                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                              NO. 2-08-312-CR


JOHN YOUNG                                                        APPELLANT

                                       V.

THE STATE OF TEXAS                                                      STATE

                                   ------------

          FROM THE 362ND DISTRICT COURT OF DENTON COUNTY

                                   ------------

                        MEMORANDUM OPINION 1

                                   ------------

     Appellant John Young brings nine points in this appeal from his conviction

by a jury for two counts of aggravated kidnapping, enhanced by two prior

felony convictions. We affirm.




     1
          See Tex. R. App. P. 47.4.
                         Legal and Factual Sufficiency

      Because appellant challenges the legal and factual sufficiency of the

evidence in his eighth point, we review that point first.

Background Facts

      Carlton Adger testified that on the night of February 22, 2006, he and his

girlfriend, Sharice Brodie, were driving northbound on I-35 on their way to

Denton. Carlton was sleeping. Sharice woke him because two cars driving

next to them looked as if they were about to wreck.         One of the cars, a

Suburban, was going fast and swerving; it collided with a Honda next to it and

ran up against the median. 2 Carlton identified photographs of the Suburban

offered by the State. Carlton had Sharice pull over so that they could check

and see if anyone in the Suburban had been injured.

      Sharice stayed in the car while Carlton started walking toward the

Suburban. At that point, Carlton saw someone he later identified as appellant

“come from around the [S]uburban and jog, then . . . slow[] down like a fast

walk, . . . and approach[]” him. Carlton said appellant was in a big hurry, as

if he were trying to get away from the scene. Appellant seemed to be in a




      2
        The wreck occurred near the intersection of I-35 and the George Bush
tollway in Carrollton.

                                       2
state of shock, and he told Carlton to “[g]et back in the car.” 3 As appellant

said this, he was holding his hand up and had something covering it; he waved

his hand as if he had a gun. Carlton could tell “it wasn't his finger because it

was something that stopped short in [a] towel or a shirt or something . . . and

made it seem as if he had a weapon.” The towel was stiff, stuck out, and

didn’t move. Carlton believed appellant had a gun, but he did not actually see

a gun.

      After Carlton realized that appellant had what he thought was a gun,

Carlton became afraid. If appellant had concealed a gun under the towel, the

barrel would have been pointing at Carlton. Carlton got back in the passenger

side front seat, and appellant got into the passenger side back seat. Carlton

told Sharice to drive, and they drove for about five to seven minutes. She

drove to the La Quinta in Lewisville, off Corporate Drive.          Carlton had

suggested to appellant that they could let him out there just to get him out of

the car. Appellant said, “[F]ine. Okay.” 4 Then he darted out of the car and



      3
         It appears from Carlton’s testimony that appellant said this twice, but
it is unclear in exactly what sequence appellant told Carlton to get back in the
car. However, Carlton’s testimony makes it clear that he felt he had no choice
but to get back in the car because he thought appellant was threatening him
with a gun.
      4
        Carlton had the impression that appellant did not have a particular
destination in mind but rather just wanted to be away from the scene.

                                       3
said thank you. According to Carlton, appellant “pretty much was trying to,

basically, get away.”

      As they drove, appellant kept saying, “[M]y partner is going to be mad at

me, I done wrecked his car.” Appellant smelled strongly of alcohol. Carlton

realized, based on appellant’s level of agitation, that he must have done

something else wrong other than a hit and run. It made him scared.

      Carlton identified State’s exhibits 4 and 5 as the sports jersey and black

pants appellant was wearing that night.

      Sharice testified that around 11:00 on February 22, 2006, she was

driving on I-35 near the intersection with the George Bush turnpike in

Carrollton, when she saw an SUV behind her car; it came up on her car fast,

swerved into the next lane, and hit the car in front of her. She identified the

Suburban shown in State’s exhibits thirty-three through thirty-five as the SUV.

Sharice said that when the cars collided, the Suburban went to the left and the

car went to the right. She pulled over to the left-side shoulder of the highway.

      When Carlton got out of the car, 5 Sharice saw him walking toward the

back; she could hear him asking the SUV driver if he was okay. She did not

see anything unusual until Carlton got into the car, followed by appellant.



      5
        Sharice confirmed that she had awakened him right before the cars
collided.

                                       4
Appellant had his hand wrapped in “a towel or some kind of shirt” and he was

carrying a Crown Royal bag. She could not say what was underneath, but she

thought appellant had a gun and she was scared.

      According to Sharice, appellant asked her and Carlton to hurry up and

drop him off at La Quinta because he had a friend that lived in an apartment in

the area. 6 He seemed nervous because he had wrecked the Suburban, which

he had borrowed from a friend. He said he should not have fallen asleep at the

wheel. He seemed to be in a hurry and smelled of liquor. It took about five to

seven minutes for them to get to the La Quinta.

      According to Sharice, the parking lot at the La Quinta was dark and no

one was around; she was afraid because it was late and she was pregnant at

the time. 7 She said although there was light shining on the hotel itself, there

was not any in the parking lot where they were parked. When appellant got

out, he was polite and hurried up and around the side of the building.

      Gary Fernandez, a detective with the City of Carrollton police,

investigated the offense against Carlton and Sharice. He obtained and executed



      6
        When asked if Carlton told her when he got in the car, “Drive, let’s go
to La Quinta,” Sharice said yes.
      7
         In contrast, Carlton had testified that because the La Quinta was right
off the main road, “if anything would have happened right there, . . . everybody
would see.”

                                       5
a search warrant for the Suburban. He found evidence linking appellant to a

robbery that had occurred at a Sonic in nearby Coppell immediately before the

accident; specifically, he found a cell phone under the driver’s seat that the

robber had taken from the cook at the Sonic. 8         According to Detective

Fernandez, there was no fingerprint evidence; he did not know if that was

because the Suburban had not been dusted for fingerprints or if no prints were

found. Detective Fernandez also confirmed that if Sharice had driven from the

wreck to Lewisville, she would have crossed the county line from Dallas to

Denton County.

      Detective Scott Peters, a Coppell police officer, testified that he

investigated the Sonic robbery and participated in the investigation of the

offense against Carlton and Sharice.       He obtained a search warrant for

appellant’s residence and also was present when police searched appellant’s

Mitsubishi. Lewisville, Carrollton, and Coppell police all worked together in

handling the investigation. Detective Peters identified State’s exhibits thirty-

eight through forty-three as photographs of the Mitsubishi and items found in




      8
       Detective Fernandez actually called the cell phone number that had
been given to him by the detective investigating the Sonic robbery, and the
recovered cell phone rang.

                                       6
it: among them, a towel and a shoe box with a black bag containing money

inside.

      Detective Peters identified State’s exhibit forty-four as a shoebox found

in appellant’s apartment; a BB gun was found inside. According to Detective

Peters, the BB gun was similar to a .45 or 9 millimeter semiautomatic weapon

in size, shape, and color. He testified that such a weapon is capable of causing

death or serious bodily injury, depending on where the person was shot.

      Detective Peters also testified that the jersey, pants, stocking cap, and

hat police found in appellant’s apartment matched those worn by the man in

the surveillance video from the Sonic.

      Detective Robert Feagins, a police officer for the City of Lewisville,

testified that on February 22, 2006, he learned of a robbery at a Sonic in

Coppell9 with a gold Suburban involved. Based on the information he received,

he went to a location in Lewisville where he met with the vehicle owner,

Roosevelt Sanders, who admitted to having driven the Suburban that day.

      Detective Feagins also spoke with Carollton police officers, who were

talking to Carlton and Sharice; he had the officers and Carlton and Sharice

come to a parking lot outside Sanders’s workplace to see if Carlton and Sharice




      9
           The Sonic is located in Dallas County.

                                         7
could identify Sanders as the person who had been driving the Suburban. They

said he was not the same man. Detective Feagins then showed them “photo

lineups [he] happened to have with [him] of an additional suspect.” 10 He spread

these photo arrays out on the trunk. One of the photographs was of appellant;

Carlton and Sharice identified him as the driver of the Suburban. 11        This

identification occurred approximately thirty minutes after the wreck.

      Carlton and Sharice told Detective Feagins that they had been driving

northbound on l-35 and that they had stopped for a wreck in front of them to

see if anyone needed assistance. Appellant approached them with a towel over

his hand as if he were trying to hide something under it and demanded that

they give him a ride to Lewisville. Because they thought he had a handgun

under the towel, and therefore felt threatened, they drove him to the La Quinta

on I-35 in Lewisville, which was probably two miles away from where they

stopped due to the wreck. In doing so, they crossed the boundary from Dallas




      10
          The lineup, which was admitted into evidence, consists of six driver’s
license photographs, each around two inches by two inches. Detective Feagins
testified that he had developed appellant as a suspect in two other incidents
about two weeks earlier, which is why he had the photo array with him.
      11
         According to Detective Feagins, they identified the photo of appellant
simultaneously; he did not separate them for purposes of identifying their
assailant.

                                       8
County into Denton County, and most of the travel time occurred in Denton

County.

      Detective Feagins contacted a supervisor with the information that

Carlton and Sharice had identified appellant, and Lewisville police officers later

took him into custody.       Detective Feagins interviewed appellant at the

Lewisville Police Department. A recording of the interview was admitted into

evidence at trial.

      Appellant initially denied having been anywhere other than his apartment

on February 22, 2006. However, he later admitted that Sanders had let him

drive the Suburban and that he had had a wreck in it. He denied having a gun

with him but admitted that he had asked Carlton and Sharice to “drop him off

at the house” and that they drove him to the La Quinta.

      Detective Feagins showed appellant the same photo array he showed the

complainants, and appellant picked number 5 as the picture of himself, which

is the photo Carlton and Sharice identified. The Lewisville police also searched

appellant’s vehicle, a green Mitsubishi, for evidence; they found money related

to the Sonic robbery and a towel. The cash was in twenties and was banded

with yellow stickies and thin white bands with a blue stripe. The detective

testified that Sonic, not the police department, put the bands and stickies on

the money. Detective Feagins testified that the towel fit the description given

                                        9
him by the complainants.       It was also large enough to cover a handgun if

someone were holding one.

      According to Detective Feagins, he was familiar with the route from the

Sonic to the crash scene and that if a person were driving fast, it would take

about eight minutes to make that drive.

      On cross-examination, Detective Feagins admitted that appellant and

Sanders were similar looking and that Sanders had initially lied and said the gold

Suburban had been stolen.        Nevertheless, he did not attempt to confirm

Sanders’s statements about his whereabouts during the time of the Sonic

robbery. 12 Detective Feagins also affirmed that the Suburban was impounded

by Carrollton police and that he did not order it to be searched to look for

evidence in the charged kidnappings. But he did find out from the Carrollton

investigator that a telephone had been found in the Suburban.

      Detective Feagins acknowledged on redirect that there was no indication

from any of the witnesses to the Sonic robbery that a second man was

involved.     In addition, he focused on appellant instead of Sanders in the

investigation because he was investigating appellant in two prior incidents,

which he suspected appellant of being involved in, partly because the two




      12
            Sanders apparently told Detective Feagins that he had been working.

                                        10
locations were located close to appellant’s apartment and were easily

accessible to appellant’s apartment through a hole in the fence. Additionally,

the manager of the apartment complex gave Detective Feagins information that

led him to believe that appellant, not Sanders, was the suspect in the Sonic

robbery.     He believed appellant walked, rather than drove, during the prior

incidents.     Finally, appellant’s and Sanders’s descriptions of appellant’s

borrowing the gold Suburban corresponded. Detective Feagins did not think

Sanders would have had time to commit the robbery on his own, switch cars

with appellant, and then appellant be in the wreck “minutes later.” 13

      Detective Feagins confirmed that Carlton and Sharice did not say that

they ever saw a gun in appellant’s hand.

      Several witnesses testified to appellant’s involvement in the Sonic

robbery; he does not challenge the legal and factual sufficiency of that evidence

on appeal.




      13
        Sanders’s place of employment was about three miles from where the
wreck occurred and about eight or nine miles from the Sonic.

                                       11
Analysis

         Appellant contends that the evidence is insufficient to show that he

abducted either Carlton or Sharice by restraining them with the intent to

prevent their liberation by threatening to use deadly force.          With regard to

Sharice, appellant contends the evidence shows that she was only acting at

Carlton’s direction and that he never pointed whatever was under the towel at

her. As to Carlton, he claims that there was no threat of deadly force because

Carlton did not know what was under the towel.                Appellant contends that

Carlton and Sharice were, at most, “temporarily inconvenienced” by his actions.

         Applicable Law

         To prove aggravated kidnapping as alleged here, the State had to show

that appellant intentionally or knowingly abducted Carlton and Sharice with the

intent    to   facilitate   his   flight   from   the   robbery.   Tex.   Penal   Code

Ann. § 20.04(a)(3) (Vernon 2003); Franks v. State, 90 S.W.3d 771, 792

(Tex. App.—Fort Worth 2002, pet. ref’d, untimely filed). “Abduct” as alleged

in this case means to restrain a person with the intent to prevent liberation by

threatening deadly force. Tex. Penal Code Ann. § 20.01(2)(B) (Vernon Supp.

2009). “Restrain” means to restrict a person’s movement without consent so

as to interfere substantially with his or her liberty by moving him or her from

one place to another. Id. § 20.01(1). Restraint by force or intimidation is

                                             12
“without consent.” Id. § 20.01(1)(A). “Deadly force” is either force intended

or known by the actor to cause death or serious bodily injury or force capable

of causing death or serious bodily injury in the manner of its use or intended

use. See Ferrel v. State, 55 S.W.3d 586, 591–92 (Tex. Crim. App. 2001);

Kenny v. State, 292 S.W.3d 89, 98 (Tex. App.—Houston [14th Dist.] 2007,

pet. ref’d).   Threats may be communicated by actions, words, or deeds,

including “acts amounting to an offer to use future force.” See Rogers v. State,

550 S.W.2d 78, 81 (Tex. Crim. App. 1977).

      Legal Sufficiency

      We conclude and hold that the evidence is legally sufficient to support

appellant’s conviction of aggravated kidnapping of both Sharice and

Carlton. The jury could have reasonably inferred that appellant had used the BB

gun found in his apartment during the Sonic robbery, that he still had the BB

gun with him after the wreck, and that he put a towel over it, using it to

intimidate Carlton and Sharice by threatening to use deadly force.      Carlton

testified that he thought appellant had a gun, and there was testimony that a

BB gun can be a deadly weapon, depending on proximity and location when it

is fired.   See Adame v. State, 69 S.W.3d 581, 581–82 (Tex. Crim. App.

2002); In re R.D., No. 08-07-00100-CV, 2009 WL 638260, at *3 (Tex.

App.—El Paso Mar. 12, 2009, pet. filed). Carlton testified that appellant did

                                      13
not ask, but rather told, him to “Go” and “Get in the car,” all the while pointing

something at him that looked like a concealed gun. That appellant did not point

whatever object he was concealing at Sharice is not relevant; his pointing the

item at Carlton was an attempt to influence Sharice’s actions by threatening

deadly force against Carlton because they were traveling together. See Jenkins

v. State, 248 S.W.3d 291, 293–94 (Tex. App.—Houston [1st Dist.] 2007,

pet. ref’d). Accordingly, based on the appropriate standard of review, we hold

that the evidence is legally sufficient to sustain the verdict as to both counts.

See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979);

Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).

      Factual Sufficiency

      For the same reasons, we conclude and hold that, even considered in a

neutral light, the evidence is not so weak that the jury’s determination is clearly

wrong and manifestly unjust. See Lancon v. State, 253 S.W.3d 699, 704

(Tex. Crim. App. 2008); Watson v. State, 204 S.W.3d 404, 414–15, 417

(Tex. Crim. App. 2006). Based on the testimony of Carlton and Sharice, the

physical evidence recovered by the police, and the testimony linking appellant

to the Sonic robbery, the jury’s verdict was based on permissible, reasonable

inferences. We overrule appellant’s eighth point.




                                        14
                             Culpable Mental State

      In his fifth through seventh points, appellant challenges the trial court’s

failure to instruct the jury on the culpable mental state for the offense and the

proper definition of “abduct.” He thus contends that the entire charge was

defective because it allowed the jury to convict on less than the required

statutory elements.

Standard of Review

      When the application paragraph correctly instructs the jury but the

abstract paragraph is erroneous, any error contained in the abstract instruction

is not egregious. Medina v. State, 7 S.W.3d 633, 640 (Tex. Crim. App. 1999),

cert. denied, 529 U.S. 1102 (2000); Fulcher v. State, 274 S.W.3d 713, 717

(Tex. App.—San Antonio 2008, pet. ref’d). However, when, as in this case,

the jury charge contains all the required mens rea in the abstract and definition

paragraphs, but fails to include an explicit mens rea in the application

paragraph, we must consider whether jury charge error caused egregious harm

because “the crucial part of the charge in determining the existence of

fundamental error is that part where the law is applied to the facts.” Fulcher,

274 S.W.3d at 717; Hanks v. State, 625 S.W.2d 433, 435 (Tex.

App.—Houston [14th Dist.] 1981, no pet.).




                                       15
      Egregious harm is the type and level of harm that affects the very basis

of the case, deprives the defendant of a valuable right, or vitally affects a

defensive theory. Allen v. State, 253 S.W.3d 260, 264 & n.15 (Tex. Crim.

App. 2008); Olivas v. State, 202 S.W.3d 137, 144, 149 (Tex. Crim. App.

2006); Almanza v. State, 686 S.W.2d 157, 172 (Tex. Crim. App. 1985) (op.

on reh’g). In making an egregious harm determination, “the actual degree of

harm must be assayed in light of the entire jury charge, the state of the

evidence, including the contested issues and weight of probative evidence, the

argument of counsel and any other relevant information revealed by the record

of the trial as a whole.” Almanza, 686 S.W.2d at 171; see generally Hutch v.

State, 922 S.W.2d 166, 172–74 (Tex. Crim. App. 1996). The purpose of this

review is to illuminate the actual, not just theoretical, harm to the accused.

Almanza, 686 S.W.2d at 174. Egregious harm is a difficult standard to prove

and must be determined on a case-by-case basis. Ellison v. State, 86 S.W.3d

226, 227 (Tex. Crim. App. 2002); Hutch, 922 S.W.2d at 171.

Analysis

      Although the abstract part of the charge contained the culpable mental

state and definitions of intentional and knowing, the culpable mental state was

omitted in the application paragraph, which read:




                                      16
             Now, if you find from the evidence beyond a reasonable
      doubt that on or about the 22nd day of February, 2006, in Denton
      County, Texas, the defendant, JOHN YOUNG, did then and there
      with intent to facilitate his flight after the attempt or commission
      of a felony, to-wit: Robbery, abduct Sharice Brodie by restricting
      the movements of Sharice Brodie without her consent so as to
      interfere substantially with her liberty, by moving her from one
      place to another by threatening to use deadly force, then you will
      find the defendant guilty of Aggravated Kidnapping as alleged in
      Count II of the indictment. 14

But the application paragraph immediately followed the abstract paragraph that

included the culpable mental state, along with the correct definitions. Thus,

viewing the charge as a whole, the abstract portion sufficiently informed the

jury of the mental state required for commission of the charged offense. See

Dinkins v. State, 894 S.W.2d 330, 339 (Tex. Crim. App.), cert. denied, 516

U.S. 832 (1995); Fulcher, 274 S.W.3d at 718; Lane v. State, 957 S.W.2d 584,

587 (Tex. App.—Dallas 1997, pet. ref’d).

      Additionally, the majority of the testimony at trial, and the jury argument,

focused on whether appellant was the person who committed the robbery and

was driving the Suburban, an issue not contested on appeal; appellant’s main

defensive theory was that the owner of the Suburban could have been the

perpetrator.     In addressing the proof of abduction, the State argued that

appellant shoved the gun under the towel and said, “Get in the car, Go,” while



      14
            The charge was the same as to the allegation involving Carlton.

                                        17
approaching Carlton and that those actions amounted to a threat of force.

Appellant argued to the jury that there was no evidence he was holding a gun,

only that Carlton and Sharice perceived he was doing so; therefore, he could

not have threatened deadly force. None of the evidence pointed to a different

mental state regarding the alleged restraint of Carlton’s and Sharice’s liberty,

especially considering the State’s emphasis that appellant’s actions toward

them were made with the specific intent to facilitate his flight from the robbery.

Accordingly, we conclude and hold that appellant did not suffer egregious harm

as a result of this error in the application paragraph of the charge.

      Appellant also complains, without citation to authority, that the trial court

erroneously substituted “liberty” for “liberation” in the definition of “abduct” in

the application paragraph, causing egregious harm.           However, the court

correctly defined “abduct” in the abstract part of the charge, which

read: “‘Abduct’ means to restrain a person with intent to prevent his or her

liberation by using or threatening to use deadly force.” [Emphasis added.] See

Tex. Penal Code Ann. § 20.01(2)(B); Laster v. State, 275 S.W.3d 512, 521

(Tex. Crim. App. 2009). Additionally, although appellant contends that this

switch of words “lowered the burden of proof because many things could

interfere generally with one[‘]s liberty but not with one[‘]s liberation,” the usage

here implies essentially the same thing: “liberty” is defined as freedom from

                                        18
physical restraint, and “liberation” is defined as the act of setting free or the

state of being set free. Merriam Webster’s Collegiate Dictionary 670 (10th ed.

1996). Accordingly, we conclude and hold that appellant did not suffer

egregious harm from this minor error in the definition of abduct in the

application part of the charge. We overrule appellant’s fifth through seventh

points.

                            Lesser-Included Offense

      In his ninth point, appellant contends that the trial court erred by failing

to include an instruction on unlawful restraint in the charge. At the charge

conference, both attorneys stated that they had read the charge and had no

objections. The trial court need not submit a lesser included instruction sua

sponte if neither side requests one.     Delgado v. State, 235 S.W.3d 244,

249–50 (Tex. Crim. App. 2007); Mashburn v. State, 272 S.W.3d 1, 15 (Tex.

App.—Fort Worth 2008, pet. ref’d). Moreover, the defense may not claim error

successfully on appeal due to the omission of a lesser included offense if the

defense did not request one. Delgado, 235 S.W.3d at 250; Mashburn, 272

S.W.3d at 15. Accordingly, we overrule appellant’s ninth point.




                                       19
                           Safe Release Instruction

      In his first and second points, appellant contends that the charge at

punishment should have included an instruction on safe release and that trial

counsel was ineffective for failing to request such an instruction.

      Aggravated kidnapping is a first degree felony unless a defendant proves

at punishment that he or she voluntarily released the victim in a safe place, in

which case it is a second degree felony.         See Tex. Penal Code Ann.

§ 20.04(c)–(d). Because appellant did not request such an instruction, the trial

court did not err by failing to include one sua sponte. See id.; Posey v. State,

966 S.W.2d 57, 63 (Tex. Crim. App. 1998); Hernandez v. State, 10 S.W.3d

812, 821 (Tex. App.—Beaumont 2000, pet. ref’d). We overrule appellant’s

first point.

      Appellant also claims that his counsel was ineffective for failing to

request a safe release instruction. However, appellant cannot show that but

for this failure, the outcome would have been different.        See Strickland

v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Hernandez

v. State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999). Here, the jury found

both of the enhancement paragraphs true. Because the enhanced punishment

range is the same for a second degree felony enhanced by two prior felony

convictions as it is for a first degree felony enhanced by two prior felony

                                      20
convictions, appellant would have been subject to the same punishment range

even if his counsel had requested a safe release instruction and proved the

defense to the jury by a preponderance of the evidence. See Tex. Penal Code

Ann. § 12.42(d) (Vernon Supp. 2009); Milner v. State, 263 S.W.3d 146, 148

(Tex. App.—Houston [1st Dist.] 2006, no pet.).          We overrule appellant’s

second point.

                        Order of Enhancement Offenses

      In his third and fourth points, appellant contends that the trial court erred

by failing to instruct the jury that it must find that the second alleged

enhancement offense was committed after the first alleged enhancement

offense and that the trial court erred by improperly commenting on the evidence

in the jury charge as a result of erroneously instructing the jury to find the

second alleged enhancement paragraph true without first finding that it was

committed after the first alleged enhancement offense became final.

      For a conviction to be enhanced under penal code section 12.42(d), “[t]he

[chronological] sequence of events must be proved as follows: (1) the first

conviction becomes final; (2) the offense leading to a later conviction is

committed; (3) the later conviction becomes final; (4) the offense for which

defendant presently stands accused is committed.”              Tex. Penal Code

Ann. § 12.42(d); Jordan v. State, 256 S.W.3d 286, 290–91 (Tex. Crim. App.

                                       21
2008) (quoting Tomlin v. State, 722 S.W.2d 702, 705 (Tex. Crim. App.

1987)).

     The charge at punishment instructed the jury as follows:

     If you find from the evidence beyond a reasonable doubt, that prior
     to the commission of the offense of which you have just found the
     defendant guilty, that the defendant was convicted in cause
     number 406751D on or about the 13th day of June, 1991, in the
     Criminal District Court of Tarrant County, Texas, for the felony
     offense of Forgery, and that such conviction, if any, occurred and
     the judgment thereon became final prior to the commission of the
     offense for which you have found the defendant guilty, you will
     find that the allegation in the first enhancement paragraph is “true.”
     If you do not so believe, or if you have a reasonable doubt thereof,
     you will so state by signing the appropriate verdict form under the
     instructions herein given to you.

     If you find from the evidence beyond a reasonable doubt, that prior
     to the commission of the offense of which you have just found the
     defendant guilty, that the defendant was convicted in cause
     number F-9345014-UJ on or about the 10th day of December,
     1993, in the Criminal District Court of Dallas County, Texas, for
     the felony offense of Aggravated Robbery, and that such
     conviction, if any, occurred and the judgment thereon became final
     prior to the commission of the offense for which you have found
     the defendant guilty, you will find that the allegation in the second
     enhancement paragraph is “true.” If you do not so believe, or if
     you have a reasonable doubt thereof, you will so state by signing
     the appropriate verdict form under the instructions herein given
     you.

     In the event you have found that both the first enhancement
     paragraph and the second enhancement paragraph is true beyond
     a reasonable doubt, you will assess the punishment of the
     defendant at confinement in the Institutional Division of the Texas
     Department of Criminal Justice for any term of years not less than



                                      22
      twenty-five (25) years nor more than ninety-nine (99) years, or
      life. . . .

The part of the verdict form signed by the jury foreperson read as follows:

             We, the jury, having found the defendant, JOHN YOUNG,
      guilty of the offense of Aggravated Kidnapping, as alleged in Count
      I of the indictment, further find that the allegations contained in
      both enhancement paragraphs of the indictment herein as “True”,
      and that the defendant is the same person who, prior to the
      commission of said offense of Aggravated Kidnapping, Count I, had
      been convicted of the offense of Forgery in cause number
      406751D in Tarrant County, Texas on the 13th day of June, 1991,
      and we further find that prior to the commission of that offense of
      Forgery the defendant had been convicted of the felony offense of
      Aggravated Robbery in cause number F-9345014-UJ in Dallas
      County, Texas on the 10th day of December, 1993, and we assess
      his punishment at confinement in the Institutional Division of the
      Texas Department of Criminal Justice for a term of 55 YEARS.
      (Insert a term of not less than twenty-five (25) years nor more than
      ninety-nine (99) years, OR insert the word “Life”) . . . .

      The State concedes that the charge erroneously instructed the jury to

assess punishment in the range of twenty-five to ninety-nine years or life if it

found the 1993 Dallas County conviction occurred “prior to” instead of after

the 1991 Tarrant County conviction. Because appellant stated affirmatively

that he had no objection to the charge, we review harm under the Almanza

egregious harm standard. See Tex. Code Crim. Proc. Ann. art. 36.14 (Vernon

2007); Bluitt v. State, 137 S.W.3d 51, 53 (Tex. Crim. App. 2004); Almanza,

686 S.W.2d at 171–72; cf. Jordan, 256 S.W.3d at 292 (refusing to apply harm

analysis when State did not sufficiently prove enhancement allegations because

                                      23
“rather than ensuing from action or inaction on the part of the trial judge,

[evidentiary insufficiency] resulted from the jury's unsupported determination

that the State’s evidence supported a finding of true to the second

enhancement allegation”).

      The State introduced pen packets for the 1991 and 1993 offenses,

showing that appellant was sentenced in Tarrant County on June 13, 1991,

that he committed the Dallas County offense on October 12, 1993, and that

he was sentenced in the Dallas County offense on December 10, 1993.

Appellant did not challenge the finality of the offenses; instead, he argued that

the State did not sufficiently prove that the fingerprints on the pen packets

were his fingerprints. See Fletcher v. State, 214 S.W.3d 5, 8 (Tex. Crim. App.

2007) (“Once the State provides prima facie evidence of an enhancement

conviction, ‘this Court will presume that a conviction is final when faced with

a silent record regarding such.’”). Accordingly, the evidence presented by the

State sufficiently proved the statutorily-prescribed order of the enhancement

offenses. And, although we do not presume to divine the processes of the

jury’s deliberations, the error in the charge seems to be obvious, as a 1991

conviction would have clearly occurred before a 1993 conviction. Accordingly,

we conclude and hold that appellant was not egregiously harmed by the error.




                                       24
See Rice v. State, 746 S.W.2d 356, 360–61 (Tex. App.—Fort Worth 1988,

pet. ref’d). We overrule his third and fourth points.

                                  Conclusion

      Having overruled all of appellant’s points, we affirm the trial court’s

judgment.




                                           TERRIE LIVINGSTON
                                           JUSTICE

PANEL: LIVINGSTON, MCCOY, and MEIER, JJ.

DO NOT PUBLISH
See Tex. R. App. P. 47.2

DELIVERED: December 17, 2009




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