                                                                      ACCEPTED
                                                                  01-14-00746-CR
                                                       FIRST COURT OF APPEALS
                                                               HOUSTON, TEXAS
                                                             10/9/2015 8:44:22 AM
                                                            CHRISTOPHER PRINE
                                                                           CLERK

        No. 01-14-00746-CR
                 In the
                                                 FILED IN
       Court of Appeals for the           1st COURT OF APPEALS
  First District of Texas at Houston          HOUSTON, TEXAS
                                          10/9/2015 8:44:22 AM
     ♦                          CHRISTOPHER A. PRINE
                                                  Clerk
             No. 67366
     In the 149th District Court
      Brazoria County, Texas
     ♦
      ZACKERY TERRELL
           Appellant
              V.
     THE STATE OF TEXAS
           Appellee
     ♦
  STATE’S APPELLATE BRIEF
     ♦
                      JERI YENNE
                      District Attorney
                      Brazoria County
                      MICHELLE R. TOWNSEND
                      Assistant District Attorney
                      Brazoria County
                      State Bar Number: 24049295
                      BRIAN HRACH
                      RICHARD MARTIN
                      Assistant District Attorneys
                      Brazoria County
                      111 E. Locust, Suite 408A
                      Angleton, Texas 77515
                      Telephone: (979) 864-1230
                      Facsimile: (979) 864-1525
ORAL ARGUMENT NOT REQUESTED
                    IDENTIFICATION OF THE PARTIES

      Pursuant to TEX. R. APP. P. 38.1(a), a complete list of the names of all

parties and counsel follows:

      Appellant or criminal defendant:          Zachery Terrell

      Counsel for Appellant on Appeal:          Perry R. Stevens
                                                 Attorney at Law
                                                603 E. Mulberry
                                                Angleton, Texas 77515

      Counsel for the State on Appeal:          Jeri Yenne,
                                                  District Attorney
                                                Michelle R. Townsend,
                                                  Assistant District Attorney
                                                111 E. Locust, Suite 408A
                                                Angleton, Texas 77515

      Counsel for Appellant at Trial:           Arthur Washington,
                                                 Attorney at Law
                                                3730 Kirby Drive, Suite 1050
                                                Houston, Texas 77098

      Counsel for the State at Trial:           Brian Hrach
                                                Richard Martin,
                                                  Assistant District Attorneys
                                                111 E. Locust, Suite 408A
                                                Angleton, Texas 77515

      Presiding Judge:                          The Hon. Terri Holder




                                         i
                                     TABLE OF CONTENTS

IDENTIFICATION OF THE PARTIES ................................................................... i

TABLE OF CONTENTS .......................................................................................... ii

INDEX OF AUTHORITIES.................................................................................... iii

STATEMENT OF THE CASE ................................................................................ ix

STATEMENT REGARDING ORAL ARGUMENT ............................................. ix

STATEMENT OF FACTS ........................................................................................1

SUMMARY OF THE ARGUMENTS ......................................................................4

REPLY TO APPELLANT’S FIRST POINT OF ERROR ........................................5

        Appellant contends that he received ineffective assistance of counsel
        due to an alleged failure by trial counsel to advise him of the proper
        punishment range. To the contrary, the record establishes that trial
        counsel understood the applicable punishment range and advised
        appellant accordingly. As such, appellant’s first point of error is
        meritless and should be overruled.

REPLY TO APPELLANT’S SECOND POINT OF ERROR ...................................9

        Appellant asserts that by assessing his punishment at imprisonment
        for 50 years the trial court erred by entering an illegal sentence.
        Because appellant was convicted of an “aggravated” state jail felony
        and pled “true” to enhancement allegations that elevated the
        applicable punishment range to imprisonment for no less than 25
        years or more than 99 years, or life, his arguments are without merit.
        Accordingly, appellant’s second point of error should be overruled.

PRAYER FOR RELIEF ..........................................................................................25

CERTIFICATES OF SERVICE AND COMPLIANCE .........................................26



                                                      ii
                                  INDEX OF AUTHORITIES

Cases

Armendariz v. State,
  529 S.W.2d 525 (Tex. Crim. App. 1975) .............................................................20

Boykin v. State,
 818 S.W.2d 782 (Tex. Crim. App. 1991) ................................................ 14, 17, 18

Brooks v. State,
  642 S.W.2d 791 (Tex. Crim. App. 1982) .............................................................20

Bunton v. State,
 136 S.W.3d 355 (Tex. App.—Austin 2004, pet. ref’d) ........................................17

Cannon v. State,
 668 S.W.2d 401 (Tex. Crim. App. 1984) ...............................................................6

Colyer v. State,
 428 S.W.3d 117 (Tex. Crim. App. 2014) ...............................................................7

Curry v. State,
 91 S.W.3d 360 (Tex. App.—Texarkana 2002, no pet.) .........................................8

Curry v. State,
 910 S.W.2d 490 (Tex. Crim. App. 1995) .............................................................19

Ex parte Beck,
  769 S.W.2d 525 (Tex. Crim. App. 1989) .............................................................11

Ex parte Brooks,
  847 S.W.2d 247 (Tex. Crim. App. 1993) .............................................................11

Figueroa v. State,
  250 S.W.3d 490 (Tex. App.—Austin 2008, pet. ref’d),
  cert. denied, 555 U.S. 1185 (2009) ......................................................................25




                                                     iii
French v. State,
  830 S.W.2d 607 (Tex. Crim. App. 1992) .............................................................25

Garza v. State,
 298 S.W.3d 837 (Tex. App.—Amarillo 2009, no pet.) (op. on remand) .............25

Girnus v. State,
 595 S.W.2d 118 (Tex. Crim. App. 1980) .............................................................20

Gonzales v. State,
 No. 01-91-00942-CR, 1992 WL 361293 (Tex. App.—Houston [1st Dist.] Dec.
 10, 1992, no pet.) (not designated for publication) ..............................................23

Goodspeed v. State,
 187 S.W.3d 390 (Tex. Crim. App. 2005) ...............................................................5

Grettenberg v. State,
 790 S.W.2d 613 (Tex. Crim. App. 1990) .............................................................11

Harmelin v. Michigan,
 501 U.S. 957 (1991) .......................................................................... 20, 21, 22, 23

Harris v. State,
 656 S.W.2d 481 (Tex. Crim. App. 1983) ...................................................... 20, 22

Hicks v. State,
 15 S.W.3d 626 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d) ...................21

Holmes v. State,
 380 S.W.3d 307 (Tex. App.—Fort Worth 2012, pet. ref’d)...................................9

Hypke v. State,
 720 S.W.2d 158 (Tex. App.—Houston [14th Dist.] 1986, pet. ref’d) .................20

Mahaffey v. State,
 364 S.W.3d 908 (Tex. Crim. App. 2012) .......................................... 14, 15, 17, 18

McFarland v. State,
 928 S.W.2d 482 (Tex. Crim. App. 1996) ...............................................................5



                                                     iv
Mercado v. State,
 718 S.W.2d 291 (Tex. Crim. App. 1986) ...............................................................9

Murray v. State,
 302 S.W.3d 874 (Tex. Crim. App. 2009) .............................................................15

Noland v. State,
 264 S.W.3d 144 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d) ....................19

Nolasco v. State,
 970 S.W.2d 194 (Tex. App.—Dallas 1998, no pet.) ............................................11

Okonkwo v. State,
 398 S.W.3d 689 (Tex. Crim. App. 2013) ...............................................................6

Patterson v. State,
 138 S.W.3d 643 (Tex. App.—Dallas 2004, no pet.) ............................................11

Ponce v. State,
 89 S.W.3d 110 (Tex. App.—Corpus Christi 2002, no pet.) ...................................9

Quintana v. State,
 777 S.W.2d 474 (Tex. App.—Corpus Christi 1989, pet. ref’d) ...........................10

Rhoades v. State,
 934 S.W.2d 113 (Tex. Crim. App. 1996) .............................................................19

Rodriguez v. State,
 614 S.W.2d 448 (Tex. Crim. App. 1981) .............................................................20

Rummel v. Estelle,
 445 U.S. 263 (1980) ...................................................................................... 20, 21

Salinas v. State,
  No. 14-11-00747-CR, 2013 WL 709266 (Tex. App.—Houston [14th Dist.] Feb.
  26, 2013, pet. dism’d) (mem. op., not designated for publication) ........................8

Simpson v. State,
  668 S.W.2d 915 (Tex. App.—Houston [1st Dist.] 1984, no pet.)........... 20, 22, 23



                                                        v
Smallwood v. State,
 827 S.W.2d 34 (Tex. App.—Houston [1st Dist.] 1992, pet. ref’d) ......................21

Smith v. State,
 223 S.W.3d 690 (Tex. App.—Texarkana 2007, no pet.) .....................................25

Smith v. State,
 960 S.W.2d 372 (Tex. App.—Houston [1st Dist.] 1998, pet. ref’d) ....................17

Solem v. Helm,
  463 U.S. 277 (1983) .............................................................................................22

Solis v. State,
  945 S.W.2d 300 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d) ....................19

State v. Mancuso,
  919 S.W.2d 86 (Tex. Crim. App. 1996) ............................................ 14, 15, 17, 18

Stewart v. State,
  732 S.W.2d 398 (Tex. App.—Houston [14th Dist.] 1987, no pet.) .....................20

Strickland v. Washington,
  466 U.S. 668 (1984) ...................................................................................... 5, 6, 8

Swinney v. State,
  828 S.W.2d 254 (Tex. App.—Houston [1st Dist.] 1992, no pet.)........................20

Thomas v. State,
  543 S.W.2d 645 (Tex. Crim. App. 1976) .............................................................20

Thompson v. State,
  9 S.W.3d 808 (Tex. Crim. App. 1999) .......................................................... 5, 6, 8

Villescas v. State,
  189 S.W.3d 290 (Tex. Crim. App. 2006) .............................................................11

Washington v. State,
 326 S.W.3d 302 (Tex. App.—Fort Worth 2010, pet. ref’d).................................17




                                                         vi
Wynn v. State,
 219 S.W.3d 54 (Tex. App.—Houston [1st Dist.] 2006, no pet.)..........................19


Statutes

TEX. GOV’T CODE ANN. § 311.021(2) (Vernon 1995) .............................................15

TEX. GOV’T CODE ANN. § 311.023 (Vernon 1995) .......................................... 14, 17

TEX. GOV’T CODE ANN. § 311.026(a) (Vernon 1995) .............................................15

TEX. PENAL CODE ANN. § 12.33 (West 2011) .........................................................13

TEX. PENAL CODE ANN. § 12.35 (West 2011) .........................................................13

TEX. PENAL CODE ANN. § 12.35(a) (West 2011) .............................................. 15, 16

TEX. PENAL CODE ANN. § 12.35(c) (West 2011) ............................................. passim

TEX. PENAL CODE ANN. § 12.35(c)(1) (West 2011) ......................................... 12, 16

TEX. PENAL CODE ANN. § 12.42(d) (West 2011) ............................................. passim

TEX. PENAL CODE ANN. § 12.42(d) (West Supp. 2014) ..........................................15

TEX. PENAL CODE ANN. § 12.425 (West 2011) ................................................ 13, 15

TEX. PENAL CODE ANN. § 12.425(a) (West 2011) ...................................................16

TEX. PENAL CODE ANN. § 12.425(b) (West 2011) ...................................................16

TEX. PENAL CODE ANN. § 12.425(c) (West 2011) ............................................ 14, 16


Other Authorities

Acts 2011, 82nd Leg., R.S., ch. 834, 2011 Tex. Sess. Law Serv. (West) ...............15




                                                vii
Rules

TEX. R. APP. P. 33.1 .............................................................................................9, 19

TEX. R. APP. P. 38.1(a) ............................................................................................... i

TEX. R. APP. P. 38.1(g) ..............................................................................................1

TEX. R. APP. P. 38.2(a)(1)(B) .....................................................................................1

TEX. R. APP. P. 39.7 ................................................................................................ vii

TEX. R. APP. P. 43.2(b) .............................................................................................25

TEX. R. APP. P. 9.4(g) ............................................................................................. vii

TEX. R. APP. P. 9.4(i)................................................................................................26


Constitutional Provisions

TEX. CONST. art. I, § 13 ............................................................................................19

TEX. CONST. art. II, § 1 ............................................................................................14

U.S. CONST. amend. VIII .........................................................................................19




                                                          viii
TO THE HONORABLE COURT OF APPEALS:

                         STATEMENT OF THE CASE

      Appellant was charged by indictment with the felony offense of possession

of a controlled substance weighing less than one gram. (CR 5). The State further

alleged that appellant had twice before been sequentially convicted of felony

offenses and that a deadly weapon was used or exhibited during the commission of

the charged offense. (CR 5, 34). The jurors found appellant guilty and the judge

sentenced appellant to confinement for 50 years in the Texas Department of

Criminal Justice, Institutional Division. (CR 72-73; RR IV 41; RR V 38-39).

                       ♦


                STATEMENT REGARDING ORAL ARGUMENT

      Appellant has waived oral argument. See TEX. R. APP. P. 9.4(g), 39.7;

(Appellant’s Brief, pg. i). However, should this Court order the parties to argue,

the State requests the opportunity to respond at oral argument. See TEX. R. APP. P.

9.4(g), 39.7.

                       ♦




                                        ix
                           STATEMENT OF FACTS

      Appellant does not challenge the sufficiency of the evidence supporting the

jury’s verdict of guilt or the affirmative finding that a deadly weapon was used

during the commission of the charged offense. Thus, only a brief recitation of

facts concerning the underlying offense is necessary. See TEX. R. APP. P. 38.1(g),

38.2(a)(1)(B).

      An officer stopped appellant’s vehicle for a traffic offense and subsequently

arrested appellant and his passenger for failure to provide a valid driver’s license

and outstanding warrants, respectively.      (RR III 14-22).     An inventory of

appellant’s vehicle prior to it being towed uncovered a pistol, large amounts of

cash, paraphernalia consistent with the manufacture of crack cocaine, trace

amounts of cocaine, and a large volume of liquid codeine and promethazine. (RR

III 23-28, 37, 73, 115-20, 140-48, 162-65, 181-88).

      The indictment charged appellant with the felony offense of possession of a

controlled substance and further alleged that he had twice before been sequentially

convicted of felony offenses. (CR 5). Appellant was also informed that a deadly

weapon finding would be sought at trial. (CR 34).

      Appellant rejected the State’s plea bargain offer and proceeded to trial. (RR

II 14; RR VIII 20, 24-25). Prior to trial, the trial judge, the prosecutor, and

appellant’s trial counsel, discussed the applicable punishment range. (RR II 7-14).
Given appellant’s prior convictions and the allegation a deadly weapon was used

during the commission of the underlying offense, all parties agreed that, should the

jury return a verdict of guilt, the appropriate punishment range was imprisonment

for no less than 25 years or more than 99 years, or life. (CR 5, 34; RR II 7-13).

The jury returned a verdict of guilt and appellant’s case was reset for a punishment

hearing. (CR 72-73; RR IV 41, 48). After the punishment hearing, the trial judge

sentenced appellant to imprisonment for 50 years. (CR 72-73; RR V 38-39).

      Notice of appeal was not timely filed but appellant was granted an out-of-

time appeal by the Court of Criminal Appeals. (CR 166). Subsequently, appellant

filed a motion for new trial. (CR 173-77; RR VIII). The hearing on appellant’s

motion for new trial was conducted more than a year and a half after trial. See (RR

II) (trial commenced March 18, 2013); (RR VIII) (hearing on motion for new trial

held November 24, 2014).         At the hearing, both trial counsel and appellant

testified. See (RR VIII).


      Initially, trial counsel appeared confused as to the applicable range of

punishment. See (RR VIII 14-15, 18-19). But, after refreshing his memory,

counsel ultimately testified that the applicable punishment range he conveyed to

appellant prior to trial was “25 to life.” (RR VIII 18-20, 23-25). Counsel also

testified that he did not object to the form of the State’s notice of its intent to seek

a deadly weapon finding because he understood it to apply in a manner that would


                                           2
elevate appellant’s punishment range from that of a regular state jail felony to that

of a third degree felony. (RR VIII 14-16).

      Appellant claimed that trial counsel never informed him of the possibility

of a deadly weapon finding and that the maximum possible imprisonment ever

discussed was 20 years. (RR VIII 30-33). Appellant also testified that he learned

the applicable punishment range was “25 to life” when the judge allegedly

admonished him as such in the presence of the jury during the trial on guilt. (RR

VIII 33-35, 36-38).

                        ♦




                                          3
                      SUMMARY OF THE ARGUMENTS

      In his first point of error, appellant complains that his trial counsel failed to

advise him of the proper punishment range and therefore provided ineffective

assistance. But the record demonstrates that counsel understood the applicable

punishment range to be imprisonment for no less than 25 years or more than 99

years, or life, and advised appellant accordingly. As such, appellant’s first point of

error is meritless and should be overruled.

      In his second point of error, appellant asserts that the trial court erred by

entering a sentence that exceeds the maximum allowed by law. Appellant posits

this is so because the proper punishment range is imprisonment for no more than

20 years or less than 2 years. To the contrary, appellant was convicted of an

“aggravated” state jail felony and pled “true” to enhancement allegations which

elevated the applicable punishment range to imprisonment for no less than 25 years

or more than 99 years, or life. Because appellant’s sentence of imprisonment for

50 years falls within the applicable punishment range, his second point of error is

without merit and should be overruled.

                        ♦




                                          4
           REPLY TO APPELLANT’S FIRST POINT OF ERROR

      In his first point of error, appellant contends that his trial counsel provided

ineffective assistance by allegedly failing to advise appellant of the proper

punishment range.      But there is ample evidence in the record that counsel

adequately advised appellant of the applicable punishment range.               Thus,

appellant’s first point of error is meritless and should be overruled.

      To prevail on a claim of ineffective assistance of counsel, a defendant must

show: (1) counsel’s performance was deficient and (2) this deficiency was so

prejudicial that it rendered the trial unfair. Strickland v. Washington, 466 U.S.

668, 687 (1984).     Failure to make the required showing of either deficient

performance or sufficient prejudice defeats the ineffectiveness claim. Thompson

v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).

      Allegations of ineffective assistance of counsel “must be firmly founded in

the record” and the record must “affirmatively demonstrate” the meritorious

nature of an appellant’s claim that he received ineffective assistance of counsel.

Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005); McFarland v.

State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996).             The reviewing court

examines the totality of the representation and the particular circumstances of

each case in evaluating the effectiveness of counsel while indulging a strong

presumption that counsel’s conduct falls within the wide range of reasonable


                                           5
professional assistance. Strickland, 466 U.S. at 688-89; Thompson, 9 S.W.3d at

813. Judicial scrutiny of counsel’s performance must be highly deferential and a

defendant carries the burden of proving his claim of ineffective assistance of

counsel by a preponderance of the evidence. Strickland, 466 U.S. at 689; Cannon

v. State, 668 S.W.2d 401, 403 (Tex. Crim. App. 1984).

      Appellant argues his trial counsel was ineffective, claiming that counsel did

not have a full understanding of the punishment range appellant faced and

therefore did not communicate the proper punishment range to him prior to trial.

This allegation is based on trial counsel’s testimony and appellant’s own

testimony during the hearing on his motion for new trial. By focusing only on the

record from the motion for new trial, appellant erroneously ignores the trial

record. See Okonkwo v. State, 398 S.W.3d 689, 693 (Tex. Crim. App. 2013) (the

focus of appellate review is the objective reasonableness of counsel’s actual

conduct in light of the entire record).


      The record shows that prior to trial all parties expressed with clarity their

understanding that the applicable range was no less than 25 years or more than 99

years, or life. (RR II 7-13). The only time trial counsel appeared confused as to

the applicable range of punishment was at the hearing on appellant’s motion for

new trial. See (RR VIII 14-15, 18-19). This hearing was conducted more than a

year and a half after trial. See (RR II) (trial commenced March 18, 2013); (RR


                                          6
VIII) (hearing on motion for new trial held November 24, 2014). Even then, after

refreshing his memory, counsel ultimately testified that the applicable punishment

range he conveyed to appellant prior to trial was “25 to life.” (RR VIII 18-20, 23-

25).

       Contrary to counsel’s testimony, appellant claimed at the hearing on his

motion for new trial that the maximum possible imprisonment ever discussed was

20 years and that trial counsel never informed him of the possibility of a deadly

weapon finding. (RR VIII 30-33). Appellant also testified that he only learned

the applicable punishment range was “25 to life” when the judge allegedly

admonished him as such in the presence of the jury during the trial on guilt. (RR

VIII 33-35, 36-38).

       The trial court judged the credibility of the witnesses at the hearing on

appellant’s motion for new trial. See Colyer v. State, 428 S.W.3d 117, 122 (Tex.

Crim. App. 2014) (at a motion for new trial hearing, the judge alone determines

the credibility of the witnesses). Appellant has not presented any additional

argument or authority to this Court that was not soundly rejected by the trial court.

       In sum, the record demonstrates that at the time of trial, counsel was well

aware of the applicable punishment range and communicated this to appellant.

The pre-trial communications between appellant and his trial counsel concerning

the applicable punishment range are not contained in the record. Appellant’s bare



                                          7
assertions that none occurred, contrary to counsel’s testimony otherwise, do not

support finding that trial counsel was ineffective. See, e.g., Curry v. State, 91

S.W.3d 360, 362 (Tex. App.—Texarkana 2002, no pet.) (appellant’s claim that he

was misinformed regarding the range of punishment and therefore received

ineffective assistance overruled where record did not support such a contention);

Salinas v. State, No. 14-11-00747-CR, 2013 WL 709266, at *4 (Tex. App.—

Houston [14th Dist.] Feb. 26, 2013, pet. dism’d) (mem. op., not designated for

publication) (same).

      Appellant has failed to demonstrate that counsel’s performance was

deficient. See Strickland, 466 U.S. at 687-88; Thompson, 9 S.W.3d at 812-13.

Because failure to make the required showing of either deficient performance or

sufficient prejudice defeats an ineffectiveness claim, appellant’s first point of error

is without merit and should be overruled.

                        ♦




                                            8
         REPLY TO APPELLANT’S SECOND POINT OF ERROR

      In his second point of error, appellant asserts that the trial court rendered a

sentence not authorized by law. By failing to object at the time sentence was

pronounced and foregoing this argument in his motion for new trial, appellant has

waived any alleged error and presents nothing for appellate review.

Error Waived by Failure to Object

      An appellant may not complain of error pertaining to his sentence or

punishment if he has failed to object or otherwise raise error in the trial court.

Mercado v. State, 718 S.W.2d 291, 296 (Tex. Crim. App. 1986). Here, appellant

did not object to his punishment at the time he was sentenced. (RR V 39-40).

Likewise, he did not raise the issue of the legality of his sentence, or make any

argument based on the statutory provisions he now cites in his appellate brief, in

his motion for new trial or at the hearing on said motion. (CR 173-75); see

generally (RR VIII).

      Because appellant failed to object to the trial court’s punishment and

sentence on the grounds alleged in this point of error, any complaint has been

waived and appellant’s second point of error should be overruled. See TEX. R.

APP. P. 33.1; Mercado, 718 S.W.2d at 296; see also Holmes v. State, 380 S.W.3d

307, 308 (Tex. App.—Fort Worth 2012, pet. ref’d); Ponce v. State, 89 S.W.3d 110,

114–15 (Tex. App.—Corpus Christi 2002, no pet.); Quintana v. State, 777 S.W.2d


                                         9
474, 479 (Tex. App.—Corpus Christi 1989, pet. ref’d). But even assuming without

conceded that error was preserved, appellant still cannot demonstrate his sentence

of 50 years is “not authorized by law.”

Appellant Sentenced Within Applicable Range of Punishment

      Appellant was convicted of a state jail felony punishable under section

12.35(c) and he pled true to two enhancement paragraphs contained in the

indictment. (CR 72-73; RR IV 41; RR V 5-7); see also TEX. PENAL CODE ANN. §

12.35(c) (West 2011). Sections 12.35(c) and 12.42(d) of the Penal Code enhanced

his potential punishment range to imprisonment for not less than 25 years or more

than 99 years, or life. TEX. PENAL CODE ANN. §§ 12.35(c), 12.42(d) (West 2011).

Appellant’s sentence of imprisonment for 50 years falls squarely within these

parameters. Accordingly, his argument that the trial court assessed an illegal

sentence is without merit and should be overruled.

      Appellant was tried for the state jail felony offense of possession of a

controlled substance. (CR 5). It was further alleged and proven at trial that

appellant used a deadly weapon during the commission of said offense. (CR 34,

68, 72-73; RR III 27-28, 37, 115-20, 183-87; RR IV 41). Appellant does not




                                          10
challenge the sufficiency of the evidence supporting either the verdict of guilt or

the finding a deadly weapon was used or exhibited.1

       The State further alleged in the indictment that appellant had twice before

been convicted of two felony offenses, the second previous felony conviction

being for an offense that occurred subsequent to the first previous conviction

having become final. (CR 5). Appellant pled true to these allegations. (CR 72-73;

RR V 5-7). He does not challenge the sufficiency of the evidence supporting either

of these enhancement allegations.


1
        Citing no authority to support the proposition, appellant posits the notice given by the
State that a deadly weapon finding would be sought is inadequate because it was filed “pursuant
to Art. 42.12 § 3g(a)(2).” Appellant’s Brief, pp. 9, 16-17; (CR 34). Contrary to appellant’s
assertion, the notice given is sufficient to comport with due process requirements and appellant’s
argument is meritless.
        A defendant is only entitled to some form of notice at the time of prosecution that the
State will seek an affirmative finding of the use or exhibition of a deadly weapon during the
commission of the charged crime. Ex parte Brooks, 847 S.W.2d 247, 248 (Tex. Crim. App.
1993); Grettenberg v. State, 790 S.W.2d 613, 614 (Tex. Crim. App. 1990); Ex parte Beck, 769
S.W.2d 525, 527 & n.2 (Tex. Crim. App. 1989). This notice need not be contained in the
indictment but it must be in writing. Brooks, 847 S.W.2d at 248. Furthermore, when a
defendant has no challenge to the allegation and does not request a continuance to discover or
prepare such a challenge, notice given at the beginning of trial satisfies the federal constitution.
See Villescas v. State, 189 S.W.3d 290, 294 (Tex. Crim. App. 2006).
        Appellant did not complain that the written notice, given two months before trial began,
was untimely. Nor did appellant request a continuance to discover or prepare a challenge to the
allegation. To the contrary, when testifying at the motion for new trial hearing, trial counsel
recollected that his “understanding was the notice raised it to a third degree.” (RR VIII 14-16).
Under these circumstances, the State’s notice constituted adequate notice and satisfied due
process concerns. See Villescas, 189 S.W.3d at 294; Brooks, 847 S.W.2d at 248; Grettenberg,
790 S.W.2d at 614; Beck, 769 S.W.2d at 527 & n.2; see also Nolasco v. State, 970 S.W.2d 194,
197 (Tex. App.—Dallas 1998, no pet.) (notice given just prior to start of trial provided defendant
with adequate notice that use of deadly weapon would be fact issue in case; further, appellant’s
failure to request continuance to remedy perceived inadequate notice problem defeated any due
process claim he might have had); cf Patterson v. State, 138 S.W.3d 643, 647 (Tex. App.—
Dallas 2004, no pet.) (notice inadequate where trial court overruled appellant’s objection to
notice given just prior to start of trial and his request for additional time to prepare for trial).


                                                11
      Rather, appellant’s complaint regarding the legality of his sentence rests

upon statutory construction; thus, it is necessary to examine the sections of the

Texas Penal Code under which appellant was convicted and sentenced. The law in

effect at the time appellant committed the underlying offense provided in pertinent

part as follows:

          “An individual adjudged guilty of a state jail felony shall be
          punished for a third degree felony if it is shown on the trial of
          the offense that a deadly weapon as defined by Section 1.07
          was used or exhibited during the commission of the offense or
          during immediate flight following the commission of the
          offense, and that the individual used or exhibited the deadly
          weapon or was a party to the offense and knew that a deadly
          weapon would be used or exhibited.” TEX. PENAL CODE ANN. §
          12.35(c)(1) (West 2011).

          “[I]f 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. PENAL
          CODE ANN. § 12.42(d) (West 2011).

          “(a) If it is shown on the trial of a state jail felony punishable
          under Section 12.35(a) that the defendant has previously been
          finally convicted of two state jail felonies punishable under
          Section 12.35(a), on conviction the defendant shall be punished
          for a felony of the third degree.




                                          12
          (b) If it is shown on the trial of a state jail felony punishable
          under Section 12.35(a) that the defendant has previously been
          finally convicted of two felonies other than a state jail felony
          punishable under Section 12.35(a), 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 for a felony of the second
          degree.

          (c) If it is shown on the trial of a state jail felony for which
          punishment may be enhanced under Section 12.35(c) that the
          defendant has previously been finally convicted of a felony
          other than a state jail felony punishable under Section 12.35(a),
          on conviction the defendant shall be punished for a felony of
          the second degree.” TEX. PENAL CODE ANN. § 12.425 (West
          2011).

      Appellant contends that by enacting section 12.425 of the Penal Code, the

legislature set the maximum possible punishment range upon conviction for any

state jail felony at that of a second degree felony, i.e., no less than 2 years or more

than 20 years imprisonment, regardless of the volume or violence of a defendant’s

criminal history. See Appellant’s Brief, pp. 18, 21; TEX. PENAL CODE ANN. §

12.425 (West 2011); see also TEX. PENAL CODE ANN. § 12.33 (West 2011) (second

degree felony punishment range). To the contrary, sections 12.35, 12.42(d) and

12.425 of the Penal Code work in tandem to provide a wide array of punishments

for offenders based upon the crime for which they are on trial and the particulars of

their past convictions. See TEX. PENAL CODE ANN. §§ 12.35, 12.42(d), 12.425

(West 2011).




                                          13
      It is the duty of the Legislature to make laws and the function of the

Judiciary to interpret those laws. See TEX. CONST. art. II, § 1; Boykin v. State, 818

S.W.2d 782, 785 (Tex. Crim. App. 1991). When interpreting statutes, courts must

“seek to effectuate the ‘collective’ intent or purpose of the legislators who enacted

the legislation.” Mahaffey v. State, 364 S.W.3d 908, 913 (Tex. Crim. App. 2012);

Boykin, 818 S.W.2d at 785. Consequently, the focus remains the text of the statute

and interpretation is performed in a literal manner attempting to discern the fair,

objective meaning of the text. Mahaffey, 364 S.W.3d at 913.

      It is the duty of the court interpreting the statute to give the ordinary and

plain meaning to the language of the Legislature. Boykin, 818 S.W.2d at 785.

Where the statute is clear and unambiguous, the Legislature must be understood to

mean what it has expressed, and it is not for the courts to add or subtract from the

statutory scheme. State v. Mancuso, 919 S.W.2d 86, 87-88 (Tex. Crim. App.

1996). Only when the application of a statute’s plain language is ambiguous or

would lead to absurd consequences the Legislature could not possibly have

intended, should extratextual factors be considered. TEX. GOV’T CODE ANN. §

311.023 (Vernon 1995); Mahaffey, 364 S.W.3d at 913; Mancuso, 919 S.W.2d at

88; Boykin, 818 S.W.2d at 785-86. Because sections 12.42(d) and 12.425(c) of the

Penal Code have concurrent efficacy, it is unnecessary to find that one trumps the

other. TEX. PENAL CODE ANN. §§ 12.42(d), 12.425(c) (West 2011).



                                         14
      The legislature could have exempted all state jail felonies from the habitual

criminal status in section 12.42(d). TEX. PENAL CODE ANN. § 12.42(d) (West

2011). Instead, the legislature expressly exempted only those state jail felonies

punishable under section 12.35(a). Id. This is true even though section 12.42 was

overhauled simultaneously with the creation of section 12.425. See Acts 2011,

82nd Leg., R.S., ch. 834, 2011 Tex. Sess. Law Serv. (West) (current version at

TEX. PENAL CODE ANN. § 12.42(d) (West Supp. 2014)).

      It must be presumed that the Legislature intended for the entire statutory

scheme to be effective. See TEX. GOV’T CODE ANN. § 311.021(2) (Vernon 1995);

Mahaffey, 364 S.W.3d at 913; Murray v. State, 302 S.W.3d 874, 879, 881 (Tex.

Crim. App. 2009) (in construing statute, consider other provisions within entire

“statutory scheme” rather than merely the single, discrete provision at issue).

Thus, the provisions of sections 12.42(d) and 12.425 must be construed, if

possible, so that effect is given to both. TEX. GOV’T CODE ANN. § 311.026(a)

(Vernon 1995); TEX. PENAL CODE ANN. §§ 12.42(d), 12.425 (West 2011);

Mancuso, 919 S.W.2d at 88.

      Section 12.35(a) proscribes the general punishment range for state jail

felonies while subsection (c) allows for the enhanced punishment of what have

been labeled by caselaw as “aggravated” state jail felonies. See TEX. PENAL CODE

ANN. § 12.35(a), (c) (West 2011). Section 12.425, subsections (a) and (b), provide



                                        15
for the enhanced punishment of state jail felonies sentenced under section 12.35(a).

See id. §§ 12.35(a), 12.425(a), (b) (West 2011). Section 12.425(c) provides for the

enhanced punishment of “aggravated” state jail felonies where it is proven the

defendant has previously been convicted of “a felony other than a state jail felony

punishable under section 12.35(a).” See id. §§ 12.35(a), (c), 12.425(c) (West

2011) (emphasis added). Section 12.42(d) provides for the enhanced punishment

of all felonies except “a state jail felony punishable under Section 12.35(a)” where

it is proven the defendant has previously been finally convicted of “two felony

offenses [other than a state jail felony punishable under Section 12.35(a)], and the

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

first previous conviction having become final.” See id. §§ 12.35(a), 12.42(d)

(West 2011).

      Subsections 12.425(a) and (b) do not apply to appellant because they

expressly apply to persons convicted under section 12.35(a), and appellant could

not be sentenced under section 12.35(a) because of the deadly weapon finding. See

id. §§ 12.35(a), (c)(1), 12.425(a), (b) (West 2011). Further, section 12.425(c) does

not apply to appellant because he had been previously convicted of more than one

felony. See id. § 12.425(c) (“…that the defendant has previously been finally

convicted of a felony other than a state jail felony punishable under Section

12.35(a)…”) (emphasis added).       Thus, given the deadly weapon finding and



                                        16
appellant’s pleas of “true” to the enhancement allegations contained in the

indictment, section 12.42(d) was the only applicable law under which appellant

could be sentenced. See id. §§ 12.35(c), 12.42(d); see also Washington v. State,

326 S.W.3d 302, 313-15 (Tex. App.—Fort Worth 2010, pet. ref’d) (defendant

convicted of state jail felony properly sentenced under section 12.42(d) where

habitual offender and deadly weapon allegations were proven true); Bunton v.

State, 136 S.W.3d 355, 361-63 (Tex. App.—Austin 2004, pet. ref’d) (defendant

properly sentenced pursuant to section 12.42(d) after being found guilty of state

jail felony with deadly weapon finding and pleading true to enhancement

paragraphs alleging prior convictions for non-state jail felony offenses occurring in

consecutive order).

      Consideration of extratextual factors is unnecessary because the application

of the statutes’ plain language is not ambiguous nor does it lead to absurd

consequences the Legislature could not possibly have intended,. See TEX. GOV’T

CODE ANN. § 311.023 (Vernon 1995); Mahaffey, 364 S.W.3d at 913; Mancuso,

919 S.W.2d at 88; Boykin, 818 S.W.2d at 785-86. Quite the opposite of leading to

absurd results, such an application is consistent with the legislature’s consistent

treatment of “aggravated” state jail felonies as equivalent to third degree felonies.

See Smith v. State, 960 S.W.2d 372, 374-75 (Tex. App.—Houston [1st Dist.] 1998,

pet. ref’d) (concluding after statutory analysis that an “aggravated” state jail felony



                                          17
may be enhanced by two prior convictions in the proper sequence to habitual

offender status under section 12.42(d) and noting legislature’s treatment of

aggravated state jail felonies as equivalent to third-degree felonies when testing

said conclusion to see if it resulted in a reasonable or absurd construction).

      By constructing the statutory scheme for the punishment of felony offenders

as it did, the legislature made state jail felonies punishable under the provisions of

section 12.35(c) subject to the habitual criminal provisions of section 12.42(d).

See TEX. PENAL CODE ANN. §§ 12.35(c), 12.42(d) (West 2011); Mahaffey, 364

S.W.3d at 913 (statutory interpretation is performed in a literal manner focusing on

the text of the statute and attempting to discern the fair, objective meaning of the

text); Mancuso, 919 S.W.2d at 87-88 (when statutes are clear and unambiguous,

the Legislature must be understood to mean what it has expressed); Boykin, 818

S.W.2d at 785 (ordinary and plain meaning to be given to the language of the

Legislature).   Accordingly, appellant’s sentence falls within the applicable

punishment range and his complaint that the trial court assessed an illegal sentence

is without merit and should be overruled. Furthermore, to the extent appellant’s

argument concerning the legality of his sentence can be read as a challenge to the

constitutionality of his sentence, any such argument is meritless and should be

overruled.




                                          18
Appellant’s Sentence Not Unconstitutional

      Constitutional rights, including the rights provided by the Eighth

Amendment of the United States Constitution and article I, section 13 of the Texas

Constitution, may be waived. U.S. CONST. amend. VIII; TEX. CONST. art. I, § 13;

Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996); Curry v. State,

910 S.W.2d 490, 496 (Tex. Crim. App. 1995); Noland v. State, 264 S.W.3d 144,

151 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d); see also TEX. R. APP. P.

33.1. Here, appellant did not present evidence or argument concerning the issue of

any alleged excessiveness or disproportionality in his sentence at the hearing on his

motion for new trial. See (RR VIII) (record of hearing on motion for new trial).

Thus, appellant did not preserve a constitutional challenge to the excessiveness or

proportionality of his sentence for appellate review. See TEX. R. APP. P. 33.1;

Rhoades, 934 S.W.2d at 120 (noting that defendant waived any error because he

presented his argument for first time on appeal); Noland, 264 S.W.3d at 151-52 (by

failing to object and specifically state the legal basis for the objection, the

defendant failed to preserve his Eighth Amendment complaint for review); Wynn v.

State, 219 S.W.3d 54, 61 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (holding

that defendant’s failure to object to his life sentence of imprisonment as cruel and

unusual punishment waived error); Solis v. State, 945 S.W.2d 300, 301 (Tex.

App.—Houston [1st Dist.] 1997, pet. ref’d) (holding defendant could not assert



                                         19
cruel and unusual punishment for first time on appeal). However, even absent

waiver, appellant’s sentence does not constitute cruel and unusual punishment, nor

is it grossly disproportionate in light of the circumstances of his crime and his

criminal history.

      It is well-settled that punishment which falls within the limits prescribed by

a valid statute is not excessive, cruel, or unusual. Harris v. State, 656 S.W.2d 481,

486 (Tex. Crim. App. 1983); Rodriguez v. State, 614 S.W.2d 448, 450 (Tex. Crim.

App. 1981); Thomas v. State, 543 S.W.2d 645, 647 (Tex. Crim. App. 1976);

Swinney v. State, 828 S.W.2d 254, 259 (Tex. App.—Houston [1st Dist.] 1992, no

pet.); Hypke v. State, 720 S.W.2d 158, 160 (Tex. App.—Houston [14th Dist.]

1986, pet. ref’d); Stewart v. State, 732 S.W.2d 398, 400 (Tex. App.—Houston

[14th Dist.] 1987, no pet.); Simpson v. State, 668 S.W.2d 915, 919–20 (Tex.

App.—Houston [1st Dist.] 1984, no pet.). The Texas habitual offender statute has

been repeatedly upheld as constitutional. Brooks v. State, 642 S.W.2d 791 (Tex.

Crim. App. 1982); Rodriguez v. State, 614 S.W.2d 448 (Tex. Crim. App. 1981);

Girnus v. State, 595 S.W.2d 118 (Tex. Crim. App. 1980); Thomas v. State, 543

S.W.2d 645 (Tex. Crim. App. 1976); Armendariz v. State, 529 S.W.2d 525 (Tex.

Crim. App. 1975).

      Furthermore, courts have consistently held that the length of a criminal

sentence is a matter of legislative prerogative. See, e.g., Harmelin v. Michigan,



                                         20
501 U.S. 957, 962 (1991); Rummel v. Estelle, 445 U.S. 263, 284-85 (1980). In

determining whether a sentence is grossly disproportionate, the reviewing court

considers not only the present offense but also the accused’s criminal history.

Rummel, 445 U.S. at 284-85; Hicks v. State, 15 S.W.3d 626, 632 (Tex. App.—

Houston [14th Dist.] 2000, pet. ref’d); Smallwood v. State, 827 S.W.2d 34, 38

(Tex. App.—Houston [1st Dist.] 1992, pet. ref’d).

      Appellant was found guilty of an aggravated state jail felony. TEX. PENAL

CODE ANN. § 12.35(c) (West 2011). Considered in conjunction with his two prior,

sequential felony convictions, the punishment range is imprisonment for no less

than 25 years or more than 99 years, or life. TEX. PENAL CODE ANN. §§ 12.35(c),

12.42(d) (West 2011). Thus, the legislature has determined that a severe penalty is

warranted and, by implication, not excessive or cruel when the evidence shows the

defendant has committed an aggravated state jail felony and been previously

convicted of at least two additional felony offenses, the second previous felony

conviction being for an offense that occurred subsequent to the first previous

conviction having become final. See TEX. PENAL CODE ANN. §§ 12.35(c), 12.42(d)

(West 2011).

      Appellant’s punishment of imprisonment for 50 years falls well within the

range set forth by the legislature. (CR 72-73; RR V 38-39). Moreover, such a

sentence is not “unusual” merely because it is reserved for a specific set of



                                        21
offenders based upon the crime of which they are convicted and the particulars of

their prior convictions.    See Harmelin, 501 U.S. at 994–95.         Accordingly,

appellant’s punishment is not prohibited as excessive, cruel, or unusual. See

Harris, 656 S.W.2d at 486; Simpson, 668 S.W.2d at 919–20. Nonetheless, even if

the proportionality of appellant’s sentence is evaluated, his punishment still does

not violate the Eighth Amendment. See generally Harmelin, 501 U.S. 957; Solem

v. Helm, 463 U.S. 277 (1983).

       Appellant and his passenger were in possession of a large amount of cash

separated into smaller denominations, Pyrex dishes containing trace amounts of

cocaine, a whisk, baggies, rubber bands, scales, and a pistol. (RR III 27-28, 73,

115-20, 140-48). Appellant’s possession of these items and enlistment of the

assistance of another person supports the presumption that he intended to

distribute, and in fact had just delivered, a large amount of cocaine. (RR III 181-

88).

       Appellant was also illegally in possession of other narcotic substances. (RR

III 121-22, 162-65; State’s Exhibit 40) (two bottles recovered from appellant’s

vehicle containing over 530 grams of codeine and promethazine). Additionally,

from appellant’s own mouth, the judge and jury heard him acknowledge his guilt

but not express remorse. (RR III 100-01; State’s Exhibit 1) (appellant admits to “f-

--ing up” before any evidence was recovered from his vehicle).



                                        22
      Appellant committed another drug possession offense while on bond for the

offense presently at issue. (RR V 12-30) (appellant possessed 34.86 grams of

codeine and promethazine on June 18, 2012).              Further, the trial court

acknowledged, and the record supports this declaration, that the justice system

attempted to “work with” appellant on numerous occasions but he persisted in

breaking the law, often by committing offenses involving weapons. (RR V 38);

RR IX State’s Exhibit 42) (conditions of probation and multiple modifications to

conditions of probation).     Moreover, appellant pled “true” to having been

previously convicted of the felonies of aggravated assault with a deadly weapon

and possession with intent to deliver more than one gram, but less than four grams,

of cocaine. (CR 72-73; RR V 5-7).

      Given the circumstances of appellant’s crime, his behavior while on bond

for the present offense, and his prior criminal history, appellant’s sentence is not

excessive, cruel, unusual, or grossly disproportionate in violation of the Eighth

Amendment of the United States Constitution. See Harmelin, 501 U.S. at 994–95;

Simpson, 668 S.W.2d at 916 (life sentence upon conviction for possession of .0095

grams of cocaine and finding enhancement allegations of two prior felony

convictions to be true not cruel and unusual punishment); Gonzales v. State, No.

01-91-00942-CR, 1992 WL 361293, at *1-3 (Tex. App.—Houston [1st Dist.] Dec.

10, 1992, no pet.) (not designated for publication) (sentence of 25 years, assessed



                                        23
pursuant to Texas habitual offender statute, for the theft of three shirts did not

constitute cruel and unusual punishment). Accordingly, appellant’s second point

of error is without merit and should be overruled.

                       ♦




                                         24
                                 PRAYER FOR RELIEF

       It is respectfully submitted that all things are regular and the conviction and

sentence should be affirmed. 2



                                                     /s/ Jeri Yenne
                                                     JERI YENNE
                                                     District Attorney
                                                     Brazoria County, Texas


                                                     /s/ Michelle R. Townsend
                                                     MICHELLE R. TOWNSEND
                                                     Assistant District Attorney
                                                     Brazoria County, Texas
                                                     State Bar Number: 24049295
                                                     111 E. Locust, Suite 408A
                                                     Angleton, Texas 77515
                                                     Telephone: (979) 864-1230
                                                     Facsimile: (979) 864-1525
                                                     ellehcim@alumni.rice.edu

2
        The judgment of the trial court indicates appellant was convicted of a third degree felony.
(CR 72-73). Because of the jury’s affirmative finding of the use of a deadly weapon during the
commission of the offense, the offense became an “aggravated” state jail felony punishable as a
third degree felony under section 12.35(c); however, the nature of the offense never changed.
See Garza v. State, 298 S.W.3d 837, 845 (Tex. App.—Amarillo 2009, no pet.) (op. on remand).
Although appellant was punished within the proper, applicable punishment range based on the
present crime and his criminal history, he was, nonetheless, convicted of only a state jail felony.
        The notation on the trial court’s judgment indicating appellant was convicted of a third
degree felony is a clerical error, not the product of judicial reasoning. Thus, this Court is
authorized to reform the trial court’s judgment so that it may speak the truth. See TEX. R. APP. P.
43.2(b); Garza, 298 S.W.3d at 845; Figueroa v. State, 250 S.W.3d 490, 518 (Tex. App.—Austin
2008, pet. ref’d), cert. denied, 555 U.S. 1185 (2009); Smith v. State, 223 S.W.3d 690, 696–97
(Tex. App.—Texarkana 2007, no pet.); French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App.
1992). As such, the judgment of the trial court should be modified to reflect that appellant was
convicted by a jury of possession of a controlled substance, a state jail felony, aggravated by a
finding that appellant used a deadly weapon in the commission of the offense, enhanced by two
prior felony convictions.


                                                25
            CERTIFICATES OF SERVICE AND COMPLIANCE

      This is to certify that a copy of the foregoing instrument has been delivered

to appellant’s attorney on this the 9th day of October, 2015:

             Perry R. Stevens
             Attorney at Law
             603 E. Mulberry
             Angleton, Texas 77515

        Further, that this document was generated on a computer program that

calculates the word count to be 5,218 words. See TEX. R. APP. P. 9.4(i).



                                              /s/ Michelle R. Townsend
                                              MICHELLE R. TOWNSEND
                                              Assistant District Attorney
                                              Brazoria County, Texas
                                              State Bar Number: 24049295
                                              111 E. Locust, Suite 408A
                                              Angleton, Texas 77515
                                              Telephone: (979) 864-1230
                                              Facsimile: (979) 864-1525
                                              ellehcim@alumni.rice.edu




                                         26
