*4 judgment We affirm the trial court’s MORRISS, C.J., Before CARTER and (1) because the trial court’s decision at the MOSELEY, JJ. end of trial to allow sentence enhancement (2) error, admitting was not evi- reversible OPINION dence Hughen’s of custodial admission was error, not legally factually Opinion by Chief Justice MORRISS. Hughen’s sufficient evidence con- supports anger intersect, When and alcohol unfor- viction. tunate Jeffrey results can ensue. Daniel Hughen’s consumption, paired alcohol with (1) The Trial Decision at the End Court’s angry argument an girlfriend, with his was Enhance- Trial to Allow Sentence of injuries followed serious inflicted on ment Was Reversible Error Not Barry by Hughen, Milhollon Hughen’s trial court should contends the
jury trial and conviction attempted not have allowed the State to enhаnce murder, the enhancement of his sentence punishment of this offense under Section trial, allowed near the end of and his sen- 12.42(b) of the Texas Penal because Code tence of imprisonment. life having the first excluded use of a court— argument (due an applicable to this case particular offense as an enhancement companion,1 State)— its Hughen argues that to “inadequate”2 notice the Court, companion appeal 1. A May before this dence of extraneous offenses 06-07-00092-CR, cause number 2008 WL ruling The trial court made no on whether it appeal Hughen’s 2277506 is an from convic- would allow enhancement until the aggravated deadly tion for assault with a punishment stage the trial. At that of weapоn, for which he was sentenced to twen- time, the court ruled that the notice of intent ty years’ imprisonment. inadequate to enhance because it cited an apparently provision code erroneous 2. The record shows that the State filed a appear attempting made it that the State was punishment notice of intent to enhance March Hughen’s to enhance sentence twice and be- provided but no cause number for prior cause the conviction’s cause number alleged prior the conviction. The State filed was not cited in the notice. separate notice of intent to introduce evi- that the court recon- reurged request its its changed mind after both the State ruling its on enhanсement. punishment rested at the sider that, as argued long trial. the defendant stage of State identify reasonably alleged could mind, change trial court’s Until conviction, mandatory provide it was not punishment phase of trial had been fur- actual cause number.3 The State prior ruling that no conducted under naming an argued that its mistake ther After the enhancement would allowed. ease, number, statute was in this incorrect ruling trial court’s initial enhancement material, was, all, it still because after allowed, not be the State asked would much provision.4 After an enhancement But, to reconsider its with ruling. court flurry objections and amid a discussion jury ready hear punishment rul- Hughen, court its from reversed evidence, the request trial court took the ruling, changed After court its ing. proceeded under advisement and with the reopen the evi- the State was allowed phase of trial. Had the trial punishment evidence, piece one dence to reintroduce deny maintained its earlier court jury the en- the court instructed the enhancement, range pun- applicable *5 “not allegation, pled hancement would have been two and ishment between enhancement, jury true” to the and the confinement; twenty years’ the en- life punishment imprisonment. assessed at hancement, of range punishment the jumped twenty-five ninety-nine years Hughen argues to to that the trial court de- or life. him due of law because of its nied argument his to con- ruling and extends the place, With enhancement denial in late tend that the court’s decision denied advisement, but the reconsideration under his to effective assistance of counsel. punishment phase the of trial conduct- was and was that was argues ed near its Punish- The State issue conclusion. received, ment had been wit- The first the waived. State left, preserved nesses testified and and the case issue is not because defense State, Then, essentially object did when the was over. the State that, prior alleging prior 3. Courts held con of to have notice intent to use conviction punishment, (1) (2) victions for enhancement of the writing, given in enhance a sentence: allegations the which manner, should include court in (3) describing timely prior con the obtained, was time of the conviction used, to be sufficient to enable viction conviction, and the nature of the offense. can defendant to find the records he or she State, (Tex. Hollins v. 876 571 properly prepare question trial on the for sufficient, Crim.App.1978). They are also person he or is the same identi whether she however, prior were when the convictions conviction, fied in the records of such felonies, described as the exact nature of the containing expression an of intent to use the given, was the cause offenses numbers of to enhance the defendant's sen conviction obtained, convictions were and the dates State, 645, 652 McNatt v. 152 S.W.3d tence. State, Id.; such were set. Arce v. convictions 2004), (Tex.Apр.-Texarkana part aff'd (Tex.Crim.App.1977) 164 part, (Tex.Crim.App. S.W.3d 198 rev’d (enhancement paragraph gave no sufficient 2006). alleged prior tice to enable accused to locate convictions, felony gave when State cause why suggestion no reason 4. There is State, county). See number Chavis v. knowledge material this error would be to (Tex.App.-Houston Dist.] [1st S.W.3d 2005, sought punishment, the State to enhance 'd). pet. ref statute was cited even if incorrect previously in the This Court has observed State. components proper caselaw four critical immediately after the initial ruling, reasons,5 stated for a number of reiterating his prior that it argument intended to ask the trial that the act of plac- court to State’s ing in the original State’s file its notice of ruling revisit its point. at some later intent to priors impeachment use the objection Counsel’s the time of the was insufficient to show an intent to use court’s ruling sufficiently preserves revised convictions for enhancement and error, objections at least as to the ex- inadequate documents were pressed to the trial court at that time. See pointed their face. He out that sur- Tex.R.App. P. 33.1. prise clearly shown as well because The State’s alternative argument waiver made, State had had re- is objection that counsel’s specific was not jected, a pretrial plea years’ offer of twelve enough preserve to his current claim on imprisonment. That offer was well bеlow appeal. argument The State’s is essential- minimum twenty-five-year of an en- ly that sufficiently counsel was not precise hanced argued, quite sentence. Counsel argument inform the trial court cogently, demonstrably that the defendant why the State thought the court’s decision had understood for time before quite some was erroneous. subject trial that he was to a two- to sentence, twenty-year twenty-five not a For a contention raised on ninety-nine possibility. or life appeal, it must have been raised at trial objection. Ibarra v. 11 S.W.3d objected the trial court’s Counsel also (Tex.Crim.App.1999); Harris v. grounds. on additional Counsel ar- (Tex.Crim.App.1992). gued that procedurally opening state- —as objection preserve sufficient to er *6 punishment, ments had been made at all ror for appellate objection review if the offered, evidence had par- been and both communicates to the trial court what the ties had closed—the to due objecting party why object wants and prevent law should the court from allow- ing party relief, is entitled to in doing ing enhancement after the fact. He ob- manner clear enough jected for the court to un that reopening tendering of evi- objection request derstand the dence on that at and re- point, at a issue creating jury charge stage, time at that position when the trial court is in a denied process. do due something about it. See Lankston v.
State, (Tex.Crim. 907, 827 S.W.2d 908-09 appeal, Hughen complains, On App.1992). ulti not of the merits of the trial court’s lengthy discussion with the trial jury mate to consider decision to allow the ruled, court it Hughen’s enhancement, sequence sentence but of-the argued that the State’s notice was timing invalid and of that decision: an initial deci- notably, 5. Most he prosecution. that the notice lists Were the Texas Penal Code sim- wrong brief, ple might problem. Texas Penal Code section under or that not be a ultimately sought which enhancement Considering of the the convoluted nature Code, and that no difficulty experienced cause number was included in the and the that even identify prior, directing working notice to attorneys judges the trial in their have McNatt, subdivisions, opinion way excep- court to our in through 152 S.W.3d numerоus 645, marginally exceptions, which we addressed a sim- tions to and numerous internal cross-references, Unfortunately, ilar situation. we have been that it is unrealistic to think meaningless. confronted with more than one case across such errors are Defendants know, beginning our district in which the State has misnum- should be at entitled to provisions prosecution, prosecu- bered or mislabeled the Code con- of a the nature of that trolling pursue matters that it wishes tion. bar, ability that that at and retains like punishment at the sion is entered enhancement, judgment or order until a final of trial not to allow phase final. decision, becomes es- and the decree contrary made the cause followed 516, sug- v. 852 S.W.2d sentially Rodriguez at the end of trial. Sеe notice, Corp. (Tex.Crim.App.1993); that he was without sufficient gests Fruehauf (Tex.1993); Carrillo, more un- but the notice of which he now S.W.2d v. extremely derstandably complains Anthony’s Hosp., is the Baptist St. White v. ruling the trial court’s (Tex.App.-Amarillo late notice of 374-75 enhancement, Enters., notice of its denied); not the State’s Inc. v. 2006, pet. Orion enhancement.6 The record intent seek (Tex.App.-San Pope, 927 consistently it that the State said reveals hear orig. proceeding). We Antonio sentence, but Hughen’s wanted to enhance any why reason the trial suggestion no changed trial court its at mind was changing its court’s action trial. Because of the remarka- end of authority. outside its ble, late-trial, change ruling, in the court’s explicit have authoriza- Trial сourts also provokes Hughen’s plight sympathy. We testimony to allow addition- reopen tion to however, following charged, are Thus, court’s act of re- al evidence. facts where the law leads us based on the evidence, it came at though opening in the record. and be- phase of the punishment the end instance, individually, In this taken argu- final was read or charge fore the actions taken or allowed the trial court made, Article is not of itself error. ments are not erroneous. court shall allow provides 36.02 “[t]he time jurisdic testimony
A to be introduced plenary trial court has of a cause is conclud- interlocutory rulings, argument before the tion to reconsider its recognizing statutory- period. uniformly Id. While 6. The cases hold that a defendant safeguard designed entitled to notice of a conviction that the periods "are notice State intends to use for enhancement. Brooks rights manner that notice in a constitutional (Tex.Crim.App. parties and for courts easy for the to follow *7 is 1997). Although proper notice of intent must these notice apply,” the court concluded pled timely, it need not be in the indict consti- in a review for periods do not control sufficient, long pled ment to be as it is "in Instead, reviewing courts tutional error. Id. prior Proper form” to trial. Id. at 34. some adequate constitutionally determine “whether is notice informs the defendant that the State given.” Id. notice was seeking greater penalty it would seek them doing, rejected the lower Villescas In so notice allows absent the enhancement. Such give State must court's conclusion that the against en the defendant to defend such trial, explaining pro that “due notice before evidence, by showing such as hancement require that the notice be cess does not even identity prior convic mistake in or that the guilt phase begins, much less given Hollins, final. 571 S.W.2d tions never became days before given [of] a number that it be 876. at Boles, 448, (citing Oyler v. 368 U.S. trial." Id. Appeals re- The Texas Court of Criminal Thus, 501, (1962)). 446 if S.Ct. 7 L.Ed.2d 82 ten-day cently statutory notice held that the the enhance has no defense to "a defendant obeyed, long requirement need not be as as suggested the allegation has not ment articulated no dеfense to the defendant prepare a continuance in order need for State, 189 See Villescas v. conviction. one, pun given notice 290, (Tex.Crim.App.2006). That 294 S.W.3d constitu phase the federal ishment satisfies that opinion distinguished between the notice State, 294; 218 v. Id. at see Callison tion.” by that is required statute and the notice is 822, (Tex.App.-Beaumont 823-25 S.W.3d constitutionally required, and "disavowed” 2007, pet.). ten-day-notice no "special significance” of a 480
ed,
2007);
appears
necessary
Phillips
if it
it is
to a
see
Petroleum Co. v.
Shutts,
justice.”
2965,
due administration of
472
105
Tex.Code
U.S.
S.Ct.
(Vernon 2007);
(1985).
Ceim. PROC.Ann. art. 36.02
way,
L.Ed.2d
another
86
628
Said
Cowsert,
347,
see State v.
207 S.W.3d
351
process requires
due
a fair trial before a
4 (Tex.Crim.App.2006);
n.
see also Tex.
Murchison,
fair tribunal. See In re
349
(Vernоn
Ann. art.
36.16
Code Ceim. PROC.
136,
623,
133,
75 S.Ct.
But, though the individual acts of the State, 65, (Tex. Norris v. they permissible, trial court were did com- 'd). 1990, App.-Dallas pet. ref to create error? se- bine reversible quence and timing of the decision to allow minimum, process guar At a due enhancement claimed to is have affected charges antees the defendant notice of the plea negotiations and the trial him against or her. Stevens v. punishment phase. While its effect on (Tex.Crim.App.1995); plea negotiations is not raised an inde- as (Tex. v. Ward 829 S.W.2d pendent ground appeal, it is used to Crim.App.1992). The Texas Court of support Hughen’s position that the late- Appeals recently has reiterated Criminal change ness of the trial in the court’s approved prior pronouncements engagement” punish- “rules of made the unfair, this issue. violating Hughen’s ment trial thus right process to due of law.7 regarding issue a notice sen- [The compara- tence enhancement or of the general
As described in a more
deadly weapon allegationf
char-
ble]
][is]
Court,
Supreme
context
the Texas
due
...
acterized
as one of “notice”
process requires
application
“firmly
precepts
rooted
fundamental
arbitrary
Texas law be neither
nor funda
mentally
unfair.
Am.
of due
and due course
law—
Citizens Ins. Co. of
(Tex.
Daccach,
informed,
at a
mini-
to be
bare
that the trial court’s
made ineffective because he formulated his
сhange of mind made his counsel constitu
strategies
and tactical decisions based on
tionally ineffective. Claims of ineffective as
enhancement,
trial court’s
of no
but
successfully
sistance of counsel are seldom
that,
made and
after counsel's decisions were
navigated
appeal.
in a direct
The standard of
fully completed, they
his actions were
were
testing claims of ineffective assistance of
undermined
the court's decision
allow
Washington,
counsel is set out in Strickland v.
situation,
he
enhancement. Under such
466 U.S.
has not that the ing offense used to on defendants’ motion to transfer ven Also, in any way enhance was defensible. might ue and had stated that the hearing may because a trial court withdraw or But, eight take at the time of weeks. change rulings, its cannot simply motion, hearing plaintiffs’ and on trial rely rulings remaining place on initial court ruled that evidence would submit until complete. the trial is form, ted in written not in the usual format, expected oral and then denied the
Finally, Hughen a did not seek continu- continuancе, motion for defendants’ direct punishment ance of the conclusion of the ing “present you defendants to what have proceeding after the trial court’s late rul- Supreme now.” The Texas ruled ing. may a late not Court While continuance sit judge jury, option part well or that the trial court had taken in mis exist, and it not here. used leading the defendants and had denied continuance, their motion for a thus de remaining effect of this series of priving process. them of due But a trial events, Hughen’s opportunity claimed lost change interlocutory court’s decisions accept plea agreement favorable of necessarily deny party pro does not due years’ imprisonment, twelve seems strik- cess, especiаlly where no continuance was ing compared when with his sentence of sought to a chance respond allow imprisonment. life suggests, The record Enters., change. however, Rogers See v. Ricane years the offer of twelve Inc., 751, Hughen’s rejection (Tex.App.-Amar 852 764 place of that offer took S.W.2d Therefore, 1993), grounds, some time before trial. Hu- illo rev’d on other 884 rejection (Tex.1994). ghen’s of that offer could not S.W.2d 763 “There is no vest have been reliance on the-trial court’s ed in the of a court and a decisions rejection initial change deprive of decision does not one of —at punishment phase of trial —of the sentence equal protection property of the laws or enhancemеnt. Adju without due of law.” In re Upper Guadalupe Seg dication River if, during punishment phase
Even
Basin,
Guadalupe
ment
River
trial, Hughen
way
in some
relied on the
353,
(Tex.Civ.App.-San
S.W.2d
Antonio
ruling,
trial court’s initial
that reliance is
(Tex.1982)
1981), aff'd,
483 Fifth Amendment to the press. The record contains two distinct The requires law warnings given Hughen. to The United States Constitution sets officials, questioning a magistrate first was before a on the morn enforcement a.m., ing July custody, person at at which in to inform the person 8:20 remain silent and that Hughen rights right time was informеd of his his or her to may makes be lawyer appointed any and asked that a statement he or she represent him. The second set of warn him or her in court. Mi against used 1602; randa, 473-74, ings sought occurred when officers at 86 S.Ct. 384 U.S. States, question him about the incident about v. 530 U.S. see Dickerson United 428, 438-39, 2326, morning, 11:30 a.m. that at which time an 120 S.Ct. 147 L.Ed.2d (2000); him gave generic Michigan Mosley, officer Miranda9 405 v. 423 U.S. 96, 103-04, 321, warnings, were L.Ed.2d acknowledged which 96 S.Ct. 46 313 (1975). Hughen, along stating any that with waiver If the individual indicates lawyer manner, present during question he did not need at that either before or silent, agreeing ing, time and to talk to the officer. that he or she wishes to remain Id.; interrogation stop. must Mi argues Hughen requested Counsel that randa, 473-74, 384 U.S. 86 S.Ct. arraign- he when was arrested and Any of a desire to terminate declaration Nonetheless, police, ed. without initiation suffice, as inquiry the contact or will will by Hughen waiting of contact and without repeated questions. silence in the face of appointed, until counsel was took (Tex. v. Ramos form, gave from his cell and him a waiver Crim.App.2008). signed. They interrogated which he Hu- ghen, and State’s Exhibit 14 is a video however, recognized, Courts have interview, recording of that in which he right may to counsel an invocation of stabbing admitted the victim. separately pursuant be made the Sixth right Amendment to have the assistance of agrees
The State that this is how mat- situa- counsel for his or her defense. This that, ters occurred but because Hu- directly tion was addressed Green ghen’s request for counsel was made at a (Tеx.Crim.App.1996). magistrate’s hearing, it was not made Green, recognized the court connection police questioning and “did Supreme States Court had held United clearly request presence of counsel invocation of an accused’s Sixth during questioning.” argues, State at an initial effect, that, right Amendment to counsel if requested counsel is not appearance does not constitute an invoca- adequately at or in association with right tion of his Fifth Amendment to coun- interrogation, of custodial Wisconsin, 97; sel. Id. at see McNeil v. right to counsel in that interview has not L.Ed.2d 501 U.S. S.Ct. been invoked. (1991). The Texas Court of Criminal separate Two provisions constitutional that, Appeals acknowledged are involved here: the Fifth and Sixth argument [although right er- the Fifth Amendment Amendments. This asserts transgressing Hughen’s specific, ror Fifth Amend- counsel is non-offense and once interroga- further prevents ment to counsel because asserted counsel, presence stated that he wished to be tion without previously Amendment the Fifth represented [invocation of] counsel. Arizona, (1966). 9. Miranda v. 384 U.S. 16 L.Ed.2d *11 support In right reviewing cannot be inferred from the invo- his conviction. the right evidence, cation of the Sixth Amendment legal sufficiency of the we view differing purposes view of the two light all of the evidence the most favor- rights. able to and determine the verdict whether Green, fact could rational trier of have found at 97. S.W.2d crime beyond the essential elements of the McNeil, the Court concluded the in- State, reasonable doubt. Johnson vocation of an accused’s Fifth Amendment In a (Tex.Crim.App.2000). right minimum, “requires, at a state- some review, sufficiency factual we all review reasonably can be ment that construed evidence, light the do so in a neutral for but expression of desire the assistance attorney dealing sup- an with custodial and determine whether by police.” interrogation The Court porting is so weak or is so the verdict held “[requesting assistance of an outweighed weight great pre- and attorney hearing at a bail not bear does ponderance jury’s the evidence that McNeil, at construction.” 501 U.S. clearly wrong manifestly verdict is or un- 178, 111 S.Ct. just. Roberts v. 220 S.W.3d Marshall v. (Tex.Crim.App.2007); Green, claim, Hughen
As in nor not (Tex.Crim.App.2006). show, subject- does the record that he was ed interrogation ap- to custodial when he generally The evidence shows
peared
magistrate
before the
and made a
Batts,
Hughen
girlfriend,
his
Nina
and
request
formal
to have
appointed.
counsel
July
spent
day,
It
an
whole
drink
simply
expression
for assis-
dealing
interroga-
ing
Eventually,
tance in
with custodial
left
arguing.
Batts
Thus,
police.
tion
officers were not
Hughen,
suspecting
the house.
what
required
initiating
do,
to refrain from
interro-
planned
Batts
took a knife and went
gation, and it is clear that Hughen waived looking
Hughen
for
found that
her. When
his right to silence and to
in that
men,
Batts
the house
two
was inside
regard
questioning
at
the time
com-
Graham, Hughen
Milhollon and Eric
de
menced.
manded
come out.
de
that shе
Batts
clined, and Milhollon and Graham came
ruling
A
or exclud
admitting
Hughen.
outside to talk with
The three
ing
evidence is reviewed
abuse of dis
talked,
peaceably,
men
more or less
Ramos,
cretion.
485 State, staggered Hughen evidently off. retained 741 Flanagan S.W.2d grip during 1982) his on Batts the entire alterca- (Tex.Crim.App. Op.] (op. on [Panel Graham, tion. whose bath had been short- reh’g). attempt Criminal under Section outside, out, ened drip- noise came requires the intent 15.01 to commit the wet, ping persuade and tried Hughen to to attempted. offense Tex. Penal Code Ann. release Batts. got When Graham clоse 2003). 15.01(a) (Vernon Thus, specific § a enough, arm, grabbed Hughen’s he with kill necessary intent to is a element of knife, he attempted which held and to attempted Flanagan, murder. disarm him. Therefore, at 741. the following are the physically Graham was thrown about (1) attempted per elements of murder: him, Hughen though and could not disarm (2) son, specific with the intent to cause managed keep grip Hughen. he his another, the death of an act process, In the help, Graham called for amounting than preparation, to more mere and a large neighbor came over and hit (4) but to effect the fails death of the other Hughen enough hard to knock him down. individual. Tex. Penal Ann. Code Together, Graham and the neighbor dis- 15.01(a); 19.02(b); §§ Roberson v. Hughen. They armеd Hughen up, then let (Tex.App.-Fort Worth whereupon promptly he chased Batts all ref'd); pet. Jeffley v. way around running the house before (Tex.App.-Texarkana headlong newly into two police arrived offi- pet.). no cers. Sergeant Thompson David testified that case, developed how events him, he get directed Batts to behind and above, largely uncontested. out As set then Hughen. Thompson, confronted hav- (in state) Hughen an inebriated followed ing been told of a stabbing, drew gun (with fighting Batts whom he had been all and ordered Hughen ground. to the Hu- day) along to Milhollon’s house. He took instead, ghen, officers, moved toward the initially lockblade knife. Batts declined to prompting one to fire a shot into the out, come and Milhollon Grаham met ground in Hughen. front of Hughen con- outside, they where talked more tinued to Lundy advance. Officer Richard vociferously or less for a while. Eventual- Hughen, tackled Thompson sprayed outside, ly Batts came and she and Hu- Hughen in the face pepper spray. with ghen argued some more. When Batts then, Even the officers had to struggle inside, go Hughen grabbed tried to back with Hughen eventually subduing drag her and tried to her off. Milhollon him, him, arresting jail. him taking intervene, attempted used Hughen contends the evidence is insuf- knife, which he had been threat- ficient because it does not show that he Batts, ening to cut Milhollon a number of specific victim, had a intent to kill the as times. required by statute. He that a de- cision every ag- otherwise would convert The recоrd shows that Milhollon had a gravated attempted assault case into an deep bridge cut across the of his nose and prosecution. murder cuts on his knee and shoulder. The most injuries deep puncture severe were two
The offense of murder under Sec
19.02(b)(1)
wounds to the base and back of Milhollon’s
tion
of the Texas Penal Code
neck.
great
Those wounds resulted
requires
specific intent to kill. Tex. Pe
19.02(b)(1)(Vernon 2003);
§
loss;
testimony
deal of blood
there was
nal Code Ann.
—
-,
Texas,
U.S,
assistance,
County,
that,
lespie
Milhollon
medical
without
(2008), may
2578,
time of the initial court trial, punishment phase
that it would later ask the trial court to ruling.
reconsider its It is clear from the parties
record that all were made aware might
that the court reconsider its decision punishment phase
later of the trial. essentially
As the contention is a due-
process argument, Rogers the comments in Enter., Inc.,
v. Ricane *14 1993),
(Tex.App.-Amarillo rev’d on other (Tex.1994),
grounds,
apply here. the absence of indica- deprivation due-process
tion of an actual
rights especially light of the failure to —
ask for a continuance when the trial court
reversed itself—it has not been shown that change in the ruling deprived Hughen
of the due of law. rehearing.
We overrule motion for
In re Jeanie NOLLE and Technical
Solutions, Inc., Relators.
No. 01-07-01065-CV. Texas, of Appeals
Court (1st Dist.).
Houston
June