# Merlin James v. State

> Texas Court of Appeals, 1st District (Houston) · April 19, 2012 · 425 S.W.3d 492

URL: https://www.frixlaw.com/law-library/cases/3124030

## Case

- **Full name:** Merlin JAMES, Appellant v. the STATE of Texas, Appellee
- **Court:** Texas Court of Appeals, 1st District (Houston)
- **Decided:** April 19, 2012
- **Citations:** 425 S.W.3d 492; 2012 Tex. App. LEXIS 3019; 2012 WL 1355731
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Keyes, Higley, Massengale
- **Cited by:** 13 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3124030

## How later opinions describe it (automated extraction)

- explaining that the court has recognized that Sodipo’s holding that no harm analysis is required when a 28.10 violation occurs has been implicitly overruled
- finding harmless the error in allowing amendment of punishment enhancement
- affirming trial court’s denial of requested instruction for lesser-included offense when there was no testimony germane to the offense of theft

## Opinion text

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).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3124030. Public record. Not legal advice.