Opinion
No. 05-16-00599-CR
07-05-2017
RENE HERNANDEZ, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 203rd Judicial District Court Dallas County, Texas
Trial Court Cause No. F-1452460-P
MEMORANDUM OPINION
Before Justices Fillmore, Whitehill, and Boatright
Opinion by Justice Fillmore
A jury convicted Rene Hernandez of unlawful possession of a firearm by a felon, see TEX. PENAL CODE ANN. § 46.04(a)(1) (West 2014), and the trial court assessed punishment of forty years' imprisonment. In two issues, Hernandez contends the trial court erred by excluding expert testimony proffered by Hernandez and by instructing the jury in the charge that Hernandez had a prior conviction for unlawful possession of a firearm by a felon. We modify the trial court's judgment to reflect there were two alleged enhancements for purposes of punishment and the trial court found both alleged enhancements to be true. As modified, we affirm the trial court's judgment.
Background
On February 19, 2014, a covert, or undercover, member of the Dallas Police Department's Crime Reduction Team (the CRT) saw a silver Mercedes leaving the location of an illegal game room. The officer was familiar with the Mercedes because the CRT had "arrested an individual" out of the vehicle the previous week. The officer followed the vehicle to a duplex on Petain Avenue. Because the CRT wanted the officer to return to the game room, it requested over the deployment radio that another covert officer watch the Mercedes. Officer John Casey, who was conducting surveillance on a nearby restaurant, volunteered to "go keep eyes" on the Mercedes.
Casey testified that, at approximately 2:00 a.m., he drove by the duplex on Petain Avenue and saw the Mercedes parked on the street. He did not see anyone in the car or outside the duplex. Casey drove to a Family Dollar store approximately one-half mile from the duplex and parked for a few minutes in order to avoid any suspicion by anyone who had possibly seen him drive by the duplex the first time.
Petain Avenue, which runs east and west, "dead ends" into Elmira Street. Casey testified that, when he returned to the duplex, he parked just south of Petain Avenue on Elmira Street, facing away from the duplex. He turned off the engine of his car and set the emergency brake. He saw two men with a dog standing in the front yard of the duplex. According to Casey, the two men started walking toward Elmira, and he was concerned the men had seen him. He picked up his cellphone and decided that, if he was approached by the men, he would explain he had stopped to use his phone.
Casey testified it was dark in the area, and he lost sight of the two men. He adjusted both his rearview and driver's side mirror so that he would be more likely to see someone approaching from behind the car. A few seconds after he lost sight of the men, Casey heard a dog bark near the rear driver's side corner of his car. He turned and saw a Latin man approaching his driver's side window. The man had what appeared to be a red shirt over his hands, and Casey could not see if there was anything in the man's hands. The man "squared up" to the driver's side window and began yelling and cursing at Casey, asking what Casey was doing there and ordering him to leave. The man was speaking very quickly and did not give Casey an opportunity to respond.
According to Casey, after a "few seconds," the man stopped talking, turned away from the window, and said something over his left shoulder. Casey then saw Hernandez walking very slowly into view near the curb on the other side of the street. Hernandez was walking from the rear of Casey's vehicle toward the front of the vehicle, and had his right arm down by his side. As Hernandez was walking, he bent over, attempting to see inside Casey's vehicle, and Casey saw a shiny object in Hernandez's right hand. Based on his training, Casey thought Hernandez might be holding a weapon. Casey was concerned because he had "a man with his hands covered in front of him with an article of clothing," and also saw Hernandez approaching holding what could possibly be a weapon. Casey focused on the object in Hernandez's right hand and identified it as a handgun.
Casey testified that, at that point, Hernandez was "almost even" with the driver's side door of Casey's vehicle. Hernandez stopped, paused for a brief second, raised his gun to a ninety degree angle in front of him, and started advancing toward Casey's vehicle. Based on his training, Casey saw "that as a deadly force situation." He thought he was going to die, and believed he had no choice but to draw his gun and fire the weapon as he spun out of the vehicle. According to Casey, when he opened the door to his vehicle, Hernandez was a "few feet" away from him, but still close to the opposite side of the street. Casey shot Hernandez twice. As Hernandez fell, his gun hit the street and tumbled over near the curb, possibly in the grass.
Casey testified that the first man who had approached him ran back toward the duplex. Casey reached into the vehicle for a radio to inform other officers that shots had been fired and a person was "down." As he was "coming back out" of the vehicle with the radio, the first man reached the yard of the duplex, and Casey saw a group of people were in the yard. According to Casey, someone in the yard of the duplex fired a shot at him. Casey ran around to the passenger's side of his vehicle for cover and was then able to radio for help.
Sergeant Robert Watson, the CRT's night sergeant, was parked at the Family Dollar store monitoring two different radios. Although the windows on his vehicle were lowered, Watson did not recall hearing any gunshots. However, another officer asked over the deployment radio if anyone had heard gunshots. Immediately after that, Casey "came over" the deployment radio and stated that shots had been fired. It took Watson approximately thirty seconds to arrive at Casey's location. Watson saw Hernandez lying in the street with his head approximately twelve inches from the curb and his feet toward the middle of the street. Watson saw a chrome handgun in the grass behind the curb. Watson stayed with Hernandez while waiting for an ambulance to arrive.
Dallas Police Officer Francisco Gonzalez, a member of the Crime Scene Unit, testified there were a number of cameras mounted around the duplex providing live video to a television inside the duplex. He found ammunition for three different calibers of weapons and a copy of Hernandez's identification inside the duplex. He also recovered a silver .380 caliber handgun from the grass beside the curb of the street. Gonzalez found bullets in the magazine of the gun and a cartridge in the chamber. Gonzalez took the gun to his lab and swabbed it for possible DNA. He also unsuccessfully attempted to obtain fingerprints from the gun, the magazine, and the cartridges. Gonzalez sent the swabs of the gun to the Southwest Institute of Forensic Sciences (SWIFS) and sent the gun to the police department's property room.
Amanda Webb, a forensic biologist at SWIFS, testified the handgun was delivered to SWIFS on March 5, 2014. DNA testing was performed on the gun in June 2015. A serologist at SWIFS swabbed the trigger and trigger guard of the gun. Using those swabs, rather than the swabs taken by Gonzalez, Webb obtained a DNA profile from the gun and compared it to a DNA profile obtained from a buccal swab standard from "Rene Hernandez." Webb was able to include Hernandez as a possible contributor to the DNA on the gun and testified the strength of that match was one in 234 trillion people. Although Hernandez was the major contributor of the DNA on the gun, Webb also found DNA from a minor contributor on the gun.
Webb agreed that finding a person's DNA on an object does not indicate when the person might have touched the object. Under the proper conditions, DNA can stay on an object indefinitely. Further, "handler" or "touch" DNA occurs when somebody touches an item, leaving behind skin cells or sweat. If the first item touches another item, the DNA on the first item can transfer to the second item.
Mitchell Lucky testified that he works for the Texas Department of Criminal Justice supervising parolees. Lucky began supervising Hernandez on January 31, 2014. Hernandez was scheduled to be released from parole in April 2020.
Hernandez and his counsel signed a stipulation that Hernandez had a prior felony conviction for unlawful possession of a firearm by a felon. The jury found Hernandez guilty of unauthorized possession of a firearm by a felon. After hearing evidence in the punishment phase of the trial, the trial court assessed punishment of forty years' imprisonment.
Admission of Evidence
In his first issue, Hernandez argues the trial court erred by excluding evidence that Hernandez proffered to contradict Casey's testimony about the manner in which the shooting occurred. Hernandez specifically argues the evidence was relevant to Casey's credibility and tended to "establish Casey's powerful incentive to claim that he shot Hernandez as Hernandez advanced toward him with a gun, rather than as Hernandez retreated, unarmed."
Standard of Review
We review a trial court's ruling on the admission or exclusion of evidence for abuse of discretion. Henley v. State, 493 S.W.3d 77, 82-83 (Tex. Crim. App. 2016). A trial court abuses its discretion by excluding evidence when its decision "falls outside the zone of reasonable disagreement." Id. at 83. If the trial court's evidentiary ruling is correct on any theory of law applicable to that ruling, we will uphold the decision. De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009). This is true even if the judge failed to give a reason or gave the wrong reason for the ruling. Bowley v. State, 310 S.W.3d 431, 434 (Tex. Crim. App. 2010).
Relevant Facts
During a hearing immediately prior to voir dire, the prosecutor requested that Hernandez's counsel disclose the scope of the expert testimony she intended to offer. Hernandez's counsel responded, "It's basically going to be discussing the physical evidence and the trajectory of the bullets." The prosecutor argued the testimony was not relevant "in this part of the case" because it "goes to no element" of the offense, but could be relevant in a later phase involving an aggravated assault charge that was pending against Hernandez based on the same incident. Hernandez's counsel responded:
It's going to go to the credibility of how - what the officer says happened and his credibility is extremely relevant to the [unlawful possession of a firearm] because he's the only one that says my guy had a gun.The prosecutor argued Hernandez's DNA was on the weapon, and he did not "want to confuse the jury." The trial court indicated it would take the issue under advisement, but confirmed the State's objection was based on relevance and Hernandez was offering the evidence "for credibility purposes."
After the State rested, Hernandez proffered the testimony of Dr. Amy Gruszecki and Louis Akin in a hearing outside the presence of the jury. Gruszecki testified she was a doctor of osteopathic medicine and a forensic pathologist. Among other things, Gruszecki examines bullet wounds to determine whether they are entry or exit wounds and the path of trajectory of the bullet. After Gruszecki testified she had examined Hernandez's medical records and x-rays, the trial court asked if Gruszecki knew whether Hernandez had a gun at the time of the offense. Gruszecki responded that she did not. The trial court stated, "So I don't want a long drawn out hearing on this. Get to the point." Gruszecki then testified she had also reviewed photographs of Hernandez's body and had examined Hernandez that morning. According to Gruszecki, Hernandez was shot twice, once in the back and once in the abdomen. She also testified, based on the x-rays, about the trajectory of each bullet in Hernandez's body.
Akin testified he was a crime scene expert who performed crime scene reconstruction and medicolegal death investigation. The trial court asked Akin if he knew whether Hernandez had a gun on the night of offense. Akin responded that he knew there was a gun, but he did not know if Hernandez had it. Akin testified he had examined the gun and other physical evidence and, in his opinion, Hernandez was shot first in the back while he was moving away from Casey. As Hernandez fell, he turned and was shot in the abdomen. In Akin's opinion, the evidence did not support that Hernandez was crossing the street toward Casey at the time of the shooting. Akin also testified that, if Hernandez dropped the gun, it would not have been in the grass behind the curb. Rather, the gun would have been on the street where Hernandez fell. In Akin's opinion, in order for the gun to be in the grass, Hernandez would have been required to throw the gun.
Before the State cross-examined Akin, the trial court stated, "I don't need to hear from the State. None of this evidence can be admitted." Hernandez's counsel then stated:
Your Honor, if we could make our objections. I think the evidence is relevant because it goes directly to Officer Casey's credibility, which is the crux of the case because Casey is the only one who puts the gun in Rene's hand. This evidence directly refutes testimony that the State had presented and demonstrates about how the shooting happened and we have evidence that it did not happen that way. And, therefore, Casey's credibility is suspect in that regard.
I would also point out that over my relevancy objections, the State has been permitted to introduce photos that have not been tied to Mr. Hernandez because it was part of the totality of their investigation, and we think we should at least be able to present testimony that goes to the credibility of the key witness in this case about what he says happened. And we would argue that not admitting this goes to Officer Casey's credibility, it goes to his bias and his motive for testifying and it deprives Mr. Hernandez of his Fourteenth Amendment due process right to present a defense.The trial court responded it had already ruled, the evidence would not be admitted, and it disagreed with Hernandez's argument because "there is other evidence that the gun was there with the defendant's DNA on it."
Analysis
The State contends Hernandez failed to preserve this issue because his complaint on appeal is the excluded evidence was relevant to show Casey's motive in testifying against Hernandez was to escape the consequences of an unjustified shooting while his argument in the trial court below was the evidence was relevant to attack Casey's credibility. See Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012) (complaint on appeal must comport with objection at trial). In the trial court, Hernandez argued at the pretrial hearing that the evidence was admissible on the issue of Casey's credibility. After hearing the proffered testimony, the trial court ruled the evidence was not admissible. Hernandez then argued the evidence was relevant to rebut Casey's testimony as to how the shooting happened, related to Casey's "bias and motive for testifying," and deprived Hernandez of his right to present a defense. Hernandez did not specifically apprise the trial court that Casey's motive or bias for testifying was to avoid the consequences of an unjustified shooting. Because Hernandez argues on appeal that the evidence was admissible based on a ground that was not clearly articulated in the trial court, we question whether he has preserved his complaint for our review. See Reyna v. State, 168 S.W.3d 173, 179 (Tex. Crim. App. 2005) (to preserve complaint regarding exclusion of evidence for appellate review, proponent of evidence must clearly articulate in trial court specific basis for admissibility of evidence).
However, even if Hernandez preserved his complaint, we cannot conclude the trial court erred by excluding the evidence. A person who has been convicted of a felony commits the offense of unlawful possession of a firearm if he possesses a firearm after conviction and before the fifth anniversary of the person's release from confinement following conviction of the felony or the person's release from supervision under community supervision, parole, or mandatory supervision, whichever date is later. See TEX. PENAL CODE ANN. § 46.04(a)(1). The only disputed element of the offense was whether Hernandez possessed a handgun on February 19, 2014. Hernandez argued in the trial court that Casey's credibility was crucial to the State's case and the relevance of Gruszecki's and Akin's testimony was to rebut Casey's testimony about how the shooting occurred.
In a case addressing the right of cross-examination under the Confrontation Clause of the Sixth Amendment of the United States Constitution, the court of criminal appeals concluded that:
In a case such as this, where the believability of the complainant forms the foundation of the State's case, Texas law favors the admissibility of evidence that is relevant to the complainant's bias, motive, or interest to testify in a particular fashion. "[G]enerally speaking, the Texas Rules of Evidence permit [a] defendant to cross-examine a witness for his purported bias, interest, and motive without undue limitation or arbitrary prohibition.Johnson v. State, 490 S.W.3d 895, 910 (Tex. Crim. App. 2016) (quoting Hammer v. State, 296 S.W.3d 555, 563 (Tex. Crim. App. 2009)). A defendant is, therefore, "entitled, subject to reasonable restrictions, to show any relevant fact that might tend to establish ill feeling, bias, motive, interest, or animus on the part of any witness testifying against him." Billodeau v. State, 277 S.W.3d 34, 43 (Tex. Crim. App. 2009). Evidence is relevant if it has any tendency to make a fact more or less probable than it would be without the evidence and the fact is of consequence in determining the action. TEX. R. EVID. 401.
Even if we assume evidence of the direction Hernandez was moving at the time Casey shot him was relevant to prove a fact of consequence, relevant evidence may be excluded under rule of evidence 403 if its probative value is substantially outweighed by the danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence. TEX. R. EVID. 403. Rule 403 favors the admission of relevant evidence, and carries the presumption that relevant evidence will be more probative than prejudicial. Davis v. State, 329 S.W.3d 798, 806 (Tex. Crim. App. 2010). Further, rule 403 does not require exclusion of evidence simply because it creates prejudice; rather, it must be shown that the prejudice is "unfair." Martinez v. State, 327 S.W.3d 727, 737 (Tex. Crim. App. 2010). "The danger of unfair prejudice exists only when the evidence has the 'potential to impress the jury in an irrational way,'" id. (quoting State v. Mechler, 153 S.W.3d 435, 440-41 (Tex. Crim. App. 2005)), or has "an undue tendency to suggest that a decision be made on an improper basis." Reese v. State, 33 S.W.3d 238, 240 (Tex. Crim. App. 2000) (quoting Montgomery v. State, 810 S.W.2d 372, 389 (Tex. Crim. App. 1990) (op. on reh'g)). "Evidence might be unfairly prejudicial if, for example, it arouses the jury's hostility or sympathy for one side without regard to the logical probative force of the evidence." Gigliobianco v. State, 210 S.W.3d 637, 641 (Tex. Crim. App. 2006).
When conducting a rule 403 analysis, the trial court must balance (1) the inherent probative force of the evidence and (2) the proponent's need for that evidence against (3) any tendency of the evidence to suggest a decision on an improper basis, (4) any tendency of the evidence to confuse or distract the jury from the main issues, (5) any tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate the probative force of the evidence, and (6) the likelihood that presentation of the evidence will consume an inordinate amount of time or be needlessly cumulative. Id. at 641-42. In practice, these factors may well blend together. Id. We should reverse a trial court's balancing determination "rarely and only after a clear abuse of discretion." Montgomery, 810 S.W.2d at 392.
The trial court did not conduct a rule 403 balancing test on the record. However, Hernandez did not request that the trial court perform the balancing test on the record, and "cannot exclude the possibility that the trial court conducted the balancing test in [her] mind." Wilson v. State, 7 S.W.3d 136, 144 (Tex. Crim. App. 1999); see also Cruz v. State, 122 S.W.3d 309, 313 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (concluding trial court "need not conduct a formal hearing or even announce on the record that it has mentally conducted [the rule 403] balancing test"). Further, the prosecutor expressed concern that the evidence would confuse the jury and, at several points during the trial, the trial court admonished Hernandez's counsel about questions the trial court indicated could confuse the jury. The trial court also noted there was evidence other than Casey's testimony that tied Hernandez to the gun. Based on the record before us, we presume the trial court conducted a rule 403 balancing test. Williams v. State, 958 S.W.2d 186, 195-196 (Tex. Crim. App. 1997 ("[A] judge is presumed to engage in the required balancing test once Rule 403 is invoked and we refuse to hold that the silence of the record implies otherwise.").
The first two Gigliobianco factors involve the probative value of the evidence—how strongly it serves to make more or less probable the existence of a fact of consequence to the litigation coupled with the proponent's need for that item of evidence. Gigliobianco, 210 S.W.3d at 641. The only disputed fact of consequence was whether Hernandez possessed a gun on February 19, 2014. Neither Gruszecki nor Akin could testify on this issue. Rather, their testimony was directed at attacking Casey's testimony as to how the shooting occurred and was probative only to support an inference that, if Casey lied about Hernandez approaching him at the time of the shooting or about the gun tumbling across the street, then he lied about Hernandez possessing a gun. The proffered evidence, therefore, did not directly refute a fact of consequence. Further, although Hernandez's need to cast doubt on Casey's credibility was high, the case did not hinge solely on Casey's testimony. Rather, there was also evidence that Hernandez's DNA was on the gun found at the scene. Accordingly, the first two Gigliobianco factors weigh only slightly in favor of admission of the evidence.
Balanced against this slight probative value are the considerations of unfair prejudice set out in the final four Gigliobianco factors. The trial court could have reasonably concluded that allowing Gruszecki and Akin to testify about their opinions on how the shooting occurred would have caused the jury to be distracted by tangential issues involving whether Casey shot Hernandez as he was approaching Casey's vehicle or after he had turned away from Casey. Further, the inflammatory nature of the testimony would have a tendency to cause the jury to decide the case on an improper basis, the facts of the shooting, rather than on whether Hernandez possessed a gun. Finally, admitting the evidence would possibly have created the need for additional evidence to be presented on issues that did not relate to a fact of consequence, such as possible rebuttal evidence by the State concerning Hernandez's injuries and how those injuries might have occurred.
It was within the zone of reasonable disagreement for the trial court to determine any tendency of the proffered evidence to support Hernandez's defensive theory that Casey lied about the manner in which the shooting occurred and, therefore, also lied about Hernandez possessing the gun, would be substantially outweighed by the danger that presenting the evidence had the potential to impress the jury in an irrational way or have an undue tendency to suggest the case should be decided on an improper basis. Based on this record, we cannot conclude the trial court abused its discretion by excluding Gruszecki's and Akin's testimony. We resolve Hernandez's first issue against him.
Jury Charge
In his second issue, Hernandez contends the trial court erred by instructing the jury that he had a prior conviction for unlawful possession of a firearm by a felon. Hernandez specifically argues that under Old Chief v. United States, 519 U.S. 172 (1997), he was entitled to stipulate to the fact of the prior felony conviction without informing the jury of the nature of the prior conviction.
Standard of Review
Our first duty in analyzing a jury charge issue is to decide whether error exists. Price v. State, 457 S.W.3d 437, 440 (Tex. Crim. App. 2015). "If error exists, we then analyze the harm resulting from the error." Id. Properly preserved charge error requires reversal if the error was "calculated to injure the rights of [the] defendant," which means no more than that there must be some harm to the accused from the error. TEX. CODE CRIM. PROC. ANN. art. 36.19 (West 2006); see also Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g). This standard requires that the defendant "suffered some actual, rather than merely theoretical, harm from the error." Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013). In making this determination, we consider the entire jury charge, the arguments of counsel, the entirety of the evidence, and any other relevant factors revealed by the record. Id.
Relevant Facts
To prove Hernandez was guilty of unlawful possession of a firearm by a felon, the State was required to establish Hernandez had a prior felony conviction. See TEX. PENAL CODE ANN. § 46.04. In the indictment, the State charged that Hernandez's prior felony conviction was for unlawful possession of a firearm by a felon. At the pretrial hearing prior to voir dire, Hernandez offered to stipulate to the prior felony conviction and argued, based on the stipulation, it would not be necessary to apprise the jury of the nature of the conviction. The State had no objection to the stipulation. During voir dire, the prosecutor informed the panel that the State had to prove, beyond a reasonable doubt, that Hernandez:
[O]n or about February 19, 2014 in Dallas County, State of Texas, did intentionally and knowingly possess a firearm; to-wit, a handgun after [Hernandez] had been duly and legally convicted of a felony and said possession occurred before the fifth anniversary of the defendant's release from parole for the said prior felony conviction.After the jury was selected, the prosecutor read the indictment to the jury without disclosing the nature of Hernandez's prior felony conviction.
At the beginning of the next day of trial, the trial court informed the parties it had reconsidered the stipulation and determined the State was required "to prove the indictment as is and it will be in the jury charge as is." Hernandez argued that, pursuant to Old Chief, he was entitled to stipulate to the nature of the prior felony and, under rule of evidence 403, the nature of the prior felony was not admissible and should not be in the jury charge. See Old Chief, 519 U.S. at 190-92 (holding that, in prosecution for offense of possession of firearm by a felon, federal rule of evidence 403 precluded government from proving what felony defendant was previously convicted of if he chose to stipulate he was a felon).
At the close of the State's case, it offered into evidence "the stipulation to the offense in the indictment as agreed to by the State and the Defense that the defendant was actually convicted of a felony on April 3, 2008 in Dallas County, State of Texas at F08-40478, entitled the State of Texas versus Rene Hernandez, and that, that court had jurisdiction over the prior offense." The written stipulation, which was signed by Hernandez and his counsel, stated:
Defendant agrees and stipulates that he is the person duly and legally convicted of Unlawful Possession of a Firearm by a Felon on April 3, 2008, in the 265th Judicial District Court of Dallas County, Texas in a case docketed as F0840378 and entitled The State of Texas vs. Rene Hernandez, and that said court had jurisdiction over said prior offense.Hernandez's counsel indicated she had no objection to the stipulation, and it was admitted into evidence.
In the jury charge, the trial court set out the law relating to the case and then instructed the jury in the application section:
Now bearing in mind the foregoing instructions, if you believe from the evidence beyond a reasonable doubt that the defendant, Rene Hernandez, on or about the 19th day of February. A.D., 2014, in Dallas County, Texas did unlawfully then and there intentionally or knowingly possess a firearm after said defendant was duly and legally convicted on the 3rd day of April, 2008 of the offense of unlawful possession of a firearm by a felon in the 265th Judicial District Court of Dallas County, Texas, in a case docketed as F08-40378 and entitled The State of Texas vs. Rene Hernandez, and said court had jurisdiction over said prior offense, and said possession occurred before the fifth anniversary of the defendant's release from parole for the said prior conviction, then you will find the defendant guilty.Hernandez objected to the inclusion of the nature of his prior felony conviction in the charge.
Analysis
The State offered into evidence the stipulation signed by Hernandez and his counsel that identified the nature of Hernandez's prior felony conviction as being the unlawful possession of a firearm by a felon. Hernandez's counsel stated she had no objection to the admission of the stipulation. See Thomas v. State, 408 S.W.3d 877, 885-86 (Tex. Crim. App. 2013) (holding that where record does not show whether an abandonment was intended or understood, a "no objection" statement is waiver of earlier-preserved error). Because the prior conviction for unlawful possession of a firearm by a felon was introduced into evidence through the written stipulation, the trial court did not err by referring to the prior conviction in describing the elements of the offense in the jury charge. Hollen v. State, 117 S.W.3d 798, 799, 802 (Tex. Crim. App. 2003). We resolve Hernandez's second issue against him.
See also McDaniel v. State, No. 05-14-00887-CR 2015 WL 2153450, at *2-3 (Tex. App.—Dallas May 7, 2015, no pet.) (mem. op., not designated for publication) (concluding appellant waived complaint based on Old Chief by affirmatively stating at trial that "he had 'no objection' to the judgment or the agreed stipulation, both of which" described the nature of appellant's prior offense).
See also Lewis v. State, No. AP-77,045, 2017 WL 1493489, at *11 (Tex. Crim. App. Apr. 26, 2017) (not designated for publication) (concluding no harm analysis was necessary when trial court did not err by giving the complained-about instruction).
Modification of Judgment
The State requests that we modify the trial court's judgment to reflect there were two alleged enhancements and the trial court found the alleged enhancements to be true. The record reflects the State sought to enhance punishment based on Hernandez's prior convictions for murder and theft. Prior to trial, the trial court admonished Hernandez that, if he did not accept the State's offer to drop one of the alleged enhancements in exchange for Hernandez pleading guilty, he was "looking at 25 to life." Hernandez was arraigned on both alleged enhancements and pleaded not true to each alleged enhancement. Evidence of both prior convictions was admitted during the punishment phase of the trial. At the conclusion of the punishment phase of the trial, the trial court did not make express findings regarding the enhancement paragraphs, but rather marked "N/A" in the spaces of the judgment in which it should have indicated Hernandez's plea and its findings on the enhancement paragraphs. The trial court assessed punishment of forty years' imprisonment.
Unlawful possession of a firearm by a felon is a third-degree felony. See TEX. PENAL CODE ANN. § 46.04(e). The punishment range applicable to a third-degree felony is imprisonment for any term of not more than ten years or less than two years and a fine not to exceed $10,000. Id. § 12.34 (West 2011). However, an individual adjudged guilty of a third-degree felony who has been convicted of two prior felony offenses may be punished as an habitual offender by imprisonment for any term of not more than ninety-nine years or less than twenty-five years. Id. § 12.42(d) (West Supp. 2016).
A trial court is not required to make an oral pronouncement of its findings on enhancements when it assesses punishment. See Meineke v. State, 171 S.W.3d 551, 557 (Tex. App.—Houston [14th Dist.], pet. ref'd) (concluding trial court was not required to make oral pronouncement of its findings on enhancements). Although the better practice is for the trial court to announce orally its enhancement findings before sentencing, the failure to do so does not amount to error as long as the record reflects that the court found the enhancements true and sentenced the defendant accordingly. See id.; Seeker v. State, 186 S.W.3d 36, 39 (Tex. App.—Houston [1st Dist.] 2005, pet. ref'd).
See also Rivers v. State, No. 05-16-00847-CR, 2017 WL 1536513, at *3 (Tex. App.—Dallas Apr. 27, 2017, no pet.) (mem. op., not designated for publication).
A trial court makes an implied finding of true to an enhancement allegation when the record establishes the truth of that allegation. Torres v. State, 391 S.W.3d 179, 183 (Tex. App.—Houston [1st Dist.] 2012, pet. ref'd). Additionally, appellate courts have concluded a trial court made an implied finding of true to an enhancement allegation if the sentence imposed was outside the range for the underlying offense, but was within the range for the offense as enhanced by a prior conviction. Id. at 184; see also Garner v. State, 858 S.W.2d 656, 659-60 (Tex. App.—Fort Worth 1993, pet. ref'd) (noting trial court assessed defendant's punishment at twenty-five years' confinement and maximum punishment defendant could receive without finding on enhancements was ten years).
Here, the trial court imposed a sentence of forty years' imprisonment, which is a term outside the range of punishment for a third-degree felony but within the range of punishment for an habitual offender. See TEX. PENAL CODE ANN. §§ 12.34, 12.42(d). Accordingly, we conclude the trial court made an implied finding of true to the two enhancement allegations. See Almand v. State, 536 S.W.2d 377, 379 (Tex. Crim. App. 1976) (although trial court did not make express finding concerning defendant's prior conviction, it was "obvious" from trial court's admonishments and statements regarding punishment that trial court found there was a prior felony conviction and sentenced defendant accordingly); Torres, 391 S.W.3d at 184.
See also Rivers, 2017 WL 1536513, at *4.
The trial court's judgment incorrectly reflects "N/A" as Hernandez's pleas and the trial court's findings as to the two enhancement paragraphs. Because we conclude the trial court impliedly found the enhancement paragraphs to be true, we modify the sections of the judgment titled "Plea to 1st Enhancement Paragraph" and "Plea to 2nd Enhancement/Habitual Paragraph" to state "Not True," and the sections of the judgment titled "Findings on 1st Enhancement Paragraph" and "Findings on 2nd Enhancement/Habitual Paragraph" to state "True." See 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, 529-30 (Tex. App.—Dallas 1991, pet. ref'd).
See also Rivers, 2017 WL 1536513, at *4 (modifying trial court's judgment to reflect defendant's plea of true and trial court's implied finding of true to enhancement paragraph).
As modified, we affirm the trial court's judgment.
/Robert M. Fillmore/
ROBERT M. FILLMORE
JUSTICE Do Not Publish
TEX. R. APP. P. 47 160599F.U05
JUDGMENT
On Appeal from the 203rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F-1452460-P.
Opinion delivered by Justice Fillmore, Justices Whitehill and Boatright participating.
Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED as follows:
The sections of the trial court's judgment titled "Plea to 1st Enhancement Paragraph" and "Plea to 2nd Enhancement/Habitual Paragraph" are modified to state "Not True." The sections of the trial court's judgment titled "Findings on 1st Enhancement Paragraph" and "Findings on 2nd Enhancement/Habitual Paragraph" are modified to state "True." As MODIFIED, the judgment is AFFIRMED. Judgment entered this 5th day of July, 2017.