Rey Barrera v. State ( 2015 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-14-00410-CR
NO. 09-14-00411-CR
____________________
REY BARRERA, Appellant
V.
THE STATE OF TEXAS, Appellee
_______________________________________________________ ______________
On Appeal from the Criminal District Court
Jefferson County, Texas
Trial Cause No. 13-15829 (Counts 1 and 2)
________________________________________________________ _____________
MEMORANDUM OPINION
A jury found Rey Barrera guilty of aggravated assault with a deadly weapon
on a public servant (Count 1) and possession of a deadly weapon in a penal
institution (Count 2). See Tex. Penal Code Ann. §§ 22.02(b)(2)(B), 46.10 (West
2011). The jury found Barrera to be a repeat offender and assessed punishment at
life in prison and a $10,000 fine for Count 1 and twenty years in prison and a
$10,000 fine for Count 2. The trial court ordered both sentences to commence after
1
the sentences imposed for his previous convictions have ceased to operate. See
Tex. Code Crim. Proc. Ann. art. 42.08(a) (West Supp. 2014). On appeal, Barrera
contends the fines were unauthorized by law. In the alternative, he contends the
fines must run concurrently. Finally, Barrera challenges the affirmative finding of
the use of a deadly weapon on the judgment for the possession offense. Finding no
reversible error in this appeal, we affirm the trial court’s judgment.
Enhanced Punishment
Issue one contends the trial court erred in allowing the jury to assess a fine
as part of Barrera’s punishment because the evidence established his status as a
habitual offender. Section 12.42 of the Texas Penal Code describes the punishment
range for habitual and repeat felony offenders on trial for a first, second, or third
degree felony. Tex. Penal Code Ann. § 12.42 (West Supp. 2014). “[I]f it is shown
on the trial of a felony of the third degree that the defendant has previously been
finally convicted of a felony other than a state jail felony punishable under Section
12.35(a), on conviction the defendant shall be punished for a felony of the second
degree.” Id. § 12.42(a). A second degree felony is punished by “imprisonment in
the Texas Department of Criminal Justice for any term of not more than 20 years
or less than 2 years.” Tex. Penal Code Ann. § 12.33(a) (West 2011). “In addition to
imprisonment, an individual adjudged guilty of a felony of the second degree may
2
be punished by a fine not to exceed $10,000.” Id. § 12.33(b). “If it is shown on the
trial” of a first degree felony that a person has a felony conviction that became
final before the date of the charged offense, provisions similar to those found in
section 12.42(a) establish a punishment range of “life, or for any term not more
than 99 years or less than 15 years.” Id. § 12.42(c)(1). “In addition to
imprisonment, an individual may be punished by a fine not to exceed $10,000.” Id.
A different subsection of Section 12.42 applies when a person is found to be
a habitual offender.
[I]f it is shown on the trial of a felony offense other than a state jail
felony punishable under Section 12.35(a) that the defendant has
previously been finally convicted of two felony offenses, and the
second previous felony conviction is for an offense that occurred
subsequent to the first previous conviction having become final, on
conviction the defendant shall be punished by imprisonment in the
Texas Department of Criminal Justice for life, or for any term of not
more than 99 years or less than 25 years.
Tex. Penal Code Ann. § 12.42(d). The subsection that applies to habitual offenders
does not authorize a fine. See Ex parte Johnson, 697 S.W.2d 605, 607-08 (Tex.
Crim. App. 1985).
In this case, four enhancement paragraphs contained in the indictment
alleged Barrera had previously been convicted in 2008 for committing aggravated
assault with a deadly weapon, in 1997 for murder as well as attempted murder, and
in 1986 for robbery. The State alleged the 1986 conviction became final before the
3
commission of the 1997 offenses, the 1997 convictions became final before the
commission of the 2008 offense, and the 2008 conviction became final before the
commission of the charged offenses. The State abandoned the first and fourth
enhancement paragraphs, without an objection from the defense, in a pre-trial
hearing. Before the punishment phase of the trial started, the State and the defense
agreed to the State’s abandonment of the paragraph alleging a 1997 conviction for
attempted murder. Barrera made a plea of “true” to the single remaining
enhancement paragraph.
A penitentiary packet admitted into evidence in the trial’s punishment phase
included: (1) a judgment on a conviction for murder, committed October 10, 1996,
with a sentence of 65 years in prison and a $10,000 fine, commencing December 5,
1997; (2) a judgment on a conviction for attempted murder, committed October 10,
1996, with a sentence of 20 years in prison and a $10,000 fine, commencing
December 5, 1997; (3) a judgment on a conviction for possession of a deadly
weapon in a penal institution, committed on April 21, 2004, with a sentence of 3
years in prison imposed on April 1, 2005, and commencing when a 1997 sentence
has ceased to operate; (4) a judgment on a conviction for aggravated assault with a
deadly weapon, committed December 2, 2006, with a sentence of 50 years in
prison imposed on October 22, 2008, and commencing when the 1997 sentence for
4
murder has ceased to operate; and (5) a judgment on a conviction for robbery,
committed November 30, 1985, with a sentence of 10 years in prison imposed on
May 12, 1986, and commencing November 30, 1985. Records from an El Paso
County district court include a judgment of conviction for aggravated assault with
a deadly weapon, committed October 10, 1996, with a sentence of 20 years in
prison and a $10,000 fine, commencing December 5, 1997.
In the charge conference, Barrera argued that section 12.42(d) of the Texas
Penal Code supplied the proper punishment range because the State and the
defense proved two or more sequential prior final felony convictions during the
punishment phase of the trial. See generally Tex. Penal Code Ann. § 12.42(d). The
trial court denied the defense’s request to submit a habitual offender charge to the
jury. The jury charge required the jury to punish Barrera as a repeat offender based
upon Barrera’s plea of true to a single enhancement paragraph in the indictment.
Barrera argues application of habitual offender punishment under section
12.42(d) was mandatory in his cases because two sequential final felony
convictions were “shown” on his trial. See generally id. The cases Barrera cites in
his brief demonstrate that the mandatory application of section 12.42(d) occurs if
there has been a plea of true by the defendant or a finding of true by the finder of
fact. See State v. Allen, 865 S.W.2d 472, 473-74 (Tex. Crim. App. 1993) (section
5
12.42(d) applies when the State has proven the enhancement paragraphs and the
factfinder has found the enhancement allegation to be true); Harvey v. State, 611
S.W.2d 108, 110-11 (Tex. Crim. App. 1981) (when the defendant pleads “true” to
the State’s enhancement allegation, the defendant cannot complain that the
evidence is insufficient to support the finding and the trial court may charge the
jury on the enhanced punishment range).
Due process requires reasonable notice and an opportunity to be heard
relative to a recidivist charge. Oyler v. Boles, 368 U.S. 448, 452 (1962). Prior
convictions used as enhancements must be pleaded in some form, and they may be
pleaded in an indictment. Brooks v. State, 957 S.W.2d 30, 33-34 (Tex. Crim. App.
1997). “[T]he State may, with the permission of the trial court, ‘dismiss, waive or
abandon a portion of the indictment.’” Garland v. State, 170 S.W.3d 107, 111
(Tex. Crim. App. 2005) (quoting Ex parte Preston, 833 S.W.2d 515, 517 (Tex.
Crim. App. 1992)). “Among the available strategies for the state is an election not
to pursue enhancements.” Marshall v. State, 185 S.W.3d 899, 903 (Tex. Crim.
App. 2006). In this case, the record contains a pleading, a plea, and proof of a
single prior final felony conviction. Accordingly, Barrera was properly punished as
a repeat felony offender. See Tex. Penal Code Ann. § 12.42(c)(1). We overrule
issue one.
6
Concurrent Fines
Issue two contends the trial court erred in allowing consecutive fines where
the sentences were ordered to be served concurrently. Barrera was tried in a single
criminal action for offenses arising out of the same criminal episode. See Tex.
Penal Code Ann. § 3.03(a) (West Supp. 2014). Fines which are part of concurrent
sentences “run” concurrently. State v. Crook, 248 S.W.3d 172, 174, 177 (Tex.
Crim. App. 2008) (plurality opinion). “An individual sentence assessed . . . within
the applicable range of punishment is not rendered illegal by the entry of an
unlawful cumulation order.” Beedy v. State, 250 S.W.3d 107, 114 (Tex. Crim. App.
2008). An unlawful cumulation order is remedied by reforming the judgment to set
aside the order. Id. at 113.
Barrera argues that the fine recited in the judgment for Count 2 must be
deleted from the judgment because the sentences for aggravated assault on a public
servant and possession of a deadly weapon in a penal institution are to be served
concurrently. The remedy Barrera seeks is not that his fines “run concurrently,” but
that one of the fines not be imposed at all, contrary to the jury’s verdict. Deciding
what punishment to assess within the statutorily prescribed range for a given
offense and deciding whether to cumulate sentences are two distinct functions. See
Barrow v. State, 207 S.W.3d 377, 379-80 (Tex. Crim. App. 2006). The jury’s
7
decision whether to assess a particular punishment in a particular case has no
bearing on the judge’s decision whether to cumulate the sentence. Id. To determine
whether the judgment properly states that the sentence for Barrera’s conviction for
aggravated assault on a public servant will be served concurrently with his
sentence for possession of a deadly weapon in a penal institution, we look not to
the part of the judgment that recites the sentence, but to the part of the judgment
memorializing the cumulation order. See Tex. Code Crim. Proc. Ann. art. 42.01, §
1(9), (15), (19) (West Supp. 2014).
The cumulation orders contained in the judgments at issue here state that the
sentence shall commence when the judgments and sentences have ceased to
operate in Barrera’s 2008 convictions for aggravated assault with a deadly weapon
and assault of a public servant. See Tex. Code Crim. Proc. Ann. art. 42.08(a). A
statement that a sentence has been cumulated under article 42.08 is properly
included on a judgment. See id. art. 42.01, § 1(19). Because no other cumulation
order appears on either judgment, and Barrera does not contend that the sentences
in this case cannot be cumulated on the sentences identified in the judgments, we
find no error on the face of the judgment requiring reformation of the judgment on
appeal. We overrule issue two.
8
Deadly Weapon Finding
Issue three contends the trial court erred in allowing the jury to make an
affirmative finding of the use or exhibition of a deadly weapon in the charge for
possession of a deadly weapon in a penal institution. He argues the weapon was
present but did not facilitate a separate felony. See Plummer v. State, 410 S.W.3d
855, 859-60 (Tex. Crim. App. 2013) (“However, we have declined to uphold
deadly-weapon findings when the weapon was present but did not facilitate a
separate felony.”).
The indictment in this case alleged, in part:
REY BARRERA, hereinafter styled Defendant, on or about the 4th
day of September, 2012, and before the presentment of this
indictment, in the County and said State aforesaid, did:
COUNT ONE
then and there intentionally, knowingly, or recklessly cause bodily
injury to [D.L.], by stabbing [D.L.] with a pencil, and the Defendant
did then and there know that the said [D.L.] was a public servant in
the lawful discharge of an official duty, to-wit:
Correctional Officer, and the defendant did then and there use or
exhibit a deadly weapon, to-wit: a pencil, during the commission of
said assault;
COUNT TWO:
then and there, while confined in a penal institution, intentionally or
knowingly possess or conceal in said penal institution a deadly
weapon, to-wit: a pencil, and the defendant did then and there use or
exhibit a deadly weapon, to-wit: a pencil, during the commission of
said possession or concealment of a deadly weapon in a penal
institution[.]
9
The jury charge informed the jury that “[a] person commits an offense if,
while confined in a penal institution, (s)he intentionally or knowingly possesses or
conceals a deadly weapon in the penal institution.” See generally Tex. Penal Code
Ann. § 46.10. One of the definitions included in the charge stated: “Deadly weapon
means[:] (1) a firearm or anything manifestly designed, made, or adapted for the
purpose of inflicting death or serious bodily injury; or (2) anything that in the
manner of its use or intended use is capable of causing death or serious bodily
injury.” See generally Tex. Penal Code Ann. § 1.07(17) (West Supp. 2014).
The application paragraph for Count 1 stated, as follows:
Now, as to Count 1 of the Indictment, if you believe from the
evidence beyond a reasonable doubt that in Jefferson County, Texas,
on or about September 4, 2012, the defendant Rey Barrera, did then
and there intentionally, knowingly, or recklessly cause bodily injury
to [D.L.], by stabbing [D.L.] with a pencil, and the Defendant did then
and there know that the said [D.L.] was a public servant in the lawful
discharge of an official duty, to-wit: Correctional Officer, and the
defendant did then and there use or exhibit a deadly weapon, to-wit: a
pencil, during the commission of said assault, you shall find the
defendant GUILTY of the offense of Aggravated Assault with a
Deadly Weapon on a Public Servant.
The application paragraph for Count 2 stated, as follows:
Now, as to Count 2 of the Indictment, if you believe from the
evidence beyond a reasonable doubt that in Jefferson County, Texas,
on or about September 4, 2012, the defendant Rey Barrera, did then
and there, while confined in a penal institution, intentionally or
knowingly possess or conceal in said penal institution a deadly
weapon, to-wit: a pencil, and the defendant did then and there use or
10
exhibit a deadly weapon, to-wit: a pencil, during the commission of
said possession or concealment of a deadly weapon in a penal
institution, you shall find the defendant GUILTY of the offense of
Deadly Weapon in a Penal Institution.
“[I]n order to ‘use’ a deadly weapon for affirmative finding purposes, the
weapon must be utilized to achieve an intended result, namely, the commission of
a felony offense separate and distinct from ‘mere’ possession.” Narron v. State,
835 S.W.2d 642, 644 (Tex. Crim. App. 1992). We give “use” its broadest possible
understanding. Tyra v. State, 897 S.W.2d 796, 797 (Tex. Crim. App. 1995). In this
case, the jury considered evidence that Barrera stabbed D.L. in the lower outside
portion of his left eye with the pencil, penetrating to the brain and damaging three
of the cranial nerves, leaving D.L. completely and most likely permanently blind in
that eye. The charge authorized the jury to convict Barrera only if it found that he
used or exhibited a pencil, which in the manner of its use by Barrera was capable
of causing death or serious bodily injury. To support a deadly weapon finding,
there must be a facilitation purpose between the weapon and the associated felony
offense. Plummer, 410 S.W.3d at 856. Such a facilitation purpose is present in this
case because Barrera used what would otherwise have been a harmless writing
implement to stab D.L. in the eye, blinding him. Barrera’s use of the pencil to stab
D.L. facilitated his possession of a deadly weapon in a penal institution because
that use made the object a deadly weapon. Additionally, Barrera’s use of the pencil
11
to stab D.L. furthered the commission of the aggravated assault on a public
servant, a felony offense facilitated by the possession, and distinct from the offense
of possession itself. See id. at 865. The evidence did not show mere possession of a
deadly weapon. We overrule issue three and affirm the trial court’s judgment.
AFFIRMED.
________________________________
CHARLES KREGER
Justice
Submitted on February 5, 2015
Opinion Delivered October 14, 2015
Do Not Publish
Before McKeithen, C.J., Kreger and Horton, JJ.
12