Opinion
05-22-00212-CR
07-21-2023
JASON MONDRAE ROSS, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish TEX. R. APP. P. 47.2(b). 220212F.U05
On Appeal from the 416th Judicial District Court Collin County, Texas Trial Court Cause No. 416-80241-2022
Before Justices Partida-Kipness, Smith, and Breedlove
MEMORANDUM OPINION
PARTIDA-KIPNESS JUSTICE
In three issues, appellant Jason Mondrae Ross challenges his sentence for possession of a controlled substance. Ross argues (1) the trial court erred by requiring him to wear jail-issued clothing during the punishment portion of his trial; (2) the trial court erred by not providing a technical definition for "final" in the jury charge; and (3) the evidence was insufficient to find the enhancement paragraphs true. Following our review of the record, we determined the judgment should be modified to reflect a finding of "true" for both enhancement paragraphs. We affirm as modified.
I. BACKGROUND
Ross was originally indicted for the manufacture or delivery of a controlled substance, penalty group one, of more than four grams but less than two hundred grams. See TEX. HEALTH &SAFETY CODE § 481.112(D). FOLLOWING A JURY TRIAL, ROSS WAS CONVICTED OF THE LESSER-INCLUDED OFFENSE OF POSSESSION OF A CONTROLLED SUBSTANCE, PENALTY GROUP ONE, BETWEEN FOUR AND TWO HUNDRED GRAMS. See id. § 481.115(d).
At the beginning of the punishment hearing, the trial court went on the record to discuss what occurred after Ross's guilty verdict. The evening before, Ross was allowed to hug his mother and turn over his belongings. Immediately after, Ross had an outburst in the courtroom, using lots of expletives. The trial court stated it took "four or five deputy sheriffs to remove" Ross from the courtroom. After Ross returned to the jail, he made a number of phone calls where he threatened the court staff, District Attorney's Office staff, his own attorney, and made other negative comments about the court proceedings.
The trial court decided "in light of that and these safety concerns that have arisen as a result of Mr. Ross's behavior," he would remain in visible restraints. Ross's counsel then asked the trial court if Ross could be placed in street clothes and not his jail-issued outfit. Counsel additionally asked if he was left in his jail-issue clothing, if the trial court would give the jury an instruction stating "any time someone is convicted they are placed in these clothes and they have these restraints." The trial court denied counsel's request and stated it wanted to "make it clear the reason that there are visible restraints for [Ross] is because of his behavior yesterday" and this is not a normal situation. The trial court stated, "I don't want to misrepresent to the jury that this is the normal cause and course of action." It further said, "So the reason [Ross] is dressed as he is and restrained as he is is because of his behavior."
The trial court advised Ross on how to sit to keep the restraints from being visible to the jury. Additionally the court stated Ross would enter and leave outside of the presence of the jury.
The State presented testimony from Investigator Michael Coleman with the Collin County District Attorney's Office. Investigator Coleman was present the day before when Ross's courtroom outburst occurred. He stated after Ross said goodbye to his mother, he "just lost it," and became "irate" stating "I'm not doing this." Investigator Coleman explained he came to the front of the courtroom in case the situation escalated because he felt Ross's anger was directed at the prosecutors. As multiple sheriff's deputies attempted to take Ross into custody, Investigator Coleman said Ross was yelling and cursing claiming they were "racist m'f ers," the "whole thing was a set up," and several other obscenities. He stated it was not easy to get Ross into custody and it was a "dangerous situation" because there is always a chance a defendant could get a hold of a law enforcement weapon. Investigator Coleman also assisted with downloading Ross's jail calls. He explained in the calls to family members, Ross stated it was "all a setup, the jury was all white and racist, and this whole system is just a racist system." Ross also stated he would have assaulted an officer, the prosecutors, and his defense attorney but he did not want additional charges filed against him.
After the State proved the enhancement paragraph convictions, Ross was sentenced to forty-five years' imprisonment. This appeal followed.
II. ANALYSIS
A. Jail-Issued Clothing
In his first issue, Ross alleges the trial court erred by requiring him to remain in his jail-issued clothing during the punishment phase of trial.
Although Ross was also shackled during the punishment hearing, he raises no arguments regarding the shackling.
"It is essential to the proper administration of criminal justice that dignity, order, and decorum be the hallmarks of all court proceedings in our country." Illinois v. Allen, 397 U.S. 337, 343 (1970). "We believe trial judges confronted with disruptive, contumacious, stubbornly defiant defendants must be given sufficient discretion to meet the circumstances of each case." Id. "If a defendant timely objects to being put to trial while dressed in prison clothes, he should not be compelled to stand trial in that attire. Such a compulsion would violate the defendant's right to a fair trial and his right to be presumed innocent." Randle v. State, 826 S.W.2d 943, 944-45 (Tex. Crim. App. 1992). A defendant must timely object to being made to wear prison clothes or he waives the right to complain. Donjuan v. State, 461 S.W.3d 611, 618 (Tex. App.-Houston [14th Dist.] 2015, no pet.). Security concerns may place a limit on the right to be tried in non-jail clothing. Arriaga v. State, No. 03-06-00104-CR, 2008 WL 2065973, at *2 (Tex. App.-Austin May 14, 2008) (mem. op., not designated for publication); see also United States v. Nicholson, 846 F.2d 277, 279 (5th Cir. 1988). When security is an issue, even the use of shackles may be allowed. Arriaga, 2008 WL 2065973, at *2; see Deck v. Missouri, 544 U.S. 622, 632 (2005).
Here, the trial court made sure to explain on the record why it felt Ross should remained shackled and in jail attire during the punishment phase of trial. The court stated it had safety concerns due to Ross's behavior the previous afternoon and evening. Not only had Ross had a vulgar outburst inside the courtroom, it took multiple sheriff's deputies to restrain Ross and remove him following his outburst. Ross's anger did not subside upon leaving; he made multiple calls to family members in the evening and threatened members of the court and the District Attorney's staff and made statements about the jurors.
The jury heard testimony during punishment from Investigator Coleman regarding Ross's outburst and the physical restraint needed to remove him from the courtroom. The jury also heard the jail calls where Ross threatened individuals in the courtroom, and said the trial was a "set up" against him and called the jurors "racists," as well as evidence of Ross's prior criminal convictions.
The trial court did not commit error by having Ross remain in his jail-issued clothing. To allow Ross to change into civilian clothes would have raised safety issues with the court staff, whom Ross had threatened less than twenty-four hours prior. See Arriaga, 2018 WL 2065973, at *2. Any concern the trial court expressed was valid based on the events which occurred. We overrule Ross's first issue.
B. Jury Charge Definition
In his second issue, Ross alleges the trial court erred by not providing a technical definition for "final" in the punishment jury charge.
Jury charge error stems from the denial of a defendant's right to have the trial court provide the jury with instructions correctly setting forth the "law applicable to the case." Posey v. State, 966 S.W.2d 57, 62 (Tex. Crim. App. 1998); Tex. Code Crim. Proc. art. 36.14. A trial judge is obligated to instruct on the law applicable to the case, for "the trial judge is ultimately responsible for the accuracy of the jury charge and accompanying instructions." Mendez v. State, 545 S.W.3d 548, 552 (Tex. Crim. App. 2018) (quoting Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App. 2007)). In Almanza v. State, the court of criminal appeals held errors in the jury instructions do not warrant "automatic reversal" and are instead subject to a harm analysis. Bell v. State, 635 S.W.3d 641, 645 (Tex. Crim. App. 2021) (quoting Almanza, 686 S.W.2d 157, 174 (Tex. Crim. App. 1985) (op. on reh'g)). Under Almanza, a defendant may obtain reversal through a claim of charge error upon a showing of "some harm" if he objected to such error at trial, or upon a showing of "egregious harm" if he did not object. Id.; Mendez, 545 S.W.3d at 552.
If the "defendant never presents a proposed jury instruction (or fails to object to the lack of one), any potential error in the charge is reviewed only for 'egregious harm' under Almanza." Oursbourn v. State, 259 S.W.3d 159, 174 (Tex. Crim. App. 2008) (citing Almanza, 686 S.W.2d at 174). As in this case, when an "appellant d[oes] not object to the charge, the error does not result in reversal 'unless it was so egregious and created such harm that appellant was denied a fair trial.'" Warner v. State, 245 S.W.3d 458, 461 (Tex. Crim. App. 2008) (quoting Almanza, 686 S.W.2d at 171). "Errors that result in egregious harm are those that affect the 'very basis of the case,' 'deprive the defendant of a valuable right,' or 'vitally affect a defensive theory.'" Id. at 461-62 (quoting Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996)). To establish egregious harm, the "appellant must have suffered actual, rather than theoretical, harm." Id. at 461.
Trial courts have "broad discretion" in submitting proper definitions and explanatory phrases to aid the jury. Nava v. State, 379 S.W.3d 396, 420 (Tex. App-Houston [14th Dist.] 2012), aff'd, 415 S.W.3d 289 (Tex. Crim. App. 2013). Section 12.42 of the penal code allows for a defendant's punishment to be enhanced if:
It is shown on the trial of a felony offense other than a state jail . . . 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.
Enhancement under this statute requires the State to prove a sequence of events: the first conviction became final, an offense leading to a later conviction was committed, the later conviction became final, and the defendant subsequently committed the present offense. Jordan v. State, 256 S.W.3d 286, 290-91 (Tex. Crim. App. 2008); Davy v. State, 525 S.W.3d 745, 751 (Tex. App.-Amarillo 2017, pet. ref'd). The defendant must be linked to the prior convictions, and can be linked through the use of fingerprints or other identifying information. See Davy, 525 S.W.3d at 751-52.
Ross argues the word "final" in the punishment charge has an established or technical meaning and should have been defined for the jury. He states the jury had "no capacity to determine whether the convictions were 'final.'" The jury charge stated:
In the Punishment Enhancement, the State alleges that before the commission of the offense in this cause, on May 29, 2009, in cause number 199-81044-08, in the 199th Judicial District Court of Collin County, Texas, the Defendant was finally convicted of the felony Burglary of a Habitation.
Further, the State alleges that before the commission of the offense in this cause, and after the conviction in cause number 199-81044-08 was final, the Defendant committed the felony of Aggravated Robbery and was finally convicted of that offense on April 10, 2013, in cause number F-1135253 in Criminal District Court 2 of Dallas County, Texas. To these allegations the Defendant has pleaded "Not True."
You are instructed that if you find beyond a reasonable doubt that the allegations in the Punishment Enhancement are "True," you assess his punishment at confinement in the Institutional Division of the Texas Dept. Criminal Justice for any term not more than ninety nine (99) years or Life nor less than twenty five (25) years.
Now, therefore, if you find from the evidence beyond a reasonable doubt that prior to the commission of Possession of a Controlled Substance the Defendant had been convicted of the felony offense of Aggravated Robbery in cause number F-1135253, and further find that prior to the commission of Aggravated Robbery in cause number F-1135253, the Defendant had been convicted of the felony offense of Burglary of a Habitation in cause number 199-81044-08, you will assess punishment of the Defendant at confinement in the Instructional [sic] Division of the Texas Department of Criminal Justice for not less than 25 years nor more than 99 years, or life in prison.
Ross claims "absent that technical definition, almost any juror would determine that a conviction was 'final' when the trial court imposed sentence." He states there can be "no expectation that an ordinary juror would decide that they had to evaluate the evidence to determine: 1) whether an appeal was taken; 2) if not whether the deadline to perfect the appeal had passed; 2) [sic] and if an appeal was taken whether the mandate had issued."
However, absent a notice of appeal, a conviction is final on the date sentence is imposed. Woolsey v. State, 166 Tex. Crim. 447, 314 S.W.2d 298, 300 (1958); Davy, 525 S.W.3d at 752. Prima facie proof of a prior conviction is made by introduction of the prior judgment and sentence. Johnson v. State, 583 S.W.2d 399, 403 (Tex. Crim. App. 1979). Once the State makes its prima facie proof of an enhancement conviction, finality of the conviction is presumed if the record is silent regarding finality. Fletcher v. State, 214 S.W.3d 5, 8 (Tex Crim App 2007) The defendant then assumes the burden of proving the conviction was not final Id; Ashley v State, 527 S.W.2d 302, 305 (Tex Crim App 1975) ("when a conviction appears to be final on its face, the burden of showing the same to be not final is on the defendant") If the record evidence establishes the prior conviction was appealed, the conviction "becomes final when the appellate court issues its mandate affirming the conviction" Beal v State, 91 S.W.3d 794, 796 (Tex Crim App 2002) In those situations, the State must demonstrate when the conviction became final Ex parte Chandler, 182 S.W.3d 350, 358 (Tex Crim App 2005) (Keller, PJ, concurring).
Collin County District Attorney's Office Investigator Jennifer Gomez testified regarding the fingerprint analysis she conducted on Ross. She took his fingerprints following the guilt-innocence portion of trial and compared the card she took to the fingerprints associated with Ross's prior judgments. It was Investigator Gomez's opinion they belonged to the same person. She explained not all of the fingerprints on the judgment were clear enough to use, so she also compared additional identifying information found in Ross's criminal history to confirm it was Ross. Investigator Gomez also matched the fingerprints she took to Ross's fingerprints in the Texas Department of Public Safety database. Once the State entered the two prior judgments into evidence, Ross did not present any evidence to prove the prior convictions were not final. 11
Based on the record of this case, there was no dispute regarding the finality of Ross's prior convictions. It is thus presumed the first prior judgment was final on May 29, 2009, and the second prior judgment was final on April 10, 2013. Ross made no attempt to rebut the presumption of finality. There was no fact concerning finality for the jury to find. The trial court did not err by not defining the word "final" in the jury charge. Because we find no abuse of discretion, an egregious harm analysis is not applicable. We overrule Ross's second issue.
C. Sufficiency of the Enhancement Evidence
In his third issue, Ross claims the evidence was legally insufficient to find the enhancement paragraphs of the indictment were true. However, during oral argument presented to this Court on March 22, 2023, Ross conceded the evidence was sufficient. Therefore, we overrule his third issue.
D. Modification of the Judgment
In our review of the record, we discovered the judgment does not properly reflect the jury found both enhancements paragraphs true. We have the power to modify a judgment when we have the necessary information to do so. Tex.R.App.P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.-Dallas 1991, pet. ref'd) (en banc). When there is a conflict between the oral pronouncement of a sentence and the written judgment, the oral pronouncement controls, and the remedy is to reform the judgment. Shuler v. State, 650 S.W.3d 683, 686 (Tex. App.-Dallas 2022, no pet.) 12 (citing Taylor v. State, 131 S.W.3d 497, 500 (Tex. Crim. App. 2004)); see Thompson v. State, 108 S.W.3d 287, 290 (Tex. Crim. App. 2003).
Under "Punishment Enhancement" in the indictment, two separate paragraphs list offenses. The first paragraph states Ross was previously convicted of a felony offense on May 29, 2009. The second paragraph states Ross was previously convicted of a felony offense on April 10, 2013. Ross pleaded not true to both punishment enhancement paragraphs and the jury found Ross guilty of both previous offenses. The judgment states Ross "pleaded not true" to the first enhancement paragraph and "found true" regarding the finding on the enhancement. However, regarding the second enhancement paragraph, the judgment states "N/A." We modify the judgment to reflect the jury's finding of true for both enhancement paragraphs: Ross "pleaded not true" to second enhancement paragraph, and "found true" under the finding on second enhancement paragraph.
CONCLUSION
Based on the record before us, we overrule Ross's issues. We modify the judgment to reflect a finding of "true" to both enhancement paragraphs. We affirm as modified.
JUDGMENT
Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED as follows:
Show "Pleaded Not True" under 2nd enhancement paragraph, and "Found True" under finding on 2nd enhancement paragraph. As REFORMED, the judgment is AFFIRMED.