Robert Lyles v. State

Affirmed and Memorandum Opinion filed September 27, 2012.

In The

Fourteenth Court of Appeals

NO. 14-11-00421-CR

ROBERT LYLES, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 176th District Court
Harris County, Texas
Trial Court Cause No. 1261026

MEMORANDUM OPINION

A jury convicted appellant, Robert Lyles, of “engaging in organized criminal
activity.” In four issues, appellant contends the evidence is legally insufficient to support
his conviction and the trial court erred by refusing to quash the jury panel, overruling
appellant’s objection to jury argument, and permitting the State to present a certain
punishment enhancement. We affirm.
 I. BACKGROUND

During 2010, several law enforcement agencies cooperated in a multi-
jurisdictional investigation regarding persons allegedly involved in identity theft and
fraud. The suspects were purportedly creating counterfeit identification cards (“ID
cards”) and checks. Officers possessed information that appellant was the person
producing the counterfeit items and other persons were working with appellant.

Officers conducted surveillance of appellant’s house. Leslie Clark and Detraicia
Pineda also lived at the house and were financially supported by appellant. Clark was
previously convicted of numerous offenses, including drug possession, credit card abuse,
and shoplifting. She had recently discontinued a drug-abuse recovery program and was
working for a women’s prison-recovery organization. Pineda had a prior felony
conviction for identity theft and was on probation in another identity-theft case.

According to officers, “almost every day,” appellant and Pineda went to an
apartment located five miles away on Wagonwheel Lane (the “Wagonwheel
Apartment”), where they would remain for four to five hours; they never spent the night
at the apartment. The Wagonwheel Apartment was leased to Pineda, and she listed
appellant as her emergency contact and employer.1 As described below, officers
eventually searched the Wagonwheel Apartment and found a massive amount of check-
fraud contraband.

On April 7, 2010, officers observed two females, specifically, Shamanda Jeffery
and another woman, park their car in the driveway of appellant’s house and meet briefly
with appellant. Officers later found a photograph of Jeffery in the Wagonwheel
Apartment.

On April 9, 2010, officers observed two different females, specifically, Jana
Williams and “unknown black female,”2 park in appellant’s driveway, meet with

1
Pineda testified appellant was her partner in an income-tax-preparation business.
2
During their surveillance, officers observed appellant interact with several black females whose
2
appellant briefly in his garage, then leave. As discussed in detail below, the females
proceeded directly to a Target retail store where they jointly committed money
laundering.

On April 12, 2010, officers observed appellant drive an unusual route to a side
street, where he pulled beside another car and handed something to its driver. There is no
evidence regarding the identity of the other driver, and no description of the object
appellant handed the driver.

On April 20, 2010, officers followed appellant to Lisa Allen’s house. Allen exited
the house and spoke with appellant while he remained inside his car. The next day,
appellant drove to a restaurant parking lot and pulled alongside a car driven by Allen.
Officers saw appellant hand Allen a folded envelope. Officers never determined what the
envelope contained; however, officers later found a photograph of Allen in the
Wagonwheel Apartment.

During the evening of April 20, 2010, officers observed Lee Tate, Jr. and Gladys
Jack park in appellant’s driveway. Tate walked to appellant’s front door but was directed
to enter the garage. After a few minutes, Tate and Jack left. Shortly thereafter, officers
stopped Jack for a traffic violation. Inside Tate’s wallet, officers found a valid IRS check
written to Goree Sears but with Tate’s mailing address. When officers later searched the
Wagonwheel Apartment, they did not find any evidence pertaining to Tate or Sears.

Officers eventually obtained an arrest warrant for Pineda. On April 28, 2010,
officers executed the warrant while Pineda and appellant were inside the Wagonwheel
Apartment. Officers introduced themselves then forcibly entered the apartment. Inside,
Pineda and appellant were already lying on the floor, apparently anticipating arrest.
Officers found a vast amount of check-fraud contraband, including computers with
check- and ID card-creating software, a printer and laminator, check stock, printouts of

identities were never discovered. In the indictment and jury charge, these females were referred to by the
singular term “unknown black female.” Similarly, several unidentified black males were involved in
appellant’s scheme and were referred to in the indictment and jury charge by the singular term “unknown
black male.”

3
numerous individual’s identifying information, stolen checks or copies of checks, and
passport-sized photographs of individuals which apparently would be used to create
counterfeit ID cards. Officers discovered packets in which individuals’ identifying
information had been stapled to stacks of counterfeit checks bearing the individuals’
names. In the bathroom, officers observed several passport photographs on the sink and
floor; Pineda testified appellant proceeded to the bathroom when the officers first arrived
and introduced themselves. Officers also found a bedroom and closet full of women’s
clothing with the sales tags still attached.

Appellant was indicted for “engaging in organized criminal activity.” A jury
found appellant guilty and, after finding two enhancements offenses true, sentenced him
to life imprisonment.

II. LEGAL SUFFICIENCY

In his first issue, appellant contends the evidence is legally insufficient to support
his conviction of “engaging in organized criminal activity.”

A. Standard of Review

When reviewing sufficiency of the evidence, we view all of the evidence in the
light most favorable to the verdict and determine, based on that evidence and any
reasonable inferences therefrom, whether any rational fact finder could have found the
elements of the offense beyond a reasonable doubt. Gear v. State, 340 S.W.3d 743, 746
(Tex. Crim. App. 2011) (citing Jackson v. Virginia, 443 U.S. 307, 318–19 (1979)). We
do not sit as a thirteenth juror and may not substitute our judgment for that of the fact
finder by re-evaluating weight and credibility of the evidence. Isassi v. State, 330
S.W.3d 633, 638 (Tex. Crim. App. 2010). Rather, we defer to the responsibility of the
fact finder to fairly resolve conflicts in testimony, weigh the evidence, and draw
reasonable inferences from basic facts to ultimate facts. Id. This standard applies equally
to both circumstantial and direct evidence. Id. Our duty as reviewing court is to ensure
the evidence presented actually supports a conclusion that the defendant committed the

4
crime. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).

Circumstantial evidence is as probative as direct evidence in establishing guilt of
an actor, and circumstantial evidence alone can be sufficient to establish guilt. Hooper v.
State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). An inference is a conclusion reached by
considering other facts and deducing a logical consequence from them. Id. at 16.
Speculation is mere theorizing or guessing about the possible meaning of facts and
evidence presented. Id. A conclusion reached by speculation may not be completely
unreasonable, but it is not sufficiently based on facts or evidence to support a finding
beyond a reasonable doubt. Id. Each fact need not point directly and independently to
the appellant’s guilt, as long as the cumulative effect of all incriminating facts is
sufficient to support the conviction. Id. at 13.

B. Analysis

Appellant contends there is no evidence supporting a finding that he intentionally
committed the offense of “engaging in organized criminal activity.” Relevant to our
analysis and disposition, a person commits “engaging in organized criminal activity” if,
with the intent to establish, maintain, or participate in a combination or in the profits of a
combination, he commits a felony offense under chapter 32 of the Penal Code. Tex.
Penal Code Ann. § 71.02(a)(8) (West Supp. 2012) (emphasis added). A person commits
a felony offense under chapter 32 if he, with intent to harm or defraud another, possesses
a certain number of items of identifying information of other persons without their
consent. Id. § 32.51(b), (c) (West Supp. 2012) (“Fraudulent Use or Possession of
Identifying Information”).

We liberally construe appellant’s argument as an assertion that there is no
evidence supporting a finding he intended “to establish, maintain, participate in, or
participate in the profits of a combination.” Hart v. State, 89 S.W.3d 61, 63–64 (Tex.
Crim. App. 2002).3 This intent may be established by circumstantial evidence. Id. at 64;

3
The other mental-state requirement of “engaging in organized criminal activity” is the mens rea
of the underlying felony—here, that appellant, with “intent to harm or defraud,” possessed certain
5
Nwosoucha v. State, 325 S.W.3d 816, 841 (Tex. App.—Houston [14th Dist.] 2010, pet.
ref’d). “Combination” means three or more persons who collaborate in carrying on
criminal activities, even though participants may not know each other’s identity and
membership in the combination may change from time to time. Tex. Penal Code Ann. §
71.01(a) (West 2011). “Collaborate in carrying on criminal activities” has been defined
as intent “to work together in a continuing course of criminal activities.” Nguyen v. State,
1 S.W.3d 694, 697 (Tex. Crim. App. 1999). It is permissible to infer an agreement
among a group working on a common project when each person’s action is consistent
with realizing the common goal. Arredondo v. State, 270 S.W.3d 676, 682 (Tex. App.—
Eastland 2008, no pet.).

The trial court instructed members of the jury to find appellant guilty of “engaging
in organized criminal activity” if they found beyond a reasonable doubt that:

[Appellant] . . . did then and there unlawfully, with intent to establish,
maintain or participate in a combination or in the profits of a combination,
said combination consisting or [appellant] and at least two of the following
people, Detraicia Pineda[,] and/or Lee Tate Jr., and/or [Shalonda] Palmer,
and/or Leslie Clark, and/or Shamanda Jeffery, and/or Jana Williams, and/or
an unknown black female, and/or an unknown black male, and/or Lisa
Allen, and/or Dowell Evans, commit the offense of fraudulent use or
possession of identifying information[.]

We will first consider appellant’s intentions regarding the two women who visited
his house during the morning of April 9, 2010, namely, Jana Williams and “unknown
black female.” We start with contextual facts. On April 8, 2010, an unidentified black
male (“unknown black male no. 1”) purchased two $100 gift cards from a Target on
Westheimer Parkway. He paid for the gift cards using a fraudulent check drawn from an
account belonging to John and Maria Mannion; someone had forged John’s signature on
the check.4 When officers searched the Wagonwheel Apartment, they found a printout

identifying information. See Tex. Penal Code Ann. § 32.51(b); see also Hart, 89 S.W.3d at 63
(discussing the two, separate intent requirements of “engaging in organized criminal activity”). We do
not interpret appellant to have challenged the sufficiency of evidence supporting this intent element.
4
John testified the check was counterfeit.

6
containing the name, birth date, address, and driver’s license number of Maria Mannion,
John’s wife. An officer testified that the printout came from a subscription website that
provides individuals’ identifying information. The officer also testified that the website
provides access to the identifying information of every registered person living at an
individual’s address. Thus, the jury could infer appellant had access to John’s identifying
information because appellant retrieved Maria’s information on the website. These facts
also support a reasonable inference that “unknown black male no. 1” received the
fraudulent Mannion check from appellant (or someone working with appellant),
purchased the gift cards using the check, then delivered the gift cards to appellant (or
someone working with appellant).

On April 9, 2010, Williams and “unknown black female” parked their car in the
driveway of appellant’s house, exited, entered the garage, and met with appellant. After a
few minutes, the women returned to their car and drove directly to a Target on FM 1960.
The women entered the store and proceeded to the electronics section. “Unknown black
female” attempted to purchase a camera using one of the $100 gift cards purchased by
“unknown black male no. 1.” She had the transaction voided when she was told the
camera cost $130. “Unknown black female” and Williams went to the linen section,
where each woman selected a comforter set. They then proceeded to different checkouts.
“Unknown black female” presented her cashier with an $80 comforter set, trash bags, and
two candy bars for a total purchase price of $97.23. She then added a soft drink to her
purchase for a total purchase price of $98.73. She paid for the items with the same $100
gift card and exited the store with the merchandise.

Williams carried a $90 comforter set and various snack foods to another cashier.
The total purchase price of these items was $101.42. Williams then added a household
cleaning product for a total purchase price of $104.54. Williams paid for the items with
the other $100 gift card purchased by “unknown black male no. 1.” Williams
immediately proceeded to customer service and returned the comforter set and cleaning
product. In exchange for these items and $.65 cash, Williams received a new $100 gift

7
card. Williams then exited the store, and she and “unknown black female” left in their
car. Officers attempted to follow the women but lost sight of them in traffic.

On April 12, 2010, another unidentified black male (“unknown black male no. 2”)
used the new $100 gift card to purchase $83.44 worth of cologne at a different Target.
“Unknown black male no. 2” then immediately returned to the merchandise area of the
store, selected a personal hygiene item, and purchased the item for $17.31. He paid for
the item with the remaining balance on the gift card and cash. Officers testified they did
not know how “unknown black man no. 2” obtained possession of the new gift card.

The foregoing facts support the following findings:

The gifts cards used by the women were purchased by a fraudulent check created
by appellant: (1) the gift cards were purchased with a check bearing the forged
signature of John and drawn off John and Maria’s account; (2) a website printout
containing Maria’s identifying information was found in the Wagonwheel
Apartment, and John’s information would have been accessible on the website
because he lived with Maria; and (3) after leaving appellant’s house, the women
immediately used the gift cards at Target.
Appellant trusted the women because he met them at his personal residence.
Both women operated in a highly synchronized fashion when purchasing the items
at Target because they (1) proceeded to different checkouts, (2) presented
approximately $100 worth of items, (3) and, after receiving the original total price,
added an item to their respective purchases. These actions indicate a coordinated
plan between the women regarding how to use the gift cards. An officer testified
that, based on his training and experience, when two individuals are jointly
engaged in retail fraud, they will use separate checkouts because “it’s hard,
difficult for anybody who’s investigating fraud in the store loss prevention to
watch two different registers at once.”
“Unknown black male no. 2” engaged in similar behavior on April 12 when he
used the new gift card to purchase items in two immediate, consecutive
transactions. This fact is evidence of a common understanding among these
individuals regarding use of fraudulent gift cards.
Williams committed money laundering because she ultimately left the Target
without making a purchase (except five dollars worth of snack food) but with a
new gift card which was used by another person three days later. An officer
testified that it is common for criminals engaged in check fraud to purchase gift
cards, buy items using the gift cards, then return these items in exchange for new

8
 gift cards. This scheme makes it more difficult to trace the new gift cards back to
the original fraudulent check.
“Unknown black female” knew Williams planned to exchange her purchased
items for a new gift card because “unknown black female” went to a separate
checkout, left the store by herself, and waited for Williams, who returned to the
car without a comforter set. Thus, Williams and “unknown black female” worked
together to commit money laundering.
The fact Williams and “unknown black female” engaged in money laundering
establishes that they knew appellant had provided them with fraudulent gift cards.
This evidence also supports an inference that they knowingly assisted appellant by
furthering his scheme.

We recognize that no evidence supports a finding that, prior to April 9, 2010,
Williams or “unknown black female” used fraudulent gift cards supplied by appellant or
worked with appellant in any criminal activities. However, there is overwhelming
evidence that appellant was the architect behind a massive check-fraud scheme that
involved sophisticated counterfeiting equipment and many individuals (including persons
who directly assisted appellant and those who simply bought counterfeit-check packets
from him). Part of appellant’s scheme involved using counterfeit checks to purchase gift
cards. On April 28, 2010, appellant was in possession of the indentifying information of
dozens of individuals. The evidence supports an inference appellant planned to use this
information to create counterfeit checks and ID cards which would, in part, be used to
purchase gift cards.5 The actions of Williams and “unknown black female” demonstrate
that part of the scheme was to use gift cards to obtain new gift cards in order to attenuate
the connection between the gift cards and the fraudulent checks.

Because Williams and “unknown black female” assisted appellant by committing
money laundering on April 9, 2010, the jury could have logically inferred appellant
intended for Williams and “unknown black female” to provide similar assistance in the
future. This is particularly true because it is reasonable to assume appellant intended for

5
There is also evidence supporting a finding that Pineda purchased items using gifts cards.
Officers observed Pineda attempt to use a gift card at a retailer, but the gift card had been deactivated.
Further, as noted above, officers found in the apartment a vast amount of women’s clothing with the tags
still attached.

9
only a small number of individuals to be involved in the money laundering—the more
individuals involved in such a scheme, the more likely it was for something to go wrong
or for police to become involved. Instead, the jury could have inferred appellant wanted
continued assistance from individuals he trusted, who knew how to launder gift cards,
and who had done so for him in the past, such as Williams and “unknown black female.”
Accordingly, we hold the evidence is legally sufficient to support a finding beyond a
reasonable doubt that appellant committed the underlying felony with the intent of
establishing a combination with Williams and “unknown black female.” 6 We overrule
appellant’s first issue.

III. MOTION TO QUASH VENIRE PANEL

In his second issue, appellant contends that the trial court erred by denying his
motion to quash the venire panel. Specifically, appellant contends the venire panel was
tainted because panel members discussed the case during their lunch break, depriving
appellant of a fair and impartial jury. We review the trial court’s denial of a motion to
quash a venire panel for abuse of discretion. Mendoza v. State, 552 S.W.2d 444, 447
(Tex. Crim. App. 1977).

During voir dire, the following exchange occurred at the bench:

[Trial Court:] Juror No. 28, would you please come up. . . . I wanted to call
you up because I realize, I believe it was when you were talking with
[defense counsel], I think I heard a lot of things like I hope that I can be fair
or I’ll probably be fair.
[Venireman 28:] Yes.
[Trial Court:] And I just have to know, will you be fair?
[Venireman 28:] Oh, absolutely. And I’m just saying, until I hear what’s
going on I don’t know anything about what’s happened. And I heard some
stuff in the lunch room, and I thought, but I don’t know anything about it.
Absolutely be fair.

6
Because we conclude the evidence is sufficient to support a finding appellant intended to
establish a combination with Jana Williams and “unknown black female,” we need not consider whether
the evidence supports a finding that appellant intended to establish, maintain, or participate in a
combination with anyone else named in the jury charge.

10
[Trial Court:] All right.
[Venireman 28:] Yeah.
[Trial Court:] Would you like --
[Defense Counsel:] What did you hear in the lunch room?
[Venireman 28:] Just that there’d been this big ring of fraudulent things
going on and being in the newspaper and I thought, well, I keep up on
everything, you know, I have been able --
[Trial Court:] Time out. I’m sorry, I didn’t hear a word she said, obviously.
Did she say at lunch something happened? I’m sorry, I didn’t hear that
part. Who were you talking to at lunch?
[Venireman 28:] Two ladies that were sitting there. I never met them
before. I don’t know who they are. I don’t know their names.
[Defense Counsel:] Are they on this panel with you?
[Venireman 28:] Yes.
[Trial Court:] See, I’m perplexed myself, because I don’t recall there really
being any publicity, although some people have said this, they must have --
I don’t understand what they’re talking about. So based upon what you
were discussing at lunch, understanding that probably that’s all about 99.9
percent wrong.
[Venireman 28:] Yes, I’m sure it is.
[Trial Court 28:] Does that make any difference in your ability to sit as a
juror?
[Venireman 28:] No, it really doesn’t.
[Trial Court:] Okay.
[Venireman 28:] As I said, you know, I didn’t know anything about it. I
was just surprised to hear that, that I actually was nervous as well.
[Trial Court:] Okay.
[Venireman 28:] I realize that I should have gave you a yes or no.
[Trial Court:] Okay. Any other questions?
[Defense Counsel:] The -- I’ve got to have [the court reporter] hear this.
You have had a prior experience with your identity being stolen?
[Venireman 28:] Right. That was -- I’m sure you’ve all heard the T.J.Maxx
thing, and we had gas purchases made on our American Express and our
number was stolen.
[Trial Court:] T.J.Maxx?

11
 [Venireman 28:] The T.J.Maxx thing.
[Defense Counsel:] That being the case, can you assure us that having had
that happen to you you can be fair and impartial in an identity theft case?
[Venireman 28:] Yes. I believe the store, you know, at the time --
[Defense Counsel:] Nothing further, your Honor.
...
[Trial Court:] Thank you, ma’am.
[Defense Counsel:] Can we go off the record for a second?
[Trial Court:] Go off the record a second.

Following the off-the-record discussion, appellant moved to quash the venire
panel:

[Defense Counsel:] Your Honor, given [venireman 28’s] statement that
there was discussion in the lunch room over our break about reports of this
case being in the news, there being a ring of identity theft that was
publicized, and in fact, it was back at one of [appellant’s] arrests, I would
ask the Court to quash this panel, give us a new panel of jurors that are not
tainted by outside influence, respectfully on the record.
[Trial Court:] I’m going to deny that, but if you’d like I will admonish the
entire panel now that any conversations or comments that they’ve heard are
not evidence, and are probably factually incorrect.
[Defense Counsel:] Given that you’ve denied my objection on the record I
would ask you once we have the ones that are going to be seated, you give
that admonition.
[Trial Court:] And I’ll definitely give that admonition. Do you want me to
address anything with the panel as it is?
[Defense Counsel:] No.

A short time later, defense counsel raised the issue again:

[Defense Counsel:] One other thing before we adjourn, given [venireman
28’s] declaration of the lunchtime chatter about the publicity in this case,
she said there were two other people from the panel.
[Trial Court:] I think one was [venireman 18], for sure.
[Defense Counsel:] Without being presumptuous, given the Court’s given
me a ruling on the record objecting to quashing this panel because of the
taint, I would ask for two other peremptory strikes be given to [appellant] to

12
 hopefully insulate against that problem, your Honor.
[Trial Court:] That will be denied.
[Defense Counsel:] Thank you.

Finally, the trial court asked the following questions to the venire panel
immediately before the parties made their peremptory strikes:

[Trial Court:] Ladies and gentlemen, there has been some discussion that
apparently some of you sat at lunch and told what you thought you know
about the case, which I can pretty much guarantee you is wrong, especially
if you are relying on any kind of news reports, TV media, anything of that
nature, 100 percent unreliable. Even if you did see any coverage it was a
long time ago. That being said, I need to know if there was any person who
has not already identified themselves as having formed an opinion in this
matter, based on your conversations at the lunch table or any other thing,
that you have not shared with us at this point in time? Is everybody that
was either a party to the lunchtime chatter or otherwise thinks that they
know what the case is about, even if they don’t, that has not identified
themselves at this time? All right. Thank you.

Accordingly, venireman 28 stated that the lunchtime conversation did not affect
her ability to sit as an impartial juror. Moreover, the trial court told the entire venire
panel that anything they discussed about the case during lunch was unreliable. The trial
court then asked the panel whether the lunchtime conversation or any other factor caused
them to have a preconceived opinion regarding the case; no venireman answered
affirmatively. Under these circumstances, we hold the trial court acted within its
discretion by denying the motion to quash. See Mendoza, 552 S.W.2d at 447.
Appellant’s second issue is overruled.

IV. JURY ARGUMENT

In his third issue, appellant contends the trial court erred by overruling his
objection to the State’s jury argument. We review a trial court’s ruling on an objection to
jury argument for abuse of discretion. Lemon v. State, 298 S.W.3d 705, 707 (Tex.
App.—San Antonio 2009, pet. ref’d).

During jury argument, the State made the following statements:

13
 [Prosecutor:] Now, to wrap this up, [defense counsel] talked in a very
persuasive, very intelligent, articulate way about world circumstances.
World circumstances that actually, frankly, affect everybody in this room,
or will affect our children or grandchildren, the way the world is changing
regarding democracy. And I think I agree with everything that he said
regarding people around the world wanting to be like us.
Along with rights come responsibility. Does everybody around the
world want to live in our system if we can’t make our own citizens
responsible for their own behavior? Who’s going to want to live in our
system if what our system says is, you know what, you can get caught red-
handed possessing these things, the police can follow you around and see
you passing it off with their own hands, we can bring you photographs of
people who admit to being involved in the crime with you, we can bring
your partners in crime to tell you how we did it, who’s going to want to live
in the country where if that happens, he walks out the door with us? Is that
your vision of America?
Or is your vision of America that we have a right to be safe, we have
a right to expect that the judicial system will make people like him follow
the law. And when he doesn’t, citizens, his peers, will convict him.
Because that’s why there’s some ability for us to feel somewhat secure in
our identities, in our bank accounts, in our homes. Or is your America one
where you get to do this and then you walk out the door with the jury, and
with the lawyers --
[Defense Counsel:] Your Honor, I object. It’s improper argument.
[Trial Court:] It’s overruled.
[Prosecutor:] That’s not -- that’s not the image of America that we want.
Because that’s not America. America is we do have rights. With our rights
come our responsibilities, and there are two responsibilities here. One, he
has the responsibility to follow the law and not hurt people, not defraud
people, not steal from people. That’s his responsibility in our country. You
have a responsibility in your country. Your responsib[ility] is to make sure
when he breaks the law you find him guilty of it.

As mentioned by the prosecutor at the beginning of the foregoing record excerpt,
defense counsel made similar, patriotic pleas during his jury argument:

[Defense Counsel:] We followed the law, we looked at the evidence, we
tried to find anything else, anything independent that would link [appellant]
to the crime, and it’s simply not there. Because we will not in Harris
County, in the state of Texas, or in the United States, in contravention of
the constitution that our forefathers died for, substitute proof beyond a
14
 reasonable doubt, evidence, with speculation, innuendo, or inference. We
simply won’t do that.
It is very telling in these times, there’s unrest in many many countries
unlike many of us have seen in our lives. In the Middle East, in Syria,
further east, southern Europe, the Balkans, everywhere, people are
[clamoring] for the rights, the liberties, and the guarantees of democracy
that we live under.
Your verdict isn’t just a verdict heard through the folks in this galley, in
this courtroom, here in Harris County, it really speaks to a larger much
more important statement. The lives that were lost for our Country’s
principles, the right to be judged by a jury of your peers, and guilt must be
established by those peers beyond a reasonable doubt, is why we live in the
best society, in the most coveted place on the face of the earth.

During jury argument, counsel is permitted to answer opposing counsel’s
argument. Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim. App. 2008). Therefore, the
trial court would not have abused its discretion by overruling appellant’s objection
because the prosecutor was simply answering defense counsel’s argument. See Lemon,
298 S.W.3d at 707. Appellant’s third issue is overruled.

V. ENHANCEMENT OFFENSE

Finally, in his fourth issue, appellant contends the trial court erred during the
punishment phase by permitting the State to use a prior conviction for enhancement
purposes that was not included in the indictment and of which appellant lacked proper
notice.

Prior convictions used as enhancements must be pleaded in some form, but they
need not be pleaded in the indictment. Brooks v. State, 957 S.W.2d 30, 34 (Tex. Crim.
App. 1997). The right to notice of the State’s intention to use prior convictions as
enhancements is rooted in due process. Villescas v. State, 189 S.W.3d 290, 293 (Tex.
Crim. App. 2006). Under a due process analysis, the issue is “whether appellant received
sufficient notice of the enhancements so that he had an opportunity to prepare a defense
to them.” Pelache v. State, 324 S.W.3d 568, 577 (Tex. Crim. App. 2010).

During a punishment-phase discussion among the parties and trial court, the State

15
noted that it included two prior convictions in the indictment as enhancements but had
agreed with appellant not to introduce one such conviction. In lieu of this prior
conviction, the State explained it intended to introduce appellant’s conviction in cause no.
135812. According to the State, appellant received proper notice of this intent. Although
appellant objected that he never agreed to the State’s use of his conviction in cause no.
135812 as a substitute enhancement, he ultimately admitted that he received notice of the
State’s intent to use the conviction for enhancement purposes. The State’s written notice
of enhancements included appellant’s conviction in cause no. 135812; the State sent this
notice to appellant five days before trial and eight days before the punishment phase.
Accordingly, we hold the trial court did not err by implicitly determining appellant
received sufficient notice of the enhancement. Appellant’s fourth issue is overruled.

We affirm the trial court’s judgment.

/s/ Charles W. Seymore
Justice

Panel consists of Chief Justice Hedges and Justices Seymore and Brown.
Do Not Publish — Tex. R. App. P. 47.2(b).

16