                                     In The

                               Court of Appeals
                   Ninth District of Texas at Beaumont
                          ____________________
                              NO. 09-14-00410-CR
                              NO. 09-14-00411-CR
                          ____________________

                          REY BARRERA, Appellant

                                       V.

                      THE STATE OF TEXAS, Appellee
_______________________________________________________          ______________

                 On Appeal from the Criminal District Court
                          Jefferson County, Texas
                  Trial Cause No. 13-15829 (Counts 1 and 2)
________________________________________________________          _____________

                         MEMORANDUM OPINION

      A jury found Rey Barrera guilty of aggravated assault with a deadly weapon

on a public servant (Count 1) and possession of a deadly weapon in a penal

institution (Count 2). See Tex. Penal Code Ann. §§ 22.02(b)(2)(B), 46.10 (West

2011). The jury found Barrera to be a repeat offender and assessed punishment at

life in prison and a $10,000 fine for Count 1 and twenty years in prison and a

$10,000 fine for Count 2. The trial court ordered both sentences to commence after


                                        1
the sentences imposed for his previous convictions have ceased to operate. See

Tex. Code Crim. Proc. Ann. art. 42.08(a) (West Supp. 2014). On appeal, Barrera

contends the fines were unauthorized by law. In the alternative, he contends the

fines must run concurrently. Finally, Barrera challenges the affirmative finding of

the use of a deadly weapon on the judgment for the possession offense. Finding no

reversible error in this appeal, we affirm the trial court’s judgment.

                               Enhanced Punishment

      Issue one contends the trial court erred in allowing the jury to assess a fine

as part of Barrera’s punishment because the evidence established his status as a

habitual offender. Section 12.42 of the Texas Penal Code describes the punishment

range for habitual and repeat felony offenders on trial for a first, second, or third

degree felony. Tex. Penal Code Ann. § 12.42 (West Supp. 2014). “[I]f it is shown

on the trial of a felony of the third degree that the defendant has previously been

finally convicted of a felony other than a state jail felony punishable under Section

12.35(a), on conviction the defendant shall be punished for a felony of the second

degree.” Id. § 12.42(a). A second degree felony is punished by “imprisonment in

the Texas Department of Criminal Justice for any term of not more than 20 years

or less than 2 years.” Tex. Penal Code Ann. § 12.33(a) (West 2011). “In addition to

imprisonment, an individual adjudged guilty of a felony of the second degree may

                                           2
be punished by a fine not to exceed $10,000.” Id. § 12.33(b). “If it is shown on the

trial” of a first degree felony that a person has a felony conviction that became

final before the date of the charged offense, provisions similar to those found in

section 12.42(a) establish a punishment range of “life, or for any term not more

than 99 years or less than 15 years.” Id. § 12.42(c)(1). “In addition to

imprisonment, an individual may be punished by a fine not to exceed $10,000.” Id.

      A different subsection of Section 12.42 applies when a person is found to be

a habitual offender.

      [I]f it is shown on the trial of a felony offense other than a state jail
      felony punishable under Section 12.35(a) that the defendant has
      previously been finally convicted of two felony offenses, and the
      second previous felony conviction is for an offense that occurred
      subsequent to the first previous conviction having become final, on
      conviction the defendant shall be punished by imprisonment in the
      Texas Department of Criminal Justice for life, or for any term of not
      more than 99 years or less than 25 years.

Tex. Penal Code Ann. § 12.42(d). The subsection that applies to habitual offenders

does not authorize a fine. See Ex parte Johnson, 697 S.W.2d 605, 607-08 (Tex.

Crim. App. 1985).

      In this case, four enhancement paragraphs contained in the indictment

alleged Barrera had previously been convicted in 2008 for committing aggravated

assault with a deadly weapon, in 1997 for murder as well as attempted murder, and

in 1986 for robbery. The State alleged the 1986 conviction became final before the
                                         3
commission of the 1997 offenses, the 1997 convictions became final before the

commission of the 2008 offense, and the 2008 conviction became final before the

commission of the charged offenses. The State abandoned the first and fourth

enhancement paragraphs, without an objection from the defense, in a pre-trial

hearing. Before the punishment phase of the trial started, the State and the defense

agreed to the State’s abandonment of the paragraph alleging a 1997 conviction for

attempted murder. Barrera made a plea of “true” to the single remaining

enhancement paragraph.

      A penitentiary packet admitted into evidence in the trial’s punishment phase

included: (1) a judgment on a conviction for murder, committed October 10, 1996,

with a sentence of 65 years in prison and a $10,000 fine, commencing December 5,

1997; (2) a judgment on a conviction for attempted murder, committed October 10,

1996, with a sentence of 20 years in prison and a $10,000 fine, commencing

December 5, 1997; (3) a judgment on a conviction for possession of a deadly

weapon in a penal institution, committed on April 21, 2004, with a sentence of 3

years in prison imposed on April 1, 2005, and commencing when a 1997 sentence

has ceased to operate; (4) a judgment on a conviction for aggravated assault with a

deadly weapon, committed December 2, 2006, with a sentence of 50 years in

prison imposed on October 22, 2008, and commencing when the 1997 sentence for

                                         4
murder has ceased to operate; and (5) a judgment on a conviction for robbery,

committed November 30, 1985, with a sentence of 10 years in prison imposed on

May 12, 1986, and commencing November 30, 1985. Records from an El Paso

County district court include a judgment of conviction for aggravated assault with

a deadly weapon, committed October 10, 1996, with a sentence of 20 years in

prison and a $10,000 fine, commencing December 5, 1997.

      In the charge conference, Barrera argued that section 12.42(d) of the Texas

Penal Code supplied the proper punishment range because the State and the

defense proved two or more sequential prior final felony convictions during the

punishment phase of the trial. See generally Tex. Penal Code Ann. § 12.42(d). The

trial court denied the defense’s request to submit a habitual offender charge to the

jury. The jury charge required the jury to punish Barrera as a repeat offender based

upon Barrera’s plea of true to a single enhancement paragraph in the indictment.

      Barrera argues application of habitual offender punishment under section

12.42(d) was mandatory in his cases because two sequential final felony

convictions were “shown” on his trial. See generally id. The cases Barrera cites in

his brief demonstrate that the mandatory application of section 12.42(d) occurs if

there has been a plea of true by the defendant or a finding of true by the finder of

fact. See State v. Allen, 865 S.W.2d 472, 473-74 (Tex. Crim. App. 1993) (section

                                         5
12.42(d) applies when the State has proven the enhancement paragraphs and the

factfinder has found the enhancement allegation to be true); Harvey v. State, 611

S.W.2d 108, 110-11 (Tex. Crim. App. 1981) (when the defendant pleads “true” to

the State’s enhancement allegation, the defendant cannot complain that the

evidence is insufficient to support the finding and the trial court may charge the

jury on the enhanced punishment range).

      Due process requires reasonable notice and an opportunity to be heard

relative to a recidivist charge. Oyler v. Boles, 368 U.S. 448, 452 (1962). Prior

convictions used as enhancements must be pleaded in some form, and they may be

pleaded in an indictment. Brooks v. State, 957 S.W.2d 30, 33-34 (Tex. Crim. App.

1997). “[T]he State may, with the permission of the trial court, ‘dismiss, waive or

abandon a portion of the indictment.’” Garland v. State, 170 S.W.3d 107, 111

(Tex. Crim. App. 2005) (quoting Ex parte Preston, 833 S.W.2d 515, 517 (Tex.

Crim. App. 1992)). “Among the available strategies for the state is an election not

to pursue enhancements.” Marshall v. State, 185 S.W.3d 899, 903 (Tex. Crim.

App. 2006). In this case, the record contains a pleading, a plea, and proof of a

single prior final felony conviction. Accordingly, Barrera was properly punished as

a repeat felony offender. See Tex. Penal Code Ann. § 12.42(c)(1). We overrule

issue one.

                                          6
                                Concurrent Fines

      Issue two contends the trial court erred in allowing consecutive fines where

the sentences were ordered to be served concurrently. Barrera was tried in a single

criminal action for offenses arising out of the same criminal episode. See Tex.

Penal Code Ann. § 3.03(a) (West Supp. 2014). Fines which are part of concurrent

sentences “run” concurrently. State v. Crook, 248 S.W.3d 172, 174, 177 (Tex.

Crim. App. 2008) (plurality opinion). “An individual sentence assessed . . . within

the applicable range of punishment is not rendered illegal by the entry of an

unlawful cumulation order.” Beedy v. State, 250 S.W.3d 107, 114 (Tex. Crim. App.

2008). An unlawful cumulation order is remedied by reforming the judgment to set

aside the order. Id. at 113.

      Barrera argues that the fine recited in the judgment for Count 2 must be

deleted from the judgment because the sentences for aggravated assault on a public

servant and possession of a deadly weapon in a penal institution are to be served

concurrently. The remedy Barrera seeks is not that his fines “run concurrently,” but

that one of the fines not be imposed at all, contrary to the jury’s verdict. Deciding

what punishment to assess within the statutorily prescribed range for a given

offense and deciding whether to cumulate sentences are two distinct functions. See

Barrow v. State, 207 S.W.3d 377, 379-80 (Tex. Crim. App. 2006). The jury’s

                                         7
decision whether to assess a particular punishment in a particular case has no

bearing on the judge’s decision whether to cumulate the sentence. Id. To determine

whether the judgment properly states that the sentence for Barrera’s conviction for

aggravated assault on a public servant will be served concurrently with his

sentence for possession of a deadly weapon in a penal institution, we look not to

the part of the judgment that recites the sentence, but to the part of the judgment

memorializing the cumulation order. See Tex. Code Crim. Proc. Ann. art. 42.01, §

1(9), (15), (19) (West Supp. 2014).

      The cumulation orders contained in the judgments at issue here state that the

sentence shall commence when the judgments and sentences have ceased to

operate in Barrera’s 2008 convictions for aggravated assault with a deadly weapon

and assault of a public servant. See Tex. Code Crim. Proc. Ann. art. 42.08(a). A

statement that a sentence has been cumulated under article 42.08 is properly

included on a judgment. See id. art. 42.01, § 1(19). Because no other cumulation

order appears on either judgment, and Barrera does not contend that the sentences

in this case cannot be cumulated on the sentences identified in the judgments, we

find no error on the face of the judgment requiring reformation of the judgment on

appeal. We overrule issue two.




                                        8
                             Deadly Weapon Finding

      Issue three contends the trial court erred in allowing the jury to make an

affirmative finding of the use or exhibition of a deadly weapon in the charge for

possession of a deadly weapon in a penal institution. He argues the weapon was

present but did not facilitate a separate felony. See Plummer v. State, 410 S.W.3d

855, 859-60 (Tex. Crim. App. 2013) (“However, we have declined to uphold

deadly-weapon findings when the weapon was present but did not facilitate a

separate felony.”).

      The indictment in this case alleged, in part:

      REY BARRERA, hereinafter styled Defendant, on or about the 4th
      day of September, 2012, and before the presentment of this
      indictment, in the County and said State aforesaid, did:
                                  COUNT ONE
      then and there intentionally, knowingly, or recklessly cause bodily
      injury to [D.L.], by stabbing [D.L.] with a pencil, and the Defendant
      did then and there know that the said [D.L.] was a public servant in
      the lawful discharge of an official duty, to-wit:
      Correctional Officer, and the defendant did then and there use or
      exhibit a deadly weapon, to-wit: a pencil, during the commission of
      said assault;
                                  COUNT TWO:
      then and there, while confined in a penal institution, intentionally or
      knowingly possess or conceal in said penal institution a deadly
      weapon, to-wit: a pencil, and the defendant did then and there use or
      exhibit a deadly weapon, to-wit: a pencil, during the commission of
      said possession or concealment of a deadly weapon in a penal
      institution[.]


                                          9
      The jury charge informed the jury that “[a] person commits an offense if,

while confined in a penal institution, (s)he intentionally or knowingly possesses or

conceals a deadly weapon in the penal institution.” See generally Tex. Penal Code

Ann. § 46.10. One of the definitions included in the charge stated: “Deadly weapon

means[:] (1) a firearm or anything manifestly designed, made, or adapted for the

purpose of inflicting death or serious bodily injury; or (2) anything that in the

manner of its use or intended use is capable of causing death or serious bodily

injury.” See generally Tex. Penal Code Ann. § 1.07(17) (West Supp. 2014).

      The application paragraph for Count 1 stated, as follows:

            Now, as to Count 1 of the Indictment, if you believe from the
      evidence beyond a reasonable doubt that in Jefferson County, Texas,
      on or about September 4, 2012, the defendant Rey Barrera, did then
      and there intentionally, knowingly, or recklessly cause bodily injury
      to [D.L.], by stabbing [D.L.] with a pencil, and the Defendant did then
      and there know that the said [D.L.] was a public servant in the lawful
      discharge of an official duty, to-wit: Correctional Officer, and the
      defendant did then and there use or exhibit a deadly weapon, to-wit: a
      pencil, during the commission of said assault, you shall find the
      defendant GUILTY of the offense of Aggravated Assault with a
      Deadly Weapon on a Public Servant.

       The application paragraph for Count 2 stated, as follows:

            Now, as to Count 2 of the Indictment, if you believe from the
      evidence beyond a reasonable doubt that in Jefferson County, Texas,
      on or about September 4, 2012, the defendant Rey Barrera, did then
      and there, while confined in a penal institution, intentionally or
      knowingly possess or conceal in said penal institution a deadly
      weapon, to-wit: a pencil, and the defendant did then and there use or
                                        10
      exhibit a deadly weapon, to-wit: a pencil, during the commission of
      said possession or concealment of a deadly weapon in a penal
      institution, you shall find the defendant GUILTY of the offense of
      Deadly Weapon in a Penal Institution.

      “[I]n order to ‘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). We give “use” its broadest possible

understanding. Tyra v. State, 897 S.W.2d 796, 797 (Tex. Crim. App. 1995). In this

case, the jury considered evidence that Barrera stabbed D.L. in the lower outside

portion of his left eye with the pencil, penetrating to the brain and damaging three

of the cranial nerves, leaving D.L. completely and most likely permanently blind in

that eye. The charge authorized the jury to convict Barrera only if it found that he

used or exhibited a pencil, which in the manner of its use by Barrera was capable

of causing death or serious bodily injury. To support a deadly weapon finding,

there must be a facilitation purpose between the weapon and the associated felony

offense. Plummer, 410 S.W.3d at 856. Such a facilitation purpose is present in this

case because Barrera used what would otherwise have been a harmless writing

implement to stab D.L. in the eye, blinding him. Barrera’s use of the pencil to stab

D.L. facilitated his possession of a deadly weapon in a penal institution because

that use made the object a deadly weapon. Additionally, Barrera’s use of the pencil
                                        11
to stab D.L. furthered the commission of the aggravated assault on a public

servant, a felony offense facilitated by the possession, and distinct from the offense

of possession itself. See id. at 865. The evidence did not show mere possession of a

deadly weapon. We overrule issue three and affirm the trial court’s judgment.

      AFFIRMED.


                                              ________________________________
                                                      CHARLES KREGER
                                                           Justice


Submitted on February 5, 2015
Opinion Delivered October 14, 2015
Do Not Publish

Before McKeithen, C.J., Kreger and Horton, JJ.




                                         12
