Roderick Glenn v. State ( 2009 )

Opinion issued June 18, 2009

Opinion issued June 18, 2009

In The

Court of Appeals

For The

First District of Texas

 

NO.   01-07-01056-CR

 

RODERICK GLENN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 230th District Court

Harris County, Texas

  Trial Court Cause No. 1142006

  MEMORANDUM OPINION

           A jury found Roderick Glenn guilty of burglary of a habitation, and, after finding true the allegations in the first enhancement paragraph—that Glenn had previously been convicted of felony possession with intent to deliver more than four grams but less than 200 grams of cocaine—assessed punishment at seven years’ imprisonment.   The trial court entered judgment on the jury’s findings.  Glenn brings a single issue on appeal, contending that the jury’s punishment phase finding that the first enhancement paragraph of the prior conviction to be true is not supported by legally sufficient evidence.  The State responds that sufficient evidence supports the jury’s finding, but asks this Court to correct the judgment to properly recite Glenn’s plea and the jury’s findings with respect to the enhancement paragraphs.  We modify the judgment, and affirm it as modified.

Background

A Harris County grand jury handed down an indictment charging Glenn with a June 7, 2007 burglary of a habitation.  After the jury found Glenn guilty as charged, the trial court commenced the punishment phase by arraigning Glenn on two enhancement paragraphs describing his prior felony convictions.  The first enhancement paragraph reads:

Before the commission of the offense alleged above, (hereafter styled the primary offense), on JULY 16, 2002, in Cause No. 901973, in the 174th DISTRICT COURT OF HARRIS County, Texas, the Defendant was convicted of the felony of POSSESSION WITH INTENT TO DELIVER COCAINE › 4 GRAMS & ‹ 200 GRAMS.

The second paragraph similarly alleged a prior felony possession of cocaine charge.  Glenn pleaded “not true” to both paragraphs, and the jury heard the punishment phase evidence.  The jury found the first enhancement paragraph to be “true” and the second to be “not true.”  

          The State published the judgment in Cause No. 901973 to the jury through Deputy M. Mills, the custodian of records for the Harris County Sheriff’s Office.  The State told the jury the dates of the offense and judgment, described the crime, and informed them that “[t]he defendant was sentenced to four years TDC per plea bargain in this case.” The copy of the judgment entered into evidence recites that Glenn entered a plea of nolo contendere to the charge  of “[p]ossession with intent to deliver cocaine › 4 grams & ‹ 200 grams,” and has checks in the boxes denoting it as a second-degree felony. 

          At the close of the punishment phase, the trial court instructed the jury that:

Enhancement Paragraph One of the indictment alleges that before the commission of the offense for which you have found the defendant guilty, on July 16, 2002, in Cause No. 901973, in the 174th District Court of Harris County, Texas, the defendant was convicted of the felony offense of possession with the intent to deliver cocaine more than 4 grams and less than 200 grams. 

If you believe from the evidence beyond a reasonable doubt that the allegations set out in Enhancement Paragraph one of the indictment are true, you will state in your verdict that you find “true” the allegations set out in Enhancement Paragraph One of the indictment; but unless you so believe, or if you have reasonable doubt thereof, you will answer “not true” to the allegations of Enhancement Paragraph One of the indictment.

Discussion

Glenn’s issue on appeal

Glenn contends that the evidence is not legally sufficient to support the jury’s finding of true to enhancement paragraph one of the indictment because, at the time of his prior conviction, possession with intent to deliver cocaine of more than four grams and less than 200 grams was a first-degree felony, whereas the copy of the judgment before the jury shows that he was convicted of a second-degree felony. As a result of the plea bargain, Glenn contends, a discrepancy exists between the first-degree felony status of the statutory charge and the second-degree felony designation on the prior judgment.[1] This discrepancy, Glenn contends, renders the evidence legally insufficient to prove that he was previously convicted of possession with intent to deliver cocaine of more than four grams and less than 200 grams, or to link the felony conviction as alleged in the first enhancement paragraph to Glenn. Consequently, Glenn complains, his punishment was improperly enhanced based on the jury’s “true” finding.

The State responds that Glenn’s complaint is, at bottom, that a variance exists between the allegations in enhancement paragraph one of the indictment and the proof at trial.  We agree that Glenn essentially contends that his sentence should be reversed because of a discrepancy between the evidence of his prior conviction and the indictment that served as the basis for the jury instruction. 

In reviewing a claim of legal insufficiency based on a variance between the indictment and the evidence, we first consider the materiality of the variance.  Fuller v. State, 73 S.W.3d 250, 253 (Tex. Crim. App. 2002); see Gollihar v. State, 46 S.W.3d 243, 255–57 (Tex. Crim. App. 2001) (materiality inquiry—requiring determination of whether variance deprived defendant of notice of charges or whether variance subjects defendant to risk of later being prosecuted for same offense—should be made in all cases that challenge sufficiency of evidence based on variance between indictment and proof); Rogers v. State, 200 S.W.3d 233, 236 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d).  “A variance is material if it (1) deprived the defendant of sufficient notice of the charges against him such that he could not prepare an adequate defense, or (2) would subject him to the risk of being prosecuted twice for the same offense.” Rogers, 200 S.W.3d at 236 (citing Fuller, 73 S.W.3d at 253, and Gollihar, 46 S.W.3d at 257). The defendant bears the burden of demonstrating the materiality of a variance. Id. at 237 (citing Santana v. State, 59 S.W.3d 187, 194–95 (Tex. Crim. App. 2001)).  At the same time, we take into account the more lenient standard for alleging enhancement convictions, namely, that the State need not allege enhancement convictions with the same particularity required for charging the primary offense.  See Freda v. State, 704 S.W.2d 41, 42 (Tex. Crim. App. 1986); Chavis v. State, 177 S.W.3d 308, 312 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d).

Glenn has not borne his burden to show materiality.  He points to the fact that the elements of the prior conviction, as set forth in the indictment, comprise a first-degree felony, while the State’s proof identifies Glenn’s conviction as being for a second-degree felony.  Whether the prior conviction was for a first-degree or second-degree felony, however, does not affect the application of the enhancement paragraph in this case.

During the guilt-innocence phase in this case, the jury found Glenn guilty of burglary of a habitation, a second-degree felony.  Save certain exceptions not pertinent here, the habitual felony offender sentencing statute provides that “if it is shown on the trial of a second-degree felony that the defendant has been once before convicted of a felony, on conviction he shall be punished for a first-degree felony.”  Tex. Penal Code Ann. § 12.42(b) (Vernon 2003 & Supp. 2008).  The statute makes clear that, except for state jail felony convictions, all prior felony convictions, whether for first-, second-, or third-degree offenses, may be used for enhancement purposes.  See id. § 12.42(b), (e).   

Neither the indictment nor the jury instruction incorrectly identified Glenn’s prior conviction as a first-degree felony, but rather merely referred to a prior “felony” conviction without degree.  The only evidence before the jury was the prior judgment, which reflects the plea bargain and the reduction in charge to a second-degree felony.  Nothing in this record demonstrates that any discrepancy deprived Glenn of notice of the enhancement allegation or that it subjected him to the risk of being prosecuted twice for the same offense.  See Rogers, 200 S.W.3d at 237.

Request to modify the judgment

          The trial court judgment in this case indicates that Glenn pleaded true to the enhancement paragraphs and that the jury found both to be “not true.”  The judgment thus incorrectly reflects Glenn’s plea as to the enhancement paragraphs and the jury’s finding as to the first enhancement paragraph.  The State asks us to correct the judgment so that it accurately reflects that (1) Glenn entered a “not true” plea to enhancement paragraph one; (2) the jury found the allegations in enhancement paragraph one to be true; and (3) Glenn entered a “not true” plea to enhancement paragraph two.   We have the authority to modify the trial court’s judgment and affirm it as modified.   Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993).  We have reviewed the record and agree that the requested changes will accurately reflect the proceedings as recorded. 

Conclusion

          We conclude that Glenn failed to demonstrate that a material variance existed between the indictment and the evidence relating to proof of his prior conviction and, accordingly, affirm the sentence imposed on Glenn, as enhanced by the jury’s finding of his prior conviction.  We also modify the trial court’s judgment to reflect that (1) Glenn’s plea to the first enhancement paragraph is NOT TRUE; (2) Glenn’s plea to the second enhancement paragraph is NOT TRUE; and (3) the jury’s finding on the first enhancement paragraph is TRUE.  

As modified, the judgment is affirmed.

                                                          Jane Bland

                                                          Justice

Panel consists of Judges Keyes, Hanks, and Bland.

Do not publish.  Tex. R. App. P. 47.2(b).

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[1] Glenn explains that, in exchange for his plea, the State reduced the charge from a first-degree felony to a second-degree felony, which had the effect of lowering the maximum sentence the trial court could impose.  Compare Tex. Penal Code Ann. § 12.32 (Vernon 2003) (requiring, for first-degree felony, term of imprisonment “for life or for any term of not more than 99 years or less than 5 years”) with id. § 12.33 (requiring, for second-degree felony, term of imprisonment “of not more than 20 years or less than 2 years”).