Merlin James v. State

Opinion issued April 19, 2012

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-10-00693-CR

———————————

Merlin James , Appellant

V.

The State of

Texas , Appellee

On Appeal from the 248th District Court

Harris County, Texas

Trial Court Case No. 1239442

O P I N I O N

A jury

convicted appellant Merlin James of aggravated robbery. Tex. Penal Code Ann. § 29. 03 (West 2011). The judgment reflects an affirmative

deadly-weapon finding. James pleaded

“true” to two prior convictions and the court sentenced him to 45 years in

prison.

James presents three issues on

appeal: (1) the evidence was legally insufficient to show that an air

rifle used in the robbery was a deadly weapon; (2) the court erred in

refusing to instruct the jury on the lesser-included offense of theft; and

(3) the court erred by allowing the State to amend an enhancement

allegation contained in the indictment after trial had begun. We modify the judgment to reflect that James

pleaded “true” to two prior convictions and that the court found those

convictions to be “true,” and we affirm the judgment of the trial court as

modified.

Background

Two brothers and their 11-year-old

cousin were walking home from a sandwich shop after dark on a sidewalk when

they were passed by a minivan with its headlights off. The van abruptly turned around and stopped

near them. James, who was driving the

van, got out, approached the complainants, and said, “You know what’s up. You know what time it is.” The brothers understood that they were being

robbed.

At some point during the encounter,

the sliding minivan door opened to reveal another passenger who said, “Let’s

light [them] up.” James told the

passenger to get the “AK” and said, “We going shoot one of them.” The passenger reached back to retrieve an air

rifle and held it in his lap while pointing the barrel at the

complainants. Meanwhile, the brothers

placed their personal valuables in the sandwich bag for James to take. At trial, one of the brothers testified that

the sight of the “AK” made him fear for his life.

As James walked back toward the

minivan, a police car on patrol approached from behind with its emergency

lights and spotlight on. The officers

detained and questioned everyone at the scene.

Concluding that they had just come upon a robbery, they arrested James

and the two passengers in the minivan.

James was tried for robbery and

aggravated robbery along with co-defendant Josef Kawaski

Jones. The jury convicted both of

aggravated robbery, and the court sentenced James to 45 years in prison.

Analysis

I.

Legal sufficiency of the evidence

James argues in his first issue

that the evidence presented at trial was legally insufficient to support the

conviction for aggravated robbery. He

argues that the State failed to present legally sufficient evidence that the

air rifle brandished during the episode qualifies as a “deadly weapon,” the use

or exhibition of which enhances the charge of robbery to aggravated

robbery. See Tex. Penal

Code Ann. § 29.03 (establishing enhancement

elements of aggravated robbery).

When reviewing the legal

sufficiency of the evidence, we consider the evidence in the light most

favorable to the verdict and determine whether any rational trier of fact could

have found each and every element of the offense beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 319 , 99 S. Ct. 2781, 2789 (1979);

Drichas v. State , 175 S.W.3d 795, 798 (Tex. Crim.

App. 2005). We do not resolve any

conflict of fact, weigh any evidence, or evaluate the credibility of any

witnesses, as these are the functions of the trier of fact. Dewberry v. State , 4 S.W.3d 735,

740 (Tex. Crim. App. 1999).

Rather, an appellate court presumes that the factfinder resolved any

conflicting evidence in favor of the verdict and defers to that resolution so

long as it is supported by the record. Jackson , 443 U.S. at 326 ,

99 S. Ct. at 2793 ; Clayton v. State ,

235 S.W.3d 772, 778 (Tex. Crim. App. 2007).

An actor commits an aggravated

robbery if he commits a robbery under Section 29.02 of the Penal Code

while he “uses or exhibits a deadly weapon.”

Tex. Penal Code Ann.

§ 29.03(a )( 2).

A “deadly weapon” is defined by the Penal Code as “(A) a firearm or

anything manifestly designed, made, or adapted for the purpose of inflicting

death or serious bodily injury; or (B) anything that in the manner of its use

or intended use is capable of causing death or serious bodily injury.” Id. § 1.07(a )( 17). Serious bodily injury is defined as “ bodily injury that

creates a substantial risk of death or that causes death, serious permanent

disfigurement, or protracted loss or impairment of the function of any bodily

member or organ.” Id. § 1.07(a )( 46). Our determination of whether the State introduced

sufficient evidence to prove that a given air rifle qualifies as a “deadly

weapon” requires a case-by-case analysis in light of the statutory

standards. Compare Campbell v. State ,

577 S.W.2d 493 , 495–96 (Tex. Crim. App. 1979) (finding sufficient evidence of

an air pistol’s deadly-weapon status when testimony established that it could

kill a person if fired at close range), with

Mosley v. State , 545 S.W.2d 144 , 145–46 (Tex. Crim. App. 1976) (holding

that BB gun did not fit the statutory definition of a “deadly weapon” when

expert witness testified that its projectiles could not penetrate the skin).

The State presented evidence at

trial to show that the air rifle used during the robbery was a deadly

weapon. D. Eudaley, a firearms expert

for the Houston Police Department, testified that a lead pellet would need to

travel at least 290 feet per second in order to penetrate the skin, and that it

would always embed itself under the skin at 365 feet per second. She testified that she had conducted velocity

tests of the rifle by using lead pellets, and she concluded that these were

propelled at between 479 and 524 feet per second, with an average of 508 feet

per second. In sum, Eudaley testified

that the rifle propelled pellets at speeds in excess of what is required to

penetrate the surface tissues of the human body.

This testimony was legally

sufficient to establish that the air rifle was a “deadly weapon” as defined by

the Penal Code. Based on Eudaley’s expert

testimony, a factfinder could conclude beyond a reasonable doubt that, if used

to shoot a person in the eye or other sensitive part of the body, the air rifle

was capable of causing serious bodily injury, including the possibility of

“permanent disfigurement” or “protracted loss or impairment of the function of

any bodily member or organ.” See Tex. Penal

Code Ann. § 1.07(a )( 17), (46). Viewing the evidence in the light most

favorable to the verdict, we hold the State’s evidence sufficient to support

the jury’s conclusion about the deadly-weapon status of the air rifle. See Jackson , 443 U.S. at 319 , 99 S. Ct. at

2789 ; Drichas ,

175 S.W.3d at 798 ; c f. Adame v. State , 69 S.W.3d 581, 582

(Tex. Crim. App. 2002) (holding that State had presented sufficient evidence

that a particular BB gun was capable of causing serious bodily injury).

James argues that despite Eudaley’s testimony

about the capability of the air rifle, precedent precludes a finding of

deadly-weapon status here because, first, there was no evidence that the air

rifle was loaded during the robbery and, second, the air rifle’s barrel was

pointed only generally at the complainants but not up close or in their faces.

Whether an airgun is loaded at the time of a

criminal transaction is insignificant to the deadly-weapon analysis, since the

crucial question is only whether it is “capable of causing serious bodily

injury.” Adame , 69

S.W.3d at 582 . Therefore, the fact that the State did

not provide evidence at trial that the airgun was loaded does not undermine the

deadly-weapon finding.

Moreover, James’s objections to the sufficiency

of the evidence based upon the proximity and direction of the airgun’s barrel

are not germane to the deadly-weapon finding, but rather to whether the weapon

was “use[d] or exhibit[ ed ]” during the commission of

a robbery. Tex. Penal Code Ann. § 29.03(a )( 2). James does not dispute that the State

presented evidence that the air rifle was used during the robbery. The complaining witnesses testified that they

had seen the air rifle held by James’s accomplice, that it was pointed at them,

and that it instilled fear in them. When

there is no dispute about whether an airgun has been used or exhibited during a

robbery, the question of whether the offense is enhanced to aggravated robbery

hinges on the capability of the airgun. See Adame ,

69 S.W.3d at 582 (“[T]his case is not a ‘used or exhibited’ case since the

evidence clearly shows that appellant used and exhibited the BB gun during the

convenience store robbery. The issue

here is whether appellant’s BB gun was ‘capable’ of causing serious bodily

injury.”). As discussed above, there was

legally sufficient evidence to find that the airgun was capable of causing

serious bodily injury, and therefore we need not consider the proximity of the

airgun’s barrel or where it was pointed in our deadly-weapon analysis. The visible presence of a deadly weapon on a

criminal actor, even if it is not menacingly pointed at another, satisfies the

statutory element of use or exhibition. See McCain v. State , 22 S.W.3d 497, 503

(Tex. Crim. App. 2000) (finding legally sufficient evidence that butcher knife

was used or exhibited during robbery when it was only partially exposed in

defendant’s back pocket).

Based on the evidence, a rational jury could have

found that a deadly weapon was used or exhibited in the course of the

robbery. Therefore, we conclude that the

evidence was sufficient to sustain the verdict that James was guilty of

aggravated robbery. We overrule James’s

first issue.

II.

Lesser-included offense

James next argues that the trial court

erred in denying his request that the jury be instructed on the lesser-included

offense of theft. See Tex. Code

Crim. Proc. Ann. art. 37.09 (West 2006) (prescribing criteria for lesser-included

offense). To determine whether a

defendant is entitled to an instruction on a lesser-included offense, courts

apply a two-pronged test. See Ex parte Watson , 306

S.W.3d 259 , 262–63 (Tex. Crim. App. 2009); Hall

v. State , 225 S.W.3d 524 , 535–36 (Tex. Crim. App. 2007). The first prong of the test requires the court

to use the “cognate pleadings” approach to determine whether an offense is a lesser-included

offense of another offense. Watson , 306 S.W.3d at

271 –72 . This

standard is satisfied if the indictment for the greater-inclusive offense

either alleges all of the elements of the lesser-included offense, or it

alleges elements plus facts from which all of the elements of the lesser-included

offense may be deduced. Id. at 273 . This inquiry is a question of law. Hall ,

225 S.W.3d at 535 .

The second prong asks whether there is any evidence that supports giving

the lesser-included offense instruction to the jury. Id. at 536 . A

defendant is entitled to a requested instruction on a lesser-included offense

when some evidence admitted at trial would permit a rational jury to find that

if the defendant is guilty, he is guilty only of the lesser-included offense. Id. Anything more than a scintilla of evidence is

sufficient to entitle a defendant to the lesser charge. Id.

As to the first prong, theft is a

lesser-included offense of both robbery and aggravated robbery. See Bignall v. State , 887 S.W.2d 21, 23

(Tex. Crim. App. 1994). This is derived

from the Penal Code, because an element of aggravated robbery is commission of

a robbery, and an element of robbery is commission of a theft. See

Tex. Penal Code Ann. §§ 29.02 (robbery), 29.03 (aggravated

robbery), 31.03 (theft).

The

second prong requires that there be more than a scintilla of evidence which

would permit a rational jury to conclude that James is guilty of theft rather

than robbery or aggravated robbery. See Hall , 225 S.W.3d

at 536 . The presence of a threat

or of a deadly weapon is what distinguishes robbery and aggravated robbery from

theft. Bignall , 887 S.W.2d at 23 ; Holiday v. State , 14 S.W.3d 784, 788

(Tex. App.—Houston [1st Dist.] 2000, pet. ref’d ). James argues that had the charge included an

instruction on theft, the jury could have disbelieved the complaining witnesses

about having seen the air rifle and feeling threatened by it, and it thereby

could have convicted him of theft.

The two complaining witnesses both

testified to seeing the air rifle pointed in their direction and feeling

intimidated by James’s aggressive demeanor.

The mere possibility that the jury could have

simultaneously credited the complaining witnesses about the taking of their

property while also disbelieving them about threats made or perceived is

inadequate to entitle James to an instruction on theft. See Bignall , 887 S.W.2d at 24 (“[I]t is not enough that the

jury may disbelieve crucial evidence pertaining to the greater offense; there

must be some evidence directly germane to a lesser included offense for the

factfinder to consider before an instruction on a lesser included offense is

warranted.”); Holiday , 14 S.W.3d at

788 (affirming trial court’s denial of requested instructions for

lesser-included offenses when there was no evidence in the record showing that

the appellant could have been guilty only of lesser-included offenses). There was no testimony directly germane to

the offense of theft. Therefore, the

trial court did not err in denying the defense’s request for a jury instruction

on theft. Accordingly, we overrule

James’s second issue.

III.

Amended enhancement allegation in indictment

In his third and final issue, James

contends that the trial court erred in allowing the State to amend an

enhancement allegation contained in the indictment. The indictment as originally written alleged

that “on FEBRUARY 2, 2005, in Cause No. 0410212870,” James was previously

convicted of the felony of “INJURY OF THE ELDERLY” in the “377TH DISTRICT COURT

of HARRIS County, Texas.” In fact, James

had been previously convicted of injury to a child in the 377th District Court

of Victoria County. Consistent with the

details of the prior offense, twenty-seven days before the first day of trial,

the State filed with the trial court and served on defense counsel its “Notice

of Intention to Use Prior Convictions and Extraneous Offenses,” in which it announced

its intention to introduce evidence of James’s prior conviction of “INJURY TO

CHILD ,ELDERLY,DISABLED INDIVDUAL” in “VICTORIA / 377 /

2-2-05.” The notice expressly stated the

State’s intention to introduce the prior offense to “enhance the range of

punishment for the Defendant,” among other purposes. The variance between “elderly” and “child” is

not relevant to the identification of the alleged statutory offense in this

case, since injury to either constitutes the same

offense under the Penal Code. See Tex.

Penal Code Ann. § 22.04(a)

(West 2011).

After trial on the merits commenced

and the jury returned a guilty verdict, but before the punishment phase of the

trial began, James moved to quash this enhancement allegation. In response, the State orally moved for leave

of the court to amend the indictment so as to correct the victim and county

information for the prior conviction.

Over James’s objection, the court granted the State’s motion to amend

the enhancement allegation and made a handwritten, interlineal correction on

the face of the indictment. James

pleaded “true” to the amended enhancement allegation.

A. Amendments to indictment

Article 28.10 of the Code of

Criminal Procedure provides the guidelines for when an indictment can be

amended:

AMENDMENT OF INDICTMENT OR INFORMATION

(a) After notice to the defendant, a matter of form or substance in

an indictment or information may be amended at any time before the date the

trial on the merits commences. On the

request of the defendant, the court shall allow the defendant not less than 10

days, or a shorter period if requested by the defendant, to respond to the

amended indictment or information.

(b) A matter of form or substance in an indictment or information

may also be amended after the trial on the merits commences if the defendant

does not object.

(c) An indictment or information may not be amended over the

defendant’s objection as to form or substance if the amended indictment or

information charges the defendant with an additional or different offense or if

the substantial rights of the defendant are prejudiced.

Tex. Code

Crim. Proc. Ann. art. 28.10. The Court of Criminal Appeals provided the

framework for interpreting Article 28.10 in Hillin v. State , 808 S.W.2d 486 (Tex. Crim. App. 1991) (plurality

op.). Hillin

was originally indicted for aggravated assault on a correctional officer “by

throwing porcelain.” Hillin , 808 S.W.2d at 486 . On the first day of trial, Hillin directly attacked the allegation regarding the

substance of the object used to perpetrate the assault. Id. In response to that strategy, the State

moved on the second day of trial to amend the indictment to say that Hillin had committed the assault “by throwing a

commode.” Id. at 486–87. The trial court amended the indictment over Hillin’s objection, and the jury subsequently convicted

him. Id.

The Court of Criminal Appeals

reversed the conviction and remanded the case to the trial court. Id. at 489 . The Hillin plurality

interpreted Article 28.10 of the Code of Criminal Procedure to give a

criminal defendant “an absolute veto power” over amendments to the indictment

after trial begins:

. . .

[Article 28.10(b)] allows the State to amend the indictment after the

trial on the merits has commenced unless the defendant has interposed a timely

objection to the attempted amendment. The

language and wording of Article 28.10(b), supra, is clear and unambiguous

and if the defendant, after trial on the merits has commenced, interposes a

timely objection to the State’s proposed amendment, be it to form or substance,

such amendment is absolutely prohibited. It appears the court of appeals was of the opinion

that in regard to Section (b) after a trial amendment, a “substantial

rights” analysis was to be performed pursuant to Section (c) which

prohibits the State from amending the indictment if such amendment transformed

the allegations to additional or different offenses or prejudiced the

substantial rights of the defendant. We

do not find such reasoning persuasive.

Article 28.10(c)

prohibits the State from amending the indictment over a defense objection if

such amendment results in an additional or different offense or if it adversely

prejudices the substantial rights of the defendant. Section (c) makes no mention as to

whether it applies to Sections (a) and (b) or only to one of the preceding

sections. We conclude that an analysis

pursuant to Section (c) could only be logically applied to an indictment

amendment which falls under the purview of Section (a). . . .

At first blush one might

suspect that the provisions of Section (c) are applicable to both Sections (a)

and (b) because of the structure of Article 28.10. However, as previously stated, a defendant

under the clear language of Section (b) has an absolute veto power over

proposed amendments after trial on the merits has commenced.

Id. at 488–89

(footnotes omitted); see also Brown v.

State , 828 S.W.2d 762, 763 (Tex. Crim. App. 1991) (“[T]he clear import of

our holding in Hillin

was that the requisites of Article 28.10(b), which inferentially prohibit

trial amendments over objection, are absolute.”).

Although Hillin concerned a case in which the State had attempted an amendment to

the main charge of the indictment during the guilt-innocence phase of the

trial, this court has relied on Hillin and the

subsequent opinion on rehearing in Sodipo v. State ,

815 S.W.2d 551 (Tex. Crim. App. 1991), to hold that an amendment to an

enhancement paragraph in the indictment at the beginning of the punishment

phase of a trial is likewise subject to the defendant’s absolute veto under

Article 28.10(b). See Boutte v.

State , 824 S.W.2d 322, 323 (Tex. App.—Houston [1st Dist.] 1992, pet ref’d ). Under Boutte , when the trial court erroneously

permits the State to amend an enhancement paragraph in the indictment over the

defendant’s objection at the commencement of the punishment phase of trial, the

remedy was for this court to reverse and remand the case to the trial court for

a new trial on punishment only. Id. at 324 .

In arguing for the

validity of the amendment in this case, the State relies upon Simmons v. State , 288 S.W.3d 72 (Tex.

App.—Houston [1st Dist.] 2009, pet ref’d ), in which

this court overruled a criminal appellant’s challenge to an amendment to the

indictment. That opinion is

distinguishable because its dispositive reasoning was that the appellant had

failed to prove that the amendment by interlineation had occurred after trial

began. Simmons , 288 S.W.3d at 79–80 . In this

case, i t is undisputed that the State moved to amend one of the

enhancement paragraphs in the indictment after trial on the merits began and

that the trial court effectuated the amendment over the defendant’s

objection. Therefore, following Hillen and Boutte , we hold that

the trial court erred in making the State’s requested amendment.

We

acknowledge that other courts of appeals have held that Article 28.10 does

not apply to enhancement paragraphs in the indictment. See, e.g. , Thomas v. State ,

286 S.W.3d 109, 114 (Tex. App.—Houston [14th Dist.] 2009, no pet.); Stautzenberger v. State , 232 S.W.3d 323 , 327–28 (Tex.

App.—Houston [14th Dist.] 2007, no pet.); Johnson

v. State , 214 S.W.3d 157 , 158–59 (Tex. App.—Amarillo 2007, no pet.). We cannot follow their lead because this

court already has binding, on-point precedent in Boutte . The doctrine of stare decisis

compels us to adhere to our court’s precedent absent some special justification

for departing from it. See, e.g. , Dickerson v. United States , 530 U.S.

428, 443 , 120 S. Ct. 2326, 2336 (2000); Ex

parte Lewis , 219 S.W.3d 335, 338 (Tex. Crim. App. 2007). No such special justification for abandoning

our precedent has been suggested in this case.

B.

Harmless

error

The Boutte court,

following Hillin ,

remanded the case for a new trial on punishment when the trial court amended

the enhancement allegation over the defendant’s objection. Boutte , 824 S.W.2d at 324 . The Boutte opinion did not apply a harm analysis, following Sodipo , for the

proposition that a violation of Article 28.10 was not subject to

harmless-error review. See Boutte , 824

S.W.2d at 323 . This court has

subsequently recognized that Sodipo has been implicitly overruled in that regard. See Conner

v. State , No. 01-00-00383-CR, 2001 WL 204223 , at *2 (Tex. App.—Houston [1st

Dist.] Mar. 1, 2001, pet. ref’d ) ( mem . op., not

designated for publication) (citing Wright

v. State , 28 S.W.3d 526 , 531–32 (Tex. Crim. App. 2000)). Thus, we will disregard the trial court’s error

if it did not affect James’s substantial rights. See Tex. R. App. P. 44.2(b); Gray v. State , 159 S.W.3d 95, 98 (Tex.

Crim. App. 2005) (stating that “when only a statutory violation is claimed, the

error must be treated as non-constitutional for the purpose of conducting a

harm analysis”).

James’s right to have

adequate prior notice of enhancement allegations against him is “of

constitutional origin.” Villescas v. State , 189 S.W.3d 290, 294 (Tex.

Crim. App. 2006) (citing Oyler v. Boles , 368 U.S. 448 , 82 S. Ct. 501

(1962)). Although a defendant is

constitutionally entitled to adequate prior notice of enhancement allegations,

“alleging an enhancement in the indictment is not the only reasonable method of

conveying such notice.” Brooks v. State , 957

S.W.2d 30, 33 (Tex. Crim. App. 1997).

The use of a prior conviction as a sentencing enhancement must be pleaded

in some form, but it need not be pleaded in the indictment, “although it is

permissible and perhaps preferable to do so.” Id. at 34 . “In

determining whether appellant received sufficient notice of the State’s intent

to enhance punishment, we look to the record to identify whether appellant’s

defense was impaired by the timing of the State’s notice.” Pelache v. State , 324 S.W.3d 568, 577 (Tex.

Crim. App. 2010).

Twenty-seven days

before trial in this case, the State filed with the trial court and served on

James’s counsel a “Notice of Intention to Use Prior Convictions and

Extraneous Offenses” which reflected the correct charge and county information

regarding James’s prior conviction. This

notice was sufficient to apprise James of the prior convictions that the State

intended to use against him as punishment enhancements. See id.

at 569 –70 (concluding that

“appellant’s federal constitutional due-process rights were not violated” when the

State notified the defendant 16 days before the punishment hearing that it

intended to use prior convictions for enhancement purposes); Villescas , 189

S.W.3d at 295 (concluding that “appellant was given sufficient notice of the

enhancement allegation” when the State filed and served a “notice of

enhancement” 6 days before trial); see

also Brooks , 957 S.W.2d at 34 (holding that “the requisite notice was

conveyed” when the State filed a motion to add an enhancement paragraph to

indictment and the court granted the motion but indictment was not physically

altered); Thompson v. State , Nos.

01-06-01084-CR & 01-06-01085-CR, 2008 WL 2756596 , at *4 (Tex. App.—Houston

[1st Dist.] July 17, 2008, pet. ref’d )

( mem . op., not designated for publication) (holding

that “Notice of Intention to Use Evidence of Prior Convictions and Extraneous

Offenses” received by defendant 3 months before trial provided sufficient

notice that a prior conviction would be used to enhance sentencing). Moreover, “when a defendant has no defense to

the enhancement allegation and has not suggested the need for a continuance in

order to prepare one, notice given at the beginning of the punishment phase

satisfies the federal constitution.” Villescas , 189 S.W.3d at 294 .

James has not proposed a defense to the enhancement allegation nor

suggested that he needed a continuance.

In light of the sufficient timing of the State’s notice and James’s lack

of a substantive defense to the challenged enhancement paragraph, we hold that

the trial court’s erroneous amendment of the indictment did not affect James’s

substantial rights. Tex. R. App. P. 44.2(b).

We overrule James’s third issue.

Modification of judgment

The

trial court’s judgment does not accurately comport with the reporter’s record

in that it does not reflect James’s pleas of “true” to two enhancement

paragraphs — including the amended

enhancement paragraph — and the

trial court’s implied findings of “true” by way of accepting those pleas. “[A]n appellate court has authority to reform

a judgment to include an affirmative finding to make the record speak the truth

when the matter has been called to its attention by any source.” French

v. State , 830 S.W.2d 607, 609 (Tex. Crim. App. 1992) (citing Asberry v. State , 813 S.W.2d 526, 531 (Tex.

App. — Dallas 1991, pet. ref’d )); accord Nolan v. State , 39 S.W.3d 697, 698 (Tex.

App. — Houston [1st Dist.] 2001, no

pet.) ( holding that an appellate court has the power

to correct and reform a trial judgment to make the record speak the truth when

it has the necessary data and information to do so); see also Tex. R. App. P. 43.2(b).

The record supports modification of the

judgment with regard to James’s pleas to and the trial court’s findings on the

enhancement paragraphs. Accordingly, the

trial court’s judgment is modified to reflect that James pleaded “true” to both

enhancement paragraphs and that the trial court found both enhancement

paragraphs to be “true.”

Conclusion

We modify

the judgment to reflect that James pleaded “true” to the first and second

enhancement paragraphs and the trial court found those enhancement paragraphs

to be “true,” and we affirm the judgment of the trial court as modified.

Michael

Massengale

Justice

Panel consists of Justices Keyes, Higley, and

Massengale.

Justice Keyes, concurring.

Publish. Tex. R. App. P. 47.2( b).