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Candace Leigh Elmore v. the State of Texas ( 2024 )


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  •                     In the
    Court of Appeals
    Sixth Appellate District of Texas at Texarkana
    No. 06-23-00252-CR
    CANDACE LEIGH ELMORE, Appellant
    V.
    THE STATE OF TEXAS, Appellee
    On Appeal from the 115th District Court
    Upshur County, Texas
    Trial Court No. 19114
    Before Stevens, C.J., van Cleef and Rambin, JJ.
    Memorandum Opinion by Justice van Cleef
    MEMORANDUM OPINION
    An Upshur County jury convicted Candace Leigh Elmore of possession of less than one
    gram of methamphetamine, a state jail felony.        See TEX. HEALTH & SAFETY CODE ANN.
    § 481.115(b) (Supp.). After a punishment trial to the bench, the trial court sentenced Elmore to
    five years’ imprisonment. In her sole issue on appeal, Elmore argues that the trial court erred by
    allowing an alternate juror to remain with the jury panel during deliberation. We find that
    Elmore failed to preserve this issue for our review. Even so, we find that the trial court’s
    judgment must be modified to reflect that there was no plea agreement in this case. As modified,
    we affirm the trial court’s judgment.
    I.     Factual Background
    Justin Nustad, a sergeant with the Upshur County Special Investigations Unit, testified
    that he conducted a traffic stop of a vehicle driven by Preston King. King’s girlfriend, Elmore,
    was the only passenger. According to Nustad, King provided consent to allow officers to search
    the vehicle.
    Nustad noticed a torch lighter in an open purse, obtained consent to search it, and found
    two broken glass pipes inside of the purse, containing what appeared to be methamphetamine
    residue. Lauren Perry, a forensic chemist with the Texas Department of Public Safety Crime
    Laboratory, testified that she analyzed one of the pipes and confirmed that it contained .36 grams
    of methamphetamine.
    Nustad said Elmore denied any knowledge of the pipes and provided the names of people
    she believed may have put them in her purse. Because Elmore was in possession of the broken
    2
    pipes, Nustad testified that he did not investigate Elmore’s claims. In Elmore’s defense, King
    said that Elmore’s cousin was staying with them at the time, said that she had just been kicked
    out, and implied that she could have left the methamphetamine pipes in Elmore’s purse. The
    jury unanimously rejected Elmore’s defense and convicted her of possession of less than one
    gram of methamphetamine.
    II.      Elmore Failed to Preserve Her Sole Point of Error
    Before deliberation, the trial court instructed the alternate juror in front of the jury panel,
    as follows: “I’ll tell you that when you go into the jury room, . . . you are there just to observe.
    The 12 regular jurors will deliberate and have their discussion, but you will not have any kind of
    input, you will just observe and you will not vote with them.” At no point did Elmore object to
    the trial court’s decision to allow the alternate juror to remain with the jury during deliberation.
    Even so, for the first time on appeal, Elmore argues that the trial court’s decision to send
    the alternate juror into the deliberation room violated Article 36.22 of the Texas Code of
    Criminal Procedure. That article states, “No person shall be permitted to be with a jury while it
    is deliberating. No person shall be permitted to converse with a juror about the case on trial
    except in the presence and by the permission of the court.” TEX. CODE CRIM. PROC. ANN. art.
    36.22.
    The State argues that the issue is unpreserved, and we agree. “To preserve error for
    appellate review, a defendant must make a timely request, objection, or motion stating the
    grounds upon which [s]he is entitled to a favorable ruling.” Laws v. State, 
    640 S.W.3d 227
    , 229
    (Tex. Crim. App. 2022) (citing TEX. R. APP. P. 33.1(a)(1)). This error preservation rule applies
    3
    to claims of an Article 36.22 violation. Id.; see also Taylor v. State, No. 06-22-00071-CR, 
    2023 WL 2472641
    , at *5 (Tex. App.—Texarkana Mar. 13, 2023, pet. ref’d) (mem. op., not designated
    for publication). Here, because the record reveals the lack of any objection raising Elmore’s sole
    appellate issue, we find it unpreserved and overrule her point of error. 1
    III.    The Judgment Must Be Modified
    “This Court has the power to correct and modify the judgment of the trial court for
    accuracy when the necessary data and information are part of the record.” Anthony v. State, 
    531 S.W.3d 739
    , 743 (Tex. App.—Texarkana 2016, no pet.) (citing TEX. R. APP. P. 43.2(b); Bigley v.
    State, 
    865 S.W.2d 26
    , 27 (Tex. Crim. App. 1993); Asberry v. State, 
    813 S.W.2d 526
    , 529 (Tex.
    App.—Dallas 1991, pet. ref’d)).            “The authority of an appellate court to reform incorrect
    judgments is not dependent upon the request of any party, nor does it turn on the question of
    whether a party has or has not objected in the trial court.” 
    Id.
     (quoting Asberry, 813 S.W.2d at
    529–30).
    The record reflects that Elmore waived her right to a punishment trial by jury and elected
    instead to have the trial court assess punishment.                After she pled true to the State’s two
    enhancement allegations, the trial court sentenced Elmore to five years’ imprisonment. The
    record further confirms that there was no plea-bargain agreement as to sentencing. However, in
    the section of the judgment titled “Terms of Plea Bargain,” the trial court erroneously stated that
    there was a plea agreement for five years’ imprisonment, among other things. Because there was
    no plea agreement in this case, we must modify the trial court’s judgment accordingly.
    1
    In support of her point of error, Elmore cites to Becerra v. State, 
    685 S.W.3d 120
     (Tex. Crim. App. 2024). Because
    the issue was clearly preserved in Becerra, it is easily distinguished from this case. 
    Id.
     at 123–24.
    4
    IV.    Conclusion
    We modify the “Terms of Plea Bargain” section of the judgment by deleting the entire
    contents of that section and replacing it with the phrase “Not Applicable.” As modified, we
    affirm the trial court’s judgment.
    Charles van Cleef
    Justice
    Date Submitted:        June 25, 2024
    Date Decided:          June 26, 2024
    Do Not Publish
    5
    

Document Info

Docket Number: 06-23-00252-CR

Filed Date: 6/26/2024

Precedential Status: Precedential

Modified Date: 7/3/2024