Opinion issued December 31, 2009
In The
Court of Appeals
For The
First District of Texas
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NO. 01-08-00299-CR
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GARY LYNN BIGGERS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 56th District Court
Galveston County, Texas
Trial Court Case No. 07CR2224
MEMORANDUM OPINION
After withdrawing his plea of guilty, appellant Gary Lynn Biggers was convicted by a jury of burglary of a habitation. See Tex. Penal Code Ann. § 30.02 (Vernon 2003). Biggers pleaded true to the two enhancement paragraphs that he had two previous felony convictions for burglary of a habitation and possession of a controlled substance. The jury assessed punishment at 75 years’ imprisonment. See Tex. Penal Code Ann. § 12.42(c)(1) (Vernon Supp. 2009). Biggers brings eight issues, alleging the trial court erred in: (1) intermixing the guilt‑innocence phase of trial with the punishment phase after Biggers had pleaded guilty; (2) allowing evidence of six prior convictions to be introduced into evidence in a unitary proceeding; (3) allowing the State’s fingerprint expert to testify when the State had not designated a specific expert witness; (4) denying Biggers the right to retain and be represented by counsel of his choosing; (5) not including in the charge a definition of the law of parties; (6) not including an “accomplice witness” charge; (7) allowing the State to amend the second enhancement paragraph of the indictment; and (8) allowing the prior enhancement paragraphs to be read to the jury before the commencement of the guilt‑innocence phase of the trial.
We affirm.
Background
John Olvera, a neighbor of complainant Charles Lidstone, testified that he saw Biggers and a woman sitting on Lidstone’s porch on the morning of July 9, 2009. Olvera was suspicious and continued to watch until he saw the woman get on a chair and put her foot though a window. Olvera saw Biggers push the woman through the window, and Olvera called the police. After the woman entered Lidstone’s house, Olvera saw her open the back door and saw Biggers walk inside. Olvera later saw Biggers leave the house carrying a yellow container, which Olvera did not see Biggers carrying before he entered the house. Olvera was present when the police arrested Biggers and the woman.
Galveston Police Officer Stacy Papillon, who conducted the arrest, identified Rebecca Green as the female. Officer Papillon testified that Green was pushing a bicycle with an attached yellow crate containing tins filled with coins. Lidstone testified that the yellow crate and the tins containing the coins belonged to him. Biggers was indicted for burglary of a habitation.
On the morning of the trial setting, Monday, March 3, 2008, Biggers and his court-appointed counsel informed the trial court of several issues that needed to be addressed before the beginning of trial. One issue was that the indictment erroneously indicated that a prior conviction, alleged for purposes of enhancing Biggers’s punishment, took place on February 2, 2002. The correct date of the prior conviction was February 21, 2002. Biggers’s counsel asserted that a correction would require an amendment of the indictment, thus entitling Biggers to additional notice before the start of trial. Counsel for the State indicated that Biggers’s counsel had been notified about the amendment five days earlier, on the prior Wednesday. Since the time of the original indictment, both Biggers and the State had access to a copy of the prior judgment of conviction which reflected the correct date. The trial court overruled any objection to the amendment of the indictment, concluding that Biggers had sufficient notice.
In addition, Biggers’s counsel advised the trial court that Biggers’s parents had arranged to retain new counsel for him. However, after determining that the proposed new counsel was not ready to proceed to trial, the trial court declined to grant a continuance, noting that the case had been called for trial, the parties had announced ready, and Biggers was “sitting in jail.”
Having denied all of Biggers’s requests for additional time, the trial court announced that jury selection would start that afternoon. Biggers subsequently decided to plead guilty to burglary of a habitation and have a jury assess his punishment. Outside the presence of the jury, the trial court confirmed that Biggers wanted to plead guilty and informed him of the range of punishment. Biggers confirmed that he had discussed with his counsel the case in general, the range of punishment, any possible plea, the voluntariness of a plea, and the inability to appeal a plea. Biggers also confirmed that he was satisfied with the representation of his counsel up to that point.
The trial on punishment commenced and the venire panel was informed that Biggers had pleaded guilty. After the jury was empaneled, the trial court again stated that Biggers had pleaded guilty and Biggers pleaded not true to the two enhancement paragraphs for previous felony convictions for burglary of a habitation and possession of a controlled substance. During its opening statement, the State informed the jury there would be testimony of additional prior convictions.
The jury heard testimony on punishment from witnesses including Olvera, Officer Papillon, Lidstone, Green, and Galveston Police Sergeant M. Bell. Sergeant Bell is a fingerprint expert, and he testified that Biggers’s prints matched the prints on seven previous criminal convictions. Biggers was the last witness to testify on punishment, and while he was on the witness stand, Biggers denied ever entering Lidstone’s house. At that point, the trial court allowed Biggers to withdraw his guilty plea, and the trial proceeded—without a defense objection—on the question of whether Biggers was guilty of the charged offense. Biggers proceeded to testify that Green told him she knew Lidstone and she needed to retrieve some of her personal property from Lidstone’s house, so Biggers helped her get through the window. After Biggers rested, he moved for a mistrial.
Analysis
Intermixing of guilt‑innocence and punishment phases of trial
In issue 1, Biggers claims the trial court improperly allowed an intermixing of the guilt‑innocence phase of trial with the punishment phase. Biggers claims this violated his state constitutional right to a speedy trial by an impartial jury and his statutory right to a trial that was bifurcated on issues of guilt‑innocence and punishment. See Tex. Const. art. I, § 10; Tex. Code Crim. Proc. Ann. art. 37.07, § 2 (Vernon Supp. 2009). Biggers also claims he was denied the right to conduct a meaningful voir dire, which violated his federal and state constitutional rights to counsel, and the right to confrontation by cross-examination. See U.S. Const. amend. VI (rights to confrontation and counsel); Tex. Const. art. I, § 10 (rights to confrontation and counsel).
Biggers’s objection to the unitary trial came after Biggers rested. At that time, Biggers moved for a mistrial based on the fact that the jury was initially informed that he had entered a guilty plea. The trial court denied the motion. Biggers later filed a motion for new trial, at which time he raised the issues of a lack of a bifurcated trial and denial of the right to conduct a meaningful voir dire.
A defendant who pleads guilty, elects to have the jury assess punishment, and withdraws his guilty plea during trial is not entitled to a new jury. See Beasley v. State, 634 S.W.2d 320, 321 (Tex. Crim. App. [Panel Op.] 1982). The Court of Criminal Appeals in Beasley explained that requiring the trial court to empanel a new jury would allow the defendant to manipulate the judicial process: the defendant could plead guilty, and after seeing how damaging the State’s evidence is, he could take the stand and force a new trial before a new jury by denying an element of the offense. Id. The Court held that a defendant may not create reversible error by his own manipulation and overruled the ground of error. Id.
Even if Biggers’s objections were timely, we hold that Beasley is dispositive and overrule issue 1.
Admission of evidence of prior convictions
In issue 2, Biggers claims the trial court improperly allowed evidence of six prior convictions to be introduced into evidence in a unitary proceeding, i.e., before the jury determined his guilt or innocence. At trial, Biggers’s counsel stated he had no objection to the admission of this evidence. We hold that Biggers has not preserved the claimed error and overrule issue 2. See Tex. R. App. P. 33.1 (requiring that party timely complain and obtain adverse ruling from trial court in order to preserve complaint for appellate review).
Admission of expert‑witness testimony
In issue 3, Biggers alleges the trial court erred in allowing the State’s fingerprint expert to testify because the State did not designate a specific expert witness. The State offered the expert testimony to establish that Biggers’s fingerprints appeared on the records of prior convictions. Instead of identifying a particular person, the State’s witness list identified “FINGERPRINT EXPERT” as a possible witness designation along with a telephone number and “GCSO” as the address. Biggers asked the trial court to strike any fingerprint expert because Biggers did not have the opportunity to investigate or interview a specific witness.
The trial court granted Biggers’s initial objection to give his counsel until the next day “to look in on whoever the expert is.” At that time the State identified the proposed witness by name and said that Biggers’s counsel would be given the expert’s mobile telephone number. The following day Biggers’s counsel renewed the objection, stating that he visited with the expert on the prior day and learned the expert’s curriculum vitae and methodology, but “didn’t have time to vet him as an adequate notice would give us.” The trial court overruled this objection.
We review the trial court’s decision to permit testimony under an abuse-of-discretion standard. See Wood v. State, 18 S.W.3d 642, 649 (Tex. Crim. App. 2000). If the trial court allows a witness to testify who does not appear on the State’s witness list, the trial court may nonetheless allow the testimony if the prosecutor’s actions were not made in bad faith and if the defendant could have reasonably anticipated the testimony of the witness. Id. Biggers does not allege that the prosecutor acted in bad faith, and nothing in our review of the record suggests that she did. Furthermore, Biggers does not allege that he could not have reasonably anticipated the expert’s testimony concerning the fingerprints. Accordingly, we overrule issue 3.
Denial of the right to choose counsel
In issue 4, Biggers contends the trial court denied him the right to retain and be represented by counsel of his choosing. The day before trial, Biggers told his court-appointed counsel that his parents had spoken to another lawyer about representing him. The proposed new counsel indicated to both the trial court and Biggers’s court-appointed counsel that he would not be ready to proceed to trial as scheduled. The trial court then stated, “This case has been called for trial and announced ready, and I am kind of hesitant to continue it anymore. [Biggers] is sitting in jail.” The trial court and the lawyers then discussed other matters, and some time later the trial court announced that trial would start that afternoon. In a later exchange, Biggers reiterated to the trial court that he wanted to retain another lawyer. In response, the court observed that the case was ready for trial and Biggers had not actually retained another lawyer. At no point did Biggers formally object or move for a continuance, as would be necessary to preserve his complaint in this regard. See Tex. R. App. P. 33.1(a) (requiring complaint to trial court and ruling to preserve error).
Even if Biggers preserved his complaint for appellate review, he provides no authority for the proposition that a defendant can retain new counsel on the day of trial and force a continuance when defendant is also represented by appointed counsel. The granting or denial of a continuance is within the sound discretion of the trial court. See Heiselbetz v. State, 906 S.W.2d 500, 511 (Tex. Crim. App. 1995). Here, Biggers has neither argued nor established any specific prejudice to him, and without such a showing, we cannot hold that the trial court abused its discretion. See id. at 511–12. Accordingly, we overrule issue 4.
Jury charge issues
In issues 5 and 6, Biggers argues the trial court erred by not including in the charge a definition of the law of parties (issue 5) and an “accomplice witness” charge (issue 6). Although not discussed in Biggers’s brief, Biggers’s counsel told the trial court he had no objection to the charge.
The failure to preserve jury-charge error is not a bar to appellate review, but rather it establishes the degree of harm necessary for reversal. Warner v. State, 245 S.W.3d 458, 461 (Tex. Crim. App. 2008). Because Biggers did not object to the charge, the error does not result in reversal “unless it was so egregious and created such harm that appellant was denied a fair trial.” Id. at 461 (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985)). To determine “egregious harm,” a reviewing court examines the entire jury charge, the state of the evidence, including the contested issues and weight of the probative evidence, the arguments of counsel, and any other relevant information revealed by the record of the trial as a whole. Id. (citing Almanza, 686 S.W.2d at 171). The defendant must have suffered actual, rather than theoretical, harm. Id. (citing Arline v. State, 721 S.W.2d 348, 352 (Tex. Crim. App. 1986)). Errors that result in egregious harm are those that affect “the very basis of the case,” “deprive the defendant of a valuable right,” or “vitally affect a defensive theory.” Id. at 461–62 (citing Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996)).
There was testimony at trial from John Olvera that Biggers entered the house with nothing in his hands and he later left the house carrying a yellow container. This is direct evidence of Biggers’s guilt as a principal actor, and any potential error of the trial court in charging on the law of parties is therefore not egregious. See Ladd v. State, 3 S.W.3d 547, 564–65 (Tex. Crim. App. 1999).
Code of Criminal Procedure article 38.14 requires that the testimony of an accomplice witness be corroborated: “A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense.” Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 2005). Biggers contends that the following testimony of Rebecca Green required the trial court to submit an accomplice witness charge:
Q. Miss Green, do you know [Biggers]?
A. Yes, sir.
Q. How long have you known him?
A. For about a year.
Q. Do you know a person named Charles Lindstone?
A. No, sir.
Q. You have never met him?
A. No, sir.
Q. You don’t know where he lives then?
A. No, sir.
Q. Have you ever been to 1512 M 1/2 in Galveston, Texas, to your knowledge?
A. I am going to take the Fifth.
Q. Did you ever go in that house?
A. I am going to take the Fifth.
Q. Were you ever involved in an enterprise where you and [Biggers] went into that house?
A. I am going to take the Fifth.
Q. Did you know a person named John Olvera?
A. No, sir.
Green did not testify against Biggers, and Biggers does not argue that Green’s invocation of her Fifth Amendment privilege against self‑incrimination somehow implicates article 38.14. In any event, Olvera provided direct testimony to show Biggers’s guilt as a principal actor.
We hold that any potential error by the trial court in not including in the charge a definition of the law of parties and an “accomplice witness” charge was not egregious. Accordingly, we overrule issues 5 and 6.
Amendment of indictment
In issue 7, Biggers contends the trial court erred in allowing the State to amend the second enhancement paragraph of the indictment to change the date of a prior conviction from February 2, 2002 to February 21, 2002. The State filed its motion for leave to amend the indictment on February 27, 2008, and trial began on March 3, 2008. At trial, Biggers orally objected to the State’s motion to amend as follows:
There was an error in the indictment. The second enhancement in the indictment indicated that the date of the second enhancement was the second day of . . . February 2002. Should have been February 21st 2002.
[T]o correct this will require an amendment of the indictment and I am entitled to seven days notice on amendment of the indictment.[1]
The objection at trial and its reference to “seven days notice” appears to reflect confusion about the notice Biggers was entitled to receive as a matter of constitutional due process of any prior offense that would be used to enhance his punishment,[2] as distinguished from the notice he was entitled to receive by rule, under Article 28.10(a) of the Code of Criminal Procedure, to any amendment to the indictment.[3]
On appeal, Biggers complains that “[t]he court erred by allowing the State to amend the enhancement portion of the indictment on the date of trial and by not allowing the Defendant adequate time to respond to the amendment.” Biggers did not suggest to the trial court, or in his appellate brief, any error based on a violation of Article 28.10. We hold that any such error has been waived. See Tex. R. App. P. 33.1(a), 38.1(i). Moreover, the facts that Biggers had no defense to the second enhancement allegation (he ultimately pleaded true to it) and that he failed to move for a continuance for the purpose of preparing such a defense (his objections suggested only that correction of the error in the indictment entitled him to additional time), foreclose any complaint that Biggers was denied due process. See Villescas v. State, 189 S.W.3d 290, 294 (Tex. Crim. App. 2006). To the extent Biggers complains that absent a correction to the indictment, the jury would not have been able to make a finding of “true” on the second enhancement paragraph, we cannot conclude that Biggers had any substantial right to rely upon a typographical error to make such an argument.
We overrule issue 7.
Reading prior conviction enhancement paragraphs to jury
In issue 8, Biggers contends the trial court erred in allowing the prior conviction enhancement paragraphs to be read to the jury before the commencement of the guilt‑innocence phase of the trial. See Tex. Code Crim. Proc. Ann. art. 36.01(a)(1) (Vernon 2007) (“When prior convictions are alleged for purposes of enhancement only and are not jurisdictional, that portion of the indictment or information reciting such convictions shall not be read until the hearing on punishment is held as provided in Article 37.07.”). At the time the enhancement paragraphs were read to the jury, however, Biggers had pleaded guilty, and the jury was requested for punishment only. It was only later that Biggers withdrew his guilty plea and trial commenced before the jury on guilt‑innocence. The trial court committed no error.
We overrule issue 8.
Conclusion
We affirm the judgment of conviction.
Michael Massengale
Justice
Panel consists of Justices Bland, Massengale, and Wilson.*
Do not publish. Tex. R. App. P. 47.2(b).
[1] At trial Biggers’s counsel also relied upon Freda v. State, 704 S.W.2d 41, 43 (Tex. Crim. App. 1986) (en banc), for the purported proposition that “the indictment has to be specific as to date.” In opposition, the State relied upon Conner v. State, No. 01-00-00383-CR, 2001 WL 204223, at *2–3 (Tex. App.—Houston [1st Dist.] Mar. 1, 2001, pet. ref’d) (not designated for publication), for the proposition that any error in permitting the amendment to the indictment would be harmless. See also Trejos v. State, 243 S.W.3d 30, 41–42 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d) (applying Tex. R. App. P. 44.2 harmless-error analysis to review trial court’s erroneous ruling permitting amendment of indictment on the day of trial). Biggers’s argument in this regard was not well-taken, as Freda did not involve the issue of the timeliness of an amended indictment. Rather, the Court of Criminal Appeals held in Freda that there was no fatal variance between the facts alleged in the indictment and the facts proved at trial when the indictment alleged the appellant was previously convicted of felony bank robbery, and appellant was not surprised to his prejudice when the actual proof instead demonstrated a prior conviction for conspiracy to commit bank robbery. See Freda, 704 S.W.2d at 43; see also Chavis v. State, 177 S.W.3d 308, 312 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d). Indeed, this Court has recently reaffirmed that “variances between an indictment and the proof of cause numbers, courts, and dates of conviction in enhancement paragraphs have been held not to be material.” Simmons v. State, 288 S.W.3d 72, 80 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d).
[2] See, e.g., Villescas v. State, 189 S.W.3d 290, 294 (Tex. Crim. App. 2006) (six days’ notice held sufficient to notify appellant of State’s intent to use prior offense to enhance punishment, relying upon Oyler v. Boyles, 368 U.S. 448, 82 S. Ct. 501 (1962)).
[3] An indictment may not be amended as to form or substance over the defendant’s objection on the day of trial. Article 28.10(a) provides:
After notice to the defendant, a matter of form or substance in an indictment or information may be amended at any time before the date the trial on the merits commences. On the request of the defendant, the court shall allow the defendant not less than 10 days, or a shorter period if requested by the defendant, to respond to the amended indictment or information.
Tex. Code Crim. Proc. Ann. art. 28.10(a) (Vernon 2006).
* The Honorable Randy W. Wilson, judge of the 157th District Court of Harris County, Texas, participating by assignment. See Tex. Gov’t Code Ann. § 74.003(h) (Vernon 2005).