JARROD CHOICE v. THE STATE OF TEXAS (2012)

OPINION

Opinion By Justice Bridges

Jarrod Choice appeals his theft conviction in cause number 05–11–00629–CR and his evading arrest conviction in cause number 05–11–00630–CR.   A jury convicted appellant and sentenced him to eight years' confinement in 05–11–00629–CR and fifteen years' confinement in cause number 05–11–00630–CR.   In two points of error, appellant argues the trial court committed fundamental error in the punishment phase jury charge and erred in permitting the State to amend an enhancement paragraph near the conclusion of the punishment phase of trial.   We affirm the trial court's judgments.

Because appellant does not challenge the sufficiency of the evidence to support his convictions, only a brief recitation of the facts is necessary.   On May 26, 2010, the clerk at a 7–Eleven store in Mesquite saw appellant and another man enter the store and proceed immediately to a storage area at the back of the store at approximately 3:30 a.m. The clerk asked what the men were doing, and appellant's accomplice filled a pillowcase with cigarettes.   Appellant, who had first tried unsuccessfully to enter the locked store office, began taking cigarettes off the shelf and putting them in a second pillowcase.   The store clerk was “in the back” trying to press the emergency button behind the cash register.   Appellant saw the clerk about to press the button and told him “not to even think about it.”   Appellant and his accomplice left the store and got into a white car parked at a gas pump outside.   After the car drove away, the clerk called 911 and described what had happened and where the car was going.

Mesquite police officer Daniel Everett testified he went to the 7–Eleven on the night of the offense while other officers looked for the getaway vehicle.   While Everett was at the store trying to get more information about the offense, he heard over the radio that other officers had found the getaway car and were pursuing it.   Following a five or ten minute chase, appellant was apprehended.   Appellant was charged with theft and evading arrest.   The indictment in the theft case contained two enhancement paragraphs alleging prior convictions for unauthorized use of a motor vehicle and burglary of a building.   The evading arrest indictment did not contain any enhancement paragraphs.   On the day jury selection began, the State filed a “Notice of the State's Special Plea of Enhancement Paragraphs” in both cases.   The notice stated it was “written notice of the State's intention to submit enhancement paragraphs to the jury on the issue of punishment, thereby increasing the range of punishment.”   The notice listed two aggravated assault convictions.   At punishment, the State made an oral motion to strike the two enhancement paragraphs listed in the theft indictment, referred to the “notice of enhancement of the punishment range,” and indicated the State was “just alleging the aggravated assault paragraph” for both offenses.   Appellant objected “on the basis of notice.”   The trial court overruled appellant's objection.   The jury charge at punishment in each case listed one aggravated assault for enhancement purposes and stated appellant “had entered a plea of not true” to the enhancement paragraph.   The jury found the enhancement paragraph true in each case and sentenced appellant accordingly.   These appeals followed.

In his first point of error, appellant argues the trial court committed fundamental error in the punishment phase jury charge by submitting an enhancement paragraph on which appellant had never been arraigned.   In making this argument, appellant relies on article 36.01 of the code of criminal procedure, which provides:  a jury being impaneled in any criminal action, the indictment or information shall be read to the jury, and when prior convictions are alleged for purposes of enhancement only and are not jurisdictional, that portion of the indictment or information reciting such convictions shall not be read until the hearing on punishment is held.  Tex.Code Crim. Proc. Ann. art. 36.01(a)(1) (West 2007).   The record shows the state struck the enhancement paragraphs in the theft indictment and was “just alleging the aggravated assault paragraph” for both offenses.   Appellant objected “on the basis of notice.”

Because appellant did not object to the failure to read the aggravated assault enhancement paragraph or enter his plea, he must show egregious harm before relief may be granted.   See Marshall v. State, 185 S.W.3d 899, 903 (Tex.Crim.App.2006).   Egregious harm is a difficult standard that must be determined on a case-by-case basis.   Ellison v. State, 86 S.W.3d 226, 227 (Tex.Crim.App.2002);  Green v. State, 233 S.W.3d 72, 78 (Tex.App.—Houston [14 th Dist.] 2007, pet. ref'd).   Egregious harm due to charge error exists if the error affects the very basis of the case, deprives the accused of a valuable right, or vitally affects a defensive theory.  Allen v. State, 253 S.W.3d 260, 264 (Tex.Crim.App.2008).   In sum, the error must have been so harmful as to effectively deny the accused a fair and impartial trial.   See Warner v. State, 245 S.W.3d 458, 461 (Tex.Crim.App.2008);  Green, 233 S.W.3d at 78.   Neither party has a burden to show harm;  rather, we review the record before us and make an independent assessment as to whether the jury's verdict was affected by the charge error.   See Warner, 245 S.W.3d at 464;  Swearingen v. State, 270 S.W.3d 804, 813 (Tex.App.—Austin 2008, pet. ref'd).   In determining whether appellant suffered egregious harm, we consider (1) the entire jury charge, (2) the state of the evidence, including the contested issues and weight of the probative evidence, (3) arguments made by counsel, and (4) any other relevant information revealed by the record as a whole.  Allen, 253 S.W.3d at 264.

Here, prior to jury selection, the State notified appellant of its intention to use two aggravated assault convictions for enhancement purposes.   The jury charge stated the indictment alleged an aggravated assault conviction for enhancement purposes.   The charge stated appellant had “entered a plea of not true” to the allegation.   The evidence showed appellant stole more than $1000 worth of cigarettes and was apprehended after leading police on a car chase.   Although appellant objected to the inclusion of the aggravated assault enhancement paragraph “on the basis of notice,” appellant did not object to the introduction of evidence appellant had prior convictions for aggravated assault in 1994 and 1997, unauthorized use of a motor vehicle, theft over $500, evading arrest, theft of over $500 of a public service, evading arrest, theft, burglary of a building, and criminal trespass.   The prosecutor stated during closing argument that the jury had to find the aggravated assault conviction true beyond a reasonable doubt for enhancement purposes.   Based on this record, we cannot conclude appellant was egregiously harmed by the failure to read the aggravated assault enhancement paragraph or enter his plea.   See Marshall, 185 S.W.3d at 903.   We overrule appellant's first point of error.

In his second point of error, appellant argues the trial court erred in permitting the prosecution to amend the enhancement paragraphs near the conclusion of the punishment phase of trial.   In making this argument, appellant cites article 28.10 of the code of criminal procedure, which provides:

(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 (West 2006).   An enhancement allegation that is not part of the State's case-in-chief is not part of the “substance” of the indictment.   See Thomas v. State, 286 S.W.3d 109, 114 (Tex.App.—Houston [14 th Dist.] 2009, no pet.).   Thus, article 28.10 does not apply to the amendment of enhancement allegations.   See id. (citing Stautzenberger v. State, 232 S.W.3d 323, 327 (Tex.App.—Houston [14 th Dist.] 2007, no pet.)) (noting that “enhancement allegations are mere surplusage” and abandoning surplusage “does not invoke the requirements of Article 28.10(c)”).  Because article 28.10 was not applicable, we conclude appellant's argument lacks merit.   See Thomas, 286 S.W.3d at 114.   We overrule appellant's second point of error.

We affirm the trial court's judgments.

DAVID L. BRIDGES

JUSTICE

Do Not Publish

Tex.R.App. P. 47

110629F.U05

S

Court of AppealsFifth District of Texas at DallasJUDGMENT

JARROD CHOICE, Appellant

No. 05–11–00629–CR V.

THE STATE OF TEXAS, AppelleeAppeal from the 194 th District Court of Dallas County, Texas.  (Tr.Ct.No.F10–41375–M).

Opinion delivered by Justice Bridges, Justices Bridges, FitzGerald, and Lang. Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered July 31, 2012.

/David L. Bridges/

S

Court of AppealsFifth District of Texas at DallasJUDGMENT

JARROD CHOICE, Appellant

No. 05–11–00630–CR V.

THE STATE OF TEXAS, AppelleeAppeal from the 194 th District Court of Dallas County, Texas.  (Tr.Ct.No.F10–41376–M).

Opinion delivered by Justice Bridges, Justices Bridges, FitzGerald, and Lang. Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered July 31, 2012.

/David L. Bridges/

DAVID L. BRIDGES

JUSTICE

DAVID L. BRIDGES JUSTICE