












 
 
 
 
 
 
                             NUMBER 13-02-620-CR
 
                         COURT
OF APPEALS
 
               THIRTEENTH
DISTRICT OF TEXAS
 
                  CORPUS
CHRISTI - EDINBURG
___________________________________________________________________
 
HUGO HERNANDEZ,                                                 Appellant,
 
                                           v.
 
THE STATE OF TEXAS,                                              Appellee.
___________________________________________________________________
 
                  On
appeal from the 107th District Court
                          of Cameron County, Texas.
___________________________________________________  _______________
 
                        DISSENTING
OPINION
 
                     Before
Justices Yañez, Rodriguez, and Garza 
                        Dissenting
Opinion by Justice Rodriguez 
 




I respectfully
dissent from the majority's disposition of the third issue.  In that issue, appellant contends the trial
court committed reversible error by allowing the State to reopen testimony
during the punishment phase of the trial after the State and appellant had
closed.  The majority concludes that
appellant was harmed because the State deviated from the order of procedure set
out in article 36.01.  See Tex. Code Crim. Proc. Ann. art.
36.01(a) (Vernon Supp. 2004-05).  I agree
there was a deviation that the State did not cure.  However, I would conclude that, under the
circumstances of this case and the precedent of this Court, appellant failed to
preserve the State's error.  Accordingly,
I dissent and would affirm the judgment of the trial court.
I.  Background
At the beginning
of the punishment phase, without first arraigning appellant on the enhancement
counts and without appellant entering a plea to the enhancements, the State
introduced testimony from four witnesses. 
After the presentation of the witnesses and after both sides closed and
rested, the State informed the court that it forgot to request that the Court
arraign appellant on the enhancement counts. 
The State asked leave of court to reopen the evidence in the punishment
phase so that appellant could be arraigned on the enhancement counts. Appellant
objected as follows:
Both sides rested. 
Both sides closed.  And to put the
cart before the horse or the horse before the cart is their error. . . .  At this time we stand forward to go on the punishment,
and the [c]ourt should then instruct the jury not to consider the enhancement
counts and go forward with what we have.
 
The defense strenuously objects to the . . .
[S]tate's request . . . to reopen for purposes of arraigning the
defendant.  That should have been done
first.  They failed to do so.  Now they're stuck with it.
 




The trial court overruled the
objection and granted the State's request to reopen "for the sole purpose
of enhancement counts and the plea[d]ing to the enhancement counts."  After the State read the indictment and
appellant entered his plea of not true, appellant moved to dismiss the
enhancement counts because "it was not done properly."  The trial court denied appellant's motion,
and the charge was read to the jury. 
II.  Analysis
The correct procedure to be followed after a tardy
reading of the indictment and the entering of a plea has been long established:
upon learning of the error, the indictment is read to the jury, the accused
enters a plea, and the State reintroduces the evidence; or the parties may
stipulate to the evidence.  When this is
done, the issue is joined and a trial on the issue may be held.
 
Limon v. State, 838 S.W.2d 767, 768-69 (Tex. App.BCorpus Christi 1992, pet. ref'd) (citing Warren v
State, 693 S.W.2d 414, 416 (Tex. Crim. App. 1985) (en banc); Welch v.
State, 645 S.W.2d 284, 285 (Tex. Crim. App. 1983); Trammell v. State,
445 S.W.2d 190,  193-94 (Tex. Crim. App.
1979)); see Tex. Code Crim. Proc.
Ann. art. 36.01(a) (Vernon Supp. 2004-05); Castillo v. State, 530
S.W.2d 952, 954 (Tex. Crim. App. 1976). 
"However, in the absence of an objection directing the court to the
correct procedure, [appellate courts have held] that the error was not preserved,
under the circumstances . . . presented." 
Limon, 838 S.W.2d at 769 (quoting Castillo, 530 S.W.2d at
954).




In this case,
when the State was allowed to reopen, it cured only part of its error.  The State read the enhancement paragraphs of
the indictment into the record, and appellant entered his plea of not
true.  The State did not reintroduce the
evidence from the punishment phase that was admitted prior to the reading of
the indictment and entry of the plea and prior to the State and appellant
closing, and no stipulation was entered that the testimony would be the same
and could be considered by the jury.  See
Welch, 645 S.W.2d 285-86 (citing Trammell, 445 S.W.2d at 193-94);
see also Limon, 838 S.W.2d at 768-69. 
However, appellant objected only that the process had not been done
properly and asked the court to instruct the jury not to consider the
enhancement counts.  Appellant did not
direct the trial court to the correct procedure to be followed regarding the
evidence; that the evidence introduced before the plea be reintroduced or
stipulated to by appellant.  See Limon,
838 S.W.2d at 769; cf. Castillo, 530 S.W.2d at 954.  Appellant did not ask the court to instruct
the jury to disregard that evidence.  See
Dill v. State, 697 S.W.2d 702, 709 (Tex. App.BCorpus
Christi 1985, pet. ref'd) (holding error preserved when defendant asked that
evidence heard before the plea be removed from the jury's consideration).  Therefore, although the State failed to cure
its error in its entirety, and I certainly do not condone such, under the
circumstances of this case and following the precedent of the court of criminal
appeals and of this Court, I would conclude that appellant did not preserve
error.  Accordingly, I would overrule
this issue.
III.  Conclusion
Agreeing with the
disposition of all other issues, I would affirm the judgment of the trial
court.                                                                                          
NELDA
V. RODRIGUEZ
Justice
 
Publish.
Tex.
R. App. P.
47.2(b).
 
Dissenting Opinion
delivered and filed
this 30th day of
November, 2005.                          

