                                                                               ACCEPTED
                                                                           06-15-00057-CR
                                                                SIXTH COURT OF APPEALS
                                                                      TEXARKANA, TEXAS
                                                                      9/2/2015 10:16:59 AM
                                                                          DEBBIE AUTREY
                                                                                    CLERK



                  No. 06-15-0057-CR
                                                          FILED IN
                                                   6th COURT OF APPEALS
                                                     TEXARKANA, TEXAS
         IN THE SIXTH COURT OF APPEALS             9/2/2015 10:16:59 AM
                                                       DEBBIE AUTREY
                    at TEXARKANA                           Clerk


________________________________________________

 MARCUS LESLIE,
                                                  Appellant

                           vs.

 STATE OF TEXAS,
                                         Appellee
________________________________________________


  Appeal from the District Court of Bowie County, Texas
                   5th Judicial District

________________________________________________

              APPELLANT’S BRIEF
_________________________________________________




                         Troy Hornsby

                         Miller, James, Miller & Hornsby, L.L.P.
                         1725 Galleria Oaks Drive
                         Texarkana, Texas 75503
                         troy.hornsby@gmail.com
                         903.794.2711, f. 903.792.1276

                         Attorney for Appellant
                         Marcus Leslie



               Oral Argument Requested
                       IDENTITY OF PARTIES AND COUNSEL

Pursuant to Texas Rule of Appellate Procedure 38.1(a), the following is a

complete list of all parties to the trial court’s judgment and the names and

addresses of all trial and appellate counsel:


Appellant                               Appellant’s appellate counsel

Marcus Leslie                           Troy Hornsby
                                        Miller, James, Miller, & Hornsby, LLP
                                        1725 Galleria Oaks Drive
                                        Texarkana, Texas 75503

                                        Appellant’s trial counsel

                                        Chad Crowl
                                        Bowie Co. Public Defender's Office
                                        424 W. Broad Street
                                        Texarkana, Texas 75501

Appellee                                Appellee's appellate/trial counsel

State of Texas                          Samantha Oglesby
                                        Bowie County Dist. Attorney's Office
                                        601 Main Street
                                        Texarkana, Texas 75501




                                          2
                                             TABLE OF CONTENTS

Identity of Parties and Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Index of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Issues Presented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Statement of Oral Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Summary of the Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

         Issue One: The habitual-offender enhancement allegation in the notice of
                    enhancement was defective because it did not allege that the
                    second felony occurred after the first felony conviction became
                    final.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

                            Preservation of Error . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

                            Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

                            Law and Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

                            Harmful Error . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

         Issue Two: There was insufficient evidence to establish that Leslie "used"
                    the deadly weapon or placed anyone in danger which are
                    required to support an affirmative deadly weapon finding. . 21

                            Preservation of Error . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

                            Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

                            Law and Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

                            Harmful Error . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

                                                            3
         Prayer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28




                                                            4
                                  INDEX OF AUTHORITIES

CASES:                                                                                     PAGE

Box v. State,
      05-12-00421-CR (Tex. App.)Dallas Mar. 28, 2013, no pet.)(mem. op.) . 19

Brooks v. State,
     957 S.W.2d 30 (Tex. Crim. App. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Brooks v. State,
     323 S.W.3d 893 (Tex. Crim. App. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Cates v. State,
      102 S.W.3d 735 (Tex. Crim. App. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Collier v. State,
      999 S.W.2d 779 (Tex. Crim. App. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Davis v. State,
      897 S.W.2d 791 (Tex. Crim. App. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Derichsweiler v. State,
      359 S.W.3d 342 (Tex. App.)Fort Worth 2012, pet. ref’d) . . . . . . . . . . . . . 19

Drichas v. State,
     175 S.W.3d 795 (Tex. Crim. App. 2005) . . . . . . . . . . . . . . . . . . . . . . . 23,24

Ex parte Jones,
      957 S.W.2d 849 (Tex. Crim. App. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Ex Parte Lewis,
     AP-75,568 (Tex. Crim. App. Dec. 13, 2006)(mem. op.) . . . . . . . . . . . . . . 18

Ex parte Mathis,
      571 S.W.2d 186 (Tex. Crim. App. 1978) . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Ex parte Petty,
      833 S.W.2d 145 (Tex. Crim. App. 1992) . . . . . . . . . . . . . . . . . . . . . . . 24,25

Fitzgerald v. State,
      722 S.W.2d 817 (Tex. App.)Tyler 1987),
      aff'd, 782 S.W.2d 876 (Tex. Crim. App. 1990) . . . . . . . . . . . . . . . . . . . . . 19


                                                5
Flanary v. State,
     316 S.W.2d 897 (Tex. Crim. App. 1958) (op. on reh'g) . . . . . . . . . . . . . . . 21

Gollihar v. State,
      46 S.W.3d 243 (Tex. Crim. App. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Guzman v. State,
    955 S.W.2d 85 (Tex. Crim. App. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Holt v. State,
      899 S.W.2d 22 (Tex. App.)Tyler 1995, no pet.) . . . . . . . . . . . . . . . . . . . . 18

Hooks v. State,
     860 S.W.2d 110 (Tex. Crim. App. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Jackson v. Virginia,
      443 U.S. 307, 99 S. Ct. 2781 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Jingles v. State,
      752 S.W.2d 126 (Tex. App.)Houston [14th Dist.] 1987, pet. ref’d) . . . . . 18

Johnson v. State,
     967 S.W.2d 410 (Tex. Crim. App. 1998) . . . . . . . . . . . . . . . . . . . . . . . 19,25

Johnson v. State,
     43 S.W.3d 1 (Tex. Crim. App. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . 20,25

Kent v. State,
      879 S.W.2d 80 (Tex. App.)Houston [14th Dist.] 1994, no pet.) . . . . . . . . 18

King v. State,
      895 S.W.2d 701 (Tex. Crim. App. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . 22

King v. State,
      953 S.W.2d 266 (Tex. Crim. App. 1997) . . . . . . . . . . . . . . . . . . . . . . . 19,25

Marin v. State,
     851 S.W.2d 275 (Tex. Crim. App. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Narron v. State,
     835 S.W.2d 642 (Tex. Crim. App. 1992) . . . . . . . . . . . . . . . . . . . . . . . 24,25

Polk v. State,
      693 S.W.2d 391 (Tex. Crim. App. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . 23

                                                   6
Sanders v. State,
     25 S.W.3d 854 (Tex. App.)Houston [14th Dist.] 2000, pet. dism'd) . . . . . 23

Schutz v. State,
      63 S.W.3d 442 (Tex. Crim. App. 2001) . . . . . . . . . . . . . . . . . . . . . . . . 20,25

State v. Moff,
       154 S.W.3d 599 (Tex. Crim. App. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Stautzenberger v. State,
      232 S.W.3d 323 (Tex. App.—Houston [14th Dist.] 2007, no pet.) . . . . . . 16

Thomas v. State,
     286 S.W.3d 109 (Tex. App.—Houston [14th Dist.] 2009, no pet.) . . . . . . 16

Throneberry v. State,
     109 S.W.3d 52 (Tex. App.)Fort Worth 2003, no pet.) . . . . . . . . . . . . . . . 20

Tomlin v. State,
     722 S.W.2d 702 (Tex. Crim. App. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Wilson v. State,
      No. 14-03-00182-CR (Tex. App.)Houston [14th Dist.] 2004, no pet.) . . . 18


STATUTES/RULES:

Tex. Code Crim. Proc. Ann. art. 1.14(b)(West 2005) . . . . . . . . . . . . . . . . . . . . . . 14

Tex. Code Crim. Proc. Ann. art. 21.02(7) (West 2009) . . . . . . . . . . . . . . . . . 16,18

Tex. Code Crim. Proc. Ann. art. 21.03 (West 2009) . . . . . . . . . . . . . . . . . . 15,16,18

Tex. Code Crim. Proc. Ann. art. 21.21(7)(West 2009) . . . . . . . . . . . . . . . . . . 16,18

Tex. Code Crim. Proc. Ann. art. 42.12 § 3g(a)(2)(West supp. 2014) . . . . . . . . . . 23

Tex. Pen. Code Ann. § 1.07(a)(17) (West supp. 2014) . . . . . . . . . . . . . . . . . 23,24

Tex. Pen. Code Ann. §12.42 (West supp. 2014) . . . . . . . . . . . . . . . . 13,14,15,16,17

Tex. R. App. P. 33.1(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14,21

Tex. R. App. P. 44.2(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19,25

                                                       7
CONSTITUTIONS:

Tex. Const. art. I §10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16




                                                          8
                          STATEMENT OF THE CASE

Nature of case:   This is an appeal from a conviction for unlawful possession of
                  a firearm (by a felon), pursuant to Texas Penal Code section
                  46.04, with two enhancements. (C.R. pg. 149).

Judge/Court:      Judge Bill Miller sitting in the 5th District Court of Bowie
                  County, Texas. (C.R. pg. 149).

Pleas:            Marcus Leslie (Leslie) entered pleas of “not guilty” to the
                  charge against him. (R.R. Vol. III pg. 134)(C.R. pg. 149).
                  Leslie also plead "not true" to the enhancements. (R.R. Vol. V
                  pg. 9-10)(C.R. pg. 149).

Trial disposition: The jury found Leslie guilty. (C.R. pg. 118). Punishment was
                   tried to the jury which found both enhancement allegations to
                   be "true " and recommended a sentence of 50 years. (C.R. pg.
                   126). The court imposed that sentence adding a deadly weapon
                   finding. (C.R. pg. 149).




                                        9
                               ISSUES PRESENTED


Issue One: The habitual-offender enhancement allegation in the notice of
           enhancement was defective because it did not allege that the second
           felony occurred after the first felony conviction became final.


Issue Two: There was insufficient evidence to establish that Leslie "used" the
           deadly weapon or placed anyone in danger which are required to
           support an affirmative deadly weapon finding.




                                       10
                       STATEMENT OF ORAL ARGUMENT

      Oral argument might assist the court in considering issue regarding the

timing with regard to the enhancement issue which is technical in nature.

Additionally, oral argument might assist the court in considering the evidence

theoretically necessary to support a deadly weapon finding.




                                        11
                               STATEMENT OF FACTS

      The State alleges that Marcus Leslie went to the home of a friend and

removed a handgun without permission and it was not returned. (R.R. Vol. III pg.

155-157).

      Marcus Leslie contends that the friend gave Leslie the handgun and asked

Leslie to trade or sell the gun for crack cocaine for the use of the friend. (R.R.

Vol. VI, State’s Rec. 1).

      It is undisputed that Marcus Leslie has two prior convictions: one for

burglary of a residence and theft of property. (R.R. Vol. IV State’s Ex. 5, pg. 1-2

and State’s Ex. 6, pg. 5-6).




                                          12
                         SUMMARY OF THE ARGUMENT


Issue One: The habitual-offender enhancement allegation in the notice of
           enhancement was defective because it did not allege that the second
           felony occurred after the first felony conviction became final.

      The State’s notice of enhancement against Leslie did not include all the

necessary elements of a habitual-offender enhancement required by Texas Penal

Code section 12.42(d) because it did not allege that the second felony occurred

subsequent to the first felony conviction becoming final. See Tex. Pen. Code Ann.

§12.42(a)(West supp. 2013). Accordingly, the notice of enhancement did not

allege everything "which is necessary to be proved" and fails to provide proper

notice of the enhancement.




Issue Two: There was insufficient evidence to establish that Leslie "used" the
           deadly weapon or placed anyone in danger which are required to
           support an affirmative deadly weapon finding.

      There was insufficient evidence to support the affirmative deadly weapon

finding in the judgment. Although Leslie possessed a handgun, which is a per se

deadly weapon, there was no evidence that Leslie "used" the handgun or placed

anyone in danger.




                                        13
                                     ARGUMENT

Issue One: The habitual-offender enhancement allegation in the notice of
           enhancement was defective because it did not allege that the second
           felony occurred after the first felony conviction became final.


      The State’s notice of enhancement against Leslie did not include all the

necessary elements of a habitual-offender enhancement required by Texas Penal

Code section 12.42(d) because it did not allege that the second felony occurred

subsequent to the first felony conviction becoming final. See Tex. Pen. Code Ann.

§12.42(a)(West supp. 2013). Accordingly, the notice of enhancement did not

allege everything "which is necessary to be proved" and fails to provide proper

notice of the enhancement.



                               Preservation of Error

      To preserve a complaint for appellate review, a party must generally have

presented to the trial court a timely request, objection, or motion that states the

specific grounds for the desired ruling, if they are not apparent from the context of

the request, objection, or motion. See Tex. R. App. P. 33.1(a). More specifically,

article 1.14(b) of the Texas Code of Criminal Procedure provides:

      If the defendant does not object to a defect, error, or irregularity of
      form or substance in an indictment or information before the date on
      which the trial on the merits commences, he waives and forfeits the
      right to object to the defect, error, or irregularity and he may not raise
      the objection on appeal.

Tex. Code Crim. Proc. Ann. art. 1.14(b)(West 2005).

      Here, Leslie objected to the notice of enhancement through a motion to

                                          14
quash. (C.R. pg. 88 ¶¶ 4-6). This motion was overruled by the Court. (R.R. Vol.

III pg. 77-83). For good measure, Leslie made a running objection to evidence in

support of the enhancement allegation, which was granted by the trial court. (R.R.

Vol. III pg. 83). Therefore, this issue was preserved for appellate review.



                                Standard of Review

      The sufficiency of an indictment is a question of law. State v. Moff, 154

S.W.3d 599, 601 (Tex. Crim. App. 2004). When the resolution of a question of

law does not turn on an evaluation of the credibility and demeanor of a witness,

then the trial court is not in a better position to make the determination, and

appellate courts should conduct a de novo review of the issue. Id.; see also

Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).



                               Law and Application

      The State’s notice of enhancement against Leslie did not include all the

necessary elements of a habitual-offender enhancement required by Texas Penal

Code section 12.42(d) because it did not allege that the second felony occurred

subsequent to the first felony conviction becoming final. See Tex. Pen. Code Ann.

§12.42(a)(West supp. 2013). Accordingly, the notice of enhancement did not

allege everything "which is necessary to be proved" and fails to provide proper

notice of the enhancement.

      Texas Code of Criminal Procedure article 21.03 provides “everything


                                          15
should be stated in an indictment which is necessary to be proved.” Tex. Code

Crim. Proc. Ann. art. 21.03 (West 2009); see also art. 21.02(7), art. 21.21(7). This

stems from the constitutional right of an accused “to demand the nature and cause

of the accusation.” Tex. Const. art. I §10. If an element of an offense is omitted,

then the indictment fails to allege an offense. Ex parte Mathis, 571 S.W.2d 186

(Tex. Crim. App.1978).

      However, enhancement allegations that are not part of the State's

case-in-chief are not part of the "substance" of the indictment. See Thomas v.

State, 286 S.W.3d 109, 114 (Tex. App.—Houston [14th Dist.] 2009, no pet.)

(citing Stautzenberger v. State, 232 S.W.3d 323, 327 (Tex. App.—Houston [14th

Dist.] 2007, no pet.). Such allegations must be raised in some form, but need not

be pleaded in the indictment. Brooks v. State, 957 S.W.2d 30, 34 (Tex. Crim. App.

1997).

      Texas Penal Code section 12.42(d) provides in relevant part as follows:

      Penalties for Repeat and Habitual Felony Offenders

      (d)    Except as provided by Subsection (c)(2) or (c)(4), if it is shown
             on the trial of a felony offense other than a state jail felony
             punishable under Section 12.35(a) that the defendant has
             previously been finally convicted of two felony offenses, and
             the second previous felony conviction is for an offense that
             occurred subsequent to the first previous conviction having
             become final, on conviction the defendant shall be punished by
             imprisonment in the Texas Department of Criminal Justice for
             life, or for any term of not more than 99 years or less than 25
             years. A previous conviction for a state jail felony punishable
             under Section 12.35(a) may not be used for enhancement
             purposes under this subsection.

Tex. Pen. Code Ann. §12.42(d) (West supp. 2014). The notice of enhancement

                                         16
against Leslie reads in relevant part as follows:

      . . .
      Specifically, the State intends to present evidence that, prior to the
      commission of the offenses as set out above, the defendant,
      MARCUS LESLIE, was finally convicted of a felony offense,
      namely, RESIDENTIAL BURGLARY, in cause No. CR-2005-30 in
      the Circuit Court of Miller County, Arkansas, on or about February
      10, 2005; and after the aforementioned felony conviction was final,
      the defendant was finally convicted of the felony offense of THEFT
      OF PROPERTY, in cause No. CR-2006-197 in the Circuit Court of
      Miller County, Arkansas, on or about January 9, 2007. (See
      Attachment A)
      . . .

(C.R. pg. 75). The notice of enhancement against Leslie does not allege all the

necessary elements of a habitual-offender enhancement. See Tex. Pen. Code

§12.42(d).

      The notice of enhancement does specify that (1) Leslie has previously been

finally convicted of two felony offenses: “Residential Burglary” and “Theft of

Property.” (C.R. pg. 75). However, the notice of enhancement fails to allege (2)

that the second previous felony conviction is for an offense that occurred

subsequent to the first previous conviction having become final. Rather the notice

of enhancement provides "aforementioned felony conviction (Residential

Burglary) was final, the defendant was finally convicted of the felony offense of

THEFT OF PROPERTY." (C.R. pg. 75). Thus, the State alleged that Leslie was

convicted of the second felony after he was convicted of the first felony.

However, the State did not allege that the second felony occurred after the first

felony conviction became final.

      The date the second felony was committed, which was not properly alleged

                                         17
by the State, is a necessary element to the enhancement allegation. If the State

alleges two convictions for enhancement purposes, it must prove that the

following sequence occurred: (1) the first conviction became final; (2) the

offense leading to a later conviction was committed; (3) the later conviction

became final; and (4) the present offense was committed. Tomlin v. State,

722 S.W.2d 702, 705 (Tex. Crim. App. 1987). Thus, the State must prove the

second felony offense occurred after the first felony offense conviction became

final. See e.g. Kent v. State, 879 S.W.2d 80 (Tex. App.)Houston [14th Dist.] 1994,

no pet.); see also Holt v. State, 899 S.W.2d 22 (Tex. App.)Tyler 1995, no pet.).

Accordingly, that should be alleged in the indictment or notice of enhancement.

See Tex. Code Crim. Proc. Ann. art. 21.03; see also art. 21.02(7), art.

21.21(7)(West 2009). In Ex Parte Lewis, the Texas Court of Criminal Appeals

concluded in part that an enhancement notice failed because the State did not

allege that one prior offense was committed after the other became final. See Ex

Parte Lewis, AP-75,568 (Tex. Crim. App. Dec. 13, 2006)(mem. op.). For this

reason, the State failed to properly notify Leslie of the enhancement allegations

against him.

      Several cases are, at least at first blush, contrary to this argument. In Jingles

v. State, the Houston 14th Court of Appeals rejected this same argument and

concluded that the State need not specifically allege that the second prior felony

occurred after the first prior felony conviction was final. 752 S.W.2d 126, 129

(Tex. App.)Houston [14th Dist.] 1987, pet. ref’d); see also Wilson v. State, No.


                                         18
14-03-00182-CR (Tex. App.)Houston [14th Dist.] 2004, no pet.); Fitzgerald v.

State, 722 S.W.2d 817, 822 (Tex. App.)Tyler 1987), aff'd, 782 S.W.2d 876 (Tex.

Crim. App. 1990). However, there the arguments were that the omissions in the

enhancement allegations were fundamental error and the conclusions were that

such an omission was not fundamental error. Id. Here, Leslie preserved the error

through a motion to quash.

      In other cases, this was likewise not required. See e.g. Derichsweiler v.

State, 359 S.W.3d 342 (Tex. App.)Fort Worth 2012, pet. ref’d); Box v. State,

05-12-00421-CR (Tex. App.)Dallas March 28, 2013, no pet.)(mem. op.).

However, in these cases the courts were addressing charge error as opposed to

preserved error in the enhancement notices.

      Accordingly, the enhancement notices against Leslie failed to allege the

required sequence of the offense and therefore failed to properly notify Leslie of

the enhancement.



                                   Harmful Error

      An error must affect the substantial rights of the accused to be harmful. See

Tex. R. App. P.44.2(b). A "substantial right" is affected when the error had a

substantial and injurious effect or influence in determining the jury's verdict. King

v. State, 953 S.W.2d 266 (Tex. Crim. App. 1997) (citing Tex. R. App. P. 44.2(b)).

Alternatively, error is harmless if the error "did not influence the jury, or had but a

slight effect." Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). The


                                          19
appellant does not bear the burden to establish such harmful error. Schutz v. State,

63 S.W.3d 442, 444 (Tex. Crim. App. 2001); Johnson v. State, 43 S.W.3d 1, 4

(Tex. Crim. App. 2001). Rather, it is the responsibility of the appellate court to

assess harm after reviewing the record. Schutz v. State, 63 S.W.3d 442, 444 (Tex.

Crim. App. 2001); Johnson v. State, 43 S.W.3d 1, 4 (Tex. Crim. App. 2001).

         The Fort Worth Court concluded that preserved error regarding a notice of

enhancement is harmful error analysis. See Throneberry v. State, 109 S.W.3d 52,

60 (Tex. App.)Fort Worth 2003, no pet.). There, an important factor was how

long the notice was on file. Here, the State provided the inadequate notice

on March 24, 2015, while the trial began seven days later on March 31, 2015.

(R.R. Vol. III cover). Accordingly, the short time alone represented some harmful

error.




                                          20
Issue Two: There was insufficient evidence to establish that Leslie "used" the
           deadly weapon or placed anyone in danger which are required to
           support an affirmative deadly weapon finding.


      There was insufficient evidence to support the affirmative deadly weapon

finding in the judgment. Although Leslie possessed a handgun, which is a per se

deadly weapon, there was no evidence that Leslie "used" the handgun or placed

anyone in danger.



                               Preservation of Error

      To preserve a complaint for appellate review, a party must generally have

presented to the trial court a timely request, objection, or motion that states the

specific grounds for the desired ruling, if they are not apparent from the context of

the request, objection, or motion. See Tex. R. App. P. 33.1(a). However, it has

long been the rule in Texas that a criminal appellant may challenge the legal and

factual sufficiency of the State's evidence even though the issue was not raised in

the trial court. See Flanary v. State, 316 S.W.2d 897, 898 (Tex. Crim. App. 1958)

(op. on reh'g); see also Collier v. State, 999 S.W.2d 779, 787 (Tex. Crim. App.

1999) (Keller, J., dissenting) ("procedural default concepts are generally absent

from evidentiary sufficiency issues as they relate to elements of an offense"). In

other words, the State's burden to present evidence sufficient to sustain a

conviction has been considered an absolute requirement that must be observed

without request and cannot be waived or forfeited. See Marin v. State, 851 S.W.2d

275, 279-80 (Tex. Crim. App. 1993) (absolute, waivable, and forfeitable rights).

                                          21
                                Standard of Review

      Appellate courts should no longer conduct separate legal and factual

sufficiency reviews in criminal cases. See Brooks v. State, 323 S.W.3d 893 (Tex.

Crim. App. 2010). Rather, appellate courts in criminal cases should simply

conduct the sufficiency standard under Jackson v. Virginia, 443 U.S. 307 (1979).

Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010). In reviewing the

evidence for sufficiency, the appellate court should consider the evidence in the

light most favorable to the verdict to determine whether any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.

Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Brooks v.

State, 323 S.W.3d 893 (Tex. Crim. App. 2010). The standard is the same for both

direct and circumstantial evidence cases. King v. State, 895 S.W.2d 701, 703 (Tex.

Crim. App. 1995).



                               Law and Application

      The deadly weapon issue was not submitted to the jury. Regardless, the trial

court made an affirmative deadly weapon finding. Although there was evidence

that Leslie possessed a handgun, which is a per se deadly weapon, there was no

evidence that Leslie "used" the handgun or placed anyone in danger.

      The Code of Criminal Procedure directs the trial court to submit to the jury

any issue that is raised by the facts . . . and authorizes a deadly weapon finding

upon sufficient evidence that a defendant "used or exhibited" a deadly weapon


                                         22
during the commission of or flight from a felony offense. Drichas v. State, 175

S.W.3d 795 (Tex. Crim. App. 2005)(citing Tex. Code Crim. Proc. Ann. art. 42.12

§ 3g(a)(2)(West supp. 2014)). A deadly weapon is 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)(B)(West supp. 2014).

      In Polk v. State, the Court of Criminal Appeals concluded that under Article

42.12 of the Code of Criminal Procedure, "affirmative finding" means "the trier of

fact's express determination that a deadly weapon or firearm was actually used or

exhibited during the commission of the offense." Polk v. State, 693 S.W.2d 391,

393 (Tex. Crim. App. 1985). Thus, the Court orginally decided that the Legislature

required an "express determination" from the fact-finder, thereby rejecting any

supposed "implied" finding. See Hooks v. State, 860 S.W.2d 110, 112 (Tex. Crim.

App. 1993). Since Polk, the rule was softened and a trial court is authorized to

make an affirmative deadly-weapon finding in the following three situations:

where the jury has (1) found guilt as alleged in the indictment and the deadly

weapon has been specifically plead as such using "deadly weapon" nomenclature

in the indictment; (2) found guilt as alleged in the indictment but, though not

specifically plead as a deadly weapon, the weapon plead is per se a deadly

weapon; or (3) affirmatively answered a special issue on deadly weapon use. See

Sanders v. State, 25 S.W.3d 854, 856 (Tex. App.)Houston [14th Dist.] 2000, pet.

dism'd)(citing Davis v. State, 897 S.W.2d 791, 793-94 (Tex. Crim. App. 1995).

      Regardless, to hold evidence legally sufficient to sustain a deadly weapon


                                         23
finding, the evidence must demonstrate that: (1) the object meets the statutory

definition of a dangerous weapon, (see Tex. Pen. Code Ann. §1.07(a)(17)(B)(West

supp. 2014)); (2) the deadly weapon was used or exhibited "during the transaction

from which" the felony conviction was obtained, (see Ex parte Jones, 957 S.W.2d

849, 851 (Tex. Crim. App. 1997)); and (3) that other people were put in actual

danger (see Cates v. State, 102 S.W.3d 735, 738 (Tex. Crim. App. 2003)). Drichas

v. State, 175 S.W.3d 795, 787 (Tex. Crim. App. 2005).

      Here, a handgun is a per se deadly weapon. Tex. Pen. Code Ann. §

1.07(a)(17)(A) (West supp. 2014). It was certainly used during the offense of

felon in possession of a handgun. More specifically, there was some evidence that

Leslie took the handgun from Johnnie Booth’s home. (R.R. Vol. III pg. 155-156).

However, there was not testimony as to Leslie’s actual use of the gun generally, or

that anyone was placed in actual danger by it, specifically. Accordingly, there was

insufficient evidence to support a deadly weapon finding.

      Similar situations have been addressed by the Texas Court of Criminal

Appeals where the court addressed a deadly weapon finding in a conviction of

felon in possession of a firearm. See Natron v. State, 835 S.W.2d 642, 644 (Tex.

Crim. App.1992); Ex parte Petty, 833 S.W.2d 145, 145-46 (Tex. Crim. App.1992).



In Narron v. State, the court concluded that "use" of a deadly weapon had to be

more than mere possession. 835 S.W.2d 642, 644 (Tex. Crim. App.1992). In Ex

parte Petty, the court likewise concluded that mere possession of a deadly weapon


                                        24
was not use. 833 S.W.2d 145, 145-46 (Tex. Crim. App.1992).

      Accordingly, here as in Natron v. State and Ex parte Petty, the mere

possession of a firearm in a conviction for felon in possession of a firearm did not

support a deadly weapon finding. In such a situation, the proper remedy is for the

appellate court to simply delete the deadly weapon finding. Narron v. State, 835

S.W.2d 642, 644 (Tex. Crim. App. 1992).



                                   Harmful Error

      An error must affect the substantial rights of the accused to be harmful. See

Tex. R. App. P. 44.2(b). A "substantial right" is affected when the error had a

substantial and injurious effect or influence in determining the jury's verdict. King

v. State, 953 S.W.2d 266 (Tex. Crim. App. 1997) (citing Tex. R. App. P. 44.2(b)).

Alternatively, error is harmless if the error "did not influence the jury, or had but a

slight effect." Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). The

appellant does not bear the burden to establish such harmful error. Schutz v. State,

63 S.W.3d 442, 444 (Tex. Crim. App. 2001); Johnson v. State, 43 S.W.3d 1, 4

(Tex. Crim. App. 2001). Rather, it is the responsibility of the appellate court to

assess harm after reviewing the record. Schutz v. State, 63 S.W.3d 442, 444 (Tex.

Crim. App. 2001); Johnson v. State, 43 S.W.3d 1, 4 (Tex. Crim. App. 2001).

      However, a harmless error analysis is not conducted with regard to legal and

factual sufficiency of the evidence challenges. See Gollihar v. State, 46 S.W.3d

243 (Tex. Crim. App. 2001).


                                          25
                                     PRAYER

      WHEREFORE, premises considered, Marcus Leslie respectfully requests

that this conviction be reversed and judgment rendered in his favor, that the

conviction be reversed and a new trial granted, that the deadly weapon finding be

removed, or for such other and further relief to which Appellant may be entitled.




                                      Respectfully Submitted,

                                      Miller, James, Miller & Hornsby, L.L.P.

                                      By:______________________________
                                         Troy Hornsby
                                         Texas Bar Number 00790919

                                      1725 Galleria Oaks Drive
                                      Texarkana, Texas 75503
                                      troy.hornsby@gmail.com
                                      903.794.2711, f. 903.792.1276

                                      Attorney for Appellant Marcus Leslie




                                        26
                           CERTIFICATE OF SERVICE

This is to certify that on September 2, 2015, a true and correct copy of the above
and foregoing Appellant’s Brief has been forwarded by U.S. mail on all counsel of
record and interested party listed below:

Appellant                                    State's Attorney
Marcus Leslie                                Samantha Oglesby
TDC #02001223                                Bowie County D.A.’s Office
Connally Unit                                601 Main Street
899 F.M. 632                                 Texarkana, Texas 75501
Kenedy, Texas 78119
                                             Defendant's Trial Attorney
Trial Court Judge                            Chad Crowl
Honorable Bill Miller                        Bowie Co. Public Defender's Off.
5th District Judge                           424 W. Broad Street
Bi-State Justice Building                    Texarkana, Texas 75501
100 North State Line Avenue
Texarkana, Texas 75501


                                      ___________________________________
                                      Troy Hornsby




                                        27
                         CERTIFICATE OF COMPLIANCE

Pursuant to Texas Rule of Appellate Procedure 9.4, the undersigned counsel
certifies that, exclusive of the exempted portions in Texas Rule of Appellate
Procedure 9.4(i)(1), this brief contains 3,384 words (less than 15,000), based upon
the word count of the WordPerfect program used to prepare the document.


                                      _______________________________
                                      Troy Hornsby




                                        28
