with other evidence in case. Id. at 94; see also Motilla v. State, 78
S.W.3d 352, 355–56 (Tex. Crim. App. 2002). Notably, error in the admission of
evidence may be rendered harmless when substantially the same evidence is
admitted elsewhere at trial without objection. See Leday v. State, 983 S.W.2d 713,
717–18 (Tex. Crim. App. 1998); Anderson v. State, 717 S.W.2d 622, 628 (Tex.
Crim. App. 1986).
Our review of the record reveals that Officer Hartless testified, without
objection, on several occasions about his discovery of the loaded magazine in
appellant’s right-rear pocket and the handgun, containing another loaded magazine,
in appellant’s car. For instance, Hartless testified:
A. Once I discovered the marijuana, I returned to [appellant] -- he is in the back seat of my patrol car -- to further search his person.
Q. Why do you do that?
A. To find out if there is any other contraband that he is holding on his person.
....
Q. When you do, tell the jury what you found.
A. Whenever I removed him out of the backseat of my patrol car, in his left-front pocket, I believe there was a large amount -- large amount of money; $1802, to be exact. As I continued going through his pockets, I made my way around to the right 12 pocket -- right rear pocket, actually really deep pockets. At the very bottom of the pocket, there was a magazine for a gun, fully loaded with ammunition in it.
Q. And you make a further search of the vehicle incident to the arrest or incident before you impound the car?
A. I searched the vehicle incident to arrest before anything. I go back to the vehicle. I still have a magazine -- you know, fully loaded magazine with no firearm. At that point, I’m going to inventory the car.
Q. So, you go back and inventory the car. Tell the jury what you find.
A. When I go back to the car, I find a Beretta handgun -- pistol. It’s sitting between the passenger seat and the center console.
Q. That’s the passenger seat, right?
A. Yes, sir.
Q. Not the driver’s seat?
A. Correct.
Q. When you came up to the car, was [appellant] in the driver’s seat or passenger seat?
A. He was in the driver’s seat.
Q. Okay. But you also found a magazine clip with bullets in it, right?
13 (Emphasis added.)
Although appellant did object when the State sought to introduce into
evidence State’s Exhibits 3 and 4, photographs of both magazines, the ammunition,
and the handgun found on appellant’s person and in his car, he did not object to the
above quoted testimony. It has long been the rule that any error in the admission of
evidence is harmless where other evidence that is substantially similar was admitted
without objection, either before or after the complained-of ruling, regardless of
whether the other evidence was introduced by the defendant or the State.5 See Leday,
983 S.W.2d at 717–18; Anderson, 717 S.W.2d at 628; Chapman v. State, 150 S.W.3d
809, 814 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d).
Accordingly, we hold that the error, if any, of the trial court in admitting
evidence that appellant was “in possession of a magazine loaded with ammunition
and a pistol was found in the vehicle where he was sitting” was harmless.
We overrule appellant’s second issue.
Sufficiency of Evidence for Enhancement
In his fourth issue, appellant argues that the evidence is legally insufficient
“to prove the first enhancement paragraph [concerns] a valid prior conviction”
5 In his brief, appellant notes that he “objected to the admission of any evidence of a gun during his motion in limine”; however, a motion in limine does not preserve error. Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003).
14 because “the [pertinent] judgment states on its face that it could be a state jail
conviction,” and thus, “could not be used to enhance” the current felony offense.
We review the legal sufficiency of the evidence by considering all of the
evidence in the light most favorable to the jury’s verdict to determine whether any
“rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 318–19, 99 S. Ct. 2781, 2788–
89 (1979); Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Our role
is that of a due process safeguard, ensuring only the rationality of the trier of fact’s
finding of the essential elements of the matter beyond a reasonable doubt. See
Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). We give deference
to the responsibility of the fact finder to fairly resolve conflicts in testimony, weigh
evidence, and draw reasonable inferences from the facts. Williams, 235 S.W.3d at
750.
These standards apply irrespective of whether a defendant attacks the
sufficiency of the evidence underlying his conviction or the “affirmative findings
necessary to sustain the imposition of an enhanced punishment.” Young v. State, 14
S.W.3d 748, 750 (Tex. Crim. App. 2000). To establish that a defendant was
convicted of a prior offense, the State is required to prove beyond a reasonable doubt
that a prior conviction exists and that the defendant is linked to that conviction.
Flowers v. State, 220 S.W.3d 919, 921 (Tex. Crim. App. 2007).
15 Texas Penal Code section 12.42, the habitual-offender statute, provides in
pertinent part:
Except as provided by Subsection (c)(2) or (c)(4), if it is shown on the trial of a felony offense other than a state jail felony punishable under Section 12.35(a) that the defendant has previously been finally convicted of two felony offenses, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final, on conviction the defendant shall be punished by imprisonment in the Texas Department of Criminal Justice for life, or for any term of not more than 99 years or less than 25 years. A previous conviction for a state jail felony punishable under Section 12.35(a) may not be used for enhancement purposes under this subsection.
TEX. PENAL CODE ANN. § 12.42(d) (Vernon Supp. 2015). Thus, the State had the
burden to prove, beyond a reasonable doubt, that appellant committed the primary
offense and that the enhancement paragraphs complied with the statutory
requirements. See Ex parte Augusta, 639 S.W.2d 481, 484–85 (Tex. Crim. App.
1982), overruled on other grounds Bell v. State, 994 S.W.2d 173 (Tex. Crim. App.
1999); Salazar v. State, 474 S.W.3d 832, 837–39 (Tex. App.—Corpus Christi 2015,
no pet.); Williams v. State, 980 S.W.2d 222, 226 (Tex. App.—Houston [14th Dist.]
1998, pet. ref’d). In other words, for the State to show that appellant was subject to
punishment as a habitual offender in this case, it was required to put forth evidence
that before the commission of the primary offense—possession of a controlled
substance, namely cocaine, weighing more than four grams but less than 200
grams—appellant had previously been finally convicted of two felonies that were
16 subject to being used for enhancement purposes under section 12.42(d). See TEX.
PENAL CODE ANN. § 12.42(d); Williams, 980 S.W.2d at 226; Salazar, 474 S.W.3d at
837–39.
The State’s enhancement paragraphs alleged as follows:
Enhancement Paragraph No. 1
And it is further presented in and to said Court that, prior to the commission of the aforesaid offense (hereafter styled the primary offense), on or about January 29, 1998, in cause number 13997 in 356th District Court of Hardin County, Texas, the defendant was convicted of the felony offense of Possession of a Controlled Substance.
Enhancement Paragraph No. 2
And it is further presented in and to said Court that, prior to the commission of the primary offense and after the commission of the above referenced case, that on or about September 14, 2000, in cause number 15158 in 356th District Court of Hardin County, Texas, the defendant was convicted of the felony offense of Theft.
To prove the first enhancement allegation, the State introduced into evidence,
State’s Exhibit 12A, the trial court’s January 29, 1998 judgment in cause number
13997.6 See Flowers, 220 S.W.3d at 921–22; Salazar, 474 S.W.3d at 838 (“To prove
the enhancement the State offered the prior judgments into evidence.”). The
complained-of judgment indicates that appellant was convicted of possession of a
controlled substance and sentenced to confinement for four years in the “Institutional
6 We again note that appellant challenges the sufficiency of the evidence only as to the “first enhancement paragraph.”
17 Division of the Texas Department of Criminal Justice.” See TEX. HEALTH & SAFETY
CODE ANN. § 481.116 (Vernon 2010) (offense of possession of controlled substance
in Penalty Group 2); see also id. §§ 481.002(5), 481.103 (Vernon Supp. 2015). In
regard to the “Degree” of the “Offense Convicted of,” the judgment states:
“481.116(b) (c).”
Texas Health and Safety Code section 481.116(b) provides that possession of
a controlled substance “is a state jail felony if the amount of the controlled substance
possessed is . . . less than one gram.” Id. § 481.116(b) (emphasis added). However,
section 481.116(c) states that possession of a controlled substance is a third degree
felony “if the amount of the controlled substance is . . . one gram or more but less
than four grams.” Id. § 481.116(c).
State jail felony offenses are punished pursuant to Texas Penal Code section
12.35, which provides: “[A]n individual adjudged guilty of a state jail felony shall
be punished by confinement in a state jail for any term of not more than two years
or less than 180 days.” TEX. PENAL CODE ANN. § 12.35(a) (Vernon Supp. 2015).
And third degree felony offenses are punished pursuant to section 12.34, which
provides: “An individual adjudged guilty of a felony of the third degree shall be
punished by imprisonment in the Texas Department of Criminal Justice for any term
of not more than 10 years or less than 2 years.” Id. § 12.34(a) (Vernon 2011).
18 Appellant argues that the trial court’s judgment in cause number 13997 was
not “[]sufficient to prove valid enhancement” because it “leaves open the question
as to whether [it] was for a state jail [felony] offense (481.116(b)) or a third degree
[felony] offense (481.116(c)).” And “[a] [s]tate [j]ail felony under Tex. Penal Code
§ 12.35(a) cannot be used to enhance a non-state jail offense to habitual status.”
Here, however, the trial court’s judgment in cause number 13997 clearly
indicates that appellant was sentenced to confinement for four years in the
“Institutional Division of the Texas Department of Justice.” This sentence is
consistent with a conviction of a third degree felony offense and is double the
possible sentence for a conviction of a state jail felony offense under Penal Code
section 12.35(a).7 See TEX. PENAL CODE ANN. §§ 12.34(a) (providing for term of
imprisonment in “Texas Department of Criminal Justice for any term of not more
than 10 years or less than 2 years”), 12.35(a) (providing for punishment by
“confinement in a state jail for any term of not more than two years or less than 180
days”); cf. Salazar, 474 S.W.3d at 837–39 (overruling defendant’s complaint State
improperly used state jail felony offense for enhancement purposes, and holding
evidence legally sufficient to support enhancement, where prior judgment showed
7 In his brief, appellant concedes that the “actual term of the sentence” “indicate[s] that the judgment was not for a state jail felony.”
19 trial court sentenced defendant to “four years’ imprisonment on the prior offense, a
sentence double that permitted pursuant to [section] 12.35(a)”).
Regardless, appellant argues that the trial court’s judgment in cause number
13997, which imposed a sentence of confinement for four years in the “Institutional
Division of the Texas Department of Justice,” could still have been “for a state jail
felony” offense, and not a third degree felony offense, because under certain
circumstances “a state jail felony c[an] be punished as a third degree felony”
pursuant to Penal Code section 12.35(c). See TEX. PENAL CODE ANN. § 12.35(c).
However, this argument is not persuasive.
Notably, the habitual-offender statute provides only that “[a] previous
conviction for a state jail felony offense punishable under Section 12.35(a) may not
be used for enhancement purposes.” Id. § 12.42(d) (emphasis added); see also
Campbell v. State, 49 S.W.3d 874, 877 (Tex. Crim. App. 2001) (section 12.42(d)
permits enhancement by use of aggravated state jail felony convictions punished
pursuant to section 12.35(c)); Salazar, 474 S.W.3d at 838 (important distinction
between whether defendant previously punished for state jail felony offense under
section 12.35(a) or 12.35(c) because habitual-offender statute “provides that if the
prior conviction was pursuant to 12.35(a), it may not be used for enhancement
purposes”). And, as noted previously, the trial court’s judgment in cause number
13997 clearly indicates that appellant was not punished pursuant to section 12.35(a)
20 for a state jail felony offense. See TEX. PENAL CODE ANN. § 12.35(a) (“[A]n
individual adjudged guilty of a state jail felony shall be punished by confinement in
a state jail for any term of not more than two years or less than 180 days.”).
The evidence establishes that appellant’s prior conviction in trial court cause
number 13997 was for the third degree felony offense of possession of a controlled
substance. Thus, viewing the evidence in the light most favorable to the finding of
the trier of fact, we conclude that it could have reasonably found the allegations in
the first enhancement paragraph true beyond a reasonable doubt. Accordingly, we
hold that the evidence is legally sufficient to support the finding.
We overrule appellant’s fourth issue.
Punishment Evidence
In his third issue, appellant argues that the trial court erred in admitting into
evidence, during the punishment phase of trial, State’s Exhibit 12B, “a noncertified
copy” of the trial court’s judgment in cause number 14045, evidencing his prior
conviction of the felony offense of delivery of a controlled substance, because the
judgment was not properly authenticated.8 See TEX. R. EVID. 901, 902(4).
Again, we review a trial court’s decision to admit or exclude evidence for an
abuse of discretion. See Rodriguez, 203 S.W.3d at 841. Here, we need not decide
whether the trial court erred in admitting State’s Exhibit 12B because, even were we
8 This conviction was not used by the State for enhancement purposes.
21 to conclude that the trial court so erred, appellant has not shown that he was harmed
by the admission of the evidence.
As stated previously, the erroneous admission of evidence constitutes
non-constitutional error, which requires reversal only if it affects the substantial
rights of the accused. See TEX. R. APP. P. 44.2(b); Barshaw, 342 S.W.3d at 93–94;
Coble, 330 S.W.3d at 280; Solomon, 49 S.W.3d at 365. “A substantial right is
affected when the error had a substantial and injurious effect or influence in
determining the jury’s verdict,” and we will not overturn a criminal conviction for
non-constitutional error if, after examining the record, we have fair assurance that
the error did not influence the jury, or had but a slight effect. Barshaw, 342 S.W.3d
at 93–94; King, 953 S.W.2d at 271.
At the punishment phase of trial, the State introduced into evidence seven
judgments, evidencing appellant’s seven prior convictions. State’s Exhibit 12A, the
trial court’s judgment in cause number 13997, establishes appellant’s previous
conviction for the felony offense of possession of a controlled substance, for which
he received a sentence of confinement for four years. State’s Exhibit 13, the trial
court’s judgment in cause number 15158, establishes appellant’s previous
conviction for the felony offense of theft, for which he received a sentence of
confinement for four years. State’s Exhibit 14, the trial court’s judgment in cause
number 14201, establishes appellant’s previous conviction for the felony offense of
22 delivery of a controlled substance, for which he received a sentence of confinement
for eight months. State’s Exhibit 15, the trial court’s judgment in cause number
14918, establishes appellant’s previous conviction for the felony offense of delivery
of a controlled substance, for which he received a sentence of confinement for 180
days. State’s Exhibit 16, the Jefferson County Criminal District Court’s judgment
in cause number 07-00742, establishes appellant’s previous conviction for the felony
offense of possession of a controlled substance, for which he received a sentence of
confinement for eighteen months. State’s Exhibit 17, a federal district court’s
judgment in cause number 1:01CR00070-001, establishes appellant’s previous
conviction for the violation of 21 U.S.C. § 860, “[p]ossession [w]ith [i]ntent to
[d]istribute [l]ess [t]han 5 [g]rams of [c]ocaine [b]ase [w]ithin 1,000 [f]eet of a
[p]ublic [e]lementary [s]chool,” for which he received a sentence of confinement for
fifty-one months. And State’s Exhibit 12B, about which appellant now complains,
the trial court’s judgment in cause number 14045, which establishes appellant’s
previous conviction for the felony offense of delivery of a controlled substance, for
which he received a sentence of confinement for eight months.
Also during the punishment phase of trial, three law enforcement officers,
familiar with appellant, testified that he is “not a law-abiding citizen,” has a “very
negative” reputation in the community, and is known as a “street-level dealer.” They
further testified that nothing “good” could be said about him.
23 The State, during its closing argument at punishment, did briefly refer to
appellant’s conviction in trial court cause number 14045, as established by State’s
Exhibit 12B, for the felony offense of delivery of a controlled substance. However,
it did so in response to appellant’s own argument that he was “a [narcotics] user,”
“not a dealer.” And the State did not, in its argument, single out appellant’s
conviction in trial court cause number 14045. It referred to appellant’s other prior
convictions about which he does not complain on appeal. Further, the State
generally referred to appellant’s known “reputation” as a non-law-abiding citizen.
Notably, the State did not place greater weight or emphasis on appellant’s conviction
in cause number 14045 during its closing argument. And the State did not rely on
this previous conviction for enhancement purposes.
Considering the record as a whole, we cannot conclude that the error, if any,
of the trial court in admitting State’s Exhibit 12B, “a noncertified copy” of the trial
court’s judgment in cause number 14045, into evidence had a substantial or injurious
effect on the jury’s decision in punishment. See Crain v. State, 373 S.W.3d 811, 816
(Tex. App.—Houston [14th Dist.] 2012, pet. ref’d) (holding any error in admission
of evidence of prior conviction harmless where State “introduced evidence of three
other extraneous offenses or bad acts”). Accordingly, we hold that the error, if any,
of the trial court in admitting State’s Exhibit 12B into evidence, was harmless.
We overrule appellant’s third issue.
24 Modification of Judgment
We note that the trial court’s written judgment does not accurately comport
with the record in this case in that it states “N/A,” meaning “not applicable,” in
regard to appellant’s “[p]lea to 1st [e]nhancement [p]aragraph” and “[p]lea to 2nd
[e]nhancement/[h]abitual [p]aragraph.” Further, the judgment states “N/A” in
regard to the jury’s “[f]indings on 1st [e]nhancement [p]aragraph” and “[f]indings
on 2nd [e]nhancement/[h]abitual [p]aragraph.” See Dromgoole v. State, 470 S.W.3d
204, 226–27 (Tex. App.—Houston [1st Dist.] 2015, pet. ref’d) (judgment incorrectly
reflected trial court’s finding on enhancement paragraph was “n/a,” meaning “not
applicable” (internal quotations omitted)).
The record reveals that appellant actually pleaded “Not true” to the allegations
in the two enhancement paragraphs that he had been twice previously convicted of
felony offenses, and the jury found the allegations in both enhancement paragraphs
to be “True.”
“[A]ppellate court[s] ha[ve] the power to correct and reform a trial court
judgment ‘to make the record speak the truth when it has the necessary data and
information to do so, or make any appropriate order as the law and nature of the case
may require.’” Nolan v. State, 39 S.W.3d 697, 698 (Tex. App.—Houston [1st Dist.]
2001, no pet.) (quoting Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—Dallas
1991, pet ref’d)). Although neither party addresses the inconsistency between the
25 trial court’s written judgment and the record in this case, we, based on our review,
conclude that the portion of the judgment regarding appellant’s pleas as to the
allegations in the two enhancement paragraphs, and the jury’s findings, do not
accurately comport with the record. See Asberry, 813 S.W.2d at 529–30 (authority
to correct incorrect judgment not dependent upon request of any party).
Accordingly, we modify the trial court’s judgment to reflect that appellant
pleaded “Not true” to the “1st [e]nhancement [p]aragraph” and the “2nd
[e]nhancement/[h]abitual [p]aragraph.” We further modify the trial court’s
judgment to reflect that the jury found the allegations in the “1st [e]nhancement
[p]aragraph” and the “2nd [e]nhancement/[h]abitual [p]aragraph” “True.” See TEX.
R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993);
Torres v. State, 391 S.W.3d 179, 185 (Tex. App.—Houston [1st Dist.] 2012, pet.
ref’d) (modifying judgment to state defendant pleaded “true” to allegations in
enhancement paragraphs).
26 Conclusion
We affirm the judgment of the trial court as modified.
Terry Jennings Justice
Panel consists of Justices Jennings, Massengale, and Huddle.
Do not publish. TEX. R. APP. P. 47.2(b).