Opinion issued December 7, 2017
In The
Court of Appeals
For The
First District of Texas
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NO. 01-16-00986-CR
NO. 01-16-00987-CR
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VIRGIL JAMES LACKEY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 176th District Court
Harris County, Texas
Trial Court Case No. 1450539 & 14921321
MEMORANDUM OPINION
Appellant, Virgil James Lackey, pleaded guilty to engaging in organized
criminal activity and possession of cocaine. After ordering a pre-sentence
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Trial court cause number 1450539; appellate cause number 01-16-00986-CR.
Trial court cause number 1492132; appellate cause number 01-16-00987-CR.
investigation (PSI) report, the trial court assessed appellant’s punishment at 40 years
in prison for each offense with the sentences to run concurrently. In three points of
error, appellant argues that (1) the evidence is legally insufficient to support his
conviction for engaging in organized criminal activity; (2) the trial court erred by
entering an affirmative finding of a deadly weapon; and (3) his failure to plead true
to the enhancement paragraph in each case rendered the trial court’s finding on the
enhancements erroneous.
We affirm.
Background
Police initiated an undercover operation to arrest a “crew” that had been
robbing drug dealers in the Houston area. During the police operation, appellant and
a number of other co-defendants agreed to conduct an armed robbery of a warehouse
that was thought to contain drugs. On December 4, 2014, appellant and co-
defendants robbed the warehouse but were apprehended by police shortly thereafter.
In cause number 1450539, the State charged appellant by indictment with the
felony offense of possession with intent to deliver cocaine, in an amount weighing
400 grams or more. In cause number 1492132, the State charged appellant by
indictment with the felony offense of engaging in organized criminal activity. Both
indictments also alleged that appellant used or exhibited a deadly weapon while
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committing the offense or during the immediate flight therefrom and that appellant
had a prior felony conviction for theft.
At the plea hearing, appellant pleaded guilty to both offenses without an
agreement with the State as to a punishment recommendation. When the trial court
asked if appellant had been previously convicted of theft in cause number 0655461,
appellant answered affirmatively. The trial court deferred adjudication of guilt and
sentencing to review a PSI report.
On November 30, 2016, the trial court found appellant guilty of both offenses
and sentenced him to 40 years in prison with the sentences to run concurrently and
entered a deadly weapon finding in both judgments. Appellant timely appealed.
Continuing Criminal Activity
In his first point of error, appellant argues that the evidence is legally
insufficient to sustain his conviction for engaging in organized criminal activity
because the State presented no evidence of continuing criminal activity.
Standard of Review
Before a trial court may render a judgment of conviction in a felony case in
which the defendant has pleaded guilty, the State must produce evidence of the
defendant’s guilt that is “in addition to, and independent of, the plea itself.” See
Menefee v. State, 287 S.W.3d 9, 14 (Tex. Crim. App. 2009); see also TEX. CODE
CRIM. PROC. ANN. art. 1.15 (West 2005) (“In no event shall a person charged be
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convicted [of a felony] upon his plea without sufficient evidence to support the
same.”). The State may satisfy this burden with several forms of evidence, including
a written confession. See Menefee, 287 S.W.3d at 13–14. The evidence is sufficient
so long as it “covers all of the elements of the charged offense.” Id.
Analysis
A defendant commits the offense of engaging in organized criminal activity
if, with the intent to establish, maintain, or participate in a combination, he commits
or conspires to commit one or more of the enumerated offenses, including theft.
TEX. PENAL CODE ANN. § 71.02(a)(1) (West Supp. 2016). Section 71.01(a) defines
a “combination” as three or more persons who collaborate in carrying on criminal
activities. Id. § 71.01(a) (West 2011). The Court of Criminal Appeals has construed
this language as requiring a “continuing course of criminal activities.” Nguyen v.
State, 1 S.W.3d 694, 697 (Tex. Crim. App. 1999). It involves more than the intent
to merely commit an enumerated offense, a plan to commit a single act, or proof of
working jointly to commit a crime—it requires proof of continuity. Hart v. State,
89 S.W.3d 61, 63–64 (Tex. Crim. App. 2002); Nguyen, 1 S.W.3d at 696–97. The
activities do not have to individually be criminal offenses to satisfy the statutory
requirement, and a single criminal offense can be sufficient. Nguyen, 1 S.W.3d at
697; see also Dowdle v. State, 11 S.W.3d 233, 236 (Tex. Crim. App. 2000)
(continuous activities after shooting included fleeing, re-grouping, discussing plan
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of action, and traveling to another country with stolen goods). However, the statute
requires proof of intended continuity, i.e., that “the appellant intended to establish,
maintain, or participate in a group of three or more, in which the members intend to
work together in a continuing course of criminal activities.” Nguyen, 1 S.W.3d at
697.
At the plea hearing, the trial court asked appellant how he pleaded to the
offense of engaging in organized criminal activity, and appellant answered “guilty.”
The trial court informed appellant that the State still had to introduce evidence that
supports the finding. The trial court indicated that she had reviewed the State’s
exhibit one and saw documents that appellant had signed. The trial court asked if
appellant had reviewed the documents with his attorney and understood them, and
appellant answered, “yes.” The State offered and the trial court admitted State’s
exhibit one into evidence.
State’s exhibit one reflects that appellant signed a “Waiver of Constitutional
Rights, Agreement to Stipulate, and Judicial Confession,” stating that appellant
on or about December 4, 2014, did then and there unlawfully, with
intent to establish, maintain and participate in a combination and in the
profits of a combination, said combination consisting of Stanley White,
[appellant] Vedrick Lackey, Trevion Mason, Patrick Cooper, and
Denzell Lucious, conspire to commit the offense of aggravated robbery,
namely, in that he did unlawfully and the defendants did then and there
agree with members of the aforesaid combination to engage in conduct
constituting said offense, and pursuant to such agreement the
defendants performed the following overt acts, to-wit: arrive to 21145
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FM 529, Katy, Harris County, Texas with a deadly weapon and remove
kilograms of cocaine from a building.
Appellant’s judicial confession also stated, “I committed this offense along
with Vedrick Lackey, Trevion Mason, Patrick Cooper and Stanley White” followed
by appellant’s signature.
Appellant’s written confession is sufficient to substantiate his plea of guilty
because it covers all of the essential elements of the offense of engaging in organized
criminal activity. See TEX. PENAL CODE ANN. § 71.02(a)(1); Jones v. State, 373
S.W.3d 790, 793 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (“A written
confession approved by the court, and thus considered by the court, can be sufficient
to substantiate a guilty plea even if not introduced into evidence.”). Accordingly,
we conclude that the State satisfied its burden of proof. See TEX. CODE CRIM. PROC.
ANN. art. 1.15.
We overrule appellant’s first point of error.
Deadly Weapon Finding
In his second point of error, appellant argues that the trial court erred by
entering an affirmative finding of a deadly weapon in both judgments. Specifically,
appellant argues that the State presented no evidence in either case to sustain the
deadly weapon finding.
Standard of Review
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The code of criminal procedure authorizes the entry of a deadly weapon
finding when it is shown that the defendant used or exhibited a deadly weapon or
was a party to the offense and knew that a deadly weapon would be used or exhibited,
as defined in section 1.07 of the penal code, during the commission of a felony
offense. TEX. CODE CRIM. PROC. ANN. art. 42.12, § 3g(a)(2) (West Supp. 2016).
Under section 1.07, a firearm is a deadly weapon per se. TEX. PENAL CODE ANN.
§ 1.07(a)(17)(A) (West Supp. 2016). If the State alleges and proves that a weapon
is a firearm, or anything else manifestly designed, made, or adapted for the purpose
of inflicting death or serious bodily injury, the State need not prove that the object
was actually capable of causing death. Thomas v. State, 821 S.W.2d 616, 620 (Tex.
Crim. App. 1991); Grant v. State, 33 S.W.3d 875, 881 (Tex. App.—Houston [14th
Dist.] 2000, pet. ref’d) (no requirement that gun be loaded to be considered deadly
weapon).
A defendant uses a deadly weapon during the commission of the offense when
the weapon is employed or utilized to achieve its purpose. Patterson v. State, 769
S.W.2d 938, 941 (Tex. Crim. App. 1989). Use of a deadly weapon refers to the
wielding of a firearm with effect, but also extends to any employment of a deadly
weapon, even its simple possession, if such possession facilitates the associated
felony. Plummer v. State, 410 S.W.3d 855, 864–65 (Tex. Crim. App. 2013);
Patterson, 769 S.W.2d at 941. To exhibit a deadly weapon, the weapon need only
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be consciously displayed during the commission of the offense. Patterson, 769
S.W.2d at 941. Thus, one can use a deadly weapon without exhibiting it, but it is
doubtful one can exhibit a deadly weapon during the commission of a felony without
using it. Id. In the context of violent offenses, if a person exhibits a deadly weapon,
without overtly using it to harm or threaten while committing a felony, the deadly
weapon still provides intimidation value that assists the commission of the felony.
Plummer, 410 S.W.3d at 862. In reviewing appellant’s issue, we review the record
to determine whether, after viewing the evidence in the light most favorable to the
State, any rational trier of fact could have found beyond a reasonable doubt that
appellant used or exhibited a firearm during commission of the offense. See Cates
v. State, 102 S.W.3d 735, 738 (Tex. Crim. App. 2003).
In any felony offense in which it is “shown” that the defendant “used or
exhibited [a] deadly weapon[,]” the trial court “shall” enter a deadly weapon finding
in the judgment. TEX. CODE CRIM. PROC. ANN. art. 42.12, § 3g(a)(2). Such a deadly
weapon finding impacts a convicted felon’s eligibility for community supervision,
parole, and mandatory supervision. Id.; TEX. GOV’T CODE ANN. §§ 508.145(d)(1),
508.149(a)(1), & 508.151(a)(2) (West Supp. 2016). A presumption of truthfulness
and regularity applies to documents filed in the trial court. Breazeale v. State, 683
S.W.2d 446, 450 (Tex. Crim. App. 1984). A judicial confession is sufficient
evidence to show that a defendant used a deadly weapon, and the record need not
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otherwise provide proof. Keller v. State, 125 S.W.3d 600, 605 (Tex. App.—Houston
[1st Dist.] 2003) (concluding that appellant’s stipulation of guilt and judicial
confession are sufficient evidence to show that he used deadly weapon), pet. dism’d,
improvidently granted, 146 S.W.3d 677 (Tex. Crim. App. 2004).
Analysis
Here, appellant judicially confessed to committing each offense. Each
judicial confession stated that “at the time that the Defendant committed the felony
offense of engaging in organized crime on or about December 4, 2014, as
hereinabove alleged, he used and exhibited a deadly weapon, a firearm, during the
commission of said offense and during the immediate flight from said offense.” He
further stated, “I understand the above allegations and I confess that they are true
and that the acts alleged above were committed on December 4, 2014.” We conclude
that appellant’s stipulation of guilt and judicial confession are sufficient evidence to
support the judgment under Article 1.15 of the Code of Criminal Procedure. See id.
We overrule appellant’s second point of error.
Failure to Plead True to Enhancements
In his third point of error, appellant argues that his failure to plead “true” to
the enhancement paragraph in each case rendered the trial court’s enhancement
findings insufficient.
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Appellant points out that at the plea hearing, the trial court stated, “So I need
to confirm with you, [appellant], that you were previously convicted on March 2,
1993, in Cause No. . . . 0655461 in the 208th of the felony offense of theft. Is that
true?” Appellant responded, “Yes, ma’am.” Appellant appears to contend that
because appellant did not specifically say “true” to the enhancement, the State was
required to prove the previous conviction.
Appellant did not object during the plea hearing, nor did he object during the
sentencing hearing, to the manner in which the trial court accepted his plea.
Accordingly, any error in the manner by which the district court accepted appellant’s
pleas of true to the two offenses has been waived. See TEX. R. APP. P. 33.1; Roberson
v. State, 420 S.W.3d 832, 838 n.2 (Tex. Crim. App. App. 2013); Crawford v. State,
496 S.W.3d 334, 343–44 (Tex. App.—Fort Worth 2016, pet. ref’d); see also Reed v.
State, 500 S.W.2d 497, 499 (Tex. Crim. App. 1973) (observing that if appellant had
objected to trial court’s procedures during punishment hearing, any “problem could
have been easily remedied” at that time).
Even if the issue had been preserved, we would still conclude that appellant
pleaded true to the enhancements in both offenses. The record reflects that in each
case, the document entitled “Waiver of Constitutional Right, Agreement to Stipulate,
and Judicial Confession” included the enhancement, “Before the commission of the
offense alleged above, on March 2, 1993, in Cause Number “655461 in the 208th
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District Court of Harris County, Texas, the Defendant was convicted of the felony
offense of theft.”
In his judicial confession, appellant stated, “I understand the above allegations
and I confess that they are true. . . .” Moreover, when asked if it was true that
appellant had been previously convicted in the enhancement offense, appellant
answered in the affirmative. Because the allegations included the enhancement
paragraph for each offense, appellant’s judicial confession included a confession that
the enhancement paragraphs were also true. See Wilburn v. State, No. 01–07–
00830–CR, 2008 WL 2611933, at *3 (Tex. App.—Houston [1st Dist.] July 3, 2008,
pet. denied) (mem. op., not designated for publication) (finding that defendant’s
confession to primary offense also confessed truth of prior offenses listed in judicial
confession). We therefore conclude that the trial court properly found that appellant
pleaded true to the enhancement allegations in each offense.
We overrule appellant’s third point of error.
Conclusion
We affirm the judgment of the trial court.
Sherry Radack
Chief Justice
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Panel consists of Chief Justice Radack and Justices Keyes and Caughey.
Do not publish. See TEX. R. APP. P. 47.2(b).
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