Opinion issued July 28, 2015
In The
Court of Appeals
For The
First District of Texas
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NO. 01-14-00622-CR
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HAROLD EARL REED, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 228th District Court
Harris County, Texas
Trial Court Case No. 1404938
MEMORANDUM OPINION
A jury convicted appellant Harold Earl Reed of possession of cocaine in an
amount greater than four grams and less than two hundred grams. See TEX.
HEALTH & SAFETY CODE §§ 481.102, 481.115. After hearing evidence of Reed’s
prior felony convictions, the trial court assessed punishment at 25 years in prison.
Reed contends that the court erred by denying a motion to suppress a statement he
made at the time of his arrest. He also contends that his sentence was improperly
enhanced because there was no evidence that one of his prior convictions was final
and the court did not require him to plead to the enhancement allegations. In a third
issue,
We affirm Reed’s conviction, but we reverse the portion of the judgment
assessing punishment and remand for a new punishment hearing.
Background
Houston Police Department officers executed a search warrant at a house
where a confidential informant had purchased crack cocaine. When the officers
entered the house, they noticed that the bathroom door was closed. They forcibly
entered the bathroom and saw Reed sitting on the toilet with the lid closed, wearing
only boxer shorts and a t-shirt. The officers heard the toilet tank filling and ordered
Reed to move to the floor, but he refused. The officers handcuffed him and took
him to the living room, where they met Officer Lara, who they asked to take Reed
outside. Reed asked for some clothing, and Officer Lara asked where his clothes
were. He responded by stating that they were in the bedroom and nodding toward
it. Officer Lara retrieved some clothing from the bedroom for Reed and then
escorted him outside.
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Meanwhile, the other officers searched the house. In the kitchen, they found
crack cocaine in plain view, along with a beaker and a wire whisk, which are
commonly used for making crack cocaine. In the bedroom, they found crack
cocaine in the pocket of a jacket, along with clothing in Reed’s size and certificates
of completion of various trade courses bearing his name.
Reed was arrested and charged with possession of cocaine. The indictment
did not include any enhancements. The State later filed a document entitled
“Notice of Intention to Use Evidence of Prior Convictions and Extraneous
Offenses.” This document listed four prior convictions: possession of a controlled
substance in 1998, 1999, and 2001, as well as a 1999 conviction for possession of a
weapon by a felon. The State indicated that it intended to offer evidence of the
prior offenses to “enhance the range of punishment.”
Reed’s counsel filed a motion in limine, asking the court to prohibit the State
from introducing evidence about statements he made to police at the time of his
arrest. During trial and outside the presence of the jury, the court held a hearing on
the admissibility of Reed’s statement that his clothes were in the bedroom. The
court ruled that the statements were admissible.
The jury found Reed guilty, and he elected to have the court assess
punishment. Referring to the filed notice of intent to use evidence of prior
convictions and extraneous offenses, the court asked the State if it had proof of
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those convictions. The State introduced pen packets as evidence of Reed’s prior
conviction of three felony offenses, two of which were committed during the same
criminal transaction. Reed’s mother testified on his behalf urging leniency. She
told the court that Reed grew up in a poor and crime-ridden neighborhood, with
little opportunity, and that he became associated with the wrong crowd as an
adolescent. She also testified about Reed’s prior acts of kindness and
selflessness—such as rescuing his two younger sisters from a burning building,
personally caring for his elderly and incontinent grandfather, and sharing his
earnings with neighbors more needy than himself.
In closing argument, defense counsel alluded to the enhancements, and he
argued that the 2001 conviction was not final. Reed’s counsel stated that the proper
punishment range was “five to life,” and he urged the court to assess punishment of
“somewhere around five years.” The State argued that Reed was a recidivist and
urged the court to sentence him to “a 25-year minimum.” The trial court found that
the State had “proved the enhancements” and that Reed and his counsel “were
aware of the enhancements, [and] of the range of punishment if [the] enhancements
were proved up.” The court sentenced Reed to 25 years in prison, and he appealed.
Analysis
On appeal, Reed challenges the court’s ruling on the admissibility of his
statements to police, arguing that it was error to admit them because they were the
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result of custodial interrogation. He also raises two issues pertaining to sentencing,
seeking a remand for a new sentencing hearing.
I. Admission of evidence
In his third issue, Reed argues that the trial court erred by overruling his
motion to suppress the statements he made to Officer Lara. Defense counsel filed a
motion in limine pertaining to those statements, and the trial court held a hearing
on their admissibility outside the presence of the jury. The trial court ruled that the
statements were admissible, overruling Reed’s objection that admission of the
statements would violate his rights under article 38.22 of the Code of Criminal
Procedure because they were non-recorded custodial statements.
We review a trial court’s ruling on the admission of evidence for an abuse of
discretion. Layton v. State, 280 S.W.3d 235, 240 (Tex. Crim. App. 2009);
Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). As with other
types of evidentiary rulings, we uphold the trial court’s decision unless it lies
outside the zone of reasonable disagreement. Layton, 280 S.W.3d at 240 (citing
Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990)). The test for
abuse of discretion is whether the ruling was arbitrary or unreasonable.
Montgomery, 810 S.W.2d at 380. We “may uphold a trial court’s ruling on any
legal theory or basis applicable to the case.” Martinez v. State, 91 S.W.3d 331, 336
(Tex. Crim. App. 2002).
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Article 38.22 prohibits the use of an oral statement of an accused made as a
result of custodial interrogation unless the statement is made voluntarily, after the
accused is informed of his rights, and it is electronically recorded. TEX. CODE
CRIM. PROC. art. 38.22 § 3; see also Miranda v. Arizona, 384 U.S. 436, 444, 86 S.
Ct. 1602, 1612 (1966) (requiring that a person receive a warning informing him of
his constitutional rights prior to any custodial interrogation). But neither Miranda
nor article 38.22 precludes the admission of a statement that is not the product of a
custodial interrogation. Miranda, 384 U.S. at 444, 86 S. Ct. at 1612; TEX. CODE
CRIM. PROC. art. 38.22 § 5; accord Aguilera v. State, 425 S.W.3d 448, 455 (Tex.
App.—Houston [1st Dist.] 2011, pet. ref’d). Not all statements obtained by police
while a person is in custody “are to be considered the product of interrogation.”
Rhode Island v. Innis, 446 U.S. 291, 299, 100 S. Ct. 1682, 1688–89 (1980). To be
considered an interrogation, a question must denote “a measure of compulsion
above and beyond that inherent in custody itself.” Id. at 300, 100 S. Ct. at 1689.
That is, “interrogation” refers to “words or actions on the part of the police . . . that
the police should know are reasonably likely to elicit an incriminating response
from the suspect.” Id. at 301, 100 S. Ct. at 1689–90. Furthermore, article 38.22
excepts from its prohibition a statement by the defendant “that is the res gestae of
the arrest or of the offense.” TEX. CODE CRIM. PROC. art. 38.22 § 5.
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Reed argues that he was in custody, and we assume for the purpose of our
analysis that he was. Officer Lara encountered Reed in the living room of the
house being searched. Reed requested his clothes, and Officer Lara asked him
where they were. In response, Reed nodded toward a bedroom and said, “They are
in my room.” On appeal, Reed contends that this custodial statement was
inadmissible. Specifically, Reed argues that his statements were not res gestae, and
even if they were res gestae they nevertheless would not be admissible. However
his appellate argument does not address whether any interrogation occurred at all.
At trial, defense counsel stated that he had no objection to the admission of
Reed’s request for his clothes. However counsel argued that “every other follow-
up question by the police and afterwards” was required to be recorded because
Reed was “clearly” in custody. He made no argument that Officer Lara should
have known that his question was “reasonably likely to elicit an incriminating
response.” Innis, 446 U.S. 301, 100 S. Ct. at 1689–90. Nothing in the record
indicates that he should have had such an awareness. Rather, the record supports a
conclusion that Officer Lara asked where the clothes were so that he could
accommodate Reed’s request for them. Although Reed’s response to the question
tended to connect him to the contraband found in the house, under the
circumstances, we hold that the record supports the conclusion that Officer Lara’s
response to a request for clothing was not an interrogation. See id.; see also Batiste
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v. State, No. AP-76,600, 2013 WL 2424134, at *14–15 (Tex. Crim. App. June 5,
2013) (not designated for publication) (holding that officer’s question as to
whether the appellant needed medical attention was not an interrogation), cert.
denied, 134 S. Ct. 1000 (2014). Because Officer Lara’s question did not constitute
an interrogation, Reed’s response was not the product of custodial interrogation.
As such, we hold that the trial court did not err by admitting the statement. See
Layton, 280 S.W.3d at 240. We overrule Reed’s third issue.
II. Improper enhancement of punishment
Reed argues that the evidence is legally insufficient to support the trial
court’s finding of a final conviction for enhancement purposes. The State
introduced evidence that, as part of a plea bargain, Reed pleaded guilty to the third-
degree felony offenses of possession of cocaine and possession of a firearm by a
felon. Both of these offenses were committed on October 7, 1999. The State also
introduced a judgment of conviction from 2001 for the first-degree felony offense
of possession with intent to deliver cocaine in an amount greater than four but less
than 200 grams. In that case, a jury found Reed guilty and assessed punishment of
23 years in prison. The judgment shows that a notice of appeal was filed, but there
is no indication as to whether a mandate was received from the court of appeals.
Reed contends that the record did not show that the 2001 conviction was final, and
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the court erred by considering it for the purpose of enhancing punishment because
there was no evidence that he had been finally convicted in that case.
Possession of cocaine in an amount more than four but less than two
hundred grams is a second-degree felony. TEX. HEALTH & SAFETY CODE
§§ 481.102, 481.115. The range of punishment for a second-degree felony is
imprisonment for two to 20 years. TEX. PENAL CODE § 12.33. However, if the State
proves that the defendant previously has been finally convicted of a felony other
than a state-jail felony, the punishment range is enhanced to that of a first-degree
felony, i.e., five to 99 years or life in prison. Id. § 12.42(b). If the State proves that
the defendant has previously been finally convicted of two felony offenses, and the
second prior felony conviction is for an offense that occurred after the first felony
conviction became final, then the defendant may be sentenced as a habitual
offender, and the punishment range is enhanced to 25 to 99 years or life in prison.
Id. § 12.42(d).
“To establish that a defendant has been convicted of a prior offense, the
State must prove beyond a reasonable doubt that (1) a prior conviction exists, and
(2) the defendant is linked to that conviction.” Flowers v. State, 220 S.W.3d 919,
921 (Tex. Crim. App. 2007). A “conviction from which an appeal has been taken is
not considered to be a final conviction until the conviction is affirmed by the
appellate court and that court’s mandate of affirmance becomes final.” Jones v.
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State, 711 S.W.2d 634, 636 (Tex. Crim. App. 1986). When the record shows that
an appeal has been taken from a prior conviction, the State bears the burden to
prove that the conviction has become final. Fletcher v. State, 214 S.W.3d 5, 8
(Tex. Crim. App. 2007); Tate v. State, 414 S.W.3d 260, 265 (Tex. App.—Houston
[1st Dist.] 2013, no pet.).
The State concedes error, and we agree. The jury found Reed guilty of the
second-degree felony offense of possession of between four and 200 grams of
cocaine. See TEX. HEALTH & SAFETY CODE §§ 481.102, 481.115. Although the
State proved that Reed had previously been finally convicted of a third-degree
felony in 1999, it did not prove that the 2001 first-degree felony conviction was
final. The judgment states that notice of appeal was given, but nothing in the
record shows that an appellate court mandate issued. As such, there is no proof of
finality of that conviction. See Fletcher, 214 S.W.3d at 8; Jones, 711 S.W.2d at
636; Tate, 414 S.W.3d at 265. Accordingly we hold that the evidence was
insufficient to establish the predicate necessary to use the 2001 conviction to
enhance Reed’s punishment. See Tate, 414 S.W.3d at 265 (reversing as to
punishment without conducting a harm analysis). As such, the State did not prove
that the court was required to assess punishment of no less than 25 years in prison.
See TEX. PENAL CODE § 12.42(d). We sustain this issue and remand for a new
hearing on punishment. In light of the disposition of this issue, we need not address
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Reed’s other arguments complaining about his punishment. See TEX. R. APP. P.
47.1.
Conclusion
We affirm Reed’s conviction, but we reverse the portion of the judgment
assessing punishment, and we remand for a new hearing on punishment.
Michael Massengale
Justice
Panel consists of Chief Justice Radack and Justices Higley and Massengale.
Do not publish. TEX. R. APP. P. 47.2(b).
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