James Jordan v. State ( 2015 )

Opinion issued November 5, 2015
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-14-00721-CR
———————————
JAMES JORDAN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 240th District Court
Fort Bend County, Texas
Trial Court Case No. 13-DCR-062954B
MEMORANDUM OPINION
James Jordan was convicted of burglary of a habitation with intent to
commit felony sexual assault.1 The jury found him guilty and sentenced him to 30
years’ confinement. Jordan moved for a new trial, but his motion was denied.
1
TEX. PENAL CODE ANN. § 30.02(a)(1) (West 2011) (burglary); Id. § 22.011 (West
2011) (sexual assault).
Jordan appeals that order, arguing that multiple errors during his trial warranted a
new trial, including (1) juror misconduct, (2) a Brady violation, (3) new evidence
discovered post-trial, (4) improper enhancement of the punishment range, and
(5) error in reading back selected testimony to the jury.
We affirm.
Background
Shortly after returning to her home around 11:00 in the evening, Lupe
Valdez heard a knock on her door and someone yell that her car was being towed.
Valdez opened her front door, saw Jordan (whom she recognized as the person
who had been loitering in her apartment complex parking lot a couple of months
earlier), told him “to go away,” and tried to close her door. Jordan blocked the door
with his foot and pushed his way into her apartment. Valdez testified that Jordan
threatened to kill her if she called the police.
According to Valdez, Jordan indicated to her that he would leave if she
would give him a glass of water. When Valdez turned to go to the kitchen, Jordan
choked her with a cloth and began to push her toward her bedroom. Jordan then
“pushed [her] over the bed” and began removing her clothes. According to Valdez,
Jordan “was telling me that I was going to end up having sex with him tonight, and
that if I moved he was going to kill me.”
2
Valdez testified that she managed to call 911 three times from her cell
phone, which she hid beneath a bed pillow. During her last call, Jordan heard the
phone and took it from her. At that instant, there was a loud knock on the door,
Jordan “froze,” and Valdez opened the door for the police to enter. The police
officers arrested Jordan. During their investigation, the officers photographed
Valdez’s bed, pillows, bedroom, and living room area. The photo of Valdez’s bed
showed two pillows leaning against the head of the bed and a comforter that was
still fully covering the mattress but had been creased and rumpled. The photos
were later admitted at trial.
Jordan was indicted for the offense of burglary of a habitation with the intent
to commit felony sexual assault. He pleaded not guilty. The jury found him guilty
and sentenced him to 30 years’ confinement. Jordan’s new-trial motion was
denied, and he timely appealed.
Juror Experiment
In his first issue, Jordan argues that the trial court erred by denying his new-
trial motion because he had presented evidence that one of the jurors conducted an
at-home experiment during a break from jury deliberations, then returned and told
her fellow jurors about the experiment as well as the conclusions she drew from it.
Jordan contends that the experiment had a prejudicial effect, warranting a new
trial. See TEX. R. APP. P. 21.3(f) (providing for new trial if jury receives other
3
evidence after retiring to deliberate); id. 21.3(g) (providing for new trial if jury has
engaged in misconduct); Ryser v. State, 453 S.W.3d 17, 41 (Tex. App.—Houston
[1st Dist.] 2014, pet. ref’d) (analyzing whether trial court erred by denying new-
trial motion based on outside influence).
A. Rule 21.3(f) other evidence
Texas Rule of Appellate Procedure 21.3 states that a defendant “must be
granted a new trial . . . when, after retiring to deliberate, the jury has received other
evidence . . . .” TEX. R. APP. P. 21.3(f). To be entitled to a new trial on this basis,
the defendant must show that (1) the jurors actually received other evidence and
(2) the evidence was detrimental. Guice v. State, 900 S.W.2d 387, 389 (Tex.
App.—Texarkana 1995, pet. ref’d); Stephenson v. State, 571 S.W.2d 174, 176
(Tex. Crim. App. [Panel Op.] 1978) (applying earlier version of rule). Juror
experiments may qualify as “other evidence.” See Douthit v. State, 482 S.W.2d
155, 160 (Tex. Crim. App. 1971), overruled on other grounds by Ex parte
McWilliams, 634 S.W.2d 815, 822–24 (Tex. Crim. App. 1980) (op. on reh’g).
“While as a general rule it is improper for a juror to perform experiments or
demonstrations in the jury room, it is not every demonstration that calls for a
reversal.” Id.; McLane v. State, 379 S.W.2d 339, 342 (Tex. Crim. App. 1964). “A
reviewing court need not grant a new trial absent a showing that the jurors during
the experiment discovered and were influenced by some new fact hurtful to the
4
appellant.” Guice, 900 S.W.2d at 389. Further, if the new evidence is not
detrimental to the appellant’s case, it does not require a new trial. See Douthit, 482
S.W.2d at 160. “Whether the jurors received new and harmful evidence during
their deliberations is a fact issue to be decided by the trial court, and it is a question
of degree.” Guice, 900 S.W.2d at 389; see Holland v. Lovelace, 352 S.W.3d 777,
783 (Tex. App.—Dallas 2011, pet. denied).
B. Rule 21.3(g) jury misconduct
Texas Rule of Appellate Procedure 21.3(g) provides for a new trial if there
has been jury misconduct that results in the defendant not receiving a fair and
impartial trial. TEX. R. APP. P. 21.3(g). Like with Rule 21.3(f), there is a
requirement that the misconduct be injurious. See Gomez v. State, 991 S.W.2d 870,
871, 873 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d).
C. Outside influence on jury
With regard to an allegation of juror misconduct, Rule 606(b) allows a juror
to testify on whether “any outside influence was improperly brought to bear upon
any juror.” TEX. R. EVID. 606(b). However, “a juror may not testify as to any
matter or statement occurring during the jury’s deliberations, the effect the matter
had on any juror’s mind or mental process, or how the matter influenced the juror’s
decision-making.” Ryser, 453 S.W.3d at 40.
5
“Outside influences do not result in automatic reversals.” Id. at 41. “An
‘outside influence’ is problematic only if it has the effect of improperly affecting a
juror’s verdict in a particular manner—for or against a particular party.” Colyer v.
State, 428 S.W.3d 117, 129 (Tex. Crim. App. 2014). Because we may not “delve
into [jury] deliberations,” we review the possible harm caused by the outside
influence using an objective, “hypothetical average juror” standard, without
consideration of the actual effect that the influence had on these particular jurors.
McQuarrie v. State, 380 S.W.3d 145, 153–54 (Tex. Crim. App. 2012); Ryser, 453
S.W.3d at 41. The question, then, is, if there was an outside influence, is there a
“reasonable possibility” that it had a prejudicial effect by impacting the verdict,
using the objective standard of a hypothetically average juror. McQuarrie, 380
S.W.3d at 154; Ryser, 453 S.W.3d at 41.
Thus, like the two appellate rules permitting a new trial based on jury
conduct, this rule also requires prejudice. See McQuarrie, 380 S.W.3d at 154;
Ryser, 453 S.W.3d at 41.
D. The juror’s at-home experiment
Two jurors testified at the hearing on Jordan’s new-trial motion. They
explained that the jury had taken a break from its deliberations over the Memorial
Day weekend. When the jury returned Tuesday morning to continue its
deliberations, one of the jurors explained to her fellow jurors that, while at home,
6
she had asked her husband to “throw her on the bed” and also to place her on the
bed more gently. According to the juror, when she was thrown on the bed, “the
pillows flew everywhere.” But when she was placed gently on the bed, the bed
“looked exactly like in the pictures” of Valdez’s bed taken by the investigating
officers. According to one of the testifying jurors, these statements led the jurors to
question whether Valdez had testified, during the guilt-punishment phase of the
trial, to being thrown or placed on the bed.
The jury submitted a written request to have Valdez’s testimony read back to
them without specifying the nature of the jury’s dispute. The trial court concluded
that the jury’s request was not sufficiently specific and suggested that it rephrase
its request. See TEX. CODE CRIM. PROC. ANN. art. 36.28 (West 2015) (requiring that
jury’s request to have testimony read back identify point of dispute). Because the
jury failed to do so, no testimony was read back to provide relevance to the
reenactment discussion. Nevertheless, the testifying jurors stated that the
reenactment was influential.
E. The trial court’s ruling
The trial court denied Jordan’s motion for new trial, concluding that the
subject of the “re-enactment is within every juror’s common, every day experience
and is not an outside influence improperly brought to bear on the jury. There is no
7
reasonable possibility that it had a prejudicial effect on the ‘hypothetical average
juror.’”
F. Standard of review
A trial court’s denial of a motion for new trial is reviewed for an abuse of
discretion. McQuarrie, 380 S.W.3d at 150; Salazar v. State, 38 S.W.3d 141, 148
(Tex. Crim. App. 2001); Guice, 900 S.W.2d at 389 (“A motion for a new trial is
addressed to the sound discretion of the trial court and will only be overturned on
appeal by a showing of clear abuse of discretion.”). A trial court abuses its
discretion when no reasonable view of the record could support the trial court’s
ruling. McQuarrie, 380 S.W.3d at 150. We defer to the trial court’s determination
of questions of fact. See Guice, 900 S.W.2d at 390.
G. No abuse of discretion to deny a new trial on this basis
The juror’s experiment showed that, when she was thrown onto her bed by
her husband, her bed pillows were disturbed, but, when she was laid more gently,
her bed looked similar to Valdez’s bed in the photo admitted into evidence, which
depicted a slightly rumpled comforter but undisturbed pillows. According to the
two testifying jurors, this information was influential.
First, we agree with the trial court that the likely condition of a bed
following these two scenarios is information within the common knowledge of an
8
average juror. Everyday life experience informs us that gently sitting or lying in
one’s bed does not cause the pillows to catapult to the floor.
Second, the testifying jurors stated that they were unable to determine how
this information related to Valdez’s testimony. After the jury heard about the
experiment, its members could not recall how Valdez had described the manner in
which she entered her bed, i.e., whether she had testified that she had been thrown
onto the bed or not. The jury asked to receive that testimony again, but it was not
given. Accordingly, the jury was unable to apply the results of the experiment to its
assessment of Valdez’s testimony. Cf. Douthit, 482 S.W.2d at 160 (affirming
denial of new trial after juror attempted experiment but gathered no useful
information from it).
Third, to the extent that the experiment indicated anything, it supported
Jordan’s defensive argument—stated twice in closing argument—that “[t]his is not
a bed of struggle.” Jordan specifically referenced the photo of the bed in his
closing argument and suggested to the jury that the evidence did not support
Valdez’s testimony that she had been thrown onto her bed.
To be granted a new trial because of the juror’s experiment, Jordan was
required to demonstrate harm. See Stephenson, 571 S.W.2d at 176 (predecessor to
Rule 21.3(f) for other evidence); Gibson v. State, 29 S.W.3d 221, 224 (Tex.
App.—Houston [14th Dist.] 2000, pet. ref’d) (Rule 21.3(f) other evidence);
9
Gomez, 991 S.W.2d at 871 (Rule 21.3(g) jury misconduct); McQuarrie, 380
S.W.3d at 153–54 (outside influence). Jordan has not demonstrated how the juror’s
reenactment was harmful to his defense. If anything, it supported his argument that
the bed would have looked more disturbed if the events had occurred as Valdez
had described them in her testimony. Without any showing of harm, the trial court
did not abuse its discretion in denying Jordan’s motion for new trial on this basis.
We overrule Jordan’s first issue.
Brady Violation
In his second issue, Jordan argues that the State withheld from him
information regarding Valdez’s “legal identity, including legal name and gender”
in violation of the Brady disclosure requirements.
According to an affidavit signed by Jordan’s counsel, there were rumors
within the court staff during trial that Valdez might be transgender.2 Jordan
contends that this information should have been disclosed by the State before trial.
The police report identified Valdez as “Lope Valdez.” That spelling error
was later corrected and, in the amended indictment filed in February 2014—three
months before trial—the name was corrected to “Lupe Valdez.” This is Valdez’s
legal first and last name; however, her middle name “Isaac” was not listed. Neither
was there an indication in the indictment of Valdez’s gender.
2
Jordan’s counsel does not state the substance of the rumors or any action she took
or inquiries she made in response to the rumors.
10
A. Standard of review
In Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963), the Supreme
Court held that “suppression by the prosecution of evidence favorable to an
accused upon request violates due process where the evidence is material either to
guilt or to punishment, irrespective of the good faith or bad faith of the
prosecution.” Brady, 373 U.S. at 87, 83 S. Ct. at 1196–97. Brady evidence includes
both exculpatory evidence and impeachment evidence. Wyatt v. State, 23 S.W.3d
18, 27 (Tex. Crim. App. 2000).
Evidence is “material” if there is “a reasonable probability that, had the
evidence been disclosed to the defense, the outcome of the proceeding would have
been different.” Id. (quoting U.S. v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375,
3383 (1985)). A “reasonable probability” means a “probability sufficient to
undermine confidence in the outcome.” Id. (quoting Bagley, 473 U.S. at 682, 105
S. Ct. at 3383).
Thus, a Brady violation occurs if a prosecutor: (1) fails to disclose
evidence,3 (2) favorable to the accused, (3) which creates a reasonable probability
3
The Texas Court of Criminal Appeals has extended Brady and held that “the duty
to disclose such evidence is applicable even if there has been no request by
defendant.” Harm v. State, 183 S.W.3d 403, 406 (Tex. Crim. App. 2006).
However, “the [State] is not required to seek out exculpatory evidence
independently on appellant’s behalf, or furnish appellant with exculpatory or
mitigating evidence that is fully accessible to appellant from other sources.” Id. at
407; accord Jackson v. State, 552 S.W.2d 798, 804 (Tex. Crim. App. 1976).
11
of a different outcome. Hampton v. State, 86 S.W.3d 603, 612 (Tex. Crim. App.
2002); Wyatt, 23 S.W.3d at 27.
B. Evidence not demonstrated to be favorable or material
Jordan first implies that the incompleteness of the information provided to
him by the State impacted his ability to research Valdez’s criminal history. He
asserts that the State “concealed the review” of Valdez’s criminal history “because
the legal name and sex of the victim would have been apparent.” However, he
notes that the State notified him that Valdez had no criminal history, and he does
not contend that any relevant information existed that he had been unable to timely
uncover other than Valdez’s gender, as identified in other legal documents.
Jordan next contends that knowledge of Valdez’s full legal name and gender
would have made a difference in the outcome of this case and that withholding that
information denied him a fair trial. Jordan maintains that a fair trial is premised on
the “inherent expectation that [Valdez] or any witness is who the state says he or
she is.” Jordan’s attorney proffered an affidavit in support of his new-trial motion,
stating that she did not learn until after Jordan was convicted that Valdez is
identified in legal documents as a man. In his brief, Jordan discusses at length his
belief that Valdez’s transgender status would have made a difference in his trial but
offers few specifics of how it would have mattered. The only specific statements
he makes are that (1) “the prosecution’s painting of the complainant as a ‘damsel
12
in distress’ may have been rebutted with testimony, medical records and cross-
examination as well as other inquiry into the motives and mens rea of Appellant
vis-à-vis the complainant” and (2) had Jordan known the information, he “might
have argued impossibility, mistake, or heat of passion.” More generally, he argues
that the State’s decision to “conceal” the information demonstrates its materiality
and that the nondisclosure is analogous to undisclosed government informants. 4
It appears that Jordan is arguing that, were Valdez identified as a man at
trial, a sexual-assault related conviction would have been less likely. But this is an
“intent” crime. A person commits a burglary offense if, without the effective
consent of the owner, the person enters a home with intent to commit a felony.
TEX. PENAL CODE ANN. § 30.02(a)(1) (West 2014). Sexual assault is a felony. Id.
§ 22.011. “Intent may be inferred from the defendant’s conduct and surrounding
circumstances.” Linder v. State, 828 S.W.2d 290, 294 (Tex. App.—Houston [1st
Dist.] 1992, pet. denied).
By his words and actions, Jordan expressed an intention to sexually assault
Valdez. Valdez testified that Jordan choked her with a rag, forced her into her
4
Jordan cites to Roviaro v. United States, 353 U.S. 53, 77 S. Ct. 623 (1957). In that
case the Supreme Court discussed the justifications for allowing the government to
protect the identity of its informants, noted that no “fixed rule” applies to when
non-disclosure is permitted, and approved a balancing test to resolve the disclosure
issue, which takes into account “the particular circumstances of each case . . .
[including] the crime charged, the possible defenses, the possible significance of
the informer’s testimony, and other relevant factors.” Id. 353 U.S. at 62, 77 S. Ct.
at 628–29.
13
bedroom, and, while on top of her, told her that “this was going to be my night
with a black man, and that he was going [to] do it forcefully whether I wanted to or
not.” He then told her that, if she moved, he would “cut” and “kill” her.
Any error Jordan may have made regarding Valdez’s gender might have
influenced his future actions during the course of the sexual assault, but it could
not have retroactively altered his intent upon entering the home. Linder, 828
S.W.2d at 294 (stating that “to prove intent to commit a felony . . . in a prosecution
for burglary, the State must show that the defendant’s intent existed at the time of
his entry”); cf. Shipp v. Texas, 482 S.W.2d 870, 870 (Tex. Crim. App. 1972)
(holding that intent to burglarize was established even if defendant was acting
under mistake of fact regarding object of his offense).
Jordan’s intent upon entering Valdez’s home was influenced by his then-
current observations of Valdez and her gender expression, regardless how that
information might correspond to her “legal identity . . . and gender.” His intentions
could not have been influenced by information he did not then possess. Cf.
Dougherty v. State, 387 S.W.3d 654, 658–59 (Tex. Crim. App. 2013) (noting that,
with intent crimes, “timing [is] important” because “[c]riminal liability depends
upon a person’s culpable mental state at the time the person performs some
criminal act and is the convergence of a bad act and a guilty mind.”). We reject the
implication that subsequent awareness of a complainant’s transgender status is
14
material to whether a burglar intended a sexual assault before such information
was known.
We conclude that Jordan has not demonstrated how the undisclosed
information was favorable to him or material, meaning that there is a reasonable
probability that had the evidence been disclosed, the outcome of the trial would
have been different. Hampton, 86 S.W.3d at 612. As a result, we conclude that the
trial court did not abuse its discretion in denying Jordan’s motion for new trial on
this basis.
We overrule issues two.
Newly Discovered Evidence
In his third issue, Jordan challenges the denial of his new-trial motion,
contending that Valdez’s identity and gender were newly discovered evidence that
warranted a new trial.
To obtain a new trial based on newly discovered evidence, Jordan was
required to show that: (1) the evidence came to light after trial; (2) the failure to
discover the evidence sooner was not due to a lack of diligence; (3) the new
evidence is not cumulative; and (4) the new evidence is so material that it would
probably produce a different result if a new trial were granted. Waffle House, Inc.
v. Williams, 313 S.W.3d 796, 813 (Tex. 2010); Martin v. New Century Mortg. Co.,
377 S.W.3d 79, 88 (Tex. App.—Houston [1st Dist.] 2012, no pet.).
15
Similar to the Brady challenge, Jordan has not demonstrated that Valdez’s
“legal identity and gender” were material. Jordan argues that the information
would have discredited the State’s presentation of Valdez as a “damsel in distress.”
But whether Valdez’s gender would—or would not—cause anyone to view her as
a “damsel in distress” is wholly immaterial to Jordan’s intent when he entered
Valdez’s apartment without consent. There was evidence that Jordan expressed his
intentions to Valdez, specifically telling her that she was going to have sex with
him and threatening to harm her if she resisted. Subsequent knowledge cannot
undo Jordan’s stated intentions upon entering the apartment. See Linder, 828
S.W.2d at 294 (stating that intent is measured at time of entry); Shipp, 482 S.W.2d
at 870 (holding that intent to burglarize is established even if defendant was
mistaken about object of offense).
Because Jordan offers no viable argument that it was probable this newly
discovered information would have produced a different result in his trial, we
overrule issue three.
Enhancement of Offense
Jordan pleaded true to three enhancement allegations, and the jury found all
three to be true. The three convictions occurred in Louisiana, and the offenses were
(1) felony theft, (2) felony possession of cocaine, and (3) attempted simple escape
from custody. In his fourth issue, Jordan contends that the trial court erred by
16
permitting these out-of-state convictions to be used to enhance his punishment. He
argues that two of these offenses—cocaine possession and attempted simple escape
from custody—would be “categorized by Texas as state jail offenses based on the
length of confinement” and, therefore, were not properly available to enhance
Jordan’s punishment to a habitual-felony-offender range. He intimates that the
third conviction may not have been final.
A. Standard of review
Whether an out-of-state offense constitutes a felony for purposes of
enhancement is a question of law that we review de novo. See Smith v. State, 309
S.W.3d 10, 13–14 (Tex. Crim. App. 2010); State v. Richardson, 439 S.W.3d 403,
404 (Tex. App.—Fort Worth 2014, pet. ref’d) (citing State v. Moff, 154 S.W.3d
599, 601 (Tex. Crim. App. 2004)).
B. Enhancement was not in error
First, Jordan argues that two of his prior convictions should not have been
used for enhancement purposes because they would be considered “state jail
felonies” in Texas.5
Under Texas law, classification of offenses is based on the length and
location of confinement, taking into account also the amount of any fines imposed.
See, generally, TEX. PENAL CODE ANN. §§ 12.01–.35 (West Supp. 2014). At the
5
Jordan does not argue that his felony theft conviction merits the same
classification.
17
lower end are misdemeanor classifications, with the most severe involving
confinement in “jail” not to exceed 180 days and a fine not to exceed $2,000. Id.
§§ 12.21–.23. The different levels of felony classifications are assigned for
“imprisonment in the Texas Department of Criminal Justice,” with the lowest
level, a third-degree felony, covering imprisonment for not less than two years. See
id. §§ 12.31–.34 (discussing capital felonies and first- through third-degree
felonies). In the middle is the category of “state jail felony,” which applies to
offenses punished by confinement “in a state jail” between 180 days and two years.
Id. § 12.35
Thus, Texas law makes a distinction between confinement in jail for two
years or less (a misdemeanor or state jail felony) and confinement in prison for
more than two years (a third degree felony or higher). See id. §§ 12.01–.35; cf.
Dunn v. State, 176 S.W.3d 880, 885–86 (Tex. App.—Fort Worth 2005, no pet.)
(discussing confinement in jail versus prison).
The Penal Code uses that same two-year mark to classify out-of-state
offenses for evaluating whether an offender qualifies for habitual-felony-offender
punishment enhancement. TEX. PENAL CODE ANN. §§ 12.41–.42 (West Supp.
2014). An out-of-state conviction is classified as a “felony of the third degree” if
“imprisonment in the Texas Department of Criminal Justice or another penitentiary
is affixed to the offense as a possible punishment.” Id. (emphasis added); Id.
18
§ 12.34 (setting punishment for third-degree felony at not less than two years).
Any out-of-state conviction that does not qualify as a third-degree felony is
considered a misdemeanor. Id § 12.41.
Under Louisiana law, the maximum punishment for cocaine possession is
five years. LA. REV. STAT. ANN. § 40:967(c) (2013) (establishing punishment for
possession at “imprison[ment] with or without hard labor for not more than five
years”); cf. LA. REV. STAT. ANN. § 15:744.5(3) (2012) (referring to variety of
Louisiana confinement locations simply as “prison”). And the maximum
punishment for attempted simple escape is two and one-half years. Id.
§ 14:110(b)(4) (2013) (establishing punishment for simple escape at
“imprison[ment] with or without hard labor for not less than two years nor more
than five years”); id. § 14:27(d)(3) (punishment for attempted offenses, not
including theft or those punishable by death or life imprisonment, limited to “one-
half of the longest term of imprisonment prescribed for the offense so attempted”).
Regardless if Jordan was actually sentenced to more than two years for
either of these two offenses, both have “possible punishments” of more than two
years’ confinement. LA. REV. STAT. ANN. § 40:967(c); id. § 14:110(b)(4); id.
§ 14:27(d)(3); see TEX. PENAL CODE ANN. § 12.41. Therefore, both are treated as
felonies of the third degree for enhancement purposes. See id. § 12.42(d)
19
(allowing two felony offenses to enhance punishment for first-degree felony to
imprisonment for not less than 25 years nor more than 99 years).
Next, Jordan contends that the State failed to present sufficient proof of the
felony theft conviction underlying his subsequent conviction for violation of
probation. When a defendant pleads “true” to an enhancement paragraph, the State
is relieved of its burden to prove habitual-offender status and the defendant waives
any complaint that the evidence is insufficient to support the enhancement. Wilson
v. State, 671 S.W.2d 524, 526 (Tex. Crim. App. 1984) (en banc); Roberson v.
State, 371 S.W.3d 557, 560 (Tex. App.—Houston [1st Dist.] 2012) (Roberson I),
aff’d, 420 S.W.3d 832 (Tex. Crim. App. 2013) (Roberson II). Accordingly,
Jordan’s “true” plea provided sufficient evidence of the enhancement.
Jordan appears to argue that the felony theft conviction falls within a
recognized exception to the rule stated in Roberson: a plea of “true” is not
sufficient evidence of an enhancement allegation if the record affirmatively reflects
that the prior conviction was not final. See Roberson II, 420 S.W.3d 832, 838;
Roberson I, 371 S.W.3d at 560. He argues that his felony theft conviction—for
which he received probation—should not be considered a final conviction “unless
Louisiana law considers it final.”
While Jordan does not address whether Louisiana treats a felony theft
conviction that led to probation as a final conviction, for enhancement purposes,
20
our review of Louisiana law indicates that it does. Article 893 of the Louisiana
Code of Criminal Procedure provides in pertinent part:
[I]f the court finds at the conclusion of the probationary period that
the probation of the defendant has been satisfactory, the court may set
the conviction aside and dismiss the prosecution. The dismissal of the
prosecution shall have the same effect as acquittal, except that the
conviction may be considered as a first offense and provide the basis
for subsequent prosecution of the party as a multiple offender, and
further shall be considered as a first offense for purposes of any other
law or laws relating to cumulation of offenses.
LA. CODE CRIM. PROC. ANN. art. 893(e) (2010) (emphasis added). Thus, under
Louisiana law, probation on a felony conviction is a final conviction. See id.; see
also Dominque v. State, 787 S.W.2d 107, 108 (Tex. App.—Houston [14th Dist.]
1990, pet. ref’d) (interpreting article 893). Jordan has not established that his
conviction falls within the exception discussed in the Roberson cases; therefore,
Jordan’s “true” plea satisfied the State’s burden to establish the conviction.
We conclude that the trial court did not err by including these three offenses
as enhancements or by denying Jordan’s new-trial motion on this issue.
Jordan also contends, without adequately briefing the issue, that his
punishment is excessive, in violation of the Eighth Amendment. U.S. CONST.
amend. VIII. He has waived the argument by not briefing the issue. TEX. R. APP. P.
38.1(i).
We overrule Jordan’s fourth issue.
21
Testimony Read Back to Jury
In his fifth issue, Jordan contends that the trial court erred by (1) allowing
testimony to be read to the jury without first determining that there was a dispute
among the jury members as to specific testimony and (2) reading only the direct-
examination portion and not cross-examination portions of the testimony.
During deliberations, the jury presented to the trial court two requests for
testimony to be read back. One request was denied because it did not specify what
was in dispute. The other request, Valdez’s testimony concerning “her first
encounter with Mr. Jordan, the first approach in October/November 2012,” was
granted, and testimony was read back to the jury on that issue.
There is no indication in the record that Jordan objected to the testimony
being read back at that time. In fact, discussions between counsel and the trial
court indicate that Jordan was made aware of what would be read back and agreed
to the selection. The prosecutor explained the events at follows:
[T]hat portion of the testimony, very limited, was read by the court
reporter in chambers to counsel, and to the State, and to the Court.
And by agreement, only that portion was—was read to the jury in
response to one of the questions.
Jordan did not dispute the characterization. It was not until the following day that
Jordan asserted an objection to the reading-back of the testimony.
We do not reach the merits of this issue because Jordan failed to properly
preserve it for appellate review. TEX. R. APP. P. 33.1; Hollins v. State, 805 S.W.2d
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475, 476 (Tex. Crim. App. 1991) (en banc) (“In order to be considered timely, an
objection must be made as soon as the ground of objection becomes apparent.”).
Because he did not object until the next day, Jordan has waived this issue. See
Hollins, 805 S.W.2d at 477 (appeal for reading back testimony to jury was waived
after untimely objection).
Conclusion
The judgment of the trial court is affirmed.
Harvey Brown
Justice
Panel consists of Justices Jennings, Higley, and Brown.
Do not publish. TEX. R. APP. P. 47.2(b).
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