ACCEPTED
06-15-00057-CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
9/2/2015 10:16:59 AM
DEBBIE AUTREY
CLERK
No. 06-15-0057-CR
FILED IN
6th COURT OF APPEALS
TEXARKANA, TEXAS
IN THE SIXTH COURT OF APPEALS 9/2/2015 10:16:59 AM
DEBBIE AUTREY
at TEXARKANA Clerk
________________________________________________
MARCUS LESLIE,
Appellant
vs.
STATE OF TEXAS,
Appellee
________________________________________________
Appeal from the District Court of Bowie County, Texas
5th Judicial District
________________________________________________
APPELLANT’S BRIEF
_________________________________________________
Troy Hornsby
Miller, James, Miller & Hornsby, L.L.P.
1725 Galleria Oaks Drive
Texarkana, Texas 75503
troy.hornsby@gmail.com
903.794.2711, f. 903.792.1276
Attorney for Appellant
Marcus Leslie
Oral Argument Requested
IDENTITY OF PARTIES AND COUNSEL
Pursuant to Texas Rule of Appellate Procedure 38.1(a), the following is a
complete list of all parties to the trial court’s judgment and the names and
addresses of all trial and appellate counsel:
Appellant Appellant’s appellate counsel
Marcus Leslie Troy Hornsby
Miller, James, Miller, & Hornsby, LLP
1725 Galleria Oaks Drive
Texarkana, Texas 75503
Appellant’s trial counsel
Chad Crowl
Bowie Co. Public Defender's Office
424 W. Broad Street
Texarkana, Texas 75501
Appellee Appellee's appellate/trial counsel
State of Texas Samantha Oglesby
Bowie County Dist. Attorney's Office
601 Main Street
Texarkana, Texas 75501
2
TABLE OF CONTENTS
Identity of Parties and Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Index of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Issues Presented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Statement of Oral Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Summary of the Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Issue One: The habitual-offender enhancement allegation in the notice of
enhancement was defective because it did not allege that the
second felony occurred after the first felony conviction became
final.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Preservation of Error . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Law and Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Harmful Error . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Issue Two: There was insufficient evidence to establish that Leslie "used"
the deadly weapon or placed anyone in danger which are
required to support an affirmative deadly weapon finding. . 21
Preservation of Error . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Law and Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Harmful Error . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
3
Prayer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
4
INDEX OF AUTHORITIES
CASES: PAGE
Box v. State,
05-12-00421-CR (Tex. App.)Dallas Mar. 28, 2013, no pet.)(mem. op.) . 19
Brooks v. State,
957 S.W.2d 30 (Tex. Crim. App. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Brooks v. State,
323 S.W.3d 893 (Tex. Crim. App. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Cates v. State,
102 S.W.3d 735 (Tex. Crim. App. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Collier v. State,
999 S.W.2d 779 (Tex. Crim. App. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Davis v. State,
897 S.W.2d 791 (Tex. Crim. App. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Derichsweiler v. State,
359 S.W.3d 342 (Tex. App.)Fort Worth 2012, pet. ref’d) . . . . . . . . . . . . . 19
Drichas v. State,
175 S.W.3d 795 (Tex. Crim. App. 2005) . . . . . . . . . . . . . . . . . . . . . . . 23,24
Ex parte Jones,
957 S.W.2d 849 (Tex. Crim. App. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Ex Parte Lewis,
AP-75,568 (Tex. Crim. App. Dec. 13, 2006)(mem. op.) . . . . . . . . . . . . . . 18
Ex parte Mathis,
571 S.W.2d 186 (Tex. Crim. App. 1978) . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Ex parte Petty,
833 S.W.2d 145 (Tex. Crim. App. 1992) . . . . . . . . . . . . . . . . . . . . . . . 24,25
Fitzgerald v. State,
722 S.W.2d 817 (Tex. App.)Tyler 1987),
aff'd, 782 S.W.2d 876 (Tex. Crim. App. 1990) . . . . . . . . . . . . . . . . . . . . . 19
5
Flanary v. State,
316 S.W.2d 897 (Tex. Crim. App. 1958) (op. on reh'g) . . . . . . . . . . . . . . . 21
Gollihar v. State,
46 S.W.3d 243 (Tex. Crim. App. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Guzman v. State,
955 S.W.2d 85 (Tex. Crim. App. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Holt v. State,
899 S.W.2d 22 (Tex. App.)Tyler 1995, no pet.) . . . . . . . . . . . . . . . . . . . . 18
Hooks v. State,
860 S.W.2d 110 (Tex. Crim. App. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Jackson v. Virginia,
443 U.S. 307, 99 S. Ct. 2781 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Jingles v. State,
752 S.W.2d 126 (Tex. App.)Houston [14th Dist.] 1987, pet. ref’d) . . . . . 18
Johnson v. State,
967 S.W.2d 410 (Tex. Crim. App. 1998) . . . . . . . . . . . . . . . . . . . . . . . 19,25
Johnson v. State,
43 S.W.3d 1 (Tex. Crim. App. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . 20,25
Kent v. State,
879 S.W.2d 80 (Tex. App.)Houston [14th Dist.] 1994, no pet.) . . . . . . . . 18
King v. State,
895 S.W.2d 701 (Tex. Crim. App. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . 22
King v. State,
953 S.W.2d 266 (Tex. Crim. App. 1997) . . . . . . . . . . . . . . . . . . . . . . . 19,25
Marin v. State,
851 S.W.2d 275 (Tex. Crim. App. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Narron v. State,
835 S.W.2d 642 (Tex. Crim. App. 1992) . . . . . . . . . . . . . . . . . . . . . . . 24,25
Polk v. State,
693 S.W.2d 391 (Tex. Crim. App. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . 23
6
Sanders v. State,
25 S.W.3d 854 (Tex. App.)Houston [14th Dist.] 2000, pet. dism'd) . . . . . 23
Schutz v. State,
63 S.W.3d 442 (Tex. Crim. App. 2001) . . . . . . . . . . . . . . . . . . . . . . . . 20,25
State v. Moff,
154 S.W.3d 599 (Tex. Crim. App. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Stautzenberger v. State,
232 S.W.3d 323 (Tex. App.—Houston [14th Dist.] 2007, no pet.) . . . . . . 16
Thomas v. State,
286 S.W.3d 109 (Tex. App.—Houston [14th Dist.] 2009, no pet.) . . . . . . 16
Throneberry v. State,
109 S.W.3d 52 (Tex. App.)Fort Worth 2003, no pet.) . . . . . . . . . . . . . . . 20
Tomlin v. State,
722 S.W.2d 702 (Tex. Crim. App. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Wilson v. State,
No. 14-03-00182-CR (Tex. App.)Houston [14th Dist.] 2004, no pet.) . . . 18
STATUTES/RULES:
Tex. Code Crim. Proc. Ann. art. 1.14(b)(West 2005) . . . . . . . . . . . . . . . . . . . . . . 14
Tex. Code Crim. Proc. Ann. art. 21.02(7) (West 2009) . . . . . . . . . . . . . . . . . 16,18
Tex. Code Crim. Proc. Ann. art. 21.03 (West 2009) . . . . . . . . . . . . . . . . . . 15,16,18
Tex. Code Crim. Proc. Ann. art. 21.21(7)(West 2009) . . . . . . . . . . . . . . . . . . 16,18
Tex. Code Crim. Proc. Ann. art. 42.12 § 3g(a)(2)(West supp. 2014) . . . . . . . . . . 23
Tex. Pen. Code Ann. § 1.07(a)(17) (West supp. 2014) . . . . . . . . . . . . . . . . . 23,24
Tex. Pen. Code Ann. §12.42 (West supp. 2014) . . . . . . . . . . . . . . . . 13,14,15,16,17
Tex. R. App. P. 33.1(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14,21
Tex. R. App. P. 44.2(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19,25
7
CONSTITUTIONS:
Tex. Const. art. I §10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
8
STATEMENT OF THE CASE
Nature of case: This is an appeal from a conviction for unlawful possession of
a firearm (by a felon), pursuant to Texas Penal Code section
46.04, with two enhancements. (C.R. pg. 149).
Judge/Court: Judge Bill Miller sitting in the 5th District Court of Bowie
County, Texas. (C.R. pg. 149).
Pleas: Marcus Leslie (Leslie) entered pleas of “not guilty” to the
charge against him. (R.R. Vol. III pg. 134)(C.R. pg. 149).
Leslie also plead "not true" to the enhancements. (R.R. Vol. V
pg. 9-10)(C.R. pg. 149).
Trial disposition: The jury found Leslie guilty. (C.R. pg. 118). Punishment was
tried to the jury which found both enhancement allegations to
be "true " and recommended a sentence of 50 years. (C.R. pg.
126). The court imposed that sentence adding a deadly weapon
finding. (C.R. pg. 149).
9
ISSUES PRESENTED
Issue One: The habitual-offender enhancement allegation in the notice of
enhancement was defective because it did not allege that the second
felony occurred after the first felony conviction became final.
Issue Two: There was insufficient evidence to establish that Leslie "used" the
deadly weapon or placed anyone in danger which are required to
support an affirmative deadly weapon finding.
10
STATEMENT OF ORAL ARGUMENT
Oral argument might assist the court in considering issue regarding the
timing with regard to the enhancement issue which is technical in nature.
Additionally, oral argument might assist the court in considering the evidence
theoretically necessary to support a deadly weapon finding.
11
STATEMENT OF FACTS
The State alleges that Marcus Leslie went to the home of a friend and
removed a handgun without permission and it was not returned. (R.R. Vol. III pg.
155-157).
Marcus Leslie contends that the friend gave Leslie the handgun and asked
Leslie to trade or sell the gun for crack cocaine for the use of the friend. (R.R.
Vol. VI, State’s Rec. 1).
It is undisputed that Marcus Leslie has two prior convictions: one for
burglary of a residence and theft of property. (R.R. Vol. IV State’s Ex. 5, pg. 1-2
and State’s Ex. 6, pg. 5-6).
12
SUMMARY OF THE ARGUMENT
Issue One: The habitual-offender enhancement allegation in the notice of
enhancement was defective because it did not allege that the second
felony occurred after the first felony conviction became final.
The State’s notice of enhancement against Leslie did not include all the
necessary elements of a habitual-offender enhancement required by Texas Penal
Code section 12.42(d) because it did not allege that the second felony occurred
subsequent to the first felony conviction becoming final. See Tex. Pen. Code Ann.
§12.42(a)(West supp. 2013). Accordingly, the notice of enhancement did not
allege everything "which is necessary to be proved" and fails to provide proper
notice of the enhancement.
Issue Two: There was insufficient evidence to establish that Leslie "used" the
deadly weapon or placed anyone in danger which are required to
support an affirmative deadly weapon finding.
There was insufficient evidence to support the affirmative deadly weapon
finding in the judgment. Although Leslie possessed a handgun, which is a per se
deadly weapon, there was no evidence that Leslie "used" the handgun or placed
anyone in danger.
13
ARGUMENT
Issue One: The habitual-offender enhancement allegation in the notice of
enhancement was defective because it did not allege that the second
felony occurred after the first felony conviction became final.
The State’s notice of enhancement against Leslie did not include all the
necessary elements of a habitual-offender enhancement required by Texas Penal
Code section 12.42(d) because it did not allege that the second felony occurred
subsequent to the first felony conviction becoming final. See Tex. Pen. Code Ann.
§12.42(a)(West supp. 2013). Accordingly, the notice of enhancement did not
allege everything "which is necessary to be proved" and fails to provide proper
notice of the enhancement.
Preservation of Error
To preserve a complaint for appellate review, a party must generally have
presented to the trial court a timely request, objection, or motion that states the
specific grounds for the desired ruling, if they are not apparent from the context of
the request, objection, or motion. See Tex. R. App. P. 33.1(a). More specifically,
article 1.14(b) of the Texas Code of Criminal Procedure provides:
If the defendant does not object to a defect, error, or irregularity of
form or substance in an indictment or information before the date on
which the trial on the merits commences, he waives and forfeits the
right to object to the defect, error, or irregularity and he may not raise
the objection on appeal.
Tex. Code Crim. Proc. Ann. art. 1.14(b)(West 2005).
Here, Leslie objected to the notice of enhancement through a motion to
14
quash. (C.R. pg. 88 ¶¶ 4-6). This motion was overruled by the Court. (R.R. Vol.
III pg. 77-83). For good measure, Leslie made a running objection to evidence in
support of the enhancement allegation, which was granted by the trial court. (R.R.
Vol. III pg. 83). Therefore, this issue was preserved for appellate review.
Standard of Review
The sufficiency of an indictment is a question of law. State v. Moff, 154
S.W.3d 599, 601 (Tex. Crim. App. 2004). When the resolution of a question of
law does not turn on an evaluation of the credibility and demeanor of a witness,
then the trial court is not in a better position to make the determination, and
appellate courts should conduct a de novo review of the issue. Id.; see also
Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).
Law and Application
The State’s notice of enhancement against Leslie did not include all the
necessary elements of a habitual-offender enhancement required by Texas Penal
Code section 12.42(d) because it did not allege that the second felony occurred
subsequent to the first felony conviction becoming final. See Tex. Pen. Code Ann.
§12.42(a)(West supp. 2013). Accordingly, the notice of enhancement did not
allege everything "which is necessary to be proved" and fails to provide proper
notice of the enhancement.
Texas Code of Criminal Procedure article 21.03 provides “everything
15
should be stated in an indictment which is necessary to be proved.” Tex. Code
Crim. Proc. Ann. art. 21.03 (West 2009); see also art. 21.02(7), art. 21.21(7). This
stems from the constitutional right of an accused “to demand the nature and cause
of the accusation.” Tex. Const. art. I §10. If an element of an offense is omitted,
then the indictment fails to allege an offense. Ex parte Mathis, 571 S.W.2d 186
(Tex. Crim. App.1978).
However, enhancement allegations that are not part of the State's
case-in-chief are not part of the "substance" of the indictment. See Thomas v.
State, 286 S.W.3d 109, 114 (Tex. App.—Houston [14th Dist.] 2009, no pet.)
(citing Stautzenberger v. State, 232 S.W.3d 323, 327 (Tex. App.—Houston [14th
Dist.] 2007, no pet.). Such allegations must be raised in some form, but need not
be pleaded in the indictment. Brooks v. State, 957 S.W.2d 30, 34 (Tex. Crim. App.
1997).
Texas Penal Code section 12.42(d) provides in relevant part as follows:
Penalties for Repeat and Habitual Felony Offenders
(d) Except as provided by Subsection (c)(2) or (c)(4), if 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. Pen. Code Ann. §12.42(d) (West supp. 2014). The notice of enhancement
16
against Leslie reads in relevant part as follows:
. . .
Specifically, the State intends to present evidence that, prior to the
commission of the offenses as set out above, the defendant,
MARCUS LESLIE, was finally convicted of a felony offense,
namely, RESIDENTIAL BURGLARY, in cause No. CR-2005-30 in
the Circuit Court of Miller County, Arkansas, on or about February
10, 2005; and after the aforementioned felony conviction was final,
the defendant was finally convicted of the felony offense of THEFT
OF PROPERTY, in cause No. CR-2006-197 in the Circuit Court of
Miller County, Arkansas, on or about January 9, 2007. (See
Attachment A)
. . .
(C.R. pg. 75). The notice of enhancement against Leslie does not allege all the
necessary elements of a habitual-offender enhancement. See Tex. Pen. Code
§12.42(d).
The notice of enhancement does specify that (1) Leslie has previously been
finally convicted of two felony offenses: “Residential Burglary” and “Theft of
Property.” (C.R. pg. 75). However, the notice of enhancement fails to allege (2)
that the second previous felony conviction is for an offense that occurred
subsequent to the first previous conviction having become final. Rather the notice
of enhancement provides "aforementioned felony conviction (Residential
Burglary) was final, the defendant was finally convicted of the felony offense of
THEFT OF PROPERTY." (C.R. pg. 75). Thus, the State alleged that Leslie was
convicted of the second felony after he was convicted of the first felony.
However, the State did not allege that the second felony occurred after the first
felony conviction became final.
The date the second felony was committed, which was not properly alleged
17
by the State, is a necessary element to the enhancement allegation. If the State
alleges two convictions for enhancement purposes, it must prove that the
following sequence occurred: (1) the first conviction became final; (2) the
offense leading to a later conviction was committed; (3) the later conviction
became final; and (4) the present offense was committed. Tomlin v. State,
722 S.W.2d 702, 705 (Tex. Crim. App. 1987). Thus, the State must prove the
second felony offense occurred after the first felony offense conviction became
final. See e.g. Kent v. State, 879 S.W.2d 80 (Tex. App.)Houston [14th Dist.] 1994,
no pet.); see also Holt v. State, 899 S.W.2d 22 (Tex. App.)Tyler 1995, no pet.).
Accordingly, that should be alleged in the indictment or notice of enhancement.
See Tex. Code Crim. Proc. Ann. art. 21.03; see also art. 21.02(7), art.
21.21(7)(West 2009). In Ex Parte Lewis, the Texas Court of Criminal Appeals
concluded in part that an enhancement notice failed because the State did not
allege that one prior offense was committed after the other became final. See Ex
Parte Lewis, AP-75,568 (Tex. Crim. App. Dec. 13, 2006)(mem. op.). For this
reason, the State failed to properly notify Leslie of the enhancement allegations
against him.
Several cases are, at least at first blush, contrary to this argument. In Jingles
v. State, the Houston 14th Court of Appeals rejected this same argument and
concluded that the State need not specifically allege that the second prior felony
occurred after the first prior felony conviction was final. 752 S.W.2d 126, 129
(Tex. App.)Houston [14th Dist.] 1987, pet. ref’d); see also Wilson v. State, No.
18
14-03-00182-CR (Tex. App.)Houston [14th Dist.] 2004, no pet.); Fitzgerald v.
State, 722 S.W.2d 817, 822 (Tex. App.)Tyler 1987), aff'd, 782 S.W.2d 876 (Tex.
Crim. App. 1990). However, there the arguments were that the omissions in the
enhancement allegations were fundamental error and the conclusions were that
such an omission was not fundamental error. Id. Here, Leslie preserved the error
through a motion to quash.
In other cases, this was likewise not required. See e.g. Derichsweiler v.
State, 359 S.W.3d 342 (Tex. App.)Fort Worth 2012, pet. ref’d); Box v. State,
05-12-00421-CR (Tex. App.)Dallas March 28, 2013, no pet.)(mem. op.).
However, in these cases the courts were addressing charge error as opposed to
preserved error in the enhancement notices.
Accordingly, the enhancement notices against Leslie failed to allege the
required sequence of the offense and therefore failed to properly notify Leslie of
the enhancement.
Harmful Error
An error must affect the substantial rights of the accused to be harmful. See
Tex. R. App. P.44.2(b). A "substantial right" is affected when the error had a
substantial and injurious effect or influence in determining the jury's verdict. King
v. State, 953 S.W.2d 266 (Tex. Crim. App. 1997) (citing Tex. R. App. P. 44.2(b)).
Alternatively, error is harmless if the error "did not influence the jury, or had but a
slight effect." Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). The
19
appellant does not bear the burden to establish such harmful error. Schutz v. State,
63 S.W.3d 442, 444 (Tex. Crim. App. 2001); Johnson v. State, 43 S.W.3d 1, 4
(Tex. Crim. App. 2001). Rather, it is the responsibility of the appellate court to
assess harm after reviewing the record. Schutz v. State, 63 S.W.3d 442, 444 (Tex.
Crim. App. 2001); Johnson v. State, 43 S.W.3d 1, 4 (Tex. Crim. App. 2001).
The Fort Worth Court concluded that preserved error regarding a notice of
enhancement is harmful error analysis. See Throneberry v. State, 109 S.W.3d 52,
60 (Tex. App.)Fort Worth 2003, no pet.). There, an important factor was how
long the notice was on file. Here, the State provided the inadequate notice
on March 24, 2015, while the trial began seven days later on March 31, 2015.
(R.R. Vol. III cover). Accordingly, the short time alone represented some harmful
error.
20
Issue Two: There was insufficient evidence to establish that Leslie "used" the
deadly weapon or placed anyone in danger which are required to
support an affirmative deadly weapon finding.
There was insufficient evidence to support the affirmative deadly weapon
finding in the judgment. Although Leslie possessed a handgun, which is a per se
deadly weapon, there was no evidence that Leslie "used" the handgun or placed
anyone in danger.
Preservation of Error
To preserve a complaint for appellate review, a party must generally have
presented to the trial court a timely request, objection, or motion that states the
specific grounds for the desired ruling, if they are not apparent from the context of
the request, objection, or motion. See Tex. R. App. P. 33.1(a). However, it has
long been the rule in Texas that a criminal appellant may challenge the legal and
factual sufficiency of the State's evidence even though the issue was not raised in
the trial court. See Flanary v. State, 316 S.W.2d 897, 898 (Tex. Crim. App. 1958)
(op. on reh'g); see also Collier v. State, 999 S.W.2d 779, 787 (Tex. Crim. App.
1999) (Keller, J., dissenting) ("procedural default concepts are generally absent
from evidentiary sufficiency issues as they relate to elements of an offense"). In
other words, the State's burden to present evidence sufficient to sustain a
conviction has been considered an absolute requirement that must be observed
without request and cannot be waived or forfeited. See Marin v. State, 851 S.W.2d
275, 279-80 (Tex. Crim. App. 1993) (absolute, waivable, and forfeitable rights).
21
Standard of Review
Appellate courts should no longer conduct separate legal and factual
sufficiency reviews in criminal cases. See Brooks v. State, 323 S.W.3d 893 (Tex.
Crim. App. 2010). Rather, appellate courts in criminal cases should simply
conduct the sufficiency standard under Jackson v. Virginia, 443 U.S. 307 (1979).
Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010). In reviewing the
evidence for sufficiency, the appellate court should consider the evidence in the
light most favorable to the verdict to determine whether any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Brooks v.
State, 323 S.W.3d 893 (Tex. Crim. App. 2010). The standard is the same for both
direct and circumstantial evidence cases. King v. State, 895 S.W.2d 701, 703 (Tex.
Crim. App. 1995).
Law and Application
The deadly weapon issue was not submitted to the jury. Regardless, the trial
court made an affirmative deadly weapon finding. Although there was evidence
that Leslie possessed a handgun, which is a per se deadly weapon, there was no
evidence that Leslie "used" the handgun or placed anyone in danger.
The Code of Criminal Procedure directs the trial court to submit to the jury
any issue that is raised by the facts . . . and authorizes a deadly weapon finding
upon sufficient evidence that a defendant "used or exhibited" a deadly weapon
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during the commission of or flight from a felony offense. Drichas v. State, 175
S.W.3d 795 (Tex. Crim. App. 2005)(citing Tex. Code Crim. Proc. Ann. art. 42.12
§ 3g(a)(2)(West supp. 2014)). A deadly weapon is anything that "in the manner of
its use or intended use is capable of causing death or serious bodily injury." Tex.
Pen. Code Ann. § 1.07(a)(17)(B)(West supp. 2014).
In Polk v. State, the Court of Criminal Appeals concluded that under Article
42.12 of the Code of Criminal Procedure, "affirmative finding" means "the trier of
fact's express determination that a deadly weapon or firearm was actually used or
exhibited during the commission of the offense." Polk v. State, 693 S.W.2d 391,
393 (Tex. Crim. App. 1985). Thus, the Court orginally decided that the Legislature
required an "express determination" from the fact-finder, thereby rejecting any
supposed "implied" finding. See Hooks v. State, 860 S.W.2d 110, 112 (Tex. Crim.
App. 1993). Since Polk, the rule was softened and a trial court is authorized to
make an affirmative deadly-weapon finding in the following three situations:
where the jury has (1) found guilt as alleged in the indictment and the deadly
weapon has been specifically plead as such using "deadly weapon" nomenclature
in the indictment; (2) found guilt as alleged in the indictment but, though not
specifically plead as a deadly weapon, the weapon plead is per se a deadly
weapon; or (3) affirmatively answered a special issue on deadly weapon use. See
Sanders v. State, 25 S.W.3d 854, 856 (Tex. App.)Houston [14th Dist.] 2000, pet.
dism'd)(citing Davis v. State, 897 S.W.2d 791, 793-94 (Tex. Crim. App. 1995).
Regardless, to hold evidence legally sufficient to sustain a deadly weapon
23
finding, the evidence must demonstrate that: (1) the object meets the statutory
definition of a dangerous weapon, (see Tex. Pen. Code Ann. §1.07(a)(17)(B)(West
supp. 2014)); (2) the deadly weapon was used or exhibited "during the transaction
from which" the felony conviction was obtained, (see Ex parte Jones, 957 S.W.2d
849, 851 (Tex. Crim. App. 1997)); and (3) that other people were put in actual
danger (see Cates v. State, 102 S.W.3d 735, 738 (Tex. Crim. App. 2003)). Drichas
v. State, 175 S.W.3d 795, 787 (Tex. Crim. App. 2005).
Here, a handgun is a per se deadly weapon. Tex. Pen. Code Ann. §
1.07(a)(17)(A) (West supp. 2014). It was certainly used during the offense of
felon in possession of a handgun. More specifically, there was some evidence that
Leslie took the handgun from Johnnie Booth’s home. (R.R. Vol. III pg. 155-156).
However, there was not testimony as to Leslie’s actual use of the gun generally, or
that anyone was placed in actual danger by it, specifically. Accordingly, there was
insufficient evidence to support a deadly weapon finding.
Similar situations have been addressed by the Texas Court of Criminal
Appeals where the court addressed a deadly weapon finding in a conviction of
felon in possession of a firearm. See Natron v. State, 835 S.W.2d 642, 644 (Tex.
Crim. App.1992); Ex parte Petty, 833 S.W.2d 145, 145-46 (Tex. Crim. App.1992).
In Narron v. State, the court concluded that "use" of a deadly weapon had to be
more than mere possession. 835 S.W.2d 642, 644 (Tex. Crim. App.1992). In Ex
parte Petty, the court likewise concluded that mere possession of a deadly weapon
24
was not use. 833 S.W.2d 145, 145-46 (Tex. Crim. App.1992).
Accordingly, here as in Natron v. State and Ex parte Petty, the mere
possession of a firearm in a conviction for felon in possession of a firearm did not
support a deadly weapon finding. In such a situation, the proper remedy is for the
appellate court to simply delete the deadly weapon finding. Narron v. State, 835
S.W.2d 642, 644 (Tex. Crim. App. 1992).
Harmful Error
An error must affect the substantial rights of the accused to be harmful. See
Tex. R. App. P. 44.2(b). A "substantial right" is affected when the error had a
substantial and injurious effect or influence in determining the jury's verdict. King
v. State, 953 S.W.2d 266 (Tex. Crim. App. 1997) (citing Tex. R. App. P. 44.2(b)).
Alternatively, error is harmless if the error "did not influence the jury, or had but a
slight effect." Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). The
appellant does not bear the burden to establish such harmful error. Schutz v. State,
63 S.W.3d 442, 444 (Tex. Crim. App. 2001); Johnson v. State, 43 S.W.3d 1, 4
(Tex. Crim. App. 2001). Rather, it is the responsibility of the appellate court to
assess harm after reviewing the record. Schutz v. State, 63 S.W.3d 442, 444 (Tex.
Crim. App. 2001); Johnson v. State, 43 S.W.3d 1, 4 (Tex. Crim. App. 2001).
However, a harmless error analysis is not conducted with regard to legal and
factual sufficiency of the evidence challenges. See Gollihar v. State, 46 S.W.3d
243 (Tex. Crim. App. 2001).
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PRAYER
WHEREFORE, premises considered, Marcus Leslie respectfully requests
that this conviction be reversed and judgment rendered in his favor, that the
conviction be reversed and a new trial granted, that the deadly weapon finding be
removed, or for such other and further relief to which Appellant may be entitled.
Respectfully Submitted,
Miller, James, Miller & Hornsby, L.L.P.
By:______________________________
Troy Hornsby
Texas Bar Number 00790919
1725 Galleria Oaks Drive
Texarkana, Texas 75503
troy.hornsby@gmail.com
903.794.2711, f. 903.792.1276
Attorney for Appellant Marcus Leslie
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CERTIFICATE OF SERVICE
This is to certify that on September 2, 2015, a true and correct copy of the above
and foregoing Appellant’s Brief has been forwarded by U.S. mail on all counsel of
record and interested party listed below:
Appellant State's Attorney
Marcus Leslie Samantha Oglesby
TDC #02001223 Bowie County D.A.’s Office
Connally Unit 601 Main Street
899 F.M. 632 Texarkana, Texas 75501
Kenedy, Texas 78119
Defendant's Trial Attorney
Trial Court Judge Chad Crowl
Honorable Bill Miller Bowie Co. Public Defender's Off.
5th District Judge 424 W. Broad Street
Bi-State Justice Building Texarkana, Texas 75501
100 North State Line Avenue
Texarkana, Texas 75501
___________________________________
Troy Hornsby
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CERTIFICATE OF COMPLIANCE
Pursuant to Texas Rule of Appellate Procedure 9.4, the undersigned counsel
certifies that, exclusive of the exempted portions in Texas Rule of Appellate
Procedure 9.4(i)(1), this brief contains 3,384 words (less than 15,000), based upon
the word count of the WordPerfect program used to prepare the document.
_______________________________
Troy Hornsby
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