                                                                                                    ACCEPTED
                                                                                                06-14-00236-CR
                                                                                     SIXTH COURT OF APPEALS
                                                                                           TEXARKANA, TEXAS
                                                                                           6/17/2015 9:01:59 AM
                                                                                               DEBBIE AUTREY
                                                                                                         CLERK

                                   06-14-00236-CR

                          IN THE COURT OF APPEALS            FILED IN
                       FOR THE SIXTH DISTRICT OF TEXAS 6th COURT OF APPEALS
                                AT TEXARKANA             TEXARKANA, TEXAS
                                                                      6/17/2015 9:01:59 AM
                                                                         DEBBIE AUTREY
                                                                              Clerk

                             PAUL ANTWANN HARLAN,
                                      Appellant

                                           v.

                               THE STATE OF TEXAS,
                                       Appellee


                     On Appeal from Criminal District Court No. 4
                               of Dallas County, Texas
                              Cause No. F13-56882-K
                   The Honorable Dominique Collins, Judge Presiding




                               BRIEF FOR APPELLEE,
                               THE STATE OF TEXAS




                                   Counsel of Record:

Susan Hawk                                      G. Brian Garrison
Criminal District Attorney                      State Bar No. 24065276
Dallas County, Texas                            Assistant District Attorney
                                                Dallas County District Attorney's Office
                                                133 N. Riverfront Blvd., LB 19
                                                Dallas, TX 75207-4399
                                                (214) 653-3600 (telephone)
                                                (214) 653-3643 (fax)
                                                Brian.Garrison@dallascounty.org




The State requests oral argument
only if Appellant requests
oral argument
                    IDENTITY OF PARTIES AND COUNSEL


Appellant                              Paul Antwann Harlan

Appellant's Counsel at Trial           Brenda Vonjoe
                                       4144 N. Central Exwy., Ste. 650
                                       Dallas, TX 75204

                                       Nicole Hines-Glover
                                       3838 Oak Lawn Ave., Ste. 1000
                                       Dallas, TX 75219

Appellant's Counsel on Appeal       Julie Woods
                                    Assistant Public Defender
                                    Dallas County Public Defender's Office
                                    133 N. Riverfront Blvd., LB 2
                                    Dallas, TX 75207

State's Counsel at Trial            Hillary Wright
                                    Chris Johnson
                                    Assistant District Attorneys
                                    Dallas County District Attorney's Office
                                    133 N. Riverfront Blvd., LB 19
                                    Dallas, TX 75207-4399

State's Counsel on Appeal           G. Brian Garrison
                                    Assistant District Attorney
                                    Dallas County District Attorney's Office
                                    133 N. Riverfront Blvd., LB 19
                                    Dallas, TX 75207-4399




                                   i
                                  TABLE OF CONTENTS

Identity of Parties and Counsel                                                              i
Index of Authorities                                                                       iii
Statement of the Case                                                                       1
Issues Presented                                                                            2
Statement of Facts                                                                          2
Summary of the Argument                                                                     5
Argument                                                                                    7

   1. The State's response to Appellant's first point of error: The State proved the element
      of identity beyond a reasonable doubt                                                7

         1.1.    Standard of Review                                                         7

         1.2.    The recovery of Appellant's wallet from the getaway car, the DNA evidence,
         and the surveillance footage were sufficient to establish that Appellant committed
         the offense                                                                      8

   2. The State's response to Appellant's second point of error: The trial court did not err
      in admitting the testimony of Det. Loeb                                            10

         2.1.    Standard of Review                                                        10

         2.2.    The testimony was not speculative but illustrated the course of Det.'s Loeb's
         investigation                                                                     11

   3. The State's response to Appellant's third point of error: Appellant has failed to
      establish that the judgment erroneously states that the jury found the enhancement
      allegation true; the sentence assessed was authorized by law                   14

   4. The State's response to Appellant's fourth point of error: This Court should reform
      the judgment to reflect the correct offense                                      15
Prayer                                                                                     16
Certificate of Service                                                                     17
Certificate of Compliance                                                                  17




                                               ii
                              INDEX OF AUTHORITIES

Cases

Allen v. State, 249 S.W.3d 680 (Tex. App. — Austin 2008, no pet.)                        8

Alvarenga v. State, No. 05-12-00176-CR, 2013 Tex. App. LEXIS 7568 (Tex. App. —
  Dallas Jun.      20, 2013, pet.          ref d)       (not designated for publication)
                                                                                      10

Bell v. State, 326 S.W.3d 716 (Tex. App. — Dallas 2010, pet. dism'd)                     7

Bigley v. State, 865 S.W.2d 26 (Tex. Crim. App. 1993)                                   15

Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) (plurality op.)                   7

Brown v. State, 270 S.W.3d 564 (Tex. Crim. App. 2008)                                    7

Dewberry v. State, 4 S.W.3d 735 (Tex. Crim. App. 1999)                                   7

Earls v. State, 707 S.W.2d 82 (Tex. Crim. App. 1986)                                     8

Hurd v. State, No. 01-93-01004-CR, 1994 Tex. App. LEXIS 1484 (Tex. App. — Houston
  [1st Dist.] Jun. 23, 1994, no pet.) (not designated for publication)                  15

Jackson v. Virginia, 443 U.S. 307 (1979)                                                 7

Johnson v. State, 673 S.W.2d 190 (Tex. Crim. App. 1984)                                  8

Jones v. State, 900 S.W.2d 392 (Tex. App. — San Antonio 1995, pet. ref d)
                                                                                         9

Leday v. State, 983 S.W.2d 713 (Tex. Crim. App. 1998)                                   11

Lowery v. State, No. 05-08-00899-CR, 2010 Tex. App. LEXIS 1230 (Tex. App. — Dallas
  Feb.     23,    2010,      pet.     ref d)         (not   designated   for   publication)
                                                                                        13

Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997)                                    8

Martin v. State, 173 S.W.3d 463 (Tex. Crim. App. 2005)                                  11

Monroe v. State, 864 S.W.2d 140 (Tex. App. — Texarkana 1993, pet. refd)
                                                                                        10

Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1991)                          10, 11


                                               iii
Roberson v. State, 16 S.W.3d 156 (Tex. App. — Austin 2000, pet. ref d)
                                                                                    8, 9

Rodriguez v. State, No. 11-05-00218-CR, 2007 Tex. App. LEXIS 2251 (Tex. App. —
  Eastland Mar. 22, 2007, no pet.) (not designated for publication)
         9

Salazar v. State, No. 01-13-00209-CR, 2014 Tex. App. LEXIS 3983 (Tex. App. —
  Houston [1st Dist.] Apr. 10, 2014, no pet.) (not designated for publication)       12

Simms v. State, 848 S.W.2d 754 (Tex. App. — Houston [1st Dist.] 1993, pet. ref d)    15

United States v. Quimby, 636 F.2d 86 (5th Cir. 1981)                                  9



Statutes

Tex. Penal Code. Ann. § 12.32(a) (West 2011)                                         15

Tex. Penal Code. Ann. § 29.03 (West 2011)                                            15



Rules

Tex. R. App. P. 43.2(b)                                                              15

Tex. R. Evid. 602                                                                    11

Tex. R. Evid. 701                                                                    13

Tex. R. Evid. 702                                                                    13

Tex. R. Evid. 704                                                                    12




                                            iv
TO THE HONORABLE COURT OF APPEALS:

       The State of Texas respectfully submits the instant brief in response to

the brief of Paul Antwann Harlan ("Appellant"), on behalf of Susan Hawk,

the Criminal District Attorney of Dallas County, Texas.




                          STATEMENT OF THE CASE
       Appellant was charged by indictment with the felony offense of aggra-

vated robbery.' The indictment contained a felony enhancement paragraph.2

Appellant entered a plea of not guilty.' The jury found Appellant guilty as

charged and sentenced Appellant to incarceration for a period of fifty years.4

Appellant filed a motion for new trial, which was overruled by the trial court.'

Appellant timely filed his notice of appeal.'




1C.R. at 10.
2 C.R. at 10.

'III R.R. at 8; IV R.R. at 13.
4C.R. at 82.

  C.R. at 86.
6C.R. at 88.


                                        1
                          ISSUES PRESENTED

1.    Whether the State proved the element of identity beyond a reasonable

      doubt.

2.    Whether the trial court erred in admitting the testimony of Detective

      Jeff Loeb.

3.    Whether the sentence assessed was unauthorized by law.

4.    This Court should reform the judgment to state the correct offense.



                         STATEMENT OF FACTS

      Anwarul Hoque and Maria Ochoa worked at Hilda's Grocery on the

date of the offense.' Ms. Ochoa and Mr. Hoque testified that two masked

men entered the store with a firearm.' The men ordered Ms. Ochoa and Mr.

Hoque to the floor.9Both Mr. Hoque and Ms. Ochoa testified that they

feared for their lives.w The men took the money from the register as well as

Mr. Hoque's wallet.' While the robbery was in progress, an armed security

guard arrived and detained one of the assailants.' The other assailant escaped


7IV R.R. at 17-19, 44.
'IV R.R. at 24, 45.
9IV R.R. at 24, 45.

1° IV R.R. at 36, 49.

" IV R.R. at 26, 28.
12IV R.R. at 38.


                                      2
in a car, which he crashed into a tree on a nearby residential street.' The tree

was near Juan Pina's mother's house.'

      Juan Pina testified that, as he was walking towards his mother's front

door, he heard a sound on the side of the house.' When he went to investi-

gate, a man with a backpack approached him.' The assailant pointed a hand-

gun at Mr. Pina and demanded his car keys." The assailant was unable to start

Mr. Pina's car, a Honda, due to a safety feature.' The assailant exited the ve-

hicle and fled on foot.' Mr. Pina testified that the assailant left behind money,

papers, and a box of cigars.2°Detective Joshua Cordes testified that he fol-

lowed the trail of discarded property and found a firearm and clothing.'

      Officer Richard Dellatorre responded to the robbery at Hilda's Gro-

cery.22Officer Dellatorre testified that individual who had been apprehended

by the security guards was Latiki Bosman.23Keonte Bosman was developed as



13IV R.R. at 38. 84.
14IV R.R. at 38. 84.

" IV R.R. at 67.
16IV R.R. at 67.

17IV R.R. at 69-70.

" IV R.R. at 70.
19IV R.R. at 71.

20IV R.R. at 72.

21IV R.R. at 95-96.

22 IV R.R. at 53.

23IV R.R. at 53, 59.


                                        3
a potential suspect in the robbery.' Det. Loeb reviewed the surveillance vide-

os and determined that the unapprehend suspect was shorter than both Latiki

Bosman and Keonte Bosman.25Detective Jeff Loeb ruled out Keonte Bosman

as the individual who had escaped.' Det. Loeb testified that the unappre-

hended assailant was roughly the same height as Appellant.' Det. Loeb testi-

fied that that the shorter robber was the individual wielding the firearm.28

      Law enforcement impounded and searched the vehicle that had been

crashed next to Mr. Pina's mother's house.' Det. Loeb testified that he found

wallets belonging to Latiki Bosman and Appellant in the trunk of the car.3°

Det. Loeb determined that the vehicle recovered in the robbery belonged to

Latiki Bosman.3' Det. Loeb obtained a DNA sample from Appellant.32 Foren-

sic testing established that Appellant was a possible contributor to the DNA

on the firearm.33Keonte Bosman, Latiki Bosman, and a third unknown male




24IV R.R. at 120-25.
25IV R.R. at 140-41, 168-69.
26IV R.R. at 138.

27IV R.R. at 140-41, 168-69.

28IV R.R. at 151-52.

29IV R.R. at 138.

3° IV R.R. at 138.

31 1V R.R. at 139.

32IV R.R. at 149.

" IV R.R. at 143; V R.R. at 12, 24, 30-31.
                                             4
were excluded as contributors to the DNA on the firearm.' Det. Loeb testi-

fied that Appellant was his primary suspect, based on the wallet, the DNA evi-

dence, and the surveillance video.35



                      SUMMARY OF THE ARGUMENT
      With respect to Appellant's first point of error, the State proved the el-

ement of identity beyond a reasonable doubt. The discovery of Appellant's

wallet in the getaway car, the DNA evidence, and the video surveillance evi-

dence was sufficient for a jury to rationally conclude that Appellant had com-

mitted the offense.

      With respect to Appellant's second point of error, the trial court did not

err in overruling Appellant's objection to Det. Loeb's testimony. Det. Loeb's

testimony was not mere speculation. It was based on his training and experi-

ence and his investigation of the offense.

      With respect to Appellant's third point of error, Appellant has failed to

establish that the sentence assessed was unauthorized by law. Appellant en-

tered a plea of true to the enhancement allegation, and Appellant has provided



341V R.R. at 143; V R.R. at 12, 24, 30-31.
" V R.R. at 50.
                                             5
no evidence that the jury did not find the allegation true. Additionally, the

sentence assessed with within the statutory range for the unenhanced offense.

      With respect to Appellant's fourth point of error, the State agrees that

the judgment should be reformed to reflect the correct offense.




                                      6
                                    ARGUMENT

1. The State's response to Appellant's first point of error: The State
    proved the element of identity beyond a reasonable doubt
     1.1. Standard of Review
       In reviewing the sufficiency of the evidence to support a conviction, an

appellate court views all of the evidence in a light most favorable to the prose-

cution to determine whether any rational trier of fact could have found the es-

sential elements of the crime beyond a reasonable doubt.36This standard,

which is the sole standard for reviewing the sufficiency of the evidence in Tex-

as criminal cases, gives full play to the responsibility of the trier of fact to re-

solve conflicts in the testimony, to weigh the evidence, and to draw reasonable

inferences from basic facts to ultimate facts.'

       The trier of fact is the exclusive judge of the weight and credibility of

the evidence.' As such, the reviewing court may not re-evaluate the weight

and credibility of the evidence or substitute its judgment for that of the fact-

finder.39Rather, the reviewing court presumes that the factfinder resolved any

conflicting evidence in favor of the prosecution and defers to that resolution."


36Jackson v. Virginia, 443 U.S. 307, 319 (1979).
37Id.; see Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (plurality op.); Bell

v. State, 326 S.W.3d 716, 720 (Tex. App. — Dallas 2010, pet. dism'd) (adopting Brooks).
38See Brown v. State, 270 S.W.3d 564, 568 (Tex. Crim. App. 2008).

39Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999).

4° Jackson, 443 U.S. at 326.


                                             7
The reviewing court's role is that of a due process safeguard, ensuring only the

rationality of the fact finder's finding of the essential elements of the offense

beyond a reasonable doubt.'

      The sufficiency of the evidence in both jury and bench trials is measured

by reference to the elements of the offense as defined by a hypothetically cor-

rect jury charge for the case.' "Such a charge would be one that accurately

sets out the law, is authorized by the indictment, does not unnecessarily in-

crease the State's burden of proof or unnecessarily restrict the State's theories

of liability, and adequately describes the particular offense for which the de-

fendant was tried."43

     1.2. The recovery of Appellant's wallet from the getaway car, the
            DNA evidence, and the surveillance footage were sufficient to
            establish that Appellant committed the offense
      As part of its case-in-chief, the State is required to prove beyond a rea-

sonable doubt that the accused is the person who committed the crime

charged.' Identity may be proven by direct or circumstantial evidence.45 "In




41See Allen v. State, 249 S.W.3d 680, 688 (Tex. App. — Austin 2008, no pet.).
42Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).

43 Id.

44Roberson v. State, 16 S.W.3d 156, 167 (Tex. App. — Austin 2000, pet. ref d) (citing John-

son v. State, 673 S.W.2d 190, 196 (Tex. Crim. App. 1984)).
45 Id. (citing Earls v. State, 707 S.W.2d 82, 85 (Tex. Crim. App. 1986)).


                                            8
fact, identity may be proven by inferences."' The jury may use common sense

and apply common knowledge, observation, and experience gained in ordi-

nary affairs of life when giving effect to inferences that may reasonably be

drawn from evidence.47

       Here, the evidence was sufficient for the jury to reasonably infer that

Appellant was individual who fled from the scene. Det. Loeb testified that

wrecked vehicle in which the assailant had fled belonged to Latiki Bosman.

Latiki Bosman was arrested at the scene. Inside the trunk of the car, Det.

Loeb found wallets belonging to Latiki Bosman and to Appellant. The jury

could reasonably infer from these circumstances that Appellant was the unap-

prehended assailant and that Latiki Bosman and Appellant had put their wal-

lets in the trunk before committing the offense."

       The evidence of identity was bolstered by the DNA evidence retrieved

from the firearm. Det. Loeb testified that the shorter assailant escaped with

the firearm. Law enforcement found property from Hilda's Grocery littered




46Id. (citing United States v. Quimby, 636 F.2d 86, 90 (5th Cir. 1981)).
47Jones v. State, 900 S.W.2d 392, 399 (Tex. App. — San Antonio 1995, pet. ref d).

48Rodriguez v. State, No. 11-05-00218-CR, 2007 Tex. App. LEXIS 2251, at *5 (Tex.

App. — Eastland Mar. 22, 2007, no pet.) (not designated for publication) (stating "the trial
court could infer from Officer Carrasco's testimony that [the defendant] was at the scene of
the wreck and that he left his wallet behind when he fled the scene").
                                             9
around the wrecked car.' Law enforcement followed the trail of these items

and discovered a firearm in a ditch. The firearm was submitted for DNA test-

ing, which established that Appellant was a possible contributor and excluded

Latiki Bosman, Keonte Bosman, and a third unknown mail as contributors.

The DNA evidence permitted the jury to rationally conclude that Appellant

was the unapprehended party.5°

      The evidence adduced at trial was sufficient to prove the element of

identity. The jury could reasonably infer from the wallet, the DNA evidence,

and the video surveillance that Appellant committed the robbery. Accordingly,

this Court should overrule Appellant's first point of error.

2. The State's response to Appellant's second point of error: The trial
    court did not err in admitting the testimony of Det. Loeb
     2.1. Standard of Review
      The decision to admit or to exclude evidence lies within the sound dis-

cretion of the trial court.5' An appellate court reviews a trial court's decision to

admit or to exclude evidence for an abuse of discretion.52 The test for an

abuse of discretion is not whether, in the opinion of the reviewing court, the


49IV R.R. at 72, 95-96.
50 Alvarenga v. State, No. 05-12-00176-CR, 2013 Tex. App. LEXIS 7568, at *7-8 (Tex.
App. — Dallas Jun. 20, 2013, pet. ref d) (not designated for publication).
51See Monroe v. State, 864 S.W.2d 140, 143 (Tex. App. — Texarkana 1993, pet. ref d).

52Montgomery v. State, 810 S.W.2d 372, 378-80 (Tex. Crim. App. 1991).


                                        10
facts presented an appropriate case for the trial court's action; rather, it is a

question of whether the trial court's decision was arbitrary and unreasonable,

made without reference to any guiding rules or principles.53Unless a clear

abuse of discretion has been shown, a trial court's decision to admit or to ex-

clude evidence may not be disturbed on appeal.' If the trial court's ruling was

correct on any theory applicable to the case, in light of what was before the

trial court at the time the ruling was made, the trial court's judgment must be

affirmed.55Furthermore, the erroneous admission of evidence will not result

in reversal where such evidence came in elsewhere without objection.'

     2.2. The testimony was not speculative but illustrated the course
            of Det.'s Loeb's investigation
      Rule 602 provides that "[a] witness may testify to a matter only if evi-

dence is introduced sufficient to support a finding that the witness has person-

al knowledge of the matter.' "Speculation is mere theorizing or guessing

about the possible meanings of facts and evidence presented.' However, a

witness' testimony is not objectionable just because it embraces an issue to be



" Id.
54 Id.

" Martin v. State, 173 S.W.3d 463, 467 (Tex. Crim. App. 2005).
56See Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998).

57Tex. R. Evid. 602.
" Hooper v. State, 214 S.W.3d 9, 16 (Tex. Crim. App. 2007).
                                          11
determined by the trier of fact.' For example, a police officer is permitted to

provide opinions based on circumstances he perceived during the course of his

investigation. 6o

          In his second point of error, Appellant contends that the trial court

erred in overruling his speculation objection to the testimony of Det. Loeb.


          The State: Okay. Was [Keonte] able to point you in a different
          direction?
          Det. Loeb: Yeah. I had obtained a search warrant prior to inter-
          viewing him, of the vehicle that was used, and when I had
          searched the vehicle, I did find a wallet that belonged to apparent-
          ly, Paul Harlan. His wallet was in the trunk of the vehicle. There
          was a Social Security card and a birth certificate, I believe, that was
          in there that identified him as a potential suspect. There was an-
          other wallet in the same trunk that belonged to Latiki Bosman, so
          I had surmised that most likely the suspects had placed their wal-
          lets in the trunk of the vehicle prior to committing the robbery.
          Trial Counsel: Your Honor, I'm going to object to speculation.
          The State: If I can respond, your Honor, it goes with regard to
          his investigation of this case.
          The Court: All right. Overruled.6'
Det. Loeb did not guess about the meaning of Appellant's wallet in the trunk

of the car; he based his testimony rationally on the circumstances he perceived


59   Tex. R. Evid. 704.
" Salazar v. State, No.
                      01-13-00209-CR, 2014 Tex. App. LEXIS 3983, at *14 (Tex. App.
— Houston [1st Dist.] Apr. 10, 2014, no pet.) (not designated for publication).
61IV R.R. at 138-39.


                                            12
in the course of investigating the robbery, i.e., that given the circumstances

surrounding the discovery of Appellant's wallet, the assailants may have placed

their wallets in the trunk of Latiki Bosman's vehicle before committing the

robbery. Det. Loeb also had specialized knowledge as a detective.' This evi-

dence was admissible as opinion testimony by a lay witness and expert testi-

mony.'

      Latiki Bosman was arrested at the scene, and his wallet was found in the

trunk of the getaway vehicle. Given the presence of Appellant's wallet in the

car, it was reasonable, if not elementary, to suspect that Appellant was the un-

apprehended party. In providing this testimony, Det. Loeb communicated to

the jury how he developed Appellant as a suspect. The discovery of Appellant's

wallet led to the taking of a DNA sample from Appellant and, ultimately, test-

ing that excluded Latiki Bosman, Keonte Bosnian, and a third unknown male

— but not Appellant — as contributors to the DNA on the discarded firearm.

The trial court did not err in overruling Appellant's objection."




62Lowery v. State, No. 05-08-00899-CR, 2010 Tex. App. LEXIS 1230, at *18-19 (Tex.

App. — Dallas Feb. 23, 2010, pet. ref d) (not designated for publication).
63See Tex. R. Evid. 701, 702.

64Lowery, No. 05-08-00899-CR, 2010 Tex. App. LEXIS 1230, at *18-19.


                                       13
3. The State's response to Appellant's third point of error: Appellant
    has failed to establish that the judgment erroneously states that the
    jury found the enhancement allegation true; the sentence assessed
    was authorized by law
       The State alleged a prior felony conviction in the indictment.65Punish-

ment was assessed by the jury.66 Appellant pled true to the enhancement alle-

gation.67Apart from the enhancement allegation, the State read Appellant's

lengthy criminal history into evidence." The jury sentenced Appellant to in-

carceration for a period of fifty years.69The judgment indicates that the jury

found the enhancement allegation "true.'

       Appellant contends that the sentence assessed was unauthorized by law

because "the judgment's recitation that the jury found the enhancement para-

graph true is not supported by the record."' Appellant does not assert that

the allegation is not true.72Appellant does not cite any authority in support of

his position.' Recitals contained in a judgment create a presumption of regu-




65C.R. at 10.
66C.R. at 82.

67VI R.R. at 4.

68VI R.R. at 5-8.

69 C.R. at 82.
70C.R. at 82.

71Appellant's Br. at 33.

72Appellant's Br. at 32-33.

73Appellant's Br. at 32-33.


                                      14
larity and truthfulness, absent an affirmative showing to the contrary.' Appel-

lant has offered no evidence that would rebut the presumptions of regularity

and truthfulness. Like the defendants in Simms v. State and Hurd v. State, Ap-

pellant has failed to meet his burden.75Additionally, the sentence assessed was

within the applicable range of punishment for the unenhanced felony.' Ac-

cordingly, this Court should overrule Appellant's third point of error.

4. The State's response to Appellant's fourth point of error: This Court
    should reform the judgment to reflect the correct offense
      An appellate court has the authority to correct and reform the judgment

to make the record speak the truth when it has the necessary information to

do so.77The judgment provides that Appellant was convicted of "aggravated

robbery with a deadly weapon 2nd."78There was no evidence that this was

Appellant's second conviction for this offense. This Court should reform the

judgment to correctly reflect that Appellant was convicted of "aggravated as-

sault with a deadly weapon."



 Simms v. State, 848 S.W.2d 754, 756 (Tex. App. — Houston [1st Dist.] 1993, pet. ref d);
74

Hurd v. State, No. 01-93-01004-CR, 1994 Tex. App. LEXIS 1484, at *3-4 (Tex. App. —
Houston [1st Dist.] Jun. 23, 1994, no pet.) (not designated for publication).
75See Simms, 848 S.W.2d at 756; Hurd, No. 01-93-01004-CR, 1994 Tex. App. LEXIS

1484, at *3-4.
76Tex. Penal Code. Ann. SS12.32(a) (West 2011), 29.03 (West 2011).

77Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993).

78 C.R. at 82.


                                          15
                                   PRAYER

      The State of Texas prays that this Court will overrule Appellant's three

points of error and affirm Appellant's conviction, as modified.



                                        Respectfully submitted,



Susan Hawk                                 . B la Garrison
Criminal District Attorney              State Bar No. 24065276
Dallas County, Texas                    Assistant District Attorney
                                        Dallas County District Attorney's Of-
                                        fice
                                        133 N. Riverfront Blvd., LB 19
                                        Dallas, TX 75207-4399
                                        (214) 653-3600 (telephone)
                                        (214) 653-3643 (fax)
                                        Brian.Garrison@dallascounty.org




                                      16
                        CERTIFICATE OF SERVICE

        I hereby certify that a true copy of the foregoing brief has been served

on Appellant's Counsel on Appeal, the Hon. Julie Woods, Assistant Public

Defender, Dallas County Public Defender's Office, 133 N. Riverfront Blvd.,

LB 2, Dallas, TX 75207 by electronic service on this the 17th day of June,

2015.




                     CERTIFICATE OF COMPLIANCE

        I hereby certify that this brief, inclusive of all its contents, is 3,996

words in length, according to Microsoft Office, which was used to prepare this

brief, and that this brief complies with the word-count limit and typeface con-

ventions required by the Texas Rules of Appellate Procedure.




                                        17
