John Niess v. State ( 2012 )


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  •       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
    NO. 03-11-00213-CR
    NO. 03-11-00214-CR
    NO. 03-11-00215-CR
    NO. 03-11-00216-CR
    NO. 03-11-00217-CR
    John Niess, Appellant
    v.
    The State of Texas, Appellee
    FROM THE DISTRICT COURT OF TRAVIS COUNTY, 390TH JUDICIAL DISTRICT
    NOS. D-1-DC-10-202183, D-1-DC-10-202185, D-1-DC-10-202186, D-1-DC-10-500216,
    D-1-DC-10-900336, HONORABLE JULIE H. KOCUREK, JUDGE PRESIDING
    MEMORANDUM OPINION
    Appellant John Niess was indicted in five causes for thirteen counts of aggravated
    robbery with a deadly weapon. See Tex. Penal Code Ann. § 29.03 (West 2011). The five causes
    were consolidated for a single jury trial. At trial, the trial court granted defendant’s motion for
    instructed verdict as to one of the counts, and the jury found Niess guilty of the remaining twelve
    counts. After Niess pleaded true to enhancement allegations, the jury assessed punishment at thirty
    years’ imprisonment for each count, with the sentences to be served concurrently. On appeal, Niess
    argues that the trial court (1) erred in admitting evidence of an impermissibly suggestive pretrial
    photo identification procedure, (2) erred in admitting in-court identification testimony, tainted by
    the impermissibly suggestive pretrial photo identification procedure, and (3) abused its discretion
    in refusing to grant a mistrial due to the introduction of highly prejudicial testimony concerning
    Niess’s criminal history. Further, Niess argues one of the judgments of conviction fails to reflect
    that he was acquitted of one of the counts for which he was charged, and he requests that we modify
    this judgment to correct the error.1 We modify the trial court’s judgment of conviction as requested,
    and affirm that judgment as modified; we also affirm the remaining judgments of conviction.
    BACKGROUND
    Early on the morning of April 17, 2010, Niess, his brother Frank Niess, and Frank’s
    then girlfriend, Erin Moody, went to the home of Steve Rodriguez and Servando Rodriguez.2 While
    there, Frank informed Erin that the four men were leaving in her pickup truck to “hit some
    licks.”3 Sometime between 2:30 and 3:00 a.m., the four men left in Erin’s truck, a red Ford F-150
    with tinted windows and a black bar across the back window. Erin, along with Steve’s girlfriend,
    stayed at the house.
    Between 4:00 and 6:00 a.m. that same morning, law enforcement authorities began
    receiving numerous reports of robberies involving a red pickup truck in the Austin area. First, at
    4:12 a.m., the Austin Police Department (APD) responded to a call from Naomi Garcia and her
    cousin, Leigh Carillo. Naomi and Leigh had left a local nightclub around 3:00 a.m. and driven to
    1
    Though Niess raises these arguments in thirteen separate points of error, for convenience
    we have grouped the points of error into four legal issues on appeal.
    2
    Unless otherwise noted, the facts recited herein are taken from the testimony and exhibits
    admitted at trial.
    3
    Because many of the people involved in the events leading to Niess’s arrest have the
    same last name, to avoid confusion we will refer to everyone involved by their first name, with the
    exception of appellant, whom we will refer to as “Niess.”
    2
    the apartment complex of Naomi’s friend, Ramiro Garcia. For about an hour, Naomi and Leigh,
    along with Ramiro, remained in the parking lot of the apartment complex. Leigh was inside the car
    listening to music and Naomi and Ramiro were outside the car socializing when, according to
    Naomi, a man wielding a shotgun approached her and Ramiro. The man then put the gun to Naomi’s
    rib, hit her twice, and ordered her and Ramiro to the ground. Once Ramiro and Naomi were on the
    ground, a second man opened the car door with Leigh still inside. At knife point, he took Leigh’s
    purse and necklace before pulling her out of the car and dragging her to Naomi and Ramiro. The
    assailants proceeded to tear Naomi’s stereo from the car before leaving in a vehicle that Leigh later
    described at trial as a red SUV with tinted windows. Leigh also testified that there were four
    assailants in total, and she described the man with the shotgun as heavyset and tall, wearing a red
    shirt, black shorts, and a red bandana on his face. Once Naomi and Leigh were certain that the men
    were gone, Naomi and Leigh left the complex and called 9-1-1.
    That same early morning, three teenage boys, Enemencio Alaniz, Tyshun Guzman,
    and Nick Barrientez, were walking home from a fast food restaurant when a truck pulled up beside
    them. At trial, the boys described the truck as a red, four-door Ford with tinted windows and a bar
    on the back. According to the boys, a heavyset man with short-cropped hair and a red shirt was sitting
    in the passenger seat. The man asked the boys if they had any “good,” which the boys understood
    to mean marijuana. When the boys answered that they did not, the same man told one of the
    teenagers, Enemencio, to “come here.” When Enemencio refused, the man pointed a shotgun at
    him through the window, cocked it, and threatened to kill him if he did not comply. The man then
    ordered two men in the back seat to get out of the truck. The two men complied and, as they exited
    3
    the truck, inadvertently dropped some papers with Leigh Carillo’s name on them, which were later
    recovered by police. The men proceeded to rob the three teenage boys. The boys escaped by telling
    the men that they saw police coming and, when the assailants looked in that direction, ran home.
    The boys called the police at 4:57 a.m.
    That same morning, Santos Valle and his cousin Miguel Vasquez were standing
    outside their house talking with their neighbor, Joe Lopez. Joe’s friend June Aguilar was in her
    car outside the house. Sometime between 4:00 and 4:30 a.m., a red Ford pickup truck, with tinted
    windows and black bar on the back window, drove up and stopped near where the friends were
    congregating. Three of four men in the truck got out, and the man who got out of the passenger
    seat was holding a shotgun. Santos managed to escape while the assailants were distracted and ran
    to his house and called 9-1-1. Meanwhile, the assailants forced Joe to the ground and took his
    jewelry and cell phone. The man with the shotgun forced June out of her car but did not take her
    belongings. Another assailant patted down Miguel, who had just returned from his job as a security
    guard, and took several of his belongings, including his handcuffs, pepper spray, radio, wallet, and
    badge. The assailants then returned to the truck and drove away. The police were called at 4:41 a.m.
    At 5:40 a.m. Travis County Deputy Sheriff Steven Coleman was dispatched to an
    Austin nightclub. Michael Bishop had been sitting in his car outside the club waiting for his girlfriend
    to get off work, when a man opened the car’s driver door and shoved a shotgun in Bishop’s face.
    The man, who was not wearing anything to cover his face, took Michael’s phone, wallet, and some
    cash from his pocket. A second man wearing a bandana over his face then entered Michael’s car
    through the passenger door and looked for items to take. According to Michael, he noticed a red
    4
    four-door pickup truck pulled up behind his car with two other men inside, one of whom was
    shouting for the assailants to hurry. The assailants left in the truck, taking Michael’s wallet, keys,
    cell phone, and lighter. Once they were gone, Michael went inside the club and asked an employee
    to call 9-1-1. Once Deputy Coleman arrived at the scene, he requested that an emergency “ping”
    be placed on Michael’s stolen phone.4
    Finally, at 5:58 a.m. APD received a call reporting another robbery. Eduardo Arpero
    and his cousin, Raando Arpero, had arrived at their jobs at Ginny’s Printing shortly before 6:00 a.m.
    According to Eduardo and Raando, they had just parked and exited their truck when a four-door,
    Ford pickup truck pulled up behind them. Four men, all wearing masks or bandanas on their faces,
    were inside the truck. One of the men, who was wearing a red shirt, jumped out of the truck with
    a shotgun and held it to Raando’s head, while telling Raando and Eduardo to get to the ground.
    Meanwhile two other men opened Eduardo’s truck, taking his stereo, keys, and phone. One of the
    assailants then handcuffed Raando and took his wallet. The handcuffs were later identified by Miguel
    as looking like the handcuffs that had been taken from him earlier that night. Police also located
    Michael’s wallet near the print shop.
    Niess, Frank, Steve, and Servando did not return to the Rodriguez house that morning
    until after 6:00 a.m. Having located the house through the emergency “ping” on Michael’s phone,
    the police arrived at the house shortly after the group of men returned. The police found Erin’s red
    truck parked outside the house and noticed that the hood was still warm. A SWAT team surrounded
    4
    At trial, Deputy Coleman explained that a request for a “ping” is made to the cell phone
    provider and that this “ping” enables authorities, through the use of GPS technology, to determine
    the location of a cell phone or its direction of travel.
    5
    the residence, and the group of four men and two women, including Niess, soon came out of the
    house. Police subsequently found a red shirt and bandana outside of the house. Police also found
    items belonging to the victims inside the house and truck, including Miguel’s pepper spray, duty
    belt, bulletproof vest, and radio. Niess was arrested and charged with thirteen counts of aggravated
    robbery in five separate causes.
    DISCUSSION
    Pretrial Identification
    Prior to trial, Niess filed a motion to suppress evidence of a pretrial photo identification
    procedure prepared and conducted by the APD.5 The trial court denied the motion, and at trial six
    witnesses testified that they had picked Niess out of the photo array. Similarly, five of the victims
    identified Niess in the courtroom as one of the assailants, after previously identifying him in the
    photo array. In his first issue, Niess contends that the trial court abused its discretion by admitting
    evidence of an impermissibly suggestive pretrial photographic identification procedure. Similarly,
    in his second issue, Niess argues that the in-court identifications of him by five witnesses were
    “tainted by the impermissibly suggestive photographic spread which gave rise to a substantial
    likelihood of misidentification at trial.”
    5
    A pretrial photographic identification or “photo array” or “photo spread” occurs when
    police show a witness photographs of various persons and ask the witness if anyone in the display
    was the person who committed the offense and, if so, to select the perpetrator’s photograph. See,
    e.g., Coleman v. State, 
    760 S.W.2d 356
    , 359 (Tex. App.—Houston [1st Dist.] 1988, pet. ref’d). A
    lineup is another type of pretrial identification procedure that occurs when police allow a witness to
    consider a group of people and ask the witness to identify whether the perpetrator is in the group.
    See, e.g., United States v. Wade, 
    388 U.S. 218
    (1967).
    6
    On appeal, we review a trial court’s ruling on a motion to suppress evidence based on
    a claim that an impermissibly suggestive pretrial identification procedure violated the defendant’s
    due process rights under the standard of review set forth in Guzman v. State, 
    955 S.W.2d 85
    (Tex.
    Crim App. 1997). See Loserth v. State, 
    963 S.W.2d 770
    , 771 (Tex. Crim. App. 1998). Under this
    standard, we afford almost total deference to a trial court’s determination of facts, especially
    when the trial court’s findings are based on an evaluation of credibility and demeanor. 
    Guzman, 955 S.W.2d at 89
    ; Moore v. State, 
    140 S.W.3d 720
    , 730 (Tex. App.—Austin 2004, pet. ref’d). We
    afford the same deference to a trial court’s determination of mixed questions of law and fact if the
    resolution of those ultimate questions turns on an examination of credibility and demeanor of the
    witness. 
    Guzman, 955 S.W.2d at 89
    . However, a trial court’s determination of mixed questions of
    law and fact that do not turn on credibility and demeanor are reviewed de novo. 
    Id. A pretrial
    identification may not be so suggestive and conducive to mistaken
    identification that subsequent use of that pretrial identification at trial would deny the accused due
    process of law. Barley v. State, 
    906 S.W.2d 27
    , 32-33 (Tex. Crim. App. 1995) (citing Stovall v.
    Denno, 
    388 U.S. 293
    (1967)). Similarly, an in-court identification is inadmissible when it has been
    tainted by an impermissibly suggestive pretrial photographic identification. Luna v. State, 
    268 S.W.3d 594
    , 605 (Tex. Crim. App. 2008). The test for determining if a pretrial identification
    procedure is impermissibly suggestive is whether, considering the totality of the circumstances, “the
    photographic identification procedure was so impermissibly suggestive as to give rise to a very
    substantial likelihood of irreparable misidentification.” 
    Id. This is
    a mixed question of law and fact
    that does not turn on an evaluation of credibility and demeanor. 
    Loserth, 963 S.W.2d at 773
    .
    Accordingly, we apply a de novo standard of review. 
    Id. 7 To
    determine the admissibility of both pretrial identification and potentially tainted
    in-court identification we employ a two-step analysis: (1) whether the pretrial identification procedure
    was impermissibly suggestive; and, if so, (2) whether that suggestive procedure gave rise to a very
    substantial likelihood of irreparable misidentification. 
    Barley, 906 S.W.2d at 33
    . The defendant
    must prove both elements by clear and convincing evidence. 
    Id. at 33–34.
    Only if we determine that
    the pretrial identification procedure is impermissibly suggestive do we examine whether it tainted
    the in-court identification. 
    Id. at 34.
    With regard to the first prong, it is well established that suggestiveness may arise
    from the manner in which the pretrial identification procedure is conducted or from the content of
    the resulting photo array itself. 
    Id. at 33.
    Suggestiveness may arise from the manner in which the
    pre-trial identification is conducted if, for example, police point out the suspect or suggest that a
    suspect is included in the photo array. 
    Id. Whereas, the
    resulting photo array itself is considered
    unduly suggestive if, for example, other participants are greatly dissimilar in appearance from the
    suspect. Withers v. State, 
    902 S.W.2d 122
    , 125 (Tex. App.—Houston [1st Dist.] 1995, pet. ref’d)
    (citing United States v. Wade, 
    388 U.S. 218
    , 232-33 (1967)). However, “neither due process nor
    common sense requires” that the other pictures used in a photographic array exactly match
    the defendant’s characteristics. Turner v. State, 
    600 S.W.2d 927
    , 933 (Tex. Crim. App. 1980).
    Rather, the array must show individuals who fit a rough description of the suspect. Wilson v. State,
    
    15 S.W.3d 544
    , 553 (Tex. App.—Dallas 1999, pet. ref’d). In this case, Niess claims that the photo
    array was suggestive in both content and the manner in which it was conducted.
    We first examine whether the manner in which pretrial identification procedure was
    conducted in this case was impermissibly suggestive. Niess stresses that the police failed to follow
    8
    U.S. Department of Justice guidelines in conducting the pretrial photographic identification.6
    Specifically, Niess argues that the conduct of the pretrial identification procedure was impermissibly
    suggestive because, in compiling the array, the police improperly sought other images that matched
    Niess rather than the descriptions given by the victims. Niess also complains that the identification
    was not conducted in a “double-blind” manner, such that the officer conducting the procedure did
    not know the identity of the suspect. In addition, Niess argues that APD failed to admonish the
    witnesses prior to viewing the photos that it was as important to exclude the innocent as to identify
    the guilty and that the investigation would continue regardless of any identification they made in the
    process. Niess complains that the identification procedures were not videotaped and that APD has
    no standard policy for conducting photo identifications and that the police should have conducted
    a live lineup instead of a photo array because all of the suspects were already in custody at the time.
    However, Niess fails to explain how the procedures that he complains of were
    suggestive and he cites no authority in support of his contention. See Pacheco v. State, No. 04-06-
    00453-CR, 2007 Tex. App. LEXIS 2744, at *11 (Tex. App.—San Antonio Apr. 11, 2007, pet. ref’d)
    (mem. op., not designated for publication) (rejecting claim that identification procedure was
    suggestive because police failed to follow U.S. Department of Justice guidelines, noting that
    appellant failed to provide any authority that techniques were required). While arguably several
    of the procedures that Niess criticizes are more likely to lead to an impermissibly suggestive
    6
    At the suppression hearing, the trial court admitted as an exhibit a document entitled
    Eyewitness Evidence, A Guide for Law Enforcement, published in October 2009 by the U.S.
    Department of Justice, Office of Justice Programs. In part, the document provides recommended
    procedures for composing and conducting pretrial identifications. See http://www.nij.gov/pubs-
    sum/178240.htm (last visited May 25, 2012).
    9
    identification, he has failed to demonstrate that the procedures necessarily led to an impermissibly
    suggestive line up in this case. For example, while conducting the pretrial photo identification in
    a “double-blind” manner might minimize the likelihood of impermissible suggestion on the part
    of the administering officer, without additional evidence that the officer in fact acted improperly
    in administering the test, such evidence fails to demonstrate that Niess’s due process rights
    were violated.
    At the hearing on Niess’s motion to suppress, Detective Phillip Hogue testified
    with regard to how the photo array was compiled and administered. Hogue testified that, using a
    computer program that shows booking photos, he obtained Niess’s most recent booking photo; he
    then used the photo to compile a line-up, “looking for five other people that matched similar
    descriptions, builds, facial characteristics of the suspect.” Prior to being shown the photos, each
    witness was read a written admonishment stating:
    This group of photos may or may not contain a picture of the person or persons who
    committed the crime now being investigated. Keep in mind that hairstyles, beards
    and moustaches may be easily changed. Also, photographs may not always depict
    the true complexion of a person– it may be lighter or darker than shown in the photo.
    Pay no attention to any markings or numbers that may appear on the photo or any
    other differences in the type of style of the photographs.
    Hogue sequentially showed each of the six photos to each witness separately and at separate
    times, and he testified that he did not in any way suggest which photo the witnesses should select.
    Based on the record before us, we cannot conclude that there was anything impermissibly
    suggestive about the manner in which the pretrial photo identification was conducted. See Mayes v.
    State, Nos. 03-10-00101-CR, 03-10-00102-CR, 2011 Tex. App. LEXIS 2075, at *15–16 (Tex.
    10
    App.—Austin, Mar. 18, 2011, no pet.) (mem. op., not designated for publication) (noting that exact
    same admonishment was given to victims and concluding that record did not demonstrate that
    there was anything impermissibly suggestive about manner in which pretrial photo identification
    procedure was conducted).
    Similarly, after viewing the array of photographs from which Niess was selected, we
    cannot conclude that the resulting photo array itself was impermissibly suggestive. Niess complains
    that the photo array depicts individuals with different hair styles and facial hair than Niess; with
    different scars and tattoos than Niess; with different backgrounds and clothing than Niess; and with
    different races than Niess.
    In this case, several of the victims described the assailant with the shotgun as a
    heavyset Anglo or partially Hispanic male. After reviewing the individual photos in the array from
    which Niess was selected, we find that the photos depict Hispanic and white males of similar
    complexion and of approximately the same age and build. All of the men in the array have close-
    cropped hair styles and light facial hair. In addition, all of the men depicted in the array are wearing
    crew-neck t-shirts against substantially similar, plain backgrounds. See Mungia v. State, 
    911 S.W.2d 164
    , 168 (Tex. App.—Corpus Christi 1995, no pet.) (noting that differences in shirt color or
    photograph background were insignificant and not suggestive). Although only the photograph of
    Niess depicts a small tattoo and only one photograph in the array depicts a man with a scar, we find
    that these differences do not render the photo array impermissibly suggestive. At the suppression
    hearing, Hogue testified that none of the witnesses had mentioned a scar or a tattoo during the
    pretrial identification procedure, and there was no evidence presented at the suppression hearing
    11
    suggesting that any witness had informed police that one of the assailants had a tattoo. See Escovedo
    v. State, 
    902 S.W.2d 109
    , 118 (Tex. App.—Houston [1st Dist.] 1995, pet. ref’d) (noting that due
    process does not require that all individuals in pretrial identification array be identical and fact that
    only one other photograph in array had tattoo tear drop on face did not render the array impermissibly
    suggestive); see also Garza v. State, No. 03-06-00216, 2008 Tex. App. LEXIS 7004, at *6-7 (Tex.
    App.—Austin Sept. 19, 2008, no pet.) (mem. op., not designated for publication) (concluding that
    digitally added tattoo did not render photo array impermissibly suggestive and noting that officer
    testified that witnesses had not commented on tattoo when viewing photos or in identifying appellant).
    We hold that Niess has failed to establish that the pretrial identification procedures
    were impermissibly suggestive. We therefore need not address whether those procedures created
    a substantial likelihood of misidentification. See Tex. R. App. P. 47.1 (court of appeals must hand
    down opinions that are as brief as possible while addressing those issues necessary to a final
    disposition). See also 
    Loserth, 963 S.W.2d at 772
    . We overrule Niess’s first and second issues
    on appeal.
    Motion for Mistrial
    In his third issue, Niess contends that the trial court abused its discretion in refusing
    to grant a mistrial after a witness testified that Niess “had been to jail before.”
    On direct examination by the State, Erin Moody, who had stayed behind when Niess
    and the other men left the Rodriguez house, discussed the events of April 17, 2010. Erin testified
    that she had fallen asleep after the men left and then woke around 5:30 a.m., only to find that the
    men were still gone. In testifying about her efforts to find the men, the following exchange occurred:
    12
    PROSECUTOR:            So what else did you do?
    MOODY:                 I thought they got arrested so I called the jail, and me and
    Kaitlyn left the house.
    PROSECUTOR:            Why did you think that they had gotten arrested?
    MOODY:                 Because they have all been to jail before.
    Niess’s attorney immediately objected, and upon the court’s sustaining his objection, moved for a
    mistrial. The trial court denied Niess’s motion for a mistrial, but instructed the jury to ignore the
    witness’s comment. Niess now argues that Erin’s testimony was prejudicial because it implied that
    Niess and the other men “were a gang of outlaws” and that the only appropriate remedy was for the
    court to grant a mistrial.
    We review a denial of a motion for mistrial for an abuse of discretion. Simpson v.
    State, 
    119 S.W.3d 262
    , 272 (Tex. Crim. App. 2003). A mistrial is the trial court’s remedy for
    improper conduct that is “so prejudicial that expenditure of further time and expense would be
    wasteful and futile.” Hawkins v. State, 
    135 S.W.3d 72
    , 77 (Tex. Crim. App. 2004). In general,
    improper witness testimony, such as a witness’s inadvertent testimony referring to or implying
    extraneous offenses, can be rendered harmless by a prompt instruction to disregard. 
    Simpson, 119 S.W.3d at 272
    ; Kemp v. State, 
    846 S.W.2d 289
    , 308 (Tex. Crim. App. 1992). Exception to this
    general rule exists only in those extreme cases where it appears that the testimony was “clearly
    calculated to inflame the minds of the jury or was of such damning character as to suggest that
    it would be impossible to remove the harmful impression from the jury’s mind.” Rojas v. State,
    
    986 S.W.2d 241
    , 250 (Tex. Crim. App. 1998).
    13
    Assuming that the testimony at issue was improper, the record shows that the trial
    court immediately instructed the jury to disregard it. Further, there is no evidence suggesting that
    the jury was unable to comply with that instruction. Viewing the record in the light most favorable
    to the trial court’s ruling, we find that the trial court could have reasonably concluded that Erin’s
    testimony was not so inflammatory as to be incurable by instruction. Accordingly, we cannot conclude
    that the trial court abused its discretion in denying Niess’s motion for a mistrial. We overrule
    Niess’s third issue on appeal.
    Judgment Modification
    Finally, we address Niess’s contention that the judgment in trial court cause number
    D-1-DC-10-900336 should be corrected. Specifically, Niess argues that the judgment of conviction
    in this cause incorrectly reflects a finding of guilt and a corresponding thirty-year sentence with
    respect to count three, concerning Ramiro Garcia. Niess requests that we modify the judgment to
    properly reflect that he was acquitted of this count. The State agrees that we should modify the
    judgment as Niess requests.
    If the oral pronouncement of a sentence and the written judgment vary or conflict,
    the oral pronouncement controls. Thompson v. State, 
    108 S.W.3d 287
    , 290 (Tex. Crim. App. 2003).
    Here, the record shows that after both sides had rested and closed, Niess moved for an instructed
    verdict with respect to the count concerning Ramiro Garcia. The trial court granted the motion,
    stating, “You have a request for an instructed verdict as to cause number D-1-DC-10-900336,
    count three, alleging an offense against Ramiro Ramirez Garcia is granted. There will not be a
    14
    submission, and the Court finds jeopardy has attached and so it will show acquittal.” Having
    reviewed the record, we agree that the record establishes that Niess was acquitted of count three in
    cause number D-1-DC-10-900336. Because the judgment of conviction incorrectly reflects that
    Niess was found guilty of this count, we sustain his fourth issue on appeal.
    An appellate court has the power to correct certain clerical errors in a trial court’s
    judgment if the appellate court has the information necessary to do so. Tex. R. App. P. 43.2.(b);
    French v. State, 
    830 S.W.2d 607
    , 609 (Tex. Crim. App. 1992); see also Boone v. State, No. 03-10-
    00440-CR, 2011 Tex. App. LEXIS 5957, at *1 (Tex. App.—Austin July 28, 2011, no pet.) (mem.
    op., not designated for publication). We conclude that we have the necessary information to correct
    the error in the trial court’s judgment in this case. See 
    Thompson, 108 S.W.2d at 290
    (noting that
    remedy when written judgment conflicts with oral pronouncement is to correct written judgment).
    Having sustained Niess’s fourth issue on appeal, we modify the trial court’s judgment adjudicating
    guilt as to count three in trial court cause number D-1-DC-10-900336 to reflect that Niess was
    acquitted of this count.
    CONCLUSION
    We have overruled Niess’s first, second, and third issues on appeal and sustained
    Niess’s fourth issue on appeal, requesting that we modify one of the judgments of conviction.
    Accordingly, the judgment of conviction with respect to cause number D-1-DC-10-900336 is
    affirmed as modified, and the remaining judgments of conviction are affirmed.
    15
    __________________________________________
    Diane M. Henson, Justice
    Before Justices Puryear, Henson and Goodwin
    NO. 03-11-00213-CR Affirmed
    NO. 03-11-00214-CR Affirmed
    NO. 03-11-00215-CR Affirmed
    NO. 03-11-00216-CR Affirmed
    NO. 03-11-00217-CR Modified and, As Modified, Affirmed
    Filed: June 21, 2012
    Do Not Publish
    16