                                                                                               ACCEPTED
                                                                                           05-14-00452-CR
                                                                                FIFTH COURT OF APPEALS
                                                                                           DALLAS, TEXAS
                                                                                      5/14/2015 4:31:20 PM
                                                                                                LISA MATZ
                                                                                                    CLERK




                                                                                                                  5th Court of Appeals
                                                                                                                   FILED: 5/14/15
                                                                                               Lisa Matz, Clerk
                          No. 05-14-00452-CR
                                                                    RECEIVED IN
                          No. 05-14-00453-CR                   5th COURT OF APPEALS
                                                                   DALLAS, TEXAS
                                                               5/14/2015 4:31:20 PM
               IN THE COURT OF APPEALS                               LISA MATZ
                                                                       Clerk
            FOR THE FIFTH DISTRICT OF TEXAS
                       AT DALLAS

                 MICHAEL WAYNE WILLIAMS,
                         APPELLANT

                                         v.

                       THE STATE OF TEXAS,
                              APPELLEE

     On Appeal from the Criminal District Court No. 3 of Dallas County, Texas
                  In Cause Nos. F13-71062-J and F13-56255-J


                             STATE’S BRIEF

                                           Counsel of Record:
SUSAN HAWK                                 SHELLY O’BRIEN YEATTS
CRIMINAL DISTRICT ATTORNEY                 ASSISTANT DISTRICT ATTORNEY
DALLAS COUNTY, TEXAS                       STATE BAR NO. 24033487
                                           FRANK CROWLEY COURTS BUILDING
                                           133 N. RIVERFRONT BOULEVARD, LB-19
                                           DALLAS, TEXAS 75207-4399
                                           (214) 653-3625
                                           (214) 653-3643 fax

                           Attorneys for the State of Texas
                                           TABLE OF CONTENTS

INDEX OF AUTHORITIES .............................................................................................. iv

STATEMENT OF THE CASE ........................................................................................... 1

STATEMENT OF FACTS .................................................................................................. 2

SUMMARY OF ARGUMENT ........................................................................................... 8

ARGUMENT....................................................................................................................... 9

RESPONSE TO WILLIAMS'S FIRST AND SECOND POINTS OF ERROR ................. 9

         Defense counsel invited the prosecutor’s argument at trial;
         therefore, the trial court’s denial of Williams’s request for an
         instruction to disregard the argument and denial of his motion for
         mistrial were not improper. Alternatively, the trial court did not
         err by refusing to specifically instruct the jury to disregard the
         prosecutor’s comment because, although the trial court sustained
         Williams’s objection, the request for an instruction was untimely.
         The trial court had already generally instructed the jury to
         disregard any arguments not supported by the evidence.
         Additionally, the trial court did not abuse its discretion by
         denying Williams’s request for a mistrial.

RESPONSE TO WILLIAMS'S THIRD AND FOURTH POINTS OF ERROR

AND

THE STATE’S CROSS-POINT TO REFORM THE JUDGMENTS TO REFLECT
WILLIAMS’S PLEAS OF “NOT TRUE” AND THE TRIAL COURT’S
FINDINGS OF “TRUE” ON THE FIRST ENHANCEMENT PARAGRAPHS ... 19

         Based on the whole record, Williams was not sentenced outside
         the applicable range of punishment, his sentence is not illegal or
         void, and there was no error. Moreover, this Court should reform
         the written judgments to reflect that Williams pleaded “not true”
         to the first enhancement paragraphs in both cases and the trial
         court found those enhancements to be true.


                                                          ii
PRAYER ........................................................................................................................... 32

CERTIFICATE OF SERVICE .......................................................................................... 32

CERTIFICATE OF COMPLIANCE ................................................................................ 32




                                                           iii
                                          INDEX OF AUTHORITIES

Cases

Asberry v. State,
   813 S.W.2d 526, 529-30 (Tex. App.—Dallas 1991, pet. ref’d) ...................... 20, 31
Berry v. State,
  233 S.W.3d 847 (Tex. Crim. App. 2007) ...................................................................... 15

Bigley v. State,
  865 S.W.2d 26 (Tex. Crim. App. 1993) ........................................................................ 20

Cruz v. State,
  225 S.W.3d 546 (Tex. Crim. App. 2007) ...................................................................... 13

Darden v. Wainwright,
  477 U.S. 168 (1986) ...................................................................................................... 12

Davis v. State,
  No. 09-01-070-CR, 2001 Tex. App. LEXIS 8075 (Tex. App.—Beaumont
  Dec. 5, 2001, pet. ref’d) (not designated for publication) ............................................. 12

Ex parte Pena,
  71 S.W.3d 336 (Tex. Crim. App. 2002) ........................................................................ 20

Ex parte Rich,
  194 S.W.3d 508 (Tex. Crim. App. 2006) ...................................................................... 20

Garner v. State,
  858 S.W.2d 656 (Tex. App.—Fort Worth 1993, pet. ref’d) .................................... 19, 26

Johnson v. State,
  Nos. 05-10-00465/00608-CR, 2011 Tex. App. LEXIS 6208 (Tex. App.—Dallas
  Aug. 10, 2011, no pet.) (memo op., not designated for publication) ...................... 30, 31

Mapes v. State,
 187 S.W.3d 655 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d)........................... 20

McGinn v. State,
 961 S.W.2d 161 (Tex. Crim. App. 1998) ...................................................................... 13

Mizell v. State,
  119 S.W.3d 804 (Tex. Crim. App. 2003) (en banc) ...................................................... 20


                                                         iv
Reed v. State,
  500 S.W.2d 497 (Tex. Crim. App. 1973) ...................................................................... 20

Seeker v. State,
  186 S.W.3d 36 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d) ................... 20, 21, 27

Turk v. State,
  867 S.W.2d 883 (Tex. App.—Houston [1st Dist.] 1993, pet. ref’d) ....................... 30, 31

Wesbrook v. State,
 29 S.W.3d 103 (Tex. Crim. App. 2000) ........................................................................ 12

Wilson v. State,
  938 S.W.2d 57 (Tex. Crim. App. 1996), abrogated on other grounds by
  Motilla v. State, 78 S.W.3d 352, 357 (Tex. Crim. App. 2002) ..................................... 12

Statutes

Tex. Penal Code Ann. § 12.33(a) (West 2011) ................................................................. 27

Tex. Penal Code Ann. § 12.42(d) (West Supp. 2014) ....................................................... 27

Tex. Penal Code Ann. § 29.02(a)(2), (b) (West 2011) ...................................................... 27

Rules

Tex. R. App. P. 33.1 .......................................................................................................... 14

Tex. R. App. P. 33.1(a) .......................................................................................... 13, 19, 26




                                                           v
TO THE HONORABLE COURT OF APPEALS:

       The State of Texas submits this brief in response to the brief of Appellant,

Michael Wayne Williams.

                           STATEMENT OF THE CASE

       Williams pleaded not guilty to two charged offenses for the robberies of

Holly Harris and Debra Patterson. (CR1: 80; CR2: 81; RR3: 16-18; RR5: 20-21).1

The State alleged two enhancement paragraphs in each indictment. (CR1: 10;

CR2: 9). Prior to trial, the court granted the State’s request to strike the second

enhancement paragraphs (which were identical) (CR1: 88; CR2: 90), and the State

filed its notice of intent to enhance with a different prior felony conviction for

burglary of a building (RR3: 13-15; CR1: 83; CR2: 89).

       The two robbery cases were tried together, and the jury found Williams

guilty of both offenses. (CR1: 78; CR2: 81; RR6: 36). He elected to have the trial

court assess punishment and pleaded not true to the enhancement paragraphs in

each case. (CR1: 12; CR2: 11; RR6: 39-40). The State offered and the trial court

admitted certified judgments reflecting Williams’s convictions for the cases

identified in the enhancement paragraphs. (SX 32, 35).




1
 CR1 refers to the clerk’s record in cause number F13-56255-J, appellate number 05-14-00453-
CR. CR2 refers to the clerk’s record in cause number F13-71062-J, appellate number 05-14-
00452-CR.

                                         1
      The trial court was silent regarding any oral findings on the enhancement

paragraphs.    The trial court did, however, note findings of “true” to the

enhancement paragraphs on the docket sheets of both cases. (CR1: 9; CR2: 8).

The court assessed Williams’s punishment for each offense at 50 years’

incarceration in the Institutional Division of the Texas Department of Criminal

Justice. (CR1: 80; CR2: 81; RR6: 83-84). On the first enhancement paragraphs,

the written judgments reflect “N/A” regarding Williams’s pleas and the court’s

findings; the judgments reflect pleas of “not true” and findings of “true” on the

second enhancement paragraphs. (CR1: 80; CR2: 81).

      This appeal followed, in which Williams claims (a) the trial court erred in

denying his requests for a jury instruction and a mistrial after the prosecutor made

an allegedly improper closing argument, and (b) the trial court assessed illegal

sentences in both cases.

                           STATEMENT OF FACTS

      At about noon on Memorial Day in 2012, Williams robbed the employees

and customers of “Emeralds to Coconuts,” in a boutique in Dallas. (RR5: 22, 27-

28). Holly Harris, the manager, was assisting a customer when Williams entered

the store. (RR5: 22, 28-29). Harris exchanged greetings with Williams. (RR5:

28-29, 48). She noticed an unusual look on Williams’s face, “like [] he was []

getting amped up for something,” when he pulled out a gun, waved it around, and

                                      2
said, “All you bitches get on the floor.”2           (RR5: 29, 49, 53, 76).         The two

employees and customers followed his instructions. (RR5: 30).

       Three friends, Jana Caryol, Debra Patterson, and Rhonda McCollum were

shopping in the store that day. (RR5: 60, 75, 89). Caryol testified that she also

heard Williams instruct them, “Bitches, get down on the floor.” (RR5: 61).

       While he continued waving the gun, Williams yelled at the people in the

store to remove their jewelry and to throw their money and jewelry onto the floor.

(RR5: 30, 61, 76). Caryol testified that Williams stood right in front of her,

pointed the gun at her face, and said, “Bitch, get down on the floor. Give me your

money and your jewelry.” (RR5: 62, 64, 71, 77). Patterson testified that when she

first heard a man say, “You bitches get down on the ground now; I want all your

jewelry and money,” she thought it might be a joke, but when she turned Williams

was pointing his gun at her. (RR5: 76, 88). She testified she was “scared for [her]

life.” (RR5: 86).

       The employees and customers did as they were instructed. (RR5: 30-31, 62,

76-77). Harris described the gun to the jury as “black, gray, silvery, dark-charcoal

colored.” (RR5: 31). During the robbery Williams instructed Harris to move from

the rear of the store to the front, saying, “No, you, bitch, you come up here.”



2
 Investigation later revealed that what appeared to be a real gun was actually a BB gun. (RR5:
96, 111, 135-136).
                                          3
(RR5: 30). She crawled to the front as instructed and laid flat on her belly; she

believed she was going to die. (RR5: 31, 49-50, 55). Caryol testified that while

she was removing her rings and throwing them onto the floor, she believed she and

her friends were going to die because Williams repeatedly yelled, “Get down or I’ll

pop you.” (RR5: 63, 77).

      Leon Haley, a customer, tried to reason with Williams, saying, “don’t do

this.” (RR5: 31, 64-65, 77). Haley then tackled Williams, and the two men

wrestled on the floor. (RR5: 32, 64, 78-79). As they wrestled, Williams dropped

his cell phone. (RR5: 35, 43; SX 11). A piece of Williams’s gun fell off, and

Harris picked it up. (RR5: 32, 40, 44; SX 13, 14, 19). At some point, Haley was

on the ground and Williams was in an upright position; Williams pointed the gun

at Haley and said, “You better run,” and Haley exited the store. (RR5: 32-33).

      Williams started to leave, but he returned and frantically gathered some of

the jewelry and money from the floor. (RR5: 33, 66, 81-82). Patterson testified

that when Williams complained there was no money, she slung her billfold out

onto the floor and he grabbed it. (RR5: 82). Williams then fled on foot. (RR5:

34). The women in the store called the police; meanwhile, Haley had gone to a

nearby store and called the police. (RR5: 34, 36, 67, 85). Williams was in

Emeralds to Coconuts for about ten or fifteen minutes. (RR5: 41).




                                     4
       The police arrived at the scene in less than five minutes. (RR5: 36, 67, 85,

92, 103). Haley returned to the store; he had sustained some injuries in the

altercation with Williams, and Harris treated his injuries and provided first aid

supplies. (RR5: 37, 41, 43, 67, 85; SX 11, 12).

       The police collected the evidence Williams left behind, consisting of a BB

pistol slide and a cell phone. (RR5: 94, 96, 110-111; SX 19, 20, 28, 29). The

officers determined that the gun used in the robbery was a Daisy BB gun based on

the slide. (RR5: 96, 111, 135-136; SX 19). Within hours of the robbery, Detective

Cayce Shelton identified Williams as a suspect through his investigation into the

phone number of the cell phone dropped at the scene. (RR5: 111-113, 119; SX

20).

       On the day of the robbery, Harris viewed a six-person photo lineup at the

police station. (RR5: 37-39, 120-121; SX 3, 4). The lineup procedure was video

recorded and admitted into evidence.       (RR5: 121; SX 3).      Harris identified

Williams during the lineup procedure as the robber. (RR5: 39-40, 54-55, 121; SX

3, 4). She testified at trial that she had a number of opportunities to view the

robber while he was in the store, and when he picked up her jewelry, she saw his

face at a distance of only a foot and a half. (RR5: 54). She also testified that her

identification of him in the courtroom was based on her memory of seeing him in

the store. (RR5: 55).

                                      5
      That evening, police officers arrested Williams. (RR5: 97-98, 103-105, 122-

123). Officer James Brown testified that at the time of the arrest Williams had two

pawn tickets, a gold earring, and a ring on his person; one pawn ticket, however,

blew away. (RR5: 98-99, 124, 127; SX 17 (pinky ring), 18 (earring), 21 (pawn

ticket), 25 (photograph). The earring in Williams’s pocket was the mate to an

earring belonging to Patterson, which Williams left at the store. (RR5: 124, 127-

129, 131-132; SX 25).

      Detective Shelton obtained a surveillance video from B&B Pawn Shop

which shows Williams pawning some of the jewelry stolen in the robbery,

including several rings. (RR5: 124-125, 129-130; SX 23). B&B Pawn Shop also

provided a copy of the second pawn ticket. (RR5: 125; SX 21, 22). The pawn

tickets reflect that the items were pawned at 5:04 p.m. and 5:11 p.m. on the date of

the offense. (RR5: 131).

      After Williams’s arrest, Detective Shelton conducted a recorded interview

with him. (RR5: 101, 133-140; SX 26). Although Williams avoided any outright

or direct admission his guilt, his partial admissions in the context of the

conversation made it clear that he committed the robberies. He was adamant that

he did not use a real gun. (RR5: 135-137, 140, 154). He described it as a “cap

gun” or a “pellet gun.” (RR5: 135). Williams admitted that he walked to the store;

he refused to say whether anyone was waiting for him outside. (RR5: 138).

                                      6
Although Williams argued with the detective, he repeatedly indicated he was

willing to show the detective where some of the stolen property was—but only on

his terms. (RR5: 138). He told the detective the stolen items were in South Dallas

but would not be more specific. (RR5: 138-139). Repeatedly, Williams attempted

to negotiate with the detective, asking how cooperating and providing specifics

about the robbery would help him. (RR5: 139). He admitted he “made a mistake”

and explained that he did it because he had bills to pay. (RR5: 139-140). He also

said the altercation with Haley, the man in the store, was not a fight, but a scuffle.

(RR5: 154).

      Caryol was never asked to view a photo lineup. (RR5: 72). Patterson

testified that she would be unable to identify the robber because he was wearing a

blue ball cap which was pulled forward on his face. (RR5: 85-87).

      The property Williams stole included Harris’s wedding ring; Harris’s gold,

amethyst, and turquoise necklace; Caryol’s five rings; and all of the jewelry

Patterson was wearing, except one earring, which Williams left behind, and her

billfold. (RR5: 41, 62-63, 67-68, 82-84; SX 30). Patterson’s billfold contained her

checkbook, credit cards, social security card, driver’s license, and $80 cash. (RR5:

82). Caryol identified State’s Exhibit 17 as a ring that her daughter had given her.

(RR5: 69).




                                       7
      The defense called one witness in the guilt/innocence phase of trial, Sergeant

David Stephens, who administered the photo lineup to Harris. (RR5: 157, 160-

161; SX 3). The jury found Williams guilty in both robbery cases. (RR6: 36).

                         SUMMARY OF ARGUMENT

                           Points of Error One and Two

      Defense counsel’s own outside-the-record inquiry in closing arguments

regarding the whereabouts of a witness who did not testify invited the prosecutor’s

response that the witness was out of the country.        The trial court sustained

Williams’s objection to the prosecutor’s response, and the trial court had already

orally instructed the jury in the general charge (immediately prior to closing

arguments) to disregard any comments of counsel in arguments which were not

supported by the evidence. The trial court’s denial of the motion for mistrial was

not an abuse of discretion and Williams’s request for a specific instruction for the

jury to disregard the comment was untimely. Nevertheless, Williams was not

harmed because the jury still would have found him guilty of the robberies even if

the prosecutor had not made the comment.

              Points of Error Three and Four and State’s Cross-Point

      Based on the whole record, Williams was not sentenced outside the

applicable range of punishment, his sentence is not illegal or void, and there was

no error. Moreover, this Court should reform the written judgments to reflect that

                                      8
Williams pleaded “not true” to the first enhancement paragraphs in both cases and

the trial court found those enhancements to be true.

                                   ARGUMENT

           RESPONSE TO POINTS OF ERROR ONE AND TWO

      Defense counsel invited the prosecutor’s argument at trial;
      therefore, the trial court’s denial of Williams’s request for an
      instruction to disregard the argument and denial of his motion for
      mistrial were not improper. Alternatively, the trial court did not
      err by refusing to specifically instruct the jury to disregard the
      prosecutor’s comment because, although the trial court sustained
      Williams’s objection, the request for an instruction was untimely.
      The trial court had already generally instructed the jury to
      disregard any arguments not supported by the evidence.
      Additionally, the trial court did not abuse its discretion by
      denying Williams’s request for a mistrial.

      In his first point of error, Williams alleges that after sustaining his objection

to a portion of the prosecutor’s closing argument, the trial court erred in denying

his request for an instruction to disregard. In his second point of error, Williams

alleges the trial court erred when it denied his request for a mistrial based on the

same comment. These allegations should fail.

      Defense counsel argued as follows during his closing arguments:

      One of the final things that I will discuss with you, that has been
      eating at me this entire case, is something the State completely failed
      to bring to you. Where’s Leon [Haley]? Where’s Leon?

      Where’s the man that apparently allegedly struggled with Mr.
      Williams, fought him face to face, hand-to-hand combat? If there’s
      anybody that’s gonna be able to point somebody out, it’s probably the

                                       9
      person that was involved in hand-to-hand combat with him. Where’s
      Leon?

(RR6: 24-25). In her rebuttal argument, the prosecutor responded:

      And defense counsel asks where is Mr. Haley? Well, just like the
      judge told you during voir dire, you can have the worst week ever for
      jury and not be able to do something.

      Well, Mr. Haley is out of the country.

(RR6: 28). Defense counsel objected on the basis that the argument “was not in

the evidence.” (RR6: 28). The trial court sustained the objection. Defense

counsel immediately asked for a mistrial, which the trial court denied. (RR6: 28).

The prosecutor then continued her argument as follows:

      We brought you the witnesses that were there, that had the most
      specific and most detailed pieces of evidence that we could bring you.
      Just like they have subpoena power, so do we, and we decided that it
      was efficient to bring you the people who had something stolen that
      we could prove and the person that was able to identify and recognize
      this defendant.

      And each of them told you there was a cell phone dropped. And
      because of this cell phone, the detective, Detective Shelton, was able
      to do his research, contact Fusion, and conduct an investigation that
      led him to this defendant, and that’s where he got the picture.

      And it all started with this cell phone that everybody told you was
      dropped at the scene, and you can see the pictures of that. So
      Detective Shelton had an independent way of tracking him back to the
      scene.

      Holly Harris was shown a lineup by Sergeant Stephens, who had no
      idea which suspect it was. The lineup is proper when there’s no
      suggestion, there’s no hints, there’s no trying to coerce the witness in

                                     10
      – into making an identification; and I urge you to watch the video
      yourself to see exactly what happened.

(RR6: 28-29).

      After the denial of Williams’s request for a mistrial, the prosecutor

completed the remainder of her closing argument, consisting of more than five

pages of the record. (RR6: 29-33). The trial court instructed the jury to retire to

deliberate. (RR6: 34). Defense counsel then asserted an objection for the record,

as follows:

      This is a classic example of bad faith on the part of the prosecution, to
      deliberately put into evidence before the jury that didn’t come from
      that witness stand, this personal knowledge out of the prosecutor.
      That element that she used her bad faith on, “Where is Leon” was the
      key -- one of the major keys to this case. That’s error, Judge.

(RR6: 34-35). Counsel reasserted his request for a mistrial, than added, “Or even

to the extent of doing an additive unlimited charge to this jury telling them not to

consider what the prosecutor’s statement was.”        (RR6: 35).     The prosecutor

responded:

      Your Honor, our position is that the defense counsel invited the
      assertation [sic] by stating that this is the fact that’s been bothering
      him the most and wondering where Leon Haley is. Especially when
      he knows full well, as I disclosed to him before the trial date.

      So he invited the application and the curiosity and we’re permitted to
      respond.




                                     11
(RR6: 35). The trial court denied the requests for a mistrial and an instruction,

noting that the State’s comment was a result of defense counsel’s inquiry, “Where

is Leon? Where is Leon?” (RR6: 35).

      Defense Counsel Invited the Prosecutor’s Response

      Jury argument by the State is generally considered permissible if it falls

within one of the following categories: (1) summation of the evidence adduced at

trial; (2) reasonable deductions from that evidence; (3) answer to argument of

defense counsel; and (4) pleas for law enforcement. Wesbrook v. State, 29 S.W.3d

103, 115 (Tex. Crim. App. 2000). The invited argument rule permits prosecutorial

argument outside the record in response to defense argument that goes outside the

record; however, a prosecutor may not stray beyond the scope of the invitation.

Wilson v. State, 938 S.W.2d 57, 60-61 (Tex. Crim. App. 1996), abrogated on other

grounds by Motilla v. State, 78 S.W.3d 352, 357 (Tex. Crim. App. 2002). The

concept of an invited response is not used to excuse improper comments but to

determine the effect of the comments on the trial as a whole.         Darden v.

Wainwright, 477 U.S. 168, 182 (1986).

      In this case, the prosecutor’s remark was in direct response to defense

counsel’s repeated question, “Where is Leon?” See Wilson, 938 S.W.2d at 60-61;

Davis v. State, No. 09-01-070-CR, 2001 Tex. App. LEXIS 8075, at *13-14 (Tex.

App.—Beaumont Dec. 5, 2001, pet. ref’d) (not designated for publication)

                                    12
(holding defense counsel “opened the door” when he commented on the State’s

failure to call a witness and described the witness as “the missing link,” and

prosecutor’s explanation that he did not call the witness to testify because he

believed the witness would simply take the Fifth Amendment and remain silent

was within the scope of proper argument). Here, defense counsel’s comments,

which invited the State’s response, were outside of the record. Counsel not only

introduced the inquiry of “Where is Leon [Haley]?” but also suggested that Haley

should have been able to identify Williams and Haley’s non-appearance implied he

might not be able to successfully do so.

      Preservation of Error

      To preserve error regarding improper jury argument, a defendant must (1)

make a timely and specific objection; (2) request an instruction that the jury

disregard the statement if the objection is sustained; and (3) move for a mistrial if

the instruction is insufficient to remove the prejudice resulting from the argument.

Cruz v. State, 225 S.W.3d 546, 548 (Tex. Crim. App. 2007); see Tex. R. App. P.

33.1(a). If a trial court sustains an objection to improper jury argument, the

defendant must request an instruction to disregard and move for a mistrial to

preserve error. McGinn v. State, 961 S.W.2d 161, 165 (Tex. Crim. App. 1998).

      Initially, when the trial court sustained Williams’s objection to the

prosecutor’s argument, defense counsel moved for a mistrial without requesting an

                                      13
instruction for the jury to disregard the comment. (RR6: 28). Because Williams

did not request an instruction to disregard at that time, he did not preserve any

error, and the trial judge’s denial of his first request for a mistrial was not

improper. See Tex. R. App. P. 33.1.

      In addition, defense counsel’s later request for an instruction was untimely.

After the initial exchange, Williams did not raise the issue again on the record until

the prosecutor had completed her argument (RR6: 28-33) and the trial court had

discharged the jury to deliberate (RR6: 34). Williams’s counsel then reasserted his

objection outside the presence of the jury, alleging bad faith on the part of the

prosecutor, and asked for a mistrial or a “charge to the jury telling them not to

consider [] the prosecutor’s statement [].”      (RR6: 35).     This request for an

instruction was untimely due to the delay in asserting it until after the prosecutor

had completed her argument; as a result, any error regarding the denial of an

instruction to disregard has not been preserved for consideration on appeal.

      Williams was Not Harmed

      Presuming (without admitting) that the trial court was required to sustain

Williams’s objection and his request for an instruction was timely, the trial court’s

refusal to grant a mistrial was not improper and did not result in harm. The Court

of Criminal Appeals has explained that:

      There are three factors to consider when assessing the impact of the
      harm arising from jury argument error: (1) the severity of the
                                      14
      misconduct (the magnitude of the prejudicial effect of the prosecutor's
      remarks); (2) the measures adopted to cure the misconduct (the
      efficacy of any cautionary instruction by the judge); and (3) the
      certainty of conviction absent the misconduct (the strength of the
      evidence supporting the conviction).

Berry v. State, 233 S.W.3d 847, 858-59 (Tex. Crim. App. 2007).

      Regarding the first factor, the complained-of response by the prosecutor did

not rise to the level of being “severe.” The prosecutor’s response that Haley was

out of the country merely informed the jury that he was not available to be called

as a witness to testify by either party. The comment was impromptu, was not a

willful or calculated attempt to harm Williams, and was made directly in response

to defense counsel’s argument. Also, the comment made no reference to whether

Haley could identify Williams. Then, after the trial court sustained Williams’s

objection, the prosecutor explained that the State brought the witnesses with the

“most specific and most detailed pieces of evidence,” including those “who had

something stolen,” and “the person that was able to identify and recognize this

defendant.” (RR6: 28). The prosecutor also pointed out that both parties have

subpoena power. (RR6: 28). She next reminded the jury that the cell phone left at

the scene led the detective to Williams. Therefore, if the comment that Haley was

out of the country was erroneous, this additional argument, which was not outside

the record, ameliorated any harm. In fact, the prosecutor’s reference to “the person

that was able to identify and recognize this defendant” could have been interpreted

                                     15
as a suggestion that Haley would not have been able to identify Williams and,

therefore, could have served to support defense counsel’s implication that Haley

was not present because his testimony would not have been favorable to the State.

Accordingly, based on the prosecutor’s additional comments, there was no harm,

and this factor should not weigh in Williams’s favor.

      Regarding the second factor, no specific curative instruction was given;

however, counsel did not request an immediate curative instruction. Williams’s

untimely request after the jury retired would have required the trial court to either

return the jury to the courtroom for an oral instruction or provide a supplemental

written instruction to the charge; the court may have believed that either course of

action would have overemphasized the alleged erroneous argument (to which the

court had already sustained an objection).

      In addition, the trial court’s general jury instructions, which the judge read to

the jurors prior to closing arguments, already contained an applicable instruction.

The charge contained a limiting instruction that statements of counsel made during

argument “not supported by the evidence” were to be disregarded, as follows:

      You are instructed that any statements of counsel made during the
      course of this trial or during argument not supported by the evidence,
      or statements of law made by counsel not in harmony with the law as
      stated to you by the Court in these instructions, are to be wholly
      disregarded.




                                      16
(RR6: 11; CR1: 75; CR2: 77). Because Williams did not timely request a curative

instruction and because the jury had already received a general instruction covering

the complained-of issue, this factor should weigh in favor of the State.

       Regarding the third factor, the evidence proving Williams’s guilt in these

robberies was overwhelming, and the certainty of his convictions absent the

complained-of argument was clear. Despite his baseball cap being pulled low, the

store manager, Harris, testified she had plenty of opportunity to view his face

during the robbery. Particularly, when Williams retrieved her jewelry from the

floor, she saw his face at a distance of only a foot and a half. Harris identified him

later that same day in a double-blind photo lineup procedure which was recorded

and played for the jury. Officers quickly identified Williams as a suspect because

he dropped his cell phone during the robbery. The robbery occurred shortly after

noon, and Williams was recorded at shortly after 5:00 p.m. pawning some of the

stolen jewelry. When he was arrested that evening, he had two pawn tickets, a ring

identified and owned by a victim, and a single earring identified and owned by

another victim in his pockets. Williams had left the matching earring to the set on

the floor in the store.

       Furthermore, in a recorded interview with the detective, Williams admitted

to numerous facts proving he committed the offense, including being in the store,

using a pellet or BB gun, and wrestling with a man in the store. He attempted to

                                      17
negotiate with the detective about showing him where the remainder of the jewelry

was, although ultimately he refused to provide any specific information. A review

of the whole record shows the jury would have found Williams guilty of these

robberies even if the prosecutor had not made the complained-of closing argument.

Accordingly, this factor weighs heavily for the State.

      The State asks this Court to conclude although there was no specific curative

instruction given after the trial court sustained defense counsel’s objection, the

factors discussed above and the general instructions provided in the jury charge

weigh in the State’s favor. Furthermore, the alleged conduct was not severe, and

the evidence supporting the conviction was overwhelming.         The jury’s guilty

verdicts would not have changed even if the argument had not been made.

Therefore, Williams was not harmed by the alleged error, and the trial court did not

abuse its discretion in refusing to grant a mistrial. The State asks this Court to

overrule Williams’s first and second points of error.




                                      18
         RESPONSE TO POINTS OF ERROR THREE AND FOUR

                                        AND

   THE STATE’S CROSS-POINT TO REFORM THE JUDGMENTS TO
   REFLECT WILLIAMS’S PLEAS OF “NOT TRUE” AND THE TRIAL
   COURT’S FINDINGS OF “TRUE” ON THE FIRST ENHANCEMENT
                        PARAGRAPHS

      Based on the whole record, Williams was not sentenced outside
      the applicable range of punishment, his sentence is not illegal or
      void, and there was no error. Moreover, this Court should reform
      the written judgments to reflect that Williams pleaded “not true”
      to the first enhancement paragraphs in both cases and the trial
      court found those enhancements to be true.

      In his third and fourth points of error, Williams contends that the trial court’s

oral pronouncements of the sentences conflict with the written judgments in the

two cases because the judgments reflect findings of true on the second

enhancement paragraphs and the court did not orally pronounce its findings. He

further contends that without oral pronouncements on the enhancement paragraphs,

his sentences of 50 years’ incarceration in both cases are outside the applicable

punishment range and are void. These contentions should fail.

      Introduction and Applicable Law

      Generally, complaints about a trial court’s failure to make oral findings on

enhancement paragraphs must be raised at trial to be preserved for appeal. See

Tex. R. App. P. 33.1(a); Garner v. State, 858 S.W.2d 656, 659 (Tex. App.—Fort

Worth 1993, pet. ref’d) (holding Garner failed to preserve his complaint that the

                                      19
trial court erred by not making an oral finding regarding his enhancement

paragraph after he failed to object at trial). However, when a sentence is void, a

defendant may complain about it at any time. See Ex parte Rich, 194 S.W.3d 508,

511 (Tex. Crim. App. 2006); see also Ex parte Pena, 71 S.W.3d 336 n.2 (Tex.

Crim. App. 2002) (“A ‘void’ or ‘illegal’ sentence is one that is not authorized by

law.”). “A sentence that is outside the maximum or minimum range of punishment

is unauthorized by law and therefore illegal.” Mizell v. State, 119 S.W.3d 804, 806

(Tex. Crim. App. 2003) (en banc); Mapes v. State, 187 S.W.3d 655, 658 (Tex.

App.—Houston [14th Dist.] 2006, pet. ref’d).

      A trial court is not required to read the enhancement paragraph or the

findings to a defendant when the trial court alone assesses the defendant’s

punishment. See Reed v. State, 500 S.W.2d 497, 499 (Tex. Crim. App. 1973);

Seeker v. State, 186 S.W.3d 36, 39 (Tex. App.—Houston [1st Dist.] 2005, pet.

ref’d). Additionally, an appellate court may modify an incorrect judgment when it

is necessary to accurately reflect the outcome of the trial court proceedings and the

necessary information is available to do so. See Bigley v. State, 865 S.W.2d 26, 27-

28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex.

App.—Dallas 1991, pet. ref’d).

      Williams waived a jury in the punishment phase of trial, and the trial court

alone assessed punishment. Because the trial court had no duty to make oral

                                      20
findings of true or not true on the enhancement paragraphs, the findings of true on

the second enhancement paragraphs in the written judgments are not inconsistent

with the trial court’s oral silence concerning the findings. See Seeker, 186 S.W.3d

at 39. Furthermore, the judgments should be reformed consistent with the whole

record to reflect the trial court’s findings of true on the first enhancement

paragraphs.

      Background and Facts

      Williams’s indictment for robbery in cause number F13-56255-J alleged two

enhancement paragraphs for prior convictions of (a) aggravated robbery in cause

number F86-92950 on June 5, 1987, and (b) possession of a controlled substance in

cause number F82-86239 on June 17, 1982. (CR1: 10). Williams’s indictment for

robbery in cause number F13-71062-J alleged two enhancement paragraphs for

prior convictions of (a) robbery in cause number F86-92951 on June 5, 1987, and

(b) possession of a controlled substance in cause number F82-86239 on June 17,

1982. (CR2: 9).

      On March 11, 2014, about two weeks prior to trial, the trial court

admonished Williams that the offense of robbery is “normally a second-degree

felony” and the “range of punishment is normally two to 20 years in the

penitentiary and a fine of up to $20,000.” (RR2: 4, 5-6). The trial court then

explained the enhanced punishment range, continuing: “It’s my understanding that

                                     21
the State of Texas has indicted you, however, with two paragraphs, saying that

you’ve previously been convicted of a felony. If that is, in fact, true then the range

of punishment becomes 25 to 99 years or life and a fine up to $10,000.” (RR2: 4-

5). Williams confirmed that he understood the enhanced punishment range. (RR2:

5). The record reflects that the State’s only plea bargain offer to Williams had

been 40 years’ incarceration. (RR2: 6-7). Williams stated that his attorney had

advised him of the possibility of a life sentence. (RR2: 9). Additionally, in

admonishing Williams regarding full cooperation with his counsel, the trial court

commented that Williams was “facing the possibility of spending the rest of [his]

life in the penitentiary.” (RR2: 10-11). The trial court referenced Williams being

charged with “two habitual offenses, where the State has offered you 40 years.”

(RR2: 11). The discussion continued with the following exchange:

      THE COURT: You know, it looks like at least one of these cases that
                 they’re saying is a prior was an aggravated robbery. I
                 don’t know whether that’s true or not. But if you’ve
                 previously been convicted of an aggravated robbery
                 and now you’re charged with two new robberies, what
                 do you think is gonna happen if the jury finds you
                 guilty?

      THE DEFENDANT: Yes, ma’am.

      THE COURT: Okay? So let’s be realistic. How old are you?

      THE DEFENDANT: 55.

      THE COURT: Okay. All right. So you understand that any sentence
                 -- and 25 is the minimum. If you’re convicted on either
                                      22
                      one of these cases, 25 is the minimum. You
                      understand, as well as I understand, that a 25-year
                      sentence is a life sentence for you.

      THE DEFENDANT: Yes, ma’am.

(RR2: 11-12). After the prosecutor mentioned stacking any new sentences on the

sentence for which Williams was on parole, the judge again referenced the

enhanced punishment range Williams was facing of 25 years to life in prison.

(RR2: 13).

      Prior to the commencement of trial, the State filed a motion to strike the

second enhancement paragraphs alleging the prior conviction for possession of a

controlled substance along with a notice of its intent to substitute Williams’s

February 25, 1985 conviction for burglary of a building in cause number F84-

7884. (CR1: 83, 88; CR2: 89-90). The parties and the court discussed the State’s

request; Williams opposed the amendments.          (RR3: 13-15).     The discussion

included a reference to the minimum sentence of 25 years’ incarceration based on

the two enhancement paragraphs.

      After a jury determined guilt in these cases, the trial court held a hearing and

assessed punishment. At the beginning of the punishment hearing, Williams was

arraigned and pleaded not true to the two enhancement paragraphs in each case.

(RR6: 38-40). Deputy Margaret Brown Lewis, an employee of the Dallas County

Sheriff’s Department Identification Section, testified for the State that Williams is

                                      23
the person whose criminal convictions are reflected in State’s Exhibits 32 through

33, which show convictions for the following nine offenses on June 5, 1987:

robbery (habitual) in cause numbers F86-92918, F86-92951, and F86-92958;

aggravated robbery (habitual) in cause numbers F86-92917, F86-92950, F86-

93047, F86-93060, and F86-93048; and theft of property of a value of $750 or

more but less than $20,000 (habitual) in cause number F86-92699. (RR6: 43-50;

SX 31-33). The records proved that in cause numbers F86-92699, F86-92950\

(alleged as the first enhancement paragraph in one of the instant cases), and F86-

92951 (alleged as a first enhancement paragraph in the other instant case),

Williams had pleaded true to two enhancement paragraphs, including one for

burglary of a building in cause number F84-7884 (February 29, 1985), which is the

second enhancement paragraph alleged in the instant cases. (RR6: 53-54; SX 38-

40). The trial court also admitted the judgment reflecting Williams’s conviction

for burglary of a building in cause number F84-7884 (the second enhancement

paragraphs alleged in the instant cases), for which Williams was sentenced to three

years’ incarceration in the Texas Department of Corrections. (RR6: 58; SX 35).

Records reflected Williams’s additional convictions for burglary of a vehicle in

cause number F87-87264 on August 25, 1978 (RR6: 58-59; SX 34) and robbery in

cause number F03-58892 on November 2, 2004 (SX 33).




                                     24
      Williams testified in his own behalf during the punishment phase. He told

the judge he first went to the penitentiary when he was 17 years old and had spent

a total of 28 years in prison. (RR6: 65). Williams also indicated he had pleaded

guilty in every prior criminal case. (RR6: 67). On cross-examination, the State

reviewed Williams’s extensive criminal history, periods of incarceration, and

periods of parole, which Williams confirmed. (RR6: 69-77). During argument,

the State asked the trial court to sentence Williams to at least 35 years

confinement, which was the length of his most recent sentence. (RR6: 82).

      At the conclusion of the punishment evidence, the trial court assessed

Williams’s punishment at 50 years’ imprisonment in the Institutional Division of

the Texas Department of Criminal Justice in each case.       (RR6: 83). During

sentencing, the court did not announce oral findings on the enhancement

paragraphs.

       The trial court’s March 26, 2014 docket sheet entries in each case include

the following:

      Defendant [abbreviated] arraigned on enhancement paragraphs; pled
      NOT TRUE to both paragraphs; State called Deputy Brown-Lewis;
      State rests. Defense calls Michael Williams. Court finds both
      paragraphs true. Defendant [abbreviated] sentenced to 50 yrs [sic]
      imprisonment TDCJID with NO FINE; credited with back time. Cases
      are to run concurrent.

(CR1: 9; CR2: 8).



                                    25
      Regarding the first enhancement paragraphs, the written judgments reflect

“N/A” regarding Williams’s plea and the trial court’s findings. (CR1: 80, CR2:

81). The judgments reflect a plea of “not true” and a finding of “true” on the

second enhancement paragraphs. (CR1: 80, CR2: 81).

      Williams has Waived his Complaints

      To preserve a complaint for appellate review, the complaining party must

make a timely request, objection, or motion to the trial court.          The record

demonstrates that, prior to his trial and his punishment hearing, Williams was

aware he was subject to enhanced punishment due to the two enhancement

paragraphs. Knowing that his punishment was subject to findings regarding the

enhancement paragraphs, any complaint he had at sentencing about the trial court’s

failure to announce its findings on those paragraphs should have been raised when

the trial court was in the position to institute a remedy and pronounce its findings.

Fairness requires him to have raised the complaint when it was possible for the

court to easily and judiciously correct any error. This Court should not allow

Williams to fail to timely raise his issue and yet later complain that he was

sentenced outside the proper punishment range. Because he did not complain

about the trial court’s oral silence on the enhancement paragraphs in its

pronouncement of the sentence, Williams has failed to preserve his issues for

appeal. See Tex. R. App. P. 33.1(a); Garner, 858 S.W.2d at 659.

                                      26
      Application, Analysis, and the State’s Request to Reform the Judgments

      Williams was convicted of two second-degree felony robberies. See Tex.

Penal Code Ann. § 29.02(a)(2), (b) (West 2011) (defining robbery and indicating

that robbery under section 29.02 is a felony of the second degree). The State

further alleged two enhancement paragraphs identifying two prior felony

convictions, enhancing the punishment range to 25 to 99 years or life. See Tex.

Penal Code Ann. § 12.42(d) (West Supp. 2014) (providing a punishment range of

incarceration for 25 to 99 years or life for most felonies, including second degree

felonies, if it is shown the defendant has previously been finally convicted of two

felony offenses). On appeal, Williams contends that because the trial court did not

pronounce its findings regarding the enhancement paragraphs, he should have been

punished in the range of a second-degree felony, which is two to 20 years’

imprisonment.    (Williams’s Br. at 18, 20-21).    See Tex. Penal Code Ann. §

12.33(a) (West 2011). He argues his 50-year sentence is therefore outside the

punishment range and is void, and as a result he seeks a new punishment hearing.

(Williams’s Br. at 22).

      Williams’s contentions that the findings of “true” in the judgments for the

second enhancement paragraphs conflict with the trial court’s silence in its oral

pronouncement of the sentence fail because a trial court who alone assesses

punishment is not required to orally announce the findings.       See Seeker, 186

                                     27
S.W.3d at 39 (holding that the finding of true in the written judgment was not

inconsistent with the trial court’s oral silence regarding a particular paragraph

because the trial court had no duty to make an oral finding of true or not true on the

enhancement paragraph). Additionally, if a judgment can be reformed, it is not

void, and the State here asks this Court to reform the judgments to reflect

Williams’s pleas of “not true” and the trial court’s findings of “true” on the first

enhancement paragraphs in both cases. Alternatively, the State asks this Court to

abate these appeals to allow the trial court to correct the judgments.

      Although the judgments reflect that the first enhancement paragraphs were

“not applicable,” these entries are without a doubt contrary to the record. The

indictments in both cases reflect two enhancement paragraphs, the trial court fully

admonished Williams regarding both enhancements in each case, Williams entered

pleas to the first enhancement paragraphs, and the State offered and the trial court

admitted judgments reflecting convictions for the cases alleged in the first

enhancement paragraphs.

      Particularly, the record reflects that the trial court admonished Williams at a

pre-trial hearing approximately two weeks prior to trial on the enhanced

punishment ranges, based on the two enhancement paragraphs in each indictment.

(RR2: 4-5). In addition to the formal admonishments regarding the enhanced

punishment range, the trial court took an active role in discussing Williams’s need

                                      28
to cooperate fully with his attorney in preparing for trial. In support, the court

repeatedly referenced the enhanced punishment range, referring to the minimum

punishment of 25 years’ incarceration, the maximum punishment of life in prison,

and the fact that Williams was charged as a habitual offender. (RR2: 9-13). This

portion of the record demonstrates that all parties involved in this case were

cognizant of the applicable, enhanced punishment range. Additionally, the record

reflects that the State’s only plea bargain offer to Williams had been a sentence of

40 years’ incarceration, well above the maximum penalty of 20 years on an un-

enhanced robbery.     (RR2: 6-7, 11).      The record of the trial court’s formal

admonishments regarding the applicable enhanced punishment ranges along with

further mention of the enhanced punishment, including the minimum and

maximum sentence of incarceration, distinguishes this case from other cases in

which the record reflects no discussions of the existence of the enhancements.

      On the day of the trial setting but before jury selection began, the trial court

again reminded Williams that he was subject to two enhancement paragraphs and a

punishment range of 25 to 99 years’ incarceration or a life sentence. (RR3: 5-6).

Additionally, the State moved to amend the indictments by striking the second

paragraphs alleging a prior conviction for possession of a controlled substance in

cause number F82-86239 and substituting paragraphs alleging a conviction for

burglary of a building in cause number F84-7884. (RR3: 13-14). Defense counsel

                                      29
pointed out during his objection to the State’s proposal that Williams was subject

to a minimum sentence of 25 years’ incarceration. (RR3: 15). The trial court

granted the State’s request. (RR3: 15).

      At trial, the State’s evidence and Williams’s own testimony proved the

existence of a plethora of prior felony convictions, including those alleged in the

enhancement paragraphs. (RR6: 42-61, 65, 67, 69-77; SX 32-40). The records

further reflected Williams had previously pleaded true when the burglary of a

building case (in the substituted second enhancement paragraphs) was alleged as

an enhancement in prior convictions.

      In short, although the record does not reflect the oral pronouncements of the

trial court’s findings, the court admonished Williams multiple times regarding the

enhancements and the enhanced range of punishment for the offenses. Further, the

evidence, including certified records and William’s own testimony, proved he was

previously convicted of the alleged enhancements, the written judgments reflect

findings of true on the second enhancement paragraphs, and the trial court’s docket

sheets reflect the court’s intent regarding findings of true on both paragraphs.

      In his brief, Williams relies on this Court’s unpublished opinion in Johnson

v. State, Nos. 05-10-00465/00608-CR, 2011 Tex. App. LEXIS 6208, at *12-18

(Tex. App.—Dallas Aug. 10, 2011, no pet.) (memo op., not designated for

publication), which in turn relied on Turk v. State, 867 S.W.2d 883, 887-88 (Tex.

                                       30
App.—Houston [1st Dist.] 1993, pet. ref’d) (declining to reform the judgment

where Turk entered a plea of not true to one enhancement paragraph and a plea of

true to a second enhancement paragraph, no fact finding was made on the

enhancement paragraphs, yet the written judgment stated each was found true).

(Williams’s Br. at 20-21). Johnson is distinguishable, however, because the trial

court here explained the consequences of Williams’s punishment being enhanced

by two prior convictions. In Johnson, there was no record of the trial court

discussing enhancements with the defendant. Johnson, 2011 Tex. App. LEXIS

6208, at *17. Turk is also distinguishable because there the trial court did not

receive any evidence proving the enhancement, where the record lacked any proof

due to the fingerprint witness not being available to testify initially and the case

was continued before another judge. Turk, 867 S.W.2d at 887.

      For all of these reasons and based on the whole record, the judgments

properly recite findings of “true” to the second enhancement paragraphs, and this

Court should reform the judgments to reflect pleas of “not true” and findings of

“true” on the first enhancement paragraphs. Based on this record, the Court has

the “necessary data and information” to reform the judgments, and the State asks it

to do so. See Asberry, 813 S.W.2d at 529. The State asks this Court to overrule

Williams’s third and fourth points of error.




                                      31
                                     PRAYER

      The State prays that this Honorable Court will reform the judgments to

reflect Williams’s pleas of “not true” and the trial court’s findings of “true” on the

first enhancement paragraphs, and affirm the judgments, as amended.

                                                    Respectfully submitted,

                                                    /s/ Shelly O’Brien Yeatts
Susan Hawk                                          Shelly O’Brien Yeatts
Criminal District Attorney                          Assistant District Attorney
Dallas County, Texas                                State Bar No. 24033487
                                                    Frank Crowley Courts Building
                                                    133 N. Riverfront Blvd., LB-19
                                                    Dallas, Texas 75207-4399
                                                    (214) 653-3625
                                                    (214) 653-3643 fax
                                                    syeatts@dallascounty.org

                         CERTIFICATE OF SERVICE

       I hereby certify that on May 14, 2015 a true copy of the foregoing brief was
served on Julie Woods, Assistant Public Defender, 133 North Riverfront Blvd.,
LB-2, Dallas, Texas 75207-4399, by utilizing the service function in the Texas
efile system and by hand delivery.

                                                    /s/ Shelly O’Brien Yeatts
                                                    Shelly O’Brien Yeatts

                      CERTIFICATE OF COMPLIANCE

      I hereby certify that there are 7,016 words in this document, excluding the
caption, table of contents, index of authorities, statement of the case, signature,
proof of service, and certificate of compliance. This number does not exceed the
maximum number of words allowed. See Tex. R. App. Proc. 9.4(i)(2)(B)
(allowing 15,000 words in response briefs).
                                                    /s/ Shelly O’Brien Yeatts
                                                    Shelly O’Brien Yeatts

                                      32
