                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-17-00025-CR


ADRICK L. HOUSTON                                                   APPELLANT

                                      V.

THE STATE OF TEXAS                                                     STATE


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         FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY
                     TRIAL COURT NO. 1429561D

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                       MEMORANDUM OPINION1

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     Appellant Adrick L. Houston appeals his first-degree-felony conviction for

aggravated assault2 and his sentence of seventy years’ confinement. In two

points, he contends that the punishment-phase jury charge erroneously gave him

the burden to disprove a sentence-enhancement allegation beyond a reasonable

     1
      See Tex. R. App. P. 47.4.
     2
      See Tex. Penal Code Ann. § 22.02(a)(1), (b)(1) (West 2011).
doubt and that the evidence is insufficient to support his conviction. Because we

conclude that the jury charge, although erroneous, did not cause egregious harm

and that the evidence is sufficient to support the conviction, we overrule

Houston’s points and affirm the trial court’s judgment.

                                Background Facts

      Y.L. (Yvonne)3 met Houston in 2015. Their relationship developed into a

friendship within a matter of days and into an intimate relationship within a couple

of weeks. She eventually moved in with him. Although Yvonne and Houston

used methamphetamine together, Yvonne became uncomfortable with Houston’s

drug habits and ended her romantic relationship with him. She moved out of his

house, preferring instead to sleep in her car, but she kept some of her personal

property at his house with the intent of moving it out at a later date.

      Not long thereafter, Houston asked Yvonne for a ride in exchange for gas

money. After giving him a ride, she returned to his house later that day to get the

money. When she arrived that evening, she saw him arguing with another man

and threatening him with a knife.       After that man left, Houston approached

Yvonne and asked her if she would like to stay the night, to which she declined.

Yvonne began gathering some of her possessions, and Houston began

repeatedly asking her whether she was going to leave him. Yvonne then saw

Houston having an argument with another woman.

      To protect Y.L.’s anonymity, we use an alias. See McClendon v. State,
      3

643 S.W.2d 936, 936 n.1 (Tex. Crim. App. [Panel Op.] 1982).


                                          2
      According to Yvonne’s testimony, she ultimately ended up in Houston’s

back bedroom with him and several others, all of whom were smoking

methamphetamine.      Shortly thereafter, Houston left the room.       Yvonne was

sitting close to a bedroom door when her shoulder suddenly felt hot. She looked

up and saw Houston standing behind her with a knife in his hand. According to

Yvonne, Houston stabbed and attacked her while the other guests fled. Houston

then left the house. He left Yvonne on the floor bleeding; she did not know what

had prompted the attack.

      Yvonne called 9-1-1 and identified Houston as her assailant. At a hospital,

she discovered that she had received five stab wounds, at least two of which

were life threatening. She stayed at the hospital for several days.

      A grand jury indicted Houston for aggravated assault.           For sentence-

enhancement, the indictment alleged that he had a prior felony conviction of

aggravated assault with a deadly weapon. After a jury considered the parties’

evidence and arguments in the guilt and punishment phases of a trial, it found

Houston guilty of aggravated assault, found the indictment’s sentence-

enhancement allegation true, and assessed seventy years’ confinement. The

trial court sentenced Houston accordingly, and he appealed.

                                The Jury Charge

      In his first point, Houston contends that to avoid the enhancement of his

punishment range, the punishment-phase jury charge improperly required him to

prove beyond a reasonable doubt that he did not have a prior conviction.


                                         3
Houston’s first-degree-felony aggravated assault conviction carried a punishment

range of five years’ confinement to confinement for life. See Tex. Penal Code

Ann. § 12.32(a) (West 2011), § 22.02(a)(1), (b)(1). The indictment’s sentence-

enhancement allegation, if proved and found true by the jury, raised the minimum

punishment from five to fifteen years’ confinement while retaining the maximum

punishment at confinement for life. See id. § 12.42(c)(1) (West Supp. 2017).

       Houston argues that the following provision of the jury charge improperly

assigned him the burden to prove beyond a reasonable doubt that he did not

have a prior conviction:

              You are instructed that if you find from the evidence beyond a
       reasonable doubt that the allegations in the repeat offender notice
       are not true, then you will assess the punishment of the defendant at
       imprisonment . . . for life or any term of not more than 99 years or
       less than 5 years.

       Without disputing his failure to object to this charge, Houston argues that

the charge resulted in egregious harm. Specifically, he contends that the trial

court charged the jury with the exact opposite of the correct law, that the jury

assessed a lengthy term of confinement, and that neither the State nor his trial

counsel mitigated the harm by supplying the jury with a correct statement of the

law.

       The State responds that the charge, when construed in its entirety,

correctly instructed the jury that the State had the burden to prove the

enhancement allegation beyond a reasonable doubt. The State also asserts that

the charge, even if erroneous, could not have egregiously harmed Houston


                                        4
because he presented no evidence to challenge enhancement by his prior

conviction; because he never argued for the five-year minimum of an

unenhanced sentence, instead arguing for leniency by the fifteen-year minimum

of the enhanced sentence; and because the jury assessed his punishment much

closer to the identical maximum ranges of both the enhanced and unenhanced

sentences than to their conflicting minimum ranges.

Standard of review

      We must consider all alleged jury-charge error regardless of preservation

in the trial court. Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012).

In our review of a jury charge, we first determine whether error occurred; if error

did not occur, our analysis ends. Id. If error occurred, whether the appellant

preserved the error determines the degree of harm required for reversal. Id.

Unpreserved charge error warrants reversal only when the error resulted in

egregious harm. Nava v. State, 415 S.W.3d 289, 298 (Tex. Crim. App. 2013);

Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g);

see Tex. Code Crim. Proc. Ann. art. 36.19 (West 2006). The appropriate inquiry

for egregious harm is fact specific, and we must assess harm on a case-by-case

basis. Gelinas v. State, 398 S.W.3d 703, 710 (Tex. Crim. App. 2013); Taylor v.

State, 332 S.W.3d 483, 489 (Tex. Crim. App. 2011).

      In making an egregious harm determination, we must assay the actual

degree of harm in light of the entire jury charge; the state of the evidence,

including the contested issues and weight of probative evidence; the argument of


                                        5
counsel; and any other relevant information revealed by the record. Almanza,

686 S.W.2d at 171; see generally Gelinas, 398 S.W.3d at 708–10 (applying

Almanza).     The purpose of this review is to illuminate the actual, not just

theoretical, harm to the accused. Almanza, 686 S.W.2d at 174.

Error

        To enhance a defendant’s sentence through a prior conviction, the State

must prove beyond a reasonable doubt that a prior conviction exists and that the

conviction belongs to the defendant. See Henry v. State, 509 S.W.3d 915, 918

(Tex. Crim. App. 2016). Thus, we agree with Houston that the paragraph quoted

above erroneously required proof beyond a reasonable doubt that he was not a

repeat offender to permit the jury to consider the unenhanced range of his

punishment. See Tex. Code Crim. Proc. Ann. art. 36.14 (West 2007) (stating

that the court’s charge must set forth the law applicable to the case); see also

Williams v. State, 899 S.W.2d 13, 14 (Tex. App.—San Antonio 1995, no pet.)

(“The State has the burden of proof as to prior convictions alleged for

enhancement of punishment, and the standard of proof is beyond a reasonable

doubt.”). We must determine whether this erroneous language caused egregious

harm by evaluating the language in the context of the entire jury charge, the state

of the evidence including contested issues and the weight of the probative

evidence, counsel’s arguments, and other relevant factors revealed by the

record. See Almanza, 686 S.W.2d at 171.




                                        6
Egregious harm analysis

      Context of the entire jury charge

      In context, the jury charge required the jury to make one of two mutually

exclusive findings—the truth of the enhancement allegation or the falsity of the

enhancement allegation—beyond a reasonable doubt:

            You are instructed that if you find from the evidence
         beyond a reasonable doubt that the allegations in the repeat
         offender notice are not true, then you will assess the
         punishment of the defendant at imprisonment . . . for life or
         any term of not more than 99 years or less than 5 years. . . .

             You are instructed that if you find from the evidence
         beyond a reasonable doubt that the allegations in the repeat
         offender notice are true, then you will assess the punishment
         of the defendant at imprisonment . . . for life or any term of not
         more than 99 years or less than 15 years.

The jury charge further provided that the jury could not consider previous crimes

unless it found beyond a reasonable doubt that Houston committed them:

            You are instructed that if there is any testimony before you
         in this case regarding the defendant’s having committed
         crimes, wrongs, or acts, other than the offense for which you
         have found him guilty, you cannot consider said testimony for
         any purpose unless you find and believe beyond a reasonable
         doubt that the defendant committed such other crimes,
         wrongs, or acts, if any were committed, and even then you
         may only consider the same in determining the punishment
         which you will assess against the defendant in this case.
         [Emphasis added.]

Therefore, the trial court twice instructed the jury that it could not consider or use

evidence of Houston’s prior conviction to assess his punishment unless it found

beyond a reasonable doubt that he had committed that crime.



                                          7
      Although requiring the jury either to find beyond a reasonable doubt that

the prior conviction was true or to find beyond a reasonable doubt that the prior

conviction was not true had the potential to cause confusion, the record does not

indicate that the jury was in fact confused. The jury, which freely made use of

notes to seek further guidance during the guilt phase of the trial, sought no

further help during the punishment phase. Additionally, although erroneous in

one paragraph, the jury charge still correctly required the jury to overcome the

high burden of finding proof beyond a reasonable doubt that Houston was a

repeat offender to enhance his punishment range. Under the language of the

jury charge, in other words, the jury could not have chosen to apply the

enhanced punishment range simply based on the language of the erroneous

paragraph.   Without any evidence to the contrary, we presume that the jury

followed the trial court’s explicit instruction to apply the increased punishment

range only upon a finding beyond a reasonable doubt that the allegation in the

repeat offender notice was true. See Walker v. State, 300 S.W.3d 836, 850 (Tex.

App.—Fort Worth 2009, pet. ref'd).

      State of the evidence

      To prove Houston’s prior conviction, the State produced testimony from his

ex-wife. She testified that Houston had four prior felony convictions. The trial

court admitted a certified pen packet of one of those charges—aggravated

assault with a deadly weapon. The pen packet contained a criminal docket sheet

bearing Houston’s name and date of birth and reciting facts related to his


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conviction and punishment, an indictment bearing his name and date of birth and

containing the name of his ex-wife as the alleged victim, and a judgment of

conviction associated with that indictment.     Houston did not object to this

evidence, did not produce any evidence to show a defect in the prior judgment,

and did not present any evidence weighing against his prior felony conviction.

Houston’s cross-examination of his ex-wife focused on his relationship with her

and his children rather than on the prior convictions.     The State’s evidence

regarding the prior conviction used for enhancement remained uncontroverted.

      Counsel’s arguments

      In his closing argument, Houston’s counsel appeared to presume the truth

of the prior conviction. For example, counsel based part of his argument on the

theory that the police had failed to follow up on potentially exculpatory evidence

because of their certainty that Houston was guilty based on his prior conviction.

Counsel also explicitly argued that he did not dispute Houston’s ex-wife’s

testimony. Additionally, while pleading with the jury to grant lenience, counsel

referred to the enhanced, fifteen-year minimum sentence prescribed by the

repeat offender statute rather than the unenhanced, five-year minimum sentence:

            And so as you are thinking about what to sentence him to,
      something I want you to consider is if you are to find [the] repeat
      offender allegation true, the minimum sentence is 15 years. . . .

            ....

             Think about everything that has happened in your life in the
      past 15 years. All the birthdays, all the Christmases, all the
      relationships. People who have passed away. And think about not


                                        9
      being a part of any of that. There are a lot of factors to consider.
      Yes, Adrick Houston isn't a perfect person, but he has done good in
      his life and there is always hope for change and rehabilitation. And
      that is why we would ask y'all to consider a minimum sentence to
      sentence Mr. Houston to. [Emphasis added.]

      Houston neither offered any evidence nor any argument against his prior

conviction; rather, he appeared to presume the truth of the prior conviction.

      Other relevant considerations

      As explained above, the sentence enhancement did not affect Houston’s

maximum punishment range. The jury had the option of assessing five years’

confinement to confinement for life if it found Houston was not a repeat offender

or fifteen years’ confinement to confinement for life if it found he was a repeat

offender. The jury assessed his punishment at seventy years’ confinement, well

within both ranges. Even assuming that the trial court’s error affected which

range the jury chose to assess Houston’s punishment, we cannot conclude that a

change at the minimum of the range from five to fifteen years’ confinement likely

affected the jury’s decision to sentence Houston to seventy years’ confinement.

Cf. Holt v. State, 899 S.W.2d 22, 24–25 (Tex. App.—Tyler 1995, no pet.) (“[T]he

sentence given here of eighty years was . . . remote from both the correct

minimum range, fifteen years, and the erroneous minimum range given to the

jury, twenty-five years. We therefore hold that the erroneously-charged minimum

sentence, in light of the actual sentence given by the jury, was harmless beyond

a reasonable doubt.”).




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      Conclusion

      For all of these reasons, we conclude that the Almanza factors weigh

against egregious harm.      The trial court correctly required proof beyond a

reasonable doubt of a prior conviction to support the enhancement of Houston’s

sentence; Houston did not controvert testimonial and documentary evidence

supporting the prior conviction; Houston’s counsel’s arguments appeared to

presume the prior conviction; and the truth of his prior conviction did not appear

to significantly affect the jury’s assessment of the duration of his confinement.

Because we conclude that Houston did not suffer egregious harm through the

erroneous jury charge, we overrule his first point.

                             Evidentiary Sufficiency

      In his second point, Houston contends that the evidence is insufficient to

support his conviction because it fails to prove his identity as Yvonne’s assailant.

He argues that although Yvonne blamed him for the assault, he had an alibi.

Furthermore, he asserts that although he had no motive to attack Yvonne, she

had several motives to falsely blame him. Finally, he contends that his mother—

his alibi witness—was a far more credible witness than Yvonne and that the jury

was unreasonable in finding Yvonne’s testimony more credible.

      In our due-process review of the sufficiency of the evidence to support a

conviction, we view all of 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.


                                         11
307, 319, 99 S. Ct. 2781, 2789 (1979); Jenkins v. State, 493 S.W.3d 583, 599

(Tex. Crim. App. 2016). This standard gives full play to the responsibility of the

trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to

draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S.

at 319, 99 S. Ct. at 2789; Jenkins, 493 S.W.3d at 599.

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

evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Blea v. State,

483 S.W.3d 29, 33 (Tex. Crim. App. 2016).            Thus, when performing an

evidentiary sufficiency review, we may not re-evaluate the weight and credibility

of the evidence and substitute our judgment for that of the factfinder.       See

Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). Instead, we

determine whether the necessary inferences are reasonable based upon the

cumulative force of the evidence when viewed in the light most favorable to the

verdict. Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App.), cert. denied,

136 S. Ct. 198 (2015).     We must presume that the factfinder resolved any

conflicting inferences in favor of the verdict and defer to that resolution. Id. at

448–49; see Blea, 483 S.W.3d at 33.

      The State must prove beyond a reasonable doubt that the defendant is the

person who committed the crime described in the indictment. Johnson v. State,

673 S.W.2d 190, 196 (Tex. Crim. App. 1984); Lopez v. State, No. 02-09-00121-

CR, 2010 WL 1854420, at *3 (Tex. App.—Fort Worth May 6, 2010, pet. ref’d)

(mem. op., not designed for publication). The State may prove identity by either


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direct or circumstantial evidence.      Lopez, 2010 WL 1854420, at *3.            An

eyewitness’s identification of the defendant is sufficient to establish identity. See

Ford v. State, 509 S.W.2d 317, 318 (Tex. Crim. App. 1974) (holding that positive

identification of a defendant was sufficient to support his conviction despite alibi

testimony that the jury was free to reject); Kesaria v. State, 148 S.W.3d 634,

640–41 (Tex. App.—Houston [14th Dist.] 2004) (holding that eyewitness

identification of a defendant was sufficient to support a conviction despite

contradicting alibi witnesses), aff'd, 189 S.W.3d 279 (Tex. Crim. App. 2006).

      The State relied on Yvonne’s repeated statements to identify Houston as

her assailant. Yvonne identified Houston as the assailant in her initial 9-1-1 call.

The first officer on the scene testified that Yvonne identified Houston as her

assailant. Yvonne later identified Houston as the assailant to a detective while at

the hospital. Yvonne maintained at trial that Houston was her assailant. Her

identification of Houston as her assailant was sufficient for a jury to believe

beyond a reasonable doubt that he was the perpetrator. See Ford, 509 S.W.2d

at 318; Kesaria, 148 S.W.3d at 640; see also Johnson v. State, 176 S.W.3d 74,

78 (Tex. App.—Houston [1st Dist.] 2004, pet. ref'd) (“Although appellant

presented an alibi defense, what weight to give contradictory testimonial

evidence is within the sole province of the jury, as it turns on an evaluation of

credibility and demeanor.”).

      At trial, Houston relied on his mother’s testimony to assert that he was at

her house—not at the scene of the crime—during the assault. On appeal, he


                                         13
argues that his mother, as a former Tarrant County supervisor and a postdoctoral

fellow, was more credible than Yvonne.           The jury, however, had the sole

authority to resolve conflicts in the testimony and to weigh the evidence,

including the relative credibility of the witnesses. See Jackson, 443 U.S. at 319,

99 S. Ct. at 2789; Jenkins, 493 S.W.3d at 599; Johnson, 176 S.W.3d at 78.

Disregarding or otherwise discounting the alibi testimony of Houston’s mother

was well within the jury’s credibility prerogative.4

      Viewing the evidence in the light most favorable to Houston’s conviction,

we conclude that a rational factfinder could have found him guilty. See Jackson,


      4
       As the late Irving Younger observed in his classic discussion of the “nine
pigeonholes” of impeachment, the motive for a loving mother to prevaricate on
behalf of an accused child is a fertile area for prosecutorial cross-examination:

             Assume that the witness, an elderly woman, has testified in
      support of the defendant’s alibi in a criminal case. You are the
      prosecutor. The woman has testified that the defendant was with
      her in the movies at the time the bank was robbed. You stand up.
      You have a good-faith basis, of course, and you ultimately say,
      “Well, madam, you are the defendant’s mother, aren’t you?” “Yes, I
      am.”

            Not one question more is necessary; even a beginner could
      recognize it. No jury is going to believe that woman’s testimony.
      She is the defendant’s mother. . . . The woman has [a] . . .
      predisposition in favor of her son and an emotional stake in the
      outcome.

Irving Younger, The Advocate’s Desk Book: The Essentials of Trying a Case, at
263–64 (Prentice Hall Law & Business 1989); see also Evans v. State, 202
S.W.3d 158, 163 (Tex. Crim. App. 2006) (explaining that a jury is not required to
accept a defendant’s mother’s uncontroverted alibi testimony because “[s]he is,
after all, the defendant’s mother”).


                                          14
443 U.S. at 319, 99 S. Ct. 2789; Jenkins, 493 S.W.3d at 599. We overrule his

second point.

                                Conclusion

      Having overruled both of Houston’s points, we affirm the trial court’s

judgment.



                                              /s/ Wade Birdwell
                                              WADE BIRDWELL
                                              JUSTICE

PANEL: WALKER, MEIER, and BIRDWELL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: March 1, 2018




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