author: Justice ROSS.

text:
    David DRICHAS, Appellant, v. The STATE of Texas, Appellee.
    No. 06-04-00002-CR.
    Court of Appeals of Texas, Texarkana.
    Submitted Oct. 27, 2004.
    Decided Nov. 9, 2004.

      Troy Hornsby, Miller, James, Miller and Hornsby, LLP, Texarkana, for appellant.
    Nicole Habersang, Asst. Dist. Atty., Texarkana, for appellee.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by

Justice ROSS.

David Drichas was convicted by a jury for evading detention with a motor vehicle. See Tex. Pen.Code Ann. § 38.04(a), (b)(1) (Vernon 2003). The jury also found that, during the commission of the offense, Dri-chas used his truck as a deadly weapon. See Tex. Pen.Code Ann. § 12.35(c)(1) (Vernon 2003). Drichas pled true to allegations in the indictment under the habitual felony offenders statute, and the jury assessed his punishment at ninety-nine years’ imprisonment. See Tex. Pen.Code Ann. § 12.42(d) (Vernon Supp.2004-2005). The trial court sentenced Drichas in accordance with the jury’s verdict. Drichas appeals, contending the State failed to provide him adequate notice of its intent to seek an affirmative deadly weapon finding, complaining of the trial court’s refusal to further define the term “deadly weapon” in its charge to the jury, and challenging the legal and factual sufficiency of the evidence to sustain the jury’s affirmative deadly weapon finding.

I.Factual and Procedural History

The State’s evidence showed that, in the early morning hours of March 21, 2003, Drichas hastily exited a gasoline station parking lot in Texarkana, Arkansas, causing the tires on his 1992 Chevrolet pickup truck to spin. He did this directly in front of an unmarked police vehicle driven by Officer Dwight Mowery of the Texarkana, Arkansas, Police Department. Mowery was forced to brake “pretty hard” in order to avoid hitting Drichas’ truck. Mowery made a quick check to see if there had been a crime committed at the gasoline station — there had not — and then initiated pursuit of Drichas’ truck.

Mowery pursued Drichas for a few blocks before activating the flashing lights located in the grill of his car. Drichas continued to drive at excessive speeds, swerving and “fishtailing” around corners. When he crossed the state line into Texar-kana, Texas, Officer Jason Woolridge, of the Texarkana, Texas, Police Department, took over what would become a fifteen-mile pursuit of the truck.

After speeding, weaving in and out of lanes, skidding around corners, disregarding traffic signals, and going the wrong way in a construction zone, Drichas led officers south of downtown on Highway 59, where he continued past Lake Wright Pat-man. Drichas’ truck began to smoke and spew oil. After crossing the Sulphur River bridge, Drichas turned his truck around and began to travel back toward town. He then turned into a mobile home park, where he exited his still-moving truck and ran into some woods nearby. The truck collided with a parked van, causing the van to collide with a mobile home. Drichas was apprehended after a short pursuit through the woods.

Drichas was indicted for the offense of evading detention with a motor vehicle. Approximately two months before trial, the State moved to amend the indictment to include an allegation that Drichas used a deadly weapon, his truck, in committing evasion of detention as charged. The trial court granted that motion, and the amended indictment was filed October 17, 2003.

Trial was held December 9, 2003. At the close of the State’s evidence, Drichas moved to dismiss the deadly weapon portion of the indictment. The motion was overruled, and Drichas then presented no evidence. The jury returned its verdict, finding Drichas guilty of evading detention with a vehicle and further found that, in doing so, he used his truck as a deadly weapon.

II. Notice of Intent to Pursue a Deadly Weapon Finding

In his first point of error, Drichas relies on Article I, Section 19 of the Texas Constitution and contends the State failed to provide him with adequate notice of its intent to seek a deadly weapon finding at trial. Based on the original clerk’s record filed in this Court, it appeared Drichas was correct. The trial court’s order, in that record, granting the State’s motion to amend the indictment referenced an attached copy of the amended indictment. That attached copy, however, contained only one of the two pages of the amended indictment and that page contained no allegation concerning a deadly weapon. Thus, it appeared the State gave no notice of its intent to pursue a deadly weapon finding. At oral argument, however, Drichas’ counsel conceded that the filing of a supplemental clerk’s record, including a complete copy of the amended indictment, remedied the notice complaint. This point of error is therefore overruled.

III. Proposed Jury Instruction

Drichas, by his fourth point of error, complains of the trial court’s denial of a requested instruction to the jury. The court’s charge to the jury included the following definition:

A “deadly weapon” means anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.

The charge then defined “serious bodily injury,” “bodily injury,” and “use.”

Driehas requested that the court add this caveat to the definition given of a deadly weapon: “[T]he possibility of serious bodily injury or death must be more than merely hypothetical.” The trial court denied this request.

A. Standard of Review

Relying on the legislative intent of Article 36.19 of the Code of Criminal Procedure, the Texas Court of Criminal Appeals has outlined the appropriate method for analyzing errors in jury charges. Tex. Code Crim. PROc. Ann. art. 36.19 (Vernon 1981); Mann v. State, 964 S.W.2d 639, 641 (Tex.Crim.App.1998); Abdnor v. State, 871 S.W.2d 726, 731-32 (Tex.Crim.App.1994). First, the reviewing court must determine whether the jury charge contains error. Mann, 964 S.W.2d at 641; Abdnor, 871 S.W.2d at 731-32. Second, the court must determine whether sufficient harm resulted from the error to require reversal. Mann, 964 S.W.2d at 641; Abdnor, 871 S.W.2d at 731-32.

B. Contents of the Jury Charge: Statutory Definition

A trial court must charge the jury on the “law applicable to the case.” Tex. Code Crim. PROC. Ann. art. 36.14 (Vernon Supp.2004-2005). Such duty requires that the trial court instruct the jury on each element of the offense charged. Murphy v. State, 44 S.W.3d 656, 661 (Tex.App.-Austin 2001, no pet.). Also, the trial court must provide the jury with each statutory definition that affects the meaning of an element of the offense. Id.

If a phrase, term, or word is statutorily defined, the trial court must submit the statutory definition to the jury. Moore v. State, 82 S.W.3d 399, 408 (Tex.App.-Austin 2002, pet. ref'd). We are, as is any other court, without the power to legislate and read into the statute something omitted by the Legislature by adding to the jury instruction words or standards not expressed in the statute. Barkley v. State, 152 Tex.Crim. 376, 214 S.W.2d 287, 291-92 (1948) (op. on reh’g); Murphy, 44 S.W.3d at 664. Therefore, we must presume the jury knew and applied the common and ordinary meaning to the words included in the jury charge. See Martinez v. State, 924 S.W.2d 693, 698 (Tex.Crim. App.1996).

C.Trial Court Properly Refused Proposed Instruction

Essentially, Driehas’ contention is the jury charge should have included words reflecting the standard of review to be applied when examining the sufficiency of the evidence to support a deadly weapon finding. Merely because his proposed instruction is a correct statement of that standard is not an adequate reason for including it in the court’s charge to the jury. Unnecessary instructions should not be given, even if they are correct statements of law. See Pinnacle Gas Treating, Inc. v. Read, 69 S.W.3d 240, 246 (Tex.App.-Waco 2002), rev’d & remanded on other grounds, 104 S.W.3d 544 (Tex.2003), quoting Raiford v. May Dep’t Stores Co., 2 S.W.3d 527, 533 (Tex.App.-Houston [14th DistJ 1999, no pet.). Unnecessary instructions single out or highlight issues, and in so doing run the risk of being comments on the weight of the evidence. Pinnacle Gas Treating, Inc., 69 S.W.3d at 246.

Here, the trial court properly included the statutory definition of “deadly weapon.” Based on the foregoing rules and limitations, we conclude the trial court did not err in refusing to include additional language describing the term “deadly weapon.” We overrule Driehas’ contention.

IV. Legal and Factual Sufficiency of the Evidence

Driehas also challenges the legal and factual sufficiency of the evidence to support the jury’s finding that he used his truck as a deadly weapon in the commission of the offense. Specifically, he argues the State failed to prove his driving placed someone else in danger of serious bodily injury or death.

A. Standards of Review

For legal sufficiency purposes, the question for the reviewing court is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime (or finding) beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); McCain v. State, 22 S.W.3d 497, 503 (Tex.Crim.App.2000). Specifically, we review the record to determine whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found beyond a reasonable doubt the truck was used as a deadly weapon. See Cates v. State, 102 S.W.3d 735, 738 (Tex.Crim.App. 2003).

When reviewing a challenge to the factual sufficiency of the evidence to support the jury’s finding, the court must determine whether, considering all the evidence in a neutral light, the jury was rationally justified in its finding beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477 (Tex.Crim.App.2004). There are two ways in which the court may find the evidence to be factually insufficient. First, if the evidence supporting the finding, considered alone, is too weak to support the jury’s finding beyond a reasonable doubt, then the court must find the evidence insufficient. Id, Second, if — when the court weighs the evidence supporting and contravening the finding — it concludes that the contrary evidence is strong enough that the state could not have met its burden of proof, the court must find the evidence insufficient. Id. “Stated another way, evidence supporting [the finding] can ‘outweigh’ the contrary proof and still be factually insufficient under a beyond-a-reasonable-doubt standard.” Id.

B. A Vehicle as a Deadly Weapon

The Penal Code defines the term “deadly weapon”:

(A) a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or
(B) anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.

Tex. Pen.Code Ann. § 1.07(a)(17) (Vernon Supp.2004-2005). Section 1.07’s plain language does not require that the actor actually intend death or serious bodily injury; an object is a deadly weapon if the actor intends a use of the object in which it would be capable of causing death or serious bodily injury. McCain, 22 S.W.3d at 503. The placement of the word “capable” in the provision enables the statute to cover conduct that threatens deadly force, even if the actor has no intention of actually using deadly force. Id.; Tisdale v. State, 686 S.W.2d 110, 114-15 (Tex.Crim.App.1984) (op. on reh’g). If driven so as to endanger lives, a motor vehicle can clearly be a deadly weapon. Cates, 102 S.W.3d at 738; Tyra v. State, 897 S.W.2d 796, 798-99 (Tex.Crim.App.1995); Ex parte McKithan, 838 S.W.2d 560, 561 (Tex.Crim.App.1992).

To sustain a deadly weapon finding, there must be evidence that others were actually endangered, “not merely a hypothetical potential for danger if others had been present.” Mann v. State, 13 S.W.3d 89, 92 (Tex.App.-Austin 2000), aff'd, 58 S.W.3d 132 (Tex.Crim.App.2001) (emphasis added). While a deadly weapon finding does not require that the object actually cause death or serious bodily injury, it does require that the object have more than a hypothetical capability of causing death or serious bodily injury. Johnston v. State, 115 S.W.3d 761, 764 (Tex.App.-Austm 2003, pet. refd). We must evaluate the “capability” of causing death or serious bodily injury in light of the facts that actually existed while the charged offense was committed, rather than conjecture about what might have happened if the facts had been somewhat different. Williams v. State, 946 S.W.2d 432, 435 (Tex.App.-Fort Worth 1997), rev’d in part on other grounds, 970 S.W.2d 566 (Tex.Crim.App.1998) (concluding that proper remedy when appellate court sustains challenge to sufficiency of evidence to support deadly weapon finding is ordering deletion of deadly weapon finding rather than ordering new trial on punishment).

C. Relevant Cases

In Williams, the state presented evidence Williams possessed the truck and also used the truck during his commission of the felony offense of driving while intoxicated (DWI). By doing that, he both used and actively employed the truck while committing the DWI felony. Id. at 435. However, there was no evidence that any other person encountered danger from Williams’ truck:

[T]here is no evidence that any other motorist was on the highway at the time and place that Williams drove in an intoxicated condition or that any other motorist (besides other troopers the arresting officer called for assistance) ever came upon the scene or encountered danger from Williams’ truck or from other traffic because the truck was parked in the highway.

Id. at 435-36. Therefore, the Fort Worth Court of Appeals concluded, the state failed to prove that, in the manner of its use, or intended use, Williams’ truck was capable of causing death or serious bodily injury. Accordingly, there should not have been a deadly weapon issue in the jury charge on punishment. Id. at 436.

In Davis v. State, 964 S.W.2d 352, 354 (Tex.App.-Fort Worth 1998, no pet.), the Fort Worth Court of Appeals factually distinguished its earlier opinion in Williams by pointing to the testimony of the arresting officer that Davis weaved and drove into the oncoming lane of traffic four or five times, and had to take “evasive action” to avoid hitting another car in the oncoming lane.

In another case, one also involving charges of felony DWI, the testimony showed that the appellant, Mann, “almost hit another vehicle head-on” when Mann’s vehicle crossed the centerline, and that a collision did not occur only because the oncoming vehicle “took evasive action.” Mann, 13 S.W.3d at 92. Additionally, an officer experienced in reconstructing accidents testified a collision under those circumstances was capable of causing death or serious bodily injury. Id. The Austin Court of Appeals held there was sufficient evidence to support the finding that Mann used his vehicle in a manner capable of causing serious bodily injury or death during the commission of the felony DWI offense. Id.

D. Evidence was not Legally and Factually Sufficient to Show Actual Endangerment

While the record in the instant case contains ample evidence that Drichas drove in a reckless manner, we do not find evidence that, during the fifteen-mile chase, Drichas’ driving actually placed another person in danger. Based on Williams and Mann, evidence that an accused drove recklessly is insufficient to meet the state’s burden of showing that he or she used a vehicle as a deadly weapon during the commission of the offense charged.

1. Evidence Shows Hypothetical Danger, not Actual Endangetment

Mowery, the officer who initiated the chase on the Arkansas side of Texarkana, testified Drichas nearly caused an accident when Drichas first pulled out of the gasoline station parking lot in a reckless manner:

So when the defendant pulled out in front of me, it was a quick thing where I could barely see him. I had to hit my brakes pretty hard to prevent from having an accident.

We first note this incident occurred, as Mowery conceded, before the commission of the alleged offense:

Q .... did you almost running into the defendant’s truck have anything to do with him running, evading Texar-kana, Texas police officers for fifteen miles?
A. No.
Q. Does it have anything to do with — Does what didn’t happen at the store, does that have anything to do with the defendant evading police in a vehicle?
A. No.

Therefore, we cannot say this near mishap between Mowery and Drichas qualifies as use of a deadly weapon during the commission of the offense charged. ,

Mowery testified to the reckless manner in which Drichas drove during the fifteen-mile chase, describing how Drichas failed to stop at stop signs, turned in a way that caused him to temporarily lose traction on the back end of his truck and nearly ended up on the steps of the Bi-State Justice Building, and how he traveled up to seventy miles per hour through downtown streets. Mowery stated that, while “there wasn’t a lot” of traffic out at the time of the chase, there was some. Mowery described how Drichas continued to drive at excessive rates of speed in the wrong direction in the construction zone around Highway 59. After Drichas had driven on Highway 59 past the lake, he turned around past the Sulphur River bridge and headed back in the direction of the several police units following him.

While evidence of the reckless maneuvers Drichas made during the chase are relevant to the issue of whether he drove his truck in a manner sufficient to render it a deadly weapon, based on the reasoning in Williams and ■ Mann, such evidence, alone, is insufficient. While it might be said that Drichas’ driving potentially placed the officers at risk of- danger, there is no evidence the officers ever had to take evasive action or were placed in the zone of danger during the course of the evasion. Put another way, there is no evidence the officers or any other person were actually endangered. See Williams, 946 S.W.2d at 435-36. The following testimony by Mow-ery illustrates the failure of the State’s evidence:

Q. Was there a lot of traffic out?
A. No, there wasn’t a lot. There was some.
Q. Now, during the course of this route that you took, did you at any time see the truck attempt to run over anybody?
A. No.
Q. Did you see anybody having to swerve to get out of the way or move rapidly to get out of the way of this truck?
A. Other than me there at the store. No, I didn’t see anything, other than me, having to avoid an accident.
Q. Did you see the driver in any way point the truck towards someone or some vehicle in an attempt to run them down or harm them in any way?
A. No. I did observe the defendant driving the wrong way on the highway, though.
Q. I understand, but my question was he didn’t point his vehicle at any person or any other vehicle in an attempt to run them down.
A. Well, it was certainly pointed in the wrong direction at that point. I’m not certain of this, but we were meeting some traffic somewhere around that point there.
Q. You never saw anybody have to swerve to get out of his way?
A. No.

We find evidence of reckless driving, but find no evidence this reckless driving actually endangered another person.

There is also testimony that Drichas “blew past” a Texas officer stationed at an intersection. This evidence, too, fails to reach the level of endangerment necessary to show the truck was a deadly weapon in that it does not reveal that the officer was endangered by Drichas’ driving. In fact, the evidence illustrates that the officer was waiting at the intersection to join the chase and that his position was safely outside Drichas’ route. On cross-examination, Mowery made clear that, as Drichas sped down Fourth Street, the waiting officer “was not on Fourth Street” and the officer “didn’t have the road blocked” or “any portion of [Fourth Street] blocked.”

When Drichas turned around past the Sulphur River bridge, and the officers also turned around to continue the chase, Dri-chas’ truck was smoking and a fine mist of oil was being emitted from it and hitting the windshields of the officers’ vehicles. Again, however, this evidence is mentioned only briefly and only incidentally, and no description of any dangerous effects of the oil were ever elicited.

We also examined the testimony regarding Drichas’ entry into the mobile home park and his subsequent abandonment of his moving truck. We note the truck continued to move forward and hit a van, pushing the van into a mobile home. However, there is no showing that a person or persons were in either the van or the mobile home. Further, there is no evidence there was anyone in the mobile home park itself during the time the collision occurred. To assume otherwise would require us to engage in conjecture, which we cannot do.

The State is correct that the officers testified to conclusions consistent with the language in the statutory definition of “deadly weapon”:

Q.... And Officer Mowery, you’ve talked about excessive rates of speed, you’ve talked about running stop signs, driving on the wrong side of the road the defendant did that night, in your training and experience, the manner the vehicle was used that night, was it capable of causing serious bodily injury or death?
A. Yes, absolutely so.
Q. During this car chase, we’ve talked about the excessive rates of speed and the defendant driving on the wrong side of the road and weaving, that early morning, in the manner of its use or intended use, was that vehicle capable of causing serious bodily injury or death?
A. Yes, ma’am.

These conclusory assertions mirroring the statutory language simply do not provide sufficient evidence of the actual endangerment. The state need not show that someone was actually lolled or seriously injured; it need only show that another person was actually put in danger of serious bodily injury or death. No such evidence was adduced in this case.

Even viewing this evidence in a light most favorable to the jury’s verdict, we cannot say that a rational trier of fact could conclude Drichas placed others in danger of serious bodily injury or death. Further, viewing the evidence in a neutral light, we cannot conclude that the jury was rationally justified in finding beyond a reasonable doubt Drichas used his truck as a deadly weapon since there is no evidence to show that another person was actually endangered by Drichas’ use of his truck. We sustain Drichas’ third and fourth points of error.

2. Deletion of Deadly Weapon and Remand for New Trial on Punishment

We note that the Texas Court of Criminal Appeals has concluded that the proper remedy when the state fails to sufficiently show that a defendant used a deadly weapon during the commission of an offense is for the reviewing court to delete the affirmative deadly weapon finding. Williams, 970 S.W.2d at 566; Narron v. State, 835 S.W.2d 642, 644 (Tex.Crim.App.1992). Here, however, because deletion of the deadly weapon finding changes the range of punishment available to be assessed against Drichas, we must remand the case for a new trial on punishment. See Tex.R.App. P. 48.8.

Evading detention is a Class B misdemeanor. Tex. Pen.Code Ann. § 38.04 (Vernon 2003). When a person evades detention with a motor vehicle, however, the offense becomes a state jail felony. Tex. Pen.Code Ann. § 38.04(b)(1). With an affirmative deadly weapon finding, the state jail felony of evasion of detention with a motor vehicle becomes a third degree felony. See Tex. Pen.Code Ann. § 12.35(e) (Vernon 2003). Finally, enhancing this third degree felony under the habitual felony offenders statute with two prior felony convictions, the punishment range then becomes from twenty-five to ninety-nine years or life in prison. See Tex. Pen.Code Ann. § 12.42(d). Removal of the deadly weapon finding, however, also removes one of the enhancements necessary to make evasion of detention punishable by ninety-nine years.

The State did, of course, show that Dri-chas used a motor vehicle in evading detention, making the offense a state jail felony. See Tex. Pen.Code Ann. § 12.35(a), (b). However, because the State failed in showing that Drichas used that motor vehicle as a deadly weapon, his offense should have been deemed a state jail felony, rather than a third degree felony under Section 12.35(c)(1). The punishment available for a state jail felony, enhanced with two prior felony convictions pursuant to Section 12.42(a)(2), is that for a second degree felony: two to twenty years in prison and a fine of up to $10,000.00. See Tex. Pen.Code Ann. § 12.42(a)(2) (Vernon Supp.2004-2005), § 12.33 (Vernon 2003). Therefore, without the deadly weapon finding, but considering the two prior felony convictions alleged under the habitual felony offenders statute — which Drichas admitted were true — the maximum punishment for this conviction is twenty years and a $10,000.00 fine. Without the deadly weapon finding, the ninety-nine-year sentence imposed is well outside that maximum.

We delete the deadly weapon finding and remand this case to the trial court for a new trial on punishment wherein Dri-chas’ punishment must be assessed pursuant to Sections 12.33 and 12.42(a)(2) of the Texas Penal Code.

      . It is difficult to ascertain the precise meaning of this parenthetical in Williams. This language may be read to exclude the officers in pursuit from the category of people who could be said to have been endangered by a defendant’s driving. It is unclear whether the clause is intended to specify that the officers were present, just not endangered, or whether it does intend to exclude officers from those whom the defendant might endanger. We will not read Williams as excluding officers from the class of persons capable of being endangered. No other Texas court has cited Williams for such an exclusion. If Williams does, in fact, express the position that the state must show someone other than police officers were endangered, we emphatically disagree with such a position.

      . Even if this incident had occurred during the actual evasion, the State would still have jurisdictional problems to overcome since the incident would have occurred in the State of Arkansas. Texas has territorial jurisdiction over an offense if either the conduct or a result that is an element of the offense occurs inside this state. Tex Pen.Code Ann. § 1.04(a)(1) (Vernon 2003); Rodriguez v. State, 146 S.W.3d 674, (Tex.Crim.App., 2004).

      . Tex. Pen.Code Ann. § 12.35(c)(2) also allows the state to enhance punishment to a third degree felony if it alleges and proves a prior felony conviction for specific types of offenses. Here, the indictment clearly relied solely on the deadly weapon allegation for enhancement under this statute and clearly alleged two prior felony convictions, neither of which was the type of prior felony offense required under Section 12.35(c)(2), solely for enhancement under Section 12.42, the habitual felony offenders statute.


source: Caselaw Access Project

author: JAMES T. WORTHEN, Chief Justice.

license: Public Domain

text:
    Velma COURTNEY, Appellant, v. NIBCO, INC., Appellee.
    No. 12-03-00321-CV.
    Court of Appeals of Texas, Tyler.
    Nov. 10, 2004.

      Charles R. Dendy, Lufkin, for appellant.
    Travis P. Clardy, Fairchild, Price, Thomas & Haley, L.L.P., Nacogdoches, for appellee.
    Panel consisted of WORTHEN, C.J., GRIFFITH, J., and DeVASTO, J.
   OPINION

JAMES T. WORTHEN, Chief Justice.

Appellant Velma Courtney appeals from the trial court’s grant of summary judgment in favor of Nibco, Inc. in her suit for worker’s compensation-related retaliatory discharge. In two issues, Courtney claims her summary judgment evidence established that a causal link existed between her compensation claim and her termination and that Nibco had no legitimate reason to terminate her. We affirm.

Background

In July 1991 Courtney went to work for Nibco in its Nacogdoches manufacturing plant on an assembly line. In 1994 and 1995 she missed seven months of work after suffering a disc herniation. In 1997 she reported an on-the-job back injury. In 1998 she experienced pain in her right wrist caused by lifting boxes and was limited to lifting no more than twenty pounds. In 1999 she experienced a low back strain at work, and Nibco assigned her to lighter duties.

Courtney was familiar with what was expected of her as a Nibco employee. She acknowledged that on August 28, 1998, she received the company’s employee handbook, which described the disciplinary process for avoidable sub-par performance of duties. On May 22, 2000, Nibco assembly line employees were issued an assembly performance policy that prescribed the following actions to be taken by supervisors for various levels of sub-par performance:

10 hours avoidable sub-par performance
Conference will be Coaching
15 hours avoidable sub-par performance
Conference will be Oral Warning
20 hours avoidable sub-par performance
Conference will be Written Warning
25 hours avoidable sub-par performance
Conference will be Final Warning
30 hours avoidable sub-par performance
Conference will be Termination

On July 20, 2000, Courtney received a coaching session from Nibco management after logging ten hours of avoidable sub-par performance. She then worked until October with no sub-par performance hours. In October she logged 2.08 hours of sub-par performance. Then, in January of 2001, she logged the following hours of sub-par performance:

January 18 4.94 hours
January 19 2.47 hours
January 20 5.25 hours
January 23 3.43 hours

Courtney’s sub-par performance from October through January was avoidable. When she exceeded 15 hours on January 18, Courtney received an oral warning. On January 19, she exceeded 20 hours and received a written warning. On January 20, she exceeded 25 hours and received a final warning. Then, on January 23, Courtney exceeded 30 hours of sub-par performance, which made her subject to termination. She was terminated on January 25 during a meeting with Larry Duncan (“Duncan”), Nibco’s personnel director.

Courtney then filed suit for retaliatory discrimination alleging that she had been terminated from Nibco because she had filed a worker’s compensation claim. Nib-co filed a traditional motion for summary judgment alleging that Courtney had failed to show a causal link between her worker’s compensation claim and her termination. After Courtney filed her response, the trial court granted Nibco’s motion. Courtney then filed a timely notice of appeal.

Standard of Review

A party moving for summary judgment has the burden to show that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law on the issues set out in the motion. See Tex.R. Civ. P. 166a(c); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.2003). A defendant who conclusively negates at least one of the essential elements of the plaintiffs cause of action is entitled to summary judgment. Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex.1995).

We review the trial court’s summary judgment de novo. Knott, 128 S.W.3d at 215. We take the evidence favorable to the nonmovant as trae, indulge every reasonable inference in favor of the nonmov-ant, and resolve all doubts in the nonmov-ant’s favor. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548^9 (Tex.1985). Because the trial court’s order does not specify the grounds for its summary judgment, we must affirm the summary judgment if any of the theories presented to the trial court and preserved for appellate review are meritorious. Knott, 128 S.W.3d at 216.

Propriety of Summary Judgment

In her first issue, Courtney contends that the trial court erred in granting a summary judgment because her summary judgment evidence established a causal link between her worker’s compensation claim and her termination by Nibco. In her second issue, she contends that her summary judgment evidence established that Nibco had no legitimate reason to terminate her. Because Courtney alleges the same actions by Nibco in both issues, we will discuss the two issues together.

Retaliatory Discharge

The long-standing rule in Texas is that employment for an indefinite term may be terminated at will and without cause. Winters v. Houston Chronicle Publ’g Co., 795 S.W.2d 723, 723 (Tex.1990). However, the legislature has created a number of restrictions and exceptions to this at-will doctrine. Id, at 724 & n. 1. One of these exceptions is that a person may not discharge or discriminate against an employee who files a worker’s compensation claim in good faith. See Tex. Lab. Code Ann. § 451.001 (Vernon 1996).

When an employee alleges that she was terminated in retaliation for filing a worker’s compensation claim, she must show that (1) she filed a worker’s compensation claim in good faith and that (2) a causal link exists between the termination and the filing of the claim. Tex. Lab.Code Ann. § 451.001; Benners v. Blanks Color Imaging, Inc., 133 S.W.3d 364, 369 (Tex.App.Dallas 2004, no pet.) (citing Garcia v. Allen, 28 S.W.3d 587, 600 (Tex.App.-Corpus Christi 2000, pet. denied)); see also Tex. Lab.Code Ann. § 451.002(c) (Vernon 1996) (providing that employee has burden of proof). The issues Courtney raises in this appeal relate to the second element: the causal link.

To establish a causal link between termination and filing a worker’s compensation claim, an employee need not show she was fired solely because she filed the claim. Lee v. Haynes & Boone, L.L.P., 129 S.W.3d 192,196 (Tex.App.-Dallas 2004, pet. denied). Rather, she must show that “but for” the filing of the claim, the discharge would not have occurred when it did. Id. Circumstantial evidence, and the reasonable inferences from such evidence, can prove the causal link. Continental Coffee Prods, v. Cazarez, 937 S.W.2d 444, 451 (Tex.1996). Once the employee has established the causal link, the employer bears the burden to rebut the alleged improper termination by showing there was a legitimate reason behind it. Id. Thereafter, in order to survive a motion for summary judgment, the burden shifts back to the employee to produce controverting evidence of a retaliatory motive. McIntyre v. Lockheed Corp., 970 S.W.2d 695, 697 (Tex.App.Fort Worth 1998, no pet.).

Circumstantial evidence sufficient to establish a causal link between termination and filing a worker’s compensation claim includes 1) knowledge of the compensation claim by those making the decision on termination; 2) expression of a negative attitude toward the employee’s injured condition; 3) failure to adhere to established company policies; 4) discriminatory treatment in comparison to similarly situated employees; and 5) evidence that the stated reason for the discharge was false. Cazarez, 937 S.W.2d at 451. Courtney asserts that she produced circumstantial evidence to establish each of these five factors. Therefore, we examine Courtney’s evidence relating to each factor.

Knowledge of Compensation Claim

Courtney alleged that Duncan knew of her worker’s compensation claim when he discharged her. Duncan admitted he knew of the claim at the time he terminated Courtney, but stated that the sole reason for her termination was her thirty hours of sub-par performance. Mere knowledge of a worker’s compensation claim does not establish a causal link between the alleged discriminatory behavior and the filing of a claim, but is only one factor to be considered in the light of the record as a whole. See Lone Star Steel Co. v. Hatten, 104 S.W.3d 323, 327-28 (Tex.App.-Texarkana 2003, no pet.).

Expression of Negative Attitude

Courtney stated in her summary judgment evidence that “they [Nibco] had an attitude problem. You can tell when somebody’s attitude changefs] towards you. It was like they had ill will or they had spite in their hearts or dislike.... It was there from day one when I started filing workman comp claims.” However, Courtney failed to identify any actions expressing a negative attitude that were directed toward her by any specific Nibco manager. Therefore, her statements can only be characterized as her subjective belief. Subjective beliefs are no more than conclusions and are not competent summary judgment evidence. Tex. Division-Tranter, Inc. v. Carrozza, 876 S.W.2d 312, 314 (Tex.1994).

Breach of Company Policy

Courtney alleges that she was terminated for failing to meet a production quota for the valve assembly line and points out the production quota for the valve assembly line was not in writing. However, she did not produce any summary judgment evidence to show that written production quotas were required for employees working on the valve assembly line.

Discriminatory Treatment

Courtney averred that she was not given the same amount of time to learn a new position as other employees had been given, that Nibco did not consider her work restrictions in setting her quota, and that she was terminated for failing to meet a quota although no other employee had ever been terminated for that reason.

In her summary judgment evidence, Courtney described her training, but did not specify the training that any of the other Nibco employees had received. Further, she did not specify how she knew that other employees had been given ninety days to learn how to assemble valves. These are conclusionary statements because she did not provide the underlying facts to support her conclusions. See Chaney v. Corona, 103 S.W.3d 608, 611 (Tex.App.-San Antonio 2003, pet. denied). A conclusionary statement is not sufficient to raise a fact issue in a summary judgment proceeding. See Ryland Group v. Hood, 924 S.W.2d 120,122 (Tex.1996).

The summary judgment evidence also showed that Nibco followed the restrictions on Courtney’s work activities as prescribed by her physician Bill Mathias. Specifically, the evidence showed that Dr. Mathias had seen Courtney on October 19, 2000 regarding a problem she was having with her right arm. The evidence also showed that Dr. Mathias visited Courtney’s work site and ■ determined that her valve assembly job did not violate her work restrictions. Finally, Duncan testified in his deposition that no other employee had ever been terminated for failing to meet a quota. However, Courtney produced no summary judgment evidence showing that any other employee had ever failed to meet a quota. In short, Courtney produced no summary judgment evidence to support her allegation of discriminatory treatment.

False Reason for Discharge

Courtney stated in her summary judgment evidence that she had been told by Larry Burg, who had been told by Nibco supervisor Ronnie Johnson, that the company had been unfair in terminating her because management knew she was hurting and they had not given her time to learn the valve assembly process. Nibco maintains that this is hearsay and is therefore improper summary judgment evidence.

Hearsay is a statement other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Tex.R. Evid. 801(d). Summary-judgment evidence must be based on personal knowledge arid must contain facts that would be “admissible in evidence” at a conventional trial. See Fidelity & Casualty Co. of New York v. Burts Brothers, Inc., 744 S.W.2d 219, 224 (Tex.App.-Houston [1st Dist.] 1987, writ denied). Burg’s statement to > Courtney about what the Nibco supervisor allegedly said was hearsay and therefore not competent summary judgment evidence. See id. Moreover, Burg’s statement, even if not hearsay, does not support Courtney’s position because Burg neither stated nor implied that Courtney had been terminated for a reason other than her sub-par performance.

Conclusion

Based upon our review of the summary judgment evidence, we hold that Courtney failed to meet her burden of proof to establish a causal link between her termination and filing her worker’s compensation claim. Therefore, Nibco was entitled to summary judgment because it negated one of the essential elements of Courtney’s claims. Courtney’s first and second issues are overruled. Having overruled both of Courtney’s issues, we affirm the judgment of the trial court.


author: Justice MORRISS.

text:
    James Plamon McNATT, II, Appellant, v. The STATE of Texas, Appellee.
    No. 06-03-00112-CR.
    Court of Appeals of Texas, Texarkana.
    Submitted Sept. 29, 2004.
    Decided Nov. 17, 2004.
    Rehearing Overruled Dec. 29, 2004.

      Peter Morgan, Vincent W. Perina, Vicki L. Solomon, Greenville, for appellant.
    Jessica Edwards, Asst. Dist. Atty., Greenville, for appellee.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by Chief

Justice MORRISS.

Fifty-nine-year-old James Plamon McNatt, II, was sentenced to ninety-nine years’ imprisonment after he was convicted of third-degree felony driving while intoxicated (DWI) and had his sentence enhanced with two prior felony convictions. Though McNatt’s driving record includes at least ten prior DWI offenses dating back to 1969, the principal question before us is whether the State gave sufficient notice to McNatt of its intent to enhance his punishment with only one pri- or offense or with two.

McNatt argues he received such notice with regard to only one offense, effectively, and that therefore the jury should have been restricted to the punishment range of two to twenty years’ confinement, rather than the range actually used, twenty-five to ninety-nine years, or life. He also asserts the trial court erred in denying his motion for a continuance during the punishment phase and in charging the jury on sentence enhancement.

We reverse the sentence and remand to the trial court for a new punishment trial at which McNatt’s range of permissible sentence will be limited to two to twenty years’ confinement. We reach that result because we hold (1) the trial court erred in permitting the enhancement of McNatt’s sentence with two prior convictions without sufficient notice of the second conviction, (2) there was error in the jury charge on punishment, and (3) a new punishment trial must be held at which the State is limited to the one properly-noticed sen-fence enhancement conviction, thus authorizing a possible range of punishment limited to the range of two to twenty years’ confinement.

1. The Trial Court Erred in Permitting Enhancement of McNatt’s Sentence with Two Prior Convictions without Sufficient Notice of the Second Conviction

The State points to three documents it says gave McNatt sufficient notice that his sentence would be enhanced using a Dallas County conviction in cause number F-86-70217-HM as the second sentence-enhancing conviction. We (a) examine those documents before (b) explaining why the notice given was insufficient.

a. The Notice Documents

The State claims notice of the second sentence-enhancing conviction was properly given by (i) the indictment, (ii) the March 6 letter notice, (iii) the March 25 motion to reconsider, or a combination of those three documents. We examine each document in turn.

i. The Indictment

The indictment contains two counts. Count I, intended as the jurisdictional enhancement of DWI to third-degree felony DWI, alleged eight offenses, including two convictions in Dallas County, Texas, in cause numbers MB98-61171-G and MA-82-45260-E, obtained in 2000 and 1992, respectively, to which McNatt later stipulated, supplying the jurisdictional enhancement sought by the State to make the offense a third-degree felony. The agreement to stipulate to those two convictions included the State’s promise not to mention any other of the eight convictions during the guilt/innocence phase of the trial. Also included in the list of eight offenses was a December 14, 1987, conviction in Dallas County in cause number F-86-70217-HM. This offense was ultimately used, not as jurisdictional enhancement, but to enhance McNatt’s sentence.

Count II was intended as the sentence enhancement provision. Although Count II appears to allege two prior felony offenses, 1983 convictions in Dallas County, the State concedes that the two felonies alleged in Count II constitute only one felony for the purpose of sentence enhancement because they were not properly sequenced. Therefore, under the indictment, with no further supplementation, the available range of punishment was between two and twenty years’ confinement.

ii. March 6: State’s Letter Notice as to Additional Sentence Enhancement

The State filed its notice of intent on March 6, seven days before pretrial and eleven days before trial. In its notice letter, the State first expressed its intent to use cause number 12,923, a Hunt County DWI judgment of November 19, 1982— not previously among the offenses listed in either count of the indictment — in addition to the indictment’s sentence enhancement count, to increase the punishment range from the one-prior-conviction enhancement range of two to twenty years’ confinement to the two-prior-conviction enhancement range of twenty-five to ninety-nine years or life. On March 24, the day before sentencing, the trial court disallowed use of this 1982 conviction, concluding that the State’s notice of its intent to use such conviction was untimely.

Hi. March 25: State’s Motion for Reconsideration and Clarification

On March 25, the day after the jury returned its guilty verdict and the same day as the punishment phase of McNatt’s trial, the State filed its motion for reconsideration. In its motion, the State asserted, among other things, that the indictment in this case alleged McNatt’s 1987 conviction in cause F86-70217-HM out of Dallas County, Texas, and asked the trial court to allow use of that conviction and of the previously-urged conviction in cause number 12,923 out of Hunt County.

The trial court maintained its previous position on cause number 12,923, disallowing it for the purpose of enhancement. But the trial court did allow the State to use “convictions noted in the indictment” to enhance punishment. The State then proceeded to use cause number F86-70217-HM to further enhance the range of punishment to twenty-five to ninety-nine years or life. The conviction in cause number F86-70217-HM was alleged in the indictment, but was in Count I, the jurisdictional enhancement provision, not in Count II where the State had alleged prior felonies for purposes of sentence enhancement under Section 12.42(d). McNatt objected to the State’s enhancement of his sentence.

b. Notice was Insufficient to Allow Enhancement of McNatt’s Sentence with the Second Conviction

A defendant is entitled to notice of prior convictions to be used for enhancement. Brooks v. State, 957 S.W.2d 30, 33 (Tex.Crim.App.1997); Hollins v. State, 571 S.W.2d 873, 876 (Tex.Crim.App.1978). Alleging an enhancement in the indictment is not the only reasonable method of conveying such notice. Brooks, 957 S.W.2d at 32. The State need only plead them somewhere. Id.; see also Chimney v. State, 6 5.W.3d 681, 696 (Tex.App.-Waco 1999, pet. ref'd).

If prior offenses are simply mentioned or noticed for no specified purpose, that fails to give the necessary notice they will be used for sentence enhancement. Fairrow, 112 S.W.3d at 290-92 (“Notice of Extraneous Offenses” notified of intent to introduce prior convictions into evidence at trial, but made no reference to sentence enhancement).

If notice of intent to use a prior conviction for a purpose other than sentence enhancement is given and then, later on the eve of trial, notice is given that the same conviction will be used to enhance the sentence, that notice, too, has been ruled insufficient. Sears v. State, 91 S.W.3d 451, 453 (Tex.App.-Beaumont 2002, no pet.). At issue in Sears were two filings by the State. The first, filed September 28, 2001, notified Sears of the State’s intent to introduce evidence of a 1982 aggravated sexual assault conviction for the purpose of impeachment. The second filing, filed Friday, October 5, 2001-with trial to begin Monday, October 8-was the State’s written notice of its intent to use the same 1982 conviction to enhance Sears’ sentence. Id. On appeal, the Beaumont court concluded that the second filing was not timely notice and that the first pleading did not constitute notice of intent to enhance, because it did not inform Sears that he was facing a mandatory life sentence if convicted. Id. The fact that the State’s file contained a penitentiary packet detailing Sears’ prior convictions also failed to provide Sears with proper notice of the State’s intent to use the conviction to enhance his punishment. Id. The Sears court emphasized the required notice’s purpose component mentioned in Brooks: “the theme through all of these cases appears to be that a defendant is entitled to notice of prior convictions to be used for enhancement.” Id. (quoting Brooks, 957 S.W.2d at 33 (emphasis added in Sears)).

We observe in the easelaw four critical components of a proper notice of intent to use a prior conviction to enhance a sentence, (1) a writing, Brooks, 957 S.W.2d at 34; Farris v. State, 155 Tex.Crim. 261, 233 S.W.2d 856, 858 (1950); (2) given in a timely manner, Fairrow, 112 5.W.3d at 294-95 (ten days before trial presumptively reasonable); Hudson v. State, 145 S.W.3d 323, 325. (Tex.App.-Fort Worth, 2004, no pet. h.) (notice untimely if given after conclusion of guilt/innocence phase and six days before punishment; relevant ten-day period to be measured from start of guilt/innocence phase); (3) describing the prior conviction to be used, sufficient to enable the defendant to find the records so he or she can properly prepare for trial on the question of whether he or she is the same person identified in the records of such conviction, Fairrow, 112 S.W.3d at 294-95; Hollins, 571 S.W.2d at 875; and (4) containing an expression of intent to use the conviction to enhance the defendant’s sentence, Sears, 91 S.W.3d at 453; Brooks, 957 S.W.2d at 33.

The State’s letter notice of March 6, expressing its intent to use the conviction in Hunt County cause number 12,923, is insufficient to allow use of the conviction in cause number F86-70217-HM to enhance McNatt’s punishment. Clearly, the letter does not identify the latter conviction. Additionally, the trial court ruled the March 6 letter notice was untimely.

The State’s motion for reconsideration, filed on the day of sentencing, was clearly untimely and could not serve as proper notice to McNatt that the State intended to pursue an enhanced punishment with the prior conviction it used. The motion for reconsideration is more significant for the position it takes with respect to those jurisdictional offenses alleged in the indictment that were unused at the guilt/innocence stage due to McNatt’s stipulation. Since that issue revolves around the indictment, we look directly at that instrument.

The offense ultimately used to enhance McNatt’s punishment was alleged in the indictment. But, it was listed as a jurisdictional enhancement, as one of eight convictions alleged for use to elevate the present DWI offense to a third-degree felony. The State did not use it for that purpose since McNatt stipulated to two of the other convictions on that list, for jurisdictional purposes. Had he not done so and had the State used all eight convictions for jurisdictional purposes, most certainly the State would be unable to “double-dip” by using any of those for sentence enhancement. See Wisdom v. State, 708 S.W.2d 840, 845 (Tex.Crim.App.1986). Therefore, the most glaring issue becomes whether those “unused” convictions listed in the jurisdictional portion of the indictment can be later used to enhance punishment, though never (or untimely) noticed for that purpose. We hold that they cannot.

Clearly, the indictment does not allege F86-70217-HM as a conviction to be used for sentence enhancement. So, in effect, the State’s argument treats the indictment as a partial notice of intent, which gave McNatt notice of the conviction the State would later use. Therefore, the State argues, when coupled with the State’s March 6 notice of intent to enhance, the indictment gave McNatt proper notice the State would seek an enhanced sentence of twenty-five to ninety-nine years or life using the conviction ultimately used for that purpose. While the indictment would have been proper in that it was timely, written, and a thorough identification of the convictions referenced, it never informed McNatt that any conviction listed in Count I would be used for the purpose of enhancing the possible range of punishment. It provided McNatt with notice only that the State sought to elevate the offense of DWI to a third-degree felony under Section 49.09(b) using the convictions listed in Count I. Relying on the principles set out in Sears, we hold that the notice of intent must articulate the State’s intent to use the conviction to enhance the sentence. See Sears, 91 S.W.3d at 454 (State’s notice of intent to use conviction for impeachment, and presence of the conviction in State’s file, both insufficient to alert defendant of intent to use it to enhance punishment).

From October 2002 until March 6, 2003, eleven days before trial, the State had indicated that the possible punishment was in the range of two years to twenty years. The State based its plea offers on this range. McNatt’s reliance on this punishment range led him to reject a plea offer of twelve years. Clearly, defense counsel was surprised by the State’s enhancement efforts on the day of sentencing. Counsel referred to facts that the trial court had ruled against allowing an enhancement the day before and that the State was now trying to use another conviction to accomplish the same purpose. He also explained to the trial court that, the night before, the defense understood the range to be from two to twenty years. He then emphasized how “badly surprised” the defense was and moved for a continuance at the end of the State’s case. On these facts, the trial court erred in allowing the State to enhance the range of punishment through use of the second conviction. Permitting the State to further enhance punishment by using, on the day of the punishment trial, a conviction alleged, and not used, solely as a jurisdictional enhancement in the indictment was improper, denying McNatt due process.

Since the error here is constitutional, it is reversible unless we determine, beyond a reasonable doubt, that the error did not contribute to the punishment assessed. See Tex.R.App. P. 44.2(a). Had the State not been allowed to use F86-70217-HM to enhance McNatt’s punishment, McNatt would have faced a maximum. sentence of twenty years’ confinement. As it happened, the State was allowed to use the additional prior felony to increase the range of punishment, and the jury assessed McNatt’s punishment at ninety-nine years. Without question, this error contributed to the punishment imposed.

2. The Trial Court Erred in Charging the Jury on Punishment

Although, because of the harmful sentence enhancement error discussed above, we reverse the sentence and remand for a new punishment trial, we also find error in the manner the jury was charged on punishment. We address that as well.

McNatt was arraigned and pled not true to “the enhancement portions of the indictment.” Defense counsel specifically requested that the factual allegations of the prior convictions on which the State relied be included in the charge, requesting the identification of the offenses and the explanation of the sequencing, which the jury must consider. The trial court denied the request.

The jury charge refers to allegations in the indictment regarding “prior felony offenses.” The charge goes on to authorize the jury to assess McNatt’s punishment at a term of twenty-five to ninety-nine years or life in prison if it found he had two, sequenced, prior felony convictions:

The punishment range for this offense, if you find that the defendant has been convicted of two prior felony convictions, one having become final before the commission of the second offense is confinement in the state penitentiary of not less than twenty-five (25) years nor more than ninety-nine (99) years or life.
You are instructed that if you find beyond a reasonable doubt that this defendant is the same person who was convicted of another offense listed in the indictment and that such conviction occurred as alleged, and that the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final, then you will find that the allegation is true and so state in your verdict and you will assess punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice for life or for any terms [sic] of not more than ninety-nine (99) years or less than twenty-five (25) years.

In a handwritten note on the last page of the jury charge, the trial court further instructed the jury to disregard the conviction the State had attempted to use in its notice of intent:

You are further instructed you may not consider State Exhibit # 7, Hunt County Cause # 12,923 as a prior felony conviction for purposes of these instructions.

When jury charge error is claimed, we are to determine first whether there was error. If we find error and if, as here, the error was preserved by objection, we then determine whether “some harm” resulted from the error. Mann v. State, 964 S.W.2d 639, 641 (Tex.Crim.App. 1998); Abdnor v. State, 871 S.W.2d 726, 731-32 (Tex.Crim.App.1994); see Tex.Code CRiM. PROC. Ann. art. 36.19 (Vernon 1981).

Error occurs when a jury charge fails to directly apply the law to the facts. Harris v. State, 522 S.W.2d 199, 202 (Tex.Crim.App.1975). More specifically, when a jury charge fails to set out the details and sequencing of prior convictions used for sentence enhancement in the application paragraph of the charge, the charge is improper. Rice v. State, 746 S.W.2d 356, 360 (Tex.App.-Fort Worth 1988, pet. ref'd); Morales v. State, 659 S.W.2d 867, 868 (Tex.App.-El Paso 1983, no pet.). Likewise, it is error to misstate the punishment range within which the jury must assess punishment for a defendant. Stein v. State, 515 S.W.2d 104, 108 (Tex.Crim.App.1974).

Here, the jury was instructed to assess punishment for McNatt within the range of twenty-five to ninety-nine years or life if it found McNatt had “been convicted of two prior felony convictions, one having become final before the commission of the second offense,” but the charge failed to specify the prior felony convictions for which McNatt’s sentence could be enhanced. The punishment charge makes only general references to convictions that may be used for enhancement purposes by simply referring to the indictment: the charge (1) states “the indictment alleges that the defendant has previously been convicted of prior felony offenses” and (2) asks the jury to determine whether McNatt was “the same person who was convicted of another offense listed in the indictment.”

There are a number of problems with that formulation of the charge. First, it does not identify and sequence, in the charge, the convictions from which the jury may choose. Second, in referring to convictions alleged in the indictment, it might very well mislead the jury into finding two enhancing convictions from the two, nonsequenced, convictions alleged in Count II of the indictment — which could count as only one enhancement conviction. Third, referring generally to the indictment would allow the jury to include any of the eight offenses listed in Count I of the indictment — the jurisdictional portion — without guidance on which of those are felonies, which of them were used for jurisdictional purposes, and which one was the one the trial court had authorized for use as an enhancement conviction — the one we have determined was not properly noticed.

It logically follows from the charge’s failure to specify enhancement convictions that the charge also misstated the available punishment range. Even had the State properly notified McNatt of its intent to further enhance his punishment beyond the twenty-year maximum punishment supported by the indictment, this jury charge would have failed to apply the law to the facts since it referred only generally to the indictment, which, standing alone, contained enhancement allegations under which, effectively, McNatt could be sentenced only to between two and twenty years.

Having determined that the charge to the jury contained error, we would normally be required to move on to the second step of our analysis. See Mann, 964 S.W.2d at 641; Abdnor, 871 S.W.2d at 731-32. Here, since McNatt properly preserved error with respect to the complained-of error, we would be required to determine whether the error caused McNatt some harm. See Almanza, 686 S.W.2d 157, 171 (Tex.Crim.App.1984) (op. on reh’g). But, since we have previously found harmful error in the failure to give proper notice of the second enhancing conviction — and are, therefore, reversing and remanding for a new punishment trial — we need not assess harm from this jury charge error.

3. At a New Punishment Trial, the State is Limited to Enhancing McNatt’s Sentence Using the One Properly-Noticed Prior Conviction

When we find error at the punishment stage of the trial, we may remand the case to the trial court for the proper assessment of punishment. See Tex.Code CRiM. PROG. Ann. art. 44.29(b) (Vernon Supp.2004-2005); Levy v. State, 818 S.W.2d 801, 803 (Tex.Crim.App.1991). The question remains whether, on remand, the State will be allowed to give new notice of additional enhancement convictions or will be limited to enhancing McNatt’s sentence using the one alleged prior conviction set out in the indictment. We hold it is so limited.

When a court of appeals reverses and remands a case to the trial court without instructions to render a specific judgment, the effect is to restore the parties to the same situation as that in which they were before the appeal. Musgrove v. State, 82 S.W.3d 34, 37 (Tex.App.-San Antonio 2002, pet. ref'd). Before the appeal, the enhancement notice to McNatt was insufficient to enhance his sentence beyond a maximum of twenty years’ confinement. On remand, that limitation remains.

Conclusion

We reverse the trial court’s judgment as to punishment and remand the case to the trial court for a new trial on punishment within the range of two to twenty years’ confinement. Because the other points of error are dispositive, we do not address MeNatt’s point of error concerning his motion for continuance.

      . In this case, through what is termed a "jurisdictional” enhancement, the charge of DWI prescribed by Texas Penal Code Section 49.04 became a third-degree felony under Section 49.09(b)(2) once two prior DWI convictions were proven. See Tex. Pen.Code Ann. § 49.04 (Vernon 2003), § 49.09(b)(2) (Vernon Supp. 2004-2005). Without further "sentence” enhancement, such a third-degree felony would support a punishment of confinement in the range of two to ten years as provided by Section 12.34 of the Texas Penal Code. Tex Pen.Code Ann. § 12.34 (Vernon 2003). McNatt stipulated to two prior felony convictions as the jurisdictional enhancement. This appeal deals, not with jurisdictional enhancement, but with sentence enhancement.

      . Section 12.42(a)(3) of the Texas Penal Code, a sentence enhancement provision, provides that a third-degree felony is to be punished as a second-degree felony — which, under Section 12.33 of the Texas Penal Code, supports confinement in the range of two to twenty years — if it is enhanced with one prior felony conviction. Tex Pen.Code Ann. § 12.33 (Vernon 2003), § 12.42(a)(3) (Vernon Supp.2004-2005). But if two prior felony convictions are used as enhancements and properly sequenced, Section 12.42(d) of the Texas Penal Code provides enhanced punishment in the range of twenty-five to ninety-nine years or life. Tex Pen.Code Ann. § 12.42(d) (Vernon Supp.2004 — 2005).

      . The two offenses alleged in the sentence enhancement portion of the indictment could not count as two offenses for enhancement purposes because neither "occurred subsequent to the [other] conviction having become final.” See Tex. Pen.Code Ann. § 12.42(d).

      . The State's written plea offer of twelve years dated November 22, 2002, reflected the same range of punishment.

      . There is a presumption that a notice of intent to enhance, given more than ten days before trial, is timely. Fairrow v. State, 112 S.W.3d 288,; 295 (Tex.App.-Dallas 2003, no pet.). Therefore, the trial court could have allowed the State to enhance pursuant to its March 6 notice referring to cause number 12,923. However, on the day of sentencing, the trial court granted the State's request to use cause number F86-70217-HM to enhance punishment, and it expressly instructed the jury not to consider cause number 12,923 for enhancement purposes.

      . Although this is the most relevant aspect of Fairrow, there are more details to that case. For instance, on the Thursday before trial on Monday, the district attorney had made an offer of two years in the Texas Department of Corrections, along with credit for all Fair-row's back time, approximately six months. Fairrow, 112 S.W.3d at 290-91. Additionally, at the beginning of the guilt/innocence phase before a jury, the trial court introduced this case as a third-degree felony punishable by two to ten years’confinement. Id. 3X291. In defense counsel's opening remarks, he stated the same range of punishment. Id. After the jury found Fairrow guilty, the State, in a bench trial on punishment, expressly sought the "maximum” sentence of ten years. Id. at 292. "Liberally utilizing [Section] 12.42,” the trial court imposed an eighteen-year sentence. Id.

      . The State relies on Duckworth v. State, 89 S.W.3d 747 (Tex.App.-Dallas 2002, no pet.), and Tingles v. State, 752 S.W.2d 126 (Tex. App.-Houston [14th Dist.] 1987, pet. ref'd), to support its argument that McNatt received proper notice. These two cases are not on point.
      In Duckworth, the appellant argued that the State should have provided, but did not provide, in the indictment’s two enhancement paragraphs, that it would use Section 12.42(a)(3) to enhance his punishment. Duckworth, 89 S.W.3d at 751. The Dallas Court of Appeals noted that all the authorities on which Duckworth relied centered on the State's failure to properly notify the defendant of the conviction to be used. Id. The court concluded that the State need not allege the Texas Penal Code section to be used and that Duckworth received proper notice of the convictions to be used for enhancement.
      When the State alleged two prior felony convictions including the court, offense, and date of conviction, appellant Jingles argued that Section 12.42(d) required the State to allege in the indictment that commission of the most recent offense occurred after the earlier conviction became final. Jingles, 752 S.W.2d at 128-29. Concluding that such an allegation was not necessary under Section 12.42(d), the court held that the indictment provided Jingles with sufficient notice he was being charged with burglary of a building having had two prior felony convictions. Id.

      . Both the State and the defense referred to an eight-year offer made around March 5, although the record does not contain a written offer to this effect.

      . Ultimately, the Rice court found the error to be harmless. Distinguishing Rice from the instant case is the fact that the jury charge in Rice did refer to the prior convictions in the abstract portion of the charge, identifying the convictions by date, cause number, offense, and sequencing. Rice, 746 S.W.2d at 359. Here, the charge referred only generally to the convictions alleged in the indictment without any specific identification or reference to any particular felony conviction available to enhance McNatt’s punishment.

      . While, previously in this opinion, we have agreed with the majority’s reasoning in Sears, 91 S.W.3d 451 (Tex.App.-Beaumont 2002, no pet.), that the State’s notice was inadequate to provide notice to the defendant, we come to a different conclusion about the parties’ rights on remand than that expressed by the concurring opinions in Sears. Sears, 91 S.W.3d at 456 (Walker, C.J., concurring; Gaultney, J., concurring). Relying on Articles 44.29 and 37.07, the two concurring opinions in Sears conclude that, although the State did not, before trial, provide proper notice of intent to enhance, it could still seek to enhance the appellant's punishment on remand. Article 44.29 directs the trial court to proceed under Section 3 of Article 37.07. While Article 37.07 authorizes proof of prior convictions as a relevant consideration in the assessment of punishment, we believe that falls short of authorizing sentence enhancement beyond the range of punishment authorized by proper pri- or notice of intent to enhance punishment. We should not read Article 37.07 as a means to circumvent the requirement that the State provide proper notice of its intent to enhance punishment. In other words, we will not apply Article 37.07 in a manner inconsistent with a defendant's right to due process.


author: Justice CARTER.

text:
    Tammy Rose WIGGINS, Appellant, v. The STATE of Texas, Appellee.
    No. 06-03-00216-CR.
    Court of Appeals of Texas, Texarkana.
    Submitted Oct. 27, 2004.
    Decided Nov. 18, 2004.

      Ebb B. Mobley, Longview, for appellant.
    James P. Finstrom, Marion County Dist. Atty., Jefferson, for appellee.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by

Justice CARTER.

Tammy Rose Wiggins was convicted of capital murder and sentenced to life in prison. Her only complaint on appeal is that the admission of hearsay statements made by her co-conspirator, Glen Bethany, to testifying witnesses Mark Fish, Teresa Miller, and Wendy Bunn Troquille, violated her Confrontation Clause rights as articulated in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Finding the co-conspirator statements on which she bases her appeal non-testimonial, we overrule Wiggins’ three points of error and affirm the trial court’s judgment.

Wiggins does not attack the sufficiency of evidence at trial, so a detailed recitation of the facts of this case is not necessary. An in-depth summary of the evidence of this crime may be found in this Court’s opinion in Bethany v. State, 06-03-00185-CR, 152 S.W.3d 660, 2004 WL 2608264 (Tex.App.-Texarkana 2004).

In brief, the evidence adduced at trial showed that Tammy was involved in an extra-marital affair with Bethany. Tammy and Bethany conspired to MU Tammy’s husband, Randy Wiggins. Randy had filed for divorce from Tammy and intended to seek custody of their young child. In exchange for his help in the murder, Bethany was to receive from Tammy the title to Randy’s Lincoln automobile. Randy and Tammy left a bar near the Louisiana/Arkansas/Texas state lines, and pulled off the road near an oil well in Cass County, Texas. Bethany waited there until Tammy and Randy arrived, then Bethany hit Randy at least twice in the head with a hammer, and cut Randy’s throat. Bethany put Randy’s body in a large toolbox in a pickup truck Bethany had stolen; Bethany dumped the body on a county road in Marion County, then took the truck to Frierson, Louisiana, and set it ablaze.

Co-Conspirator Statements

The evidence on which Tammy bases her Crawford complaints is as follows:

Teresa Miller was the live-in girlfriend of Mark Fish at the time of Randy’s murder. She testified that Bethany and Tammy stayed with Miller and Fish. Miller heard Bethany and Tammy, in Miller’s Mtchen, talMng about Bethany getting the title to Randy’s car in exchange for Mlling Randy. Miller, while in the car with Tammy and Bethany, heard Tammy ask Bethany to Mil Randy so Tammy and Bethany “could be together.” Miller did not hear Bethany respond to Tammy’s statement, but did hear Tammy say that, if Bethany did not Mil Randy, Tammy would do it herself. After Tammy got out of-the car, Bethany told Fish and Miller he would not kill “any man for a woman.”

Miller also said that Bethany told her specifics about the murder and that he asked her to take him to recover the hammer used in the Mlling. After seeing coverage of Randy’s death on the local news, Bethany asked if Miller knew who the victim was. After Miller answered that she did not know him, Bethany told her the victim was Tammy’s husband. He described to Miller that Tammy and Randy left a bar and came to a clearing in the woods, where Bethany waited. Bethany said he struck Randy in the head with a ball peen hammer, stabbed him, cut his throat, put his body in the toolbox, drove seventy-five miles away, and dumped the body. He took the title to the Lincoln from Randy’s wallet. Bethany then put his bloody clothes in the front of the truck, took the truck to another location, and burned it. The description Bethany gave of the murder had not been mentioned on the news broadcasts. After telling all this to Miller, he asked her to go with him to look for the hammer.

Fish testified Bethany described the murder, using hand gestures to indicate cutting motions to the throat. Bethany said the song, “Three Times a Lady” was his code for the murder, because he had cut Randy’s throat three times. Bethany asked Fish to help provide an alibi for Bethany and Tammy. Fish testified he heard Bethany and Tammy talMng in the Mtchen; Bethany later told Fish he had been “coaching” Tammy in case she was questioned by police detectives.

Troquille testified that Bethany told her specifics about the murder event and that he asked her to take him to recover the hammer used in the Mlling. Bethany told her the murder had been planned and Tammy had asked him to participate. According to Troquille, Bethany said he waited at a prearranged site, where Tammy arrived with Randy. Bethany said he struck Randy in the head with a ball peen hammer, and the hammer flew out of his grip after the second blow. Bethany told Troquille that “he was not going down for this crime alone” and afterward sent Tammy back to the bar to establish an alibi. Bethany did not ask for Troquille’s help in formulating an alibi, but said that, if she would take him back to the murder scene and look for the hammer, she “would never have to work another day in [her] life.” Troquille said that the details Bethany told her had not been mentioned on television news reports and that he had thrown in a lake the knife used in the crime.

Nontestimonial Statements Not Barred by Crawford v. Washington

Wiggins’s sole complaint is that the statements made by Bethany to Fish, Miller, and Troquille are barred by Crawford. We disagree. The United States Supreme Court in Crawford held that the Confrontation Clause in the Sixth Amendment to the United States Constitution barred from admission into evidence testimonial statements of a witness who did not appear for trial unless the witness was unavailable to testify and the defendant had had a prior opportunity for cross-examination. Crawford) 124 S.Ct. at 1365. Crawford concerns testimonial statements. Co-conspirator statements made in the furtherance of a conspiracy are nontestimonial. Crawford, 124 S.Ct. at 1367 (“[m]ost of the hearsay exceptions covered statements that by their nature were not testimonial— for example, business records or statements in furtherance of a conspiracy”); United States v. Reyes, 362 F.3d 536, 541 (8th Cir.), cert. denied, Burton v. United States, — U.S.-, 124 S.Ct. 2926, 159 L.Ed.2d 826 (2004).

Appellant is correct that Crawford “leave[s] for another day ... a comprehensive definition of ‘testimonial.’ ” Crawford, 124 S.Ct. at 1374. However, the Court did note that “the term covers ... at a minimum ... prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and ... police interrogations. These are the modern practices with closest kinship to the abuses at which the Confrontation Clause was directed.” Id.

The Second Circuit Court recently construed Crawford as it pertains to co-conspirator statements. “[Statements cited by the Court [in Crawford ] as testimonial share certain characteristics; all involve a declarant’s knowing responses to structured questioning in an investigative environment or a courtroom setting where the declarant would reasonably expect that his or her responses might be used in future judicial proceedings.” United States v. Saget, 377 F.3d 223, 228 (2d Cir.2004). In Saget, a co-conspirator disclosed inculpatory statements to a confidential informant. Noting Crawford’s specific caveat that it only pertains to testimonial statements, the Second Circuit Court pointed out that the co-conspirator in Saget made statements to one he thought was an ally or friend, and there was no evidence the co-conspirator was trying to shift blame away from himself. In this case, Bethany’s statements are clearly nontestimonial. As in Saget, they were not made in a setting where it might reasonably be expected the statements would be used in judicial proceedings.

Even though we have found these statements to be nontestimonial, we must still determine the application of the Confrontation Clause concerning nontestimonial statements. The Supreme Court did not specifically resolve this issue, stating “[w]here nontestimonial hearsay is at issue, it is wholly consistent with the Framers’ design to afford the States flexibility in their development of hearsay law — as does Roberts, and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether.” Crawford, 124 S.Ct. at 1374. A reasonable interpretation of Crawford would exempt all nontestimonial statements from any Confrontation Clause scrutiny. Several courts have held that nontestimonial statements are still governed by Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). See Saget, 377 F.3d 223; Horton v. Allen, 370 F.3d 75, 84 (1st Cir.2004); People v. Cage, 120 Cal.App.4th 770, 782, 15 Cal.Rptr.3d 846 (Cal.Ct.App. 2004); State v. Manuel, 685 N.W.2d 525 (Wis.Ct.App.2004) (“we proceed, in an abundance of caution, to analyze Manuel’s confrontation clause claim under the Roberts analysis”).

In the context of a Confrontation Clause analysis, Roberts authorized the introduction of a hearsay statement if it bore sufficient “indicia of reliability.” Roberts, 448 U.S. at 66, 100 S.Ct. 2531. A hearsay statement is per se rehable under the Confrontation Clause if it falls within a “firmly rooted” exception to the hearsay rule. White v. Illinois, 502 U.S. 346, 356, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992). Even applying the Roberts test, we hold these nontestimonial statements were

Here, Bethany made statements that were significantly self-inculpatory. The Texas Court of Criminal Appeals has found statements against one’s penal interest to be “extremely reliable.” Dewberry v. State, 4 S.W.Sd 735, 753 (Tex.Crim.App.1999). Further, co-conspirator statements are recognized as a firmly rooted hearsay exception. Bourjaily v. United States, 483 U.S. 171, 183, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987); Bailey v. State, 804 S.W.2d 226, 231 (Tex.App.-Amarillo 1991, no pet.).

Since co-conspirator statements are not testimonial, the Confrontation Clause does not give the defendant the right to cross-examine a person who does not testify at trial and whose statements are introduced under the co-conspirator hearsay exclusion. Reyes, 362 F.3d at 540-41, citing White, 502 U.S. at 356, 112 S.Ct. 736.

Finally, the two cases Wiggins cites in support of her argument that Crawford and the Confrontation Clause bar the testimony of Fish, Troquille, and Miller are inapposite. Brooks v. State, 132 S.W.3d 702 (Tex.App.-Dallas 2004, no pet. h.); Hale v. State, 139 S.W.3d 418 (Tex.App.-Fort Worth 2004, no pets.). Both involve statements from a codefendant (Brooks) or accomplice (Hale) which were written and given to police during custodial interrogations. Clearly, those statements were testimonial, as contemplated by Crawford, and not comparable to the statements in the instant case.

Wiggins’ three points of error are overruled. We affirm the judgment.

      . Affirmed at Saget, 108 Fed.Appx. 667, 2004 U.S.App. LEXIS 18745 (2d Cir., Sept. 3, 2004).