Opinion
No. 05-11-00763-CR No. 05-11-01084-CR
08-02-2012
MARK GAONA, Appellant v. THE STATE OF TEXAS, Appellee
Affirm in part; Reverse and Remand in part; Opinion Filed August 2, 2012.
On Appeal from the 292nd Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F10-54171-V & F10-54172-V
OPINION
Before Justices O'Neill, Richter, and Lang-Miers
Opinion By Justice O'Neill
Appellant Mark Gaona appeals his convictions for burglary of a habitation and “Evading Arrest in a Detention Vehicle Enhanced.” After a jury found appellant guilty of the offenses, the trial court assessed punishment, enhanced by two prior felony convictions, at twenty-five years' confinement in each case. In three points of error, appellant contends (1) the trial court erred in allowing the State to reopen the case after arguments had been “concluded,” (2) the sentence in the evading arrest case is illegal, and (3) the judgment in the evading arrest case should be reformed to show a conviction for the correct offense. For the following reasons, we affirm appellant's burglary conviction in its entirety. We reverse the portion of the judgment in the evading arrest case assessing punishment and remand for a new punishment hearing as to that conviction only. We also reform the judgment in the evading arrest case to show a conviction for “Evading Arrest/Detention, Second Offense.”
In his first point of error, appellant contends the trial court erred in allowing the State to reopen in the punishment phase after arguments concluded. After a jury found appellant guilty of the offenses, the punishment phase was heard by the trial court. The State presented its punishment evidence, including evidence of appellant's prior convictions. After both sides rested and closed, appellant argued the State did not properly prove up his prior convictions. The State requested to reopen to formally offer into evidence appellant's “pen packs.” Appellant objected that it was too late. The trial court overruled appellant's objection and allowed the State to reopen. The trial court recessed to allow appellant to offer any additional evidence. When the hearing reconvened, the trial court gave the State and appellant the opportunity to present further evidence and argument. Neither did. The trial court found both enhancement paragraphs true and assessed punishment at twenty-five years' confinement in each case.
According to appellant, the trial court erred in permitting the State to reopen to introduce the pen packs into evidence because argument had “concluded.” He relies on section 36.02 of the Texas Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. art. 36.02 (West 2007). A trial court shall allow testimony to be introduced at any time before the “argument of a case is concluded,” if it appears that it is necessary to a due administration of justice. Id. Here, at the time the State was permitted to reopen, appellant had given its closing argument, but the State had not been given the opportunity to give its closing argument. After the State reopened, appellant and the State were both given the opportunity to give closing argument, but both chose not to. We conclude arguments had not concluded at the time the State reopened. The fact both sides later chose not to give further argument does not alter this conclusion. We overrule appellant's first point of error.
In his second point of error, appellant asserts his sentence in the evading arrest case is illegal. The State agrees. The judgment states appellant was convicted of “Evading Arrest in a Detention Vehicle Enhanced.” Presumably, the judgment intended to reflect a conviction for evading arrest or detention and using a vehicle while in flight. Act of May 27, 2009, 81st Leg., R.S., ch. 1400, 2009 Tex. Gen. Laws 4385, 4386 (current version at Tex. Penal Code Ann. § 38.04(b)(2) (West Supp. 2012). However, the indictment did not allege, and the jury did not find, appellant used a vehicle in the charged offense, which would have enhanced the offense to a third degree felony. Id. The indictment did allege, and the jury found, appellant had prior conviction for evading arrest or detention, which enhanced the offense to a state jail felony. See id. (current version at Tex. Penal Code Ann. § 38.04(b)(1) (West Supp. 2012). Because the indictment also alleged two prior felony convictions, the range of punishment was two to twenty years' confinement. See Tex. Penal Code Ann. § 12.425(b) (West 2011). Appellant's twenty-five year sentence was outside the punishment range and was therefore illegal. We reverse the portion of the judgment imposing punishment and remand for a new punishment hearing. See Tex. R. App. P. 44.29(b).
In his third point of error, appellant asks that we reform the judgment in the evading arrest case. Again, the State concedes error. As noted above, the judgment states appellant's conviction was for “Evading Arrest in a Detention Vehicle Enhanced,” but appellant was convicted of evading arrest or detention, having previously been convicted of an evading arrest offense. Consequently, we reform the judgment to show appellant was convicted of “Evading Arrest/Detention, Second Offense.” See Asberry v. State, 813 S.W.3d 526, 529-30 (Tex. App.-Dallas 1991, pet. ref'd).
We affirm appellant's burglary conviction in its entirety. We reform the judgment in the evading arrest case to reflect a conviction for the proper offense, and affirm the judgment of conviction in that case as reformed. However, we reverse the portion of the judgment imposing sentence in that case and remand for a new hearing as to punishment only.
MICHAEL J. O'NEILL
JUSTICE
Do Not Publish
Tex. R. App. P. 47
110763F.U05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
MARK GAONA, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-11-00763-CR
Appeal from the 292nd Judicial District Court of Dallas County, Texas. (Tr.Ct.No. F10- 54171-V).
Opinion delivered by Justice O'Neill, Justices Richter and Lang-Miers.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered August 2, 2012.
MICHAEL J. O'NEILL
JUSTICE
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
MARK GAONA, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-11-01084-CR
Appeal from the 292nd Judicial District Court of Dallas County, Texas. (Tr.Ct.No. F10- 54171-V).
Opinion delivered by Justice O'Neill, Justices Richter and Lang-Miers participating.
Based on the Court's opinion of this date, we REFORM the trial court's judgment to show appellant was convicted of “Evading Arrest/Detention, Second Offense.” We REVERSE the portion of the judgment regarding appellant's sentence and REMAND for a new punishment hearing pursuant to Tex. Code Crim. Proc. Ann. art. 44.29(b).
Judgment entered August 2, 2012.
MICHAEL J. O'NEILL
JUSTICE