King v. State

Full title: JOEL CHRISTOPHER KING, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Nov 26, 2003

Nos. 05-02-02012-CR, 05-02-02013-CR (Tex. App. Nov. 26, 2003)

Opinion

Nos. 05-02-02012-CR, 05-02-02013-CR

Opinion issued November 26, 2003. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the 283rd Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F02-49131-LT F02-49132-JT.

Before Justices MORRIS, WRIGHT, and RICHTER.

MEMORANDUM OPINION

Opinion By Justice MORRIS.

In these appeals, Joel Christopher King challenges his convictions for possession of cocaine and possession of marijuana. He makes two complaints. First, he contends the trial court erred in the jury charge for the punishment phase of trial by instructing the jury to determine whether appellant had committed enhancement offenses. Second, he contends trial counsel was ineffective for failing to object to the erroneous jury charge. We disagree and affirm the trial court's judgments. The background of the case and the evidence adduced at trial are well known to the parties, and therefore we limit recitation of the facts. We issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.1 because the law to be applied in the case is well settled. Just after jury selection in appellant's trial, the following discussion occurred about pretrial motions:

THE COURT: Anything else?

[PROSECUTOR]: Not unless you want to arraign him on the enhancement paragraphs. I assume you are waiving that too?

[DEFENSE COUNSEL]: No, Judge — we can waive outside the presence of the jury.

THE COURT: That's what I am talking about.

It won't come up unless there is a conviction. And then we can arraign him on that.

All the discovery matters and everything has been taken care of, so we can jump right in at nine.

[DEFENSE COUNSEL]: Judge, everything is agreed. It is my understanding, and we can look at it again closely, everything is agreed to except the motion to suppress, which I filed. . . .

. . .

[DEFENSE COUNSEL]: I think everything else was agreed to. There was a list of impeachment evidence, he can supply that orally.

[PROSECUTOR]: I have explained to [defense counsel] that I have the certified copies of the convictions. And I told him if there was any impeachment evidence, that's what I would come from. He agreed that I didn't have to write them out and I could show them verbally.

[DEFENSE COUNSEL]: In light of that with that caveat, can you grant the motions other than the motion to suppress?

THE COURT: You mean after I heard the evidence?

[DEFENSE COUNSEL]: No, I'm sorry, all the motions that have been filed, will you grant them except for the motion to suppress?

THE COURT: That's fine. I will write it on the docket tomorrow.

Nothing in the docket sheet for either case indicates the trial court granted the defense motions, nor is there any order for either case granting the motions. In the marijuana case alone, appellant had filed a pro se motion to "quash enhancements." He alleged in the motion that state jail felony convictions may not be enhanced by previous convictions. Appellant was represented by counsel when he filed the pro se motion. The proposed order attached to the motion is not signed by the trial court. Now on appeal, appellant complains in his first issue that the trial court erred when it required the jury to determine in both cases whether he had committed the enhancement offenses alleged in the indictments. He contends that because the trial court had granted all his motions (except the motion to suppress) at trial, the enhancement offenses in both cases had been quashed and therefore were not available for the jury's consideration at punishment. The record in appellant's cases fails to show the trial court ever granted appellant's pro se motion to quash enhancement paragraphs, which was filed only in the marijuana case. Therefore, the trial court did not err by including the enhancement paragraphs in the jury charge at punishment for each case. We resolve appellant's first issue against him. In a related issue, appellant next complains his trial counsel was ineffective for failing to object to the inclusion of the enhancement offenses in the punishment jury charge for each case. Because we have already concluded the trial court did not err by requiring the jury to determine whether appellant had committed the enhancement offenses in each case, counsel could not have been ineffective for failing to object to the jury charge. We resolve appellant's second issue against him as well. We affirm the trial court's judgments.