Ables v. Scott

United States Court of Appeals,

Fifth Circuit.

No. 94-10934.

Jerry Wayne ABLES, Petitioner-Appellant,

v.

Wayne SCOTT, Director of Texas Department of Criminal Justice
Divisional Institution, Respondent-Appellee.

Jan. 25, 1996.

Appeal from the United States District Court for the Northern
District of Texas.

Before WIENER, EMILIO M. GARZA and BENAVIDES, Circuit Judges.

PER CURIAM:

Jerry Wayne Ables, a Texas inmate, appeals the district

court's denial of his petition for writ of habeas corpus. We

affirm.

I

A grand jury returned two indictments against Ables for

aggravated robbery and burglary of a habitation. One indictment

charged two counts of aggravated robbery, both alleging the use or

exhibition of a deadly weapon. The first count alleged the use of

a handgun, and the second count alleged the use of a knife. The

second indictment charged burglary of a habitation in two different

counts. The first count alleged that when Ables entered the house

he was armed with a deadly weapon—a handgun. The second count of

the burglary indictment alleged burglary of a habitation without

any reference to a deadly weapon. Ables pleaded guilty to the

second counts of both the robbery and burglary indictments, and the

1
state waived the first counts of both indictments.

The state court then held a jury punishment hearing. The jury

found Ables guilty of aggravated robbery as charged in the robbery

indictment.1 The court entered judgment on this count and included

the jury's affirmative finding that the defendant used a deadly

weapon. The jury also found Ables guilty of burglary of a

habitation. The court entered judgment on this count and again

included the jury's affirmative finding that the defendant used a

deadly weapon during the commission of the offense.

The Texas Court of Appeals affirmed Ables' convictions, and

Ables did not file a petition for discretionary review with the

Texas Court of Criminal Appeals. Ables' two applications for state

writs of habeas corpus challenging his convictions were denied.

Ables' petition for federal habeas corpus relief was also denied.

Ables now appeals that denial, alleging, inter alia, that the

indictment did not give him adequate notice that the state would

seek an affirmative finding of the use of a deadly weapon in the

burglary charge.2

1
The trial court instructed the jury at the beginning of the
punishment trial, "Ladies and gentlemen, since the Defendant has
entered his plea of guilty to the second count of each of these two
indictments, ... you must find [him] guilty of burglary or [sic] a
habitation and of aggravated robbery."
2
Ables argues several other points of error, none of which
have merit. First he argues that his guilty plea was involuntary
and unknowing because the trial judge failed to advise him that if
he was convicted as a repeat offender by the jury, his minimum
punishment would be fifteen years. " "The consequences of a guilty
plea, with respect to sentencing, mean only that the defendant must
know the maximum prison term and fine for the offense charged.' "
United States v. Rivera, 898 F.2d 442, 447 (5th Cir.1990). The
trial judge correctly admonished Ables that the maximum possible

2
 II

Ables contends that he was denied his rights under the Fifth,

Sixth, and Fourteenth Amendments because he did not receive

adequate notice that the state would seek an affirmative finding

that he used a deadly weapon in the commission of the offense of

burglary of a habitation. Due process requires that a criminal

defendant have notice of the charges against him so he can be

punishment for the crimes for which he pleaded guilty was 99 years
to life.

Ables next contends that prosecutorial misconduct
rendered his sentencing trial fundamentally unfair, alleging
that the prosecutor made improper and prejudicial jury
arguments. In habeas corpus proceedings, we review allegedly
improper prosecutorial statements made during a state trial to
determine whether they "so infected the trial with unfairness
as to make the resulting conviction a denial of due process."
Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868,
1871, 40 L.Ed.2d 431 (1974); Ortega v. McCotter, 808 F.2d
406, 407 (5th Cir.1987). We reject this claim, finding that
the prosecutors' statements were fair comments on the evidence
and a proper appeal for law and order.

Ables argues that he was denied effective assistance of
counsel at trial and on appeal. Both claims must meet the
deficiency and prejudice prongs of Strickland v. Washington,
466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See
United States v. Patten, 40 F.3d 774, 776 (5th Cir.1994)
(applying Strickland to claim of ineffective assistance of
counsel on appeal), cert. denied, --- U.S. ----, 115 S.Ct.
2558, 132 L.Ed.2d 811 (1995). For the reasons stated in the
district court opinion, we reject Ables' ineffective
assistance of trial counsel claim. See Ables v. Scott, No.
1:93-CV-0131-C (N.D. Tex. filed Aug. 19, 1994). Because none
of Ables' grounds on appeal have merit, his claim for
ineffective counsel on appeal must also fail.

Finally, Ables' claim that the trial judge did not have
the authority to cumulate his sentences fails because it
concerns state criminal procedure and "does not involve such
a denial of fundamental fairness as to fall within the purview
of federal habeas corpus." Johnson v. Beto, 383 F.2d 197 (5th
Cir.1967), cert. denied, 393 U.S. 868, 89 S.Ct. 153, 21
L.Ed.2d 136 (1968).

3
prepared to defend himself at trial. Cole v. Arkansas, 333 U.S.

196, 201, 68 S.Ct. 514, 517, 92 L.Ed. 644, 647 (1948); McKay v.

Collins, 12 F.3d 66, 69 (5th Cir.) (stating that an indictment must

allege the essential elements of the offense but not in any

specific terms), cert. denied, --- U.S. ----, 115 S.Ct. 157, 130

L.Ed.2d 95 (1994). A defendant is also entitled to notice and due

process at sentencing, although to a lesser degree than at trial.

United States v. Rochester, 898 F.2d 971, 981 (5th Cir.1990)

("Although, a defendant must be afforded some degree of due process

at sentencing, the same degree of process is not required at

sentencing as at trial."). In rejecting due process claims under

the federal Sentencing Guidelines, we have said that "if the

government promises not to prosecute a defendant for certain

offenses in exchange for a guilty plea to a different offense, the

sentencing court may nevertheless consider the relevant but

uncharged conduct as long as the punishment selected is within the

statutory range for the offense of conviction." United States v.

McCaskey, 9 F.3d 368, 377 (5th Cir.1993), cert. denied, --- U.S. --

--, 114 S.Ct. 1565, 128 L.Ed.2d 211 (1994).

Under Texas law, a deadly weapon finding is not an element of

the offense of burglary of a habitation; its only relevance is at

sentencing.3 Davis v. State, 684 S.W.2d 201, 208 (Tex.

3
TEX.CRIM.PROC.CODE ANN. art. 42.18, § 8(b)(3) states that a
prisoner who is serving a sentence for certain enumerated offenses,
or one whose judgment contains an affirmative deadly weapon finding
during the commission of or flight from a felony offense under
TEX.CRIM. PROC.CODE ANN. art. 42.12 § 3g(a)(2), "is not eligible for
release on parole until his actual calendar time served, without
consideration of good conduct time, equals one-half of the maximum

4
App.—Houston [1st Dist.] 1984, writ ref'd). The effect of a deadly

weapon finding is to lengthen a convicted prisoner's confinement

under a sentence by restricting his ability to obtain good time

credit; it does not affect the actual range of the sentence that

the defendant can receive. Id. at 206. Therefore, because a

deadly weapon finding is simply a sentencing concern that does not

raise the degree of punishment, see id. at 208, we hold that a

Texas defendant is only entitled to the limited degree of notice

that is constitutionally required at sentencing when the state

intends to seek such a finding.4 This holding is consistent with

the Texas Courts of Appeals cases which have considered the nature

of a deadly weapon finding and the degree of notice a defendant

must constitutionally receive when the state intends to seek such

a finding. See id.5; see also Wissinger v. State, 702 S.W.2d 261

sentence or 30 calendar years, whichever is less, but in no event
shall he be eligible for release on parole in less than two
calendar years."
4
We emphasize that our holding is limited to Texas defendants
because we are only considering the effect of a deadly weapon
finding under Texas law, where such a finding is not an element of
the offense charged.
5
The defendant in Davis was convicted by a jury of burglary of
a habitation. At the punishment phase of the trial, the jury made
an affirmative finding that Davis had exhibited a deadly weapon in
the commission of the burglary. 684 S.W.2d at 204. On appeal, the
defendant argued that he was denied his due process right to notice
because the indictment did not allege that he had used or exhibited
a deadly weapon. The court rejected the defendant's challenge
because of the nature of a deadly weapon finding. The court noted
that a deadly weapon finding is not an element of the primary
offense that the state must prove; its relevance is at the
punishment phase of a trial, since its only effect is to lengthen
a defendant's confinement under a sentence, not the sentence
itself. Id. at 206. The court concluded that without a showing of
prejudice, the lack of notice, if any, was harmless. Id.

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(Tex.App.—Houston [1st Dist.] 1985, writ ref'd).6

Ables received constitutionally adequate notice of the

possibility that the state might seek a deadly weapon finding at

his sentencing. He was aware of the state's evidence against him

before he decided to plead guilty. He was present at the bond

hearing where the complaining witness described the crimes he

committed against her using both a knife and a handgun. He was

also aware that the state found knives and a handgun in his car

when he was arrested and that they intended to introduce them into

evidence at the sentencing phase of his trial. Through his guilty

plea, Ables admitted using a deadly weapon during the robbery which

arose out of the same events as the burglary. Moreover, Ables did

not object when the trial court instructed the jury on the deadly

6
The Texas Court of Appeals reaffirmed its holding in Davis in
Wissinger v. State, 702 S.W.2d 261 (Tex.App.1985). The defendant
in Wissinger was indicted for intentionally causing the death of
her husband " "by shooting him with a gun.' " Id. at 264. Under
Texas law a gun was not per se a deadly weapon, and the indictment
did not contain any allegation that the defendant had used a deadly
weapon in committing the murder. Nevertheless, after the defendant
pleaded no contest to the acts alleged in the indictment, the
court, in reliance on findings by the presentence report, entered
a deadly weapon finding. On appeal, the defendant alleged that she
was denied due process because she did not have notice that the
state would seek an affirmative finding of the use of a deadly
weapon. The court noted that "[a] deadly weapon finding is
serious, because it will approximately double the time that an
inmate must serve in order to be eligible for parole." Id. (citing
TEX.CODE CRIM.P.ANN. art. 42.12, sec. 15(b) (Vernon 1979)). However,
the court continued, it does not heighten the range of punishment
a defendant will receive. Id. at 265. The court concluded that
the lack of notice of the state's intent to seek a deadly weapon
finding did not require reversal because it was "not an element of
the offense charged and did not increase the range of punishment."
Id. In addition, the court held that there was no indication that
appellant was surprised by the finding or was unable to defend
herself, nor did appellant claim that she was harmed by any lack of
notice.

6
weapon finding with the burglary count. Most persuasively, the

first count of the burglary indictment alleged that he used a

deadly weapon. The fact that the state waived this count does not

vitiate the notice that the indictment provided that the state

might attempt to obtain a deadly weapon finding in the burglary

count.7 We therefore conclude that Ables' due process claim is

without merit.

III

For the forgoing reasons, we AFFIRM the district court's

opinion.

7
Our position is in accord with Texas law. Texas law requires
that a defendant have some form of notice when the state intends to
seek an affirmative finding that the defendant used or exhibited a
deadly weapon during the commission of an offense. Grettenberg v.
State, 790 S.W.2d 613, 614 (Tex.Crim.App.1990) (en banc). In a
case factually similar to ours, the Texas Court of Criminal Appeals
held that a defendant can receive adequate notice of the state's
intention to seek a deadly weapon finding through a dismissed
portion of an indictment. Id. at 614-15.

7