HUGO HERNANDEZ v. THE STATE OF TEXAS--Appeal from 107th District Court of Cameron County

NUMBER 13-02-620-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

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HUGO HERNANDEZ, Appellant,

v.

THE STATE OF TEXAS, Appellee.

___________________________________________________________________

On appeal from the 107th District Court

of Cameron County, Texas.

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DISSENTING OPINION

Before Justices Ya ez, Rodriguez, and Garza

Dissenting Opinion by Justice Rodriguez

I respectfully dissent from the majority's disposition of the third issue. In that issue, appellant contends the trial court committed reversible error by allowing the State to reopen testimony during the punishment phase of the trial after the State and appellant had closed. The majority concludes that "[b]ecause the State failed to either reintroduce the evidence supporting the enhancement allegations or stipulate to the evidence pursuant to an agreement with appellant, the trial court erred when it denied appellant's request" to "dismiss the enhancement counts because it was not done properly." It further concludes that appellant was harmed because "[t]he jury found both enhancement allegations 'true' and assessed punishment at ten years' imprisonment on each count," a range of punishment greater than would have been assessed if the enhancement allegations had not been considered. I agree there was a deviation that the State did not cure. However, I would conclude that, under the circumstances of this case and the precedent of this Court, appellant failed to preserve the State's error. Accordingly, I dissent and would affirm the judgment of the trial court.

I. Background

At the beginning of the punishment phase, without first arraigning appellant on the enhancement counts and without appellant entering a plea to the enhancements, the State introduced testimony from four witnesses. After the presentation of the witnesses and after both sides closed and rested, the State informed the court that it forgot to request that the Court arraign appellant on the enhancement counts. The State asked leave of court to reopen the evidence in the punishment phase so that appellant could be arraigned on the enhancement counts. Appellant objected as follows:

Both sides rested. Both sides closed. And to put the cart before the horse or the horse before the cart is their error. . . . At this time we stand forward to go on the punishment, and the [c]ourt should then instruct the jury not to consider the enhancement counts and go forward with what we have.

The defense strenuously objects to the . . . [S]tate's request . . . to reopen for purposes of arraigning the defendant. That should have been done first. They failed to do so. Now they're stuck with it.

The trial court overruled the objection and granted the State's request to reopen "for the sole purpose of enhancement counts and the plea[d]ing to the enhancement counts." After the State read the indictment and appellant entered his plea of not true, appellant moved to dismiss the enhancement counts because "it was not done properly." The trial court denied appellant's motion, and the charge was read to the jury.

II. Analysis

The correct procedure to be followed after a tardy reading of the indictment and the entering of a plea has been long established: upon learning of the error, the indictment is read to the jury, the accused enters a plea, and the State reintroduces the evidence; or the parties may stipulate to the evidence. When this is done, the issue is joined and a trial on the issue may be held.

Limon v. State, 838 S.W.2d 767, 768-69 (Tex. App.BCorpus Christi 1992, pet. ref'd) (citing Warren v. State, 693 S.W.2d 414, 416 (Tex. Crim. App. 1985) (en banc); Welch v. State, 645 S.W.2d 284, 285 (Tex. Crim. App. 1983); Trammell v. State, 445 S.W.2d 190, 193-94 (Tex. Crim. App. 1979)); see Tex. Code Crim. Proc. Ann. art. 36.01(a) (Vernon Supp. 2004-05); Castillo v. State, 530 S.W.2d 952, 954 (Tex. Crim. App. 1976). "However, in the absence of an objection directing the court to the correct procedure, [appellate courts have held] that the error was not preserved, under the circumstances . . . presented." Limon, 838 S.W.2d at 769 (quoting Castillo, 530 S.W.2d at 954).

In this case, when the State was allowed to reopen, it cured only part of its error. The State read the enhancement paragraphs of the indictment into the record, and appellant entered his plea of not true. The State did not reintroduce the evidence from the punishment phase that was admitted prior to the reading of the indictment and entry of the plea and prior to the State and appellant closing, and no stipulation was entered that the testimony would be the same and could be considered by the jury. See Welch, 645 S.W.2d at 285-86 (citing Trammell, 445 S.W.2d at 193-94); see also Limon, 838 S.W.2d at 768-69. However, appellant objected only that the process had not been done properly and asked the court to instruct the jury not to consider the enhancement counts. Appellant did not direct the trial court to the correct procedure to be followed regarding the evidence; that the evidence introduced before the plea be reintroduced or stipulated to by appellant. See Limon, 838 S.W.2d at 769; cf. Castillo, 530 S.W.2d at 954. Appellant did not ask the court to instruct the jury to disregard that evidence. See Dill v. State, 697 S.W.2d 702, 709 (Tex. App.BCorpus Christi 1985, pet. ref'd) (holding error preserved when defendant asked that evidence heard before the plea be removed from the jury's consideration). Unlike the majority, I would conclude that appellant's request differed significantly from Dill and Limon and that it was not sufficient to apprise the trial court of the proper method to reintroduce evidence. Therefore, although the State failed to cure its error in its entirety, and I certainly do not condone such, under the circumstances of this case and following the precedent of the court of criminal appeals and of this Court, I would conclude that appellant did not preserve error. Accordingly, I would overrule this issue.

III. Conclusion

Agreeing with the disposition of all other issues, I would affirm the judgment of the trial court.

NELDA V. RODRIGUEZ

Justice

Publish.

Tex. R. App. P. 47.2(b).

Dissenting Opinion delivered and

filed this 6th day of April, 2006.