ACCEPTED 01-14-00746-CR FIRST COURT OF APPEALS HOUSTON, TEXAS 10/9/2015 8:44:22 AM CHRISTOPHER PRINE CLERK
No. 01-14-00746-CR In the FILED IN Court of Appeals for the 1st COURT OF APPEALS First District of Texas at Houston HOUSTON, TEXAS 10/9/2015 8:44:22 AM ♦ CHRISTOPHER A. PRINE Clerk No. 67366 In the 149th District Court Brazoria County, Texas ♦ ZACKERY TERRELL Appellant V. THE STATE OF TEXAS Appellee ♦ STATE’S APPELLATE BRIEF ♦ JERI YENNE District Attorney Brazoria County MICHELLE R. TOWNSEND Assistant District Attorney Brazoria County State Bar Number: 24049295 BRIAN HRACH RICHARD MARTIN Assistant District Attorneys Brazoria County 111 E. Locust, Suite 408A Angleton, Texas 77515 Telephone: (979) 864-1230 Facsimile: (979) 864-1525 ORAL ARGUMENT NOT REQUESTED IDENTIFICATION OF THE PARTIES
Pursuant to TEX. R. APP. P. 38.1(a), a complete list of the names of all
parties and counsel follows:
Appellant or criminal defendant: Zachery Terrell
Counsel for Appellant on Appeal: Perry R. Stevens Attorney at Law 603 E. Mulberry Angleton, Texas 77515
Counsel for the State on Appeal: Jeri Yenne, District Attorney Michelle R. Townsend, Assistant District Attorney 111 E. Locust, Suite 408A Angleton, Texas 77515
Counsel for Appellant at Trial: Arthur Washington, Attorney at Law 3730 Kirby Drive, Suite 1050 Houston, Texas 77098
Counsel for the State at Trial: Brian Hrach Richard Martin, Assistant District Attorneys 111 E. Locust, Suite 408A Angleton, Texas 77515
Presiding Judge: The Hon. Terri Holder
i TABLE OF CONTENTS
IDENTIFICATION OF THE PARTIES ................................................................... i
TABLE OF CONTENTS .......................................................................................... ii
INDEX OF AUTHORITIES.................................................................................... iii
STATEMENT OF THE CASE ................................................................................ ix
STATEMENT REGARDING ORAL ARGUMENT ............................................. ix
STATEMENT OF FACTS ........................................................................................1
SUMMARY OF THE ARGUMENTS ......................................................................4
REPLY TO APPELLANT’S FIRST POINT OF ERROR ........................................5
Appellant contends that he received ineffective assistance of counsel due to an alleged failure by trial counsel to advise him of the proper punishment range. To the contrary, the record establishes that trial counsel understood the applicable punishment range and advised appellant accordingly. As such, appellant’s first point of error is meritless and should be overruled.
REPLY TO APPELLANT’S SECOND POINT OF ERROR ...................................9
Appellant asserts that by assessing his punishment at imprisonment for 50 years the trial court erred by entering an illegal sentence. Because appellant was convicted of an “aggravated” state jail felony and pled “true” to enhancement allegations that elevated the applicable punishment range to imprisonment for no less than 25 years or more than 99 years, or life, his arguments are without merit. Accordingly, appellant’s second point of error should be overruled.
PRAYER FOR RELIEF ..........................................................................................25
CERTIFICATES OF SERVICE AND COMPLIANCE .........................................26
ii INDEX OF AUTHORITIES
Cases
Armendariz v. State, 529 S.W.2d 525 (Tex. Crim. App. 1975) .............................................................20
Boykin v. State, 818 S.W.2d 782 (Tex. Crim. App. 1991) ................................................ 14, 17, 18
Brooks v. State, 642 S.W.2d 791 (Tex. Crim. App. 1982) .............................................................20
Bunton v. State, 136 S.W.3d 355 (Tex. App.—Austin 2004, pet. ref’d) ........................................17
Cannon v. State, 668 S.W.2d 401 (Tex. Crim. App. 1984) ...............................................................6
Colyer v. State, 428 S.W.3d 117 (Tex. Crim. App. 2014) ...............................................................7
Curry v. State, 91 S.W.3d 360 (Tex. App.—Texarkana 2002, no pet.) .........................................8
Curry v. State, 910 S.W.2d 490 (Tex. Crim. App. 1995) .............................................................19
Ex parte Beck, 769 S.W.2d 525 (Tex. Crim. App. 1989) .............................................................11
Ex parte Brooks, 847 S.W.2d 247 (Tex. Crim. App. 1993) .............................................................11
Figueroa v. State, 250 S.W.3d 490 (Tex. App.—Austin 2008, pet. ref’d), cert. denied, 555 U.S. 1185 (2009) ......................................................................25
iii French v. State, 830 S.W.2d 607 (Tex. Crim. App. 1992) .............................................................25
Garza v. State, 298 S.W.3d 837 (Tex. App.—Amarillo 2009, no pet.) (op. on remand) .............25
Girnus v. State, 595 S.W.2d 118 (Tex. Crim. App. 1980) .............................................................20
Gonzales v. State, No. 01-91-00942-CR, 1992 WL 361293 (Tex. App.—Houston [1st Dist.] Dec. 10, 1992, no pet.) (not designated for publication) ..............................................23
Goodspeed v. State, 187 S.W.3d 390 (Tex. Crim. App. 2005) ...............................................................5
Grettenberg v. State, 790 S.W.2d 613 (Tex. Crim. App. 1990) .............................................................11
Harmelin v. Michigan, 501 U.S. 957 (1991) .......................................................................... 20, 21, 22, 23
Harris v. State, 656 S.W.2d 481 (Tex. Crim. App. 1983) ...................................................... 20, 22
Hicks v. State, 15 S.W.3d 626 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d) ...................21
Holmes v. State, 380 S.W.3d 307 (Tex. App.—Fort Worth 2012, pet. ref’d)...................................9
Hypke v. State, 720 S.W.2d 158 (Tex. App.—Houston [14th Dist.] 1986, pet. ref’d) .................20
Mahaffey v. State, 364 S.W.3d 908 (Tex. Crim. App. 2012) .......................................... 14, 15, 17, 18
McFarland v. State, 928 S.W.2d 482 (Tex. Crim. App. 1996) ...............................................................5
iv Mercado v. State, 718 S.W.2d 291 (Tex. Crim. App. 1986) ...............................................................9
Murray v. State, 302 S.W.3d 874 (Tex. Crim. App. 2009) .............................................................15
Noland v. State, 264 S.W.3d 144 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d) ....................19
Nolasco v. State, 970 S.W.2d 194 (Tex. App.—Dallas 1998, no pet.) ............................................11
Okonkwo v. State, 398 S.W.3d 689 (Tex. Crim. App. 2013) ...............................................................6
Patterson v. State, 138 S.W.3d 643 (Tex. App.—Dallas 2004, no pet.) ............................................11
Ponce v. State, 89 S.W.3d 110 (Tex. App.—Corpus Christi 2002, no pet.) ...................................9
Quintana v. State, 777 S.W.2d 474 (Tex. App.—Corpus Christi 1989, pet. ref’d) ...........................10
Rhoades v. State, 934 S.W.2d 113 (Tex. Crim. App. 1996) .............................................................19
Rodriguez v. State, 614 S.W.2d 448 (Tex. Crim. App. 1981) .............................................................20
Rummel v. Estelle, 445 U.S. 263 (1980) ...................................................................................... 20, 21
Salinas v. State, No. 14-11-00747-CR, 2013 WL 709266 (Tex. App.—Houston [14th Dist.] Feb. 26, 2013, pet. dism’d) (mem. op., not designated for publication) ........................8
Simpson v. State, 668 S.W.2d 915 (Tex. App.—Houston [1st Dist.] 1984, no pet.)........... 20, 22, 23
v Smallwood v. State, 827 S.W.2d 34 (Tex. App.—Houston [1st Dist.] 1992, pet. ref’d) ......................21
Smith v. State, 223 S.W.3d 690 (Tex. App.—Texarkana 2007, no pet.) .....................................25
Smith v. State, 960 S.W.2d 372 (Tex. App.—Houston [1st Dist.] 1998, pet. ref’d) ....................17
Solem v. Helm, 463 U.S. 277 (1983) .............................................................................................22
Solis v. State, 945 S.W.2d 300 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d) ....................19
State v. Mancuso, 919 S.W.2d 86 (Tex. Crim. App. 1996) ............................................ 14, 15, 17, 18
Stewart v. State, 732 S.W.2d 398 (Tex. App.—Houston [14th Dist.] 1987, no pet.) .....................20
Strickland v. Washington, 466 U.S. 668 (1984) ...................................................................................... 5, 6, 8
Swinney v. State, 828 S.W.2d 254 (Tex. App.—Houston [1st Dist.] 1992, no pet.)........................20
Thomas v. State, 543 S.W.2d 645 (Tex. Crim. App. 1976) .............................................................20
Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999) .......................................................... 5, 6, 8
Villescas v. State, 189 S.W.3d 290 (Tex. Crim. App. 2006) .............................................................11
Washington v. State, 326 S.W.3d 302 (Tex. App.—Fort Worth 2010, pet. ref’d).................................17
vi Wynn v. State, 219 S.W.3d 54 (Tex. App.—Houston [1st Dist.] 2006, no pet.)..........................19
Statutes
TEX. GOV’T CODE ANN. § 311.021(2) (Vernon 1995) .............................................15
TEX. GOV’T CODE ANN. § 311.023 (Vernon 1995) .......................................... 14, 17
TEX. GOV’T CODE ANN. § 311.026(a) (Vernon 1995) .............................................15
TEX. PENAL CODE ANN. § 12.33 (West 2011) .........................................................13
TEX. PENAL CODE ANN. § 12.35 (West 2011) .........................................................13
TEX. PENAL CODE ANN. § 12.35(a) (West 2011) .............................................. 15, 16
TEX. PENAL CODE ANN. § 12.35(c) (West 2011) ............................................. passim
TEX. PENAL CODE ANN. § 12.35(c)(1) (West 2011) ......................................... 12, 16
TEX. PENAL CODE ANN. § 12.42(d) (West 2011) ............................................. passim
TEX. PENAL CODE ANN. § 12.42(d) (West Supp. 2014) ..........................................15
TEX. PENAL CODE ANN. § 12.425 (West 2011) ................................................ 13, 15
TEX. PENAL CODE ANN. § 12.425(a) (West 2011) ...................................................16
TEX. PENAL CODE ANN. § 12.425(b) (West 2011) ...................................................16
TEX. PENAL CODE ANN. § 12.425(c) (West 2011) ............................................ 14, 16
Other Authorities
Acts 2011, 82nd Leg., R.S., ch. 834, 2011 Tex. Sess. Law Serv. (West) ...............15
vii Rules
TEX. R. APP. P. 33.1 .............................................................................................9, 19
TEX. R. APP. P. 38.1(a) ............................................................................................... i
TEX. R. APP. P. 38.1(g) ..............................................................................................1
TEX. R. APP. P. 38.2(a)(1)(B) .....................................................................................1
TEX. R. APP. P. 39.7 ................................................................................................ vii
TEX. R. APP. P. 43.2(b) .............................................................................................25
TEX. R. APP. P. 9.4(g) ............................................................................................. vii
TEX. R. APP. P. 9.4(i)................................................................................................26
Constitutional Provisions
TEX. CONST. art. I, § 13 ............................................................................................19
TEX. CONST. art. II, § 1 ............................................................................................14
U.S. CONST. amend. VIII .........................................................................................19
viii TO THE HONORABLE COURT OF APPEALS:
STATEMENT OF THE CASE
Appellant was charged by indictment with the felony offense of possession
of a controlled substance weighing less than one gram. (CR 5). The State further
alleged that appellant had twice before been sequentially convicted of felony
offenses and that a deadly weapon was used or exhibited during the commission of
the charged offense. (CR 5, 34). The jurors found appellant guilty and the judge
sentenced appellant to confinement for 50 years in the Texas Department of
Criminal Justice, Institutional Division. (CR 72-73; RR IV 41; RR V 38-39).
♦
STATEMENT REGARDING ORAL ARGUMENT
Appellant has waived oral argument. See TEX. R. APP. P. 9.4(g), 39.7;
(Appellant’s Brief, pg. i). However, should this Court order the parties to argue,
the State requests the opportunity to respond at oral argument. See TEX. R. APP. P.
9.4(g), 39.7.
ix STATEMENT OF FACTS
Appellant does not challenge the sufficiency of the evidence supporting the
jury’s verdict of guilt or the affirmative finding that a deadly weapon was used
during the commission of the charged offense. Thus, only a brief recitation of
facts concerning the underlying offense is necessary. See TEX. R. APP. P. 38.1(g),
38.2(a)(1)(B).
An officer stopped appellant’s vehicle for a traffic offense and subsequently
arrested appellant and his passenger for failure to provide a valid driver’s license
and outstanding warrants, respectively. (RR III 14-22). An inventory of
appellant’s vehicle prior to it being towed uncovered a pistol, large amounts of
cash, paraphernalia consistent with the manufacture of crack cocaine, trace
amounts of cocaine, and a large volume of liquid codeine and promethazine. (RR
III 23-28, 37, 73, 115-20, 140-48, 162-65, 181-88).
The indictment charged appellant with the felony offense of possession of a
controlled substance and further alleged that he had twice before been sequentially
convicted of felony offenses. (CR 5). Appellant was also informed that a deadly
weapon finding would be sought at trial. (CR 34).
Appellant rejected the State’s plea bargain offer and proceeded to trial. (RR
II 14; RR VIII 20, 24-25). Prior to trial, the trial judge, the prosecutor, and
appellant’s trial counsel, discussed the applicable punishment range. (RR II 7-14). Given appellant’s prior convictions and the allegation a deadly weapon was used
during the commission of the underlying offense, all parties agreed that, should the
jury return a verdict of guilt, the appropriate punishment range was imprisonment
for no less than 25 years or more than 99 years, or life. (CR 5, 34; RR II 7-13).
The jury returned a verdict of guilt and appellant’s case was reset for a punishment
hearing. (CR 72-73; RR IV 41, 48). After the punishment hearing, the trial judge
sentenced appellant to imprisonment for 50 years. (CR 72-73; RR V 38-39).
Notice of appeal was not timely filed but appellant was granted an out-of-
time appeal by the Court of Criminal Appeals. (CR 166). Subsequently, appellant
filed a motion for new trial. (CR 173-77; RR VIII). The hearing on appellant’s
motion for new trial was conducted more than a year and a half after trial. See (RR
II) (trial commenced March 18, 2013); (RR VIII) (hearing on motion for new trial
held November 24, 2014). At the hearing, both trial counsel and appellant
testified. See (RR VIII).
Initially, trial counsel appeared confused as to the applicable range of
punishment. See (RR VIII 14-15, 18-19). But, after refreshing his memory,
counsel ultimately testified that the applicable punishment range he conveyed to
appellant prior to trial was “25 to life.” (RR VIII 18-20, 23-25). Counsel also
testified that he did not object to the form of the State’s notice of its intent to seek
a deadly weapon finding because he understood it to apply in a manner that would
2 elevate appellant’s punishment range from that of a regular state jail felony to that
of a third degree felony. (RR VIII 14-16).
Appellant claimed that trial counsel never informed him of the possibility
of a deadly weapon finding and that the maximum possible imprisonment ever
discussed was 20 years. (RR VIII 30-33). Appellant also testified that he learned
the applicable punishment range was “25 to life” when the judge allegedly
admonished him as such in the presence of the jury during the trial on guilt. (RR
VIII 33-35, 36-38).
3 SUMMARY OF THE ARGUMENTS
In his first point of error, appellant complains that his trial counsel failed to
advise him of the proper punishment range and therefore provided ineffective
assistance. But the record demonstrates that counsel understood the applicable
punishment range to be imprisonment for no less than 25 years or more than 99
years, or life, and advised appellant accordingly. As such, appellant’s first point of
error is meritless and should be overruled.
In his second point of error, appellant asserts that the trial court erred by
entering a sentence that exceeds the maximum allowed by law. Appellant posits
this is so because the proper punishment range is imprisonment for no more than
20 years or less than 2 years. To the contrary, appellant was convicted of an
“aggravated” state jail felony and pled “true” to enhancement allegations which
elevated the applicable punishment range to imprisonment for no less than 25 years
or more than 99 years, or life. Because appellant’s sentence of imprisonment for
50 years falls within the applicable punishment range, his second point of error is
without merit and should be overruled.
4 REPLY TO APPELLANT’S FIRST POINT OF ERROR
In his first point of error, appellant contends that his trial counsel provided
ineffective assistance by allegedly failing to advise appellant of the proper
punishment range. But there is ample evidence in the record that counsel
adequately advised appellant of the applicable punishment range. Thus,
appellant’s first point of error is meritless and should be overruled.
To prevail on a claim of ineffective assistance of counsel, a defendant must
show: (1) counsel’s performance was deficient and (2) this deficiency was so
prejudicial that it rendered the trial unfair. Strickland v. Washington, 466 U.S.
668, 687 (1984). Failure to make the required showing of either deficient
performance or sufficient prejudice defeats the ineffectiveness claim. Thompson
v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
Allegations of ineffective assistance of counsel “must be firmly founded in
the record” and the record must “affirmatively demonstrate” the meritorious
nature of an appellant’s claim that he received ineffective assistance of counsel.
Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005); McFarland v.
State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996). The reviewing court
examines the totality of the representation and the particular circumstances of
each case in evaluating the effectiveness of counsel while indulging a strong
presumption that counsel’s conduct falls within the wide range of reasonable
5 professional assistance. Strickland, 466 U.S. at 688-89; Thompson, 9 S.W.3d at
813. Judicial scrutiny of counsel’s performance must be highly deferential and a
defendant carries the burden of proving his claim of ineffective assistance of
counsel by a preponderance of the evidence. Strickland, 466 U.S. at 689; Cannon
v. State, 668 S.W.2d 401, 403 (Tex. Crim. App. 1984).
Appellant argues his trial counsel was ineffective, claiming that counsel did
not have a full understanding of the punishment range appellant faced and
therefore did not communicate the proper punishment range to him prior to trial.
This allegation is based on trial counsel’s testimony and appellant’s own
testimony during the hearing on his motion for new trial. By focusing only on the
record from the motion for new trial, appellant erroneously ignores the trial
record. See Okonkwo v. State, 398 S.W.3d 689, 693 (Tex. Crim. App. 2013) (the
focus of appellate review is the objective reasonableness of counsel’s actual
conduct in light of the entire record).
The record shows that prior to trial all parties expressed with clarity their
understanding that the applicable range was no less than 25 years or more than 99
years, or life. (RR II 7-13). The only time trial counsel appeared confused as to
the applicable range of punishment was at the hearing on appellant’s motion for
new trial. See (RR VIII 14-15, 18-19). This hearing was conducted more than a
year and a half after trial. See (RR II) (trial commenced March 18, 2013); (RR
6 VIII) (hearing on motion for new trial held November 24, 2014). Even then, after
refreshing his memory, counsel ultimately testified that the applicable punishment
range he conveyed to appellant prior to trial was “25 to life.” (RR VIII 18-20, 23-
25).
Contrary to counsel’s testimony, appellant claimed at the hearing on his
motion for new trial that the maximum possible imprisonment ever discussed was
20 years and that trial counsel never informed him of the possibility of a deadly
weapon finding. (RR VIII 30-33). Appellant also testified that he only learned
the applicable punishment range was “25 to life” when the judge allegedly
admonished him as such in the presence of the jury during the trial on guilt. (RR
The trial court judged the credibility of the witnesses at the hearing on
appellant’s motion for new trial. See Colyer v. State, 428 S.W.3d 117, 122 (Tex.
Crim. App. 2014) (at a motion for new trial hearing, the judge alone determines
the credibility of the witnesses). Appellant has not presented any additional
argument or authority to this Court that was not soundly rejected by the trial court.
In sum, the record demonstrates that at the time of trial, counsel was well
aware of the applicable punishment range and communicated this to appellant.
The pre-trial communications between appellant and his trial counsel concerning
the applicable punishment range are not contained in the record. Appellant’s bare
7 assertions that none occurred, contrary to counsel’s testimony otherwise, do not
support finding that trial counsel was ineffective. See, e.g., Curry v. State, 91
S.W.3d 360, 362 (Tex. App.—Texarkana 2002, no pet.) (appellant’s claim that he
was misinformed regarding the range of punishment and therefore received
ineffective assistance overruled where record did not support such a contention);
Salinas v. State, No. 14-11-00747-CR, 2013 WL 709266, at *4 (Tex. App.—
Houston [14th Dist.] Feb. 26, 2013, pet. dism’d) (mem. op., not designated for
publication) (same).
Appellant has failed to demonstrate that counsel’s performance was
deficient. See Strickland, 466 U.S. at 687-88; Thompson, 9 S.W.3d at 812-13.
Because failure to make the required showing of either deficient performance or
sufficient prejudice defeats an ineffectiveness claim, appellant’s first point of error
is without merit and should be overruled.
8 REPLY TO APPELLANT’S SECOND POINT OF ERROR
In his second point of error, appellant asserts that the trial court rendered a
sentence not authorized by law. By failing to object at the time sentence was
pronounced and foregoing this argument in his motion for new trial, appellant has
waived any alleged error and presents nothing for appellate review.
Error Waived by Failure to Object
An appellant may not complain of error pertaining to his sentence or
punishment if he has failed to object or otherwise raise error in the trial court.
Mercado v. State, 718 S.W.2d 291, 296 (Tex. Crim. App. 1986). Here, appellant
did not object to his punishment at the time he was sentenced. (RR V 39-40).
Likewise, he did not raise the issue of the legality of his sentence, or make any
argument based on the statutory provisions he now cites in his appellate brief, in
his motion for new trial or at the hearing on said motion. (CR 173-75); see
generally (RR VIII).
Because appellant failed to object to the trial court’s punishment and
sentence on the grounds alleged in this point of error, any complaint has been
waived and appellant’s second point of error should be overruled. See TEX. R.
APP. P. 33.1; Mercado, 718 S.W.2d at 296; see also Holmes v. State, 380 S.W.3d
307, 308 (Tex. App.—Fort Worth 2012, pet. ref’d); Ponce v. State, 89 S.W.3d 110,
114–15 (Tex. App.—Corpus Christi 2002, no pet.); Quintana v. State, 777 S.W.2d
9 474, 479 (Tex. App.—Corpus Christi 1989, pet. ref’d). But even assuming without
conceded that error was preserved, appellant still cannot demonstrate his sentence
of 50 years is “not authorized by law.”
Appellant Sentenced Within Applicable Range of Punishment
Appellant was convicted of a state jail felony punishable under section
12.35(c) and he pled true to two enhancement paragraphs contained in the
indictment. (CR 72-73; RR IV 41; RR V 5-7); see also TEX. PENAL CODE ANN. §
12.35(c) (West 2011). Sections 12.35(c) and 12.42(d) of the Penal Code enhanced
his potential punishment range to imprisonment for not less than 25 years or more
than 99 years, or life. TEX. PENAL CODE ANN. §§ 12.35(c), 12.42(d) (West 2011).
Appellant’s sentence of imprisonment for 50 years falls squarely within these
parameters. Accordingly, his argument that the trial court assessed an illegal
sentence is without merit and should be overruled.
Appellant was tried for the state jail felony offense of possession of a
controlled substance. (CR 5). It was further alleged and proven at trial that
appellant used a deadly weapon during the commission of said offense. (CR 34,
68, 72-73; RR III 27-28, 37, 115-20, 183-87; RR IV 41). Appellant does not
10 challenge the sufficiency of the evidence supporting either the verdict of guilt or
the finding a deadly weapon was used or exhibited.1
The State further alleged in the indictment that appellant had twice before
been convicted of two felony offenses, the second previous felony conviction
being for an offense that occurred subsequent to the first previous conviction
having become final. (CR 5). Appellant pled true to these allegations. (CR 72-73;
RR V 5-7). He does not challenge the sufficiency of the evidence supporting either
of these enhancement allegations.
1 Citing no authority to support the proposition, appellant posits the notice given by the State that a deadly weapon finding would be sought is inadequate because it was filed “pursuant to Art. 42.12 § 3g(a)(2).” Appellant’s Brief, pp. 9, 16-17; (CR 34). Contrary to appellant’s assertion, the notice given is sufficient to comport with due process requirements and appellant’s argument is meritless. A defendant is only entitled to some form of notice at the time of prosecution that the State will seek an affirmative finding of the use or exhibition of a deadly weapon during the commission of the charged crime. Ex parte Brooks, 847 S.W.2d 247, 248 (Tex. Crim. App. 1993); Grettenberg v. State, 790 S.W.2d 613, 614 (Tex. Crim. App. 1990); Ex parte Beck, 769 S.W.2d 525, 527 & n.2 (Tex. Crim. App. 1989). This notice need not be contained in the indictment but it must be in writing. Brooks, 847 S.W.2d at 248. Furthermore, when a defendant has no challenge to the allegation and does not request a continuance to discover or prepare such a challenge, notice given at the beginning of trial satisfies the federal constitution. See Villescas v. State, 189 S.W.3d 290, 294 (Tex. Crim. App. 2006). Appellant did not complain that the written notice, given two months before trial began, was untimely. Nor did appellant request a continuance to discover or prepare a challenge to the allegation. To the contrary, when testifying at the motion for new trial hearing, trial counsel recollected that his “understanding was the notice raised it to a third degree.” (RR VIII 14-16). Under these circumstances, the State’s notice constituted adequate notice and satisfied due process concerns. See Villescas, 189 S.W.3d at 294; Brooks, 847 S.W.2d at 248; Grettenberg, 790 S.W.2d at 614; Beck, 769 S.W.2d at 527 & n.2; see also Nolasco v. State, 970 S.W.2d 194, 197 (Tex. App.—Dallas 1998, no pet.) (notice given just prior to start of trial provided defendant with adequate notice that use of deadly weapon would be fact issue in case; further, appellant’s failure to request continuance to remedy perceived inadequate notice problem defeated any due process claim he might have had); cf Patterson v. State, 138 S.W.3d 643, 647 (Tex. App.— Dallas 2004, no pet.) (notice inadequate where trial court overruled appellant’s objection to notice given just prior to start of trial and his request for additional time to prepare for trial).
11 Rather, appellant’s complaint regarding the legality of his sentence rests
upon statutory construction; thus, it is necessary to examine the sections of the
Texas Penal Code under which appellant was convicted and sentenced. The law in
effect at the time appellant committed the underlying offense provided in pertinent
part as follows:
“An individual adjudged guilty of a state jail felony shall be punished for a third degree felony if it is shown on the trial of the offense that a deadly weapon as defined by Section 1.07 was used or exhibited during the commission of the offense or during immediate flight following the commission of the offense, and that the individual used or exhibited the deadly weapon or was a party to the offense and knew that a deadly weapon would be used or exhibited.” TEX. PENAL CODE ANN. § 12.35(c)(1) (West 2011).
“[I]f 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) (West 2011).
“(a) If it is shown on the trial of a state jail felony punishable under Section 12.35(a) that the defendant has previously been finally convicted of two state jail felonies punishable under Section 12.35(a), on conviction the defendant shall be punished for a felony of the third degree.
12 (b) If it is shown on the trial of a state jail felony punishable under Section 12.35(a) that the defendant has previously been finally convicted of two felonies other than a state jail felony punishable under Section 12.35(a), 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 for a felony of the second degree.
(c) If it is shown on the trial of a state jail felony for which punishment may be enhanced under Section 12.35(c) that the defendant has previously been finally convicted of a felony other than a state jail felony punishable under Section 12.35(a), on conviction the defendant shall be punished for a felony of the second degree.” TEX. PENAL CODE ANN. § 12.425 (West 2011).
Appellant contends that by enacting section 12.425 of the Penal Code, the
legislature set the maximum possible punishment range upon conviction for any
state jail felony at that of a second degree felony, i.e., no less than 2 years or more
than 20 years imprisonment, regardless of the volume or violence of a defendant’s
criminal history. See Appellant’s Brief, pp. 18, 21; TEX. PENAL CODE ANN. §
12.425 (West 2011); see also TEX. PENAL CODE ANN. § 12.33 (West 2011) (second
degree felony punishment range). To the contrary, sections 12.35, 12.42(d) and
12.425 of the Penal Code work in tandem to provide a wide array of punishments
for offenders based upon the crime for which they are on trial and the particulars of
their past convictions. See TEX. PENAL CODE ANN. §§ 12.35, 12.42(d), 12.425
(West 2011).
13 It is the duty of the Legislature to make laws and the function of the
Judiciary to interpret those laws. See TEX. CONST. art. II, § 1; Boykin v. State, 818
S.W.2d 782, 785 (Tex. Crim. App. 1991). When interpreting statutes, courts must
“seek to effectuate the ‘collective’ intent or purpose of the legislators who enacted
the legislation.” Mahaffey v. State, 364 S.W.3d 908, 913 (Tex. Crim. App. 2012);
Boykin, 818 S.W.2d at 785. Consequently, the focus remains the text of the statute
and interpretation is performed in a literal manner attempting to discern the fair,
objective meaning of the text. Mahaffey, 364 S.W.3d at 913.
It is the duty of the court interpreting the statute to give the ordinary and
plain meaning to the language of the Legislature. Boykin, 818 S.W.2d at 785.
Where the statute is clear and unambiguous, the Legislature must be understood to
mean what it has expressed, and it is not for the courts to add or subtract from the
statutory scheme. State v. Mancuso, 919 S.W.2d 86, 87-88 (Tex. Crim. App.
1996). Only when the application of a statute’s plain language is ambiguous or
would lead to absurd consequences the Legislature could not possibly have
intended, should extratextual factors be considered. TEX. GOV’T CODE ANN. §
311.023 (Vernon 1995); Mahaffey, 364 S.W.3d at 913; Mancuso, 919 S.W.2d at
88; Boykin, 818 S.W.2d at 785-86. Because sections 12.42(d) and 12.425(c) of the
Penal Code have concurrent efficacy, it is unnecessary to find that one trumps the
other. TEX. PENAL CODE ANN. §§ 12.42(d), 12.425(c) (West 2011).
14 The legislature could have exempted all state jail felonies from the habitual
criminal status in section 12.42(d). TEX. PENAL CODE ANN. § 12.42(d) (West
2011). Instead, the legislature expressly exempted only those state jail felonies
punishable under section 12.35(a). Id. This is true even though section 12.42 was
overhauled simultaneously with the creation of section 12.425. See Acts 2011,
82nd Leg., R.S., ch. 834, 2011 Tex. Sess. Law Serv. (West) (current version at
TEX. PENAL CODE ANN. § 12.42(d) (West Supp. 2014)).
It must be presumed that the Legislature intended for the entire statutory
scheme to be effective. See TEX. GOV’T CODE ANN. § 311.021(2) (Vernon 1995);
Mahaffey, 364 S.W.3d at 913; Murray v. State, 302 S.W.3d 874, 879, 881 (Tex.
Crim. App. 2009) (in construing statute, consider other provisions within entire
“statutory scheme” rather than merely the single, discrete provision at issue).
Thus, the provisions of sections 12.42(d) and 12.425 must be construed, if
possible, so that effect is given to both. TEX. GOV’T CODE ANN. § 311.026(a)
(Vernon 1995); TEX. PENAL CODE ANN. §§ 12.42(d), 12.425 (West 2011);
Mancuso, 919 S.W.2d at 88.
Section 12.35(a) proscribes the general punishment range for state jail
felonies while subsection (c) allows for the enhanced punishment of what have
been labeled by caselaw as “aggravated” state jail felonies. See TEX. PENAL CODE
ANN. § 12.35(a), (c) (West 2011). Section 12.425, subsections (a) and (b), provide
15 for the enhanced punishment of state jail felonies sentenced under section 12.35(a).
See id. §§ 12.35(a), 12.425(a), (b) (West 2011). Section 12.425(c) provides for the
enhanced punishment of “aggravated” state jail felonies where it is proven the
defendant has previously been convicted of “a felony other than a state jail felony
punishable under section 12.35(a).” See id. §§ 12.35(a), (c), 12.425(c) (West
2011) (emphasis added). Section 12.42(d) provides for the enhanced punishment
of all felonies except “a state jail felony punishable under Section 12.35(a)” where
it is proven the defendant has previously been finally convicted of “two felony
offenses [other than a state jail felony punishable under Section 12.35(a)], and the
second previous felony conviction is for an offense that occurred subsequent to the
first previous conviction having become final.” See id. §§ 12.35(a), 12.42(d)
Subsections 12.425(a) and (b) do not apply to appellant because they
expressly apply to persons convicted under section 12.35(a), and appellant could
not be sentenced under section 12.35(a) because of the deadly weapon finding. See
id. §§ 12.35(a), (c)(1), 12.425(a), (b) (West 2011). Further, section 12.425(c) does
not apply to appellant because he had been previously convicted of more than one
felony. See id. § 12.425(c) (“…that the defendant has previously been finally
convicted of a felony other than a state jail felony punishable under Section
12.35(a)…”) (emphasis added). Thus, given the deadly weapon finding and
16 appellant’s pleas of “true” to the enhancement allegations contained in the
indictment, section 12.42(d) was the only applicable law under which appellant
could be sentenced. See id. §§ 12.35(c), 12.42(d); see also Washington v. State,
326 S.W.3d 302, 313-15 (Tex. App.—Fort Worth 2010, pet. ref’d) (defendant
convicted of state jail felony properly sentenced under section 12.42(d) where
habitual offender and deadly weapon allegations were proven true); Bunton v.
State, 136 S.W.3d 355, 361-63 (Tex. App.—Austin 2004, pet. ref’d) (defendant
properly sentenced pursuant to section 12.42(d) after being found guilty of state
jail felony with deadly weapon finding and pleading true to enhancement
paragraphs alleging prior convictions for non-state jail felony offenses occurring in
consecutive order).
Consideration of extratextual factors is unnecessary because the application
of the statutes’ plain language is not ambiguous nor does it lead to absurd
consequences the Legislature could not possibly have intended,. See TEX. GOV’T
CODE ANN. § 311.023 (Vernon 1995); Mahaffey, 364 S.W.3d at 913; Mancuso,
919 S.W.2d at 88; Boykin, 818 S.W.2d at 785-86. Quite the opposite of leading to
absurd results, such an application is consistent with the legislature’s consistent
treatment of “aggravated” state jail felonies as equivalent to third degree felonies.
See Smith v. State, 960 S.W.2d 372, 374-75 (Tex. App.—Houston [1st Dist.] 1998,
pet. ref’d) (concluding after statutory analysis that an “aggravated” state jail felony
17 may be enhanced by two prior convictions in the proper sequence to habitual
offender status under section 12.42(d) and noting legislature’s treatment of
aggravated state jail felonies as equivalent to third-degree felonies when testing
said conclusion to see if it resulted in a reasonable or absurd construction).
By constructing the statutory scheme for the punishment of felony offenders
as it did, the legislature made state jail felonies punishable under the provisions of
section 12.35(c) subject to the habitual criminal provisions of section 12.42(d).
See TEX. PENAL CODE ANN. §§ 12.35(c), 12.42(d) (West 2011); Mahaffey, 364
S.W.3d at 913 (statutory interpretation is performed in a literal manner focusing on
the text of the statute and attempting to discern the fair, objective meaning of the
text); Mancuso, 919 S.W.2d at 87-88 (when statutes are clear and unambiguous,
the Legislature must be understood to mean what it has expressed); Boykin, 818
S.W.2d at 785 (ordinary and plain meaning to be given to the language of the
Legislature). Accordingly, appellant’s sentence falls within the applicable
punishment range and his complaint that the trial court assessed an illegal sentence
is without merit and should be overruled. Furthermore, to the extent appellant’s
argument concerning the legality of his sentence can be read as a challenge to the
constitutionality of his sentence, any such argument is meritless and should be
overruled.
18 Appellant’s Sentence Not Unconstitutional
Constitutional rights, including the rights provided by the Eighth
Amendment of the United States Constitution and article I, section 13 of the Texas
Constitution, may be waived. U.S. CONST. amend. VIII; TEX. CONST. art. I, § 13;
Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996); Curry v. State,
910 S.W.2d 490, 496 (Tex. Crim. App. 1995); Noland v. State, 264 S.W.3d 144,
151 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d); see also TEX. R. APP. P.
33.1. Here, appellant did not present evidence or argument concerning the issue of
any alleged excessiveness or disproportionality in his sentence at the hearing on his
motion for new trial. See (RR VIII) (record of hearing on motion for new trial).
Thus, appellant did not preserve a constitutional challenge to the excessiveness or
proportionality of his sentence for appellate review. See TEX. R. APP. P. 33.1;
Rhoades, 934 S.W.2d at 120 (noting that defendant waived any error because he
presented his argument for first time on appeal); Noland, 264 S.W.3d at 151-52 (by
failing to object and specifically state the legal basis for the objection, the
defendant failed to preserve his Eighth Amendment complaint for review); Wynn v.
State, 219 S.W.3d 54, 61 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (holding
that defendant’s failure to object to his life sentence of imprisonment as cruel and
unusual punishment waived error); Solis v. State, 945 S.W.2d 300, 301 (Tex.
App.—Houston [1st Dist.] 1997, pet. ref’d) (holding defendant could not assert
19 cruel and unusual punishment for first time on appeal). However, even absent
waiver, appellant’s sentence does not constitute cruel and unusual punishment, nor
is it grossly disproportionate in light of the circumstances of his crime and his
criminal history.
It is well-settled that punishment which falls within the limits prescribed by
a valid statute is not excessive, cruel, or unusual. Harris v. State, 656 S.W.2d 481,
486 (Tex. Crim. App. 1983); Rodriguez v. State, 614 S.W.2d 448, 450 (Tex. Crim.
App. 1981); Thomas v. State, 543 S.W.2d 645, 647 (Tex. Crim. App. 1976);
Swinney v. State, 828 S.W.2d 254, 259 (Tex. App.—Houston [1st Dist.] 1992, no
pet.); Hypke v. State, 720 S.W.2d 158, 160 (Tex. App.—Houston [14th Dist.]
1986, pet. ref’d); Stewart v. State, 732 S.W.2d 398, 400 (Tex. App.—Houston
[14th Dist.] 1987, no pet.); Simpson v. State, 668 S.W.2d 915, 919–20 (Tex.
App.—Houston [1st Dist.] 1984, no pet.). The Texas habitual offender statute has
been repeatedly upheld as constitutional. Brooks v. State, 642 S.W.2d 791 (Tex.
Crim. App. 1982); Rodriguez v. State, 614 S.W.2d 448 (Tex. Crim. App. 1981);
Girnus v. State, 595 S.W.2d 118 (Tex. Crim. App. 1980); Thomas v. State, 543
S.W.2d 645 (Tex. Crim. App. 1976); Armendariz v. State, 529 S.W.2d 525 (Tex.
Crim. App. 1975).
Furthermore, courts have consistently held that the length of a criminal
sentence is a matter of legislative prerogative. See, e.g., Harmelin v. Michigan,
20 501 U.S. 957, 962 (1991); Rummel v. Estelle, 445 U.S. 263, 284-85 (1980). In
determining whether a sentence is grossly disproportionate, the reviewing court
considers not only the present offense but also the accused’s criminal history.
Rummel, 445 U.S. at 284-85; Hicks v. State, 15 S.W.3d 626, 632 (Tex. App.—
Houston [14th Dist.] 2000, pet. ref’d); Smallwood v. State, 827 S.W.2d 34, 38
(Tex. App.—Houston [1st Dist.] 1992, pet. ref’d).
Appellant was found guilty of an aggravated state jail felony. TEX. PENAL
CODE ANN. § 12.35(c) (West 2011). Considered in conjunction with his two prior,
sequential felony convictions, the punishment range is imprisonment for no less
than 25 years or more than 99 years, or life. TEX. PENAL CODE ANN. §§ 12.35(c),
12.42(d) (West 2011). Thus, the legislature has determined that a severe penalty is
warranted and, by implication, not excessive or cruel when the evidence shows the
defendant has committed an aggravated state jail felony and been previously
convicted of at least two additional felony offenses, the second previous felony
conviction being for an offense that occurred subsequent to the first previous
conviction having become final. See TEX. PENAL CODE ANN. §§ 12.35(c), 12.42(d)
Appellant’s punishment of imprisonment for 50 years falls well within the
range set forth by the legislature. (CR 72-73; RR V 38-39). Moreover, such a
sentence is not “unusual” merely because it is reserved for a specific set of
21 offenders based upon the crime of which they are convicted and the particulars of
their prior convictions. See Harmelin, 501 U.S. at 994–95. Accordingly,
appellant’s punishment is not prohibited as excessive, cruel, or unusual. See
Harris, 656 S.W.2d at 486; Simpson, 668 S.W.2d at 919–20. Nonetheless, even if
the proportionality of appellant’s sentence is evaluated, his punishment still does
not violate the Eighth Amendment. See generally Harmelin, 501 U.S. 957; Solem
v. Helm, 463 U.S. 277 (1983).
Appellant and his passenger were in possession of a large amount of cash
separated into smaller denominations, Pyrex dishes containing trace amounts of
cocaine, a whisk, baggies, rubber bands, scales, and a pistol. (RR III 27-28, 73,
115-20, 140-48). Appellant’s possession of these items and enlistment of the
assistance of another person supports the presumption that he intended to
distribute, and in fact had just delivered, a large amount of cocaine. (RR III 181-
88).
Appellant was also illegally in possession of other narcotic substances. (RR
III 121-22, 162-65; State’s Exhibit 40) (two bottles recovered from appellant’s
vehicle containing over 530 grams of codeine and promethazine). Additionally,
from appellant’s own mouth, the judge and jury heard him acknowledge his guilt
but not express remorse. (RR III 100-01; State’s Exhibit 1) (appellant admits to “f-
--ing up” before any evidence was recovered from his vehicle).
22 Appellant committed another drug possession offense while on bond for the
offense presently at issue. (RR V 12-30) (appellant possessed 34.86 grams of
codeine and promethazine on June 18, 2012). Further, the trial court
acknowledged, and the record supports this declaration, that the justice system
attempted to “work with” appellant on numerous occasions but he persisted in
breaking the law, often by committing offenses involving weapons. (RR V 38);
RR IX State’s Exhibit 42) (conditions of probation and multiple modifications to
conditions of probation). Moreover, appellant pled “true” to having been
previously convicted of the felonies of aggravated assault with a deadly weapon
and possession with intent to deliver more than one gram, but less than four grams,
of cocaine. (CR 72-73; RR V 5-7).
Given the circumstances of appellant’s crime, his behavior while on bond
for the present offense, and his prior criminal history, appellant’s sentence is not
excessive, cruel, unusual, or grossly disproportionate in violation of the Eighth
Amendment of the United States Constitution. See Harmelin, 501 U.S. at 994–95;
Simpson, 668 S.W.2d at 916 (life sentence upon conviction for possession of .0095
grams of cocaine and finding enhancement allegations of two prior felony
convictions to be true not cruel and unusual punishment); Gonzales v. State, No.
01-91-00942-CR, 1992 WL 361293, at *1-3 (Tex. App.—Houston [1st Dist.] Dec.
10, 1992, no pet.) (not designated for publication) (sentence of 25 years, assessed
23 pursuant to Texas habitual offender statute, for the theft of three shirts did not
constitute cruel and unusual punishment). Accordingly, appellant’s second point
of error is without merit and should be overruled.
24 PRAYER FOR RELIEF
It is respectfully submitted that all things are regular and the conviction and
sentence should be affirmed. 2
/s/ Jeri Yenne JERI YENNE District Attorney Brazoria County, Texas
/s/ Michelle R. Townsend MICHELLE R. TOWNSEND Assistant District Attorney Brazoria County, Texas State Bar Number: 24049295 111 E. Locust, Suite 408A Angleton, Texas 77515 Telephone: (979) 864-1230 Facsimile: (979) 864-1525 ellehcim@alumni.rice.edu
2 The judgment of the trial court indicates appellant was convicted of a third degree felony. (CR 72-73). Because of the jury’s affirmative finding of the use of a deadly weapon during the commission of the offense, the offense became an “aggravated” state jail felony punishable as a third degree felony under section 12.35(c); however, the nature of the offense never changed. See Garza v. State, 298 S.W.3d 837, 845 (Tex. App.—Amarillo 2009, no pet.) (op. on remand). Although appellant was punished within the proper, applicable punishment range based on the present crime and his criminal history, he was, nonetheless, convicted of only a state jail felony. The notation on the trial court’s judgment indicating appellant was convicted of a third degree felony is a clerical error, not the product of judicial reasoning. Thus, this Court is authorized to reform the trial court’s judgment so that it may speak the truth. See TEX. R. APP. P. 43.2(b); Garza, 298 S.W.3d at 845; Figueroa v. State, 250 S.W.3d 490, 518 (Tex. App.—Austin 2008, pet. ref’d), cert. denied, 555 U.S. 1185 (2009); Smith v. State, 223 S.W.3d 690, 696–97 (Tex. App.—Texarkana 2007, no pet.); French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992). As such, the judgment of the trial court should be modified to reflect that appellant was convicted by a jury of possession of a controlled substance, a state jail felony, aggravated by a finding that appellant used a deadly weapon in the commission of the offense, enhanced by two prior felony convictions.
25 CERTIFICATES OF SERVICE AND COMPLIANCE
This is to certify that a copy of the foregoing instrument has been delivered
to appellant’s attorney on this the 9th day of October, 2015:
Perry R. Stevens Attorney at Law 603 E. Mulberry Angleton, Texas 77515
Further, that this document was generated on a computer program that
calculates the word count to be 5,218 words. See TEX. R. APP. P. 9.4(i).
/s/ Michelle R. Townsend MICHELLE R. TOWNSEND Assistant District Attorney Brazoria County, Texas State Bar Number: 24049295 111 E. Locust, Suite 408A Angleton, Texas 77515 Telephone: (979) 864-1230 Facsimile: (979) 864-1525 ellehcim@alumni.rice.edu