No. 2-04-038-CR
Delivered: August 26, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
Appeal from the 355th District Court of Hood County.
Andrew Ottaway, Granbury, TX, for appellant. Robert T. Christian, District Attorney, Granbury, TX, for appellee.
Panel A: CAYCE, C.J., WALKER and McCOY, JJ.
BOB McCOY Justice.
I. INTRODUCTION
Ronnie Dean Sheeley a/k/a Ronny Dean Sheeley ("Sheeley") appeals from his conviction of theft, which was enhanced by two prior theft convictions to a second-degree felony. We affirm. II. FACTUAL BACKGROUND
On November 12, 2003, Sheeley was indicted for the offense of theft under $1500. The indictment also contained one enhancement count for a 2002 North Carolina robbery conviction and three habitual counts for the 1994 Texas convictions of robbery, unauthorized use of a motor vehicle, and burglary of a motor vehicle. Prior to voir dire, Sheeley filed a "Motion to Limit State's Remarks on Voir Dire," wherein he asked the trial court to "order the State not to mention `a person' going to the pen, getting out, then going back, etc[.], as a pretext to bring inadmissible evidence before the jury prior to the punishment phase." The trial court denied the motion, but instructed the prosecutor, before voir dire, to couch all references to the enhancement provisions in hypothetical terms and in accordance with the law. See e.g., Martinez v. State, 588 S.W.2d 954, 956 (Tex.Crim.App. [Panel Op.] 1979). During voir dire, the prosecutor addressed the offense of theft and the various grade elevation based on the object stolen, the value of the property stolen, and any prior theft convictions. As he continued to examine the venire, the prosecutor discussed jurisdictional enhancement for two prior theft convictions and the applicable punishment range for a state jail felony. As the prosecutor began explaining non-jurisdictional enhancement provisions related to repeat and habitual offenders, Sheeley's trial counsel objected to the prosecutor's explanation, which the trial court overruled. The prosecutor went on to explain non-jurisdictional enhancement in general terms and gave an example applying jurisdictional and non-jurisdictional enhancements in the context of a DWI prosecution. The record indicates that some of the members of the venire had difficulty understanding the various enhancement provisions, and the prosecutor attempted to clarify the issues and qualify the venire on consideration of the full range of punishment. The record also reflects that on two occasions the prosecutor informed the venire that he was speaking hypothetically and not about the instant case. After hearing the evidence, the jury found Sheeley guilty of the offense of theft as alleged in the indictment and assessed punishment at twenty years' confinement. III. DISCUSSION
In a single point, Sheeley complains that the prosecutor violated Article I, Section 10 of the Texas Constitution and Article 36.01 of the Texas Code of Criminal Procedure by telling the venire panel about Sheeley's prior convictions during voir dire. Under Texas law, it is well settled that both the State and the defense are entitled to question the jury panel on the applicable law relating to enhanced punishments. See Robinson v. State, 817 S.W.2d 822, 826 (Tex. App.-Fort Worth 1991, pet. ref'd) (citing Martinez, 588 S.W.2d at 956). Referring generally to comments made by the prosecutor while qualifying the panel on the full range of punishment, Sheeley argues that the prosecutor's statements went beyond a hypothetical explanation of the procedures regarding enhanced punishments and, instead, informed the jury that Sheeley had previously been convicted of theft. See, e.g., Frausto v. State, 642 S.W.2d 506, 508 (Tex.Crim.App. 1982) (concluding that prosecutor's statements — which recounted virtually all allegation contained in enhancement paragraphs, including offense, cause number, date, and court of conviction — were functional equivalent of reading enhancement paragraphs to the panel in violation of Article 36.01). However, we have examined the statements cited by Sheeley and do not interpret them in that manner. To the contrary, the record shows that the prosecutor did not read the non-jurisdictional enhancement paragraphs to the venire and did not inform the venire of the details related to such enhancements. Accordingly, we overrule Sheeley's sole point. IV. CONCLUSION
Having overruled Sheeley's sole point, we affirm the trial court's judgment.