author: HOLLY M. KIRBY, J.,

text:
    Tommy MURRAY v. CHRISTIAN METHODIST EPISCOPAL CHURCH.
    Court of Appeals of Tennessee, Western Section, at Jackson.
    Nov. 17, 2003 Session.
    March 23, 2004.
    Permission to Appeal Denied by Supreme Court Oct. 4, 2004.

      Nathan B. Pride, Jackson, Tennessee, for the appellant, Christian Methodist Episcopal Church.

      J. Mark Benfield, Memphis, Tennessee, for the appellee, Tommy Murray.
   OPINION

HOLLY M. KIRBY, J.,

delivered the opinion of the court,

in which W. FRANK CRAWFORD, P.J., W.S., and ALAN E. HIGHERS, J., joined.

This case involves the breach of a construction contract. The plaintiff performed construction work on three apartment complexes, but was not paid in full for his services. He sued the defendant church, which allegedly owned the apartments, seeking the rest of the money due for his work. The church moved to dismiss, asserting it had no ownership interest in the apartment complexes. Discovery disputes arose. The trial court granted a default judgment in favor of the plaintiff, finding that the church failed to cooperate in the discovery process. The trial court denied the church’s motion to set aside the default judgment. The church now appeals. We reverse, finding that under the circumstances of this case, the trial court abused its discretion in refusing to set aside the default judgment against the church.

In the summer of 1999, Plaintiff/Appel-lee Thomas “Tommy” Murray (“Murray”) entered into a contract with Taliafaro, Inc. (“Taliafaro”), a real estate management company, to perform construction work on three apartment units, the Oaks Apartments, the Eastwood Park Apartments, and the Andrew Jackson Apartments (“the properties”). The properties were owned by Jackson Avenue Properties, Inc. (“Jackson Avenue”), and Christ Methodist Episeopal-Eastwood, Inc. (“Christ Methodist Episcopal-Eastwood”), Tennessee nonprofit corporations. Taliafaro was retained by the owners to manage and operate the properties. Before the construction work was completed, Taliafaro was replaced by Millennium Management Company (“Millennium”), which assumed management duties for the properties.

On May 17, 2000, Murray sued Taliafaro and Millennium for breach of contract, unjust enrichment, unfair or deceptive practices, and promissory fraud for failure to pay the full amount of the contract price for the construction work. In addition, Murray sued Defendant/Appellant Christian Methodist Episcopal Church (“CME Church” or “the Church”), under the same legal theories for failure to pay fully for Murray’s construction work. The complaint alleged that CME Church owned the apartment units in question, and that Taliafaro, on behalf of CME Church, entered into one or more agreements with Murray to make repairs, renovate, and improve the apartments. With the complaint, Murray filed his first set of interrogatories and requests for production of documents, propounded to all of the defendants, including CME Church. Taliafaro and Millennium were served with process in June 2000. CME Church claimed that it had no interest in the properties, and resisted accepting service of process. Eventually, on September 21, 2000, CME Church was served with service of process through the Secretary of State. The Secretary of State verified to the trial court clerk that the original complaint was mailed to CME Church on September 28, 2000.

On November 7, 2000, Murray filed a motion for default judgment against all of the defendants, including CME Church, alleging that “the Answers of all Defendants are overdue.” On November 16, 2000, the defendants filed a joint answer. In the joint answer, CME Church alleged, as an affirmative defense, that Murray failed to join indispensable parties, because the true owners of the properties were Jackson Avenue and Christ Methodist Episcopal-Eastwood.

On November 21, 2000, Murray filed a motion to compel against all of the defendants because none had responded to the discovery requests that were served with the complaint. In the motion to compel, Murray requested that the trial court enter a default judgment against the defendants as a sanction for their failure to respond to discovery. On December 14, 2000, the defendants filed their discovery responses. CME Church’s responses to the interrogatories indicated that no individuals employed by CME Church had knowledge of the subject matter of the litigation, nor was any employee of the Church aware of the circumstances surrounding the work done by Murray. Consequently, many of the interrogatories were answered “N/A,” indicating that the question was not applicable, given the Church’s position that no one in the organization had knowledge of the situation. Likewise, the Church’s responses to. Murray’s document requests indicated that the Church did not have possession of, nor any control over, documents connected to the work performed by Murray. The documents requested that the Church did have in its possession, such as tax returns, were not produced on the basis that the requests were broad and vague, or that the production of those documents placed an onerous burden on the Church. Thus, CME Church produced no documents in response to Murray’s requests.

Contemporaneous with its discovery responses, CME Church filed a motion to dismiss the complaint, again asserting that it was not a proper party to the lawsuit because it held no interest in the properties at issue. The Church averred that “[t]he CME Church has been sued in error, as it has no legal interest.” In support of its motion, the Church attached documents identifying the corporate owners of the properties, Jackson Avenue and Christ Methodist Episcopal-Eastwood.

On December 19, 2000, the trial court entered an order on Murray’s motion to compel discovery as well as his motion for a default judgment and sanctions. The trial court expressed dissatisfaction with the defendants’ course of conduct in the proceedings, stating that “the Defendants failed to file an Answer in a timely manner and further failed to answer discovery in a timely manner, and this Court finds no legal justification or factual basis that could possibly serve as an excuse for the conduct of these Defendants.” Despite its disapproval of the defendant’s conduct, the trial court denied both motions, including the motion to compel, noting, among other things, that the defendants had difficulty obtaining counsel until after the deadlines for filing an answer had passed.

On February 16, 2001, the trial court held a hearing on CME Church’s motion to dismiss. The record contains no transcript of the hearing. On February 28, 2001, the trial court denied CME Church’s motion to dismiss, based on the “arguments of counsel and the entire record in this cause.”

On August 29, 2001, Murray filed a motion to compel discovery and for sanctions against CME Church and Millennium. In his motion, Murray alleged that the Church “intentionally avoided service of process for several months,” and that both defendants “continued to avoid this litigation by failing to answer the complaint for several months.” Murray’s motion further stated that his November 2000 motion to compel was necessitated by the defendants’ refusal “to respond to discovery requests for several months.” Murray indicated that the Church’s discovery responses were inadequate because many of the interrogatories were answered “N/A,” and because none of the requested documents were produced. Murray noted that, in Taliafaro’s discovery responses, Taliafaro had indicated that it provided CME Church with all reports related to the operations of the properties. Murray asserted that, if Taliafaro gave the Church reports related to the operations of the properties at issue, then its discovery responses denying any interest in the properties must have been false or evasive and not in compliance with applicable discovery rules. See Tenn. R. Civ. P. 26, 33, 37. Therefore, Murray asked the trial court to require CME Church to respond “appropriately” to its first set of discovery requests. In addition, Murray sought severe monetary sanctions against the Church for its abuse of the discovery process. Murray also requested that the trial court order CME Church to produce its attorney, Charles Carpenter, for a deposition. On September 4, 2001, a few days after he filed his motion to compel, Murray propounded his second set of interrogatories and requests for production upon all of the defendants, including CME Church.

On September 11, 2001, a hearing was held on Murray’s motion to compel discovery. CME Church did not appear at the hearing. The record on appeal includes no transcript of that proceeding. On September 14, 2001, the trial court entered an order requiring CME Church to “answer all of Plaintiffs outstanding discovery on or before Friday, September 28, 2001,” including both the first and second set of discovery requests propounded by Murray. Murray’s motion for sanctions was deferred pending the final outcome of the litigation. On September 25, 2001, before the September 28 discovery deadline, the trial court held a status conference in open court. The appellate record contains no transcript of that proceeding. At the September 25 status conference, the trial court granted Murray’s motion to compel and for sanctions and set for hearing the amount of sanctions to be imposed on the defendants. In addition, the trial court permitted CME Church’s defense counsel, Charles Carpenter, to withdraw as counsel for the Church, effective nunc pro tunc to August 18, 2001. In light of the withdrawal of its counsel, the trial court granted CME Church a five-day extension in which to file its responses to Murray’s discovery requests. Neither CME Church nor Millennium filed any further discovery responses. Taliafaro, however, responded to the discovery requests, pursuant to the trial court’s order.

On October 5, 2001, CME Church filed a motion to rehear the February 28, 2001 denial of its motion to dismiss and for a protective order. The Church claimed, among other things, that the order did not clearly show the reasons for the denial of the motion, and again asserted that the Church was not a proper party in the case. The motion to rehear stated that “to require your Defendant to disclose any further information to the Plaintiff would be futile since your Defendant is not a proper party to this action.”

On October 10, 2001, the trial court held a hearing on the sanctions to be awarded for the discovery abuses of CME Church and Millennium. The appellate record includes no transcript of that proceeding. On October, 15, 2001, the trial court entered an order granting Murray a default judgment as sanctions for the defendants’ discovery abuses. The trial court concluded that the first discovery responses of CME Church and Millennium, filed in December 2000, were “inadequate, incomplete, evasive, and amounted to a complete failure to respond.” At the time of the hearing, neither the Church nor Millennium had filed any responses to Murray’s second set of discovery requests. The trial court found that CME Church and Millennium had “engaged in a clear pattern of discovery abuse, stonewalling; and delay throughout this litigation.” Consequently, the trial court granted Murray a default judgment against the Church and Millennium, and awarded Murray $20,000 in sanctions for the defendants’ failure to comply with discovery requests. A hearing on damages was set for October 30, 2001.

On October 19, 2001, CME Church filed a motion for relief from the trial court’s October 15, 2001 order. The Church noted that it had obtained new counsel, Gerald Green, to replace Carpenter only fifteen days before the trial court’s October 15 order was entered. The Church maintained, under the circumstances, that the sanction of a default judgment plus a $20,000 penalty was too harsh. On October 23, 2001, Murray issued a subpoena ducus tecum on CME Church and Millennium, requesting those defendants to produce a variety of documents at the October 30, 2001 hearing on damages. On October 29, 2001, the Church filed an amended motion for relief from sanctions.

On October 30, 2001, the trial court held a hearing on damages to be awarded to Murray. At that hearing, Murray voluntarily nonsuited his claim against Taliafa-ro. On November 8, 2001, the trial court entered an order against CME Church and Millennium, awarding Murray $40,591.47 in compensatory damages, prejudgment interest, and $10,000 in punitive damages. The trial court noted that the defendants did not intend to comply with the subpoenas issued on October 23, and that such willful failure to comply “evidences the ongoing continuous defiance of the Court’s orders, and the law. Defendants’, flagrant efforts to conceal documents is an obvious and outrageous insult to this Court and the entire judicial system.” In awarding punitive damages, the trial court found it significant that the defendants’ steadfast refusal to provide discovery prevented Murray from exploring other circumstances bearing on the appropriate amount of the punitive damage award.

On November 16, 2001, Murray filed a motion to amend the judgment, arguing that the damages awarded were insufficient and amounted to a loss to him. Murray argued that, once attorney’s fees and litigation costs were paid, he would receive less than he would have received had the defendants not defrauded him. On January 10, 2002, the trial court granted Murray’s motion and increased the punitive award to $25,000. From that order, CME Church filed this appeal.

On April 17, 2002, CME Church filed a motion in the trial court to set aside the default judgment, asserting once again that the Church was not a proper party and that the trial court had made a mistake of fact. Subsequently, the Church filed with this Court a motion to remand the cause to the trial court so that the trial court would have jurisdiction to consider its motion. On May 13, 2002, this Court remanded the case to the trial court to consider CME Church’s Rule 60.02 motion to set aside.

On remand, the trial court denied the Church’s motion to set aside the default judgment, and reiterated its original finding that the Church had failed to comply with the discovery rules. The Church failed to inform this Court of the trial court’s decision. Murray then filed a motion with this Court to dismiss the Church’s appeal, which was denied. On November 6, 2002, the Church’s attorney filed a motion requesting permission to withdraw, which motion was granted by order dated November 13, 2002. Subsequently, this Court gave the church’s new counsel until April 1, 2003 to file an appellate brief.

On appeal, CME Church argues that the trial court erred in denying its motion to dismiss, in granting the default judgment against it, and in refusing to set aside the default judgment. The Church asserts that record in this case does not support the grant of a default judgment, in that there is no record of clear delay and contumacious conduct. In the alternative, the Church argues that, if it is determined that entry of the default judgment was appropriate, then the weight of the evidence preponderates against the trial court’s award of punitive damages.

The trial court’s decision is reviewed de novo on the record, with a presumption that its findings of fact are correct, unless the evidence preponderates otherwise. Ganzevoort v. Russell, 949 S.W.2d 293, 296 (Tenn.1997); Tenn.R.App. P. 13(d). The trial court’s conclusions of law are reviewed de novo, with no such presumption of correctness. Ganzevoort, 949 S.W.2d at 296. When a trial court renders a default judgment against a defendant as a sanction for discovery abuses, we will reverse that decision only if the trial court has abused its discretion. Brooks v. United Uniform Co., 682 S.W.2d 913, 915 (Tenn.1984); Shahrdar v. Global Hous., Inc., 983 S.W.2d 230, 236 (Tenn.Ct.App.1998).

We first address whether the trial court erred in failing to set aside the default judgment. The propriety of a trial court’s denial of a request to set aside a default judgment depends in part on whether the default judgment was properly entered in the first place. Yearwood, Johnson, Stanton & Crabtree, Inc. v. Foxland Dev. Venture, 828 S.W.2d 412, 413 (Tenn.Ct.App.1991). One requirement for getting a default judgment set aside is that the defendant must show that he or she had a meritorious defense. Id. at 414.

Under Rules 37.04 and 37.02(C) of the Tennessee Rules of Civil Procedure, the trial court is expressly authorized to render a judgment by default against a party for failure to abide by discovery rales. Holt v. Webster, 638 S.W.2d 391, 394 (Tenn.Ct.App.1982). Rule 37.04 states that, if a party fails to serve answers or objections to interrogatories, the trial court may enter such orders as are just, and may take any action authorized in Rule 37.02(C). See Tenn. R. Civ. P. 37.04. Rule 37.02(C) provides that the trial court may, among other things, enter an order “rendering a judgment by default against the disobedient party.” Tenn. R. Civ. P. 37.02(C). “Dismissal is a harsh sanction.” Holt, 638 S.W.2d at 394. “Although this sanction is extreme, it is appropriate ‘where there has been a clear record of delay or contumacious conduct.’ ” Shahrdar, 983 S.W.2d at 236 (quoting In re Beckman, 78 B.R. 516, 518 (M.D.Tenn.1987)). The purpose of such a rule is to punish those who disobey discovery orders, and to deter those who might disregard such orders in future cases. Holt, 638 S.W.2d at 394. However, “lesser sanctions are generally favored where the neglect and defalcations are more attributable to the attorney than to his client.” Mills v. Bank of Roane County, 1991 WL 126553, at *2 (Tenn.Ct.App. July 15, 1991).

Under caselaw, it is clear that the issue of whether the grant of a default judgment was justified under the “clear record of delay or contumacious conduct” standard is determined on a case by case basis. In Shahrdar, for example, a former hotel manager sued the hotel corporation and others, claiming breach of an oral contract, negligent misrepresentation, promissory fraud, and intentional or negligent infliction of emotional distress. The plaintiff alleged that the hotel recruited him to move to Tennessee from Nevada, and then, after he had moved to Tennessee and managed one of the defendant’s hotel properties for five months, the hotel refused to pay him according to the parties’ oral agreement and even denied that he ever was a hotel employee. Shahrdar, 983 S.W.2d at 233. From the time the complaint was filed, the plaintiff repeatedly sought adequate responses to his discovery requests from the defendants. Id. Approximately eighteen months after the complaint was filed, the plaintiff moved for a default judgment, asserting that the defendants had failed to comply with discovery orders. The motion for default was granted by the trial court. Four months later, the hotel moved to have the trial court set aside the default judgment. The motion to set aside was denied by the trial court. A jury trial was then held on he issue of damages. Id. at 234.

On appeal, the Shahrdar court upheld the trial court’s grant of a default judgment as a discovery sanction. The appellate court first noted that “the defendants’ conduct in this case can be described as uncooperative at best.” Id. at 236. The appellate court then recognized that the defendants either did not fully answer the interrogatories or requests for production or answered them with “boilerplate objections,” despite the trial court’s order to comply fully. Furthermore, the designated corporate representative for the defendants claimed to know nothing about the circumstances of the case, despite the fact that he was the president of the corporation. Id. The defendants argued that a default judgment was improper because the default judgment was entered shortly after its trial counsel withdrew from the case. The appellate court rejected that argument, noting that the corporate defendant had in-house counsel at all pertinent times, and that the defendants had “ample opportunity to respond to the orders of the court.” Id.

Numerous other cases have upheld the imposition of a default judgment as a discovery sanction. In American Steinwinter Investor Group v. American Steinwinter, Inc., 964 S.W.2d 569 (Tenn.Ct.App.1997), the appellate court held that a default judgment was justified when the defendant refused to obey discovery orders of the court without any excusable neglect. See American Steinwinter, 964 S.W.2d at 574. In that case, the appellate court stated that the defendant’s flagrant disregard was clear from the record, and that “severe sanctions were in order.” Id. In another case, entry of default judgment was upheld on appeal where the defendant had repeatedly refused to appear for a deposition and failed to appear at trial. The appellate court stated that the defendant’s “actions were egregiously scornful of the judicial process.” Galde v. Keritsis, No. 03A01-9807-CH-00228, 1999 WL 496630, at *3-⅜4 (Tenn.Ct.App. July 15, 1999). In yet another case, a default judgment was warranted when the defendant repeatedly failed to comply with discovery requests and committed perjury by lying in his answers to interrogatories. Potts v. Mayforth, 59 S.W.3d 167, 172 (Tenn.Ct.App.2001).

In contrast, in March v. Levine, 115 S.W.3d 892 (Tenn.Ct.App.2003), the appellate court reversed the trial court’s refusal to set aside a default judgment. In March, a husband was sued by his wife’s parents for the wrongful death of the wife. The plaintiffs moved to compel the husband to travel to do so. The trial court granted the motion and ordered the husband to return to Nashville for his deposition. Despite that order, the husband refused to travel to Nashville to do so. He suggested to the trial court that he be permitted to participate in a telephonic deposition, or submit to a deposition near his home in Mexico. The husband asserted “unconvincingly” that he lacked the financial resources to go to Nashville for his deposition. March, 115 S.W.3d at 912-13. The trial court did not accept the husband’s proposals, and his deposition was noticed to be taken in Nashville on an agreed upon date. Id. at 916 (Steward, J., dissenting). When the husband failed to appear, the deposition was noticed again on a date certain, and the trial court ordered the husband to inform the trial court whether he was willing to attend the deposition. The husband neither gave notice to the trial court, nor did he attend the deposition. Subsequently, the husband failed to appear at a hearing at which the trial court considered the plaintiffs’ motion for sanctions. At that hearing, the trial court granted a default judgment against the husband for his disobedience of the court’s discovery orders. Id. The trial court denied the husband’s motion to set aside the default judgment.

The appellate court reversed the tidal court’s refusal to set aside the default judgment, holding that a default judgment in that situation was “simply too drastic a sanction for [the husband’s] behavior.” Id. at 912. The appellate court reasoned that, although the trial court had discretion to grant a default judgment as a sanction, the default judgment “should be set aside if reasonable doubt exists as to the conduct of the defaulting party.” Id. at 913. The appellate court noted that the husband was not the only transgressor throughout the litigation, but that the plaintiffs contributed to some of the other problems in the case. Ultimately, the appellate court recognized the necessity that the trial court control the litigation and maintain the integrity of the court, but concluded that the sanction of default judgment was not warranted under the circumstances. Id.

In determining whether a default judgment was justified as a sanction in the instant case, a brief review of CME Church’s conduct is helpful. The Church was first served with the lawsuit and the first set of discovery materials on September 28, 2000. The Church filed its answer on November 16, 2000, after Murray’s November 7 motion to compel and for sanctions. The Church’s answer informed Murray that CME Church was not a proper party, and that the Church had no legal interest in the properties at issue. On December 14, 2000, CME Church, along with the other defendants, filed discovery responses. On the same day, the Church also filed a motion to dismiss, maintaining that it was not a proper party. The Church’s motion to dismiss was later denied. On December 19, 2000, the trial court denied Murray’s motion to compel and for a default judgment and sanctions, noting that the Church had been unable to answer in a timely manner because of its difficulty in obtaining counsel.-

On August 29, 2001, over seven months after the initial discovery responses were filed, Murray filed a second motion to compel discovery and for sanctions. Shortly thereafter, on September 4, 2001, Murray propounded a second set of discovery requests. On September 14, 2001, the trial court granted Murray’s motion to compel discovery. The September 14, 2001 order was the trial court’s first order requiring CME Church to respond to discovery. Less than two weeks later, on September 25, 2001, before the discovery deadline had expired, the trial court granted Murray’s motion for sanctions. In the same order, the trial court allowed the church’s counsel to withdraw nunc pro tunc to August 18, 2001, and allowed the Church five more days in which to respond to discovery. Effectively, then, CME Church was not represented by counsel.

After hiring yet another attorney, the Church filed a motion for the trial court to rehear its motion to dismiss and for a protective order. Five days later, on October 10, 2001, the trial court held anothér hearing and granted Murray the default judgment as a sanction for the defendants’ discovery abuses. The trial court found that the circumstances supported a finding that the defendants, including CME Church, had generally “engaged in a clear pattern of discovery abuse, stonewalling, and delay throughout this litigation.”

This case presents a close question. Viewing the record as a whole, however, we must conclude that the conduct of CME Church did not rise to the level of contumacious behavior that would justify the entry of a default judgment as a sanction for the its failure to comply with discovery orders. In the trial court’s December 19, 2000 order, the trial court expressed its dissatisfaction with the defendants’ conduct. At the time that order was entered, however, CME Church was guilty of little discovery misconduct. It had answered the complaint, and it had filed its discovery responses a few weeks after its answer. At that time, there was no order compelling further discovery responses.

The adequacy of the Church’s discovery responses was not raised again by either party until the filing of Murray’s August 29, 2001 motion to compel. The only discovery order issued by the trial court in this case was entered on September 14, 2001, at a time at which the Church effectively had no counsel and only two weeks remained before expiration of the court-imposed discovery deadline. This was a result of the nunc pro tunc order permitting withdrawal of the Church’s counsel.

Murray argues that CME Church intentionally avoided service of process for several months, and that it continued to avoid litigation by failing to answer the complaint for several months. The record does not support this assertion and, moreover, it was unrelated to the Church’s alleged failure to comply with the discovery requests. Once service was effected, the Church’s answer was late not by “several months,” as asserted by Murray, but only by a few weeks.

The trial court found that CME Church “engaged in a clear pattern of discovery abuse, stonewalling, and delay throughout this litigation.” It is clear, however, that CME Church has maintained throughout the litigation that it was not the proper party to the lawsuit, and the Church’s discovery responses have been consistent with this position. Under these circumstances, we must conclude that the conduct of CME Church does not rise to the level of contumacious conduct so as to justify default as a sanction. Consequently, we find that the trial court abused its discretion in granting Murray a default judgment as a discovery sanction against CME Church, and in failing to set aside that judgment. Thus, we reverse the trial court’s failure to set aside the default judgment against CME Church, and remand for further proceedings consistent with this opinion.

The decision of the trial court is reversed as to CME Church, and the case is remanded for further proceedings consistent with this opinion. Costs are to be taxed to Appellee Tommy Murray, for which execution may issue, if necessary.

      . At the time, Murray was operating through his company, M & M Janitorial & Maintenance Service

      . According to the trial court, CME Church would not accept service of process for several months. The Church finally accepted service, but only after the Secretary of State threatened to dissolve its corporate charter if it did not do so.

      . For example, interrogatory number 4 asked for the identification and information about possible expert witnesses. Interrogatory number 5 asked for the identification of every individual who had inspected and approved Murray's work. Because the Church stated that no one in the organization was aware of the facts surrounding Murray's work, any questions about those facts would not apply to the Church.

      . Murray actually filed two separate motions against these defendants, but for purposes of discussion, they will be treated as one motion to compel and for sanctions.

      . Millennium did not appeal the, trial court’s decision.

      . This motion was filed by the church’s new counsel, Michelle L. Berserai, who was substituted as counsel for the church by order dated March 14, 2002. Gerald Green was given permission to withdraw as counsel of record by this Court in an order dated May 14, 2002.

      . CME Church's current counsel, Nathan B. Pride, was allowed to be substituted as counsel for the Church by order of this Court dated February 14, 2003.

      . For an excellent comparison of the standards used by different states in determining whether a default judgment is appropriate as a discovery sanction, see John E. Theuman, Annotation, Judgment in Favor of Plaintiff in State court Action for Defendant's Failure to Obey Request or Order to Answer Interrogatories or Other Discovery Questions, 30 A.L.R.4th 9 (2004).

      . The reason for this unusual order, permitting withdrawal nunc pro tunc, is not- apparent in the record.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Jamaal HOWARD, Appellant, v. The STATE of Texas.
    No. 74138.
    Court of Criminal Appeals of Texas, En Banc.
    Oct. 13, 2004.
    Rehearing Denied Jan. 26, 2005.

      Russell J. Wright, Silsbee, for appellant.
    David W. Barlow, Assist. DA, Kountze, Matthew Paul, State’s Attorney, Austin, for state.
   PER CURIAM.

The appellant, Jamaal Howard, was convicted in April 2001 of capital murder, an offense that was committed on May 12, 2000. Pursuant to the jury’s answers to the special issues set forth in Code of Criminal Procedure Article 37.071, Sections 2(b) and 2(e), the trial judge sentenced the appellant to death. Direct appeal to this Court is automatic. The appellant raises nine points of error. We affirm.

In his sixth point of error, the appellant claims that the evidence is legally insufficient to support the jury’s verdict on the issue of his future dangerousness. He argues that there was no evidence of premeditation to commit the instant murder and that he has no history of prior criminal violence. Following is a review of the relevant evidence in a light most favorable to the verdict. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1991).

The appellant stole a gun from his grandfather the night before the murder and hid it. Despite his family’s efforts to persuade him to turn over the gun, the appellant refused. The following morning, the appellant retrieved the gun and walked several blocks from his house to the Chevron store. After peering in the windows, he entered the store, went into the secured office area where the victim was sitting, cocked the gun, and shot the victim in the chest. The appellant stole $114.00 from the cash register and reached over the dying victim to steal a carton of cigarettes before leaving. The offense was recorded on videotape. The appellant denied committing the offense until he was told it was videotaped. He told the officer who took his statement that he was not sorry for committing the offense.

At the punishment stage of trial, the State presented evidence that the appellant demonstrated a disregard for authority and school rules despite the continued efforts of his mother and educators. During one incident, the appellant punched a pregnant teacher in the chest with his fist when she asked him to return to his seat. When the appellant was assigned to an alternative school, he refused to comply with its rules and standards, and he was defiant and disruptive. The State also presented evidence of the appellant’s possession of controlled substances, his fighting with police officers and resisting arrest, his committing of several burglaries as a juvenile, and his fighting with other inmates. Dr. Edward Gripon testified for the State that the appellant was not suffering from schizophrenia, but rather was suffering from antisocial personality disorder.

The evidence is sufficient to support the jury’s verdict. The appellant’s actions in committing the crime were senseless and deliberate; his actions immediately following its commission were equally so. Given these actions, combined with his appellant’s past history of assaul-tive conduct, disregard for authority and rules, drug offenses, and juvenile offenses, and the expert testimony that the appellant displayed an antisocial personality disorder, the jury rationally could have concluded beyond a reasonable doubt that the appellant would probably commit criminal acts of violence that would pose a continuing threat to society. Point of error six is overruled.

In his seventh point of error, the appellant claims that the evidence is insufficient to support the jury’s verdict on the mitigation special issue. The appellant argues that this Court’s refusal to review the jury’s verdict denies him the right to a “meaningful appellate review.” This Court has repeatedly declined to review the sufficiency of the mitigating evidence and has rejected the claim that it deprives a defendant of a meaningful appellate review. Salazar v. State, 38 S.W.3d 141, 146 (Tex.Cr.App.), cert. denied, 534 U.S. 855, 122 S.Ct. 127, 151 L.Ed.2d 82 (2001); McGinn v. State, 961 S.W.2d 161, 166 (Tex.Cr.App.1998), cert. denied, 525 U.S. 967, 119 S.Ct. 414, 142 L.Ed.2d 336 (1998). Point of error seven is overruled.

In his first point of error, the appellant claims that the trial court erred in overruling his objection to the prosecutor’s jury argument at punishment. During the punishment stage, the prosecutor argued:

When he is not waiting for capital murder trial and not going to have to be on his best behavior, then what is he going to act like? Gang activity, 5-9 Hoover Crypts [sic], and Crypts [sic] are in prison, too. He will fall right in with his old buds; extortion, rape, drug trafficking—

The appellant’s objection to the argument as outside the record was overruled.

Previously, however, during the prosecutor’s argument at the punishment stage, the prosecutor made similar statements without objection. For instance, the prosecutor opened his argument, with no objection, as follows:

[Ujntil Dr. Laine’s medical record came in through Dr. Fason and — I didn’t know that the defendant had been stalking a girl and I didn’t know that he had told Dr. Laine that he admitted to being a gang member, smoking manjuana, drinking alcohol, carrying a gun.

(Emphasis added). The prosecutor further argued, without objection, that the appellant would have the opportunity to join prison gangs and participate in their activities, if he chose to:

The gentleman from the prison prosecution unit told you also that drugs are a big factor with prison gangs, that they sell drugs to make money in prison gangs. So, this will be another indication that [the appellant] would have the opportunity, if he wants to, if he hadn’t learned his lesson, that he is going to be a future danger.

In light of the jury’s previous exposure to these similar arguments, suggesting the potential for the appellant’s participation in gang-related activities in prison, any error is harmless. Cf. Massey v. State, 938 S.W.2d 141, 149 (Tex.Cr.App.1996) (holding that if defendant objects to admission of evidence but same evidence is subsequently introduced from another source without objection defendant waives earlier objection). Point of error one is overruled.

In his third point of error, the appellant claims that the trial court erred in overruling his objection to the prosecutor’s jury argument at the punishment stage of trial. During closing argument, the prosecutor made the following comments:

[Prosecutor]: That’s the type of person you’re dealing with in Jamaal Howard. And since that time not one feeling of remorse, not one word of sorry.
[Defense objection, overruled]
[Prosecutor]: In fact, he told Ranger Wilson, “I’m not sorry.” That’s the type of person you are dealing with in Jamaal Howard.

Appellant claims the prosecutor’s argument was a comment on his failure to testify, in violation of the Fifth Amendment to the United States Constitution, and could not be understood as based on his discussion with Ranger Wilson.

Texas Ranger L.C. Wilson took the appellant’s written statement. Following is an excerpt from Wilson’s testimony:

[Prosecutor]: Did [appellant] give any reason why he did it?
[Wilson]: No. No, he never did.
Q. Did he express any remorse to you?
A. No, he didn’t, you know, because right at the end of that statement I asked him, I said, “Jamaal, you know, in a year or so from now a jury is going to hear this and they are going to want to know why you did it. You know, now is your chance, you know. I’m asking you to explain to anybody.” He didn’t have a reason. I asked him, you know, “Do you have any remorse for this?” He said, “No.” And I said, “You’re willing to sign that statement? You have no remorse?” And he did.

On cross-examination, defense counsel asked Wilson if he had asked the appellant if he understood the meaning of the word “remorse.” Wilson responded that he did not specifically remember asking the appellant if he understood the meaning of the word remorse, but he remembered asking him, “Do you feel sorry about what you did?”

This Court has held that a prosecutor’s comment on a defendant’s failure to show remorse is tantamount to a comment on his failure to testify. Davis v. State, 782 S.W.2d 211, 222 (Tex.Cr.App.1989)(citing Dickinson v. State, 685 S.W.2d 320, 324 (Tex.Cr.App.1984)), cert. denied, 495 U.S. 940 (1990). However, if there is evidence in the record supporting the comment, then no error is shown. Id. (citing Fearance v. State, 771 S.W.2d 486, 514 (Tex.Cr.App.1988)). Here, Wilson testified that the appellant told him he had no remorse. The prosecutor’s argument was therefore a proper summation of the evidence. See id. Point of error three is overruled.

In his second point of error, the appellant claims that “[a] procedure that permits the death penalty to be inflicted on defendants with mental retardation despite their diminished personal culpability violates the Eighth Amendment to the United States Constitution.” The appellant argues that the Eighth Amendment requires that mentally retarded individuals, like himself, be excluded as a class from execution. As evidence of his mental retardation, he points to the testimony of Dr. James Duncan, who testified that the appellant had borderline to mildly impaired intellectual functioning. The appellant argues that an individual put to death must be able to rationally appreciate and evaluate the consequences of his actions. In a Supplemental List of Authorities, the appellant cites to Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002).

In Atkins, the United States Supreme Court concluded that the execution of a mentally retarded individual is unconstitutionally excessive under the Eighth Amendment. Id., at 321, 122 S.Ct. 2242. Recognizing that “not all people who claim to be mentally retarded will be so impaired as to fall within the range of mentally retarded offenders about whom there is a national consensus,” the Court left to the States “the task of developing appropriate ways to enforce the constitutional restriction upon its execution of sentences.” Id., at 317,122 S.Ct. 2242.

As a stop-gap measure for cases that we must decide in the absence of legislation, this Court has set temporary guidelines for determining mental retardation in the death penalty context. Ex parte Briseno, 135 S.W.3d 1, 5 (Tex.Cr.App.2004). We apply the definition found in the “Persons with Mental Retardation Act” (Health & Safety Code, Chapter 591): “ ‘Mental retardation’ means significantly subaverage general intellectual functioning that is concurrent with deficits in adaptive behavior and originates during the developmental period.” This definition is essentially the same as the one utilized by the American Association of Mental Retardation (AAMR). “Significantly subaverage general intellectual functioning” is defined as an IQ of 70 or below. “ ‘Adaptive behavior’ means the effectiveness with or degree to which a person meets the standards of personal independence and social responsibility expected of the person’s age and cultural group.” The developmental period is understood to be the period before age 18.

In this case, there was little testimony bearing on the issue of the appellant’s limitations in adaptive behavior, other than the testimony about his lack of personal hygiene which was presented by the defense as indicative of the appellant’s alleged schizophrenia. Although there was testimony that the appellant was unwilling to meet the rules imposed by the alternative school, this testimony was presented as bearing on the issue of whether the appellant was suffering from a mental illness, or whether his actions were, as the State contended, volitional.

Dr. Fred Fason, a defense expert, testified that when he first met with the appellant and began to administer one of the psychological tests, the appellant did not know some of the words in the first few questions. Fason testified that this caused him to conclude that the appellant could not read at the sixth grade level and to question whether the appellant was mentally retarded. However, upon questioning defense counsel, talking to the appellant’s mother, and retrieving the appellant’s school records, Fason discovered that the appellant had started out in school as a very bright student; the appellant was in the ninetieth percentile in math in the second grade, but had dropped to about the thirtieth percentile in the fifth grade. Fason theorized that the appellant’s declining performance in school was due to the onset of schizophrenia.

One of the court’s independent experts, Dr. Duncan, reached a similar conclusion. At one of the appellant’s competency hearings, Duncan testified that he gave the appellant portions of an I.Q. test and that the appellant tested in the borderline to mildly impaired range which Duncan said was the level of an eleven or twelve year-old. On cross-examination, however, it was emphasized that Duncan had given the appellant only portions of an I.Q. test on which he had based an estimate of the appellant’s I.Q. The State’s expert, Dr. Gripon, testified that the appellant’s problems in school stemmed solely from his attention-deficit disorder which was addressed when he took his medication; when the appellant refused to take his medication, his grades declined and his behavior deteriorated. Gripon did not see any evidence that the appellant suffered from schizophrenia.

Although experts for both the State and the defense testified that the appellant’s intellectual functioning and adaptive behavior were impaired to some degree, the testimony was not sufficiently developed to establish that appellant was “mentally retarded” under the guidelines we set in Briseno. Because the evidence does not support the appellant’s claim that he is mentally retarded, we reject his Eighth Amendment claim. See Stevenson v. State, 73 S.W.3d 914, 917 (Tex.Cr.App.2002). Point of error two is overruled.

In his fourth and fifth points of error, the appellant claims that he was denied effective assistance of counsel as guaranteed by the Sixth Amendment to the United States Constitution and Article I, Section 10 of the Texas Constitution, respectively, when his trial counsel failed to introduce expert-witness testimony that he had an I.Q. in the range of 65 to 70.

The appellant claims that, during the hearing on his competency to stand trial, Dr. Duncan testified that he had assessed the appellant’s I.Q. in the range of 65 to 70. At the guilt phase of trial, however, although Duncan testified about the appellant’s “borderline to mildly impaired functioning,” he neither testified specifically to his determination of the appellant’s I.Q., nor was he questioned by the appellant’s counsel about the I.Q. test he had administered. The appellant claims that his counsel was ineffective in failing to elicit Duncan’s testimony about his I.Q. at the guilt or innocence phase.

To establish ineffective assistance of counsel, the appellant must meet the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Ex parte Varelas, 45 S.W.3d 627 (Tex.Cr.App.2001). First, the appellant must demonstrate that counsel’s performance was deficient. Id., at 629. Second, the appellant must show that counsel’s performance prejudiced his defense at trial. Id. That is, he must show that there is a reasonable probability that the result of the proceeding would have been different but for the errors made by counsel. Id. Allegations of ineffectiveness must be firmly founded in the record as counsel is presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Id.

The record from the competency hearing reflects that Duncan testified that he administered to the appellant only “some portions” of an I.Q. test in order to arrive at an “estimate” of the appellant’s I.Q.:

[Duncan]: I gave [the appellant] some portions of an I.Q. test to arrive at that estimate, some of the verbal subtests of the Weschler [A]dult [Intelligence [S]cale.
Q. Okay. And, so, were you able to arrive at a numerical I.Q. score?
A. I would say in the range of 70; but because I didn’t give the full test, that number would be — there would a range there. I would say that based on the — ■ scoring the subtest that I gave and fig; uring out that number, would be a 65 to 70 kind of I.Q. range.

Given that Duncan administered only “portions” of an I.Q. test to arrive at an “estimate” of the appellant’s I.Q., we presume that the appellant’s defense counsel was exercising reasonable trial strategy by not eliciting such testimony from Duncan before the jury, in light of the speculative weight of the testimony and its susceptibility to cross-examination. Moreover, the appellant has not shown that the outcome of the trial would have been different had the testimony been elicited. Points of error four and five are overruled.

In his eighth and ninth points of error, the appellant claims that his trial counsel was ineffective under the Sixth Amendment and Article I, Section 10 of the Texas Constitution, respectively, by failing to object to the prosecutor’s argument that appellant had been “stalking” someone when he claims no such evidence was introduced at trial. During the punishment stage of trial, the prosecutor argued that the appellant “had been stalking a girl”: “Then we find out that he was stalking a young lady. That’s a threat of violence.”

During the State’s cross-examination of defense witness Dr. Fred Fason, the prosecutor questioned Fason about the factors he considered in making his diagnosis of the appellant:

[Prosecutor]: And subsequent to that, as an adult, having charges related to delivery of cocaine, possession of cocaine, would that be important in making that diagnosis?
[Fason]: Well, it’s something you take into consideration; but it wouldn’t be— it’s not pathognomonic of — of any social personality disorder.
Q. And even the history that his mother gave you that he was stalking some young lady—
A. Yes.
Q. —would that be important in diagnosing antisocial personality?
A. Not in the way it was presented, no. I mean it’s significant. It’s another— it’s much like — arriving at a diagnosis, in a way, is kind of like working a jigsaw puzzle. You take a whole bunch of different pieces and you see how they fit together to come out with a picture; and that would be a piece of the puzzle.
Q. And taking that all together, you know, a history from the age of 13, from theft, to 15, 16, dealing drugs, to stalking, to capital murder, all that taken together doesn’t that kind of suggest that there may be an antisocial personality here?

(Emphasis added). Fason did not refute the suggestion that the appellant had reportedly stalked a girl. Rather, Fason affirmed the prosecutor’s suggestion. Fa-son’s affirmative response to the prosecutor’s question made the suggestion become evidence, albeit slight. Thus, the prosecutor’s argument referring to the evidence was not objectionable. Points of error eight and nine are overruled.

The judgment of the trial court is affirmed.

MEYERS and HOLCOMB, JJ., dissent.

      . See Tex. Penal Code § 19.03(a).

      . Tex.Code Crim. Proc. art. 37.071, § 2(g).

      . Art. 37.071, § 2(h).

      . The appellant did not complain at trial, nor does he complain in this appeal, about the admission of Wilson’s testimony concerning the appellant’s statements regarding his lack of remorse.

      . Id., § 591.003(13) (quoted in Briseno, 135 S.W.3d, at 8).

      . See Briseno, 135 S.W.3d, at 7.

      . Id., at 7, n. 24.

      . Id., at7, n. 25 (quoting# 591.003(1)).

      . Id., at 7 (discussing AAMR definition).

      . Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), discussed in connection with point of error two above, was decided on June 20, 2002. Appellant was tried and convicted in April 2001.


author: HOLCOMB, J.,

text:
    Jose MAURICIO, Appellant, v. The STATE of Texas.
    No. PD-0923-03.
    Court of Criminal Appeals of Texas.
    Jan. 12, 2005.

      David S. Barron, Bryan, for Appellant.
    Jeffrey L. Van Horn, First Asst. State’s Atty., Matthew Paul, State’s Atty., Austin, for State.
   OPINION

HOLCOMB, J.,

delivered the opinion of the unanimous Court.

This case presents three questions: (1) whether the court of appeals erred in holding that the trial court permitted a “jury view” as that term is understood in law, (2) whether the court of appeals erred in holding that the trial court erred in permitting that jury view, and (3) whether the court of appeals erred in holding that the trial court’s error was harmless. We answer the first question in the negative, we answer the second question in the affirmative, we do not reach the third question, and we affirm the judgment of the court of appeals.

We begin our discussion with a review of the relevant facts. On January 24, 2002, a Brazos County grand jury presented an indictment that charged appellant with felony possession of cocaine with intent to deliver. See Tex. Health & Safety Code § 481.112(a) & (d). On April 3, 2002, the State brought appellant to trial under that indictment. At the guilt/innocence stage of trial, the State’s principal witness was Bryan Police Officer Gabriel Alvarez, who testified in relevant part as follows: On the evening of November 23, 2001, at the beginning of his shift, Alvarez searched the back of his patrol car for contraband, as was his routine, and found nothing. Later that evening, he arrested appellant during the course of a traffic stop. After he arrested appellant, he handcuffed him, placed him in the back of his (ie., Alvarez’) patrol car, and took him to the county jail. Shortly thereafter, he (ie., Alvarez) searched the back of his patrol car again and found six small bags of a white, powdery substance, later identified as cocaine.

At the conclusion of Alvarez’ in-court testimony, the State asked the trial court to take the jurors out to the court’s parking lot so that they could watch Alvarez demonstrate how he searched his patrol car on the evening of appellant’s arrest. The trial court granted the State’s request over appellant’s objection. The following then transpired:

The Court: Members of the jury, we’re going to relocate to consider some testimony, some demonstrative testimony. This is being offered for the limited purpose to demonstrate to you a procedure. It would be — you should not talk to each other while we’re going down there or while we’re down there. You shouldn’t make any kind of inquiry. You shouldn’t ask any questions. I know it might be frustrating for you. I am having to restrain you in that regard. But there is case law about how it is improper to permit jurors to ask questions of witnesses during a trial. And so, you shouldn’t discuss this. It is the duty of the attorneys to make sure that you all can see what they are trying to communicate through the testimony. I am going to ask you to — we’ve going to take a five minute break. Then [the bailiff] will lead you downstairs. We will get the court reporter located down there. Everything we do has to be on the record. So, I’m going to give her a minute to get set up. And me, the attorneys, the defendant, and the witness [Alvarez] will meet you all down there in about ten minutes.
(Court relocates to the parking lot.)
The Court: Okay. Let’s go on the record. Present are all three attorneys, the witness, the defendant, and all twelve jurors. Six on one side of the car, six on the other. This is going to have to be in a question/answer format. And I will ask for the benefit of the court reporter, Mr. Phelps [the prosecutor] and Officer Alvarez, if you would, please speak loudly so that she can hear you. Same is true for Mr. Paul [defense counsel]. Go ahead.
Q: (by Mr. Phelps) Officer Alvarez, this is the type of patrol ear that you drove on November 23?
A: This is the same car.
Q: Okay. What I would like you to do, if you would, please, you have described for the jury your procedure of searching the back of the vehicle at the beginning of your shift as you did it on the night of November 23. Would you now show the jury the procedure you go through? How you did it on November 23, 2001. And if you would, just explain what you’re doing as you’re doing it.
A: I always start by just a visual inspection, what I can see on the top here, the dash here, the seats that I can see without moving anything. This rear seat, bottom cushion, folds over. And I always fold over as such, exposing the floorboard here. And then I run my hand underneath the back cushion so that if anything is stuffed under there, it can come out.
I go along — I go along from one end to the other. Then, just looking — inspecting underneath this plastic mat, and under there to see if there is anything underneath there. If nothing is found, I just put it back into place, just like that.
Q: You checked the floorboards in front of the seat as well?
A: Yes, sir, I do.
Q: And did you do that on the night of November 23?
A: Yes, I did.
Mr. Phelps: You Honor, at this time could we have the other jurors switch around? Do it one more time?
The Court: All right. Let’s do that. All right. Will y’all swap sides?
(Jurors comply.)
Q: (by Mr. Phelps) Officer Alvarez, if you would demonstrate it again, again explaining what you’re doing, so the jury understands.
A: Again, I do the visual inspection. Anything obvious. Then when I get to the seat, I just pull it out in this manner. And then as far as I can to the partition [between the front and back seats]. And then I do my visual inspection, run my hand underneath this area, so that— ensure that nothing was placed underneath here. And if it is all clear, I just place it — it slides right back into place like that.
Mr. Phelps: At this time that’s all I have.
Mr. Paul: I don’t have any questions.

With the demonstration over, everyone returned to the courtroom, and the trial continued as before. The jury later found appellant guilty as charged in the indictment, and assessed his punishment at imprisonment for twenty years and a fíne of $10,000.

On direct appeal, appellant argued that “the trial court in this case did not merely abuse its discretion in allowing the jury view [ie., the jury’s trip to the trial court’s parking lot to watch Alvarez’ demonstration] — it had no discretion at all to allow it.” The State argued in response that what the trial court permitted in this case was not a true “jury view” but rather merely a demonstration because the jury was not taken to see the actual crime scene. According to the State, “[a] jury view could have only occurred in this case if the jury was taken over to the Bryan Police Department and allowed to view the [patrol] car while in the sally port [where Alvarez conducted the second search and found the cocaine] and while [Alvarez] testified exactly where the cocaine was found.” The State also argued, in the alternative, that even if what the trial court permitted was considered a jury view, “jury views are within the discretion of the trial court.”

On May 8, 2003, the Fourteenth Court of Appeals affirmed the judgment of the trial court. Mauricio v. State, 104 S.W.3d 919 (Tex.App.-Houston [14th Dist.] 2003). Although the court of appeals agreed with appellant that what the trial court permitted in this ease was a true jury view and that “the trial court erred in allowing [it],” the court of appeals held that the trial court’s error was harmless since Alvarez testified on the stand, without objection, and “described in detail his search of the backseat [of the patrol car] before and after appellant’s arrest.” Id. at 922-923.

On February 11, 2004, we granted both appellant’s and the State’s petitions for discretionary review in order to determine whether the court of appeals erred, either in whole or in part. See Tex.R.App. Proc. 66.3(c). Appellant, in his petition and brief, argues that the court of appeals erred in holding that the trial court’s error was harmless. He also argues that “[n]o jury view was necessary” in this case because “the backseat of the patrol car could have been photographed and the photographs ... shown to the jury inside the courtroom.” The State, in its petition and brief, argues that the court of appeals erred in holding that the trial court permitted a jury view rather than merely a demonstration. The State also argues, in the alternative, that the court of appeals erred in holding that the trial court erred in permitting the jury view. According to the State, “[t]he trial court ... acted within its discretion in allowing the jury to go outside the courtroom to the adjacent parking lot and observe the officer’s demonstration” because “[s]ueh evidence was relevant to the case and it would have been impractical, if not impossible, to have presented the evidence in the courtroom.”

We turn first to the State’s argument that the court of appeals erred in holding that the trial court permitted a jury view as opposed to a mere demonstration. The term “view,” as understood in law, refers to the act or process by which the trier of fact ventures forth to observe places or objects that are material to litigation but that cannot reasonably be brought, or satisfactorily reproduced, within the courtroom. See Black’s Law Dictionary 1568 (6th ed.1990); 23A C.J.S. Criminal Law § 1156 (1989); 4 Wigmore on Evidence § 1162 (Chadbourne rev.1972). If the trier of fact is a jury, the view is properly termed a “jury view.” See H. Wendorf, “Some Views on Jury Views,” 15 Baylor L. Rev 379 (1963). In this case, the jury, acting with the trial court’s permission and under its supervision, left the courthouse and went to the court’s parking lot in order to watch Officer Alvarez demonstrate how he searched his patrol car on the evening of appellant’s arrest. We hold that what the trial court permitted in this case was a “jury view” as that term is understood in law, and the court of appeals did not err in holding likewise.

We turn next to the State’s alternative argument that the court of appeals erred in holding that the trial court erred in permitting the jury view. There was a time in which, for a variety of reasons, we condemned jury views. See, e.g., Weeks v. State, 476 S.W.2d 310, 316 (Tex.Crim.App.1972) (trial court may not allow jury view of crime scene); Abell v. State, 109 Tex.Crim. 380, 5 S.W.2d 139, 141 (App.1928) (same); Kile v. State, 106 Tex.Crim. 328, 291 S.W. 1104, 1105 (App.1927) (same). However, in Jones v. State, 843 S.W.2d 487, 499 (Tex.Crim.App.1992), cert. denied, 507 U.S. 1035, 113 S.Ct. 1858, 123 L.Ed.2d 479 (1993), we held that the question of whether to grant or deny a request for a jury view rests “within the trial court’s [sound] discretion.” The court of appeals in this case cited Jones and even acknowledged that “trial judges ... have discretion to grant [jury views],” but the court of appeals did not explain how the trial court abused its discretion when it permitted the jury view.

A trial court, in exercising its discretion to grant or deny a request for a jury view, must consider the totality of the circumstances of the case, including, but not limited to, the timing of the request for the jury view, the difficulty and expense of arranging it, the importance of the information to be gained by it, the extent to which that information has been or could be secured from more convenient sources {e.g., photographs, videotapes, maps, or diagrams), and the extent to which the place or object to be viewed may have changed in appearance since the controversy began. See J. Strong, et al., McCormick on Evidence § 216 at 27 (5th ed.1999); Wendorf, supra, at 390-391. In addition, the trial court, in exercising its discretion to grant or deny a request for a jury view, must give opposing counsel an opportunity to be heard on the question. See Clemente v. Carnicon-Puerto Rico Mgmt. Assoc., 52 F.3d 383, 386 (1st Cir.1995), overruled on other grounds, United States v. Gray, 199 F.3d 547 (1st Cir.1999).

We discern no abuse of discretion on the part of the trial court in permitting the jury view in this case. The State’s request for the jury view was made in a timely fashion, and defense counsel was given an opportunity to object. Furthermore, on this record the trial court could have reasonably concluded that the jury view would be quick and easy to conduct and that the information to be gained by the jury view might be significant to the jury.

We hold that the court of appeals erred in holding that the trial court erred in permitting the jury view. Given our holding, we need not reach appellant’s argument that the court of appeals erred in holding that the trial court’s “error” was harmless.

We affirm the judgment of the court of appeals.

      . Professor Wendorf has commented:
      Texas courts have long admitted in evidence objects small enough to be brought into the courtroom. The acceptance of photographic evidence plus small objects cannot be successfully distinguished from jury views. If the jurors can be shown a small object or a photograph of an object of any size in the courtroom, why not permit them under proper supervision to step outside to see a larger subject? Why not permit them, with efficient modern transportation, to travel a reasonable distance — under proper supervision, of course — for the same purpose?
      H. Wendorf, "Some Views on Jury Views,” 15 Baylor L.Rev. 379, 383 (1963) (footnotes omitted).

      . For example, in Jones v. State, 843 S.W.2d 487, 499 (Tex.Crim.App.1992), cert. denied, 507 U.S. 1035, 113 S.Ct. 1858, 123 L.Ed.2d 479 (1993), we held that the trial court did not abuse its discretion in denying the defendant’s request for a jury view because the information to be gained by the view was available from more convenient sources.

      .Once a trial court grants a request for a jury view, the court must implement appropriate procedural safeguards to ensure fundamental fairness to the accused as well as to protect the trial’s truth-finding function. See United States v. Gray, 199 F.3d 547, 550 (1st Cir.1999); State v. Pauline, 100 Hawai’i 356, 60 P.3d 306, 325-326 (2002); Wendorf, supra, note 1, at 393-396. What procedural safeguards are appropriate in any given case will depend on the particular circumstances of that case. Although we did not grant review of the question, it appears that the trial court in this case implemented appropriate procedural safeguards. That is, the trial court (1) attended and supervised the jury view; (2) instructed the jury before the view began that it was to remain quiet at the view, not conversing or asking questions; (3) gave the defendant and both counsel the opportunity to be present at the view; and (4) enlisted the attendance of a court reporter to record what transpired at the view.


author: MEYERS, J., PRICE, J.,

text:
    Jonathan Merchant HARRIS, Appellant, v. The STATE of Texas.
    No. PD-1298-03.
    Court of Criminal Appeals of Texas.
    Jan. 12, 2005.
    Angela Ivory, McKinney, for Appellant.
    Katharine K. Decker, Asst. District Atty., McKinney, Matthew Paul, State’s Atty., Austin, for State.
   OPINION

MEYERS, J.,

delivered the opinion of the Court,

in which KELLER, P.J., and WOMACK, JOHNSON, KEASLER, HERVEY, HOLCOMB, and COCHRAN, JJ., join.

Appellant was convicted of possession of more than five pounds but less than 50 pounds of marijuana. On October 28, 2002, after the punishment phase of the trial, the trial court sentenced Appellant to ten years in the Texas Department of Criminal Justice Institutional Division. The next day, the trial judge recalled Appellant. He explained that the State had previously submitted evidence of prior felony convictions for enhancement purposes, and that he found them to be true. Thus, according to Texas Penal Code, Section 12.42(d), the court was not able to sentence Appellant to any amount of time less than twenty-five years. The trial court then re-sentenced Appellant to 25 years in the TDCJ Institutional Division. Appellant appealed to the Fifth Court of Appeals, which affirmed the second sentence of the trial court. Harris v. State, No. 05-02-01761-CR, 2008 WL 21509054 (Tex.App.Dallas-2003, pet.granted) (not designated for publication), 2008 Tex.App. LEXIS 5614. We will reverse.

On appeal, Appellant argued that the trial court lost the power to set aside the original, valid sentence and re-sentence Appellant to a higher sentence because Appellant had already accepted the sentence and suffered some punishment as a result. The State responded that this issue was not preserved for review because Appellant did not object. The court failed to consider this issue, instead, the court of appeals held that the presumption of regularity that attaches to all judgments was controlling in this case.

The court noted that the October 28, 2002, record does not indicate that the trial court actually found the enhancements to be true. However, the court also pointed out that at the October 29, 2002, sentencing, the trial judge said he found them to be true and the written judgment reflects this finding. The court concluded that Appellant did not satisfy his burden to overcome the presumption; in other words, he could not prove that the 25-year sentence recited in the judgment of the court was false or in error. In relying on the presumption of regularity, however, the court of appeals failed to address the true issue in this case: did the trial court commit constitutional error by re-sentencing Appellant the day after it imposed the first sentence? The issue here is not whether or not the written judgment of the court is false or in error. Rather, the issue is whether the trial court even had the lawful authority under federal Double Jeopardy principles to orally issue the second sentence, which increased Appellant’s sentence by 15 years over the first sentence, and then enter that second oral pronouncement of sentence into a written judgment.

We granted review in this case to determine the following: “Does the decision of the court of appeals conflict with the applicable decisions of the courts of appeals, the Court of Criminal Appeals, and the Supreme Court of the United States?” We conclude that the court of appeals erred in failing to address the Double Jeopardy claims of Appellant.

Appellant argues that an increase in punishment after a defendant has commenced serving his sentence violates a defendant’s Double Jeopardy rights. He also asserts that after the trial court imposed the first sentence of ten years, the trial court no longer had the ability to set aside the original sentence and order a new sentence.

The State counters that when an original sentence is illegal or void, a trial court acts properly and within its authority in correcting the sentence and assessing a lawful punishment at a subsequent hearing. The State argues in the instant case that the original ten-year sentence was unlawful, because, under Texas Penal Code, Section 12.42(d), it was mándatory that Appellant be sentenced to between 25 and 99 yéars as a repeat offender if the two prior felony enhancements were found true. The State relies on Cooper v. State, 527 S.W.2d 898 (Tex.Crim.App.1975) in support of this argument.

In Cooper, the trial court mistakenly sentenced the defendant to a period of four years, when the statutory minimum for the crime charged was five; thus the trial court had the authority to later correct the first statutorily unauthorized sentence. Id at 898-99. These facts are distinguishable from the facts in the instant case. Here, the facts do not support the contention that Appellant’s sentence was statutorily unauthorized at the time it was pronounced. When Appellant was sentenced, the trial court did not specifically find the enhancements to be true on the record. The court then sentenced Appellant within the range of punishment for an un-enhanced offense. The record states only that the trial judge, at the first sentencing proceeding, said the court had “received evidence of prior felony— prior convictions,” and proceeded to sentence appellant to ten years in the Texas Department of Criminal Justice. The record thus shows that the trial judge received the evidence of the prior convictions and considered them, but not that he found them true. The trial court erred to then find them true at a second sen-fencing hearing. This second attempt at sentencing violated Appellant’s rights under the Double Jeopardy Clause. Because the ten-year sentence was a valid and authorized sentence under the Texas Penal Code, the trial court’s second pronouncement of a 25-year sentence the following day was an unconstitutional 15-year increase.

The trial court’s actions in this case were neither a mere correction of an unauthorized sentence, nor a nunc pro tunc order within the inherent authority of the court that would permit revision of the written judgment to comply with the oral pronouncement of sentence. The first sentence imposed was authorized by law, and the court’s action on the second day was more than correcting a clerical error to make the judgment comply with the sentence pronounced. In the instant case, the trial court validly sentenced appellant one day, and the next day called appellant back and increased his sentence.

Accordingly, we reverse the decision of the court of appeals, and hold that the original ten-year sentence imposed by the trial court was a legal and authorized sentence.

PRICE, J.,-filed a dissenting opinion.

PRICE, J.,

filed a dissenting opinion.

This is a sad day for judicial integrity.

Despite the fact that the trial judge in this case said that he had found the enhancement allegations, which were supported by uncontested and certified penitentiary packets, true, the majority concludes that the trial court was unauthorized to correct the unauthorized sentence that had been imposed the day before. As a result, I respectfully dissent.

I. Facts

The appellant, Jonathon Merchant Harris,-was convicted of a third-degree felony, possession of marijuana. During the sentencing hearing, the State introduced evidence of the appellant’s prior felonies for enhancement purposes. The trial court acknowledged receiving the enhancement evidence, but did not explicitly find them true. The trial court sentenced the appellant to ten years’ incarceration.

The day after sentencing, the trial court recalled the appellant and explained that it had found the enhancements true and that the ten-year sentence was therefore unauthorized. The trial court then sentenced the appellant to the statutory minimum of twenty-five years.

We must determine whether the trial court was authorized to increase the appellant’s prison sentence the day after imposing a shorter sentence. I would conclude that, because the trial court found the enhancements allegations to be true, the original ten-year sentence was unauthorized and, therefore, correctable by the trial court.

On October 28, 2002, the appellant was tried before the court without a jury for possession of marijuana in an amount of more than five pounds but less than fifty pounds. The appellant’s indictment included three enhancement paragraphs for prior felony convictions. The trial court found the appellant guilty and, during the sentencing hearing, received evidence that consisted entirely of (1) penitentiary packets from the appellant’s prior felonies and (2) testimony from the State’s fingerprint expert that linked the appellant to the fingerprints in those penitentiary packets. The October 28th record does not specifically indicate that the trial court found the enhancement paragraphs to be true or to be not true, only that the court had received evidence of enhancement. The trial court then sentenced the appellant to ten years.

On October 29, 2002, the trial court, having been “informed that the minimum punishment in view of the prior convictions is twenty-five years,” recalled the appellant to reassess punishment. The court explained to the appellant’s attorney that it had not yet signed a judgment and that it had found the enhancements to be true on October 28, 2002. The appellant’s attorney agreed that if the court had found the enhancements true, the minimum punishment was twenty-five years. The appellant was brought to court, and the trial judge informed the appellant that the ten-year sentence was not permissible under the law since the enhancements had been found true. The court then sentenced the appellant to the twenty-five-year minimum sentence for a habitual offender.

On direct appeal, the appellant claimed that the trial court had no authority to change the original sentence. The Court of Appeals disagreed and affirmed the sentence on the basis that the trial court had found the enhancements to be true and had simply corrected the unauthorized sentence.

On discretionary review, the appellant asserts that the Court of Appeals erred in upholding the trial court’s re-sentencing the defendant to twenty-five years’ imprisonment when the trial court recalled the defendant to court the day after sentencing, informed him that the first sentence had been unauthorized, and then imposed a longer sentence. Specifically, the appellant contends that, because the trial court did not explicitly find the enhancement paragraphs true at the initial sentencing, a ten-year sentence was a statutorily allowed punishment and not subject to revision. As a result, he argues, the revision violated the Fifth Amendment prohibition against double jeopardy.

I. Law

The appellant claims that by increasing his sentence after he began serving it, the trial court violated his right to be free from double jeopardy. In his brief, the appellant relies on Ex parte Lange. In that case, the offense of which the defendant was convicted was punishable by either a fine or imprisonment. The trial court had sentenced the defendant to fine and imprisonment. Because the defendant had already paid his fine, and therefore suffered punishment under a valid sentence, the United States Supreme Court held that his sentence had been completed. The Court said that increasing a punishment after a defendant has begun to serve the sentence is a violation of his constitutional right to be free from double jeopardy.

In Bozza v. United States, the Supreme Court distinguished its opinion in Lange. In Bozza, the statute that under which the defendant was convicted required the imposition of a fine and imprisonment, but the trial imposed imprisonment only. The defendant was taken to a federal detention jail. About five hours later the defendant was recalled and a sentence in conformity with the statute was imposed. The Supreme Court declined to allow defendants to escape punishment just because the trial court had inadvertently imposed an unauthorized sentence. The prohibition on double jeopardy does not prohibit a trial court’s correcting an unauthorized sentence. We also have held that, when the original sentence is unauthorized, the trial court acts properly and within its authority in assessing a lawful punishment at the subsequent hearing, and in pronouncing sentence based on such punishment. For example, in Cooper v. State, the appellant pleaded guilty to delivery of heroin and was sentenced to four years’ imprisonment. The trial court later discovered that the minimum sentence for this offense was five years. Over the defendant’s objection, the trial court re-sentenced the defendant to the statutory minimum. We affirmed, concluding that the correction of an unauthorized sentence did not violate the double jeopardy provision of the United States Constitution.

To determine whether the trial court properly altered the appellant’s original sentence, we must determine whether the original ten-year sentence was authorized.

The language of Section 12.42(a) of the Texas Penal Code, the habitual offender statute, is “clear, instructive, and mandatory.” Once a finding of true as to the enhancement paragraphs has been made, the “punishment is absolutely fixed” by law. Further, the punishment assessed must always be within the minimum and maximum fixed by law. A sentence that is outside the minimum range of punishment is unauthorized by law and therefore illegal. If the trial court found the enhancement allegations true, then the original ten-year sentence was not authorized by law.

III. Application

The appellant claims that the trial court did not find the enhancements true during the original sentencing hearing. As a result, he argues, the ten-year sentence was valid and not subject to revision.

The appellant was charged with a third degree felony, for which the punishment range was two to ten years’ imprisonment and up to a ten thousand dollar fine. If the trial court found two enhancement paragraphs to be true, the minimum term of confinement would be twenty-five years. If the trial court did not find two enhancement allegations to be true, the ten-year sentence would be valid.

The appellant asserts that, since the trial court was not required to accept the State’s proof in the punishment phase of the trial, ten years was a statutorily authorized punishment. Further, the appellant points out that “despite the trial judge’s contention that he meant to find the enhancement paragraphs ‘true’ the previous day,” he was without power to re-sentence the appellant because he had already imposed a lawful sentence.

But the trial judge did not say that he meant to find the enhancements true during the sentencing hearing. Rather, the trial judge said that he had found the enhancements true, rendering the initial ten-year sentence unauthorized. Given the trial judge’s statement that he had found the enhancement allegations true, the majority has to assume that the trial judge either did not remember the events of the day before or that he was being dishonest. The record does not support this assumption.

Although a trial judge is not required to find enhancement allegations true, it would have been unusual under the circumstances of this case for the judge to find the allegations not true. The State offered certified records from the Texas Department of Criminal Justice. A fingerprint expert connected the appellant to the certified records. No evidence was offered to show that the applicant was not the person named in the certified records. It would be extraordinary for the trial judge to find, without comment, that the allegations were not true.

In the present case, the record reflects that the trial court found the enhancement paragraphs to be true. Having found the enhancement allegations true, the trial court was without discretion to sentence the appellant to less than the minimum twenty-five years set by the statute. Accordingly, I would hold that the ten-year sentence was subject to revision.

III. Conclusion

Because the majority concludes that the trial judge either lied or did not remember the events of the day before, I respectfully dissent.

      . Texas Penal Code § 12.42(d) states: “If it is shown on the trial of a felony offense other than a state jail felony punishable under Section 12.35(a) that the defendant has previously been finally convicted of two felony offenses, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final, on conviction he shall be punished by imprisonment in the institutional division of the Texas Department of Criminal Justice for life, or for any term of not more than 99 years or less than 25 years.”

      . For the sake of clarity, we discuss this issue in terms of the "authority” of the trial court, due to the fact that the cases presented in this opinion, and cited as precedent by the parties, refer to the issue in this way.

      .As noted above, the State argued to the court of appeals that Appellant failed to object to the change in sentencing and thus did not preserve the issue for review. We disagree. Although the court of appeals did not address the preservation issue, it is apparent from the record that Appellant met the requirements of Texas Rule of Appellate Procedure 33.1(a)(1)(A) and Texas Rules of Evidence 103(a)(1). At the second sentencing, the following conversation took place between the trial judge and Appellant's attorney:
      Judge: "I’m sure he will want to appeal this.”
      Defense Attorney: "Yes, sir.”
      Judge: "Wouldn’t blame him.”
      By recognizing that Appellant would want to appeal, it is clear that the trial judge was aware of the substance of Appellant’s complaint, and implicitly ruled against him by assigning the higher sentence. Additionally, rather than allow Appellant’s attorney to inform him of the increased sentence, the trial judge brought Appellant into the courtroom and stated:
      So I am assessing your punishment at 25 years confinement in the Institutional Division. The — I wanted to make you aware of that, and also that I believe probably [defense attorney] will be filing a motion for— or advising the Court of its intent — of your intent to appeal the decision or decisions in this matter. So if — well, I wanted to make you aware of that on the record and in open court.

      . The State also advances the argument that even if the first sentence was statutorily authorized and thus unable to subsequently be corrected by the trial court, it was within the plenary power of the trial court to change the sentence so long as the case was within its jurisdiction. While this proposition is true, the trial court could use its plenary power to modify the sentence only as much as the new sentence would remain within the same statutory range of punishment. In the instant case, changing the sentence from ten to twenty-five years was outside the punishment range of the third-degree felony. It is therefore unnecessary for us to discuss the plenary power of the court.

      . The State argues in its brief that a trial judge is not required to make a specific finding of "true” on the record, citing Garner v. State, 858 S.W.2d 656 (Tex.App.Fort Worth1993, pet. refused). In Gamer, the court of appeals held that the trial judge did not err in failing to read the enhancement paragraphs orally to the defendant, or by failing to make an oral finding of true for the record. Id. at 659. However, in Gamer, there was no attempt by the trial judge to change the sentence he imposed on the defendant after the sentencing phase of the trial had concluded. In the case before us, a determination as to whether the first sentence imposed was actually an unauthorized sentence depended on the specific findings of this trial court at the sentencing hearing. While it may not always be error for a trial court to fail to record specific findings, since no finding of true by the trial court was made on the record in this case, we can point to nothing in the record which supports the contention that the original sentence was unauthorized.

      . The full statement of the trial judge at the first sentencing hearing is as follows:
      All right. Mr. Harris, the Court, having found you guilty of the offense of possession of controlled substance, of possession of marijuana over five pounds, less than fifty pounds, the Court further having received evidence of prior felony — prior convictions, the Court assesses your punishment at ten years confinement in the Institutional Division of the Texas Department of Criminal Justice.

      . The State argues in its brief that the evidence provided for enhancement was un-con-troverted and overwhelming that Appellant had committed these prior felonies, as his fingerprints compared to those in TDCJ records were positively matched. Though this may be true, the trial court is still not bound to accept the State's evidence and find them true. See State v. Dickerson, 864 S.W.2d 761, 763 (Tex.App. Houston [1st Dist.] — 1993, no pet.).

      . At the second sentencing, the trial judge responded, "well, they’re found to be true,” with regard to the enhancements after defense counsel requested clarification of the statutory sentencing máximums. While we do not suggest that the trial judge was being dishonest in any way, it is clear from the record that one of two situations occurred: that the trial judge made a mistake of omission at the first sentencing which he had no legal authority to correct the next day, or that he changed his mind about finding the enhancements true, which he also had no legal authority to do at a second sentencing proceeding.

      . See Arizona v. Rumsey, 467 U.S. 203, 211, 104 S.Ct. 2305, 81 L.Ed.2d 164 (1984) (a trial court's imposition of a life sentence, based on its incorrect finding that, as a matter of law, robbery did not amount to an aggravating circumstance warranting the death penalty, barred the imposition of the greater sentence of death upon resentencing); Sanabria v. United States, 437 U.S. 54, 64, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978) (even mistaken or "egregiously erroneous” legal rulings that lead to a judgment of acquittal raise a double jeopardy bar to retrial).

      . See Ex parte Voelkel, 517 S.W.2d 291 (Tex.Crim.App.1975)(holding any increase in sentence imposed after the close of the sentencing hearing at which the initial sentence was imposed was invalid); Tooke v. State, 642 S.W.2d 514, (Tex.App. Houston [14th Dist]-1982, no pet.) (a trial court had no authority to re-sentence defendant by increasing the severity of the sentence after he had been "formally sentenced,” and had accepted such sentence).

      . See Ex Parte Madding, 70 S.W.3d 131 (Tex.Crim.App.2002)(holding that when the trial court orally ruled in the presence of the defendant that his sentences would be served concurrently, and then later in a written judgment ordered them to be served consecutively, this violated the defendant’s right to due process of law). In Madding, this Court acknowledged that the appellant might have had a valid argument against the increase in sentencing under the double jeopardy clause, because of the rule in federal courts that an increase in sentence after the defendant has commenced serving his punishment is a violation of his right not to be subject to double jeopardy. Id. at 134 n. 6. In that case, we declined to base our decision on the issue of double jeopardy, however, because applicant was entitled to relief on due process grounds.

      . At the close of the evidence, the trial court made the following statement:
      All right. Mr. Harris, the Court, having found you guilty of the offense of possession of [a] controlled substance, of possession of marijuana over five pounds, less than fifty pounds, the Court further having received evidence of prior felony-prior convictions, the Court assesses your punishment at ten years[’] confinement in the Institutional Division of the Texas Department of Criminal Justice.

      . During the proceedings on the day after the punishment hearing, the trial court said:
      In the matter of the State of Texas versus Jonathan Merchant Harris that the Court heard yesterday and found the [appellant] guilty of possession of marijuana over five pounds, the Court heard the punishment phase, heard evidence of prior convictions[,] which the Court found to be true. I assessed punishment at ten years, but I’m informed that the minimum punishment in view of the prior convictions is 25 years.

      . Tex. Pen.Code § 12.42(d).

      . Harris v. State, No. 05-02-01761-CR, slip op. at 6, 2003 WL 21509054 (Tex.App.-Dallas, delivered June 30, 2003) (not designated for publication).

      . The exact ground on which we granted review is “Does the decision of the Court of Appeals conflict with the applicable decisions of the Court of Appeals, The Court of Criminal Appeals, and the Supreme Court of the United States?”

      . Ex parte Lange, 18 Wall. 163, 85 U.S. 163, 21 L.Ed. 872 (1873).

      . Id., at 175, 18 Wall 163.

      . Id., at 175-76, 18 Wall. 163.

      . Id., at 175, 18 Wall. 163.

      . Bozza v. United States, 330 U.S. 160, 166-67 n. 2, 67 S.Ct. 645, 91 L.Ed. 818 (1947).

      . Id., at 166-67, 67 S.Ct. 645.

      . Id., at 166, 67 S.Ct. 645.

      . Id., at 166-67, 67 S.Ct. 645.

      . See, e.g., Cooper v. State 527 S.W.2d 898, 899 (Tex.Crim.App. 1975).

      . Ibid.

        . Id., at 898.

      . Id., at 899.

      . State v. Allen, 865 S.W.2d 472, 474 (Tex.Crim.App.1993).

      . Ibid, (citing Harvey v. State, 611 S.W.2d 108, 111 (Tex.Crim.App.1981)).

      . Henderson v. Texas, 167 Tex.Crim. 112, 318 S.W.2d 898, 899 (1958).

      . See Mizell v. State, 119 S.W.3d 804, 806 (Tex.Crim.App.2003); Ex Parte Beck, 922 S.W.2d 181, 182 (Tex.Crim.App.1996); Ex Parte Hill, 528 S.W.2d 125, 126 (Tex.Crim.App.1975).

      . Tex. Health & Safety Code § 481.121(b)(4) (possession offense); Tex. Pen.Code § 12.34 (punishment range).

      . Tex. Pen.Code § 12.42(d).

      . Tex Pen.Code §§ 12.42(a)(3); 12.33; 12.34.

      . Tex Pen.Code § 12.42(d).

      . Allen, 865 S.W.2d at 474.

      . Tex. Pen.Code § 12.42(d).