$4,188.00 U.S. Currency and One Generac 5500 Watt Generator v. State

In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-06-00052-CV ______________________________ $4,188.00 U.S. CURRENCY AND ONE GENERAC 5500 WATT GENERATOR, Appellants V. THE STATE OF TEXAS, Appellee On Appeal from the County Court at Law No. 2 Gregg County, Texas Trial Court No. 2005-2464-CCL2 Before Morriss, C.J., Ross and Carter, JJ. Memorandum Opinion by Chief Justice Morriss MEMORANDUM OPINION The State of Texas began proceedings in which it sought the forfeiture of $4,188.00 and a Generac 5500 watt generator seized from Terry and Lachrisha Smith. See Tex. Code Crim. Proc. Ann. arts. 59.02, 59.04 (Vernon Supp. 2005). The Smiths unsuccessfully sought to stay the forfeiture proceedings until disposition of any pending criminal matters in connection with the property. The Smiths' notice of appeal clearly identifies the order from which they attempt to appeal: "In particular[,] Defendant seeks an Appeal of the Court's failure on April 3, 2006, to Stay the pending Quasi-Criminal /Civil matter." Such order is interlocutory in nature. Generally, a Texas appellate court has jurisdiction to hear an appeal only if it is from a final judgment. See Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 272 (Tex. 1992). An appellate court has jurisdiction to consider immediate appeals of interlocutory orders only if a statute explicitly provides appellate jurisdiction. See Stary v. DeBord, 967 S.W.2d 352, 352–53 (Tex. 1998); Longview Indep. Sch. Dist. v. Vibra-Whirl, Ltd., 169 S.W.3d 511, 515 (Tex. App.—Texarkana 2005, no pet.). The Texas Civil Practice and Remedies Code outlines interlocutory orders over which we have jurisdiction. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014 (Vernon Supp. 2005). Section 51.014 does not provide this Court with jurisdiction over an appeal from an order denying a motion to stay forfeiture proceedings, and we have found no other specific statutory provision that would permit this Court to review this order. That being the case, this order is an unappealable interlocutory order over which we have no jurisdiction. Accordingly, we dismiss this case for want of jurisdiction. Josh R. Morriss, III Chief Justice Date Submitted: June 12, 2006 Date Decided: June 13, 2006 } involve the enhancement of his sentence. We affirm Marshall's conviction but reverse his sentence and remand for a new punishment trial. We (A) affirm Marshall's conviction because we hold that (1) the evidence is legally and factually sufficient to support the conviction, and (2) the claimed errors in representation by Marshall's counsel would not result in a verdict of "not guilty"; but we (B) reverse his sentence and remand for a new punishment trial because we hold that (1) although Marshall did not preserve error regarding the variance in the range of punishment, (2) there was procedurally insufficient evidence of the prior convictions to support the enhancement of Marshall's sentence. We also find (3) the jury charge regarding punishment enhancement was defective, (4) the failure to read the enhancement paragraph or take Marshall's plea at the beginning of the punishment phase of trial was error, and (5) Marshall's trial counsel made errors during the punishment phase of trial; but we do not assess harm as to those items. A. Marshall's Conviction was Proper First, we affirm Marshall's conviction because we hold (1) the evidence is legally and factually sufficient to support the conviction, and (2) Marshall's trial counsel's representation during the guilt/innocence phase of trial was not ineffective. 1. Evidence is Legally and Factually Sufficient to Support Conviction In reviewing the legal sufficiency of the evidence, we employ the standards set forth in Jackson v. Virginia, 443 U.S. 307, 319 (1979). Under those standards, we view the relevant evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). In our review, we must evaluate all of the evidence in the record, both direct and circumstantial, whether admissible or inadmissible. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). When reviewing a challenge to the factual sufficiency of the evidence to support the conviction, we are required to determine whether, considering all the evidence in a neutral light, the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004). There are two ways in which we may find the evidence to be factually insufficient. First, if the evidence supporting the verdict, considered alone, is too weak to support the jury's finding of guilt beyond a reasonable doubt, then we must find the evidence insufficient. Id. Second, if—when we weigh the evidence supporting and contravening the conviction—we conclude that the contrary evidence is strong enough that the State could not have met its burden of proof, we must find the evidence insufficient. Id. "Stated another way, evidence supporting guilt can 'outweigh' the contrary proof and still be factually insufficient under a beyond-a-reasonable-doubt standard." Id. If the evidence is factually insufficient, we must reverse the judgment and remand for a new trial. Clewis v. State, 922 S.W.2d 126, 135 (Tex. Crim. App. 1996). Here, Parfinski himself observed Marshall carry out a DVD/VCR unit and a cordless drill from his house. On questioning by Parfinski, Marshall responded that a person named Jim Smith had given him permission to take the items from the house. Parfinski informed Marshall he did not know Jim Smith and took the items from Marshall. Then, Parfinski asked Marshall to wait for the police to arrive, but instead Marshall pulled a knife and walked away. The police searched the area around Parfinski's house and questioned the neighbors. Latricia Gaines, a neighbor, told the police she had seen Marshall running straight to a house on Graham Street, but had not seen him actually enter the house. The two police officers, Vance Bolor and Mark Estes, knocked on the door of that house. Marshall answered the door and permitted the officers to search the house. Estes searched the house and in the kitchen found the shirt fitting the description given by Parfinski. Officer John Ashford secured Parfinski's house and obtained a fingerprint from the lamp located in the living room. Sergeant Jeff Springer confirmed that the fingerprint from the lamp was of Marshall's left middle finger. In addition, the police found Parfinski's VCR, television, and stereo, which had been in Parfinski's living room, on the back porch of a vacant house near Parfinski's house. The review of the entire record supports the conclusion that Marshall intentionally or knowingly entered Parfinski's house without his consent for the purpose of committing theft of his VCR, television, and stereo, that is, the items the indictment alleged were the object of Marshall's burglary. Substantial evidence exists, such as eyewitness testimony by Parfinski and the fingerprint match, to support the verdict. The evidence that the VCR, television, and stereo were found on the porch of a nearby vacant house—not in Marshall's possession—does not require the jury to conclude he did not take them from Parfinski's house. Conversely, the fact that the Parfinski residence is near the vacant house at which the stolen items were found, combined with the facts that (1) the items were found there on the day they were discovered missing, (2) Marshall was discovered emerging from the Parfinski residence with other Parfinski property, and (3) a neighbor saw Marshall running suspiciously in the immediate vicinity that day, supports a finding Marshall was guilty of burglary for the purpose of taking those items. Therefore, the verdict is supported by legally and factually sufficient evidence. 2. Trial Counsel's Representation During Guilt/Innocence Phase was Not Ineffective Marshall claims his trial counsel was ineffective. The standard for testing claims of ineffective assistance of counsel is set out in Strickland v. Washington, 466 U.S. 668 (1984). In Strickland, the United States Supreme Court admonished that a claimant must prove counsel's representation so undermined the "proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Id. An appellant must prove by a preponderance of the evidence that (1) counsel's representation fell below the standard of prevailing professional norms and (2) there is a reasonable probability that, but for counsel's deficiency, the result of the trial would have been different. Id. at 687–94. Marshall argues his trial counsel was ineffective for failing to object to the admission of fingerprint evidence during the guilt/innocence phase of trial. He also asserts ineffective assistance of counsel during the punishment phase, due to trial counsel's failure to object to the jury charge on the range of punishment, to object to the trial court's failure during the punishment phase to read the enhancement paragraphs or request a plea from Marshall, and to object to the defect in the punishment phase verdict form. We address the fingerprint complaint here and the punishment phase complaints later in this opinion. Because the State failed to disclose to Marshall's counsel the fingerprint card created at the time of Marshall's arrest, as required by the discovery order in place, the trial court appropriately sustained Marshall's trial counsel's objection to the admission of that card. On appeal, Marshall argues his trial counsel therefore should have also objected to testimony that (a) a fingerprint was obtained from a lamp in Parfinski's house, (b) the fingerprint was submitted to Springer for expert comparison, (c) Springer compared that fingerprint to a known fingerprint of Marshall, and (d) the known fingerprint of Marshall matched the fingerprint taken from the lamp. There is no allegation that the fingerprint obtained from Parfinski's lamp and admitted into evidence was not properly disclosed to the defense, so it was not objectionable; trial counsel's failure to object is not deficient. The lamp fingerprint was compared with a fingerprint card personally created by Springer on the day of the trial, not the fingerprint card created at the time of Marshall's arrest that had been properly excluded from evidence. And there is no indication that the fingerprint obtained by Springer on the day of trial was subject to the discovery order or that its creation on the day of trial or any failure to disclose it before its admission into evidence prejudiced the defense. Therefore, counsel's failure to object to the day-of-trial fingerprint evidence either was not deficient or caused no harm. We find no ineffective assistance of counsel in the guilt/innocence phase of trial. But Marshall also contends his rights were substantially affected by trial counsel's failure to object to (1) the jury charge on the range of punishment, (2) the trial court's failure to read the enhancement paragraph or to take Marshall's plea in the punishment phase of trial, and (3) the defective verdict form. Those asserted errors all relate only to the punishment phase of trial, to which we now turn. B. Harmful Error Requires New Punishment Trial Next, we reverse Marshall's sentence and remand for a new punishment trial because we hold that (1) although Marshall did not preserve error regarding the variance in the range of punishment, (2) there was procedurally insufficient evidence to support the enhancement of Marshall's sentence. We also find (3) the jury charge regarding punishment enhancement was defective, (4) the failure to read the enhancement paragraph or take Marshall's plea at the beginning of the punishment phase of trial was also error, and (5) Marshall's trial counsel made errors during the punishment phase of trial. We do not assess harm on those errors. 1. Error was Not Preserved Regarding Variance in Punishment Range Marshall contends the trial court violated his due-process rights to notice under the Fifth and Fourteenth Amendments to the United States Constitution and Article 1, Sections 13 and 19, of the Texas Constitution by charging the jury with the range of punishment of twenty-five years to ninety-nine years or life, when Marshall had been given notice that sentence enhancement was sought only in the range of five to ninety-nine years or life. On April 17, 2003, Marshall received a "Notice of Intent to Seek Enhanced Sentence as a Repeat Offender Pursuant to Texas Penal Code Section 12.42 (b)." The notice stated that Section 12.42(b) increases the range of punishment for the offense to a minimum of five years and a maximum of ninety-nine years or life and a fine not to exceed $10,000.00. See Tex. Pen. Code Ann. § 12.42(b) (Vernon Supp. 2004–2005). The jury charge, however, contained a range of punishment of not less than twenty-five years or more than ninety-nine years or life for burglary of a habitation, with the enhancement of two prior felony convictions. As a prerequisite to presenting a complaint for appellate review, an appellant must have raised the issue at the trial court level stating the specific grounds for objection and received an adverse ruling. Tex. R. App. P. 33.1(a). Error is not preserved for review if the complaint on appeal varies from the objection made at trial. Ibarra v. State, 11 S.W.3d 189, 197 (Tex. Crim. App. 1999); Harris v. State, 827 S.W.2d 949, 958 (Tex. Crim. App. 1992); Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990). The core of due process is the right to notice and a meaningful opportunity to be heard. LaChance v. Erickson, 522 U.S. 262 (1998); see U.S. Const. amend. V. The accused has a right to be advised that a greater penalty is to be sought pursuant to an enhancement. Sears v. State, 91 S.W.3d 451, 454 (Tex. App.—Beaumont 2002, no pet.). The only purpose of an enhancement pleading is to provide the accused with notice that the State will attempt to use a specific conviction for enhancement of punishment. Brooks v. State, 921 S.W.2d 875, 878 (Tex. App.—Houston [14th Dist.] 1996), aff'd, 957 S.W.2d 30 (Tex. 1997). In addition, the enhancement allegation must be set forth in writing. Id. In alleging a prior conviction for enhancement of punishment, the allegations should include (1) the court in which the conviction was obtained, (2) the time of the conviction, and (3) the nature of the offense. Cole v. State, 611 S.W.2d 79, 80 (Tex. Crim. App. 1981). Marshall was provided a written pleading of the prior convictions that were to be used for sentence enhancement. The pleading satisfied the writing requirement and the purpose by providing notice to Marshall as required by law. Marshall, however, failed to object to the variance between the notice and the jury charge. Marshall admitted, under point of error six in his appellate brief, that he did not object to the jury charge regarding the variance in the punishment range. Therefore, Marshall's due process points of error are overruled. 2. Evidence is Procedurally Insufficient to Support Enhancement of Sentence Marshall contends that, during the punishment phase of trial, there was, effectively, no evidence of Marshall's prior convictions as was necessary to support the enhancement of his sentence. He argues there was no such evidence because (1) the trial court failed to read the enhancement paragraph and take his plea at the beginning of the punishment phase of trial and (2) the State failed to reoffer its evidence of his prior convictions after the trial court—at the end of the punishment phase of trial—entered a plea of "not true" as to the prior convictions. We agree. If the enhancement allegations of the indictment are not read until after the enhancement evidence is offered, the State must reoffer the evidence or obtain a stipulation from the defendant. Welch v. State, 645 S.W.2d 284, 285 (Tex. Crim. App. 1983); Dill v. State, 697 S.W.2d 702, 709 (Tex. App.—Corpus Christi 1985, pet. ref'd). In fact, in a jury punishment trial, until the enhancement allegations are read and a plea taken, the issue has not been joined. Ex parte Sewell, 742 S.W.2d 393, 395 (Tex. Crim. App. 1987); Welch, 645 S.W.2d at 285; Dill, 697 S.W.2d at 710 (applied to guilt/innocence phase). In this case, the only time the enhancement allegations were read was in the reading to the jury of the court's jury charge on punishment, and that was done, of course, after the punishment evidence was admitted and even after the plea of "not true" was subsequently informally entered by the trial court. Thus, no issue was joined, or at least had not been joined at the time the evidence was admitted. Therefore, procedurally, there was no evidence to enhance Marshall's sentence, and his sentence must be reversed and remanded for a new punishment trial. Because this defect arose from a trial error, rather than a true lack of evidence, the State is not prohibited from pursuing enhancement at the new punishment trial. See Welch, 645 S.W.2d at 286. 3. Faulty Jury Charge on Punishment Enhancement was Error A punishment charge is erroneous if it does not instruct the jury on the range of confinements and fines within which it must assess punishment under the contingency that it finds the enhancement allegations untrue. Kucha v. State, 686 S.W.2d 154, 155 (Tex. Crim. App. 1985). In the jury charge which was submitted to the jury in this case, there was no such contingency provided. That was error. If such an instruction is missing, the appellate court must determine if this error is so harmful the appellant has not had a fair and impartial trial. Id. Harm must be determined from the entire record, not just the erroneous charge. Id. But, since we have already determined that Marshall's sentence must be reversed and remanded for a new punishment trial, we need not analyze this error for harm. In connection with that defect in the jury charge on punishment, Marshall also asserts that the verdict form constituted error in failing to give the jury the option of finding untrue either or both of the enhancement convictions. The verdict form in the record does, in fact, fail to allow the jury to find either or both enhancement allegations untrue, and thus was error. See Nevarez v. State, 832 S.W.2d 82, 86 (Tex. App.—Waco 1992, pet. ref'd). But because that defect was not objected to, the error becomes harmful only if we find egregious harm. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh'g). Again, however, we need not assess the harmfulness of this error since we have already determined to remand for a new punishment trial. 4. Failure to Read Enhancement Paragraph or Take Marshall's Plea at Beginning of Punishment Phase was Error Marshall asserts error also in that, contrary to requirements of law, at the beginning of the punishment phase of trial, the enhancement paragraph was not read to the jury and his plea to the enhancement allegations was not taken. We agree. The reading of the enhancement paragraphs at the penalty stage in a bifurcated trial and the entering of a plea thereto are mandatory. Turner v. State, 897 S.W.2d 786, 788 (Tex. Crim. App. 1995); Pope v. State, No. 05-02-01745-CR, 2004 Tex. App. LEXIS 4783 (Tex. App.—Dallas May 27, 2004, pet. ref'd); see Tex. Code Crim. Proc. Ann. art. 36.01 (Vernon Supp. 2004–2005). Without reading the enhancement allegations and the defendant's plea to them, no issue is joined to enhance punishment, and neither the jury nor the defendant is informed of the precise terms of the charge. See Sewell, 742 S.W.2d at 395. Therefore, this failure was error. An Article 36.01 error is subject to a harm analysis. Linton v. State, 15 S.W.3d 615, 620 (Tex. App.—Houston [14th Dist.] 2000, pet. ref'd). But, again, since we have already decided the punishment must be reversed and this case remanded for a new punishment trial, we need not determine whether this error caused harm. 5. Marshall's Trial Counsel Made Errors During the Punishment Phase of Trial Marshall contends that, during the punishment phase of trial, his counsel's performance was deficient because of counsel's failure to object to (1) the punishment phase jury charge, (2) the trial court's failure to read the enhancement paragraph or to take Marshall's plea to it, and (3) the defective verdict form. From our review of the punishment phase of trial, we conclude those errors could have been avoided had trial counsel objected to them. But, because we have already determined we must reverse Marshall's sentence and remand for a new punishment trial, we need not determine whether counsel's failure to so object constituted ineffective assistance of counsel. Conclusion We affirm Marshall's conviction, reverse Marshall's sentence, and remand this case to the trial court for a new punishment trial. Josh R. Morriss, III Chief Justice Date Submitted: September 29, 2004 Date Decided: December 1, 2004 Do Not Publish