Nehemiah Steele, Jr. v. State ( 2014 )

NOS. 12-12-00327-CR
12-12-00328-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
NEHEMIAH STEELE, JR., § APPEALS FROM THE 7TH
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § SMITH COUNTY, TEXAS
MEMORANDUM OPINION
Nehemiah Steele, Jr. appeals his two convictions for evading arrest. The trial court
sentenced him to forty-two years of imprisonment in one case and twenty years of imprisonment
in the other case, to run concurrently. He raises five issues complaining that the trial court erred
in admitting evidence that he violated parole, in finding the second enhancement paragraph to be
true, and in assessing court costs. We affirm.
BACKGROUND
Before a jury, Officer Destry Walsworth testified that he encountered Appellant on the
night of November 7, 2011. As he approached from the opposite direction, a car parked on the
side of the road suddenly turned on its lights and accelerated at a high rate of speed away from
him. The officer made a u-turn and followed the vehicle, which continued to travel down several
streets, ran two stop signs, and finally became immobilized when it hit a curb. The driver,
Appellant, got out of the car and ran. Officer Walsworth and a second officer, who had joined
the chase, ran after Appellant, caught him, and arrested him. The jury found Appellant guilty of
evading arrest while using a vehicle in cause number 007-1590-11.
A few days after the jury trial in that case, Appellant entered a plea of guilty without an
agreed punishment recommendation in a second evading arrest case, trial court cause number
007-1591-11. Later, after a single punishment hearing, the trial court sentenced Appellant to
forty-two years of imprisonment and twenty years of imprisonment, to be served concurrently.
The court also ordered him to pay court costs in the amount of $294.00 and $274.00 respectively.
ADMISSIBILITY OF EVIDENCE
In his first issue in appellate cause number 12-12-00327-CR (trial court cause number
007-1590-11), Appellant asserts that the trial court erred in admitting evidence that he violated
parole. He argues that its prejudice outweighed any probative value and, because the State had
enough evidence to prove the offense, it did not need to present the evidence that he violated
parole. He contends that the incendiary nature of the evidence, together with references by the
prosecutor in jury argument, distracted or confused the jury causing the jury to give the evidence
undue weight.
Standard of Review
We review a trial court’s evidentiary rulings for abuse of discretion. Weatherred v.
State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). The appellate court must uphold the trial
court’s ruling if it was within the zone of reasonable disagreement. Id.
Applicable Law
Rule 403 presumes the admissibility of all relevant evidence and authorizes a trial judge
to exclude this evidence only when there is a clear disparity between the degree of prejudice of
the offered evidence and its probative value. Fox v. State, 115 S.W.3d 550, 562 (Tex. App.–
Houston [14th Dist.] 2002, pet. ref’d). The trial court is to conduct a balancing test to determine
whether the probative value of an item of evidence is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue
delay, or needless presentation of cumulative evidence. TEX. R. EVID. 403. The trial court must
balance (1) the inherent probative force of the proffered item of evidence along with (2) the
proponent’s need for that evidence against (3) any tendency of the evidence to suggest a decision
on an improper basis, (4) any tendency of the evidence to confuse or distract the jury from the
main issues, (5) any tendency of the evidence to be given undue weight by a jury that has not
been equipped to evaluate the probative force of the evidence, and (6) the likelihood that
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presentation of the evidence will consume an inordinate amount of time or merely repeat
evidence already admitted. Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App.
2006). Evidence of other crimes, wrongs, or acts may be admissible as proof of motive,
opportunity, intent, preparation, plan, knowledge, or identity. TEX. R. EVID. 404(b).
Analysis
Officer Chuck Barber testified that, on November 10, 2011, he served a parole violation
warrant on Appellant. He explained that parole is supervised release from the Texas Department
of Corrections. The trial court immediately instructed the jury that the State had introduced
evidence of an extraneous crime or bad act. The court explained that it was admitted only for the
purpose of assisting the jury, and the evidence was introduced to show Appellant’s motive or
intent, if any. The court further admonished the jury that it could not consider this testimony
unless it found and believed beyond a reasonable doubt that Appellant committed these acts.
Several times in final argument to the jury, the prosecutor referenced the fact that Appellant was
on parole. He argued that Appellant’s intent was to avoid getting caught. He explained that
being on parole might make a difference in someone’s motive to run from police, saying that
Appellant had every reason to run because if he is “busted,” he goes back to “the pen.”
Defense counsel argued that Appellant was not running from the police. He said
Appellant “didn’t have a clue what’s going on behind him” and “was speeding around, had his
radio up, and got himself into a jam.” Evidence that Appellant was on parole at the time was
probative of his motive to get away from the police officer. See Powell v. State, 189 S.W.3d
285, 288-89 (Tex. Crim. App. 2006). Thus, the admission of evidence that suggests Appellant
had a motive to evade arrest serves to make less probable Appellant’s defensive argument that he
was not aware the police were behind him. Further, the trial court immediately gave the jury
limiting instructions. Additionally, the risk of undue prejudice was minimized by the fact that
the jury was not told what crime led to the parole status. Id. at 289. The witness who testified
about the complained-of evidence did so by answering just two questions. Therefore,
presentation of this evidence did not consume an inordinate amount of time. We conclude that
the trial court did not abuse its discretion by admitting the evidence because of its probative
value in showing Appellant’s motive to run from police. Id. We overrule Appellant’s first issue
in appellate cause number 12-12-00327-CR.
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ENHANCEMENT PARAGRAPH
In his second and third issues in appellate cause number 12-12-00327-CR, and his first
and second issues in appellate cause number 12-12-00328-CR (trial court cause number 007-
1591-11), Appellant contends the trial court erred in finding to be true the enhancement
paragraph stating he had been convicted of delivery of a controlled substance. He argues that the
evidence is legally insufficient to support the finding because there was a material variance
between the indictment and the evidence. He does not dispute that the enhancement paragraph
contained the correct cause number, court, and dates. He asserts, however, that he was
prejudiced because the indictment named an incorrect offense. He complains that the State
addressed the problem after the plea hearing had been completed and only days before the
punishment phase was to begin.
Applicable Law
A prior offense alleged for enhancement is “an historical fact to show the persistence of
the accused, and the futility of ordinary measures of punishment as related to him.” Sigler v.
State, 157 S.W.2d 903, 904 (Tex. Crim. App. 1941). The purpose of an enhancement allegation
is to provide the accused with notice of the prior conviction relied upon by the state. Coleman v.
State, 577 S.W.2d 486, 488 (Tex. Crim. App. 1979). The object of the doctrine of variance is to
avoid prejudicial surprise to the defendant. Freda v. State, 704 S.W.2d 41, 42 (Tex. Crim. App.
1986). A variance between the offense alleged in an enhancement paragraph and the proof
presented at trial is material and fatal only if the variance was such as to mislead the appellant to
his prejudice. Id.
Analysis
The second enhancement paragraph in each indictment alleged that Appellant
“committed the felony offense of Delivery of a Controlled Substance, and was convicted on the
17th day of July, 1995, in cause number 7-94-641 in the 7th Judicial District Court of Smith
County, Texas.” At a hearing that was initially set to be a sentencing hearing, the court heard
argument from both sides about this enhancement paragraph. Defense counsel admitted to the
trial court that the description of the offense as stated in each indictment is correct with the
exception of the failure to include the word “simulated” before the words “controlled substance.”
He asserted that the enhancement paragraph alleged the wrong crime. However, Appellant was
not surprised by the error, and as a matter of trial strategy, deliberately did not file a motion to
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quash. He relied instead on the argument that the State is unable to prove the allegation.
Counsel admitted that Appellant pleaded guilty and was sentenced to twenty years in the
penitentiary for the crime the State attempted to use in the enhancement paragraph. He argued
that the inaccurate enhancement paragraph in the indictment prejudiced Appellant by keeping
him from being able to negotiate a plea bargain agreement. Counsel then asked the court for a
continuance and time to brief the issue of prejudice. The court reset the hearing for one month
later.
Days before the new setting for the sentencing hearing, the State filed a notice of intent to
seek higher punishment based on the 1995 conviction for delivery of a simulated controlled
substance in cause number 7-94-641. At the sentencing hearing, the State introduced a certified
copy of the judgment and sentence in cause number 7-94-641, which is alleged in the second
enhancement paragraph of each indictment. The judgment shows that, on July 17, 1995,
Appellant was convicted of delivery of a simulated controlled substance in the 7th District Court
of Smith County, and the offense was committed on January 16, 1994. Appellant was sentenced
to twenty years of imprisonment for that offense, a felony of the first degree. Thus, there is no
variance between the enhancement paragraph as alleged in the State’s notice of intent to seek
higher punishment and the proof presented at the sentencing hearing.
The court of criminal appeals has deemed “post-guilt, pre-punishment-phase notice of the
State’s intent to enhance [a defendant’s] punishment with a prior conviction” to be acceptable.
Ex parte Parrott, 396 S.W.3d 531, 537 (Tex. Crim. App. 2013). Therefore, the fact that the
State provided its corrected notice just before sentencing is not fatal.
Furthermore, the enhancement paragraph in the indictment contained all correct
information with the exception of the name of the offense. This sort of variance has been held to
be not fatal. See Freda, 704 S.W.2d at 42-43 (holding that variance not fatal when enhancement
paragraph alleged prior conviction for bank robbery while proof showed conviction was for
conspiracy to commit bank robbery); Williams v. State, 980 S.W.2d 222, 226-27 (Tex. App.–
Houston [14th Dist.] 1998, pet. ref’d) (holding that variance not fatal when enhancement
paragraph alleged grand theft auto while proof showed conviction for taking a vehicle without
the owner’s consent); Barrett v. State, 900 S.W.2d 748, 752 (Tex. App.–Tyler 1995, pet. ref’d)
(holding that variance not fatal when enhancement paragraph alleged prior conviction for
burglary of a building while proof showed conviction for attempted burglary of a building).
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Appellant admits he was not surprised by the allegation in the enhancement paragraph in
the indictment. Appellant contends that, while knowing it was impossible for the State to prove
the enhancement paragraph as written, he determined that the best course of action was to put the
State to its proof. Then, after the State realized the enhancement paragraph was one word from
perfection and alleged a corrected enhancement paragraph by other acceptable means, Appellant
asserted he had been prejudiced by the “inability to protect himself through plea bargaining”
with prosecutors. Appellant admits to being unable to find case law as authority for his position.
We conclude that no such authority exists because Appellant was not prejudiced. There is no
evidence in the record that the variance prevented Appellant from identifying the conviction and
preparing a defense. If he had been prejudiced under these circumstances, it would have been
invited error. The law of invited error estops a party from making an appellate error of an action
he induced. See Prystash v. State, 3 S.W.3d 522, 531 (Tex. Crim. App. 1999). We overrule
Appellant’s second and third issues in cause number 007-1590-11 and Appellant’s first and
second issues in cause number 007-1591-11.
COURT COSTS
In his fourth and fifth issues in cause number 12-12-00327-CR, and his third and fourth
issues in cause number 12-12-00328-CR, Appellant contends the trial court erred in imposing
court costs. He asserts that the record does not contain a certified bill of costs. Therefore, he
argues, the evidence is insufficient to support the assessment and the resulting order of
withdrawal.
Standard of Review
A challenge to the sufficiency of the evidence supporting court costs is reviewable on
direct appeal in a criminal case. Armstrong v. State, 340 S.W.3d 759, 767 (Tex. Crim. App.
2011). We measure sufficiency by reviewing the record in the light most favorable to the award.
Mayer v. State, 309 S.W.3d 552, 557 (Tex. Crim. App. 2010).
Applicable Law
A judgment shall “adjudge the costs against the defendant, and order collection thereof.”
TEX. CODE CRIM. PROC. ANN. art. 42.16 (West 2006). If a criminal action is appealed, “an
officer of the court shall certify and sign a bill of costs stating the costs that have accrued and
send the bill of costs to the court to which the action or proceeding is . . . appealed.” Id. art.
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103.006. However, “[a] cost is not payable by the person charged with the cost until a written
bill is produced or is ready to be produced, containing the items of cost, signed by the officer
who charged the cost or the officer who is entitled to receive payment for the cost.” Id. art.
103.001.
Analysis
Two weeks after Appellant filed his briefs, the State supplemented the appellate record
with the certified bill of costs in each case. Each bill of costs had been filed in the trial court
about six weeks after the judgments were signed. The code of criminal procedure does not
require that a certified bill of costs be filed at the time the trial court signs the judgment of
conviction or before a criminal case is appealed. See id. arts. 103.001, 103.006. When a trial
court’s assessment of costs is challenged on appeal and no bill of costs is in the record, it is
appropriate to supplement the record because a bill of costs is required by Article 103.006. See
TEX. R. APP. P. 34.5(c)(1). The bill of costs for cause number 12-12-00327-CR reflects assessed
costs in the total amount of $294.00. The bill of costs for cause number 12-12-00328-CR
reflects assessed costs in the total amount of $274.00. These are the amounts assessed by the
trial court in each respective judgment. Thus, the evidence is sufficient to support the trial
court’s assessments and orders of withdrawal. See Owen v. State, 352 S.W.3d 542, 547 (Tex.
App.–Amarillo 2011, pet. ref’d) (court clerk’s bill of costs is prima facie evidence of costs owed
by defendant). We overrule Appellant’s fourth and fifth issues in cause number 12-12-00327-
CR and his third and fourth issues in cause number 12-12-00328-CR.
DISPOSITION
The trial court did not err in admitting evidence that Appellant violated parole, in finding
the enhancement paragraph alleging he had been convicted in cause number 7-94-641 to be true,
or in assessing court costs against Appellant. Accordingly, we affirm the trial court’s judgments.
SAM GRIFFITH
Justice
Opinion delivered February 12, 2014.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(DO NOT PUBLISH)
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COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
FEBRUARY 12, 2014
NO. 12-12-00327-CR
NEHEMIAH STEELE, JR.,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 7th District Court
of Smith County, Texas (Tr.Ct.No. 007-1590-11)
THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
Sam Griffith, Justice.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
FEBRUARY 12, 2014
NO. 12-12-00328-CR
NEHEMIAH STEELE, JR.,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 7th District Court
of Smith County, Texas (Tr.Ct.No. 007-1591-11)
THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
Sam Griffith, Justice.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.