Affirmed as Modified and Opinion Filed January 19, 2018




                                         S   In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      No. 05-16-00925-CR

                             EUGENE CAMARILLO, Appellant
                                         V.
                             THE STATE OF TEXAS, Appellee

                      On Appeal from the Criminal District Court No. 7
                                   Dallas County, Texas
                           Trial Court Cause No. F15-24066-Y

                             MEMORANDUM OPINION
                          Before Justices Francis, Evans, and Boatright
                                   Opinion by Justice Francis
       A jury convicted Eugene Camarillo of aggravated assault with a deadly weapon and

assessed punishment, enhanced by a prior felony conviction, at forty-five years in prison. In six

issues, appellant complains (1) the trial court erred by giving supplemental instructions to the

jury during deliberations and by denying his requests for a mistrial, (2) the evidence is legally

insufficient to support the jury’s rejection of his claim of self-defense, and (3) the trial court

erred by failing to instruct the jury on the lesser-included offense of assault. For reasons that

follow, we overrule appellant’s issues. The State has notified us of two errors in the judgment.

We modify the trial court’s judgment to correct those errors and affirm the judgment as

modified.
        Leticia Cermenio and Louis Granado ended their relationship after dating for twelve

years. They remained friends, and Granado also stayed in contact with Cermenia’s teen-age

daughter, A.C., with whom he was particularly close. In October 2014, Cermenio began dating

appellant. Evidence was conflicting as to whether the two were still together in May 2015 when

Cermenio allowed Granado to stay at her home temporarily because he had no place to live.

Regardless, Cermenio did not tell appellant that Granado was staying with her.

        On June 4, 2015, Cermenia told Granado she wanted him to leave her house by that

afternoon. After Granado got off work, he went back to the house. Cermenia was not there.

A.C. had invited several friends over to practice a dance for her upcoming quinceanera so

Granado went to Cermenia’s bedroom to allow the children to practice in the living room. He fell

asleep on the bed while washing clothes and watching television.

        When A.C.’s friends began arriving, two of them saw a man suspiciously walking around

the house, peering through the windows. When the man saw them, he walked off. About fifteen

minutes later, the man jumped the backyard fence and burst through the back door into the

house. The girls testified the man was the same person who had been looking through the

windows. A.C. identified the man as appellant.

        A.C. said appellant looked angry when he entered the house, said nothing, and walked

quickly down the hallway to her mother’s bedroom.          A.C. “heard yelling” and followed

appellant. When she opened the bedroom door, she saw Granado standing in the far corner of

the room holding his chest; she said he looked scared. Appellant was standing in another area of

the room and he looked angry. A.C. ordered appellant to leave. As he was leaving, she noticed

he had a pocket knife in his hand with blood on the blade. A.C. said appellant “jerked” the knife

at her. After appellant left, A.C. realized Granado had been stabbed in the chest. She told her

friends to call 911.

                                              –2–
       Granado testified he was asleep when he heard the bedroom door open and then felt a jab

to his chest, which “knocked the air” out of him. Granado rolled off the bed to the corner of the

room to figure out what was going on. He looked down and saw blood coming from his chest

and looked up to see a man, later identified as appellant, holding a pocket knife. Granado

realized appellant had stabbed him. Appellant said something “like, do you want to “F” with my

girlfriend, or do you want to “F” with me?”

       Granado said he was in fear for his life and believed appellant might have “finished [him]

off” if A.C. had not rushed into the room. Granado was transported to the hospital, where he

stayed for two weeks. He sustained a stab wound to his chest that punctured his lung and missed

his heart by an inch. He had two other stab wounds, one to his elbow and another to his upper

back left leg. Granado said he had never seen the knife appellant used to stab him. Granado

carried a utility knife for his work as an electrician but said he did not have it with him when he

was attacked. A crime scene photograph showed the utility knife on the ironing board in the

bedroom. On cross-examination, he agreed a photograph seemed to show blood dripping down

the wall near the ironing board, but he denied using his knife in the attack.             He also

acknowledged he did not tell police in his statement that he was sleeping at the time of the attack

and agreed photographs appear to show a struggle occurred.

       Police on the scene saw blood in the entry way and in the bedroom. Detective J.D.

Hammett said he visited appellant in the hospital and saw defensive wounds on this arms. He

interviewed Cermenia and the other people at the house that day. Appellant was eventually

arrested four months later at Cermenia’s house.

       Cermenia testified for the defense. She said she and appellant were in a relationship and

she considered him her husband. She was afraid of Granado because of her past history with him

and told appellant about Granado’s reputation for being violent. Cermenia told the jury it was

                                               –3–
her understanding Granado attacked appellant with Granado’s knife; the description of the knife

sounded like one owned by Granado. She and appellant were dating in June 2015 and he had

permission to be in her house.

       Cermenia’s testimony conflicted with her statement given to the police two weeks after

the stabbing. In that statement, she blamed appellant for the stabbing. She told police she

stopped seeing him a month earlier after asking him to leave a party. She said appellant wanted

to be with her all the time and she “didn’t have time for that.” At trial, she said she gave the

police the statement blaming appellant because of her fear of Granado but acknowledged never

telling the police or prosecutors of that fear. She denied changing her story after appellant

learned what she had told the police.

       In his fifth issue, appellant challenges the sufficiency of the evidence to support the jury’s

rejection of his self-defense claim. Appellant argues Granado’s testimony that he was the victim

of an unprovoked attack is not credible and that it was a reasonable deduction from the evidence

that appellant used Granado’s knife in self-defense. As support, he relies on (1) Granado’s

testimony that he had a pending criminal case in Dallas County that prosecutors had agreed to

dismiss after a certain period of time and certain conditions and (2) Cermenia’s testimony that

Granado had a violent reputation, the description of the knife used to stab Granado sounded like

a knife that belonged to Granado, and it was her understanding that Granado attacked appellant.

Finally, he argues A.C. and her friends were not in the bedroom and could not testify as to what

actually occurred.

       As charged in this case, a person commits an assault if he intentionally or knowingly

causes bodily injury to another. TEX. PENAL CODE ANN. § 22.01(a)(1) (West Supp. 2017). An

assault becomes aggravated when the person uses or exhibits a deadly weapon during the

commission of an assault. Id. § 22.02(a)(2) (West 2011).

                                                –4–
       With certain exceptions, a person is justified in using force against another when and to

the degree he reasonably believes the force is immediately necessary to protect himself against

the other’s use or attempted use of unlawful force. Id. § 9.31(a). A person is justified in using

deadly force against another (1) if he would be justified in using force against another under

section 9.31 and (2) when and to the degree he reasonably believes the deadly force is

immediately necessary to protect himself against the other's use or attempted use of unlawful

deadly force. Id. § 9.32(a); see also Hamel v. State, 916 S.W.2d 491, 493 (Tex. Crim. App. 1996)

(term “reasonably believes” in section 9.32 encompasses traditional holding that suspect is

justified in defending against danger as he reasonably apprehends it). “Deadly force” means

force that is intended or known by the actor to cause, or in the manner of its use or intended use

is capable of causing, death or serious bodily injury.      TEX. PENAL CODE ANN. § 9.01(3).

“Reasonable belief” means a belief that would be held by an ordinary and prudent person in the

same circumstances as the actor. Id. § 1.07(a)(42) (West Supp. 2017).

       The defendant has the initial burden of producing evidence to raise self-defense. Zuliani

v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003); Saxton v. State, 804 S.W.2d 910, 914

(Tex. Crim. App. 1991). If the defendant produces some evidence, the State has the burden of

persuasion to disprove the raised defense. Zuliani, 92 S.W.3d at 594; Saxton, 804 S.W.2d at 914.

The State is not obligated to offer evidence refuting a claim of self-defense; rather, the State is

required to prove its case beyond a reasonable doubt. Zuliani, 92 S.W.3d at 594; Saxton, 804

S.W.2d at 913–14. If the jury finds the defendant guilty, then it implicitly finds against the

defensive theory. Zuliani, 97 S.W.3d at 594.

       In reviewing the sufficiency of the evidence to support the factfinder’s rejection of self-

defense, we do not look at whether the State presented evidence refuting self-defense. Rather,

we determine whether, after reviewing all the evidence in the light most favorable to the verdict,

                                               –5–
any rational trier of fact would have found the essential elements of the offense beyond a

reasonable doubt and also would have found against the appellant on the self-defense issue

beyond a reasonable doubt. Saxton, 804 S.W.2d at 914. In making this review, we keep in mind

that the trier of fact is the sole judge of the weight and credibility of the evidence. See Kirk v.

State, 421 S.W.3d 772, 776 (Tex. App.—Fort Worth 2014, pet. ref’d).

       Here, the evidence showed appellant went to Cermenia’s house and peered through the

windows before jumping the backyard fence and bursting through the back door. He stalked

down the hallway to the bedroom where Granado said he was sleeping and stabbed him in the

chest. Just moments later, A.C. went into the bedroom to find an angry appellant and an injured

Granado. From this evidence, a rational jury could have concluded appellant went to Cermenia’s

home with a knife and, in an unprovoked attack, stabbed Granado. Although appellant’s defense

was that Granado attacked him with Granado’s knife, the jury could, and did, reject his self-

defense claim after resolving any conflicts and weighing the witnesses’ credibility. Reviewing

all the evidence, we conclude a rational jury would have found the essential elements of the

offense beyond a reasonable doubt and also would have found against the appellant on the self-

defense issue beyond a reasonable doubt. We overrule the fifth issue.

       In his sixth issue, appellant contends the trial court erred in refusing to submit a jury

instruction on the lesser-included offense of assault. Appellant argues that with the instruction,

the jury would have been allowed to believe he went to the “confrontation empty-handed and

assaulted Granado, but did so without the intent to use a deadly weapon.” He contends this

“would have allowed the jury to believe the testimony that the deadly weapon belonged to

Granado and that appellant came to assault Granado, but that he did so without a weapon.”

       A defendant is entitled to an instruction on a lesser-included offense if the proof

necessary to establish the charged offense also includes the lesser offense and if the record

                                               –6–
contains some evidence that would permit a rational jury to find that, if the appellant is guilty, he

is guilty only of the lesser offense. Cavazos v. State, 382 S.W.3d 377, 382 (Tex. Crim. App.

2012). The second step is a question of fact and is based on evidence presented at trial. Id. at

383. A defendant is entitled to such an instruction if some evidence exists from any source

raising the issue, regardless whether the evidence is weak, impeached, or contradicted. Id. We

review the trial court’s decision for an abuse of discretion. Threadgill v. State, 146 S.W.3d 654,

666 (Tex. Crim. App. 2004).

       Here, the difference between the charges of assault and aggravated assault is whether a

deadly weapon was used or exhibited. And, there is no evidence, from any source, that appellant

did not use or exhibit a deadly weapon. The evidence showed appellant stabbed Granado

multiple times, including a stab wound to his chest that punctured his lung and narrowly missed

his heart. Appellant’s argument is premised on the theory that the knife belonged to Granado

and he did not go into the room with the intent on stabbing Granado. But, regardless of who the

knife belonged to, the evidence showed appellant used or exhibited it during the offense.

Because the record does not support the theory that appellant caused Granado bodily injury but

did not use a deadly weapon, the trial court correctly determined assault was not a valid, rational

alternative to the charged offense. We overrule the sixth issue.

       The remaining four issues involve supplemental instructions given to the jury once it

indicated it could not reach a verdict. Appellant argues the instructions pressured a hold-out

juror to change his or her vote to guilty, thus coercing a unanimous decision. He argues the trial

court should have instead granted a mistrial. After reviewing the record, we cannot agree.

       The record shows the jury began deliberating on a Friday afternoon at 4:40 p.m. At 6

p.m., the trial court went on the record and read the jury’s first note: “Does this have to be a

unanimous decision? We are at 11 to 1.” The court proposed the following response: “Yes, your

                                                –7–
verdict must be unanimous. You have received all the law and evidence in this case. Please

continue your deliberations.” Defense counsel objected the response implied “that one believes

one way that is different from the eleven” and “has to change his or her vote.” Defense counsel

suggested the court submit, “You have all the instructions you need in the Court’s charge.” The

trial court overruled the objection and gave the instruction.

         The jury then deliberated from 6:10 p.m. to 7 p.m., before sending a second note:

“Judge, we are still at 11/1 guilty. How do we move forward, please?” With no objections, the

trial court responded as follows:

                 Members of the jury, if this jury finds itself unable to arrive at a
         unanimous verdict, it will be necessary for the Court to declare a mistrial and
         discharge the jury. The indictment will still be pending, and it is reasonable to
         assume that the case will be tried again before another jury at some future time.
         Any such future jury will be empaneled in the same way this jury has been
         empaneled and will likely hear the same evidence which has been presented to
         this jury.

                 With this additional instruction, you are requested to continue your
         deliberations in an effort to arrive at a verdict that is acceptable to all members of
         the jury, if you can do so without doing violence to your conscience. Don’t do
         violence to your conscience but continue deliberating.

         After sixteen minutes of further deliberations, the jury sent its third note: “Judge, we

apologize. We’re not able to arrive at a unanimous decision. However, the one person that

strongly feels Eugene is not guilty may suffer violence to their conscience if they change their

mind.”     The trial judge decided to send the jury home for the weekend and return at 9 a.m.

Monday, stating she did not believe an Allen charge was necessary “at this point.” Defense

counsel asked for a mistrial. The judge denied the motion, stating, “They just started deliberating

at 4:40. It’s 7:15 now. I’ll allow them to deliberate on Monday. And depending on when they

either come back or send out another note or what it says, I’ll entertain that.”

         The jury returned the following Monday morning and sent the following note: “Is all the

blood on the bed from Louis? Did Eugene sustain any injuries?” Without objection, the trial

                                                  –8–
court responded that the jury had received all the law and evidence in the case and to continue

deliberating.

       After continuing deliberations, the jury sent its final note, which read: “Judge, once

again, we apologize. We are not able to arrive at a unanimous decision. We will have to allow

another jury to try this case.” The note is time-stamped 10:10 a.m. The trial judge stated her

intent to respond with an Allen charge. Defense counsel objected, saying it sounded from the

language of the note that “they have committed themselves to being deadlocked,” and requested

a mistrial. The judge denied the mistrial, but said if the jury had no resolution after a “reasonable

period,” she would reconsider the motion.        At 10:50 a.m., the judge issued the following

supplemental charge:

       MEMBERS OF THE JURY;

       This case has been tried very ably by both sides, and all the evidence either side
       has brought has been placed before you for your consideration, and a Jury must
       decide this case.

       You have been selected by a very careful process of selection and have listened
       attentively and observed carefully the evidence throughout the trial.

       Although the verdict of the Jury must represent the opinion of each individual
       juror, it by no means follows that the opinions of individual jurors held at one
       time may not be changed through jury deliberations by conference with fellow
       jurors. The very object of the jury system is to secure unanimity by comparison
       of views and consideration of the opinions of one’s fellow jurors. Each juror
       should listen, with deference, to the arguments of the other jurors, and no juror
       should go into the Jury Room with a blind determination that the verdict of the
       entire jury should represent his or her opinions of the case or with closed ears to
       the arguments of other jurors equally honest, intelligent and dedicated. Do not do
       injustice to your own personal opinions but do listen and consider the opinions of
       your fellow jurors in your deliberations upon a unanimous verdict.

       If this jury finds itself unable to arrive at a unanimous verdict, it will be necessary
       for the Court to declare a mistrial and discharge the jury. The indictment will still
       be pending, and it is reasonable to assume that the case will be tried again before
       another jury at some future time. Any such future jury will be impaneled in the
       same way this jury has been impaneled and will likely hear the same evidence
       which has been presented to this jury. The questions to be determined by that jury
       will be the same questions confronting you, and there is no reason to hope the
       next jury will find these questions any easier to decide than you have found them.
                                                  –9–
         The law provides that the jury shall be kept together for such a time as to render it
         altogether improbable that it can agree, and only the Judge of this Court can make
         that determination.

         With this additional instruction, you are instructed to continue deliberations in an
         effort to arrive at a verdict that is acceptable to all members of the jury, if you can
         do so without doing violence to your conscience. Don’t do violence to your
         conscience, but continue deliberating.

The jury returned a guilty verdict twenty-five minutes later, at 11:15 a.m.

         In his first issue, appellant contends the trial court erred in overruling his objection to the

supplemental instruction given after the first jury note asked whether the decision had to be

unanimous and informing the court of an 11-1 split. The instruction informed the jury the

verdict had to be unanimous. A jury in a criminal case must be unanimous in finding every

constituent element of the charged offense. See Pizzo v. State, 235 S.W.3d 711, 714 (Tex. Crim.

App. 2007). Thus, the trial court’s response to the first jury note correctly responded to the

jury’s question.     Additionally, the trial court properly referred the jury to its previous

instructions, stating they “received all the law and evidence in this case.” We overrule the first

issue.

         The remaining three issues concern the trial judge’s actions once the jury informed her it

was deadlocked. In his second and third issues, appellant complains the trial judge erred in

denying his motions for mistrial after (1) the jury’s third note saying it was deadlocked and

stating “one juror would suffer violence to their conscience if they were to change their mind”

and (2) after the jury’s fourth note in which it again stated they were deadlocked and unable to

arrive at a unanimous decision, and that another jury would have to try the case. In his fourth

issue, he contends the trial judge erred in overruling his objection to the Allen instruction given

after the fourth jury note because it was “coercive” and violated due process and his right to a

fair trial under the United States Constitution. He does not separately address these issues but

argues them as one.

                                                 –10–
       An appellate court reviews a trial court’s ruling on a motion for mistrial for an abuse of

discretion and must uphold the ruling if it is within the zone of reasonable disagreement. Ladd v.

State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). After a case is submitted to the jury, the court

may, in its discretion, discharge the jury and declare a mistrial where it has deliberated so long

that it becomes altogether improbable that it will agree. TEX. CODE CRIM. PROC. ANN. art. 36.31

(West 2006); Montoya v. State, 810 S.W.2d 160, 167 (Tex. Crim. App. 1989); Draper v. State,

335 S.W.3d 412, 416 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d). However, there is no

time limit on the length of time a jury may deliberate. Draper, 335 S.W.3d at 416. Length of

time the jury may be held for deliberation rests in the trial court’s discretion. Montoya, 810

S.W.2d at 166. When reviewing the trial court discretion in this regard, we consider the length

of the trial and amount of evidence presented to the jury. Howard v. State, 941 S.W.2d 102, 120

(Tex. Crim. App. 1996), overruled on other grounds by Easley v. State, 424 S.W.3d 535 (Tex.

Crim. App. 2014).

       The record shows the jury first indicated trouble reaching a verdict after deliberating only

one hour and twenty minutes, asking the court if its verdict needed to be unanimous. Over the

next sixty-six minutes, the jury sent out two more notes, both indicating jurors were stuck on an

11-1 vote. After the second of these notes, appellant moved for mistrial, but the trial court

denied that request and instead sent the jury home for the weekend, noting they had been

deliberating only two and a half hours. A trial court is not bound to declare a mistrial at the first

sign of jury impasse. Howard,, 941 S.W.2d at 120. The jury returned the following Monday and

sent a note regarding the evidence. After the trial court responded, they deliberated for no more

than an hour before sending a note informing the court they were unable to arrive at a unanimous

decision and another jury would have to hear the case. At this point, the trial court gave a full

Allen charge and denied defense counsel’s request for a mistrial. The trial in this case took three

                                               –11–
days, including two days of testimony with eight witnesses and fourteen exhibits. The jury had

to decide whether appellant’s knife attack on Granado was in self-defense. Given the nature of

the case, the length of the trial, and the amount of evidence presented, we cannot conclude the

trial court abused its discretion by denying the motions for mistrial and ordering the jury to

continue deliberations. See Melancon v. State, 66 S.W.3d 375, 383–84 (Tex. App.—Houston

[14th Dist.] 2001, pet. ref’d) (op. on reh’g en banc) (no abuse of discretion in ordering jury to

continue deliberating when it reported deadlock after four and a half hours in aggravated robbery

trial); Matthews v. State, 691 S.W.2d 2, 5 (Tex. App.––Beaumont 1984), aff'd on other

grounds, 708 S.W.2d 835 (Tex. Crim. App. 1986) (no abuse of discretion in denying motion for

mistrial when jury reported deadlock after ten hours of deliberation following trial with

seventeen witnesses, forty-nine exhibits, and multiple issues for the jury to resolve); Moses v.

State, No. 14–99–00377–CR, 2004 WL 78162, at *1 (Tex. App.––Houston [14th Dist.] Jan. 20,

2004, no pet.) (mem. op., not designated for publication) (no abuse of discretion in denying

motion for mistrial when jury reported deadlock after eight hours of deliberation following four-

and-a-half-hour bribery trial).

       Nor can we conclude the trial court erred by giving the full Allen charge after the jury had

been deliberating for three and a half hours.           An Allen charge is a supplemental charge

sometimes given to a jury that declares itself deadlocked. Allen v. United States, 164 U.S. 492,

501 (1896); Barnett v. State, 189 S.W.3d 272, 276 n.13 (Tex. Crim. App. 2006). The charge

reminds the jury that if they are unable to reach a verdict, a mistrial will result, the case will still

be pending, and there is no guarantee that a second jury would find the issue any easier to

resolve. Allen, 164 U.S. at 501; Barnett, 189 S.W.3d at 276 n.13. While such a charge is

permissible in both the federal system and Texas courts, a trial court must be careful to word and

administer the charge in a noncoercive manner. Barnett, 189 S.W.3d at 276 n.13.

                                                 –12–
          An Allen charge jury instruction will constitute reversible error only if, on its face, it is so

improper as to render jury misconduct likely or jury misconduct is demonstrated to have

occurred in fact. West v. State, 121 S.W.3d 95, 107 (Tex. App.—Fort Worth 2003, pet. ref’d).

To prevail on a complaint that an Allen charge is coercive, an accused must show that jury

coercion or misconduct likely occurred or occurred in fact. Id. An Allen charge is unduly

coercive and therefore improper only if it pressures jurors into reaching a particular verdict or

improperly conveys the court’s opinion of the case. Arrevalo v. State, 489 S.W.2d 571 (Tex.

Crim. App. 1973); West, 121 S.W.3d at 107–08.

          Although appellant argues the judge “influenced the jury’s vote by telling one juror that

he or she had to change his principled moral decision” and coerced unanimous decision, the

record does not support his argument. While the judge clearly knew the numeric division and

the one vote was to acquit, the charge did not pressure the one holdout juror into reaching a

particular verdict.     The charge did not identify the holdout juror or suggest, implicitly or

explicitly, that he was the person who needed to reexamine his perspective. Howard, 941

S.W.2d at 123–24 (although trial judge was aware of the numerical division when he gave

supplemental Allen charge, he “did not directly address the minority juror and did not shade the

instruction with coercive nuance;” thus, in context, the charge was noncoercive). Rather, the

instruction stated the verdict represented “the opinion of each individual juror” while

acknowledging that opinions can change through the deliberation process. It instructed all jurors

to listen, with deference, to the arguments of other jurors, but to do so without doing injustice to

one’s own opinions. It also, appropriately, informed the jury that if it did not reach a decision,

another jury would be impaneled to decide the same questions.                    Having reviewed the

supplemental charge, we conclude it was not coercive. We overrule the second, third, and fourth

issues.

                                                   –13–
       Finally, although the record reflects appellant pleaded true to an enhancement paragraph

alleged in the indictment, the judgment lists the notation “N/A” in the sections for “Plea to 1st

Enhancement Paragraph” and “Findings of 1st Enhancement Paragraph.” We have the authority

to correct a judgment below to make the record “speak the truth” when we have the necessary

data and information to do so. Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—Dallas 1991,

pet. ref’d).   Accordingly, we modify the judgment to reflect appellant pleaded true to the

enhancement paragraph and the paragraph was found true.

       As modified, we affirm the trial court’s judgment.




                                                  /Molly Francis/
                                                  MOLLY FRANCIS
                                                  JUSTICE

Do Not Publish
TEX. R. APP. P. 47.2(b)
160925F.U05




                                              –14–
                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

EUGENE CAMARILLO, Appellant                         On Appeal from the Criminal District Court
                                                    No. 7, Dallas County, Texas
No. 05-16-00925-CR         V.                       Trial Court Cause No. F-1524066-Y.
                                                    Opinion delivered by Justice Francis;
THE STATE OF TEXAS, Appellee                        Justices Evans and Boatright participating.

        Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:

       To reflect a plea of True and a finding of True to the 1st Enhancement Paragraph.

As REFORMED, the judgment is AFFIRMED.


Judgment entered January 19, 2018.




                                             –15–
