                                   IN THE
                           TENTH COURT OF APPEALS

                                   No. 10-11-00051-CR

THOMAS NAVARRO,
                                                                Appellant
v.

THE STATE OF TEXAS,
                                                                Appellee



                           From the 272nd District Court
                                Brazos County, Texas
                          Trial Court No. 10-00452-CRF-272


                            MEMORANDUM OPINION

       Appellant, Thomas Navarro, was charged by indictment with assault causing

bodily injury to a family member, a third-degree felony.1 See TEX. PENAL CODE ANN. §

22.01(a), (b)(2) (West 2011). A jury convicted Navarro of the charged offense, and the

trial court subsequently found the enhancement paragraph contained in the indictment

to be true and assessed punishment at fourteen years’ incarceration in the Texas

Department of Criminal Justice—Institutional Division. In three issues, Navarro argues


       1  The indictment also included an enhancement paragraph pertaining to Navarro’s prior
conviction for felony burglary of a habitation. See TEX. PENAL CODE ANN. § 30.02(a) (West 2011).
that:   (1) the trial court abused its discretion in denying his motion to suppress

statements made to the arresting officer; (2) the trial court erroneously overruled his

objection to the State’s jury argument, which allegedly struck at him over the shoulders

of defense counsel; and (3) his sentence was improperly enhanced. We affirm.

                                   I. MOTION TO SUPPRESS

        In his first issue, Navarro argues that the trial court abused its discretion in

denying his motion to suppress statements he made to the arresting officer. Navarro

asserts that the statements he made were the product of an unwarned custodial

interrogation and, thus, should have been suppressed. We disagree.

A. Standard of Review

        A trial court’s denial of a motion to suppress is reviewed for an abuse of

discretion. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We review the

evidence in the light most favorable to the trial court’s ruling, see Gutierrez v. State, 221

S.W.3d 680, 687 (Tex. Crim. App. 2007), and we review the trial court’s ruling under a

bifurcated standard of review, giving almost total deference to the trial court’s rulings

on (1) questions of historical fact, even if the trial court’s determination of those facts

was not based on the evaluation of credibility and demeanor, and (2) application-of-the-

law-to-fact questions that turn on the evaluation of credibility and demeanor. Amador v.

State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007). However, when application-of-the-

law-to-the-fact questions do not turn on credibility and demeanor of the witnesses, we

review the trial court’s ruling on those questions de novo. Id. Furthermore, we review

the record to determine whether the trial court’s ruling is supported by the record and

Navarro v. State                                                                       Page 2
correct under some theory of law applicable to the case. Armendariz v. State, 123 S.W.3d

401, 404 (Tex. Crim. App. 2003).

B. Applicable Law

       Oral confessions of guilt or oral admissions against interest made by a suspect

who is in custody are not admissible unless made in compliance with the provisions of

article 38.22 of the code of criminal procedure. See TEX. CODE CRIM. PROC. ANN. art.

38.22 (West 2005); Shiflet v. State, 732 S.W.2d 622, 623 (Tex. Crim. App. 1985); see also

Narramore v. State, No. 06-05-00226-CR, 2007 Tex. App. LEXIS 2104, at *11 (Tex. App.—

Texarkana Mar. 20, 2007, pet. ref’d) (mem. op., not designated for publication).

However, if a person makes an oral confession of guilt or an oral admission against

interest while not in custody, a different rule applies. See Shiflet, 732 S.W.2d at 623; see

also Narramore, 2007 Tex. App. LEIXS 2104, at *11. Article 38.22, section 5 provides that:

“Nothing in this article precludes the admission of a statement made by the

accused . . . that does not stem from custodial interrogation . . . .” TEX. CODE CRIM.

PROC. ANN. art. 38.22, § 5. Thus, an oral confession or an oral admission against interest

that does not stem from custodial interrogation, and is given freely, voluntarily, and

without compulsion or persuasion, is admissible evidence against the accused. See

Shiflet, 732 S.W.2d 623; see also Narramore, 2007 Tex. App. LEXIS 2104, at *11. And,

Miranda warnings are required only when the questioning by police stems from

custodial interrogation. See Dowthitt v. State, 931 S.W.2d 244, 263 (Tex. Crim. App.

1996). The crux of this issue is whether Navarro was in custody and was, thus, required



Navarro v. State                                                                      Page 3
to be provided Miranda warnings when he made oral statements against his interest to

the arresting officer.

        Custodial interrogation is “questioning initiated by law enforcement officers

after a person has been taken into custody or otherwise deprived of his freedom of

action in any significant way.” Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612,

16 L. Ed. 2d 694 (1966). A person is in “custody” only if, under the circumstances, a

reasonable person would believe that his freedom of movement was restrained to the

degree that he was not at liberty to leave. See Dowthitt, 931 S.W.2d at 254 (citing

Stansbury v. California, 511 U.S. 318, 323-25, 114 S. Ct. 1526, 1529-30, 128 L. Ed. 2d 293

(1994)); see also Herrera v. State, 241 S.W.3d 520, 526 (Tex. Crim. App. 2007).                        The

determination of “custody” must be made on an ad hoc basis, after considering all of

the objective circumstances. Herrera, 241 S.W.3d at 526.2

        At least four general situations may constitute “custody”: (1) the suspect is

physically deprived of his freedom of action in any significant way; (2) a law

enforcement officer tells the suspect that he cannot leave; (3) law enforcement officers

create a situation that would lead a reasonable person to believe that his freedom of

movement has been significantly restricted; and (4) there is probable cause to arrest and

law enforcement officers do not tell the suspect that he is free to leave. Gardner v. State,

306 S.W.3d 274, 294 (Tex. Crim. App. 2009).                  In all four circumstances, the initial

determination of “custody” depends on the objective circumstances of the interrogation,


        2In Herrera, the court concluded that the construction of “custody” with respect to article 38.22 is
consistent with the meaning of “custody” for purposes of Miranda. Herrera v. State, 241 S.W.3d 520, 526
(Tex. Crim. App. 2007).

Navarro v. State                                                                                     Page 4
not on the subjective views of the interrogating officer or the person being questioned.

Dowthitt, 931 S.W.2d at 255. In any event, in the first three circumstances, the restriction

upon freedom of movement must amount to the degree associated with an arrest as

opposed to an investigative detention. Id. With regard to the fourth circumstance, the

officers’ knowledge of probable cause must “be manifested to the suspect” to constitute

“custody.” Id.

       Furthermore, in determining whether an encounter amounts to an arrest or an

investigative detention, the court of criminal appeals has listed the following factors to

consider: (1) the amount of force displayed; (2) the duration of a detention; (3) the

efficiency of the investigative process and whether it is conducted at the original

location or whether the person is transported to another location; (4) “the officer’s

expressed intent—that is, whether he told the detained person that he was under arrest

or was being detained only for a temporary investigation”; and (5) any other relevant

factors. State v. Sheppard, 271 S.W.3d 281, 291 (Tex. Crim. App. 2008).

       The subjective intent of law enforcement officers to arrest is irrelevant, unless

that intent in somehow communicated or otherwise manifested to the suspect.

Stansbury, 511 U.S. at 323-25, 114 S. Ct. at 1529-30; Herrera, 241 S.W.3d at 525-26. An

initial consensual encounter with police can be transformed into a custodial detention

where the police procedures become qualitatively and quantitatively so intrusive with

respect to a person’s freedom of movement. See Kaupp v. Texas, 538 U.S. 626, 630, 123 S.

Ct. 1843, 1847, 155 L. Ed. 2d 814 (2003).



Navarro v. State                                                                      Page 5
       A trial judge’s ultimate “custody” determination “presents a mixed question of

law and fact.” Herrera, 241 S.W.3d at 526 (citing Thompson v. Keohane, 516 U.S. 112-13,

116 S. Ct. 457, 465-66, 133 L. Ed. 2d 383 (1995)). Therefore, we afford almost total

deference to a trial judge’s “custody” determination when the questions of historical

fact turn on credibility and demeanor; otherwise, we review the trial judge’s “custody”

determination de novo.     Id.   Furthermore, when a trial judge denies a motion to

suppress and does not enter findings of fact, as is the case here, the evidence is viewed

“in the light most favorable to the trial court’s ruling,” and we “assume that the trial

court made implicit findings of fact that support its ruling as long as those findings are

supported by the record.” Id.

       Further, we interpret Navarro’s rights under article I, section 9 of the Texas

Constitution consistently with the interpretation of his Fourth Amendment rights under

the federal constitution by the United States Supreme Court and the Texas Court of

Criminal Appeals. Sargent v. State, 56 S.W.3d 720, 724 n.2 (Tex. App.—Houston [14th

Dist.] 2001, pet. ref’d). As such, the standard for investigative stops is the same under

the Texas Constitution as under the United States Constitution. See Rhodes v. State, 945

S.W.2d 115, 117 (Tex. Crim. App. 1997).

C. Discussion

       At the suppression hearing, Bryan Police Department Officer William Dunford

testified that he was dispatched to the duplex in which Navarro and others lived due to

a 911 call. Once he arrived at the residence, Officer Dunford got out of his vehicle and

walked towards the duplex. He heard yelling coming from inside the duplex. When

Navarro v. State                                                                    Page 6
Officer Dunford and his partner, Officer Torres, knocked on the door, they were greeted

by Michele Reeves. When she opened the door, Officer Dunford noticed that Reeves

was “holding her face, and it looked like she had like a rug burn on her right side of the

face whenever she moved her hand.”           Officer Dunford recalled that the injury to

Reeves’s face appeared to be painful. Reeves allowed the officers to enter the house,

and she told them that she had “gotten into an argument with Mr. Navarro about

paying rent and that he pushed her, shoved her to the ground causing her to hit her

face. She said he bit her hand.” After taking Reeves’s statement, Officer Dunford went

to the back of the house to speak with Navarro. Officer Dunford remembered that

several other individuals were in the house, including Natalie Nobles, who was trying

to repair a window at that time.

       Once Officer Dunford reached the back room, he observed Navarro “lying on [a]

mattress on the floor holding a beer.” Officer Dunford asked Nobles to leave the room,

and he began speaking with Navarro. Officer Dunford acknowledged that he did not

read Navarro his Miranda rights at this time, but he noted that Navarro was not under

arrest but was simply “[u]nder a temporary detention pending the investigation.”3

Navarro’s hands and arms were bleeding, but he declined any medical attention.

Navarro explained that he got the lacerations on his hands and arms by punching a

window after having an argument. Navarro told Officer Dunford that everything was

“okay” and asked him to leave. Officer Dunford testified that he developed probable



       3 At no point was Navarro physically restrained until Officer Dunford arrested him after
developing probable cause.

Navarro v. State                                                                         Page 7
cause to arrest Navarro when Navarro stated that: (1) Reeves had bit and hit herself in

order to get him in trouble; and (2) he “felt guilty for doing something.”                      Officer

Dunford admitted that Navarro was temporarily deprived of his freedom of movement

pending the investigation of the incident, though he noted that he had several prior

encounters with Navarro which always “ended with [Navarro] leaving.”4

        In any event, before Officer Dunford arrested Navarro, he asked Nobles to enter

the room and tell him about what had happened. However, before she told her side of

the story, Navarro interrupted and instructed her to “tell [Officer Dunford] nothing

happened.” Nevertheless, Nobles told Officer Dunford that “she could hear arguing

and that she heard what sound[ed] like wrestling, something getting physical.” Officer

Dunford then asked Nobles to leave the room so he could clarify Navarro’s story

“because his story wasn’t matching up with the evidence I had on scene.” At this point,

Navarro stated that Reeves bit and hit herself to get him in trouble. According to

Officer Dunford, the temporary detention lasted approximately ten to fifteen minutes.

        After arresting Navarro, Officer Dunford did not ask him any more questions.

Officer Dunford concluded that family violence had occurred based on “[t]he broken

window, the injuries to Mrs. Reeves, the testimony from Mrs. Reeves, testimony from

Mrs. Nobles, then Mr. Navarro’s conflicting story.” Officer Dunford also discovered

that Reeves and Navarro were dating and lived together in the duplex. Based on his




        4 Officer Dunford recalled several instances in which the police got involved in disputes between
Navarro and his ex-wife; this information factored into his decision as to whether violence would
continue.

Navarro v. State                                                                                  Page 8
investigation, Officer Dunford believed that, had he not arrested Navarro and removed

him from the duplex, the violence would have continued.

       Based on our review of the record, we cannot say that Navarro’s statements to

Officer Dunford were the product of custodial interrogation, which required Officer

Dunford to administer Miranda warnings prior to questioning Navarro. Our conclusion

is premised on the following facts: (1) Navarro was lying on the bed holding a beer

while Officer Dunford asked questions; (2) Officer Dunford never told Navarro that he

was under arrest, nor did he indicate that Navarro was under arrest when the

questioning commenced; (3) the encounter lasted only fifteen minutes and the questions

were in furtherance of a temporary investigation to determine whether Navarro had in

fact assaulted Reeves; (4) the record does not reflect that Officer Dunford used force or

handcuffs when questioning Navarro; (5) Navarro rejected Officer Dunford’s offer of

medical treatment for the lacerations on his hands and arms, which also undermines an

argument that Navarro’s freedom of movement was significantly restricted; and (6)

Officer Dunford conducted his investigation at the location where he first encountered

Navarro. See Terry v. Ohio, 392 U.S. 1, 22, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889 (1968); see

also Sheppard, 271 S.W.3d at 289 (noting that while a person is not free to leave during a

temporary detention, the detention allows for an officer to investigate whether a crime

had been committed and does not constitute a custodial arrest). Viewing the evidence

in the light most favorable to the trial court’s ruling, we conclude that Navarro’s

statements were the product of a temporary detention, not a custodial interrogation.



Navarro v. State                                                                        Page 9
See Gardner, 306 S.W.3d at 294; Sheppard, 271 S.W.3d at 291; Dowthitt, 931 S.W.2d at 255.

Thus, Miranda warnings were not required. See Dowthitt, 931 S.W.2d at 263.

       Nevertheless, Navarro insists that he should have been provided Miranda

warnings prior to questioning because Reeves’s initial statement alone gave Officer

Dunford probable cause to arrest Navarro. Officer Dunford testified that he did not

have probable cause to arrest Navarro after only speaking with Reeves. See Rhodes, 945

S.W.2d at 117 (“The officer’s testimony is a factor to be considered, along with the other

facts and circumstances of the detention, in determining whether an arrest has taken

place.”). Moreover, even if Officer Dunford believed he had probable cause to arrest

Navarro prior to the time he actually did arrest, the record does not reflect that this was

ever manifested to Navarro. See Gardner, 306 S.W.3d at 294; Dowthitt, 931 S.W.2d at 255;

see also Abernathy v. State, 963 S.W.2d 822, 824 (Tex. App.—San Antonio 1998, pet. ref’d)

(stating that a police officer’s subjective view does not bear upon the question of

whether a suspect is in custody for purposes of Miranda if the subjective view is not

disclosed by the officer to the suspect). Based on the foregoing, we conclude that the

trial court did not abuse its discretion in denying Navarro’s motion to suppress. See

Guzman, 955 S.W.2d at 89. Accordingly, Navarro’s first issue is overruled.

                              II. THE STATE’S JURY ARGUMENT

       In his second issue, Navarro complains about the State’s closing argument. In

particular, Navarro alleges that the State’s closing argument “impugn[ed] the integrity

and veracity of defense counsel” by arguing that counsel “was simply relying on

technicalities to defend his client and seek an acquittal.”      The State counters that

Navarro v. State                                                                    Page 10
Navarro waived this issue by failing to pursue an objection to an adverse ruling. In the

alternative, the State contends that the complained-of statements were “proper rebuttal

argument” and that error, if any, was harmless.

A. Applicable Law

       The court of criminal appeals has consistently held that arguments that strike at a

defendant over the shoulder of his defense counsel are improper. Dinkins v. State, 894

S.W.2d 330, 357 (Tex. Crim. App. 1995). A prosecutor risks improperly striking at a

defendant over the shoulder of counsel when the argument refers to defense counsel

personally and when the argument explicitly impugns defense counsel’s character.

Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1988) (op. on reh’g); Guy v. State,

160 S.W.3d 606, 617 (Tex. App.—Fort Worth 2005, pet. ref’d). The “over-the-shoulder”

rule is designed to protect the defendant from improper prosecutorial character attacks

at defense counsel. Coble v. State, 871 S.W.2d 192, 205 (Tex. Crim. App. 1993). When

evaluating an alleged improper argument, an appellate court views the statement in the

context of the entire argument. Mosley, 983 S.W.2d at 259.

B. Discussion

       On appeal, Navarro complains about the following statements made by the State:

       [The State]:               Ladies and gentlemen, in [defense counsel’s]
                           opening statement, he told you something I agree
                           with absolutely. He told you that in this case he
                           wanted you to focus on the essential elements and not
                           get bogged down in the details and not focus on the
                           details. Then what does [defense counsel] do? He
                           gets up and talks to you about technicalities because
                           that’s what the defense does when they have nothing
                           left.

Navarro v. State                                                                   Page 11
       [Defense counsel]: Your Honor, I’m going to object to counsel striking at
                          the defendant over defense counsel’s shoulders.

       [The State]:         Characterizing the evidence in the case.

       THE COURT:           Overrule the objection.

       [The State]:         The defense strikes out at technicalities when the
                            defense doesn’t have anything left.

                                   About the issue of judicial notice, folks, I read
                            the definition . . . .

                                  This case isn’t about technicalities. It’s not
                            about that. It’s about the evidence that’s been
                            presented to you on things that matter about this case.

       Based on our review of the record, we conclude that Navarro waived his

objection to the prosecutor’s closing argument. Texas law requires a party to continue

to object each time inadmissible evidence is offered, except when defense counsel

requests a running objection or objects out of the presence of the jury to all testimony he

deems objectionable on a given subject. Ethington v. State, 819 S.W.2d 854, 858-59 (Tex.

Crim. App. 1991). Moreover, an error in the admission of evidence is cured when the

same evidence comes in elsewhere without objection. Id.; see also Massey v. State, 933

S.W.2d 141, 149 (Tex. Crim. App. 1996); Hudson v. State, 675 S.W.2d 507, 511 (Tex. Crim.

App. 1984). And when a defendant creates the impression that he is abandoning his

objection, his initial objection is insufficient to preserve error for appeal. See Purtell v.

State, 761 S.W.2d 360, 366 (Tex. Crim. App. 1988).

       While it is true that Navarro objected to the first statement the prosecutor made

regarding technicalities, he did not object to the prosecutor’s subsequent references to

Navarro v. State                                                                       Page 12
technicalities, nor did he obtain a running objection to such remarks. As such, we

conclude that Navarro abandoned his objection to the prosecutor’s technicality remarks

and thus failed to preserve any resulting error for appeal.5 See Threadgill v. State, 146

S.W.3d 654, 667 (Tex. Crim. App. 2004) (holding that defendant waived objection to

prosecutor’s conduct in striking at defendant over the shoulders of his counsel during

closing argument by failing to object); Mathis v. State, 67 S.W.3d 918, 926-27 (Tex. Crim.

App. 2002) (concluding that defendant waived his argument that the prosecutor

committed reversible error when he referred to defendant in closing argument as a

“despicable piece of human trash” because defendant failed to object and request a

mistrial); Purtell, 761 S.W.2d at 366; see also Valentine v. State, No. 01-06-00522-CR, 2007

Tex. App. LEXIS 8730, at **12-13 (Tex. App.—Houston [1st Dist.] Nov. 1, 2007, no pet.)

(mem. op., not designated for publication) (“By failing to make a timely objection to the

State’s closing argument, Valentine waived any alleged error.”).                         Accordingly, we

overrule Navarro’s second issue.

                             III. ENHANCEMENT OF NAVARRO’S SENTENCE

        In his third issue, Navarro asserts that the enhancement paragraph contained in

the indictment was never read at punishment and, thus, no plea was taken. As such,

Navarro, relying heavily on Texas Code of Criminal Procedure article 36.01, argues that

no issue was joined and enhancement from a third-degree felony to a second-degree

         5 Furthermore, to preserve error in cases of prosecutorial misconduct, the defendant must: (1)

make a timely and specific objection; (2) request an instruction that the jury disregard the matter
improperly placed before the jury; and (3) move for a mistrial. TEX. R. APP. P. 33.1(a); Cockrell v. State, 933
S.W.2d 73, 89 (Tex. Crim. App. 1996). Here, in addition to his failure to object to each time the prosecutor
referred to technicalities, Navarro failed to request a jury instruction and move for a mistrial. See TEX. R.
APP. P. 33.1(a); see also Cockrell, 933 S.W.2d at 89.

Navarro v. State                                                                                      Page 13
felony is impermissible. See TEX. CODE CRIM. PROC. ANN. art. 36.01 (West 2007). The

State contends that this issue is waived because Navarro did not object when the trial

court failed to read the enhancement paragraph at the start of the punishment hearing.

In the alternative, the State argues that, because Navarro entered into a stipulation of

the evidence, there is sufficient evidence in the record to support the trial court’s

finding of true to the enhancement paragraph.

       Article 36.01 of the Texas Code of Criminal Procedure specifies the order of

proceeding for a jury trial. Id. “When prior convictions are alleged for purposes of

enhancement only and are not jurisdictional, that portion of the indictment or

information reciting such convictions shall not be read until the hearing on punishment

is held . . . .” Id. art. 36.01(a)(1). The reading of the enhancement paragraphs at the

penalty stage of a bifurcated trial and the entry of the defendant’s responsive plea are

mandatory. Turner v. State, 897 S.W.2d 786, 788 (Tex. Crim. App. 1995). Without these

steps, no issue is joined between the State and the defendant, and neither the jury nor

the defendant is informed of the precise terms of the charge. See Hernandez v. State, 190

S.W.3d 856, 867 (Tex. App.—Corpus Christi 2006, no pet.); Linton v. State, 15 S.W.3d 615,

620 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d). “After the enhancement and plea

are read to the jury, the State is required to introduce evidence in support of the

enhancements.” Hernandez, 190 S.W.3d at 867.

       Furthermore, the court of criminal appeals has held that not reading the

enhancement paragraphs and having the defendant plead to them could mislead a

defendant into believing the State has abandoned the enhancement paragraphs. Turner,

Navarro v. State                                                                  Page 14
897 S.W.2d at 789. However, “[i]f the enhancements are in the indictment and the State

does not abandon them, the defendant is on notice that the State is still seeking a greater

penalty range.” Marshall v. State, 185 S.W.3d 899, 903 (Tex. Crim. App. 2006).

       The record indicates that the trial court conducted the punishment hearing; thus,

Navarro’s reliance on article 36.01, which is confined to jury proceedings, is misplaced.

See TEX. CODE CRIM. PROC. ANN. art. 36.01; see also Davis v. State, 970 S.W.2d 747, 749

(Tex. App.—Houston [14th Dist.] 1998, no pet.). And perhaps more importantly, the

record does not reflect that Navarro objected to the trial court’s failure to read the

enhancement paragraph at the start of the punishment hearing.               In Davis, the

Fourteenth Court of Appeals stated the following:

               At the trial court level, Davis failed to object to the trial court’s
       failure to read the indictment and enhancement paragraphs before the
       punishment hearing. The Texas Court of Criminal Appeals has stated that
       an appellant may not raise this question for the first time on appeal. See
       Reed v. State, 500 S.W.2d 497, 499 (Tex. Crim. App. 1973); see also Hardman
       v. State, 614 S.W.2d 123, 125-26 (Tex. Crim. App. [Panel Op.] 1981) (citing
       Reed for the proposition that the appellant may not complain for the first
       time on appeal about the court’s failure to read the indictment in a bench
       trial). In Reed, the trial judge proceeded with the punishment stage of trial
       after the jury returned a guilty verdict but before the court read that
       portion of the indictment alleging a prior conviction for enhancement
       punishment. See Reed, 500 S.W.2d at 498. The defense counsel failed to
       object to the trial court’s omission. See 500 S.W.2d at 498-99. On appeal,
       the Texas Court of Criminal Appeals stated, “had there been an objection,
       the problem could have been easily remedied by reintroducing the
       evidence, if any had been offered after the enhancement allegations of the
       indictment had been read, and the appellant’s plea thereto entered.” Id. at
       499.

970 S.W.2d at 749. The Davis court also noted:

       Additionally, in reaching our decision, we cannot help but point out the
       purpose of reading all of the indictment, including the enhancement

Navarro v. State                                                                       Page 15
         paragraphs, to the jury: that is to join the issue in the juror’s minds so that
         they will know what issues they must decide. When the judge, and not
         the jury, is making the decision on enhancement, we do not have to clarify
         issues in the same way we would for a jury. For example, in this cause,
         the entire indictment was read aloud to the court and to Davis at the
         arraignment. In addition, the judge took Davis’ plea of true to the
         enhancement paragraphs at the arraignment and then heard Davis’
         stipulation to the truth of the enhancement paragraphs at the punishment
         hearing.[6] Clearly, the issue was joined, the judge knew the contents of
         the indictment, and knew about the enhancement paragraphs. It would
         not serve any useful purpose to require the judge also to read the
         enhancement paragraphs out loud to himself.

Id. at 749-50.

         Because Navarro did not object to the trial court’s failure to read the

enhancement paragraph at the start of the punishment hearing, we conclude that this

issue is waived. See id. at 749. And, even if Navarro had preserved this issue, we fail to

see how the trial court’s failure to read the enhancement paragraph at the start of the

punishment hearing harmed him, especially considering the trial court conducted the

punishment hearing, Navarro stipulated to the evidence documenting his prior

convictions, and there is no evidence that the State intended to abandon the

enhancement paragraph. See id. at 749-50. Accordingly, we overrule Navarro’s third

issue.

                                            IV. CONCLUSION

         Having overruled all of Navarro’s issues on appeal, we affirm.


        6 In this case, Navarro admitted at the punishment hearing that he had been convicted of sixteen

prior misdemeanor offenses and five felonies and that the corresponding judgments and sentences were
true and correct. With regard to Navarro’s burglary-of-a-habitation conviction, Navarro’s counsel did
not object to the admission of the corresponding judgment and sentence. Moreover, in his opening
statement at the punishment hearing, the prosecutor referenced Navarro’s burglary-of-a-habitation
conviction, indicating that the State did not intend to abandon the enhancement paragraph.

Navarro v. State                                                                                Page 16
                                               AL SCOGGINS
                                               Justice


Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
       (Chief Justice Gray concurs in the judgment without a separate opinion)
Affirmed
Opinion delivered and filed October 5, 2011
Do not publish
[CR25]




Navarro v. State                                                                 Page 17
