                                        NO. 12-13-00394-CR

                               IN THE COURT OF APPEALS

                  TWELFTH COURT OF APPEALS DISTRICT

                                           TYLER, TEXAS

RAY HAWKINS, JR.,                                        §       APPEAL FROM THE 2ND
APPELLANT

V.                                                       §       JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                                 §       CHEROKEE COUNTY, TEXAS

                                        MEMORANDUM OPINION
       Ray Hawkins, Jr. appeals his conviction for aggravated robbery, for which he was
sentenced to imprisonment for seventy years. Appellant raises seven issues on appeal. We
modify the trial court’s judgment and affirm as modified.


                                                 BACKGROUND
       Appellant was charged by indictment with aggravated robbery. The indictment further
alleged that Appellant was, as a juvenile, found to have engaged in delinquent conduct, 1 for
which he was committed to the Texas Youth Commission for an indeterminate period.
Appellant pleaded “not guilty,” and the matter proceeded to a jury trial.
       The evidence at trial demonstrated that on the morning of October 28, 2009, Christina
Martinez and her niece, Erica Martinez, were working at a tortilla shop in Jacksonville, Texas.
The record reflects that Appellant entered the shop before it opened and inquired about the cost
of tortillas. Erica answered his question, and Appellant left without buying anything.
       Moments later, Appellant returned along with Despond Thompson. Both men wielded
firearms. The evidence indicates that Thompson pointed his weapon directly at Christina’s head
and demanded money while Appellant pointed his weapon, hidden beneath his sweatshirt, at

       1
           The delinquent conduct was alleged to have been the commission of robbery in violation of penal law.
Erica’s chest. Christina and Erica attempted to convey to the men that there was no money. In
response, Thompson pointed his gun at Erica. He then took Erica’s purse, which he put under
his arm and, at some point, resumed pointing his gun at Christina. Both Christina and Erica
testified that they thought they would be killed.
       The evidence indicates that Appellant and Thompson ordered the two women to go into
an office inside the shop. Appellant searched the women’s aprons and pants pockets and
continued to demand to know where the money was. Thompson remained outside pointing his
gun at both women through a window in the office. After abandoning his search, Appellant left
the office to speak to Thompson. Appellant later returned to the office and told the women that
if they left the office, they would be killed. He then shut the office door and fled the premises
along with Thompson.
       After some time, the women left the office and discovered that the men had stolen
Christina’s cellular telephone. They exited the shop where they convinced a passerby to call the
police. The police soon arrived and the women gave descriptions of the perpetrators. Days later,
police apprehended Appellant and Thompson.
       The police later compiled two photographic lineups––one, which included Thompson,
and the other, which included Appellant.            Christina and Erica were shown the lineups
individually. Christina viewed the lineup containing Thompson’s picture and identified him as
the man who pointed a gun at her head. Erica viewed the lineup containing Appellant’s picture
and identified him as the person who pointed a gun at her. Both Christina and Erica also
identified Appellant in open court as one of the two perpetrators.
       The jury found Appellant “guilty” as charged, and the matter proceeded to a trial on
punishment. At the outset of the punishment proceedings, Appellant stipulated and pleaded
“true” to the enhancement allegation in the indictment. Ultimately, the jury assessed Appellant’s
punishment at imprisonment for seventy years. The trial court sentenced Appellant accordingly,
and this appeal followed.


                                         CHARGE ERROR
       In his first and second issues, Appellant argues that he was denied his constitutional and
statutory rights to a unanimous jury verdict by the disjunctive submission in the jury charge of




                                                    2
two separate offenses. Consistent with the language of the indictment, the court’s charge read, in
pertinent part, as follows:

                 Now, if you find from the evidence beyond a reasonable doubt, that on or about October
       28[], 2009, in Cherokee County, Texas, the defendant, Ray Hawkins Jr., did then and there, acting
       alone or as a party as that term has been previously defined, while in the course of committing
       theft of property and with intent to obtain or maintain control of said property, intentionally or
       knowingly threaten or place Christina Martinez and or Erica Martinez in fear of imminent bodily
       injury or death, and the defendant did then and there use or exhibit a deadly weapon, to wit: a
       firearm, then you will find the defendant guilty of the offense of aggravated robbery as charged in
       the indictment.


Submission of Disjunctive Charge Without Instruction on Unanimity of Jury’s Verdict
       Under the Texas constitution and Code of Criminal Procedure, a jury must reach a
unanimous verdict. See Landrian v. State, 268 S.W.3d 532, 535 (Tex. Crim. App. 2008). The
jury must agree that the defendant committed one specific crime. Id. For instance, a lack of
unanimity can occur when the state alleges one offense, but presents evidence that the defendant
committed the offense on multiple occasions. See Cosio v. State, 353 S.W.3d 766, 772 (Tex.
Crim. App. 2011). Each of the multiple incidents individually establishes a different offense or
unit of prosecution. Id. The court’s charge, to ensure unanimity, needs to instruct the jury that
its verdict must be unanimous as to a single offense or unit of prosecution among those
presented. See id. With regard to the offense of robbery, the allowable unit of prosecution is
“each victim.” Ex parte Hawkins, 6 S.W.3d 554, 560 (Tex. Crim. App. 1999).
       In the instant case, the State recognizes that the jury was charged in the disjunctive
regarding the two robbery victims and that the jury should have been instructed that its verdict
had to be unanimous as to a particular victim. The State concedes that since the jury was not
instructed on the necessity of unanimity in this regard, that the submission of this disjunctive
charge was erroneous. We agree.
Harm Analysis
       All alleged jury charge error must be considered on appellate review regardless of
preservation in the trial court. Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012).
Once a court of appeals determines that error occurred, it must analyze that error for harm. Id.
The issue of error preservation is not relevant until harm is assessed because the degree of harm
required for reversal depends on whether the error was preserved. Id. When, as here, the




                                                       3
defendant fails to object to the charge, we will not reverse unless the record shows “egregious
harm” to the defendant See Ngo v. State, 175 S.W.3d 738, 743–44 (Tex. Crim. App. 2005).
       To determine “egregious harm,” a reviewing court examines “the entire jury charge, the
state of the evidence, including the contested issues and weight of the probative evidence, the
arguments of counsel, and any other relevant information revealed by the record of the trial as a
whole.” Warner v. State, 245 S.W.3d 458, 461 (Tex. Crim. App. 2008); see also Taylor v. State,
332 S.W.3d 483, 489 (Tex. Crim. App. 2011). The appellant must have suffered actual, rather
than theoretical, harm. Warner, 245 S.W.3d at 461. Errors that result in egregious harm are
those that affect the very basis of the case, deprive the defendant of a valuable right, or vitally
affect a defensive theory. Id. at 461–62.
       The Charge
       As set forth above, the charge permitted a nonunanimous verdict. However, the charge
also provided in pertinent part as follows:

                All persons are parties to an offense who are guilty of acting together in the commission
       of an offense. A person is criminally responsible as a party to an offense if the offense is
       committed by his own conduct, by the conduct of another for which he is criminally responsible,
       or by both.

                  Each party to an offense may be charged with the commission of the offense.

                 A person is criminally responsible for an offense committed by the conduct of another if,
       acting with intent to promote or assist the commission of the offense, he solicits, encourages,
       directs, aids, or attempts to aid the other person to commit the offense.

                  Mere presence alone will not constitute one a party to an offense.

See TEX. PENAL CODE ANN. § 7.01 (West 2011). Here, the evidence supports that Appellant, at
the very least, acted with intent to assist Thompson and aided him in his commission of the
robbery.2 Thus, even though only Christina identified Appellant before trial, Appellant remains
responsible for Thompson’s actions under the law of parties. Id. Moreover, the record indicates
that Appellant threatened to kill both Christina and Erica if they left the office. Further still,
Christina and Erica identified Appellant at trial. Therefore, the evidence supports that Appellant
committed the crime either acting individually or as a party to Thompson’s conduct. Id.; see
Leza v. State, 351 S.W.3d 344, 357 (Tex. Crim. App. 2011) (unanimity of jury’s verdict
concerning whether accused guilty as a principal actor or party not necessary).

       2
           Appellant has not raised an issue challenging the sufficiency of the evidence.


                                                          4
       State of the Evidence
       Appellant’s defense at trial was that he was misidentified by Christina and Erica. Thus,
the jury was asked to consider two mutually exclusive theories––the State’s theory that
Appellant robbed the two victims or Appellant’s theory that he did not rob either of them. See,
e.g., Gonzales v. State, 191 S.W.3d 741, 751 (Tex. App.–Waco 2006, pet. ref’d). Appellant
neither argued to the jury, nor is there any evidence in the record to suggest, that the jury may
have considered that Appellant robbed Erica, but not Christina. In finding Appellant “guilty,”
the jury plainly accepted the State’s theory that Appellant was one of two men who robbed both
Erica and Christina. See id.
       Argument of Counsel
       During her jury argument, the prosecuting attorney made reference to the disjunctive
submission. However, it is apparent from the record that she merely was attempting to quote a
portion of the application paragraph from the court’s charge.              She did not, in any meaningful
way, emphasize to the jury that it could find Appellant guilty if it found he committed the
aggravated robbery against either Christina or Erica. See id. at 750 (concluding argument of
counsel did not support egregious harm where State’s comments did not rise to level of
accentuation of error). Moreover, there are instances wherein the State took on the correct
burden in spite of the erroneous charge language.                For example, the prosecuting attorney
summed up her jury argument as follows:


                 Ladies and Gentlemen, this is a fairly simple case. These two poor women were trying to
       make a hard earned honest living from 3:00 o'clock in the morning, just doing their job, trying to
       make tortillas when this Defendant and his Co-defendant bursts in with a firearm, threatened to
       kill them, robbed them of the value of the property that they had on October 28th of 2009 in
       Cherokee County, Texas, and placed them in fear of imminent bodily injury or death, and as such
       we would ask that when you go back into the jury room after you have selected a foreman that you
       sign that the Defendant in this case is guilty of aggravated robbery.


       Having considered the relevant factors and the record as a whole, we conclude that
Appellant did not suffer error that affected the very basis of the case, deprived him of a valuable
right, or vitally affected a defensive theory. Therefore, we hold that Appellant did not suffer
egregious harm. Appellant’s first and second issues are overruled.




                                                       5
                                       SHACKLING AT TRIAL
       In his third issue, Appellant argues that he was denied due process of law and the
presumption of innocence by being shackled at trial. In his fourth issue, Appellant argues that he
received ineffective assistance of counsel because his trial counsel failed to object to his being
shackled.
Governing Law
       The Fourteenth Amendment guarantees criminal defendants the right to a fair trial. See
Estelle v. Williams, 425 U.S. 501, 503, 96 S. Ct. 1691, 1692, 48 L. Ed. 2d 126 (1976). Three
constituent elements of this guarantee are directly implicated by the shackling of a criminal
defendant during trial proceedings. See Deck v. Missouri, 544 U.S. 622, 630, 125 S. Ct. 2007,
2013, 161 L. Ed. 2d 953 (2005). First, “the criminal process presumes that the defendant is
innocent until proven guilty.” Id. A defendant who is visibly shackled does not have the benefit
of this bedrock presumption and thus his right to a fair trial is fundamentally compromised. Id.
Second, “the Constitution, in order to help the accused secure a meaningful defense, provides
him with a right to counsel.” Id., 544 U.S. at 631, 125 S. Ct. at 2013. The use of shackles may
undermine this right by impeding a defendant’s ability to effectively communicate with his
attorney. Id. Third, “the routine use of shackles in the presence of juries” compromises “[t]he
courtroom’s formal dignity, which includes the respectful treatment of defendants, reflects the
importance of the matter at issue, guilt or innocence, and the gravity with which Americans
consider any deprivation of an individual's liberty through criminal punishment.” Id.
       For the reasons stated above, “[t]he law has long forbidden the use of visible shackles
during the guilt phase” of a criminal defendant's trial. Id., 544 U.S. at 626, 125 S. Ct. at 2010.
Despite this general rule, courts recognize that it may be necessary for certain defendants to be
restrained in exceptional circumstances. See id., 544 U.S. at 629, 125 S. Ct. at 2012; Wiseman v.
State, 223 S.W.3d 45, 50 (Tex. App.–Houston [1st Dist.] 2006, pet. ref’d). Such circumstances
may arise, for instance, when a defendant has demonstrated a propensity to escape or has
threatened or assaulted courtroom personnel, thereby implicating an essential state interest,
namely, courtroom security. See Deck, 544 U.S. at 632, 125 S. Ct. at 2014. Prior to the use of
shackles, however, a trial court must make a specific finding that they are necessary for reasons
particular to a given case. See Deck, 544 U.S. at 627, 125 S. Ct. at 2011 (“[T]rial courts may not
shackle defendants routinely, but only if there is a particular reason to do so.”).



                                                  6
Preservation of Error
       We first note that the record reflects Appellant did not object at trial to being shackled or
to the lack of specific findings by the trial court justifying the use of shackles.        Because
Appellant did not object at trial, he has waived his right to appeal on these grounds. See TEX. R.
APP. P. 33.1(a); Cedillos v. State, 250 S.W.3d 145, 150 (Tex. App.–Eastland 2008, no pet.)
(holding because defendant “did not object on the record to the use of restraints in the jury’s
presence, this issue is waived . . . .”); Wiseman, 223 S.W.3d at 49 (holding defendant’s failure to
object at trial that his shackling violated Texas constitution waived his right to appellate review
on that ground); see also Rivera-Sanchez v. State, No. 01-14-00415-CR, 2015 WL 3751489, at
*3 (Tex. App.–Houston [1st Dist.] June 16, 2015, no pet.) (mem. op., not designated for
publication); Kelley v. State, No. 05–09–01438–CR, 2012 WL 2628074, at *6 (Tex. App.–Dallas
July 6, 2012, pet. ref’d) (mem. op., not designated for publication) (holding that shackling is not
fundamental error and thus, defendant needed to object to preserve error); Pereida v. State, No.
13–09–354–CR, 2010 WL 2783743, at *6 (Tex. App.–Corpus Christi July 15, 2010, pet. ref’d)
(mem. op., not designated for publication) (concluding that defendant’s failure to object to use of
shackles caused complaint to be waived). Appellant’s third issue is overruled.
Ineffective Assistance of Counsel
       Claims of ineffective assistance of counsel are evaluated under the two step analysis
articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 674 (1984).
The first step requires the appellant to demonstrate that trial counsel’s representation fell below
an objective standard of reasonableness under prevailing professional norms. See Strickland,
466 U.S. at 688, 104 S. Ct. at 2065. To satisfy this step, the appellant must identify the acts or
omissions of counsel alleged to be ineffective assistance and affirmatively prove that they fell
below the professional norm of reasonableness. See McFarland v. State, 928 S.W.2d 482, 500
(Tex. Crim. App. 1996). The reviewing court will not find ineffectiveness by isolating any
portion of trial counsel’s representation, but will judge the claim based on the totality of the
representation. See Strickland, 466 U.S. at 695, 104 S. Ct. at 2069.
       To satisfy the Strickland standard, the appellant is also required to show prejudice from
the deficient performance of his attorney. See Hernandez v. State, 988 S.W.2d 770, 772 (Tex.
Crim. App. 1999). To establish prejudice, an appellant must prove that but for counsel’s




                                                 7
deficient performance, the result of the proceeding would have been different. See Strickland,
466 U.S. at 694, 104 S. Ct. at 2068.
          In any case considering the issue of ineffective assistance of counsel, we begin with the
strong presumption that counsel was effective. See Jackson v. State, 877 S.W.2d 768, 771 (Tex.
Crim. App. 1994).            We must presume counsel’s actions and decisions were reasonably
professional and were motivated by sound trial strategy. See id. Appellant has the burden of
rebutting this presumption by presenting evidence illustrating why his trial counsel did what he
did. See id. Appellant cannot meet this burden if the record does not affirmatively support the
claim. See Menefield v. State, 363 S.W.3d 591, 592 (Tex. Crim. App. 2012); Garza v. State,
213 S.W.3d 338, 347–48 (Tex. Crim. App. 2007); Jackson v. State, 973 S.W.2d 954, 955 (Tex.
Crim. App. 1998). A record that specifically focuses on the conduct of trial counsel is necessary
for a proper evaluation of an ineffectiveness claim. See Kemp v. State, 892 S.W.2d 112, 115
(Tex. App.–Houston [1st Dist.] 1994, pet. ref’d).
          Appellant’s burden on appeal is well established.                     See Saenzpardo v. State, No.
05-03-01518-CR, 2005 WL 941339, at *1 (Tex. App.–Dallas 2005, no pet.) (op., not designated
for publication). Before being condemned as unprofessional and incompetent, defense counsel
should be given an opportunity to explain his or her actions. See Bone v. State, 77 S.W.3d 828,
836 (Tex. Crim. App. 2002). Thus, absent a properly developed record, an ineffective assistance
claim must usually be denied as speculative, and, further, such a claim cannot be built upon
retrospective speculation. Id. at 835.
          Evaluation of Counsel’s Performance
          In the instant case, there is no record in which Appellant’s trial counsel was permitted to
explain why he took the actions he did. Nonetheless, an examination of the record clarifies the
matter.
          Throughout most of the record of Appellant’s trial, there is no suggestion that he is
wearing shackles. The first indication that he was shackled transpired when Appellant’s counsel
made reference to shackles during his jury argument. Specifically, Appellant’s counsel argued,
in pertinent part, as follows:

          Your duty is to see that justice is done based on the law and the evidence you hear and they are
          asking you to make such a paramount and monumental decision for this young man's life when
          they can't even get their story straight about how long the witness took to look at a photo line-up
          before they could identify -- she said she positively identified the subject. And to say that, oh, oh,



                                                            8
         she saw him when she got to the courthouse, yeah, that was him. Really? You mean the guy that is
         being escorted around by the gentleman over here in the uniform and the guy that has got leg irons
         on. Not too hard to pick him out, is it? Or the guy on trial sitting next to Defense Counsel? It is
         not too hard to pick him out.


In responding to Appellant’s argument, the State denied that Appellant was wearing leg irons in
court. The trial court also made statements indicating that it was not aware that Appellant was
wearing shackles.3
         In his argument, Appellant is referring to Christina’s identification of Appellant that she
made upon her arrival at the courthouse before trial. The objective of this argument is to
discredit her identification based on the fact that Appellant may have been wearing shackles
outside of the courtroom when she first saw him that day. It is unclear from the record whether
Appellant was, in fact, shackled during trial. But what is apparent from the record is that
Appellant’s counsel’s mentioning the fact that his client was, at some point, in shackles was done
with the purpose to weaken the State’s evidence on the element of identity. Thus, we conclude
that Appellant’s counsel’s argument, though unconventional, appears to have been motivated by
a sound trial strategy.         Therefore, we hold that Appellant has not met the first prong of
Strickland and, as a result, he has not overcome the strong presumption that his counsel
performed effectively. Appellant’s fourth issue is overruled.


                 LIMITATIONS ON VOIR DIRE CONCERNING RANGE OF PUNISHMENT
         In his fifth issue, Appellant argues that the trial court committed reversible error by
preventing him from conducting voir dire on the full range of punishment by refusing to permit
him to question the venire panel about Appellant’s possibly receiving community supervision.
Standard of Review and Governing Law
         We review the trial court’s determination concerning the propriety of a voir dire question
for abuse of discretion. See Barajas v. State, 93 S.W.3d 36, 38 (Tex. Crim. App. 2002). The
trial court abuses its discretion only when a proper question concerning a proper area of inquiry
is prohibited. See Dinkins v. State, 894 S.W.2d 330, 345 (Tex. Crim. App. 1995).



         3
           The fact that Appellant brought up the notion before the jury that his client was wearing leg irons when
there is no indication that the jury, the court, or the prosecuting attorney was aware of this fact serves to estop him
from arguing any such error on appeal. See Prystash v. State, 3 S.W.3d 522, 531 (Tex. Crim. App. 1999)
(discussing invited error doctrine).


                                                          9
        The purposes of voir dire are to (1) develop a rapport between the officers of the court
and the jurors; (2) expose juror bias or interest warranting a challenge for cause; and (3) elicit
information necessary to intelligently use peremptory challenges. Dhillon v. State, 138 S.W.3d
583, 587 (Tex. App.–Houston [14th Dist.] 2004, pet. struck). However, a trial judge may not
restrict proper questions that seek to discover a juror’s views on issues relevant to the case. Id.
The scope of permissible voir dire examination is necessarily broad to enable litigants to
discover bias or prejudice so that they may make challenges for cause or peremptory challenges.
Zavala v. State, 401 S.W.3d 171, 175 (Tex. Crim. App. 2011).
        Both parties are entitled to jurors who can consider the entire range of punishment for the
particular statutory offense, i.e., from the maximum to the minimum and all points in between.
See Cardenas v. State, 325 S.W.3d 179, 184 (Tex. Crim. App. 2010). Jurors must be able to
consider both a situation in which the minimum penalty would be appropriate and a situation in
which the maximum penalty would be appropriate. Id. Therefore, both sides may question the
panel on the range of punishment and may commit jurors to consider the entire range of
punishment for the statutory offense.           Id.   A question committing a juror to consider the
minimum punishment is both proper and permissible. Id.
        In the case at hand, the State argues that Appellant was not eligible for community
supervision because he judicially admitted that he previously was “given an indeterminate
sentence for a juvenile finding of having engaged in delinquent conduct for the charge of
robbery.”4
Judicial Admissions
        A judicial admission or stipulation may be used in a criminal case to prove up a prior
conviction. See Beck v. State, 719 S.W.2d 205, 209 (Tex. Crim. App. 1986); Davis v. State, No.
06-07-00209-CR, 2008 WL 3914966, at *2 (Tex. App.–Texarkana Aug. 18, 2008, no pet.)


        4
           For Appellant to have been considered ineligible for community supervision, the State was required to
prove the enhancement pursuant to Texas Penal Code, Sections 12.42(c)(1) and (f). The enhancement under Section
12.42(c)(1), if proven, would raise Appellant’s minimum sentence to imprisonment for fifteen years. See TEX.
PENAL CODE ANN. 12.42(c)(1) (West Supp. 2014). Thus, if the enhancement were proven, the jury could not
consider community supervision as punishment because Appellant’s minimum sentence would be greater than ten
years. See TEX. CODE CRIM. PROC. ANN. art. 42.12 § 4(d)(1) (West Supp. 2014). To prove the enhancement, the
State could rely on the finding that Appellant was found to have committed delinquent conduct by committing
robbery, for which he was committed to the Texas Juvenile Justice Department or to a postadjudication secure
correctional facility. See TEX. PENAL CODE ANN. 12.42(f) (West Supp. 2014); TEX. FAM. CODE ANN. § 54.04(d)(2),
(l) (West 2014).




                                                      10
(mem. op., not designated for publication). A judicial admission is not evidence. See Bryant v.
State, 187 S.W.3d 397, 400 (Tex. Crim. App. 2005). Rather, it is a formal concession in the
pleadings in the case or a stipulation by a party or his counsel that has the effect of withdrawing
a fact from issue and dispensing wholly with the need for proof thereof. See id.
         The source of a judicial admission may be facts alleged in a pleading, an agreed upon
statement of facts, a stipulation, or a formal declaration made in open court by a party or counsel.
Davidson v. State, 737 S.W.2d 942, 948 (Tex. App.–Amarillo 1987, pet. ref’d). As long as the
source of the admission remains unretracted, it must be taken as true by the court and the jury.
Davidson, 737 S.W.2d at 948.5 It is binding on the declarant, and he cannot introduce evidence
to contradict it. Id.
         However, to qualify as a judicial admission, the accused’s statement should be “clear and
intentional.” Taulung v. State, 979 S.W.2d 854, 857 (Tex. App.–Waco 1998, no pet.); Avila v.
State, 954 S.W.2d 830, 835 (Tex. App.–El Paso 1997, pet. ref’d). The “intention” as it relates to
a judicial admission is the intention to make “an act of waiver.” Griffin v. Superior Ins. Co.,
338 S.W.2d 415, 420 (Tex. 1960). In other words, the party must intend to relinquish the right to
have the State prove its case. Cf. Wappler v. State, 138 S.W.3d 331, 333 (Tex. Crim. App. 2004)
(waiver requires intentional relinquishment or abandonment of known right); see Bryant, 187
S.W.3d at 400.
         In the instant case, Appellant filed an Application for Community Supervision, in which
he asserted as follows:

                  RAY HAWKINS, JR. has never before been convicted of a felony in the State of Texas
         or any other state as the term “conviction” is defined by the Texas Code of Criminal Procedure in
         regard to probation eligibility.

                 RAY HAWKINS, JR. has been given an indeterminate sentence for a juvenile finding of
         having engaged in delinquent conduct for the charge of robbery.


Appellant also filed an application to seal files and records, in which he stated as follows:



          5
            In a civil context, the elements for establishing that a statement is a judicial admission are (1) the
statement must be made in the course of a judicial proceeding; (2) it must be contrary to an essential fact or defense
asserted by the party; (3) it must be deliberate, clear, and unequivocal; (4) it cannot be destructive of the opposing
party’s theory of recovery or defense; and (5) enforcing the statement as a judicial admission must be consistent
with public policy. See Khan v. GBAK Properties, Inc., 371 S.W.3d 347, 357 (Tex. App.–Houston [1st Dist.] 2012,
no pet.).


                                                         11
                Applicant was charged with the felony offense of robbery. He was not transferred to a
       criminal court for prosecution pursuant to Section 54.02 of the Texas Family Code. He was
       placed on juvenile probation for a period of 12 months.


       In each of these pleadings, Appellant made clear, unequivocal statements of facts during
the course of a judicial proceeding. However, there is no indication from the context of these
statements or elsewhere in the record that Appellant intended the statements to be an act of
waiver of his right to have the State prove these facts its case against him. Indeed, Appellant
made one of these statements in an application for community supervision.                     It would be
counterintuitive for this court to conclude that Appellant, in seeking to have the jury consider
community supervision, would make a statement with the intent that such a statement should
foreclose that option. Moreover, in attempting to seal records pertaining to the previous court
finding concerning his delinquent conduct, it makes little sense that Appellant intended to
dispense wholly with the need for the State to prove the facts he was attempting to seal.
Accordingly, we conclude that Appellant’s statements concerning the finding of delinquent
conduct made in his application for community supervision and application to seal files and
records were not judicial admissions. Therefore, Appellant was entitled to conduct voir dire
examination on the venire panel concerning the entire range of punishment, including
community supervision, and the trial court abused its discretion by restricting Appellant’s
examination on that subject.
Proof Required for Enhancement
       Even assuming arguendo that Appellant’s statements amounted to judicial admissions,
the outcome would not differ. Under Section 12.42(f), an adjudication by a juvenile court that a
child engaged in delinquent conduct constituting a felony offense is considered a final felony
conviction for purposes of enhancement, but only if it resulted in the child’s being committed to
the Texas Juvenile Justice Department or to a postadjudication secure correctional facility. See
TEX. PENAL CODE. ANN. § 12.42(f). In the instant case, neither of the documents the State argues
are judicial admissions indicate that Appellant was so committed.                   Rather, according to
Appellant’s application to seal files and records, he was placed on juvenile probation for twelve
months. Therefore, we conclude that even if the documents in question were, in fact, judicial
admissions, without more, they are insufficient to enable the State to prove up the enhancement.




                                                    12
Harm Analysis
       The court of criminal appeals recently held that the proper analysis is not to apply a per
se harm analysis rule to a voir dire error, but rather to determine if the error is substantial enough
to warrant a Rule 44.2(a) harm analysis; if not, then the error is reviewed under Rule 44.2(b).
See Easley v. State, 424 S.W.3d 535 (Tex. Crim. App. 2014); see also TEX. R. APP. P. 44.2.
More specifically, the court held as follows:

                 [W]e overrule Plair6 to the extent it holds that erroneously limiting an accused’s or
       counsel’s voir dire presentation is constitutional error because the limitation is a per se violation of
       the right to counsel. This, of course, is different from holding that such an error may never rise to
       the level of constitutional magnitude. There may be instances when a judge’s limitation on voir
       dire is so substantial as to warrant labeling the error as constitutional error subject to a Rule
       44.2(a) harm analysis.


Easley, 424 S.W.3d at 541.
       Under Rule 44.2(b), which applies to nonconstitutional error, we will affirm a judgment
unless the error affects the appellant’s substantial rights or deprives him of a fair trial. See TEX.
R. APP. P. 44.2(b); Easley, 424 S.W.3d at 539, 541–42 (citing Johnson v. State, 43 S.W.3d 1, 4
(Tex. Crim. App. 2001)). But under Rule 44.2(a), if the error is a constitutional violation, we
must reverse the judgment unless we determine “beyond a reasonable doubt that the error did not
contribute to the conviction or punishment.” TEX. R. APP. P. 44.2(a); see Easley, 424 S.W.3d at
540–41.
       A juror must be able to consider the full range of punishment for an offense, and a
defendant's voir dire question about a juror's ability to do so is generally proper. Cardenas v.
State, 325 S.W.3d 179, 184 (Tex. Crim. App. 2010); see TEX. CODE CRIM. PROC. art. 35.16(c)(2)
(West 2006). If a juror cannot consider an offense’s full range of punishment, the juror is
challengeable for cause. Cardenas, 325 S.W.3d at 184–85; see also Standefer v. State, 59
S.W.3d 177, 181 (Tex. Crim. App. 2001); Banda v. State, 890 S.W.2d 42, 55 (Tex. Crim. App.
1994) (explaining that a “person who testifies unequivocally that he could not consider the
minimum sentence as a proper punishment for [an] offense . . . is properly the subject of a
challenge for cause”).
       In the instant case, the trial court refused to allow Appellant to question the venire panel
about whether it could consider community supervision because it erroneously concluded that

       6
           See Plair v. State, 279 S.W. 267 (Tex. Crim. App. 1926).


                                                         13
Appellant had judicially admitted the enhancement allegations. In light of Easley, we must
determine if this error is a constitutional error or a nonconstitutional error. Id. at 541. In so
doing, we are guided by the analysis of a similar issue by one of our sister courts. In Hill v.
State, the court considered the level of harm analysis to be applied when the trial court refused to
permit the appellant from questioning the venire panel on the full range of punishment in the
event enhancements were proved. See Hill, 426 S.W.3d 868, 877 (Tex. App.–Eastland 2014,
pet. ref’d). In holding that this error is a constitutional violation, the court explained as follows:

                   Defense counsel is entitled to ask the venire members the question of whether they could
         consider the full range of punishment, and if the trial court prevents counsel from doing that, then
         defense counsel may not be able to discern if a juror should be struck for cause because he is
         unqualified. A venire member is disqualified if he has prejudged the case or cannot follow the
         court's instructions. To have such an unqualified venire member . . . on the jury is a violation of
         the defendant's right to an impartial jury.


Id. (citations omitted). We agree with the analysis of our sister court and hold that the error in
the instant case is subject to harm analysis pursuant to Rule 44.2(a).
         Thus, we next consider whether the error here did not, beyond a reasonable doubt,
contribute to the punishment as assessed by the jury. See id. In so doing, we must take into
account any and every circumstance apparent in the record that logically informs us on the
determination of whether, beyond a reasonable doubt, the error in question did not contribute to
the conviction or punishment. See Snowden v. State, 353 S.W.3d 815, 822 (Tex. Crim. App.
2011).
         In reviewing the record, we note that at the outset of his trial on punishment, Appellant
stipulated to the enhancement allegations and pleaded “true” thereto. The jury ultimately found
the enhancement allegation to be “true.” As a result, the jury could not properly consider
sentencing Appellant to community supervision.7 Therefore, because the jury could not legally
consider community supervision in determining Appellant’s punishment, we hold that the record
supports beyond a reasonable doubt that Appellant suffered no harm from the trial court’s
erroneous ruling. Cf. Hart v. State, 173 S.W.3d 131, 143 (Tex. App.–Texarkana 2005, no pet.)
(no error where trial court refused to permit the appellant to question venire panel on range of
punishment if state failed to prove enhancement because enhancements found to be “true” and


         7
             See n.3.




                                                         14
the appellant was sentenced under range of punishment about which panel was questioned). 8
Appellant’s fifth issue is overruled.


                                          MOTION FOR NEW TRIAL
        In his sixth issue, Appellant argues that the trial court erred in denying his motion for
new trial based on the same grounds raised in his fifth issue. The standard of review for a trial
court's ruling on a motion for new trial is abuse of discretion. Dunklin v. State, 194 S.W.3d 14,
19 (Tex. App.–Tyler 2006, no pet.) In reviewing for an abuse of discretion, an appellate court
will reverse the trial court's ruling only when that decision is so clearly wrong as to lie outside
the zone within which reasonable persons might disagree. Id.
        In his motion for new trial, Appellant argued that the facts were legally and factually
insufficient to support his conviction and sentence. He did not make any argument in his motion
related to the trial court’s limiting his voir dire examination.9 Therefore, because the trial court
did not have the opportunity to rule on this complaint, its ruling denying the motion could not
have been erroneous based on the limitation of voir dire. See Brewer v. State, No. 03-10-00076-
CR, 2014 WL 709549, at *16 (Tex. App.–Austin Feb. 21, 2014, no pet.) (mem. op., not
designated for publication). Further still, we have overruled Appellant’s fifth issue because the
error caused Appellant no harm. Therefore, even assuming arguendo that Appellant properly
raised this issue in his motion for new trial, we conclude that the trial court did not abuse its
discretion in denying Appellant’s motion for new trial on these grounds. See id. (court of


        8
            In conjunction with Appellant’s stipulating to the enhancement allegations, Appellant’s counsel told the
trial court that because of the trial court’s ruling, Appellant had to change his trial strategy. This statement was
made in the context of informing the trial court that Appellant did not intend to waive his previous objections
concerning the trial court’s limiting his voir dire examination. However, Appellant’s counsel did not elaborate on
this change of trial strategy and there is no evidence of record that would allow us to determine what that change
was or whether Appellant was harmed thereby.
        9
           At the outset of the hearing on his motion for new trial, Appellant reiterated that his argument concerned
legal and factual insufficiency. In his argument to the trial court, Appellant made reference to the voir dire
proceedings. However, it is apparent that his argument concerning voir dire was premised on the notion that the
juvenile conviction could not be used to support the enhancement. When the prosecuting attorney responded that
Appellant ultimately had stipulated to the enhancement and cited to Texas Penal Code Section 12.42(f) in support of
her argument, Appellant replied that he had no response. Appellant made no reference to judicial admissions. To
the extent that Appellant raised any argument concerning the trial court’s actions during voir dire at the hearing on
Appellant’s motion for new trial, those arguments do not comport with Appellant’s argument on appeal. See
Santellan v. State, 939 S.W.2d 155, 171 (Tex. Crim. App. 1997) (to preserve error for review on appeal, defendant’s
complaint on appeal must comport with objection raised at trial).




                                                        15
appeals determined that because error was harmless, trial court did not abuse its discretion in
overruling motion for new trial on that ground). Appellant’s sixth issue is overruled.


                              ASSESSMENT OF ATTORNEY’S FEES
       In his seventh issue, Appellant argues that the trial court erred by assessing attorney’s
fees against him because he is indigent.
Standard of Review and Applicable Law
       A challenge to the sufficiency of the evidence supporting court costs is reviewable on
direct appeal in a criminal case. See Armstrong v. State, 340 S.W.3d 759, 767 (Tex. Crim. App.
2011). We measure sufficiency by reviewing the record in the light most favorable to the award.
See Mayer v. State, 309 S.W.3d 552, 557 (Tex. Crim. App. 2010); Cardenas v. State, 403
S.W.3d 377, 388 (Tex.–Houston [1st Dist.] 2013, no pet.). Requiring a convicted defendant to
pay court costs does not alter the range of punishment, is authorized by statute, and is generally
not conditioned on a defendant’s ability to pay. See TEX. CODE CRIM. PROC. ANN. art. 42.16
(West 2006); Armstrong, 340 S.W.3d at 767; see also Johnson v. State, 405 S.W.3d 350, 354
(Tex. App.–Tyler 2013, no pet.).
       Some court costs, such as attorney’s fees, may not be assessed against a defendant if he
was found indigent because his indigence is presumed to continue throughout the remainder of
the proceedings “unless a material change in [his] financial circumstances occurs.” See TEX.
CODE CRIM. PROC. ANN. art. 26.04(p) (West Supp. 2014). If a trial court does not make a
determination that a defendant’s financial circumstances materially changed that is also
supported by some factual basis in the record, the evidence will be insufficient to impose
attorney’s fees as court costs. See TEX. CODE CRIM. PROC. ANN. arts. 26.04(p), 26.05(g) (West
Supp. 2014); Mayer, 309 S.W.3d at 553; Wolfe v. State, 377 S.W.3d 141, 144, 146 (Tex. App.–
Amarillo 2012, no pet.).
Evidence Supporting Assessment of Costs
       In the instant case, the judgment of conviction reflects that the trial court assessed
$5,100.00 in attorney’s fees. The judgment includes a document identified as “Attachment A
Order to Withdraw Funds,” which states that Appellant “has this date been assessed . . .
attorney’s fees in the amount of $5,100.00[.]” The certified bill of costs itemizes the balance of




                                                16
the court costs imposed. Among the costs listed is one for “Ad Litem Attorney’s Fees” in the
amount of $5,100.00.
         The State concedes that the attorney’s fees set forth in the bill of costs is improper. The
record reflects that the trial court found that Appellant was “indigent,”10 and there is no evidence
in the record to rebut the presumption that Appellant’s indigence continued throughout the
remainder of the proceedings. See TEX. CODE CRIM. PROC. ANN. art. 26.04(p); Wolfe, 377
S.W.3d at 144. As a result, the evidence is insufficient to support the imposition of attorney’s
fees as court costs. See TEX. CODE CRIM. PROC. ANN. art. 26.04(p), 26.05(g); Mayer, 309
S.W.3d at 553; Wolfe, 377 S.W.3d at 146. Therefore, because attorney’s fees were erroneously
assessed against Appellant, we hold that the judgment, Attachment “A,” and Bill of Costs should
be modified to remove any reference to assessment of attorney’s fees. Appellant’s seventh issue
is sustained.


                                                   DISPOSITION
         We have overruled Appellant’s first, second, third, fourth, fifth, and sixth issues, but have
sustained his seventh issue. Having done so, we modify the trial court’s judgment, Attachment
“A” to the judgment, and Bill of Costs to remove any reference to assessment of attorney’s fees
against Appellant and affirm the trial court’s judgment as modified.


                                                                              GREG NEELEY
                                                                                 Justice

Opinion delivered October 21, 2015.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                              (DO NOT PUBLISH)




         10
            The trial court made an express finding of Appellant’s indigence in conjunction with its appointment of
counsel for appeal one day after the judgment was signed. The trial court previously had appointed counsel for
Appellant after multiple attorneys retained by Appellant were permitted to withdraw. The trial court did not make
an express finding that Appellant was indigent at this time. However, that finding of indigence is implicit in the trial
court’s action because the authority of a trial judge to appoint counsel exists only when the defendant is indigent.
See TEX. CODE CRIM. PROC. ANN. art. 26.04 (West 2014); Anders v. State, No. 06-12-00207-CR, 2013 WL
3893944, at *2 & n.5 (Tex. App.–Texarkana July 24, 2013, no pet.) (mem. op., not designated for publication).


                                                          17
                                  COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                          JUDGMENT

                                         OCTOBER 21, 2015


                                        NO. 12-13-00394-CR


                                      RAY HAWKINS, JR.,
                                           Appellant
                                              V.
                                     THE STATE OF TEXAS,
                                           Appellee


                                 Appeal from the 2nd District Court
                          of Cherokee County, Texas (Tr.Ct.No. 17626)

                      THIS CAUSE came on to be heard on the appellate record and the briefs
filed herein; and the same being inspected, it is the opinion of this court that the trial court’s
judgment below should be modified and, as modified, affirmed.
                      It is therefore ORDERED, ADJUDGED and DECREED that the trial
court’s judgment, Attachment “A” to the judgment, and Bill of Costs below be modified to
remove any reference to assessment of attorney’s fees against Appellant and as modified,
affirm the trial court’s judgment; and that this decision be certified to the trial court below for
observance.
                   Greg Neeley, Justice.
                   Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
