Merlin James v. State , 2012 Tex. App. LEXIS 3019 ( 2012 )

Opinion issued April 19, 2012

In The

Court of Appeals

For The

First District of Texas

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NO. 01-10-00693-CR

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Merlin James, Appellant

V.

The State of Texas, Appellee

On Appeal from the 248th District Court

Harris County, Texas

Trial Court Case No. 1239442

O P I N I O N

A jury convicted appellant Merlin James of aggravated robbery.  Tex. Penal Code Ann. § 29.03 (West 2011).  The judgment reflects an affirmative deadly-weapon finding.  James pleaded “true” to two prior convictions and the court sentenced him to 45 years in prison.

James presents three issues on appeal: (1) the evidence was legally insufficient to show that an air rifle used in the robbery was a deadly weapon; (2) the court erred in refusing to instruct the jury on the lesser-included offense of theft; and (3) the court erred by allowing the State to amend an enhancement allegation contained in the indictment after trial had begun.  We modify the judgment to reflect that James pleaded “true” to two prior convictions and that the court found those convictions to be “true,” and we affirm the judgment of the trial court as modified.

Background

Two brothers and their 11-year-old cousin were walking home from a sandwich shop after dark on a sidewalk when they were passed by a minivan with its headlights off.  The van abruptly turned around and stopped near them.  James, who was driving the van, got out, approached the complainants, and said, “You know what’s up.  You know what time it is.”  The brothers understood that they were being robbed.

At some point during the encounter, the sliding minivan door opened to reveal another passenger who said, “Let’s light [them] up.”  James told the passenger to get the “AK” and said, “We going shoot one of them.”  The passenger reached back to retrieve an air rifle and held it in his lap while pointing the barrel at the complainants.  Meanwhile, the brothers placed their personal valuables in the sandwich bag for James to take.  At trial, one of the brothers testified that the sight of the “AK” made him fear for his life.

As James walked back toward the minivan, a police car on patrol approached from behind with its emergency lights and spotlight on.  The officers detained and questioned everyone at the scene. Concluding that they had just come upon a robbery, they arrested James and the two passengers in the minivan.

James was tried for robbery and aggravated robbery along with co-defendant Josef Kawaski Jones.  The jury convicted both of aggravated robbery, and the court sentenced James to 45 years in prison.

Analysis

I. Legal sufficiency of the evidence

James argues in his first issue that the evidence presented at trial was legally insufficient to support the conviction for aggravated robbery.  He argues that the State failed to present legally sufficient evidence that the air rifle brandished during the episode qualifies as a “deadly weapon,” the use or exhibition of which enhances the charge of robbery to aggravated robbery.  See Tex. Penal Code Ann. § 29.03 (establishing enhancement elements of aggravated robbery).

When reviewing the legal sufficiency of the evidence, we consider the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found each and every element of the offense beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Drichas v. State, 175 S.W.3d 795, 798 (Tex. Crim. App. 2005).  We do not resolve any conflict of fact, weigh any evidence, or evaluate the credibility of any witnesses, as these are the functions of the trier of fact.  Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). Rather, an appellate court presumes that the factfinder resolved any conflicting evidence in favor of the verdict and defers to that resolution so long as it is supported by the record.  Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).

An actor commits an aggravated robbery if he commits a robbery under Section 29.02 of the Penal Code while he “uses or exhibits a deadly weapon.” Tex. Penal Code Ann. § 29.03(a)(2). A “deadly weapon” is defined by the Penal Code as “(A) a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or (B) anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.”  Id. § 1.07(a)(17).  Serious bodily injury is defined as “bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.”  Id. § 1.07(a)(46).  Our determination of whether the State introduced sufficient evidence to prove that a given air rifle qualifies as a “deadly weapon” requires a case-by-case analysis in light of the statutory standards.  Compare Campbell v. State, 577 S.W.2d 493, 495–96 (Tex. Crim. App. 1979) (finding sufficient evidence of an air pistol’s deadly-weapon status when testimony established that it could kill a person if fired at close range), with Mosley v. State, 545 S.W.2d 144, 145–46 (Tex. Crim. App. 1976) (holding that BB gun did not fit the statutory definition of a “deadly weapon” when expert witness testified that its projectiles could not penetrate the skin).

The State presented evidence at trial to show that the air rifle used during the robbery was a deadly weapon.  D. Eudaley, a firearms expert for the Houston Police Department, testified that a lead pellet would need to travel at least 290 feet per second in order to penetrate the skin, and that it would always embed itself under the skin at 365 feet per second.  She testified that she had conducted velocity tests of the rifle by using lead pellets, and she concluded that these were propelled at between 479 and 524 feet per second, with an average of 508 feet per second.  In sum, Eudaley testified that the rifle propelled pellets at speeds in excess of what is required to penetrate the surface tissues of the human body.

This testimony was legally sufficient to establish that the air rifle was a “deadly weapon” as defined by the Penal Code.  Based on Eudaley’s expert testimony, a factfinder could conclude beyond a reasonable doubt that, if used to shoot a person in the eye or other sensitive part of the body, the air rifle was capable of causing serious bodily injury, including the possibility of “permanent disfigurement” or “protracted loss or impairment of the function of any bodily member or organ.”  See Tex. Penal Code Ann. § 1.07(a)(17), (46).  Viewing the evidence in the light most favorable to the verdict, we hold the State’s evidence sufficient to support the jury’s conclusion about the deadly-weapon status of the air rifle.  See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Drichas, 175 S.W.3d at 798; cf. Adame v. State, 69 S.W.3d 581, 582 (Tex. Crim. App. 2002) (holding that State had presented sufficient evidence that a particular BB gun was capable of causing serious bodily injury).

James argues that despite Eudaley’s testimony about the capability of the air rifle, precedent precludes a finding of deadly-weapon status here because, first, there was no evidence that the air rifle was loaded during the robbery and, second, the air rifle’s barrel was pointed only generally at the complainants but not up close or in their faces.

Whether an airgun is loaded at the time of a criminal transaction is insignificant to the deadly-weapon analysis, since the crucial question is only whether it is “capable of causing serious bodily injury.”  Adame, 69 S.W.3d at 582.  Therefore, the fact that the State did not provide evidence at trial that the airgun was loaded does not undermine the deadly-weapon finding.

Moreover, James’s objections to the sufficiency of the evidence based upon the proximity and direction of the airgun’s barrel are not germane to the deadly-weapon finding, but rather to whether the weapon was “use[d] or exhibit[ed]” during the commission of a robbery.  Tex. Penal Code Ann. § 29.03(a)(2).  James does not dispute that the State presented evidence that the air rifle was used during the robbery.  The complaining witnesses testified that they had seen the air rifle held by James’s accomplice, that it was pointed at them, and that it instilled fear in them.  When there is no dispute about whether an airgun has been used or exhibited during a robbery, the question of whether the offense is enhanced to aggravated robbery hinges on the capability of the airgun.  See Adame, 69 S.W.3d at 582 (“[T]his case is not a ‘used or exhibited’ case since the evidence clearly shows that appellant used and exhibited the BB gun during the convenience store robbery.  The issue here is whether appellant’s BB gun was ‘capable’ of causing serious bodily injury.”).  As discussed above, there was legally sufficient evidence to find that the airgun was capable of causing serious bodily injury, and therefore we need not consider the proximity of the airgun’s barrel or where it was pointed in our deadly-weapon analysis.  The visible presence of a deadly weapon on a criminal actor, even if it is not menacingly pointed at another, satisfies the statutory element of use or exhibition.  See McCain v. State, 22 S.W.3d 497, 503 (Tex. Crim. App. 2000) (finding legally sufficient evidence that butcher knife was used or exhibited during robbery when it was only partially exposed in defendant’s back pocket).

Based on the evidence, a rational jury could have found that a deadly weapon was used or exhibited in the course of the robbery.  Therefore, we conclude that the evidence was sufficient to sustain the verdict that James was guilty of aggravated robbery.  We overrule James’s first issue.

II. Lesser-included offense

James next argues that the trial court erred in denying his request that the jury be instructed on the lesser-included offense of theft.  See Tex. Code Crim. Proc. Ann. art. 37.09 (West 2006) (prescribing criteria for lesser-included offense).  To determine whether a defendant is entitled to an instruction on a lesser-included offense, courts apply a two-pronged test.  See Ex parte Watson, 306 S.W.3d 259, 262–63 (Tex. Crim. App. 2009); Hall v. State, 225 S.W.3d 524, 535–36 (Tex. Crim. App. 2007).  The first prong of the test requires the court to use the “cognate pleadings” approach to determine whether an offense is a lesser-included offense of another offense.  Watson, 306 S.W.3d at 271–72.  This standard is satisfied if the indictment for the greater-inclusive offense either alleges all of the elements of the lesser-included offense, or it alleges elements plus facts from which all of the elements of the lesser-included offense may be deduced.  Id. at 273.  This inquiry is a question of law.  Hall, 225 S.W.3d at 535. The second prong asks whether there is any evidence that supports giving the lesser-included offense instruction to the jury.  Id. at 536.  A defendant is entitled to a requested instruction on a lesser-included offense when some evidence admitted at trial would permit a rational jury to find that if the defendant is guilty, he is guilty only of the lesser-included offense.  Id.  Anything more than a scintilla of evidence is sufficient to entitle a defendant to the lesser charge.  Id.

As to the first prong, theft is a lesser-included offense of both robbery and aggravated robbery.  See Bignall v. State, 887 S.W.2d 21, 23 (Tex. Crim. App. 1994).  This is derived from the Penal Code, because an element of aggravated robbery is commission of a robbery, and an element of robbery is commission of a theft.  See Tex. Penal Code Ann. §§ 29.02 (robbery), 29.03 (aggravated robbery), 31.03 (theft).

          The second prong requires that there be more than a scintilla of evidence which would permit a rational jury to conclude that James is guilty of theft rather than robbery or aggravated robbery.  See Hall, 225 S.W.3d at 536.  The presence of a threat or of a deadly weapon is what distinguishes robbery and aggravated robbery from theft.  Bignall, 887 S.W.2d at 23; Holiday v. State, 14 S.W.3d 784, 788 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d).  James argues that had the charge included an instruction on theft, the jury could have disbelieved the complaining witnesses about having seen the air rifle and feeling threatened by it, and it thereby could have convicted him of theft.

The two complaining witnesses both testified to seeing the air rifle pointed in their direction and feeling intimidated by James’s aggressive demeanor. The mere possibility that the jury could have simultaneously credited the complaining witnesses about the taking of their property while also disbelieving them about threats made or perceived is inadequate to entitle James to an instruction on theft.  See Bignall, 887 S.W.2d at 24 (“[I]t is not enough that the jury may disbelieve crucial evidence pertaining to the greater offense; there must be some evidence directly germane to a lesser included offense for the factfinder to consider before an instruction on a lesser included offense is warranted.”); Holiday, 14 S.W.3d at 788 (affirming trial court’s denial of requested instructions for lesser-included offenses when there was no evidence in the record showing that the appellant could have been guilty only of lesser-included offenses).  There was no testimony directly germane to the offense of theft.  Therefore, the trial court did not err in denying the defense’s request for a jury instruction on theft.  Accordingly, we overrule James’s second issue.

III. Amended enhancement allegation in indictment

In his third and final issue, James contends that the trial court erred in allowing the State to amend an enhancement allegation contained in the indictment.  The indictment as originally written alleged that “on FEBRUARY 2, 2005, in Cause No. 0410212870,” James was previously convicted of the felony of “INJURY OF THE ELDERLY” in the “377TH DISTRICT COURT of HARRIS County, Texas.”  In fact, James had been previously convicted of injury to a child in the 377th District Court of Victoria County.  Consistent with the details of the prior offense, twenty-seven days before the first day of trial, the State filed with the trial court and served on defense counsel its “Notice of Intention to Use Prior Convictions and Extraneous Offenses,” in which it announced its intention to introduce evidence of James’s prior conviction of “INJURY TO CHILD,ELDERLY,DISABLED INDIVDUAL” in “VICTORIA / 377 / 2-2-05.”  The notice expressly stated the State’s intention to introduce the prior offense to “enhance the range of punishment for the Defendant,” among other purposes.  The variance between “elderly” and “child” is not relevant to the identification of the alleged statutory offense in this case, since injury to either constitutes the same offense under the Penal Code.  See Tex. Penal Code Ann. § 22.04(a) (West 2011).

After trial on the merits commenced and the jury returned a guilty verdict, but before the punishment phase of the trial began, James moved to quash this enhancement allegation.  In response, the State orally moved for leave of the court to amend the indictment so as to correct the victim and county information for the prior conviction. Over James’s objection, the court granted the State’s motion to amend the enhancement allegation and made a handwritten, interlineal correction on the face of the indictment.  James pleaded “true” to the amended enhancement allegation.

A.   Amendments to indictment

Article 28.10 of the Code of Criminal Procedure provides the guidelines for when an indictment can be amended:

AMENDMENT OF INDICTMENT OR INFORMATION

(a)      After notice to the defendant, a matter of form or substance in an indictment or information may be amended at any time before the date the trial on the merits commences.  On the request of the defendant, the court shall allow the defendant not less than 10 days, or a shorter period if requested by the defendant, to respond to the amended indictment or information.

(b)     A matter of form or substance in an indictment or information may also be amended after the trial on the merits commences if the defendant does not object.

(c)      An indictment or information may not be amended over the defendant’s objection as to form or substance if the amended indictment or information charges the defendant with an additional or different offense or if the substantial rights of the defendant are prejudiced.

Tex. Code Crim. Proc. Ann. art. 28.10.  The Court of Criminal Appeals provided the framework for interpreting Article 28.10 in Hillin v. State, 808 S.W.2d 486 (Tex. Crim. App. 1991) (plurality op.).  Hillin was originally indicted for aggravated assault on a correctional officer “by throwing porcelain.”  Hillin, 808 S.W.2d at 486.  On the first day of trial, Hillin directly attacked the allegation regarding the substance of the object used to perpetrate the assault.  Id.  In response to that strategy, the State moved on the second day of trial to amend the indictment to say that Hillin had committed the assault “by throwing a commode.”  Id. at 486–87.  The trial court amended the indictment over Hillin’s objection, and the jury subsequently convicted him.  Id.

The Court of Criminal Appeals reversed the conviction and remanded the case to the trial court.  Id. at 489.  The Hillin plurality interpreted Article 28.10 of the Code of Criminal Procedure to give a criminal defendant “an absolute veto power” over amendments to the indictment after trial begins:

. . . [Article 28.10(b)] allows the State to amend the indictment after the trial on the merits has commenced unless the defendant has interposed a timely objection to the attempted amendment.  The language and wording of Article 28.10(b), supra, is clear and unambiguous and if the defendant, after trial on the merits has commenced, interposes a timely objection to the State’s proposed amendment, be it to form or substance, such amendment is absolutely prohibited.  It appears the court of appeals was of the opinion that in regard to Section (b) after a trial amendment, a “substantial rights” analysis was to be performed pursuant to Section (c) which prohibits the State from amending the indictment if such amendment transformed the allegations to additional or different offenses or prejudiced the substantial rights of the defendant.  We do not find such reasoning persuasive.

Article 28.10(c) prohibits the State from amending the indictment over a defense objection if such amendment results in an additional or different offense or if it adversely prejudices the substantial rights of the defendant.  Section (c) makes no mention as to whether it applies to Sections (a) and (b) or only to one of the preceding sections.  We conclude that an analysis pursuant to Section (c) could only be logically applied to an indictment amendment which falls under the purview of Section (a). . . .

At first blush one might suspect that the provisions of Section (c) are applicable to both Sections (a) and (b) because of the structure of Article 28.10.  However, as previously stated, a defendant under the clear language of Section (b) has an absolute veto power over proposed amendments after trial on the merits has commenced.

Id. at 488–89 (footnotes omitted); see also Brown v. State, 828 S.W.2d 762, 763 (Tex. Crim. App. 1991) (“[T]he clear import of our holding in Hillin was that the requisites of Article 28.10(b), which inferentially prohibit trial amendments over objection, are absolute.”).

Although Hillin concerned a case in which the State had attempted an amendment to the main charge of the indictment during the guilt-innocence phase of the trial, this court has relied on Hillin and the subsequent opinion on rehearing in Sodipo v. State, 815 S.W.2d 551 (Tex. Crim. App. 1991), to hold that an amendment to an enhancement paragraph in the indictment at the beginning of the punishment phase of a trial is likewise subject to the defendant’s absolute veto under Article 28.10(b).  See Boutte v. State, 824 S.W.2d 322, 323 (Tex. App.—Houston [1st Dist.] 1992, pet ref’d).  Under Boutte, when the trial court erroneously permits the State to amend an enhancement paragraph in the indictment over the defendant’s objection at the commencement of the punishment phase of trial, the remedy was for this court to reverse and remand the case to the trial court for a new trial on punishment only.  Id. at 324.

In arguing for the validity of the amendment in this case, the State relies upon Simmons v. State, 288 S.W.3d 72 (Tex. App.—Houston [1st Dist.] 2009, pet ref’d), in which this court overruled a criminal appellant’s challenge to an amendment to the indictment.  That opinion is distinguishable because its dispositive reasoning was that the appellant had failed to prove that the amendment by interlineation had occurred after trial began.  Simmons, 288 S.W.3d at 79–80.  In this case, it is undisputed that the State moved to amend one of the enhancement paragraphs in the indictment after trial on the merits began and that the trial court effectuated the amendment over the defendant’s objection.  Therefore, following Hillen and Boutte, we hold that the trial court erred in making the State’s requested amendment.

          We acknowledge that other courts of appeals have held that Article 28.10 does not apply to enhancement paragraphs in the indictment.  See, e.g., Thomas v. State, 286 S.W.3d 109, 114 (Tex. App.—Houston [14th Dist.] 2009, no pet.); Stautzenberger v. State, 232 S.W.3d 323, 327–28 (Tex. App.—Houston [14th Dist.] 2007, no pet.); Johnson v. State, 214 S.W.3d 157, 158–59 (Tex. App.—Amarillo 2007, no pet.).  We cannot follow their lead because this court already has binding, on-point precedent in Boutte.  The doctrine of stare decisis compels us to adhere to our court’s precedent absent some special justification for departing from it.  See, e.g., Dickerson v. United States, 530 U.S. 428, 443, 120 S. Ct. 2326, 2336 (2000); Ex parte Lewis, 219 S.W.3d 335, 338 (Tex. Crim. App. 2007).  No such special justification for abandoning our precedent has been suggested in this case.

B. Harmless error

The Boutte court, following Hillin, remanded the case for a new trial on punishment when the trial court amended the enhancement allegation over the defendant’s objection.  Boutte, 824 S.W.2d at 324.  The Boutte opinion did not apply a harm analysis, following Sodipo, for the proposition that a violation of Article 28.10 was not subject to harmless-error review.  See Boutte, 824 S.W.2d at 323.  This court has subsequently recognized that Sodipo has been implicitly overruled in that regard.  See Conner v. State, No. 01-00-00383-CR, 2001 WL 204223, at *2 (Tex. App.—Houston [1st Dist.] Mar. 1, 2001, pet. ref’d) (mem. op., not designated for publication) (citing Wright v. State, 28 S.W.3d 526, 531–32 (Tex. Crim. App. 2000)).  Thus, we will disregard the trial court’s error if it did not affect James’s substantial rights.  See Tex. R. App. P. 44.2(b); Gray v. State, 159 S.W.3d 95, 98 (Tex. Crim. App. 2005) (stating that “when only a statutory violation is claimed, the error must be treated as non-constitutional for the purpose of conducting a harm analysis”).

James’s right to have adequate prior notice of enhancement allegations against him is “of constitutional origin.”  Villescas v. State, 189 S.W.3d 290, 294 (Tex. Crim. App. 2006) (citing Oyler v. Boles, 368 U.S. 448, 82 S. Ct. 501 (1962)).  Although a defendant is constitutionally entitled to adequate prior notice of enhancement allegations, “alleging an enhancement in the indictment is not the only reasonable method of conveying such notice.”  Brooks v. State, 957 S.W.2d 30, 33 (Tex. Crim. App. 1997). The use of a prior conviction as a sentencing enhancement must be pleaded in some form, but it need not be pleaded in the indictment, “although it is permissible and perhaps preferable to do so.”  Id. at 34.  “In determining whether appellant received sufficient notice of the State’s intent to enhance punishment, we look to the record to identify whether appellant’s defense was impaired by the timing of the State’s notice.”  Pelache v. State, 324 S.W.3d 568, 577 (Tex. Crim. App. 2010).

Twenty-seven days before trial in this case, the State filed with the trial court and served on James’s counsel a “Notice of Intention to Use Prior Convictions and Extraneous Offenses” which reflected the correct charge and county information regarding James’s prior conviction.  This notice was sufficient to apprise James of the prior convictions that the State intended to use against him as punishment enhancements.  See id. at 569–70 (concluding that “appellant’s federal constitutional due-process rights were not violated” when the State notified the defendant 16 days before the punishment hearing that it intended to use prior convictions for enhancement purposes); Villescas, 189 S.W.3d at 295 (concluding that “appellant was given sufficient notice of the enhancement allegation” when the State filed and served a “notice of enhancement” 6 days before trial); see also Brooks, 957 S.W.2d at 34 (holding that “the requisite notice was conveyed” when the State filed a motion to add an enhancement paragraph to indictment and the court granted the motion but indictment was not physically altered); Thompson v. State, Nos. 01-06-01084-CR & 01-06-01085-CR, 2008 WL 2756596, at *4 (Tex. App.—Houston [1st Dist.] July 17, 2008, pet. ref’d) (mem. op., not designated for publication) (holding that “Notice of Intention to Use Evidence of Prior Convictions and Extraneous Offenses” received by defendant 3 months before trial provided sufficient notice that a prior conviction would be used to enhance sentencing).  Moreover, “when a defendant has no defense to the enhancement allegation and has not suggested the need for a continuance in order to prepare one, notice given at the beginning of the punishment phase satisfies the federal constitution.”  Villescas, 189 S.W.3d at 294. James has not proposed a defense to the enhancement allegation nor suggested that he needed a continuance. In light of the sufficient timing of the State’s notice and James’s lack of a substantive defense to the challenged enhancement paragraph, we hold that the trial court’s erroneous amendment of the indictment did not affect James’s substantial rights.  Tex. R. App. P. 44.2(b).

We overrule James’s third issue.

Modification of judgment

          The trial court’s judgment does not accurately comport with the reporter’s record in that it does not reflect James’s pleas of “true” to two enhancement paragraphs—including the amended enhancement paragraph—and the trial court’s implied findings of “true” by way of accepting those pleas.  “[A]n appellate court has authority to reform a judgment to include an affirmative finding to make the record speak the truth when the matter has been called to its attention by any source.”  French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992) (citing Asberry v. State, 813 S.W.2d 526, 531 (Tex. App.—Dallas 1991, pet. ref’d)); accord Nolan v. State, 39 S.W.3d 697, 698 (Tex. App.—Houston [1st Dist.] 2001, no pet.) (holding that an appellate court has the power to correct and reform a trial judgment to make the record speak the truth when it has the necessary data and information to do so); see also Tex. R. App. P. 43.2(b).  The record supports modification of the judgment with regard to James’s pleas to and the trial court’s findings on the enhancement paragraphs.  Accordingly, the trial court’s judgment is modified to reflect that James pleaded “true” to both enhancement paragraphs and that the trial court found both enhancement paragraphs to be “true.”

Conclusion

We modify the judgment to reflect that James pleaded “true” to the first and second enhancement paragraphs and the trial court found those enhancement paragraphs to be “true,” and we affirm the judgment of the trial court as modified.

                                                                      Michael Massengale

                                                                      Justice

Panel consists of Justices Keyes, Higley, and Massengale.

Justice Keyes, concurring.

Publish.   Tex. R. App. P. 47.2(b).