      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-11-00654-CR



                                William Ray Sponsler, Appellant

                                                 v.

                                  The State of Texas, Appellee


 FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 26TH JUDICIAL DISTRICT
 NO. 10-1496-K26, THE HONORABLE BILLY RAY STUBBLEFIELD, JUDGE PRESIDING



                            MEMORANDUM OPINION


               A jury convicted appellant, William Ray Sponsler, of possession of a controlled

substance, methamphetamine, in an amount of four grams or more but less than 200 grams, and

unlawful possession of a firearm by a felon. See Tex. Health & Safety Code § 481.115(a), (d); Tex.

Penal Code § 46.04(a)(1). The jury found the enhancement paragraphs alleging previous sequential

felony convictions to be true and assessed appellant’s punishment, enhanced pursuant to the habitual-

offender punishment provision of the Penal Code, at confinement for 61 years in the Institutional

Division of the Texas Department of Criminal Justice for each of the two offenses. See Tex. Penal

Code § 12.42(d). On appeal, appellant complains about the trial court’s denial of his motion to

suppress, error in the punishment jury charge, and the disqualification of a defense witness.

Additionally, through our own review of the record, we have found clerical errors in the written
judgments of conviction. We will modify the judgments to correct the clerical errors and, as

modified, affirm the judgments of conviction.


                       FACTUAL AND PROCEDURAL BACKGROUND

                The record reflects that John Hawkins, a narcotics detective with the Cedar Park

Police Department, received numerous citizen complaints that appellant was selling

methamphetamine out of his residence. Detective Hawkins was personally familiar with appellant,

having arrested him previously for manufacturing methamphetamine, and knew that he had a prior

conviction for the unlawful receipt or transfer of certain chemicals stemming from that arrest. As

a result of these citizen complaints, detectives conducted surveillance of appellant’s residence over

a period of several days in late October 2010. During that time, detectives observed numerous cars

coming and going from the residence, staying only for a short period of time, in a pattern indicative

of the sale of narcotics.

                On the evening of October 20, 2010, Detective Hawkins and Detective Michele

Christensen, another detective with the Cedar Park Police Department who was assisting in the

investigation, observed a pickup truck arrive at appellant’s property and stay for approximately 30

minutes, a stop-and-go visit consistent with the pattern they had observed. When the truck left

appellant’s property, the detectives followed the vehicle, observed a traffic violation, and dispatched

a patrol unit to initiate a traffic stop. Officer Joseph Christensen, a patrol officer with the Cedar Park

Police Department, initiated a traffic stop of the pickup. Officer Christensen determined that the

driver of the truck was Mark Boatright. After he made contact with Boatright, the officer asked

Boatright for consent to search his truck and his person. Boatright consented. During the search of

                                                    2
Boatright, the officer found, in one of Boatright’s socks, a clear plastic baggie containing a substance

he believed, based on his training and experience, to be methamphetamine. On discovering the

baggie, Officer Christensen asked several questions, including what the substance was and where

Boatright got it. Boatright admitted that the substance was methamphetamine and disclosed that he

obtained it from appellant. Officer Christensen then read Boatright his Miranda warnings1 and

placed him in his patrol car as officers conducted the search of the pickup.

                Detective Christensen then arrived at the scene of the traffic stop. Officer Christensen

and Detective Christensen then questioned Boatright in greater detail about the methamphetamine

purchase from appellant. Boatright explained that he purchased the methamphetamine from

appellant that evening, prior to the traffic stop.       He indicated that he had also purchased

methamphetamine from appellant earlier that day. He also revealed that he had been purchasing

drugs from appellant for approximately six months. Boatright gave detailed information about

appellant’s workshop and his previous drug purchases from appellant. Officer Christensen

then communicated with Detective Hawkins, who then obtained a search warrant for

appellant’s workshop.

                The Cedar Park Police Special Response Team executed the search warrant by

gaining entrance to the property and securing the scene for the search team. A number of people

were found on the property, one of whom fled out the back of the workshop but was detained by

officers outside. Appellant was the only person seized inside the workshop building. After the area


       1
         See Miranda v. Arizona, 384 U.S. 436, 478–79 (1966) (requiring demonstration of use of
procedural safeguards effective to secure privilege against self-incrimination before evidence
obtained as result of custodial interrogation may be used against defendant).

                                                   3
had been secured, officers entered the building and began their search of the workshop and the

bedroom in the back of the workshop. Under a sink cabinet in the bedroom portion of the building,

Detective Christensen found three bags of a substance she believed, based on her training and

experience, to be methamphetamine. Subsequent lab testing revealed that the substance, weighing

5.36 grams, did in fact contain methamphetamine. Officers also found a number of small clear

empty plastic baggies in the sink area. On the bed in plain view, officers found a bag of syringes and

some metal pipes that could be used to smoke methamphetamine. Detective Hawkins also found

two rifles in the bedroom leaning against a wall. Based on evidence found during the search,

Detective Hawkins subsequently obtained an additional search warrant to search the remainder of

the property, including all buildings and structures. Appellant was arrested and subsequently

charged in a two-count indictment with the offenses of possession of a controlled substance and

unlawful possession of a firearm by a felon. See Health & Safety Code § 481.115(a), (d); Penal

Code § 46.04(a)(1).

               Before trial, appellant filed five separate motions to suppress. The motions sought

to suppress evidence seized pursuant to the search warrant executed on his residence and evidence

resulting from his detention.2 In the motions, appellant alleged that law enforcement officers lacked

probable cause to search his residence, that the search warrant affidavit failed to establish probable

cause to search his residence, that the search exceeded the scope of the search warrant, and that he




       2
        In addition, one of the motions to suppress explicitly sought to suppress any oral or written
statements of appellant. However, the record demonstrates that no such statements were made.

                                                  4
was illegally detained, searched, and arrested. The trial court conducted a hearing on the motions

during trial and denied them.

               At trial, law enforcement officers testified about the above-described investigation

and search. A chemist from the Department of Public Safety laboratory testified about his analysis

of the methamphetamine. In addition, appellant’s niece testified about the ownership and living

situation of the property. She stated that appellant’s mother owned the property and lived in the

residence but allowed others to stay on the property, including appellant, who lived by himself in the

bedroom at the back of the workshop. The State also offered an “Agreed Stipulation” in which

appellant admitted that he had previously been convicted of the felony offense of unlawful transfer

or receipt of a chemical precursor on January 24, 2000, had gone to prison for that offense, and had

been released from confinement in July of 2008. Four witnesses, including appellant’s common law

wife and his mother, testified on his behalf.

               The jury found appellant guilty of both possession of a controlled substance and

unlawful possession of a firearm by a felon, as alleged in the indictment. At the punishment phase

of trial, appellant entered pleas of true to the habitual-offender enhancement allegations of the

indictment. The State introduced penitentiary packets reflecting appellant’s six prior felony

convictions as well as evidence showing his parole record for each of his prior convictions.

Detective Hawkins also testified about the circumstances of his previous arrest of appellant, which

had resulted in his conviction for unlawful receipt of a chemical precursor. Appellant’s mother again

testified on appellant’s behalf, indicating that her son had a long-time drug problem but that since

his last release from prison she had not seen any indication that he was using drugs. The jury



                                                  5
assessed appellant’s punishment at 61 years’ imprisonment on each count. The trial court imposed

the sentences in accordance with the jury’s verdicts, ordering the sentences to run concurrently.

Appellant now appeals his convictions.


                                           DISCUSSION

                In his first two points of error, appellant argues that the trial court erred in denying

his motion to suppress evidence obtained pursuant to the search warrant.3 In his third point of error,

he complains of error in the court’s jury charge on punishment. In his fourth point of error, appellant

challenges the trial court’s exclusion of the testimony of defense witness Mark Boatright.


                                     Search Warrant Affidavit

                Appellant claims in his first point of error that the affidavit in support of the search

warrant failed to establish probable cause to believe that he possessed methamphetamine at

his workshop.

                The Fourth Amendment establishes a constitutional preference that a search be

conducted pursuant to a warrant. Jones v. State, 364 S.W.3d 854, 856–57 (Tex. Crim. App.), cert.

denied, 133 S. Ct. 370 (2012) (citing Illinois v. Gates, 462 U.S. 213, 236 (1983)); see U.S. Const.

amend. IV. Under Texas law, no search warrant may issue without a sworn affidavit that sets forth

facts sufficient to establish probable cause. Tex. Code Crim. Proc. arts. 1.06, 18.01(b), (c); see Tex.

Const. art. I, § 9. Probable cause exists when, under the totality of the circumstances, there is a fair




        3
           As noted previously, appellant filed five motions to suppress. However, the parties and
the trial court refer to them, and treat them, as a single motion to suppress.

                                                   6
probability that contraband or evidence of a crime will be found at the specified location at the time

the warrant is issued. State v. Duarte, 389 S.W.3d 349, 354 (Tex. Crim. App. 2012); see State

v. Delagarza, 158 S.W.3d 25, 26 (Tex. App.—Austin 2005, no pet.) (facts contained in probable

cause affidavit must be sufficient to justify conclusion that object of search is probably on premises

at time warrant is issued). The test for finding probable cause is “whether a reasonable reading by

the magistrate would lead to the conclusion that the affidavit provided a substantial basis for the

issuance of the warrant, thus, the magistrate’s sole concern should be probability.” Rodriguez

v. State, 232 S.W.3d 55, 60 (Tex. Crim. App. 2007).

               Because of the constitutional preference for searches to be conducted pursuant to a

warrant, we apply a highly deferential standard of review when we review the magistrate’s decision

to issue a search warrant. Bonds v. State, 403 S.W.3d 867, 873 (Tex. Crim. App. 2013); State

v. McLain, 337 S.W.3d 268, 271 (Tex. Crim. App. 2011); State v. Webre, 347 S.W.3d 381, 384 (Tex.

App.—Austin 2011, no pet.). Under this highly deferential standard, we interpret the affidavit in a

commonsensical and realistic manner, and we defer to all reasonable inferences that the magistrate

could have made. McLain, 337 S.W.3d at 271; Rodriguez, 232 S.W.3d at 61; see Bonds,

403 S.W.3d at 873. We consider the totality of the circumstances and determine whether there are

sufficient facts stated within the four corners of the affidavit, coupled with inferences from those

facts, to establish a fair probability that evidence of a particular crime would likely be found at a

specified location. Rodriguez, 232 S.W.3d at 62; see Flores v. State, 319 S.W.3d. 697, 702 (Tex.

Crim. App. 2010). “The focus is not on what other facts could or should have been included in the




                                                  7
affidavit; the focus is on the combined logical force of facts that are in the affidavit.” Duarte,

389 S.W.3d at 354–55 (citing Rodriguez, 232 S.W.3d at 62).

               As long as the magistrate had a substantial basis for concluding that probable cause

existed, we will uphold the magistrate’s probable-cause determination. Bonds, 403 S.W.3d at 873;

McLain, 337 S.W.3d at 271; see Gates, 462 U.S. at 238–39. Although the reviewing court is not a

“rubber stamp,” “the magistrate’s decision should carry the day in doubtful or marginal cases, even

if the reviewing court might reach a different result upon de novo review.” Jones, 364 S.W.3d at

856–57 (quoting Flores, 319 S.W.3d at 702).

               Considering the totality of the circumstances in the present case, we hold that the

affidavit sufficiently established probable cause to justify the issuance of the search warrant.

Appellant’s residence had been the subject of numerous citizen complaints of reported narcotics

activity. As a result of these reports, appellant’s property had been placed under surveillance.

During that surveillance, officers observed a pickup truck come and go from the workshop in a

manner indicative of narcotics activity. This observation corroborated the information provided by

the citizen complaints. Further, the driver of that truck, Boatright, was found in possession of

methamphetamine shortly after he left appellant’s property. He indicated that he obtained the

methamphetamine from appellant earlier that evening as well additional methamphetamine from him

earlier that day. Appellant’s previous arrest for the manufacture of methamphetamine, by this

affiant, also lends corroboration to the statements of the citizen complaints and Boatright. From the

face of the detective’s affidavit, the magistrate had a substantial basis to find, either directly or




                                                 8
through reasonable inference, that there was a fair probability that methamphetamine or evidence

of a crime would be found at appellant’s workshop at the time the affidavit was signed.

               Appellant contends that the unconfirmed information from Boatright (that he obtained

his methamphetamine from appellant) alone cannot support a finding of probable cause. See Duarte,

389 S.W.3d at 356 (“The citizen-informer is presumed to speak with the voice of honesty and

accuracy. The criminal snitch who is making a quid pro quo trade does not enjoy any such

presumption; his motive is entirely self-serving.”). However, contrary to appellant’s claim, this

information was neither uncorroborated nor the sole basis for the probable-cause finding.

Boatright’s report that he obtained the narcotics from appellant prior to the traffic stop was

corroborated by the fact that law enforcement officers observed him at appellant’s home, in a

come-and-go visit consistent with narcotics activity, immediately before the traffic stop during which

he was found possessing methamphetamine. Moreover, appellant’s property was under surveillance

because of “numerous citizen complaints” of suspected narcotics activity. Finally, appellant was

personally known to the affiant for having a criminal history involving methamphetamine.

               Considering the totality of the circumstances, we hold that the affidavit sufficiently

established probable cause justifying the issuance of the search warrant. Appellant’s first point of

error is overruled.


                                           Franks Claim

               In his second point of error, appellant contends that the evidence seized from his

workshop pursuant to the search warrant should have been suppressed because Detective Hawkins’s

search-warrant affidavit contained a false statement that was made knowingly and intentionally.

                                                  9
Specifically, appellant challenges the statement in the affidavit that reflects that Boatright was given

his Miranda warnings before he disclosed that he obtained methamphetamine from appellant, rather

than after. He contends that but for this statement, there would not have been sufficient probable

cause for a warrant, and the trial court erred in not striking that portion of the affidavit and granting

his motion to suppress.

                The Fourth Amendment requires that a defendant be allowed to challenge the veracity

of a probable cause affidavit “where the defendant makes a substantial preliminary showing that a

false statement knowingly and intentionally, or with reckless disregard for the truth, was included

by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding

of probable cause.” Franks v. Delaware, 438 U.S. 154, 155–56 (1978); see Emack v. State,

354 S.W.3d 828, 837 (Tex. App.—Austin 2011, no pet.). To require the trial court to hold a Franks

evidentiary hearing and to preserve the issue for appellate review, a defendant must (1) allege

deliberate falsehood or reckless disregard for the truth by the affiant, specifically pointing out the

portion of the affidavit claimed to be false; (2) accompany these allegations with an offer of proof

stating the supporting reasons; and (3) show that, when the portion of the affidavit alleged to be false

is excised from the affidavit, the remaining content is insufficient to support the issuance of

the warrant. Harris v. State, 227 S.W.3d 83, 85–86 (Tex. Crim. App. 2007); Cates v. State,

120 S.W.3d 352, 356 (Tex. Crim. App. 2003). Specific allegations and evidence must be apparent

in the pleadings in order for a trial court to even entertain a Franks proceeding. Harris, 227 S.W.3d

at 85.




                                                   10
               Appellant did not meet the requirements necessary to obtain a Franks hearing in the

trial court. He did not allege a Franks violation in any of the five motions to suppress.4 Appellant’s

counsel made no mention of Franks until his closing argument at the suppression hearing when he

addressed the issue of the sufficiency of the affidavit to establish probable cause. Even then he

complained of Detective Hawkins’s failure to question Officer Christensen specifically about the

timing of events—rather than just accepting a narrative from the officer—and put that information

in his affidavit, characterizing that failure as a “material omission” under Franks.5

               Appellant’s counsel’s mere reference to Franks in his closing argument did not satisfy

the pleading and evidentiary requirements for obtaining a Franks hearing. See Harris, 227 S.W.3d

       4
         The only arguable reference to Franks in any of appellant’s motions to suppress was the
following sentence in counsel’s affidavit attached to his last motion filed the day before trial began:

       After a review of all the provided discovery in this case, it is my belief that the
       individual John Hawkins of the Cedar Park Police Department, in filing the affidavit
       which is contained in both search warrants, in this case, either made a material
       omission, deliberate falsehood, or acted with a reckless disregard for the truth.

There is no mention of what specific portion of Hawkins’s affidavit was allegedly false or what the
material omission was, nor any offer of proof to contradict whatever that alleged misrepresentation
was. This conclusory assertion falls far short of what is required under Franks. See Harris v. State,
227 S.W.3d 83, 85 (Tex. Crim. App. 2007); see also Franks v. Delaware, 438 U.S. 154, 171 (1978)
(“To mandate an evidentiary hearing, the challenger’s attack must be more than conclusory and must
be supported by more than a mere desire to cross-examine.”).
       5
           We note that by its express terms, the holding in Franks applies only to affirmative
misstatements contained in a probable-cause affidavit. Emack v. State, 354 S.W.3d 828, 837 (Tex.
App.—Austin 2011, no pet.). Neither the Supreme Court nor the Texas Court of Criminal Appeals
has held that Franks applies to mere omissions of fact, although several lower courts have so held.
Id. at 837–38; see Darby v. State, 145 S.W.3d 714, 722 (Tex. App.—Fort Worth 2004, pet. ref’d)
(collecting cases); see also Massey v. State, 933 S.W.2d 141, 146 n.3 (Tex. Crim. App. 1996) (“This
Court has indicated that we might not recognize application of Franks to omissions of fact.”).
However, we need not resolve that issue here because appellant characterizes the inaccuracies about
the timing of the Miranda warnings as a false statement rather than a material omission.

                                                  11
at 85. Nevertheless, although we are not convinced that appellant made a “substantial preliminary

showing” under Franks, the trial court opted to entertain the Franks issue raised by counsel’s

argument at the suppression hearing.6 The question then becomes whether appellant met his burden

of proving a knowing false statement.

               An affidavit supporting a search warrant begins with a presumption of validity.

Cates, 120 S.W.3d at 355. Appellant has the burden of establishing by a preponderance of the

evidence the allegation of perjury or reckless disregard for the truth. Franks, 438 U.S. at 156;

Harris, 227 S.W.3d at 85; Emack, 354 S.W.3d at 838; see also Fenoglio v. State, 252 S.W.3d 468,

472–73 (Tex. App.—Fort Worth 2008, pet. ref’d). We review the trial court’s ruling on a Franks

claim under the same standard applied to search-and-seizure issues generally: we give almost total

deference to the court’s rulings on questions of historical fact and mixed questions of law and fact

that turn on an evaluation of credibility and demeanor, but we review de novo the trial court’s

application of the law to those facts. Emack, 354 S.W.3d at 838; Jordan v. State, 271 S.W.3d 850,

854 (Tex. App.—Amarillo 2008, pet. ref’d); Fenoglio, 252 S.W.3d at 473; see Johnson v. State,

68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002).

               As we review the record to determine whether appellant met his burden of showing

deliberate falsity or reckless disregard for the truth, we are mindful that the Fourth Amendment

requires a truthful factual showing when determining probable cause. See Franks, 438 U.S. at




       6
         The record reflects that the trial court rejected appellant’s Franks claim because the court
found that Detective Hawkins accurately stated the sequence of events in his affidavit. During oral
argument, however, the State conceded that the trial court’s finding with respect to that issue
was incorrect.

                                                 12
164–65. “Truthful,” however, does not mean that every fact recited in the affidavit must be precisely

accurate, “for probable cause may be founded upon hearsay and upon information received from

informants, as well as upon information within the affiant’s own knowledge that sometimes must

be garnered hastily.” Id. at 165. Rather, “truthful” in this context means that the information put

forth in the affidavit is believed or appropriately accepted by the affiant as true. Id.; Clement v. State,

64 S.W.3d 588 (Tex. App.—Texarkana 2001, pet. ref’d); see Janecka v. State, 937 S.W.2d 456, 462

(Tex. Crim. App. 1996). If the statement in the search-warrant affidavit that is claimed to be false

or made in reckless disregard for the truth only evidences an instance where the police have been

merely negligent or mistaken in checking or recording the facts relevant to a probable-cause

determination, it is beyond the scope of Franks. Dancy v. State, 728 S.W.2d 772, 783 (Tex. Crim.

App. 1987) (misstatement in affidavit that is result of simple negligence or inadvertence will not

invalidate warrant); see Franks, 438 U.S. at 171 (“[a]llegations of negligence or innocent mistake

are insufficient” to warrant striking portions of affidavit).

                Here, the evidence showed that Detective Hawkins’s statements regarding the events

of Boatright’s traffic stop, including the time of the Miranda warnings, were included in the affidavit

because he believed and appropriately accepted the information set forth in the affidavit as true.

Appellant asserts that the detective intentionally re-ordered the sequence of events but offered no

proof to that effect at the suppression hearing. There was no showing during the suppression hearing

that the detective’s statement was made with the type of knowledge, intent, or recklessness

contemplated by Franks. In fact, appellant never established that Detective Hawkins was aware that

his statement concerning the timing of the Miranda warnings was incorrect, either at the time he



                                                    13
included the statement in his affidavit or even when he testified at the suppression hearing.

Detective Hawkins was never asked during the suppression hearing whether the statement in his

affidavit was a false statement, a knowing or intentional misrepresentation, a statement made in

reckless disregard for truth, or a simple mistake. The only questioning concerning Officer

Christensen’s encounter with Boatright demonstrated that the detective merely put the information

he received from the officer into the affidavit and he believed, or appropriately accepted, it to

be accurate:


       Q.      You state in the affidavit that Christensen observed the bag and saw what he
               believed to be, due to his training and experience, methamphetamine, period.
               And then Boatwright [sic] was issued his Miranda warnings at this time?

       A.      Correct.

       Q.      Is that what Officer Christensen told you?

       A.      I would assume that’s what I was told, yes.

       Q.      Okay. Because you had no other knowledge, other than what was being
               provided to you?

       A.      That is correct.


Moreover, Detective Hawkins’s testimony also reflected that, contrary to knowingly making a false

statement or one in disregard of the truth, he attempted to state correct information in his affidavit:


       Q.      In the affidavits that were attached to the search warrant, did you make every
               effort to communicate to the judge as accurately as possible the information
               that you had that was the basis to believe there was probable cause to find the
               drugs in this location?

       A.      Yes.

                                                  14
Although Detective Hawkins’s statement concerning the timing of the Miranda warnings ultimately

proved to be incorrect, the record reflects that this misstatement resulted from a misunderstanding

or miscommunication between the officers, which amounts, at most, to mere negligence by Detective

Hawkins. It does not indicate that Hawkins intentionally, knowingly, or with reckless disregard for

the truth placed a false assertion in the affidavit. Innocent mistakes or even negligence are not

sufficient to support a Franks claim. See Franks, 438 U.S. at 171; Dancy, 728 S.W.2d at 783.

               Having reviewed the record and the applicable standards of review, we conclude that

the trial court could have reasonably found that Detective Hawkins did not intentionally or

knowingly make a false statement or one in reckless disregard for the truth in his search warrant

affidavit. Accordingly, the trial court did not abuse its discretion by refusing to suppress the

evidence based on error contained in the affidavit. We overrule appellant’s second point of error.


                                       Parole Instruction

               In his third point of error, appellant contends that he suffered egregious harm

because the statutory parole instruction given in the punishment charge was based on the wrong

statutory provision.

               We review alleged jury-charge error in two steps: first, we determine whether error

exists; if so, we then evaluate whether sufficient harm resulted from the error to require

reversal. Ngo v. State, 175 S.W.3d 738, 743–44 (Tex. Crim. App. 2005); Swearingen v. State,

270 S.W.3d 804, 808 (Tex. App.—Austin 2008, pet. ref’d); see Sakil v. State, 287 S.W.3d 23, 25

(Tex. Crim. App. 2009).




                                                15
                The trial court is required to give the jury a written charge setting forth the law

applicable to the case. Tex. Code Crim. Proc. art. 36.14. The judge’s duty to instruct the jury on the

applicable law exists even when defense counsel fails to object to inclusions or exclusions in the

charge. Taylor v. State, 332 S.W.3d 483, 486 (Tex. Crim. App. 2011). The jury charge should tell

the jury what law applies and how it applies to the case. Delgado v. State, 235 S.W.3d 244, 249

(Tex. Crim. App. 2007); see Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim. App. 1996) (“The

purpose of the jury charge is to inform the jury of the relevant law and guide them in applying

that law.”).

                Section 4 of article 37.07 of the Texas Code of Criminal Procedure requires that the

jury instructions in the punishment charge contain information on parole law. See Code Crim. Proc.

art. 37.07, § 4; Taylor v. State, 233 S.W.3d 356, 359 (Tex. Crim. App. 2007). In most cases, when

a defendant is found guilty of a felony offense, and the jury assesses punishment, the trial court is

statutorily mandated to include the prescribed parole and good-time instruction in its charge. See

Code Crim. Proc. art. 37.07, § 4; Stewart v. State, 293 S.W.3d 853, 856 (Tex. App.—Texarkana

2009, pet. ref’d). This instruction explains generally the concepts of good-conduct time and parole,

states the defendant’s eligibility for parole in terms of calendar years or sentence portion, and states

that no one can predict whether parole or good time might be applied to the defendant. See Code

Crim. Proc. art. 37.07, § 4(a)–(c); Luquis v. State, 72 S.W.3d 355, 366 (Tex. Crim. App. 2002). On

appeal, the reviewing court presumes the jury followed these instructions as given. Luquis,

72 S.W.3d at 366.




                                                  16
                 The statute “specifically sets out three lengthy, alternative jury charges concerning

the parole law; and those are to be chosen based on a very exacting and at least potentially confusing

set of conditions.” Stewart, 293 S.W.3d at 855 (citing Code Crim. Proc. art. 37.07, § 4(a)–(c)).

“Depending on the offense of which a defendant has been convicted, whether his . . . sentence is to

be enhanced, and whether a deadly-weapon finding has been made . . ., the trial court is to select

which one of the three alternatives will be given to the jury.” Id. at 855–56. If prior convictions

have been alleged for enhancement of punishment as provided by section 12.42(d) of the Penal Code,

the trial court is required to give the parole-eligibility instruction set forth in section 4(b). See Code

Crim. Proc. art. 37.07, § 4(b). If the judgment contains an affirmative finding under section 3g(a)(2)

of article 42.12 of the Code of Criminal Procedure,7 the trial court is required to give the parole

eligibility instruction set forth in section 4(a). See id. art. 37.07, § 4(a). Tracking the statutory

language of article 37.07, section 4(b), the trial court’s charge on punishment instructed the jury that:


        Under the law applicable in this case, if the defendant is sentenced to a term of
        imprisonment, he will not become eligible for parole until the actual time served plus
        any good conduct time earned equals one-fourth of the sentence imposed or 15 years,


        7
            Section 3g(a)(2) of article 42.12 limits the availability of community supervision

        to a defendant when it is shown that a deadly weapon as defined in Section 1.07,
        Penal Code, was used or exhibited during the commission of a felony offense or
        during immediate flight therefrom, and that the defendant used or exhibited the
        deadly weapon or was a party to the offense and knew that a deadly weapon would
        be used or exhibited. On an affirmative finding under this subdivision, the trial court
        shall enter the finding in the judgment of the court. On an affirmative finding that
        the deadly weapon was a firearm, the court shall enter that finding in its judgment.

Tex. Code Crim. Proc. art. 42.12, § 3g(a)(2). A finding under this section is known as an affirmative
deadly weapon finding.

                                                   17
       whichever is less. Eligibility for parole does not guarantee that parole will be
       granted.


See Code Crim. Proc. art. 37.07, § 4(b).

               Appellant argues that instead of the habitual-offender parole instruction provided in

section 4(b), the charge should have contained the deadly-weapon-finding parole instruction

provided in section 4(a). Appellant bases his argument on “the implied finding of a deadly weapon”

resulting from his conviction for the offense of unlawful possession of a firearm by a felon. While

it is true that a firearm is a deadly weapon per se, see Tex. Penal Code § 1.07(a)(17)(A), a deadly

weapon finding is not authorized for an allegation of possession of a firearm. See Mann v. State,

58 S.W.3d 132, 133 (Tex. Crim. App. 2001) (Johnson, J., concurring) (“[S]ince the possession of

a firearm is the gravamen of the offense, the mere possession cannot be used to [sic] both to charge

the offense and to enhance the punishment.”); see also Rodriguez v. State, 31 S.W.3d 772, 777 (Tex.

App.—Austin 2000, no pet.).

               An affirmative finding of a deadly weapon pursuant to section 3g(a)(2) of article

42.12 is based on a showing that the deadly weapon “was used or exhibited during the commission

of a felony offense or during immediate flight therefrom.” See Code Crim. Proc. art. 42.12,

§ 3g(a)(2). The “use” of a deadly weapon in the context of an affirmative deadly weapon finding

includes simple possession if such possession facilitates the associated felony. Patterson v. State,

769 S.W.2d 938, 941 (Tex. Crim. App. 1989) (emphasis added); see Tyra v. State, 897 S.W.2d 796,

798 (Tex. Crim. App. 1995) (“[M]ere possession of [deadly] weapon without putting it to any use

or purpose whatsoever does not [permit an affirmative deadly weapon finding].”). “[I]n order to



                                                18
‘use’ a deadly weapon for affirmative finding purposes, the weapon must be utilized to achieve an

intended result, namely, the commission of a felony offense separate and distinct from ‘mere’

possession.” Narron v. State, 835 S.W.2d 642, 644 (Tex. Crim. App. 1992); see Ex parte Petty,

833 S.W.2d 145 (Tex. Crim. App. 1992), abrogated on other grounds by Ex parte Nelson,

137 S.W.3d 666 (Tex. Crim. App. 2004). “[A] deadly-weapon finding for a felony offense must

contain some facilitation connection between the weapon and the felony. The deadly weapon must,

in some manner, help facilitate the commission of the felony.” Plummer v. State, No. PD-1269-12,

2013 WL 5538883, at *6 (Tex. Crim. App. Oct. 9, 2013).

               Such is not the case here. While appellant was convicted of possessing a controlled

substance in addition to unlawfully possessing a firearm as a felon, there was no showing that he

“used or exhibited” the firearms found in his bedroom to facilitate his drug possession.8 Compare

Patterson, 769 S.W.2d at 941 (determining that deadly weapon had been “used” during defendant’s

possession of methamphetamine to protect drugs), with Ex parte Petty, 833 S.W.2d at 145

(concluding that affirmative deadly weapon finding was erroneous “because there was no

associated felony facilitated by the [defendant’s] possession of the deadly weapon”). “[T]he mere

possession of a deadly weapon during a felony offense is not covered by the statute.” Plummer,

2013 WL 5538883, at *6. Here, the evidence demonstrated that appellant merely possessed the rifles

at the same time he possessed the methamphetamine. See, e.g., id. (“Appellant’s mini-Glock was

simply being possessed at the same time he possessed the body armor.”). Based on the evidence at




       8
           The record reflects that the deadly weapon allegation contained in the indictment was
explicitly abandoned by the State before trial.

                                               19
trial, an affirmative deadly weapon finding was not authorized in this case. Nor was there an implied

deadly weapon finding in the jury’s verdict of guilty for unlawful possession of a firearm by a felon.

Therefore, contrary to appellant’s contention, section 4(a) was not applicable. The trial court did not

submit the wrong statutory parole instruction.

               We conclude that the parole-eligibility instruction given by the trial court was not

erroneous. Accordingly, we overrule appellant’s third point of error.9


                                   Exclusion of Defense Witness

               In his fourth point of error, appellant asserts that the trial court abused its discretion

when it disqualified Mark Boatright as a defense witness based on a violation of the witness-

sequestration rule. Specifically, appellant maintains that, pursuant to the test laid out by the court

of criminal appeals in Webb v. State, the trial court abused its discretion because no particular

circumstances existed to justify exclusion of a witness crucial to his case. See Webb v. State,

766 S.W.2d 236, 244–45 (Tex. Crim. App. 1989).

               Texas Rule of Evidence 614, commonly referred to as “the Rule,” codifies the

witness-sequestration rule. When invoked by either party or the trial court, the Rule mandates, with

some exceptions not applicable here, the exclusion of witnesses from the courtroom during trial so

they cannot hear the testimony of other witnesses. Tex. R. Evid. 614. The Rule is designed to

prevent witnesses from altering their testimony, consciously or not, based on other witnesses’

testimony. Routier v. State, 112 S.W.3d 554, 591 (Tex. Crim. App. 2003) (citing Webb, 766 S.W.2d


       9
           Because we find no error in the jury charge, we need not conduct a harm analysis. See
Sakil v. State, 287 S.W.3d 23, 26 (Tex. Crim. App. 2009).

                                                  20
at 239); see Russell v. State, 155 S.W.3d 176, 179 (Tex. Crim. App. 2005) (“The purpose of placing

witnesses under the [R]ule is to prevent the testimony of one witness from influencing the testimony

of another, consciously or not.”); Harris v. State, 122 S.W.3d 871, 882 (Tex. App.—Fort Worth

2003, pet. ref’d) (“The purpose of the Rule is to prevent corroboration, contradiction, and the

influencing of witnesses.”). When the Rule is invoked, a witness should not hear testimony in the

case or talk to any other person about the case without the court’s permission. Harris, 122 S.W.3d

at 882; see Tex. Code Crim. Proc. arts. 36.05 (witnesses under Rule are not allowed to hear any

testimony in case), 36.06 (trial court required to instruct witnesses under Rule not to converse with

each other or with any other person about case).

               When the Rule is violated, the trial court may, taking into consideration all of the

circumstances, allow the testimony of the potential witness, exclude the testimony, or hold the

violator in contempt. Bell v. State, 938 S.W.2d 35, 50 (Tex. Crim. App. 1996); Jimenez v. State,

307 S.W.3d 325, 334–35 (Tex. App.—San Antonio 2009, pet. ref’d); Harris, 122 S.W.3d at 882.

When deciding whether to disqualify a defense witness for violating the Rule, a trial court must

balance the interests of the parties, including the defendant’s constitutional right to call witnesses

in his own behalf, consider alternative sanctions, and weigh the benefit and detriment arising from

a disqualification in light of the nature and weight of the testimony to be offered. Routier,

112 S.W.3d at 590 (citing Webb, 766 S.W.2d at 244); Emenhiser v. State, 196 S.W.3d 915, 923

(Tex. App.—Fort Worth 2006, pet. ref’d).

               When reviewing a trial court’s decision to exclude a defense witness for violation of

the Rule, an appellate court must decide (1) if there were particular circumstances, other than the



                                                 21
mere fact of the violation, that tend to show that the defendant or his counsel consented, procured,

or otherwise had knowledge of the violation; and (2) if no particular circumstances existed to justify

disqualification of the witness, if the excluded testimony was crucial to the defense.10 Webb,

766 S.W.2d at 245. A witness’s testimony generally cannot be excluded solely on the grounds that

he violated the Rule, “although the right to exclude under particular circumstances may be supported

as within the sound discretion of the trial court.” Id. at 241 (quoting Holder v. United States,

150 U.S. 91, 92 (1893)). We review the trial court’s decision on whether to exclude a witness who

has violated the Rule for an abuse of discretion. Webb, 766 S.W.2d at 240, 244–245; Mitchell

v. State, 238 S.W.3d 405, 412 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d).

               The record reflects that the Rule was invoked at the beginning of appellant’s trial.

Witnesses Mark Boatright and Sheree White-Sponsler were both sworn in and the court admonished

them that they could not converse with anyone about the case, except the attorneys involved. Both

acknowledged the court’s instruction and indicated that they understood the Rule.




       10
           In Webb, the court of criminal appeals formally adopted a test to apply when a witness was
prohibited by the trial court from testifying because the witness was present in the courtroom during
the trial. Webb v. State, 766 S.W.2d 236, 239 (Tex. Crim. App. 1989); see Routier v. State,
112 S.W.3d 554, 590–91 (Tex. Crim. App. 2003). The Rule violation in the instant case involved
two witnesses, placed under the Rule, conversing about the trial and trial testimony in direct
violation of the trial court’s instructions, as distinguished from the more common incident of a
witness’s unauthorized presence in the courtroom during trial. For our review we assume, without
deciding, that the two-part Webb analysis applies to violations of the Rule other than a witness’s
unauthorized presence in the courtroom during trial. See Jimenez v. State, 307 S.W.3d 325, 334–35
(Tex. App.—San Antonio 2009, pet. ref’d) (applying Webb analysis when witness was
recorded speaking with defendant outside of court after invocation of Rule); Brumbelow v. State,
10 S.W.3d 685, 688 (Tex. App.—Tyler 1994, pet. ref’d) (applying Webb analysis when violations
were long-distance telephone conversations between defense witnesses after Rule had been invoked).

                                                 22
               At trial, White-Sponsler was the first witness for the defense. Her direct examination

concluded just before the lunch break on the second day of trial. After lunch, one of the jurors

informed the trial court that he had observed several witnesses eating lunch at a local restaurant, and

overheard them discussing the case. The judge interviewed the juror in chambers, outside the

presence of the parties but on the record. The juror identified the three individuals he saw at the

table as (1) “the witness who just finished testifying” (White-Sponsler); (2) “one of the ones that had

been sworn in but ha[d] not testified yet” (Boatright), and (3) “the older lady . . . that is in the

audience, in the gallery” (June Piotrowicz, White-Sponsler’s grandmother). The juror detailed the

specifics of what he overheard—essentially indicating that they discussed portions of

White-Sponsler’s trial testimony—but assured the court that he could remain fair and impartial

because “[i]t wasn’t anything [he] hadn’t already heard” in her testimony.

               The trial court then conducted a hearing in the courtroom during which Piotrowicz,

Boatright, and White-Sponsler testified. The three confirmed that they had lunch together, but each

initially denied discussing the case. However, while Piotrowicz testified that she could not

remember what was discussed and did not think they discussed anything having to do with the trial,

she indicated that White-Sponsler “might have” said something about her testimony. When

questioned by the court about the specific details the juror had overheard, Piotrowicz did remember

her granddaughter speaking about those topics at lunch and remembered that White-Sponsler had

testified about those topics in her testimony. Boatright also denied that the three discussed the trial

during lunch, but when asked about specific information indicated that White-Sponsler may have

made certain comments but he did not know if that was her testimony. When the trial court gave



                                                  23
Boatright “one more chance” to consider his answers, he stated, “As far as I know, we didn’t talk

about anything pertinent I already didn’t know or she didn’t already know.” When the trial court

asked follow-up questions to that statement, Boatright again indicated he did not remember what

they talked about. The hearing concluded with White-Sponsler. She also initially denied that she

discussed her trial testimony at lunch. However, she admitted that she told Boatright that appellant

had grimaced when Boatright’s name was mentioned. When asked about the specific topics the juror

overheard, she admitted that she did discuss them but “didn’t think it was a concern as far as the case

was concerned” even though she acknowledged it was part of her testimony in court.

                After the hearing, the trial resumed with the cross-examination of White-Sponsler.

In response to the prosecutor’s questions, she admitted that she violated the Rule by discussing what

she had testified about during lunch, though she asserted it was not done intentionally. Later, when

appellant attempted to call Boatright as a witness, the State objected based on the Rule violation.

Finding that Boatright had violated the Rule, the trial court sustained the State’s objection.

Appellant then made an offer of proof of Boatright’s testimony. In his testimony, Boatright

confirmed that he was stopped for a traffic violation on the night in question after leaving appellant’s

house. He agreed that he gave the police officer consent to search his person and methamphetamine

was found on his person. He indicated that he had no independent recollection of that day and did

not recall telling police that he purchased the methamphetamine from appellant. He testified that

he and appellant were in business together as Cedar Park Cycle Salvage, though he subsequently

admitted on cross-examination that the business, which was started in October 2008, only lasted

about six months and then “petered out.” He testified that as a business partner he had a key to



                                                  24
appellant’s workshop, but said he did not have access to the bedroom behind the workshop or the

sink in the bedroom. Boatright admitted that his memory of the night was “kind of fuzzy” because

he had been using drugs and drinking alcohol, but stated that, notwithstanding his answers to the

officer depicted on the video of the traffic stop, he did not get the methamphetamine from appellant

or his workshop. At the conclusion of Boatright’s testimony, appellant asked the court to reconsider

its ruling and allow Boatright to testify. The court did not change its ruling and did not permit

Boatright to testify.

                Both Boatright and White-Sponsler were aware of their obligations under the Rule

as evidenced by their responses when the trial court admonished them as well as their testimony

during the hearing on the violation. Despite knowing that the Rule precluded them from speaking

about the trial, however, they discussed it anyway. Boatright clearly violated the trial court’s order

pertaining to the Rule by speaking with White-Sponsler about the trial and her testimony, and the

violation appears to have been perpetrated knowingly. However, the record does not indicate that

appellant or his trial counsel “consented to, procured, or otherwise had knowledge of” the lunch

conversation between Boatright, White-Sponsler, and Piotrowicz. Insofar as the record reflects, the

trial court disqualified Boatright based solely on the fact that the Rule was violated. Therefore, we

must decide whether the excluded testimony was crucial to appellant’s defense.

                Appellant argues that Boatright’s testimony was crucial because it negated the basis

for the search warrant and refuted the State’s theory that appellant was selling methamphetamine out

of his workshop. However, according to appellant’s offer of proof, the majority of his testimony

would have pertained to the fact that he did not recall the events of that night, including telling the



                                                  25
police that he bought the methamphetamine found on his person from appellant. His subsequent

recantation about getting the drugs from appellant does not negate the basis for the search

warrant—which included his statement that he got the drugs from appellant—at the time the warrant

was obtained. Boatright’s testimony was not that he did not tell the officer that he bought the

methamphetamine from appellant, but rather that he did not remember doing so. The video of the

traffic stop clearly reflects that Boatright told the officer that he got the drugs from appellant, even

if he later did not recall making that statement. Also, appellant was not charged with delivery of a

controlled substance; thus, Boatright’s recantation about where he got the methamphetamine was

not crucial to appellant’s defense against possessing the methamphetamine discovered in his

bedroom. Furthermore, appellant’s defense at trial was that others, particularly Boatright, as

appellant’s business partner, had access to the workshop. Several other witnesses, including

White-Sponsler and Evelyn Sponsler, appellant’s mother, testified that Boatright was appellant’s

business partner and had a key to the workshop. However, Boatright’s testimony was that although

he had a key to the workshop, he had no access to appellant’s bedroom or the sink where the drugs

were found.

                For a defendant to prevail on the second Webb prong, he must show that the evidence

“was ‘extraordinary’ in the sense that it was crucial to his defense.” Routier, 112 S.W.3d at 590–91

(quoting Webb, 766 S.W.2d at 245). Here, Boatright’s testimony as reflected in the offer of proof

was not highly probative of the question of appellant’s guilt of possessing the methamphetamine

found in his bedroom; thus, we cannot say that the testimony Boatright would have provided was

extraordinary in the sense that it was crucial to appellant’s defense. We hold that the trial court did



                                                  26
not abuse its discretion in excluding Boatright’s testimony. Accordingly, we overrule appellant’s

fourth point of error.


                                   Clerical Error in Judgments

               Finally, we observe that each of the judgments of conviction contains clerical errors.

First, the judgments erroneously state that the “Charged Punishment Range” for each offense is

“First Degree Felony.” However, the punishment range for possession of a controlled substance as

charged in the indictment in this case, absent the habitual-offender enhancement,11 is that of a second

degree felony. See Tex. Health & Safety Code § 481.115(a), (d). The punishment range for

unlawful possession of a firearm by a felon as charged in the indictment, absent the habitual-offender

enhancement, is that of a third degree felony. See Tex. Penal Code § 46.04(a)(1). Second, both

judgments state that appellant pleaded “Not True” to the enhancement paragraphs of the indictment.

The record, however, reflects that appellant pleaded “True” to these paragraphs at the beginning of

the punishment phase of trial.

               This Court has authority to modify incorrect judgments when the necessary

information is available to do so. See Tex. R. App. P. 46.2(b); Bigley v. State, 865 S.W.2d 26, 27–28

(Tex. Crim. App. 1993). Since the necessary information is available here, we modify the judgment

of conviction for possession of a controlled substance to reflect that the “Charged Punishment

Range” is “Second Degree Felony” and to reflect that appellant pleaded “True” to the enhancement

paragraphs. We modify the judgment of conviction for unlawful possession of a firearm by a felon


       11
          In the next line, both judgments correctly reflect that the “Enhanced Punishment Range”
is “Habitual Offender 25–99 Years of Life in Prison.”

                                                  27
to reflect that the “Charged Punishment Range” is “Third Degree Felony” and to reflect that

appellant pleaded “True” to the enhancement paragraphs.


                                        CONCLUSION

               Finding no abuse of discretion in the denial of appellant’s motions to suppress, no

error in the jury charge on punishment, and no abuse of discretion in the exclusion of Boatright’s

testimony, we modify the judgments of conviction as noted above and affirm the judgments

as modified.



                                             __________________________________________
                                             J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Rose and Goodwin

Modified and, as Modified, Affirmed

Filed: November 8, 2013

Do Not Publish




                                               28
