Modify and Affirm; Opinion Filed October 5, 2020
In The Court of Appeals Fifth District of Texas at Dallas No. 05-18-00271-CR
RICKY MORENO, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 283rd Judicial District Court Dallas County, Texas Trial Court Cause No. F17-00878-T
MEMORANDUM OPINION ON REMAND Before Chief Justice Burns, Justice Myers, and Justice Molberg Opinion by Justice Myers A jury convicted appellant Ricky Moreno of aggravated kidnapping and
assessed punishment at 45 years’ imprisonment and a $10,000 fine. Appellant
brought ten issues, arguing the evidence was (1) legally and (2) factually insufficient
to support the jury’s rejection of his affirmative defense of duress; (3) the evidence
was legally insufficient to support the jury’s rejection of his justification defense of
necessity; (4) the trial court improperly instructed the jury on the law of parties; (5)
the trial court erred in admitting video evidence; (6), (7), and (8) the trial court erred
in excluding from the guilt–innocence phase testimony from, respectively, Dr. Lisa
Clayton, Dr. Michael Pittman, and Detective Michael Yeric showing appellant suffered from post-traumatic stress disorder, or PTSD; (9) the trial court erred in
denying appellant’s pretrial motion to suppress; and (10) the sentence was
disproportionate to appellant’s conduct during the offense and punishments received
by other bystanders. The State also brought a cross-point seeking modification of
the judgment.
We reversed and remanded, concluding that evidence regarding PTSD was
relevant to showing duress. The Court of Criminal Appeals disagreed, reversing and
remanding the case for us to resolve issues—appellant’s issues (2), (4), (5), and
(10)—that were not addressed in our original opinion. See Moreno v. State, 586
S.W.3d 472 (Tex. App.—Dallas 2019), reversed, __ S.W.3d ___, No. PD-1044-19,
2020 WL 3265252, at *3 (Tex. Crim. App. June 17, 2020). Having now done so,
we affirm the trial court’s judgment as modified.
DISCUSSION
Issue 2: Factual Sufficiency
In his second issue, appellant contends the evidence is factually insufficient
to support the jury’s rejection of appellant’s affirmative defense of duress.1
Unlike criminal convictions that are only subject to legal sufficiency review,
we may review a finding rejecting an affirmative defense for both legal and factual
sufficiency. Butcher v. State, 454 S.W.3d 13, 20 (Tex. Crim. App. 2015); Matlock
1 Appellant also argued the evidence was legally insufficient to support the jury’s rejection of his affirmative defense of duress, a claim we addressed in our previous opinion. –2– v. State, 392 S.W.3d 662, 668–70 (Tex. Crim. App. 2013). In a factual sufficiency
review of a finding rejecting an affirmative defense, we view the entirety of the
evidence in a neutral light, but do not usurp the function of the jury by substituting
our own judgment in place of the jury’s assessment of the weight and credibility of
the witnesses’ testimony. Matlock v. State, 392 S.W.3d 662, 671 (Tex. Crim. App.
2013). We may sustain a defendant’s factual sufficiency claim only if we determine
that the verdict is so against the great weight of the evidence as to be manifestly
unjust, conscience-shocking, or clearly biased. Id. When addressing a factual
sufficiency challenge, we defer to the jury’s determination of the credibility of the
witnesses and the weight to give the evidence. Smith v. State, 355 S.W.3d 138, 148
(Tex. App.—Houston [1st Dist.] 2011, pet. ref’d); Cleveland v. State, 177 S.W.3d
374, 388–89 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d).
To establish the affirmative defense of duress, a defendant must prove by a
preponderance of the evidence that he committed the offense because he was
compelled to do so by threat of imminent death or serious bodily injury to himself
or another. TEX. PENAL CODE ANN. § 8.05(a). Compulsion “exists only if the force
or threat of force would render a person of reasonable firmness incapable of resisting
the pressure.” Id. § 8.05(c); Edwards v. State, 106 S.W.3d 833, 843 (Tex. App.––
Dallas 2003, pet. ref’d). “‘Imminent’ means something that is immediate, something
that is going to happen now.” Murkledove v. State, 437 S.W.3d 17, 25 (Tex. App.—
Fort Worth 2014, pet. dism’d, untimely filed) (citing Dewalt v. State, 307 S.W.3d
–3– 437, 454 (Tex. App.—Austin 2010, pet. ref’d)). “Harm is imminent when there is
an emergency situation and it is ‘immediately necessary’ to avoid that harm, in other
words, when a ‘split-second decision’ is required without time to consider the law.”
Id. (quoting Pennington v. State, 54 S.W.3d 852, 857 (Tex. App.—Fort Worth 2001,
pet. ref’d)). Imminence “has two components: (1) the person making the threat
must intend and be prepared to carry out the threat immediately, and (2) the threat
must be predicated on the threatened person’s failure to commit the charged offense
immediately.” Cormier v. State, 540 S.W.3d 185, 190 (Tex. App.—Houston [1st
Dist.] 2017, pet. ref’d) (citing Devine v. State, 786 S.W.2d 268, 270–71 (Tex. Crim.
App. 1989) and Anguish v. State, 991 S.W.2d 883, 886 (Tex. App.—Houston [1st
Dist.] 1999, pet. ref’d)); see also Ramirez v. State, 336 S.W.3d 846, 851 (Tex.
App.—Amarillo 2011, pet. ref’d).
Imminent harm must be shown by affirmative evidence. Darty v. State, 994
S.W.2d 215, 218–19 (Tex. App.—San Antonio 1999, pet. ref’d). A threat of harm
at some indefinite time in the future is insufficient to satisfy the requirement of
imminence. Ramirez, 336 S.W.3d at 851–52; Anguish, 991 S.W.2d at 886. The
defense of duress is not available “if the actor intentionally, knowingly, or recklessly
placed himself in a situation in which it was probable that he would be subjected to
compulsion.” TEX. PENAL CODE ANN. § 8.05(d). Also, evidence of a generalized
fear of harm is not sufficient to raise the issue of imminent harm. Brazelton v. State,
947 S.W.2d 644, 648 (Tex. App.––Fort Worth 1997, no pet.). If undisputed facts
–4– indicate a complete absence of immediate necessity or imminent harm, then a
defendant’s sincere belief that his conduct is immediately necessary to avoid
imminent harm is unreasonable as a matter of law. Dewalt, 307 S.W.3d at 454.
As we discussed in our previous opinion, 2 appellant attempted to show he
participated in the charged offense under duress by pointing to evidence that Martin
Armijo threatened him and pointed a gun at him. The record showed that Armijo
had two handguns and an assault rifle in the garage where he tortured and killed
Jonathan Gutierrez. In addition, the jury heard Avigail Villanueva testify that
appellant seemed nervous when he picked her up at a gas station and drove her to
the garage. Appellant’s brother, Alex Moreno, testified that appellant looked scared
when he arrived at his house on July 1, 2016. Dallas homicide Detective Pedro
Trujillano testified that appellant became emotional during their July 1, 2016
interview, and both Trujillano and Detective Casey Shelton acknowledged that
appellant repeatedly said he was frightened during the incident. Appellant told the
detectives that Armijo pointed a rifle at him.
But the only evidence in the record suggesting Armijo threatened appellant
with violence came from appellant’s own account of the incident, which the jury was
free to reject. Moreover, appellant’s claim of duress was inconsistent with the
evidence showing he twice left the garage alone—and returned—while Armijo
2 Because the facts of this case were thoroughly discussed in our previous opinion, we do not recount them here except as relevant to appellant’s issues. –5– remained and continued beating and torturing Gutierrez. Armijo’s cell phone video
showed appellant casually entering the room and walking around the bed while
Armijo talked into the camera. The jury also could have considered the fact that
appellant hesitated to report the incident, first picking up his mother and then going
to his brother’s house, where his brother insisted they call 911. Based on evidence
such as this, the jury could have rationally concluded appellant was not faced with
an imminent threat to himself or his mother. See, e.g., Murkledove, 437 S.W.3d at
25; Dewalt, 307 S.W.3d at 454.
There is evidence in the record that appellant feared Armijo; that he told
detectives Armijo pointed a gun at him; and that he was afraid Armijo would harm
his family. But while such evidence may circumstantially support a finding of
duress, the entirety of the evidence does not preponderate in favor of such a finding,
particularly given the evidence showing appellant repeatedly going to and from the
offense location. After reviewing all the evidence in a neutral light, we conclude the
jury’s rejection of appellant’s claim of duress was not so against the great weight
and preponderance of the evidence as to be manifestly unjust. The evidence is, thus,
factually sufficient to support the jury’s rejection of appellant’s duress defense. We
overrule appellant’s second issue.
Issue 4: Law of Parties
In his fourth issue, appellant contends the trial court erred in submitting a jury
charge that included the law of parties.
–6– When analyzing a claim of jury charge error on appeal, we first determine if
there was an error, and if so, whether the error caused sufficient harm to warrant a
reversal. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). Under
Almanza, the amount of harm necessary to warrant a reversal depends on whether
the appellant objected to the alleged error in the jury charge. Reeves v. State, 420
S.W.3d 812, 816 (Tex. Crim. App. 2013); Almanza v. State, 686 S.W.2d 157, 171
(Tex. Crim. App. 1985) (op. on reh’g), superseded on other grounds by rule as stated
in Rodriguez v. State, 758 S.W.2d 787, 788 (Tex. Crim. App. 1988). If, as in this
case, the appellant objected to the complained-of error in the jury charge, the record
need only show he suffered some harm as a result of the error to obtain a reversal.
Reeves, 420 S.W.3d at 816; Ngo, 175 S.W.3d at 743. This standard requires us to
find the defendant “suffered some actual, rather than merely theoretical, harm from
the error.” Reeves, 420 S.W.3d, at 816. In evaluating whether there was some harm,
we consider “the entire jury charge, the state of the evidence, including the contested
issues and weight of probative evidence, the argument of counsel and any other
relevant information revealed by the record of the trial as a whole.” Barron v. State,
353 S.W.3d 879, 883 (Tex. Crim. App. 2011) (quoting Almanza, 686 S.W.2d at 171).
“A party is criminally responsible as a party to an offense if the offense is
committed by his own conduct, by the conduct of another for which he is criminally
responsible, or by both.” TEX. PENAL CODE ANN. § 7.01(a). Further, a person is
criminally responsible for an offense committed by the conduct of another if, “acting
–7– with intent to promote or assist the commission of the offense, he solicits,
encourages, directs, aids, or attempts to aid the other person to commit the offense.”
Id. § 7.02(a)(2).
To determine whether a person is a party to an offense, we may look to events
occurring before, during, and after the commission of the offense, and we may
consider circumstantial evidence. Gross v. State, 380 S.W.3d 181, 186 (Tex. Crim.
App. 2012). “There must be sufficient evidence of an understanding and common
design to commit the offense.” Id. “Each fact need not point directly to the guilt of
the defendant, as long as the cumulative effect of the facts are sufficient to support
the conviction under the law of parties.” Id. The “mere presence of a person at the
scene of a crime, or even flight from the scene, without more, is insufficient to
support a conviction as a party to the offense.” Id.
“Evidence is sufficient to convict under the law of parties if it shows the
defendant is physically present at the commission of the offense and encouraged the
commission of the offense either by words or other agreement.” Trenor v. State, 333
S.W.3d 799, 806–07 (Tex. App.––Houston [1st Dist.] 2010, no pet.) (citing Ransom
v. State, 920 S.W.2d 288, 302 (Tex. Crim. App. 1994)). “Participation as a party in
a criminal offense may be inferred from circumstances and need not be shown by
direct evidence.” Id. at 807. “Since an agreement between parties to act together in
a common design can seldom be proved by words, the State often must rely on the
actions of the parties, shown by direct or circumstantial evidence, to establish an
–8– understanding or common design to commit the offense.” Miller v. State, 83 S.W.3d
308, 314 (Tex. App.—Austin 2002, pet. ref’d); Williams v. State, No. 05–14–00790–
CR, 2016 WL 355115, at *6 (Tex. App.—Dallas Jan. 28, 2016, no pet.) (mem. op.,
not designated for publication). When a party is not a primary actor, the State must
prove conduct constituting an offense plus an act by the defendant done with the
intent to promote or assist such conduct. Beier v. State, 687 S.W.2d 2, 3 (Tex. Crim.
App. 1985); Williams, 2016 WL 355115, at *6.
In this case, appellant argues there is no evidence he harbored the specific
intent to promote or assist the commission of the offenses, or that they were
executing any common design or scheme. He claims the evidence shows that he
only acted under duress or out of necessity. But there is evidence that allowed a
reasonable jury to conclude appellant was physically present during the offense and
that he aided in its commission. More specifically, there is evidence appellant aided
Armijo by leaving the offense location to purchase cleaning supplies that were used
to clean up blood from the crime scene; that appellant left the offense location a
second time to pick up Villanueva and bring her to the crime scene (where she
witnessed Gutierrez’s torture and death); and that appellant held Gutierrez’s legs (at
Armijo’s instruction) so Armijo could tape his hands together. There is, in other
words, evidence showing appellant’s knowing assistance in the commission of the
charged offense. We conclude the trial court did not err in instructing the jury on
the law of parties, and we overrule appellant’s fourth issue.
–9– Issue 5: State’s Exhibit 77-A
In his fifth issue, appellant argues the trial court erred in admitting State’s
exhibit 77-A, Armijo’s cell phone video that briefly shows appellant moving in the
background as Armijo points a pistol at Gutierrez and beats, taunts, and threatens
him.
We review a trial court’s decision admitting or excluding evidence for an
abuse of discretion. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010);
Nickerson v. State, 478 S.W.3d 744, 757 (Tex. App.—Houston [1st Dist.] 2015, no
pet.). A trial court abuses its discretion only if its decision is “so clearly wrong as
to lie outside the zone within which reasonable people might disagree.” Taylor v.
State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008); see also Martinez, 327 S.W.3d
at 736. We will uphold a trial court’s evidentiary ruling if it was correct on any
theory of law applicable to the case. De la Paz v. State, 279 S.W.3d 336, 344 (Tex.
Crim. App. 2009); see Martinez, 327 S.W.3d at 736.
Evidence is relevant if it has any tendency to make a fact that is of
consequence to the determination of the action more or less probable than it would
be without the evidence. TEX. R. EVID. 401. Only relevant evidence is admissible.
See id. 402. Under rule of evidence 404(b)(1), “[e]vidence of a crime, wrong, or
other act is not admissible to prove a person’s character in order to show that on a
particular occasion the person acted in accordance with the character.” Exceptions
–10– to this rule include admission of the evidence “for another purpose, such as proving
motive, opportunity, intent, preparation, plan, knowledge, identity, absence of
mistake, or lack of accident.” Id. 404(b)(2). This list is illustrative rather than
exhaustive, and extraneous offense evidence “may be admissible when a defendant
raises a defensive issue that negates one of the elements of the offense.” Martin v.
State, 173 S.W.3d 463, 466 (Tex. Crim. App. 2005). “Thus, a party may introduce
evidence of other crimes, wrongs, or acts if such evidence logically serves to make
more or less probable an elemental fact, an evidentiary fact that inferentially leads
to an elemental fact, or defensive evidence that undermines an elemental fact.” Id.
Evidence that is admissible under rule 404(b) may nonetheless be excluded if
its probative value is substantially outweighed by a danger of unfair prejudice,
confusion of the issues, misleading the jury, undue delay, or needlessly presenting
cumulative evidence. TEX. R. EVID. 403; Hernandez v. State, 390 S.W.3d 310, 323
(Tex. Crim. App. 2012); Mozon v. State, 991 S.W.2d 841, 846–47 (Tex. Crim. App.
1999). “The probative force of evidence refers to how strongly it serves to make the
existence of a fact of consequence more or less probable.” Gonzalez v. State, 544
S.W.3d 363, 372 (Tex. Crim. App. 2018).
Relevant evidence is presumed to be more probative than prejudicial.
Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App. 1997). All evidence
against a defendant is, by its nature, designed to be prejudicial. See Pawlak v. State,
420 S.W.3d 807, 811 (Tex. Crim. App. 2013). Rule 403 does not exclude all
–11– prejudicial evidence; instead, it focuses on the danger of unfair prejudice. State v.
Mechler, 153 S.W.3d 435, 440 (Tex. Crim. App. 2005). Evidence is unfairly
prejudicial if it has the capacity to lure the factfinder into declaring guilt on a ground
other than proof specific to the offense charged. Manning v. State, 114 S.W.3d 922,
928 (Tex. Crim. App. 2003). The trial judge has substantial discretion in balancing
probative value and unfair prejudice. See Powell v. State, 189 S.W.3d 285, 288 (Tex.
Crim. App. 2006).
A rule 403 balancing test includes, but is not limited to, the following factors:
(1) the probative value of the evidence; (2) the potential to impress the jury in some
irrational yet indelible way; (3) the time needed to develop the evidence; and (4) the
proponent’s need for the evidence. Hernandez v. State, 390 S.W.3d 310, 324 (Tex.
Crim. App. 2012). A rule 403 analysis may also consider whether there is any
tendency of the evidence to confuse or distract the jury from the main issues as well
as any tendency of the evidence to be given undue weight by a jury that has not been
equipped to evaluate the probative force of the evidence. See Gigliobianco v. State,
210 S.W.3d 637, 641 (Tex. Crim. App. 2006). As the court acknowledged, however,
“these factors may well blend together in practice.” Id. at 641–42.
At a pretrial hearing held on February 19, 2018, appellant’s trial counsel called
the trial court’s attention to cell phone videos Armijo had “made of himself torturing
Jonathan Gutierrez.” Counsel argued that these videos were “totally irrelevant” and
that “[w]hatever relevance they may have is totally outweighed by the prejudicial
–12– value.” The trial court ultimately admitted State’s exhibit 77––the disc containing
the four cell phone videos Armijo made––for record purposes and admitted State’s
exhibit 77-A––the video clip showing appellant moving in the background––for all
purposes.
Appellant claims exhibit 77-A was inadmissible under rules 403 and 404(b),
arguing “the video evidence was not relevant to a contested fact of consequence nor
was it admissible as an exception to Rule 404(b).” He also argues that “[t]he unduly
prejudicial nature of the video, which shows the brutal torture Armijo inflicted upon
complainant, muddied the waters of Appellant’s culpability and made it likely that
the jury found Appellant guilty for Armijo’s actions.” According to appellant, “the
video could only inflame the jury and cause it to conflate Armijo’s actions with
Appellant’s.”
It is true that exhibit 77-A shows Armijo repeatedly beating and torturing
Gutierrez, but it also shows, toward the end of the video, appellant casually entering
the room and walking around the bed while Armijo talked directly into the camera.
Appellant is holding what appeared to be a bottle of bleach in a plastic grocery store
sack, and he placed the bleach and what looked like towels on the bed. The evidence
showed that the bleach and towels were purchased to clean up the blood at the crime
scene, and Detective Shelton testified that appellant did not appear to be afraid in
the video. The trial court could have reasonably concluded the cell phone video in
State’s exhibit 77-A was relevant to one of the core central contested issues in the
–13– case, i.e., whether appellant was a willing participant in the offense. As for rule
404(b), it was within the zone of reasonable disagreement for the court to have
determined the video did not suggest the jury should convict appellant for character-
conformity purposes, but rather, that it provided visual evidence of the charged
offense of aggravated kidnapping and appellant’s willing participation in that
offense.
Turning to rule 403, although the video graphically depicted the torture
Armijo inflicted on Gutierrez, we do not agree that any prejudice in the video’s
admission substantially outweighed its probative value. The trial court could have
reasonably concluded the probative force of the evidence, and the State’s need for
it, outweighed any tendency of the evidence to suggest a decision on an improper,
emotional basis. The court also could have reasonably determined that the video––
only two minutes and thirty-three seconds in length––neither distracted from the
central issue in the case nor had any tendency to be given undue weight by the jury.
Similarly, the video’s presentation did not consume an inordinate amount of time or
merely repeat evidence that had already been admitted. And while other testimony
and photographic evidence depicted the torture inflicted on Gutierrez, the video was
the only visual evidence of appellant at the crime scene and it showed his demeanor
during the offense. It was evidence of appellant’s awareness that a crime was
occurring, and it supported the argument that appellant was a party to the offense
–14– and not a mere bystander. Therefore, we conclude no abuse of discretion has been
shown under rules 403 or 404(b), and we overrule appellant’s fifth issue.
Issue 10: Disproportionate Sentence
In his tenth issue, appellant contends his sentence “was disproportionate both
to his conduct during the offense and to the punishments received by the other
bystanders.”
The concept of proportionality is embodied in the Eighth Amendment’s
proscription against cruel and unusual punishment. U.S. CONST. AMEND. VIII; State
v. Simpson, 488 S.W.3d 318, 322 (Tex. Crim. App. 2016). However, this is a
“narrow principle” that does not require strict proportionality between the crime and
the sentence. Simpson, 488 S.W.3d at 322 (citing Harmelin v. Michigan, 501 U.S.
957, 1001 (1991) (Kennedy, J., concurring)). It forbids only those extreme sentences
that are so “grossly disproportionate” to the crime as to amount to cruel and unusual
punishment. Id. (citing Ewing v. California, 538 U.S. 11, 23 (2003) (plurality op.)).
A sentence is grossly disproportionate to the crime “only in the exceedingly rare or
extreme case.” Id. at 322–23. Generally, punishment assessed within the statutory
limits is not excessive, cruel, or unusual. Id. at 323.
To determine whether a sentence is grossly disproportionate to a particular
defendant’s crime, we first consider the severity of the sentence in light of the harm
caused or threatened to the victim or victims, the culpability of the offender, and the
offender’s prior adjudicated and unadjudicated offenses. Id. In the rare case in
–15– which this threshold comparison leads to an inference of gross disproportionality,
we then compare the defendant’s sentence with the sentences of other offenders in
Texas and with the sentences imposed for the same crime in other jurisdictions. Id.
“If this comparative analysis validates an initial judgment that the sentence is grossly
disproportionate, the sentence is cruel and unusual.” Id.
In this case, appellant was charged with aggravated kidnapping, a first-degree
felony offense punishable by confinement for life or a term of not more than ninety-
nine years and not less than five, and a $10,000 fine. See TEX. PENAL CODE ANN.
§§ 12.32, 20.04(c). Moreover, the State alleged, and the jury found to be true, an
enhancement paragraph alleging a prior felony conviction for aggravated assault that
increased the minimum term of confinement from five years to fifteen. See id. §
12.42(c)(1). Appellant’s sentence of forty-five years’ confinement and a $10,000
fine was within the applicable punishment range. Based on the record in this case,
we cannot say this is one of those rare or extreme cases that would lead to an
inference that appellant’s sentence was grossly disproportionate to the offense.
Accordingly, we overrule appellant’s tenth issue.
State’s Cross-Point
The State also brings a cross-point arguing the judgment should be reformed
to accurately reflect appellant’s plea of not true and the jury’s finding of true to the
enhancement paragraph.
The indictment charged appellant with aggravated kidnapping and contained
–16– a single enhancement paragraph alleging appellant had a previous felony conviction
for aggravated assault. At the beginning of the punishment phase of trial, appellant
entered a plea of not true to the enhancement paragraph, which the jury found true.
The judgment, however, has the notation “N/A” in the sections for “Plea to 1st
Enhancement Paragraph” and “Finding on 1st Enhancement Paragraph.”
Where the record contains the necessary information to do so, the court on
appeal has the authority to modify incorrect judgments. TEX. R. APP. P. 43.2(b);
Bigley v. State, 865 S.W.2d 26, 27 (Tex. Crim. App. 1993). An appellate court has
the power to correct and reform a trial court’s 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. Asberry v. State,
813 S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet. ref’d). Therefore, we will
modify the judgment to accurately reflect appellant’s plea of not true and the jury’s
finding of true on the first enhancement paragraph. See TEX. R. APP. P. 43.2(b);
Asberry, 813 S.W.2d at 529.
As modified, we affirm the trial court’s judgment.
/Lana Myers/ LANA MYERS JUSTICE
Do Not Publish TEX. R. APP. P. 47.2(b) 180271RF.U05
–17– Court of Appeals Fifth District of Texas at Dallas JUDGMENT
RICKY MORENO, Appellant On Appeal from the 283rd Judicial District Court, Dallas County, Texas No. 05-18-00271-CR V. Trial Court Cause No. F17-00878-T. Opinion delivered by Justice Myers. THE STATE OF TEXAS, Appellee Chief Justice Burns and Justice Molberg participating.
Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED as follows:
Under the part of the judgment entitled “Plea to 1st Enhancement Paragraph,” “N/A” should be changed to “Not True.”
Under the part of the judgment entitled “Findings on 1st Enhancement Paragraph,” “N/A” should be changed to “True.”
As REFORMED, the judgment is AFFIRMED.
Judgment entered this 5th day of October, 2020.
–18–