Barrera, Rey ( 2015 )

PD-1508-15 PD-1508-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 11/20/2015 4:04:15 PM
Accepted 11/20/2015 4:51:09 PM
ABEL ACOSTA
No. _________________
CLERK
IN THE
COURT OF CRIMINAL APPEALS
OF TEXAS
AUSTIN, TEXAS
REY BARRERA v. THE STATE OF TEXAS
APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
On Petition for Discretionary Review from
Appeal Nos. 09-14-00410-CR
And 09-14-00411-CR
in the Court of Appeals, Ninth District, at Beaumont
Trial Court Cause Nos. 13-15829 (Counts 1 and 2) from the Criminal
District Court in Jefferson County, Texas
_____________________________________________________________
State Counsel for Offenders
Attorney for Petitioner
Sarah Cathryn Brandon
State Bar of Texas No. 24087203
P. O. Box 4005
November 20, 2015 Huntsville, Texas 77342-4005
(512) 406-5972 Office
(512) 406-5960 FAX
Sarah.Brandon@tdcj.texas.gov
PETITIONER REQUESTS ORAL ARGUMENT
IDENTITY OF PARTIES AND COUNSEL
PETITIONER:
Rey Barrera
RESPONDENT:
The State Of Texas
TRIAL COUNSEL FOR PETITIONER:
Spencer J. Cahoon
State Bar of Texas No. 24085801
Rachell Hunt1
State Bar of Texas No. 24053784
State Counsel for Offenders
P.O. Box 4005; Huntsville, Texas 77342
(936) 521-6702/(936) 521-6721 Fax
APPELLATE COUNSEL FOR PETITIONER:
In the 9th Court of Appeals and the Court of Criminal Appeals:
Kenneth Nash
Appellate Section Chief
State Bar of Texas No. 14811030
Sarah Cathryn Brandon
State Bar of Texas No. 24087203
P. O. Box 4005
Huntsville, Texas 77342-4005
(512) 406-5972 Office
(512) 406-5960 Fax
1
Ms. Hunt is no longer employed by State Counsel for Offenders. She now is employed
at the Polk County District Attorney’s Office, 101 W Church St # 106, Livingston, TX
77351; Phone: (936) 327-6868.
ii
TRIAL COUNSEL FOR RESPONDENT
Mark Mullin
State Bar of Texas No. 00788093
Special Prosecution Unit
340 State Hwy 75N, Ste A; Huntsville, Texas 77340
(936) 291-0431
APPELLATE COUNSEL FOR RESPONDENT:
Melinda Mayo Fletcher
State Bar of Texas No. 18403630
Special Prosecution Unit
P.O. Box 1744; Amarillo, Texas 79105
(806) 367-9407 Office
(866) 923-9253 Fax
TRIAL JUDGE:
Hon. John B. Stevens
iii
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ............................................................ ii
TABLE OF CONTENTS.......................................................................................... iv
INDEX OF AUTHORITIES ................................................................................... vii
STATEMENT REGARDING ORAL ARGUMENT ............................................... 1
STATEMENT OF THE CASE ................................................................................. 2
STATEMENT OF PROCEDURAL HISTORY ....................................................... 3
GROUNDS FOR REVIEW ...................................................................................... 3
For Cause Nos. 09-14-00410-CR and 09-14-00411-CR
(Counts 1 and 2):
Question 1: Did the Ninth Court err when it held that Petitioner
was properly punished under TEXAS PENAL CODE §12.42(a) and
(c), even though Petitioner proved up and pleaded true to his
prior convictions and requested he be punished under §12.42(d)
instead?
Reason for Granting Review 1: The Legislature has created
classes of offenders that correspond with a severity of
punishment, and has specified that once a defendant is proven
to be habitual, his punishment shall be either 25-99 years in
prison or life. This is an important issue of statutory
construction and legislative intent that should be, but has not
been, decided by this Court.
Question 2: Did the Ninth Court err by not reforming
Petitioner’s judgment that reflects his two fines are running
consecutively to each other, when they should run concurrently
pursuant to TEXAS PENAL CODE 3.03(a), even though there is no
explicit cumulation order stacking his fines?
iv
Reason for Granting Review 1: An issue has arisen
concerning the procedural application of Crook v. State, 248
S.W.3d 172 (Tex. Crim. app. 2008) that has not been decided,
but should be, by this Court.
Reason for Granting Review 2: The Ninth Court’s holding
creates a split between the other two appellate courts that have
decided a substantially similar issue.
For Cause No. 09-14-00411-CR (Count 2 only):
Question 3: Did the Ninth Court err by holding that the facts
used to prove that an object becomes a deadly weapon can also
be used to infer that the use then facilitated the possession?
Also, did the Ninth Court err by upholding the deadly weapon
finding for a mere possession charge by cross-applying the facts
from Petitioner’s second conviction that did legitimately
support a deadly weapon finding?
Reason for Granting Review 1: The Ninth Court’s decision to
uphold the deadly weapon finding by using the facts that
proved the object was deadly possibly misinterprets this Court’s
holdings in Ex Parte Petty, 833 S.W.2d 145 (Tex. Crim. App.
1992) and its progeny, and also presents a question that should
be, but has not been, decided by this Court.
Reason for Granting Review 2: The Ninth Court’s decision to
cross-apply the facts supporting the deadly weapon finding
from the aggravated assault conviction to support the finding
for the DWPI conviction is a similar issue that has been
presented in other appeals courts that have reached split results,
and presents a question that should be, but has not been,
decided by this Court.
ARGUMENT AND AUTHORITIES........................................................................ 7
For Cause Nos. 09-14-00410-CR and 09-14-00411-CR
(Counts 1 and 2):
v
Question 1: Did the Ninth Court err when it held that Petitioner
was properly punished under TEXAS PENAL CODE §12.42(a) and
(c), even though Petitioner proved up and pleaded true to his
prior convictions and requested he be punished under §12.42(d)
instead? ............................................................................................................ 7
Question 2: Did the Ninth Court err by not reforming
Petitioner’s judgment that reflects his two fines are running
consecutively to each other, when they should run concurrently
pursuant to TEXAS PENAL CODE 3.03(a), even though there is no
explicit cumulation order stacking his fines? ................................................ 11
For Cause No. 09-14-00411-CR (Count 2 only):
Question 3: Did the Ninth Court err by holding that the facts
used to prove that an object becomes a deadly weapon can also
be used to infer that the use then facilitated the possession?
Also, did the Ninth Court err by upholding the deadly weapon
finding for a mere possession charge by cross-applying the facts
from Petitioner’s second conviction that did legitimately
support a deadly weapon finding? ................................................................. 13
RELEVANT FACTS ................................................................................................. 5
PRAYER FOR RELIEF .......................................................................................... 20
CERTIFICATE OF SERVICE ................................................................................ 21
CERTIFICATE OF COMPLIANCE ....................................................................... 22
APPENDIX
vi
INDEX OF AUTHORITIES
Cases
Aldana v. State, 2015 Tex. App. LEXIS 4985 (Tex. App. 8th Dist. – El Paso,
2015) .................................................................................................... 12, 13
Barrera v. State of Texas, No. 09-14-00410-CR, 09-14-00411-CR, 2015
Tex. App. LEXIS 10521 (Tex. App.-- Beaumont Oct. 14, 2015, pet. filed)
........................................................................................... 3, 7, 9, 13, 14, 15
Coleman v State, 145 S.W.3d 649 (Tex. Crim. App. 2004) ......................... 16
Dolph v. State, 440 S.W.3d 898 (Tex. App. – Texarkana [6th Dist.] 2013) .. 6
Ex Parte Petty, 833 S.W.2d 145(Tex. Crim. App. 1992) ..... 15, 16, 17, 18, 19
Ex Parte Preston, 833 S.W.2d 515 (Tex. Crim. App. 1992).......................... 9
Garland v. State, 170 S.W.3d 107 (Tex. Crim. App. 2005) ........................... 9
Garner v. State, 864 S.W.2d 92 (Tex. App. – Houston [1st Dist.] 1993, pet.
ref’d) .................................................................................................... 18, 19
Habib v. State, 431 S.W.3d 737, Tex. App. LEXIS 4672 (Tex. App. 7th
Dist. – Amarillo, 2014).............................................................................. 13
Harris v. State, 1997 Tex. App. LEXIS 3299 (Tex. App. – Austin [3rd Dist.]
1997) .................................................................................................... 17, 18
Harvey v. State, 611 S.W.2d 108 (Tex. Crim. App. 1981)....................... 8, 10
Jurado v. State, 2008 Tex. App. LEXIS 6245 (Tex. App. – Austin [3rd Dist.]
2008) .......................................................................................................... 19
Marshall v. State, 185 S.W.3d 899 (Tex. Crim. App. 2006) .......................... 7
Narron v. State, 835 S.W.2d 642 (Tex. Crim. App. 1992)............... 16, 17, 19
vii
Patterson v. State, 769 S.W.2d 938 (Tex. Crim. App. 1989) ....................... 15
Plummer v. State, 410 S.W.3d 855 (Tex. Crim. App. 2013) .................. 15, 19
State v. Allen, 865 S.W.2d 472 (Tex. Crim. App. 1993) .......................... 8, 10
State v. Crook, 248 S.W.3d 172 (Tex. Crim. App. 2008) .................. 1, 11, 12
State v. Garza, 824 S.W.2d 324 (Tex. App. – San Antonio [4th Dist.] 1992,
pet. ref’d, June 3, 1992) ........................................................................... 8, 9
Tyra v. State, 897 S.W.2d 796 (Tex. Crim. App. 1995) ............................... 19
Statutes
TEX. PEN. CODE §3.03(a) .............................................................................. 11
TEX. PEN. CODE, Chapter 12 ..................................................................... 9, 10
TEX. PEN. CODE §12.42(a) ...................................................................... 5, 6, 7
TEX. PEN. CODE §12.42(c) ...................................................................... 5, 6, 7
TEX. PEN. CODE §12.42(d) ................................................................ 6, 8, 9, 10
TEX. PEN. CODE §12.44(a) ............................................................................. 8
TEX. PEN. CODE. §46.10(a) ........................................................................... 14
Rules
TEX. R. APP. PRO. 66....................................................................................... 2
viii
No. _________________
IN THE
COURT OF CRIMINAL APPEALS
OF TEXAS
AUSTIN, TEXAS
REY BARRERA, Appellant
V.
THE STATE OF TEXAS, Appellee
STATEMENT REGARDING ORAL ARGUMENT
Petitioner requests oral argument in this case. This first issue presents
an issue of first impression, in which Petitioner believes discussion would
aid this Court in deciding. Oral argument will also be beneficial in
discussing the procedural snags State v. Crook, 248 S.W.3d 172 (Tex. Crim.
App. 2008) presented in Petitioner’s case, and how the Ninth Court of
Appeals erred in addressing it. The third issue raises several questions which
would be more easily addressed through conversation.
1
TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL
APPEALS:
NOW COMES, REY BARRERA, Petitioner in this cause by and
through his attorneys of record, Sarah Cathryn Brandon and State Counsel
for Offenders, and pursuant to the provisions of TEX. R. APP. PRO. 66, et
seq., moves this Court to grant discretionary review, and in support shows
the following:
STATEMENT OF THE CASE
Petitioner was convicted by a jury of Aggravated Assault on a Public
Servant and Possession of a Deadly Weapon in a Penal Institution (DWPI),
in which he received a life sentence and 20 years, respectively, to run
concurrently. (CR 145)(Count 1);(CR 148)(Count 2).2 He also received two
$10,000 fines on each count, which Petitioner contends were intended to run
consecutively, and likely are being treated as such by the Texas Department
of Criminal Justice. (5 RR 121). There was also a deadly weapon finding on
both counts. (CR 145)(Count 1);(CR 148)(Count 2). In three issues, the
Ninth Court of Appeals in Beaumont affirmed the judgments, holding that
2
Questions One and Two pertain to both cause numbers from the appellate court: 09-14-
00410-CR (Count 1) and 09-14-009411-CR (Count 2). However, Question Three only
pertains to cause number 09-14-00410-CR (Count 2). Petitioner has noted which issues
pertain to which cause number, and presents both in one Petition for Discretionary
Review.
2
the fines were properly imposed, properly assessed, and that the deadly
weapon finding was also proper for the second count. Petitioner challenges
the holdings from each issue.
STATEMENT OF PROCEDURAL HISTORY
The Honorable John B. Stevens presided over Petitioner’s trial in the
Criminal District Court of Jefferson County, Texas. On October 14, 2015,
the Court of Appeals for the Ninth Supreme Judicial District of Texas
affirmed Petitioner’s convictions in an opinion by Justice Kreger, joined by
Chief Justice McKeithen and Justice Horton in Barrera v. State of Texas,
No. 09-14-00410-CR, 09-14-00411-CR, 2015 Tex. App. LEXIS 10521 (Tex.
App.-- Beaumont Oct. 14, 2015, pet. filed)(not designated for
publication)(Opinion attached, Exhibit A). A Motion for Rehearing was filed
on October 27, 2015, and was overruled October 29, 2015.
GROUNDS FOR REVIEW
Questions Presented and Reasons for Granting Review
For Cause Nos. 09-14-00410-CR and 09-14-00411-CR (Counts 1 and 2):
Question 1: Did the Ninth Court err when it held that Petitioner was
properly punished under TEXAS PENAL CODE §12.42(a) and (c), even though
Petitioner proved up and pleaded true to his prior convictions and requested
he be punished under §12.42(d) instead?
3
Reason for Granting Review 1: The Legislature has created classes
of offenders that correspond with a severity of punishment, and has
specified that once a defendant is proven to be habitual, his
punishment shall be either 25-99 years in prison or life. This is an
important issue of statutory construction and legislative intent that
should be, but has not been, decided by this Court.
Question 2: Did the Ninth Court err by not reforming Petitioner’s judgment
that reflects his two fines are running consecutively to each other, when they
should run concurrently pursuant to TEXAS PENAL CODE 3.03(a), even
though there is no explicit cumulation order stacking his fines?
Reason for Granting Review 1: An issue has arisen concerning the
procedural application of Crook v. State, 248 S.W.3d 172 (Tex. Crim.
app. 2008) that has not been decided, but should be, by this Court.
Reason for Granting Review 2: The Ninth Court’s holding creates a
split between the other two appellate courts that have decided a
substantially similar issue.
For Cause No. 09-14-00411-CR (Count 2 only):
Question 3: Did the Ninth Court err by holding that the facts used to prove
that an object becomes a deadly weapon can also be used to infer that the use
then facilitated the possession? Also, did the Ninth Court err by upholding
the deadly weapon finding for a mere possession charge by cross-applying
the facts from Petitioner’s second conviction that did legitimately support a
deadly weapon finding?
Reason for Granting Review 1: The Ninth Court’s decision to
uphold the deadly weapon finding by using the facts that proved the
object was deadly possibly misinterprets this Court’s holdings in Ex
Parte Petty, 833 S.W.2d 145 (Tex. Crim. App. 1992) and its progeny,
and also presents a question that should be, but has not been, decided
by this Court.
Reason for Granting Review 2: The Ninth Court’s decision to cross-
apply the facts supporting the deadly weapon finding from the
aggravated assault conviction to support the finding for the DWPI
4
conviction is a similar issue that has been presented in other appeals
courts that have reached split results, and presents a question that
should be, but has not been, decided by this Court.
RELEVANT FACTS
Petitioner was incarcerated in the Texas Department of Corrections
when he was charged with Aggravated Assault with a Deadly Weapon on a
Public Servant and Possession of a Deadly Weapon in a Penal Institution.
(CR 5)(Count 1);(CR 5)(Count 2). It was alleged that on or about September
4, 2012, Petitioner freed one of his hands from his handcuffs, and when the
victim, a correctional officer at the Stiles Unit, opened the door to
Petitioner’s cell, Petitioner stabbed the victim in the eye with a pencil. (4 RR
81-86). Petitioner was found guilty on both counts. (5 RR 114).
The State originally pled that Petitioner had several prior convictions
in order to enhance his sentence. (2 RR 5-6). However, because Petitioner
was already serving what would essentially amount to a life sentence in
prison, the State realized that the only true way to punish Petitioner was
monetarily. (2 RR 6). The State then abandoned all of the enhancements
except for one so Petitioner’s DWPI offense would be enhanced from a third
degree to a second degree felony under Texas Penal Code §12.42(a), and his
aggravated assault offense would be punishable as a repeat offender under
§12.42(c), since both sections authorize fines. (2 RR 6). Fines are not
5
authorized as part of punishment under Texas Penal Code §12.42(d), the
habitual offender provision. Dolph v. State, 440 S.W.3d 898, 908 (Tex. App.
– Texarkana [6th Dist.] 2013).
Petitioner himself proffered the convictions the State had abandoned,
which the State ultimately joined in offering. (5 RR 79). The State’s
intention was to reintroduce the prior convictions anyway so the jury could
consider them in assessing punishment in the range provided for in
§12.42(a) and (c). (2 RR 6). Petitioner then asked that he be sentenced under
§12.42(d) because not only had the State proved his prior convictions up by
introducing them for sentencing purposes, but because the defense also
proved them up. (5 RR 81).
The trial court noted that the issue was “novel, unique, and a first
impression,” but decided that because the State has prosecutorial discretion
when it decides which offenses to charge, it also could choose not to pursue
a habitual offender finding. (4 RR 84-85). The trial court also determined
that the State could prove up prior convictions for different purposes. (4 RR
85). The trial court then ordered the two prison terms to run concurrently
and, it appears, the two fines to run consecutively. (5 RR 121).
Petitioner then appealed to the Ninth Court of Appeals in Beaumont.
The case was submitted the same day oral argument was heard on February
6
4, 2015, and the decision was handed down in an unpublished opinion on
October 14, 2015. Barrera, 2015 Tex. App. LEXIS 10521. The Ninth Court
held that Petitioner was properly punished under Texas Penal Code
§12.42(a) and (c) because there was a “…a pleading, a plea, and proof of a
single prior felony conviction” and noted that “‘[a]mong the available
strategies for the state is an election not to pursue enhancements.’” Id. at *6
(citing Marshall v. State, 185 S.W.3d 899, 903 (Tex. Crim. App. 2006)). The
Ninth Court also held that because there was no cumulation order expressly
stacking the fines on the face of Petitioner’s judgments, there was no error
that could be reformed. Id. at *8. In the third issue, the Ninth Court held that
because the “evidence did not show mere possession of a deadly weapon,”
the deadly weapon finding was proper. Id. at *12.
ARGUMENT
For Cause Nos. 09-14-00410-CR and 09-14-00411-CR (Counts 1 and 2):
Question 1: Did the Ninth Court err when it held that Petitioner was
properly punished under TEXAS PENAL CODE §12.42(a) and (c), even though
Petitioner proved up and pleaded true to his prior convictions and requested
he be punished under §12.42(d) instead?
Reason for Granting Review 1: The Legislature has created classes
of offenders that correspond with a severity of punishment, and has
specified that once a defendant is proven to be habitual, his
punishment shall be either 25-99 years in prison or life. This is an
7
important issue of statutory construction and legislative intent that
should be, but has not been, decided by this Court.
Texas Penal Code §12.42(d) states:
If 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 he shall be punished by imprisonment
in the institutional division of the Texas
Department of Criminal Justice for life, or for any
term of not more than 99 years or less than 25
years. (emphasis added).
This Court has already determined that the language of Texas Penal
Code §12.42(d) is “clear, instructive, and mandatory.” State v. Allen, 865
S.W.2d 472, 474 (Tex. Crim. App. 1993)(holding that the trial court could
not override the mandatory provision of §12.42(d) in favor of a discretionary
sentencing provision available in §12.44(a)). Back when §12.42(d) only
authorized a life sentence, rather than the current punishment range, this
Court noted that once prior convictions are proven in accordance with
§12.42(d), a trial court could dismiss the jury right then and there and assess
the life punishment. Harvey v. State, 611 S.W.2d 108, 111 (Tex. Crim. App.
1981); see also State v. Garza, 824 S.W.2d 324 (Tex. App. – San Antonio
[4th Dist.] 1992, pet. ref’d, June 3, 1992). The plain language of §12.42(d)
8
indicates that any authority of the prosecution, judge, and jury are all
confined to its mandatory language.
In the case at hand, the issue is whether §12.42(d) is still mandatory
when the defense asks for the instruction, rather than the State. That is, can a
defendant be sentenced under §12.42(d) by either asking for the instruction
after the State proves up the prior convictions, or by proving them up
himself? In its decision, the Ninth Court of Appeals noted that “‘[T]the State
may, with the permission of the trial court, ‘dismiss, waive or abandon a
portion of the indictment.’” Barrera, 2015 Tex. App. LEXIS 10521, at *6
(citing 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)). The Ninth Court also pointed out that the State can choose not to
pursue enhancements as part of its strategy in trying the case. Id.
The State has always had the right to plead or abandon enhancements
and exercise discretion in choosing which charges to bring and what
evidence to introduce. However §12.42(d) is the legislator’s attempt to
create classes of offenders that it has determined should be punished in
specific ways, and therefore curbs discretion to the sentencing authority
throughout Chapter 12 of the Texas Penal Code. See Garza, 824 S.W.2d at
327 (“We note that this section refers to particular and specific offenses
9
which the legislature has deemed inappropriate for probation.”). This issue
therefore begs the question: how far does prosecutorial discretion extend
into sentencing when the legislature has mandated a range of punishment for
certain offenders?
Section 12.42(d)’s language only requires that once “it is shown” the
defendant has the requisite prior convictions, he shall be punished under
§12.42(d). See Allen, 865 S.W.2d at 473 (“…this court determined that the
language of Section 12.42(d) expresses the legislative intent that upon proof
of certain criteria, the habitual offender statute dictates its mandatory
operation”)(referencing Harvey v. State, 611 S.W.2d 108 (Tex. Crim. App.
1981). Therefore, the plain language of §12.42(d) appears to open it up to
either the State or the defendant to prove prior enhancements to obtain the
appropriate sentencing range in which to instruct the jury, and would better
effectuate the legislator’s intent. See Allen, 865 S.W.2d 474 (holding that
“[o]nce the two prior felony convictions are found to be true, the mandatory
operation of §12.42(d) restricts the discretion of the sentencing authority.”).
Because Chapter 12 of the Texas Penal Code is such a significant
component of the criminal trial, Petitioner asks this Court to grant review of
this issue of first impression because it regards an important question of
10
statutory construction, legislative intent, and the role of prosecutorial
discretion in sentencing.
Question 2: Did the Ninth Court err by not reforming Petitioner’s judgment
that reflects his two fines are running consecutively to each other, when they
should run concurrently pursuant to TEXAS PENAL CODE 3.03(a), even
though there is no explicit cumulation order stacking his fines?
In his appeal, Petitioner contended that no fine at all was authorized
by law because he was proven to be a habitual offender. However, if the fine
was authorized by law, Petitioner contends that the fine in Count 1 should
run concurrently to the fine in Count 2, rather than consecutively, since
Petitioner’s two convictions arose out of the same criminal episode. TEX.
PEN. CODE §3.03(a).
Reason for Granting Review 1: An issue has arisen concerning the
procedural application of Crook v. State, 248 S.W.3d 172 (Tex. Crim.
App. 2008) that has not been decided, but should be, by this Court.
Reason for Granting Review 2: The Ninth Court’s holding creates a
split between the other two appellate courts that have decided a
substantially similar issue.
In a plurality decision by this Court, it was held that “…the concurrent
fines provision of Section 3.03(a) applies to the entire sentence, including
fines.” State v. Crook, 248 S.W.3d 172, 177 (Tex. Crim. App. 2008).
Pursuant to Crook, when a defendant is assessed two fines to run
concurrently, a dollar paid on one will therefore be payment in satisfaction
11
of both. Petitioner’s case at hand presents a twist on the Crook scenario
because there was no express cumulation order included in the judgments
outright stating that the two $10,000 fines would run consecutively, yet there
were two separate orders to withdraw funds incorporated into each
judgment. (CR 145)(Count 1);(CR 148-49(Count 2) This is a problem
because very often a jury will have the authority to impose fines on multiple
counts, yet the Texas Department of Criminal Justice (TDCJ) is still likely to
treat them as running consecutively because there are two separate orders.
In Petitioner’s case, the record reflects that the trial court intended for
the two fines to run concurrently. (5 RR 121). That the two judgments each
expressly incorporate separate orders to withdraw funds (and only one has
court costs) reflects this intention, as well. (CR 145)(Count 1);(CR 148-
49)(Count 2). However, whether the trial court intended for the fines to run
consecutively or whether the judgment will cause TDCJ to treat them as
consecutively may not matter, as the solution is the same.
Similar situations have been recently addressed by at least two other
courts of appeals, an indicator that there is misunderstanding in the trial
courts as to how the principle from Crook can be properly applied on two
separate judgments. See Aldana v. State, 2015 Tex. App. LEXIS 4985 (Tex.
App. 8th Dist. – El Paso, 2015)(not designated for publication) and Habib v.
12
State, 431 S.W.3d 737, Tex. App. LEXIS 4672 (Tex. App. 7th Dist. –
Amarillo, 2014).
Similar to Petitioner, in both the Aldana and Habib cases, there
appeared to be no express order cumulating the two fines. The appellate
courts in the other two cases exercised their authority to delete the fine from
one of the judgments to ensure the appellant would only have to pay one fine
in satisfaction of both. The Ninth Court declined to do so, however. Barrera,
2015 Tex. App. LEXIS 10521, at *8.
Petitioner presented the Aldana and Habib cases to the Ninth Court of
Appeals in his Motion for Rehearing, which was overruled on October 29,
2015. The Ninth Court’s decision has now created a split in how this
scenario should be treated. This issue is important to review because it is
highly likely a trial court might not think about the implications of including
two separate orders to withdraw funds when the fines should run
concurrently, and the appellate courts are now split on how to address this
issue, resulting in an uneven application of the law.
For 09-14-00411-CR (Count 2 only):
Question 3: Did the Ninth Court err by holding that the facts used to prove
that an object becomes a deadly weapon can also be used to infer that the use
then facilitated the possession? Also, did the Ninth Court err by upholding
the deadly weapon finding for a mere possession charge by cross-applying
13
the facts from Petitioner’s second conviction that did legitimately support a
deadly weapon finding?
Petitioner was charged with DWPI, which is committed if:
…while confined in a penal institution, [one]
intentionally, knowingly, or recklessly:
(1) carries on or about his person a deadly
weapon; or
(2) possesses or conceals a deadly weapon
in the penal institution.
TEX. PEN. CODE. 46.10(a). Petitioner was charged with subsection (2) of this
offense, in that he “possesse[d]….a deadly weapon in the penal institution.”
Id. The trial court entered an affirmative finding of a deadly weapon on both
of Petitioner’s judgments. (CR 145)(Count 1);(CR 148)(Count 2). Petitioner
concedes that the finding was appropriate for the aggravated assault count;
however, because the Deadly Weapon in Penal Institution (DWPI)
conviction is a mere possession offense, Petitioner argued on appeal that the
deadly weapon finding should not stand. Barrera, 2015 Tex. App. LEXIS
10521, at *9.
The Ninth Court of Appeals held that Petitioner’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[,]” and that the “use of
the pencil…furthered the commission of the aggravated assault…a felony
14
offense facilitated by the possession, and distinct from the offense of
possession itself.” Barrera, Tex. App. LEXIS 10521, at *11-12.
Reason for Granting Review 1: The Ninth Court’s decision to
uphold the deadly weapon finding by using the facts that proved the
object was deadly possibly misinterprets this Court’s holdings in Ex
Parte Petty, 833 S.W.2d 145 (Tex. Crim. App. 1992) and its progeny,
and also presents a question that should be, but has not been, decided
by this Court.
The seminal case on deadly weapon findings issues is Patterson v.
State, 769 S.W.2d 938 (Tex. Crim. App. 1989), and since that decision, the
interpretation of a deadly weapon finding has generally expanded. Plummer
v. State, 410 S.W.3d 855, 859 (Tex. Crim. App. 2013) (discussing
Patterson). However, this Court has consistently “generally declined to
uphold deadly-weapon findings when the weapon was present but did not
facilitate a separate felony.” Id. This principle originated in Ex Parte Petty,
where the defendant was charged with unlawful possession of a handgun,
and the trial court entered an affirmative finding that the defendant used or
exhibited a deadly weapon during the commission of the offense. Petty, 833
S.W.2d 145. This Court correctly held that the trial court erred in entering
the affirmative finding, holding that “the weapon was not ‘used’ in
furtherance of any collateral felony.” Id. This Court reasoned that the
interpretation of “use” can only include “simple possession if such
possession facilitates the associated felony.” Id. (emphasis added). For
15
example, this Court has held that simple possession constituted “use” when a
gun was possessed in order to protect a drug operation. Coleman v State, 145
S.W.3d 649, 352 (Tex. Crim. App. 2004) (upholding the deadly weapon
finding on a possession with intent to deliver cocaine offense).
Similarly, in Narron v. State, the defendant was charged with
possession of a prohibited weapon (short barrel firearm), and the trial court
entered an affirmative weapon finding. Narron v. State, 835 S.W.2d 642,
643 (Tex. Crim. App. 1992). This Court deleted the finding, holding that the
trial court erred because “there was no associated felony facilitated by
appellant’s possession of the short barrel firearm…” Id. at 644. In short, the
underlying offense has to have elements requiring more than “mere
possession” itself. Petty, 833 S.W.2d 145.
In Petty and its progeny, the cases dealt with an inherently deadly
weapon, usually a gun. In Petitioner’s case, however, the State had to prove
up that the pencil was in fact a deadly weapon, because a pencil is an object
not normally used as a weapon. The Ninth Court reasoned that because a
pencil is normally a “harmless writing implement,” it was Petitioner’s
specific “use” of the pencil that satisfied the requirement that it also
“facilitated” the DWPI offense. Therefore, the question is whether the
analysis is different once the State has to prove that an object was a deadly
16
weapon. It is very likely more scenarios will arise that involve what is
otherwise a harmless object being utilized as a deadly weapon. This Court
should settle whether the principal from Petty survives in this context.
Reason for Granting Review 2: The Ninth Court’s decision to cross-
apply the facts supporting the deadly weapon finding from the
aggravated assault conviction to support the finding for the DWPI
conviction is a similar issue that has been presented in other appeals
courts that have reached split results, and presents a question that
should be, but has not been, decided by this Court.
The Ninth Court’s holding presents another question: whether the
facts that support one deadly weapon finding that is legitimately attached to
one conviction can cross-over to a second offense to support the finding,
when that second offense could not support the finding on its own. Petitioner
contends that the affirmative finding is intended to be coupled with an
accompanying felony, i.e., the specific felony that the State alleges a deadly
weapon was used or exhibited to facilitate, since that seems to best interpret
the precedent of this Court. See Narron, 835 S.W.2d 644 (“...‘use’ of a
deadly weapon …include[s] simple possession if such possession facilitates
the associated felony”) (original emphasis included). This theory is
supported by an unpublished opinion out of the Third Court of Appeals. See
Harris v. State, 1997 Tex. App. LEXIS 3299 (Tex. App. – Austin [3rd Dist.]
1997).
17
In Harris, the defendant was convicted for possession of a prohibited
weapon and unlawful possession of a firearm by a felon, with affirmative
findings of deadly weapon on each count. Id. at *1. The State argued that
because the defendant “displayed and cocked a firearm in view of a victim,
thus committing an aggravated assault by threat[,]” the deadly weapon
findings were justified. Id. at *2. The Third Court reasoned, however, that
because the State did not actually charge the defendant with “aggravated
assault or any other felony offense in which he “used” the weapon,” the
judgments could not support a deadly weapon finding. Id. Even though
Petitioner in the case at hand was actually charged with aggravated assault,
by extension of the Third Court of Appeals’ reasoning, only this conviction
should support the deadly weapon finding. Petitioner contends that the
words “associated felony” found in Petty and its progeny are interpreted to
only refer to the actual underlying felony that the deadly weapon finding is
attached to, rather than cross-applying the facts from one, separate offense to
a mere possession offense to support the finding.
However, there is possible support for the Ninth Court of Appeals’
theory from a case out of the First Court of Appeals in Houston in Garner v.
State, 864 S.W.2d 92 (Tex. App. – Houston [1st Dist.] 1993, pet. ref’d). In
Garner, the defendant was only charged with possession of a firearm by an
18
ex-felon, and an affirmative finding of a deadly weapon was included on the
judgment. Id. at 95. The First Court of Appeals affirmed, holding that
because the victim testified “that appellant fired the handgun toward [the
victim] and others was sufficient evidence that appellant committed an
associated collateral felony facilitated by his possession of the handgun,” the
deadly weapon finding was not error. Id. at 103; see also Jurado v. State,
2008 Tex. App. LEXIS 6245, at *6-7 (Tex. App. – Austin [3rd Dist.]
2008)(relying on Garner to hold there was more than mere evidence of
possession when the gun was used to shoot the victim, even though
defendant was found not guilty on that offense).
This theory is also potentially supported by the concurring opinion
from Tyra v. State from this Court, where the Garner case was cited as a
possible distinction from the Petty and Narron cases where the “offense was
complete with the possession.” Tyra v. State, 897 S.W.2d 796, 801 (Tex.
Crim. App. 1995). These cases indicate that the Ninth Court’s theory is
gaining traction, but Petitioner contends that they depart from this Court’s
precedent in Petty, Narron, Plummer, etc. Further, because there is a split
about how the issue may be treated in the different appellate courts, and a
concurring opinion from this Court has spoken on this, Petitioner urges this
19
Court to consider these new yet repeatable circumstances of this deadly
weapon finding issue.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Petitioner respectfully
prays that this Court grant discretionary review and, and after full briefing
and argument on the merits, issue an opinion reversing the Court of Appeals’
judgment.
Respectfully submitted,
/s/ Sarah Cathryn Brandon
STATE COUNSEL FOR
OFFENDERS
Sarah Cathryn Brandon
SBN: 24087203
P. O. Box 4005
Huntsville, TX 77342-4005
(936) 437-5291 Office
(936) 437-5293 Fax
Sarah.Brandon@tdcj.texas.gov
20
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of this Appellant’s
Petition for Discretionary Review was served upon opposing counsel noted
below, by one or more of the following: certified mail (return receipt
requested), facsimile transfer, or electronic mail (e-mail), this 23rd day of
November, 2015.
Melinda Fletcher
Special Prosecution Unit
P. O. Box 1744
Amarillo, TX 79501
Facsimile no. 866-923-9253
E-mail address: mfletcher@sputexas.org
Lisa C. McMinn
State Prosecuting Attorney
PO Box 13046
Austin, TX 78711-3046
Facsimile no. 512-463-5724
/s/ Sarah Cathryn Brandon
Sarah Cathryn Brandon
Attorney for Petitioner
21
CERTIFICATE OF COMPLIANCE
This document complies with the type-volume limitation of Texas
Rule of Appellate Procedure 9.4(i) because this brief contains 3,517 words.
/s/ Sarah Cathryn Brandon
Sarah Cathryn Brandon
Attorney for Petitioner
22
NO. _______________
IN THE COURT OF CRIMINAL APPEALS OF TEXAS
REY BARRERA
v.
THE STATE OF TEXAS
On Petition for Discretionary Review from
Appeal No. 09-14-00410-CR and 09-14-00411-CR
in the Ninth Supreme Judicial District of Texas
at Beaumont
APPENDIX
Ninth Court of Appeals Opinion and Judgment .......................................... Exhibit A
Affidavit of Indigency.................................................................................. Exhibit B
Ninth Court of Appeals Opinion and Judgment .......................................... Exhibit A
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
IN THE NINTH COURT OF APPEALS
_____________________ _____
09-14-00411-CR
__________________________
Rey Barrera
v.
The State of Texas
_________________________________________________________________
On Appeal from the
Criminal District Court of Jefferson County, Texas
Trial Cause No. 13-15829 (Count 2)
_________________________________________________________________
JUDGMENT
THE NINTH COURT OF APPEALS, having considered this cause on
appeal, concludes that the judgment of the trial court should be affirmed. IT
IS THEREFORE ORDERED, in accordance with the Court’s opinion, that
the judgment of the trial court is affirmed.
Opinion of the Court delivered by Justice Charles Kreger
October 14, 2015
AFFIRMED
**********
Copies of this judgment and the Court’s opinion are certified for
observance.
Carol Anne Harley
Clerk of the Court
IN THE NINTH COURT OF APPEALS
_____________________ _____
09-14-00410-CR
__________________________
Rey Barrera
v.
The State of Texas
_________________________________________________________________
On Appeal from the
Criminal District Court of Jefferson County, Texas
Trial Cause No. 13-15829 (Count 1)
_________________________________________________________________
JUDGMENT
THE NINTH COURT OF APPEALS, having considered this cause on
appeal, concludes that the judgment of the trial court should be affirmed. IT
IS THEREFORE ORDERED, in accordance with the Court’s opinion, that
the judgment of the trial court is affirmed.
Opinion of the Court delivered by Justice Charles Kreger
October 14, 2015
AFFIRMED
**********
Copies of this judgment and the Court’s opinion are certified for
observance.
Carol Anne Harley
Clerk of the Court
Affidavit of Indigency.................................................................................. Exhibit B
CAUSE NO. 13-15829
THE STATE OF TEXAS § IN THE DISTRICT COURT OF
v § JEFFERSON COUNTY, TEXAS
REY BARRERA § CRIMINAL JUDICIAL DISTRICT
DECLARATION OF INABILITY TO PAY COST
Now respectfully comes Rey Barrera, TDCJ#00815516, pursuant to Texas Rule of Appellate Procedure
20.2 and declares that I am unable to pay the court costs in this action and requests leave of the Court to proceed in
forma pauperis in this accompanying criminal action and would show the Court the following:
(1) I am presently incarcerated in the Polunsky Unit of the Texas Department of Criminal Justice-
Institutional Division where I am not permitted to handle money.
(2) I have no source of employment nor government-entitlement income.
(3) I am not married/1-tlHt ifltlrr i ~ however, I have no spousal income available to me.
(4) I currently have $ 1Jr credited to me in the Inmate Trust Fund, or any other checking or
savings account.
(5) I neither own nor have an interest in any realty, stocks, bonds, or bank account and I receive no
interest or dividend income from any source.
(6) I have no other assets.
(7) I have n 0 dependents.
(8) I have total debts of approximately $ ,_.:01 5>'r· i! L1
(9) My monthly expenses are approximately $ - 0­
(1 0) I have no ability to obtain a loan for court costs.
(11) My attorney is providing free legal services without a contingent fee .
(I2)My attorney has not agreed to pay or advance court costs.
I, Rey Barrera, TDCJ #00815516, being presently incarcerated in the Texas Department of Criminal
Justice-Institutional Division, verifY and declare under penalty of perjury that the foregoing statements are true and
correct. Executed on this the j0 ~ day of -~ 1f 20 Ii .
``.{Qa,zzi/
)(ReyB&era, rtiui/IIU11{
TDCJ#00815516