No. 01-09-00865-CR
Opinion issued May 5, 2011. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b).
On Appeal from the 174th District Court Harris County, Texas, Trial Court Case No. 1175727.
Panel consists of Justices KEYES, SHARP, and MASSENGALE. Justice SHARP, dissenting.
MICHAEL MASSENGALE, Justice.
A jury convicted appellant Gerald Wayne Mitchell of possession with intent to deliver cocaine in excess of 4 grams but less than 400 grams. See TEX. HEALTH SAFETY CODE ANN. §§ 481.102(3)(D), 481.112(a), (d) (West 2010) (first-degree felony). After finding true the allegations in two enhancement paragraphs that appellant had been convicted twice previously of felony offenses, the jury assessed his punishment at confinement for 75 years. See TEX. PENAL CODE ANN. § 12.42(d) (West Supp. 2010). On appeal, Mitchell contends that the evidence supporting the enhancements was legally insufficient because the trial court failed to follow the proper procedures. We conclude that the evidence was legally sufficient to support the enhancement allegations, that the trial court erred by not following the proper procedure, that Mitchell sufficiently preserved this issue, and that the trial court's error was harmless. Accordingly, we affirm.
I. Background
Mitchell was charged by indictment with the felony offense of possession with intent to deliver more than 4 grams but less than 400 grams of cocaine. The indictment also included two enhancement paragraphs alleging that Mitchell had two prior sequential felony convictions for delivery of a controlled substance in 1993 and possession of a controlled substance in 2005. In addition, the State filed a notice of intent to use evidence of prior convictions and extraneous offenses. This notice listed one conviction for possession of marijuana, five convictions for possession of a controlled substance, two convictions for distributing a controlled substance, two convictions for driving while license suspended, one conviction for escape, one conviction for failure to identify himself to a law enforcement officer, one conviction for promoting prostitution, and one conviction for unauthorized use of a motor vehicle. In addition, the State listed the following extraneous offenses and prior adjudications it intended to introduce at trial: unauthorized use of a motor vehicle, aggravated assault with a deadly weapon, aggravated kidnapping, possession of a controlled substance, and burglary of a habitation. Mitchell pleaded not guilty to the primary offense before the jury. After the jury found him guilty, the trial court began the punishment phase of trial. Outside the presence of the jury, the trial court heard objections and arguments pertaining to the prior convictions the State had informed Mitchell it intended to introduce. Mitchell presented objections to the introduction of evidence pertaining to 15 prior convictions. Among these was Mitchell's objection to the admission of jail cards related to the first of the two enhancements included in the indictment. Mitchell argued that the jail cards were prejudicial in that they listed his felony convictions and stated he was a high risk and that they were unnecessary in light of the judgments and sentences the State planned to introduce. The State argued that the jail cards were necessary to show that Mitchell was actually placed in custody. The trial court overruled Mitchell's objection to the jail cards. Mitchell made no objection to the other enhancement paragraph in the indictment. Through the testimony of the custodian of the records for the Harris County Sheriff's Office, the State introduced jail cards, one of which pertained to the first enhancement paragraph. The State then presented a fingerprint analyst for the Harris County Sheriff's Office, who testified that he had determined Mitchell's fingerprints matched those on the penitentiary packets and the judgment and sentence that the State introduced to prove the second enhancement paragraph and other prior convictions. Mitchell presented no evidence, and both parties rested. After reading the court's charge to the jury, the trial court realized that Mitchell had not pleaded to the enhancements and, over Mitchell's objection, granted the State's motion to reopen the evidence to arraign him on the enhancements. Before Mitchell pleaded to the enhancements, and outside the presence of the jury, Mitchell's counsel objected saying that it was "too late." Mitchell's counsel argued, "They can't reopen the case for the purpose of doing something they should have done prior to any testimony being received. . . . It's clearly improper, unlawful, and it violates Mr. Mitchell's right to a fair and proper trial." The trial court overruled the objection, Mitchell pleaded "not true" to the enhancements, and the State rested and closed without introducing or reintroducing evidence and without a stipulation of evidence from Mitchell. The jury found both enhancement paragraphs true and assessed punishment at 75 years in prison. On appeal, Mitchell contends that the evidence was legally insufficient to support the jury's findings that the enhancement paragraphs were true. Mitchell's brief also asserts trial error because the court failed to follow the proper procedure for enhancement allegations. II. Legal sufficiency
Mitchell first contends that the evidence was legally insufficient to support the jury's findings of "true" to the two enhancement paragraphs because the State's failure to reintroduce evidence after Mitchell's plea or obtain a stipulation of evidence meant that no evidence pertaining to the enhancements was properly before the jury. In assessing the legal sufficiency of the evidence pertaining to a punishment enhancement, we determine whether, based on all of the record evidence viewed in the light most favorable to the verdict, a rational jury could have made the finding beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Drichas v. State, 175 S.W.3d 795, 798 (Tex. Crim. App. 2005). Our review of "all of the evidence" includes evidence that was properly and improperly admitted. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). To invoke the habitual offender statute, the State must show that the defendant was previously convicted of two felonies, and one was committed after the other became final. TEX. PENAL CODE ANN. § 12.42(d). Before Mitchell's plea, the State introduced penitentiary packets that showed Mitchell's convictions for the two offenses alleged in the enhancement paragraphs. The State also elicited testimony from a fingerprint analyst who said that the fingerprints in the penitentiary packets matched Mitchell's fingerprints. Thus, there was sufficient evidence that Mitchell was convicted of the crimes alleged in the two enhancement paragraphs. The legal sufficiency of the evidence to support the sentencing enhancement is not undermined by trial error in the order of proceedings, a separate issue raised by Mitchell, which we analyze below. Compare Marshall v. State, 185 S.W.3d 899, 902 (Tex. Crim. App. 2006) (distinguishing defect arising from procedural trial error from lack of evidentiary support), with Jordan v. State, 256 S.W.3d 286, 292 (Tex. Crim. App. 2008) (refusing to treat challenge to sufficiency of evidence supporting enhancements as mere trial error subject to harm analysis). III. Trial error
Mitchell also contends that the trial court's failure to reintroduce evidence or obtain a stipulation thereon after he pleaded to the enhancement allegations is trial error that requires reversal without a harm analysis. The State contends that Mitchell did not preserve this issue because his objection did not alert the State and the trial court as to the proper procedure to be used. Preservation of error. Rule 33.1 of the Rules of Appellate Procedure requires that as a prerequisite for appellate review, an appellant must have made his complaint known to the trial court by a request, objection, or motion that stated the grounds for his complaint with sufficient specificity to apprise the trial court of the complaint, unless the specific grounds were apparent from the context. TEX. R. APP. P. 33.1(a). Here, when the trial court informed the parties that Mitchell had not entered pleas on the enhancement paragraphs, Mitchell's counsel stated, "It's too late," and objected that it would be improper to allow the State to reopen because both sides had already rested and closed. The State contends that this objection was not sufficient to preserve error and that Mitchell was required not only to object but also to direct the trial court to the correct procedure to be followed after a untimely reading of the indictment and entry of pleas. See Castillo v. State, 530 S.W.2d 952, 954 (Tex. 1976); Limon v. State, 838 S.W.2d 767, 769 (Tex. App.-Corpus Christi 1992, pet. ref'd). Such a procedure requires the State to reintroduce its penalty phase evidence or introduce a stipulation from the accused that the evidence previously offered would be the same and could be considered by the jury. Castillo, 530 S.W.2d at 954. In Limon, the defendant objected when the trial court allowed the State to reopen its case in chief to read the indictment. Limon, 838 S.W.2d at 768. However, defense counsel then stated that the defense did not object to the State's re-offering previously admitted evidence instead of requiring the evidence to be presented to the jury a second time. Id. The court of appeals held that the defendant waived his appellate complaint by not directing the trial court to the proper procedure or objecting to the State reoffering its evidence. Id. at 769. However, in Welch v. State, 645 S.W.2d 284 (Tex. Crim. App. 1983), the Court of Criminal Appeals held that a more general objection was sufficient to preserve appellant's complaint about trial error. 645 S.W.2d at 285. In Welch, the enhancement allegations were belatedly read, and appellant entered his pleas of "not true." Id. at 284. He then objected and asked that the prior testimony be stricken from the record. Id. at 284-85. The Court of Criminal Appeals concluded that this objection was sufficient to preserve error. Id. at 285. In Mendez v. State, 212 S.W.3d 382 (Tex. App.-Austin 2006, pet. ref'd), before the defendant pleaded to the enhancement allegations, the State introduced its penalty-phase evidence and rested. 212 S.W.3d at 387-88. The defense noted that no plea had been entered as to the enhancements. When the trial court said, "We'll just do it now," the defense objected that it was "too late," and requested a directed verdict on the grounds that the enhancement allegations did not apply. Id. at 387. The Austin Court of Appeals explained that " Welch makes it clear that an objection at any point during the penalty stage is sufficient to preserve the error and require the corrective action required in that opinion." Id. at 388. The court of appeals held that the appellant's objection was sufficient to preserve his complaint for appellate review. Id. Mitchell's objection was made at a time when the trial court could have taken the kind of corrective action contemplated in Castillo, Limon, and Welch. The trial court initially raised this issue with the parties in the trial court, so it is clear that the trial court was aware of the issues pertaining to this type of trial error. We conclude that Mitchell's objection was sufficient to preserve error for appellate review. Enhancement procedure. Article 36.01 of the Texas Code of Criminal Procedure specifies the order of proceeding for a jury trial. "When prior convictions are alleged for purposes of enhancement only and are not jurisdictional, that portion of the indictment or information reciting such convictions shall not be read until the hearing on punishment is held. . . ." TEX. CODE CRIM. PROC. ANN. art. 36.01(a)(1) (West 2007). The reading of the enhancement paragraphs at the penalty stage of a bifurcated trial and the entry of the defendant's responsive plea are mandatory. Turner v. State, 897 S.W.2d 786, 788 (Tex. Crim. App. 1995). Without these steps, no issue is joined between the State and the defendant, and neither the jury nor the defendant is informed of the precise terms of the charge. See Welch, 645 S.W.2d at 285; Hernandez v. State, 190 S.W.3d 856, 867 (Tex. App.-Corpus Christi 2006, no pet.); Linton v. State, 15 S.W.3d 615, 620 (Tex. App.-Houston [14th Dist.] 2000, pet. ref'd). "After the enhancements and plea are read to the jury, the State is required to introduce evidence in support of the enhancements." Hernandez, 190 S.W.3d at 867. The Court of Criminal Appeals has held that not reading the enhancement paragraphs and having the defendant plead to them could mislead a defendant into believing the State has abandoned the enhancement paragraphs. Turner, 897 S.W.2d at 789. In such a case, the defendant might take the stand and incriminate himself. Id. This is particularly so in cases in which the enhancements are not included in the indictment, such that "the failure to read the enhancement allegations does not put the defendant on notice that the proceedings may have gone amiss." Marshall, 185 S.W.3d at 903 ("If the enhancements are in the indictment and the State does not abandon them, the defendant is on notice that the State is still seeking a greater penalty range."). In this case, the trial court failed to follow the mandatory procedure for the order of trial as set forth in the Code of Criminal Procedure. This was error. See Turner, 897 S.W.2d at 788. Harm analysis. Because an article 36.01 violation is not considered structural error, it is subject to a harmless error analysis. Linton, 15 S.W.3d at 620; see TEX. R. APP. P. 44.2(b). When reviewing non-constitutional error, such as this one, we determine whether the error affected the defendant's substantial rights. Id. In other words, we must determine if the error had a substantial or injurious effect on the jury's verdict. Linton, 15 S.W.3d at 620-21 (citing Llamas v. State, 12 S.W.3d 469, 471 n. 2 (Tex. Crim. App. 1999)). Here, Mitchell did not testify during the punishment phase of trial, so no self-incrimination occurred. The enhancement allegations were included in the indictment, and nothing in the records shows that the State manifested an intention to abandon the enhancement paragraphs. Penitentiary packets containing documents, fingerprints, and photographs evidencing appellant's prior convictions alleged in the enhancement paragraphs were introduced during the State's brief punishment case. Therefore Mitchell was not misled into believing that the State intended to abandon the enhancement allegations. Indeed, before the taking of evidence during the punishment phase, Mitchell made numerous objections to the evidence regarding his prior convictions, including certain evidence pertaining to one of the convictions alleged as a punishment enhancement. In addition, the primary offense was a first degree felony, which carried a punishment range of imprisonment for 5 to 99 years. See TEX. PENAL CODE ANN. § 12.32(a) (West Supp. 2010). The effect of the enhancements was to raise the minimum punishment from 5 years in prison to 25 years in prison. See id. § 12.42(d). The punishment assessed by the jury of 75 years in prison was on the upper end of the sentencing range, and it fell within the unenhanced punishment range, which further suggests that this error was harmless. Under these circumstances, we conclude that the trial court's failure to read the enhancement paragraphs and take Mitchell's plea at the beginning of the punishment hearing was harmless. We overrule Mitchell's sole issue. Conclusion
We affirm the judgment of the trial court.