Opinion issued July 28, 2015




                                      In The

                               Court of Appeals
                                     For The

                          First District of Texas
                             ————————————
                               NO. 01-14-00622-CR
                            ———————————
                      HAROLD EARL REED, Appellant
                                        V.
                       THE STATE OF TEXAS, Appellee


                    On Appeal from the 228th District Court
                            Harris County, Texas
                        Trial Court Case No. 1404938


                          MEMORANDUM OPINION

      A jury convicted appellant Harold Earl Reed of possession of cocaine in an

amount greater than four grams and less than two hundred grams. See TEX.

HEALTH & SAFETY CODE §§ 481.102, 481.115. After hearing evidence of Reed’s

prior felony convictions, the trial court assessed punishment at 25 years in prison.
Reed contends that the court erred by denying a motion to suppress a statement he

made at the time of his arrest. He also contends that his sentence was improperly

enhanced because there was no evidence that one of his prior convictions was final

and the court did not require him to plead to the enhancement allegations. In a third

issue,

         We affirm Reed’s conviction, but we reverse the portion of the judgment

assessing punishment and remand for a new punishment hearing.

                                    Background

         Houston Police Department officers executed a search warrant at a house

where a confidential informant had purchased crack cocaine. When the officers

entered the house, they noticed that the bathroom door was closed. They forcibly

entered the bathroom and saw Reed sitting on the toilet with the lid closed, wearing

only boxer shorts and a t-shirt. The officers heard the toilet tank filling and ordered

Reed to move to the floor, but he refused. The officers handcuffed him and took

him to the living room, where they met Officer Lara, who they asked to take Reed

outside. Reed asked for some clothing, and Officer Lara asked where his clothes

were. He responded by stating that they were in the bedroom and nodding toward

it. Officer Lara retrieved some clothing from the bedroom for Reed and then

escorted him outside.




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      Meanwhile, the other officers searched the house. In the kitchen, they found

crack cocaine in plain view, along with a beaker and a wire whisk, which are

commonly used for making crack cocaine. In the bedroom, they found crack

cocaine in the pocket of a jacket, along with clothing in Reed’s size and certificates

of completion of various trade courses bearing his name.

      Reed was arrested and charged with possession of cocaine. The indictment

did not include any enhancements. The State later filed a document entitled

“Notice of Intention to Use Evidence of Prior Convictions and Extraneous

Offenses.” This document listed four prior convictions: possession of a controlled

substance in 1998, 1999, and 2001, as well as a 1999 conviction for possession of a

weapon by a felon. The State indicated that it intended to offer evidence of the

prior offenses to “enhance the range of punishment.”

      Reed’s counsel filed a motion in limine, asking the court to prohibit the State

from introducing evidence about statements he made to police at the time of his

arrest. During trial and outside the presence of the jury, the court held a hearing on

the admissibility of Reed’s statement that his clothes were in the bedroom. The

court ruled that the statements were admissible.

      The jury found Reed guilty, and he elected to have the court assess

punishment. Referring to the filed notice of intent to use evidence of prior

convictions and extraneous offenses, the court asked the State if it had proof of


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those convictions. The State introduced pen packets as evidence of Reed’s prior

conviction of three felony offenses, two of which were committed during the same

criminal transaction. Reed’s mother testified on his behalf urging leniency. She

told the court that Reed grew up in a poor and crime-ridden neighborhood, with

little opportunity, and that he became associated with the wrong crowd as an

adolescent. She also testified about Reed’s prior acts of kindness and

selflessness—such as rescuing his two younger sisters from a burning building,

personally caring for his elderly and incontinent grandfather, and sharing his

earnings with neighbors more needy than himself.

      In closing argument, defense counsel alluded to the enhancements, and he

argued that the 2001 conviction was not final. Reed’s counsel stated that the proper

punishment range was “five to life,” and he urged the court to assess punishment of

“somewhere around five years.” The State argued that Reed was a recidivist and

urged the court to sentence him to “a 25-year minimum.” The trial court found that

the State had “proved the enhancements” and that Reed and his counsel “were

aware of the enhancements, [and] of the range of punishment if [the] enhancements

were proved up.” The court sentenced Reed to 25 years in prison, and he appealed.

                                     Analysis

      On appeal, Reed challenges the court’s ruling on the admissibility of his

statements to police, arguing that it was error to admit them because they were the


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result of custodial interrogation. He also raises two issues pertaining to sentencing,

seeking a remand for a new sentencing hearing.

   I.      Admission of evidence

        In his third issue, Reed argues that the trial court erred by overruling his

motion to suppress the statements he made to Officer Lara. Defense counsel filed a

motion in limine pertaining to those statements, and the trial court held a hearing

on their admissibility outside the presence of the jury. The trial court ruled that the

statements were admissible, overruling Reed’s objection that admission of the

statements would violate his rights under article 38.22 of the Code of Criminal

Procedure because they were non-recorded custodial statements.

        We review a trial court’s ruling on the admission of evidence for an abuse of

discretion. Layton v. State, 280 S.W.3d 235, 240 (Tex. Crim. App. 2009);

Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). As with other

types of evidentiary rulings, we uphold the trial court’s decision unless it lies

outside the zone of reasonable disagreement. Layton, 280 S.W.3d at 240 (citing

Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990)). The test for

abuse of discretion is whether the ruling was arbitrary or unreasonable.

Montgomery, 810 S.W.2d at 380. We “may uphold a trial court’s ruling on any

legal theory or basis applicable to the case.” Martinez v. State, 91 S.W.3d 331, 336

(Tex. Crim. App. 2002).


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      Article 38.22 prohibits the use of an oral statement of an accused made as a

result of custodial interrogation unless the statement is made voluntarily, after the

accused is informed of his rights, and it is electronically recorded. TEX. CODE

CRIM. PROC. art. 38.22 § 3; see also Miranda v. Arizona, 384 U.S. 436, 444, 86 S.

Ct. 1602, 1612 (1966) (requiring that a person receive a warning informing him of

his constitutional rights prior to any custodial interrogation). But neither Miranda

nor article 38.22 precludes the admission of a statement that is not the product of a

custodial interrogation. Miranda, 384 U.S. at 444, 86 S. Ct. at 1612; TEX. CODE

CRIM. PROC. art. 38.22 § 5; accord Aguilera v. State, 425 S.W.3d 448, 455 (Tex.

App.—Houston [1st Dist.] 2011, pet. ref’d). Not all statements obtained by police

while a person is in custody “are to be considered the product of interrogation.”

Rhode Island v. Innis, 446 U.S. 291, 299, 100 S. Ct. 1682, 1688–89 (1980). To be

considered an interrogation, a question must denote “a measure of compulsion

above and beyond that inherent in custody itself.” Id. at 300, 100 S. Ct. at 1689.

That is, “interrogation” refers to “words or actions on the part of the police . . . that

the police should know are reasonably likely to elicit an incriminating response

from the suspect.” Id. at 301, 100 S. Ct. at 1689–90. Furthermore, article 38.22

excepts from its prohibition a statement by the defendant “that is the res gestae of

the arrest or of the offense.” TEX. CODE CRIM. PROC. art. 38.22 § 5.




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      Reed argues that he was in custody, and we assume for the purpose of our

analysis that he was. Officer Lara encountered Reed in the living room of the

house being searched. Reed requested his clothes, and Officer Lara asked him

where they were. In response, Reed nodded toward a bedroom and said, “They are

in my room.” On appeal, Reed contends that this custodial statement was

inadmissible. Specifically, Reed argues that his statements were not res gestae, and

even if they were res gestae they nevertheless would not be admissible. However

his appellate argument does not address whether any interrogation occurred at all.

      At trial, defense counsel stated that he had no objection to the admission of

Reed’s request for his clothes. However counsel argued that “every other follow-

up question by the police and afterwards” was required to be recorded because

Reed was “clearly” in custody. He made no argument that Officer Lara should

have known that his question was “reasonably likely to elicit an incriminating

response.” Innis, 446 U.S. 301, 100 S. Ct. at 1689–90. Nothing in the record

indicates that he should have had such an awareness. Rather, the record supports a

conclusion that Officer Lara asked where the clothes were so that he could

accommodate Reed’s request for them. Although Reed’s response to the question

tended to connect him to the contraband found in the house, under the

circumstances, we hold that the record supports the conclusion that Officer Lara’s

response to a request for clothing was not an interrogation. See id.; see also Batiste


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v. State, No. AP-76,600, 2013 WL 2424134, at *14–15 (Tex. Crim. App. June 5,

2013) (not designated for publication) (holding that officer’s question as to

whether the appellant needed medical attention was not an interrogation), cert.

denied, 134 S. Ct. 1000 (2014). Because Officer Lara’s question did not constitute

an interrogation, Reed’s response was not the product of custodial interrogation.

As such, we hold that the trial court did not err by admitting the statement. See

Layton, 280 S.W.3d at 240. We overrule Reed’s third issue.

   II.      Improper enhancement of punishment

         Reed argues that the evidence is legally insufficient to support the trial

court’s finding of a final conviction for enhancement purposes. The State

introduced evidence that, as part of a plea bargain, Reed pleaded guilty to the third-

degree felony offenses of possession of cocaine and possession of a firearm by a

felon. Both of these offenses were committed on October 7, 1999. The State also

introduced a judgment of conviction from 2001 for the first-degree felony offense

of possession with intent to deliver cocaine in an amount greater than four but less

than 200 grams. In that case, a jury found Reed guilty and assessed punishment of

23 years in prison. The judgment shows that a notice of appeal was filed, but there

is no indication as to whether a mandate was received from the court of appeals.

Reed contends that the record did not show that the 2001 conviction was final, and




                                          8
the court erred by considering it for the purpose of enhancing punishment because

there was no evidence that he had been finally convicted in that case.

      Possession of cocaine in an amount more than four but less than two

hundred grams is a second-degree felony. TEX. HEALTH & SAFETY CODE

§§ 481.102, 481.115. The range of punishment for a second-degree felony is

imprisonment for two to 20 years. TEX. PENAL CODE § 12.33. However, if the State

proves that the defendant previously has been finally convicted of a felony other

than a state-jail felony, the punishment range is enhanced to that of a first-degree

felony, i.e., five to 99 years or life in prison. Id. § 12.42(b). If the State proves that

the defendant has previously been finally convicted of two felony offenses, and the

second prior felony conviction is for an offense that occurred after the first felony

conviction became final, then the defendant may be sentenced as a habitual

offender, and the punishment range is enhanced to 25 to 99 years or life in prison.

Id. § 12.42(d).

      “To establish that a defendant has been convicted of a prior offense, the

State must prove beyond a reasonable doubt that (1) a prior conviction exists, and

(2) the defendant is linked to that conviction.” Flowers v. State, 220 S.W.3d 919,

921 (Tex. Crim. App. 2007). A “conviction from which an appeal has been taken is

not considered to be a final conviction until the conviction is affirmed by the

appellate court and that court’s mandate of affirmance becomes final.” Jones v.


                                            9
State, 711 S.W.2d 634, 636 (Tex. Crim. App. 1986). When the record shows that

an appeal has been taken from a prior conviction, the State bears the burden to

prove that the conviction has become final. Fletcher v. State, 214 S.W.3d 5, 8

(Tex. Crim. App. 2007); Tate v. State, 414 S.W.3d 260, 265 (Tex. App.—Houston

[1st Dist.] 2013, no pet.).

      The State concedes error, and we agree. The jury found Reed guilty of the

second-degree felony offense of possession of between four and 200 grams of

cocaine. See TEX. HEALTH & SAFETY CODE §§ 481.102, 481.115. Although the

State proved that Reed had previously been finally convicted of a third-degree

felony in 1999, it did not prove that the 2001 first-degree felony conviction was

final. The judgment states that notice of appeal was given, but nothing in the

record shows that an appellate court mandate issued. As such, there is no proof of

finality of that conviction. See Fletcher, 214 S.W.3d at 8; Jones, 711 S.W.2d at

636; Tate, 414 S.W.3d at 265. Accordingly we hold that the evidence was

insufficient to establish the predicate necessary to use the 2001 conviction to

enhance Reed’s punishment. See Tate, 414 S.W.3d at 265 (reversing as to

punishment without conducting a harm analysis). As such, the State did not prove

that the court was required to assess punishment of no less than 25 years in prison.

See TEX. PENAL CODE § 12.42(d). We sustain this issue and remand for a new

hearing on punishment. In light of the disposition of this issue, we need not address


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Reed’s other arguments complaining about his punishment. See TEX. R. APP. P.

47.1.

                                   Conclusion

        We affirm Reed’s conviction, but we reverse the portion of the judgment

assessing punishment, and we remand for a new hearing on punishment.




                                                Michael Massengale
                                                Justice

Panel consists of Chief Justice Radack and Justices Higley and Massengale.

Do not publish. TEX. R. APP. P. 47.2(b).




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