Opinion issued November 10, 2004
In The
Court of Appeals
For The
First District of Texas
NO. 01-03-00328-CR
RODRIC LEWIS MOORE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 338th District Court
Harris County, Texas
Trial Court Cause No. 895917
MEMORANDUM OPINION
Appellant, Rodric Lewis Moore, was charged with capital murder, enhanced by two prior felony convictions. He pleaded not guilty to the primary offense, but pleaded “true” to the enhancements. A jury found appellant guilty of the lesser-included offense of murder, found the enhancement paragraphs true, and assessed punishment at confinement for life.
In three issues, appellant contends that the trial court erred fundamentally by instructing the jury to enhance his punishment because (1) the charge included language in the second enhancement paragraph that was not authorized by the indictment, (2) no issue was joined upon which to enhance punishment due to defective notice and arraignment, and (3) the evidence offered at the punishment stage was legally insufficient to support the second enhancement allegation.
We affirm.
BACKGROUND
Appellant’s two prior offenses were listed in the enhancement paragraphs of the indictment as follows:
Before the commission of the offense alleged above, hereafter styled the primary offense, on May 17, 1985, in Cause No. 423416, in the 263rd DISTRICT COURT of Harris County, Texas, the Defendant was convicted of the felony of BURGLARY OF A MOTOR VEHICLE.
Before the commission of the primary offense, and after the conviction in Cause No. 423416 was final, the Defendant committed the felony of BURGLARY OF A HABITIATION (sic), on April 5, 1990, in Cause No. 545826 in the 230th DISTRICT COURT of Harris County, Texas.
(Emphasis in original). Paragraph two failed to allege that appellant was convicted
of the offense of burglary of a habitation. Appellant did not move to quash the indictment on this ground prior to trial.
At the punishment stage, the charge concerning paragraph two instructed:
Enhancement Paragraph Two of the indictment alleges that before the commission of the offense for which you have found the defendant guilty and after the conviction in Cause No. 423416 was final, the defendant committed the felony of burglary of a habitation and was convicted on April 5, 1990, in Cause No. 545826, in the 230th District Court of Harris County, Texas. To this allegation in Enhancement Paragraph Two of the indictment the defendant has pleaded “true.”The jury was further instructed that they must assess punishment at confinement for a period of not less than 25 years, nor more than 99 years or life. Appellant did not object to the charge at trial.
ANALYSISSection 12.42(d) of the Penal Code provides for enhanced punishment of habitual offenders. Tex. Pen. Code Ann. § 12.42(d) (Vernon 2003). Where the State can show that a defendant was convicted of two other felonies before the present felony offense, the range of punishment on conviction must be for no less than 25 years, nor longer than 99 years or life. Id. The State must show that the defendant committed each successive felony after the prior conviction was final. Id.A.Error in the Charge
In his first issue, appellant contends that the trial court fundamentally erred in enhancing his punishment because the charge failed to properly track the indictment. Specifically, the second enhancement paragraph of the charge stated that appellant was “convicted” of burglary of a habitation, whereas the second enhancement paragraph of the indictment merely stated that he had “committed” the offense. Appellant asserts that his punishment was erroneously enhanced by this second paragraph. Compare Tex. Pen. Code Ann. § 12.42(d) with Tex. Pen. Code Ann. § 12.42(c)(1) (Vernon 2003) (prescribing punishment of not less than 15 years, nor more than 99 years or life, where defendant on trial for first-degree felony has only one prior felony conviction).
Appellant concedes that his failure to timely bring a motion to quash the enhancement portion of the indictment waives any contention as to the sufficiency of these allegations in the indictment. Tex. Code Crim. Proc. Ann. art. 1.14(b) (Vernon Supp. 2004-2005). Appellant also concedes that he failed to raise any objection to the charge in the trial court. Tex. Code Crim. Proc. Ann. art. 36.14 (Vernon 1981).
Indeed, the court asked if appellant had reviewed the court’s charge, and he responded in the affirmative. Then the court asked if he had any objections, and he responded in the negative. However, appellant now contends that we must perform the fundamental error analysis set out in Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984), to determine whether submitting this charge resulted in egregious harm, and thus reversible error.
1. Applicability of Almanza
The Court of Criminal Appeals has recently found that, “[a]lthough Almanza does not explicitly resolve the question of the effect of an affirmative statement that there are no objections to the charge, it does speak to . . . an error to which ‘no proper objection was made at trial.’” Bluitt v. State, 137 S.W.3d 51, 53 (Tex. Crim. App. 2004) (discussing Almanza, 686 S.W.2d at 171). In Bluitt, the Court held that “an affirmative denial of objection . . . shall be deemed equivalent to a failure to object.” Bluitt, 137 S.W.3d at 53. Such lack of objection to an error in the charge may be raised on appeal, but a reversal may not be obtained unless the error resulted in egregious harm. Id. Thus, a harm analysis under Almanza is appropriate.
2. Egregious Harm Analysis
To constitute reversible error, we must find that the error in the charge “is so egregious and created such harm that appellant ‘has not had a fair and impartial trial.’” Almanza, 686 S.W.2d at 171. “[T]he actual degree of harm must be assayed in light of the entire jury charge, the state of the evidence, including the contested issues and weight of the probative evidence, the argument of counsel and any other relevant information revealed by the record as a whole.” Id.
Accordingly, we first consider the jury charge given at punishment. Ovalle v. State, 13 S.W.3d 774, 786 (Tex. Crim. App. 2000). Appellant was found guilty of murder. The first enhancement stated that the appellant had been convicted of felony burglary of a motor vehicle. The second enhancement stated that appellant had been “convicted” of felony burglary of a habitation. The charge stated that appellant pleaded “true” to both enhancements and instructed the jury to find the same. Finally, the charge instructed jurors to assess punishment at confinement for not less than 25 years, nor more than 99 years or life. Appellant received a life sentence.
Next, we consider the evidence. Id. Appellant seems to allege that he was surprised that he faced punishment as a habitual offender. However, several months before trial, appellant was provided with notice of the State’s intent to use his extraneous offenses, as will be discussed below. Further, appellant pled true to the enhancements and stipulated to the evidence concerning his prior convictions. The State offered the formal judgments on the prior convictions into evidence and they were admitted without objection.
Finally, we consider the arguments of counsel. Id. at 787. Appellant’s counsel argued to the jury in closing that,
the Judge has instructed you that the minimum you can consider in this case, because of [appellant’s] record, is 25 years. . . . What you heard about on the punishment range, the usual punishment range for murder is 5 years to life. But if you have felony convictions, like [appellant] does, which have been proven – and we did not contest – then the minimum is 25.
Thus, appellant demonstrated an understanding that his prior felony convictions were sufficient to subject him to a minimum punishment of 25 years’ confinement.
In sum, the irregularity in the indictment did not cause appellant surprise or render him unable to prepare to meet the scope of the allegations. We find that appellant has failed to show that the error was so egregious and created such harm that he was denied a fair and impartial trial.
We overrule appellant’s first issue.
B. Notice
In his second issue, appellant contends that he did not have notice that he would face punishment as a habitual offender under section 12.42(d). Consequently,
his plea at the arraignment was defective, so no issue was joined to invoke that punishment scheme. In essence, appellant suggests that a variance existed in the court’s charge that kept him from adequately preparing his defense. It is true that a defendant is entitled to notice of prior convictions to be used for enhancement so he can locate records of the offenses and adequately prepare his defense. Brooks v. State, 957 S.W.2d 30, 33 (Tex. Crim. App. 1997); Coleman v. State, 577 S.W.2d 486, 488 (Tex. Crim. App. 1978). However, when, as here, the offense, cause number, court, county, and date are all accurately described, and the trial evidence shows that they accurately correspond to a conviction ultimately offered by the State, the risk that appellant was prevented from locating and identifying those offenses is negligible. See Brazier v. State, 748 S.W.2d 505, 509 (Tex. App.—Houston [1st Dist.] 1988, pet. ref’d).
The evidence shows that, months before trial, the State served appellant’s counsel with notice that it would use the following convictions, inter alia, to seek enhanced punishment: (1) “The defendant was convicted of the offense of Burglary of a Motor Vehicle on May 17, 1985 in cause number 423416 in the 263rd District Court of Harris County, Texas,” and (2) “The defendant was convicted of the offense of Burglary of a Habitation on April 5, 1990, in cause no. 545826, in the 230th District Court of Harris County, Texas.”
Appellant entered pleas of “true” to the enhancement allegations without objection. In addition, appellant stipulated in writing prior to the commencement of the punishment hearing that he was the same person convicted of the offenses in these causes, and this stipulation was entered into evidence without objection. The trial court admonished appellant that he was waiving his right to have the State prove up the prior convictions. Appellant acknowledged that he understood the consequences. Having admitted the conviction by stipulation and by testimony, appellant may not now complain that he was not put on sufficient notice regarding the scope of his charges. Bevins v. State, 422 S.W.2d 180, 181 (Tex. Crim. App. 1967).
The issue was joined when, pursuant to Code of Criminal Procedure, article 36.01, the State’s attorney read the indictment containing the enhancements at the beginning of the punishment hearing. Brooks v. State, 921 S.W.2d 875, 879 (Tex. Crim. App.—Houston [1st Dist.] 1996, aff’d, 957 S.W.2d 30 (Tex. Crim. App. 1997).
We overrule appellant’s second issue.
C. Legal Sufficiency of the Evidence
In his third issue, appellant challenges the legal sufficiency of the evidence supporting the second enhancement paragraph.
A legal sufficiency challenge requires us to determine whether, viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). The legal sufficiency of the evidence is measured against the hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). A hypothetically correct jury charge is one that sets out the law, is authorized by the indictment, does not unnecessarily increase the State’s burden or unnecessarily restrict the State’s theories of liability, and adequately describes the particular offense for which the defendant was tried. Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2002).
To invoke the habitual offender statute, the State has the burden to show that a prior conviction was final and that the defendant at trial was the person convicted. Earl v. State, 870 S.W.2d 669, 671 n.3 (Tex. App.—Houston [1st Dist.] 1994, no pet.). Here, the hypothetically correct jury charge would agree with the information ultimately in the charge and read to the jury. See Caldwell v. State, No. 01-00-00820-CR, 2002 WL 1821984, at *2 (Tex. App.—Houston [1st Dist.] Aug. 8, 2002, pet. ref’d) (not designated for publication).
Moreover, this Court has held that the State’s burden is satisfied where the defendant enters a plea of “true” to the enhancement, as appellant has here. Earl, 870 S.W.2d at 671 n.3 (citing Wilson v. State, 671 S.W.2d 524, 526 (Tex. Crim. App. 1984)). Thus, an accused cannot complain on appeal that the evidence is insufficient. Id. The issue is resolved by the plea. Harvey v. State, 611 S.W.2d 108, 111 (Tex. Crim. App. 1981).
Further, appellant stipulated to the evidence concerning his prior convictions. The State offered the formal judgments on the prior convictions into evidence. Thus, the State made a prima facie showing that the prior conviction alleged in paragraph two was a final conviction. Diremiggio v. State, 637 S.W.2d 926, 928 (Tex. Crim. App. 1982). The burden then shifted to the appellant to prove otherwise. Id. Appellant did not object to the introduction of the judgment nor did he attempt to withdraw his plea of “true” to the second paragraph. See Brooks, 957 S.W.2d at 31. Rather, both sides treated the enhancement allegations as if they were properly before the court. Id.
From a review of the record, we find that a rational trier of fact could have concluded that the enhancement was proved beyond a reasonable doubt.
We overrule appellant’s third issue.
Conclusion
We affirm the judgment of the trial court.
Laura C. Higley
Justice
Panel consists of Justices Nuchia, Hanks, and Higley.
Do not publish. Tex. R. App. P. 47.2(b).