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concluding appellant waived enhancement-sufficiency challenge by pleading "true" to prior felony convictions and stipulating to admission of penitentiary packets even though packets did not show sequentiality
Summary of this case from Childs v. StateOpinion
No. 10-05-00227-CR.
Opinion delivered and filed November 29, 2006. DO NOT PUBLISH.
Appeal from the 77th District Court, Limestone County, Texas, Trial Court No. 10403-A.
BEFORE: Chief Justice GRAY, Justice VANCE, and Justice REYNA.
MEMORANDUM OPINION
A jury convicted Nolan Harris of murder and assessed his punishment at twenty-three years' imprisonment based on an enhancement for one prior felony conviction. Harris claims in four points that: 1) the probative value of autopsy photographs admitted into evidence was substantially outweighed by the danger of unfair prejudice; 2) the submission to the jury of the sentence enhancement issues was not supported by the evidence; 3) the evidence is legally and factually insufficient to support enhancement as an habitual offender; and 4) the State's closing argument misrepresented the law. We will affirm the conviction, vacate the sentence, and remand for a new punishment hearing. On the night in question, Limestone County Sheriff's Deputies responded to a domestic disturbance call and upon arrival found Clarence Briscoe stabbed to death in his home. Harris, Briscoe's cousin and roommate, was later charged with the crime. At trial, three autopsy photos of the artery and vein severed in the stabbing were admitted over Harris's objection. The jury found Harris guilty of murder. In the punishment hearing, Harris pleaded "true" to five prior felony convictions and stipulated to the admission of penitentiary packets as the only additional evidence of those convictions. Three of the five previous felonies had been tried together and were used as a single conviction for enhancement purposes. At the charge conference, Harris objected to the sentence enhancement paragraphs contending there was insufficient evidence to support their inclusion. The objection was overruled. Harris, in closing statements, argued that the pen packets were deficient in that, while they included the date of final conviction, they did not include the date of the commission of the second and third previous felonies. Thus, there was no proof of the proper sequence of convictions to support enhancement. Over Harris's objection, the State argued that, according to the applicable law at the time of the second and third previous convictions, Harris was sentenced as a person with one and two prior felony convictions, respectively. The jury, sorting through a confusing charge, found that Harris had been finally convicted of one previous felony before the commission of the murder in question and sentenced him accordingly. In his first point of error, Harris argues that the trial court abused its discretion by admitting three autopsy photos because their probative value was substantially outweighed by the danger of unfair prejudice. TEX. R. EVID. 403. The three photographs are color, close-up shots of the blood vessels severed in the stabbing. These were admitted over Harris's objection that the photos were too gruesome. To minimize their probative value, Harris stipulated as to the cause of death and that the knife severed the blood vessels. However, the trial judge ruled that the photos were not overly gruesome and were probative to understanding the medical examiner's testimony. Autopsy photographs are generally admissible, unless they depict the mutilation caused by the autopsy itself. Rayford v. State, 125 S.W.3d 521, 529 (Tex.Crim.App. 2003). A trial court's decision to admit such evidence will be upheld if it is within the zone of reasonable disagreement. Id. In balancing the probative value of the photos against their "inflammatory nature," the court should consider all relevant factors including the photo's gruesomeness, detail, size, whether it is close-up, whether it is black and white or color, whether the body is clothed, and the availability of alternative means of proof. Rojas v. State, 986 S.W.2d 241, 249 (Tex.Crim.App. 1998). These three photos, like those admitted in Rayford, were cropped close and magnified to show only the internal injuries caused by the stabbing and were used by the medical examiner to describe the manner of Briscoe's death. See Rayford, 125 S.W.3d at 529-30. They showed "nothing more than the reality of the brutal crime committed." Chamberlain v. State, 998 S.W.2d 230, 237 (Tex.Crim.App. 1999). The trial court did not abuse its discretion in admitting the autopsy photos. See Harris v. State, 661 S.W.2d 106, 107 (Tex.Crim.App. 1983). We overrule point of error one. In points two and three, Harris attacks the sufficiency of the evidence to prove his prior convictions. The State's use of prior convictions as sentence enhancements substantially increases the minimum sentence. Before a prior felony conviction can be used as a sentence enhancement, the State must prove beyond a reasonable doubt the conviction was final before the commission of the next subsequent offense. TEX. PEN. CODE ANN. § 12.42 (Vernon Supp. 2006). However, by pleading "true" to the enhancements, Harris removed this burden from the state. Harvey v. State, 611 S.W.2d 108, 111 (Tex.Crim.App. [Panel Op.] 1981); Wilson v. State, 671 S.W.2d 524, 526 (Tex.Crim.App. 1984); see also Martin v. State, 200 S.W.3d 635, 640 (Tex.Crim.App. 2006). It is well-settled law that where a defendant pleads "true" to the enhancement paragraphs, as Harris did, he cannot complain of the sufficiency of the evidence upon appeal. Dinn v. State, 570 S.W.2d 910, 915 (Tex.Crim.App. 1978); Harvey, 611 S.W.2d at 111; Long v. State, 137 S.W.3d 726, 734 (Tex.App.-Waco 2004, pet. ref'd.). Any evidentiary deficiencies in the pen packets offered by the State were waived when Harris pleaded "true" and further, stipulated to their admission. See Kent v. State, 879 S.W.2d 80, 83 (Tex. App — Houston [14th Dist.] 1994, no pet.). Harris's second and third issues are overruled. Nonetheless, Harris's plea of "true" to all three sentence enhancements raises an issue regarding the punishment assessed. If the State alleges two or more enhancements and the accused pleads "true" to the allegations concerning the finality and sequence of the prior convictions, the mandatory provision of Texas Penal Code section 12.42(d) applies. Harvey, 611 S.W.2d at 111; State v. Garza, 824 S.W.2d 324, 326 (Tex. App — San Antonio 1992, pet. ref'd). The jury, contrary to Harris's plea, found only one enhancement true. As a result, it answered the repeat offender sentencing question outlining a range of punishment of fifteen to ninety-nine years. TEX. PEN. CODE ANN. § 12.42(c) (Vernon Supp. 2006). Having pled "true" to three sentence enhancements, Harris is an habitual offender, and under the mandatory sentencing provisions, must be sentenced in the range of life or ninety-nine to twenty-five years. TEX. PEN. CODE ANN. § 12.42(d). The jury should have only been instructed as to the range of punishment for an habitual offender. See Harvey, 611 S.W.2d at 111; State v. Garza, 824 S.W.2d at 326. A sentence outside either the maximum or the minimum range of punishment authorized by law is illegal. Mitzell v. State, 119 S.W.3d 804, 806 (Tex.Crim.App. 2003). Any court with jurisdiction over a criminal case can correct an illegal sentence. Id. ( emphasis original). Thus, we hold that Harris's sentence as a repeat offender, rather than as an habitual offender, is illegal. We will vacate the sentence and remand for a new punishment hearing. Having held that Harris must receive a new sentence hearing, we do not reach the merits of his fourth point that the State's closing argument in the punishment hearing was improper. Because the sentencing error effects only the punishment assessed, we affirm the trial court's judgment of conviction, vacate the sentence imposed, and remand to the trial court for a new sentencing hearing. TEX. CODE CRIM. PRO. ANN. art. 44.29 (Vernon Supp. 2006).
The charge is not the model of clarity. While Harris complains of the jury finding him to be an habitual offender, a careful reading of the charge shows the jury found just one prior final conviction, a 1960 conviction for burglary. Habitual offender status requires a finding of two previous felony convictions, each of which was final before the commission of the next offense. TEX. PEN. CODE ANN. § 12.42(d) (Vernon Supp. 2006).