                                  NO. 07-09-00319-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL C

                                  NOVEMBER 9, 2010


                        DAVID TULIO RODRIGUEZ, APPELLANT

                                            v.

                           THE STATE OF TEXAS, APPELLEE


            FROM THE 84TH DISTRICT COURT OF HUTCHINSON COUNTY;

                 NO. 10,257; HONORABLE WILLIAM D. SMITH, JUDGE


Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


                               MEMORANDUM OPINION

      Appellant, David Tulio Rodriguez, was convicted of aggravated assault1 of a

public servant.2    The jury assessed appellant’s punishment at confinement in the

Institutional Division of the Texas Department of Criminal Justice (ID-TDCJ) for 50 years

and a fine of $10,000. Appellant appeals contending that the evidence is insufficient to

sustain the judgment and that the trial court committed reversible error by not reading




      1
          See TEX. PENAL CODE ANN. § 22.01(a)(2), § 22.02(a)(2) (Vernon Supp. 2010).
      2
          See id. § 22.02(b)(2)(B) (Vernon Supp. 2010).
the enhancement paragraphs to the jury and/or by failing to have appellant enter a plea

to the enhancements. Disagreeing with appellant, we affirm.


                              Factual and Procedural Background


         On November 9, 2008, Sergeant Josh Akins of the Fritch Police Department was

on duty conducting traffic patrol in Fritch, Texas. Akins’s attention was drawn to the

Taylor Mart where he observed a male carrying a trash can to the front of the store.

Since it was 12:30 a.m. and the store was closed, Akins found this to be suspicious

conduct. As Akins continued to observe the store, he observed another male throw

something through the door, and then the first male went into the store. Realizing that

he was observing a burglary in progress, Akins called for a backup unit and proceeded

without any emergency lights or siren to go to the front of the store. As Akins pulled up

to the front of the store, both individuals began running away. Akins proceeded to

pursue them on foot while giving verbal commands for them to stop.           Akins later

identified the first man as the co-defendant, Jose Martinez. The second male, the one

who entered the store, was eventually identified as appellant. He eventually stopped

Martinez by telling him to stop or he would “taze” him. As Akins was putting the hand-

cuffs on Martinez, he observed appellant go around the corner toward the back of the

store.


         While continuing to attempt to get the hand-cuffs on Martinez, Akins noticed a

vehicle, later identified as a golden-colored Pontiac Firebird. Akins realized that the

dome light in the interior of the vehicle was on. That struck him as unusual, and he

decided that, after cuffing Martinez, he would approach the vehicle. Akins observed

                                            2
appellant run from the back of the store to the vehicle and begin searching through the

car. Fearing appellant was looking for a weapon and knowing Martinez did not have

any weapons on him, Akins approached the vehicle. Akins began drawing his weapon

as he approached the vehicle. While approaching the vehicle, Akins told appellant not

to move. Akins ended up in front of the driver’s side of the car looking directly at

appellant. Akins testified that the uniform he was wearing at trial was the same uniform

he had been wearing during the encounter with appellant.


       At the moment Akins was in front of the car, appellant “gunned” the car. Akins

testified that the car spun its tires, and he jumped to the side to avoid the vehicle. The

rear of the car came directly at Akins, and he had to again step out of the way. Akins

testified that he was afraid that the car was going to hit him. As the car left, Akins fired

one round from his service revolver at the rear tire. Appellant escaped and was not

identified and captured until several days later. Appellant was charged with aggravated
                               3
assault on a public servant.


       During the State’s presentation of evidence, co-defendant Martinez was called as

a witness. Martinez testified that, after he had handed the trash can to appellant inside

the store, he stayed outside to act as a lookout. Martinez observed Akins driving toward

the store and told appellant, “There is a cop behind us.” It was at this time that both

Martinez and appellant tried to flee.




       3
        The original indictment contained a second count of burglary. However, the trial
court granted a motion for directed verdict against the State at the conclusion of the
State’s case.
                                             3
      Prior to the trial, the State filed a notice to seek enhancement of felony

punishment range of the aggravated assault on a public servant count in the indictment.

In the notice, the State alleges that appellant has three prior felony convictions. After

the jury found appellant guilty of aggravated assault on a public servant, the State

offered evidence to prove up the three prior felony convictions. However, the prior

felony convictions were not read to the jury, nor did appellant enter any type of plea to

these prior convictions, before the State offered proof of the priors. The Court’s Charge

on Punishment did contain the allegations of the three prior felony convictions and an

application paragraph as to those prior convictions. The jury subsequently returned a

verdict of confinement in the ID-TDCJ for 50 years with a fine of $10,000.


      Appellant has appealed contending that the evidence is both factually and legally

insufficient to support the judgment.       Specifically, appellant contends that the

evidentiary insufficiency goes to the element of appellant’s knowledge that Akins was a

public servant.   Additionally, appellant contends that the failure of the trial court to

require the enhancement paragraphs to be read and to obtain a plea from appellant

render the judgments reversible. We disagree and affirm.


                                 Evidentiary Sufficiency


      As an initial consideration, we observe that appellant’s appeal contends that the

evidence is both legally and factually insufficient. Appellant’s brief was prepared and

filed before the Texas Court of Criminal Appeals issued its opinion in Brooks v. State,

No. PD-0210-99, 2010 Tex.Crim.App. LEXIS 1240 *25-*26 (Tex.Crim.App. Oct. 6,

2010), wherein the court ruled that there is no distinction between a claim of legal as

                                            4
opposed to factual insufficiency of the evidence. Further, the court expressly overruled

Clewis v. State, 922 S.W.2d 126 (Tex.Crim.App. 1996), and its purported application to

factual sufficiency questions. Id. at *55. What the court appears to do is to urge the

reviewing court to apply a more rigorous application of the sufficiency test set forth in

Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Id. at *58.

Therefore, we will review appellant’s claims of evidentiary sufficiency under the

standard of review set forth in Jackson. See 443 U.S. at 319.


Standard of Review


       In assessing the sufficiency of the evidence, we review all the evidence in the

light most favorable to the verdict to determine whether any rational trier of fact could

have found the essential elements of the offense beyond a reasonable doubt. Jackson,

443 U.S. at 319; Ross v. State, 133 S.W.3d 618, 620 (Tex.Crim.App. 2004).            We

measure the legal sufficiency of the evidence against a hypothetically correct jury

charge. See Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997). Finally, when

reviewing all of the evidence under the Jackson standard of review, the ultimate

question is whether the jury’s finding of guilt was a rational finding. See Brooks, 2010

Tex.Crim.App. LEXIS 1240 at *37 (discussing Judge Cochran’s dissent in Watson v.

State, 204 S.W.3d 404, 448-50 (Tex.Crim.App. 2006) as outlining the proper application

of a single evidentiary standard of review).4



       4
         We note that this Court has at times quoted Moreno v. State, 755 S.W.2d 866,
867 (Tex.Crim.App. 1988) for the proposition that we had to uphold the verdict of the
jury unless it was irrational or unsupported by more than a mere modicum of evidence.
We view such a statement, insofar as a modicum of evidence being sufficient evidence,
                                                5
Analysis


      To prove the offense of aggravated assault on a public servant by use of a

deadly weapon, as alleged in the indictment, the State must prove:


             1) On or about November 9, 2010

             2) appellant

             3) intentionally and knowingly used a deadly weapon,

             4) an automobile, that in the manner of its use and intended use was

                capable of causing serious bodily injury or death,

             5) and appellant did then and there, threaten Josh Akins

             6) with imminent bodily injury or death

             7) and that appellant knew that Josh Akins was a public servant,

             8) attempting to lawfully discharge an official duty,

             9) attempting to detain appellant.


See TEX. PENAL CODE ANN. §§ 22.01(a)(2), 22.02(a)(2), 22.02(b)(2)(B); Malik, 953

S.W.2d at 240. Appellant’s evidentiary sufficiency argument is focused on whether he

had knowledge that Akins was a public servant. Therefore, we will review the record for

evidence of that element.


      The record shows that on the night in question Akins was on duty as a Fritch

Police Department Sergeant. Akins was driving a vehicle that had emergency lights

and equipment on it when he observed the burglary in progress and proceeded to the


as contrary to a rigorous application of the Jackson standard of review urged by the
Court in Brooks.
                                            6
Taylor store without activating his emergency equipment. Akins testified that he was

wearing the same uniform on the night in question that he wore on the day he testified.

That uniform was observed by the jury. The co-defendant, Martinez, testified that, while

acting as lookout, he saw Akins’s car approaching the Taylor store and stated to

appellant, “There is a cop behind us.” At that precise moment, appellant and Martinez

fled the store. While pursuing the two fleeing burglars, Akins yelled, “Stop or I will taze

you.” At that instance, Martinez, who was closer to Akins, stopped and went to the

ground. After attempting to secure Martinez, Akins saw appellant in the vehicle and

went toward him. Akins, while wearing his uniform, stood directly in front of the vehicle

being driven by appellant. Further, Akins testified that he made direct eye contact with

appellant while standing in front of the vehicle. The jury also saw the video of burglary

from the security camera in the store. During the examination of Martinez, the DVD was

played, and Martinez identified the officer getting out of his patrol vehicle. The jury also

observed this.


       In light of this record, when viewed in the light most favorable to the verdict, was

the jury acting rationally when it found appellant guilty beyond a reasonable doubt?

Jackson, 443 U.S. at 319; Ross, 133 S.W.3d at 620.        We think so, and, thus, overrule

appellant’s issue regarding the sufficiency of the evidence.


                                Enhancement Allegations


       Appellant’s final point is that the trial court committed reversible error when the

punishment phase of the trial commenced without the reading of the enhancement

paragraphs and by failing to require appellant to enter a plea to those allegations.

                                             7
Appellant defines his issue within the framework of article 36.01(a)(1) Texas Code of

Criminal Procedure.5 For purposes of our analysis, we will assume, arguendo, that the

trial court erred in not having the enhancement document read and in not receiving

appellant’s pleas to the allegations prior to commencing the punishment portion of the

trial.


Standard of Review


         Appellant contends, at least by implication, that we must review the actions of the

trial court under an abuse of discretion standard of review. According to appellant’s

reasoning, the Texas Court of Criminal Appeals decision in Turner v. State, 897 S.W.2d

786 (Tex.Crim.App. 1995), controls the outcome of the case before the court. Turner

concerned a charge of driving while license suspended with a prior conviction for the

same offense alleged in the information to raise the punishment range from a Class B

misdemeanor to a Class A misdemeanor. Id. at 787. In Turner, as in the case before

this Court, the trial court did not have any enhancement allegation read, nor did the trial

court receive the defendant’s plea to the enhancement allegation. Ultimately, the court

in Turner found that the trial court’s action was error, and that the error was not subject

to a harm analysis. Id. at 789. Appellant asks us to apply the same reasoning.


         The State counters that, because the enhancement allegations were not read to

the jury and no pleas were entered, the issues involved in the enhancements were

never joined.     See Warren v. State, 693 S.W.2d 414, 415 (Tex.Crim.App. 1985).



         5
          Further reference to the Texas Code of Criminal Procedure will be by reference
to “article _____.”
                                              8
Further, the State contends since the appellant was punished within the range of a first-

degree felony, the applicable range for the offense appellant was convicted of, there

was simply no error. Id.


       We find that appellant’s reliance on Turner is misplaced. First, Turner involved a

fact scenario not present in our case, that is the enhancement allegations were

contained in a paragraph within the charging instrument. Second, since Turner was

handed down, the Texas Court of Criminal Appeals has determined that enhancement

allegations do not need to be contained within the body of the primary charging

document. See Brooks v. State, 957 S.W.2d 30 (Tex.Crim.App. 1997). This decision

implicates the basic underpinnings of Turner: that the trial court was required to strictly

comply with the terms of article 36.01, and that such compliance was not subject to any

harm analysis under Texas Rule of Appellate Procedure 81(b)(2).6 Finally, under the

provisions of Rule 44.2, we are instructed to review alleged error, constitutional or

nonconstitutional, for harmlessness. See TEX. R. APP. P. 44.2.7


       We, likewise, do not apply the principles of Warren because the factual scenario

does not support the same conclusion in our case. See 693 S.W.2d 414, 415. In

Warren, the defendant objected to the failure to read the enhancement paragraphs after

the jury punishment verdict was received but before sentence was pronounced. Id.

The trial court crossed out the references to the enhancements out of the judgment and


       6
        Texas Rules of Appellate Procedure were amended effective September 1,
1997, and the current rule 44.2(b) was enacted.
       7
        Further reference to the Texas Rules of Appellate Procedure will be by
reference to “Rule ___” or “rule ___.”
                                            9
sentence and took the position that the issue was not properly raised. Id. However, the

Texas Court of Criminal Appeals said the issue was preserved, reversed the judgment

and sentence, and sent the case back to the trial court. Id. In our case, there is no

question about the fact that the issue now complained of by appellant was not raised by

objection or motion for new trial.


       The proper standard for review of this case is as a charge error. See Marshall v.

State, 185 S.W. 3d 899, 903 (Tex.Crim.App. 2006). As in Marshall, the jury charge

contained specific paragraphs referencing the specific allegations of prior convictions

and the application of each to a punishment verdict. Yet, appellant did not object that

there had been no enhancement allegations read to the jury and that he had not

pleaded to any enhancement allegations. Finally, there was a motion for new trial filed

in this case, yet the motion makes no reference to the enhancement allegations.

Therefore, we find ourselves reviewing the alleged charge error pursuant to the

egregious harm standard set forth in Almanza v. State, 686 S.W.2d 157, 171

(Tex.Crim.App. 1984). Id.


Analysis


       When evaluating harm, we assess the harm in light of the entire record. Id. Any

error caused will be considered egregious error if it affects the very basis of the case

and deprived the defendant of a valuable right or vitally affected a defensive theory.

Drury v. State, 225 S.W.3d 491, 504 (Tex.Crim.App. 2007) (citing Hutch v. State, 922

S.W.2d 166, 171 (Tex.Crim.App. 1996)).



                                          10
       During the presentation of the State’s case on punishment, the only witness was

the fingerprint expert. The only exhibits were the “pen packets,” introduced to prove up

appellant’s prior convictions. When appellant testified during the punishment phase, he

acknowledged the prior convictions and, very importantly, he acknowledged that if the

jury found the allegations of the prior convictions true he would be facing a minimum

sentence of 25 years incarceration in the ID-TDCJ.      However, the thrust of appellant’s

testimony was that he had always been convicted of burglary but had never been a

violent offender. When the charge was prepared the jury was advised of the three

priors alleged in the State’s filing of the notice of intent to seek enhancement of

punishment pursuant to § 12.42(d). Further, the jury was advised about the application

of each factual scenario, a finding of true as to one, two, or all three of the prior felony

convictions. Finally, during the argument of the punishment phase, appellant argued he

had never been a violent person and the amount of time he would have to serve if the

jury found that appellant had committed all three prior felonies. Essentially, this case

demonstrates that the core or ultimate issue before the jury was the appropriate amount

of prison time to which appellant would be sentenced. The State and appellant each

had a theory of how the jury was to arrive at that term.          The failure to read the

enhancement paragraphs or receive a plea to those paragraphs did nothing to alter this

determination.    Any supposed harm we could outline would be theoretical and,

therefore, not the actual harm required to be shown. See Dickey v. State, 22 S.W.3d

490, 492 (Tex.Crim.App. 1999). There being no egregious harm shown, we overrule

appellant’s last issue.



                                            11
                                       Conclusion


       Having overruled appellant’s issues, we affirm the trial court judgment.




                                                       Mackey K. Hancock
                                                            Justice



Do not publish.



Pirtle, J., concurring.




                                            12
