Jonas Demar Jackson v. The State of Texas--Appeal from 54th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

 

No. 10-07-00089-CR

Jonas Demar Jackson,

Appellant

v.

The State of Texas,

Appellee

 

 

From the 54th District Court

McLennan County, Texas

Trial Court No. 2006-357-C2

MEMORANDUM Opinion

 

Jackson appeals his two convictions for aggravated robbery of Harry G., who is a disabled person and a person 65 years of age or older, and of Helen G., who is a person 65 years of age or older, both with a deadly weapon. See Tex. Penal Code Ann. 29.03(a)(3) (Vernon 2003). We modify the judgment and affirm as modified.

Second Issue. In Jackson s second issue, he contends, The evidence was legally insufficient to support the conviction on Count I. (Br. at 4.) Jackson contends that the evidence that he caused bodily injury to Harry G. by striking him, as alleged in the indictment, was not legally sufficient.

We apply the Jackson v. Virginia standard in determining whether the evidence is legally sufficient. Saldano v. State, 232 S.W.3d 77, 99 (Tex. Crim. App. 2007), petition for cert. filed, No. 07-7815 (U.S. Nov. 19, 2007); see Jackson v. Virginia, 443 U.S. 307 (1979). Under that standard, we consider all of the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational juror could have found the essential elements of the crime beyond a reasonable doubt. Rollerson v. State, 227 S.W.3d 718, 724 (Tex. Crim. App. 2007); accord Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007) (quoting Jackson at 319).

Jackson argues that there was no evidence that Harry G. was injured other than accidentally, or recklessly, no evidence of bodily injury, and no evidence that Harry G. was struck. (Br. at 5); see Tex. Penal Code Ann. 1.07(a)(8) (Vernon Supp. 2007), 6.03(c) (Vernon 2003). The Penal Code defines bodily injury as physical pain, illness, or any impairment of physical condition. Tex. Penal Code Ann. 1.07(a)(8).

The State points primarily to the following evidence. Helen G. testified that Harry G. told her that his assailant struck him with a fist. Harry and Helen G. s neighbor testified that Helen G. asked for help and told him that the robbers had just beat the hell out of Harry and Helen G. (6 R.R. at 4, 5.) The trial court admitted photographs of bruises, cuts, and scratches to Harry G. s face, arm, and chest.

A rational jury could have found beyond a reasonable doubt that Jackson intentionally or knowingly caused bodily injury to Harry G. by striking him.

We overrule Jackson s second issue.

First Issue. In Jackson s first issue, he contends, The Court erred by overruling Appellant s Motion to Quash the Indictment. (Br. at 2.) Jackson contends that the trial court erred in overruling Jackson s motion to quash the second count of the indictment, alleging the robbery of Helen G.

Where [t]he trial court s decision on a motion to quash [i]s based only on the indictment, the motion to quash, and the argument of counsel, . . . the trial court [i]s in no better position than an appellate court to decide th[e] issue, and we review the motion de novo. State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004).

Jackson argues, Article 21.15 {V.A.C.C.P.} imposes two requirements on a charging instrument alleging reckless [mis]conduct. First, the indictment must allege th[e] act or acts relied on to constitute the forbidden conduct committed with recklessness. Second, the indictment must allege the act[s] or circumstances relied on to demonstrate that [the] forbidden conduct was committed in a reckless manner. (Br. at 2 (quoting Hankins v. State, 85 S.W.3d 433, 436 (Tex. App. Corpus Christi 2002, no pet.)) (internal citations omitted by Jackson) (material in square brackets ( [ ] ) omitted or altered by Jackson) (material in braces ( { } ) added by Jackson) (citing State v. McCoy, 64 S.W.3d 90, 94 (Tex. App. Austin 2001, no pet.))); see Tex. Code Crim. Proc. Ann. art. 21.15 (Vernon 1989).

Article 21.15 of the Texas Code of Criminal Procedure provides:

Whenever recklessness . . . enters into or is any part or element of any offense, or it is charged that the accused acted recklessly . . . in the commission of an offense, the . . . indictment in order to be sufficient in any such case must allege, with reasonable certainty, the act or acts relied upon to constitute recklessness . . . , and in no event shall it be sufficient to allege merely that the accused, in committing the offense, acted recklessly . . . .

Tex. Code Crim. Proc. Ann. art. 21.15.

As the Texas Court of Criminal Appeals held in Crawford v. Texas, here, too:

All three of the culpable mental states, intentionally, knowingly, and recklessly, were alleged. Since it is sufficient to allege either of the culpable mental states, the indictment on its face alleges two culpable mental states, intentionally and knowingly, which are not subject to the complaint concerning the culpable mental state, recklessly, made in the appellant s motion to quash. The indictment is sufficient and we need not determine the requirements of the indictment, if recklessly had been the only alleged culpable mental state.

Crawford v. State, 646 S.W.2d 936, 937 (Tex. Crim. App. 1983); see Tex. Penal Code Ann. 6.03(a)-(b) (Vernon 2003); McCoy, 64 S.W.3d at 94 n.2; see also Thai v. State, No. 05-06-00206-CR, 2007 Tex. App. LEXIS 6056, at *9-*10 (Tex. App. Dallas Aug. 1, 2007, no pet.) (not designated for publication); McKenzie v. State, No. 2-02-195-CR, 2003 Tex. App. LEXIS 5830, at *4-*5 (Tex. App. Fort Worth July 3, 2003, pet ref d) (not designated for publication) (mem. op.); Miller v. State, No. C14-92-01323-CR, 1993 Tex. App. LEXIS 1254, at *6-*7 (Tex. App. Houston [14th Dist.] Apr. 29, 1993, pet. ref d) (not designated for publication).

The trial court did not err in overruling Jackson s motion to quash.

We overrule Jackson s first issue.

Third Issue. In Jackson s third issue, he contends, The Court erred by not suppressing Helen G[.] s in court and out of court identification of Appellant. (Br. at 6.) Jackson contends that the trial court erred in overruling Jackson s motion to suppress, and overruling Jackson s objection to, evidence of Helen G. s identifications of Jackson after looking at an array of photographs including one of Jackson, and at trial.

We review a trial court s decision regarding the admissibility of evidence under an abuse of discretion standard. Cameron v. State, No. PD-0413-06, 2007 Tex. Crim. App. LEXIS 1120, at *9 (Tex. Crim. App. Sept. 12, 2007); accord Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh g). Likewise, [w]e review a trial court s ruling on a motion to suppress evidence for an abuse of discretion. Swain v. State, 181 S.W.3d 359, 365 (Tex. Crim. App. 2005), cert. denied, 127 S. Ct. 145 (2006) (Tex. Crim. App. citing Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002)); see State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006) (op. on orig. submission). A trial court abuses its discretion when it acts outside the zone of reasonable disagreement. McGee v. State, 233 S.W.3d 315, 318 (Tex. Crim. App. 2007); accord Montgomery at 391.

[W]hen considering a trial judge s findings of fact, we give almost total deference to those findings when they are supported by the record, especially when those findings are based upon credibility and demeanor. Ex parte Ellis, 233 S.W.3d 324, 331 (Tex. Crim. App. 2007) (quoting Ex parte White, 160 S.W.3d 46, 50 (Tex. Crim. App. 2004)); see Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

We use a two-step analysis to determine the admissibility of an in-court identification: 1) whether the out-of-court identification procedure was impermissibly suggestive; and, if suggestive, 2) whether that suggestive procedure gave rise to a substantial likelihood of irreparable misidentification. Conner v. State, 67 S.W.3d 192, 200 (Tex. Crim. App. 2001); see Simmons v. United States, 390 U.S. 377, 384 (1968); Stovall v. Denno, 388 U.S. 293, 302 (1967); Barley v. State, 906 S.W.2d 27, 33 (Tex. Crim. App. 1995). [A] finding that a challenged pretrial identification procedure was not in fact impermissibly suggestive will obviate the need to assay whether under the circumstances it created a substantial likelihood of misidentification. Ford v. State, 919 S.W.2d 107, 117 (Tex. Crim. App. 1996) (quoting Webb v. State, 760 S.W.2d 263, 269 (Tex. Crim. App. 1988)); see Williams v. State, 675 S.W.2d 754, 757 (Tex. Crim. App. 1984) (op. on orig. submission).

Jackson argues that the photographic array shown to Mrs. G[.] was impermissibly suggestive because of the close-up of Appellant and the prominence of the halo that highlighted Appellant s photograph. [1] (Br. at 7.)

The trial court made the following findings of fact after the hearing on Jackson s motion, at which the photo array was admitted for the record as Jackson s Exhibit No. 1:

1. That Officer Keith Kellum of the Waco Police Department was the lead detective assigned to investigate the defendant for the activity made the basis of this cause.

2. That Officer Keith Kellum in the course of his investigation assembled a photo lineup which included a photo of the defendant.

3. That defendant s exhibit one is the photo lineup that was assembled by Officer Kellum which included the photo of the defendant.

4. That Officer Kellum assembled defendant s exhibit one using photos of other males with similar age, race and physical characteristics to defendant.

5. That Officer Kellum assembled defendant s exhibit one using color photographs that are all frontal mugshots.

6. That the photos of all members of defendant s exhibit one vary in perspective to some degree, but not in any manner that is suggestive of one over the other.

7. That defendant s exhibit one containing the photo of the defendant was not suggestive in any manner.

8. That defendant s exhibit one photos had similar lighting and background.

9. That defendant s exhibit one containing the photo of the defendant was shown to the victim, Helen G[.], without any suggestion that would influence the victim s selection.

. . . .

13. That Officer Kellum is a credible witness . . . .

(II C.R. at 250-51.) Those findings are supported by the photo array and Detective Kellum s testimony at the hearing on Jackson s motion. Kellum testified that he used the most recent book-in photograph of Jackson, as well as five similar photographs of other juvenile offenders of the same gender and race as Jackson and similar in age to Jackson. Kellum testified that in showing the array to Helen G., he did not suggest that she pick any of the photographs as being of one of the robbers. In the array, Jackson appears to be somewhat closer to the camera than are the subjects of four of the other photographs, and one of the subjects appears significantly farther away than the others. Jackson also appears to have his head tilted somewhat toward the camera, to a greater degree than the other subjects.

Based on the trial court s findings of fact, the photo array procedure was not impermissibly suggestive. The trial court did not abuse its discretion in overruling Jackson s motion and objection.

We overrule Jackson s third issue.

Fourth Issue. In Jackson s fourth issue, he contends, The Court erred in overruling Appellant s objection to the enhancement paragraph as being the operative pleading of record. (Br. at 8.) Jackson contends that he did not receive notice of the State s punishment enhancement allegations.

[A] defendant is entitled to notice of prior convictions to be used for enhancement of the punishment range. Brooks v. State, 957 S.W.2d 30, 33 (Tex. Crim. App. 1997); accord Parasco v. State, 165 Tex. Crim. 547, 549, 309 S.W.2d 465, 467 (1958), overruled on other grounds, Brooks at 33-34; see Tex. Penal Code Ann. 12.42(c)(1) (Vernon Supp. 2007); Tex. Fam. Code Ann. 51.13(b)(2), (d) (Vernon Supp. 2007); see generally Tex. Code Crim. Proc. Ann. art. 37.07, 3(a)(1) (Vernon Supp. 2007).

Jackson argues that the trial court s order granting the State s motion to amend the indictment constituted the operative pleading. (Br. at 9.)

The indictment, rather, as amended, constituted the charging instrument. See Tex. Code Crim. Proc. Ann. art. 27.01 (Vernon 2006). The original indictment contained no punishment allegations, and the amendment to the original indictment had no effect on the State s written notice of intent to offer evidence of Jackson s prior adjudications for purposes of punishment enhancement, filed of record.[2]

The amendment of the indictment did not affect Jackson s notice of the punishment allegations. The trial court did not err in overruling Jackson s objection.

We overrule Jackson s fourth issue.

Fifth Issue. In Jackson s fifth issue, he contends, The trial court erred in overruling Appellant s First Amended Motion to Quash Notice to Enhance Punishment Range and to declare sentencing scheme herein to be unconstitutional. (Br. at 11.) Jackson contends that the trial court s ruling denied Jackson due process of law, constituted cruel or unusual punishment, and violated the Texas Penal and Family Codes. See U.S. Const. amends. VIII, XIV; Tex. Const. art. I, 13, 19; Tex. Fam. Code Ann. 54.02(b) (Vernon 2002); Tex. Penal Code Ann. 8.07(a) (Vernon Supp. 2007).

Penal Code. First, Jackson argues that the use of a prior juvenile adjudication to enhance punishment violated Penal Code Section 8.07.[3]

Section 8.07 provides:

A person may not be prosecuted for or convicted of any offense that the person committed when younger than 15 years of age except:

. . .

. . . a felony of the first degree for which the person is transferred to the court under Section 54.02, Family Code, for prosecution if the person committed the offense when 14 years of age or older . . . .

or under other exceptions not applicable here. Tex. Penal Code Ann. 8.07(a); see Tex. Fam. Code Ann. 54.02 (Vernon 2002).

Jackson argues that the use of a juvenile adjudication for conduct that he committed when he was 13 years of age violated Section 8.07. Jackson argues that such use constitutes prosecution for that conduct. See Tex. Penal Code Ann. 8.07(a). Jackson was prosecuted for and convicted of, rather, two counts of aggravated robbery, as alleged in the indictment. See Tex. Penal Code Ann. 29.03(a)(3).

Due Process. Next, Jackson argues that his punishment denied him due process of law.

The brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record. Tex. R. App. P. 38.1(h). Where an appellant fail[s] to apply the law to the facts to support [the appellant s] conclusion, the appellant s issue . . . [i]s inadequately briefed and presents nothing for review. McCarthy v. State, 65 S.W.3d 47, 49 n.2 (Tex. Crim. App. 2001); see Tex. R. App. P. 33.1(a); Gallo v. State, No. AP-74,900, 2007 Tex. Crim. App. LEXIS 1234, at *20 (Tex. Crim. App. Sept. 26, 2007). We will not make [an] appellant s arguments for him . . . . Wyatt v. State, 23 S.W.3d 18, 23 (Tex. Crim. App. 2000). In particular, we will not make novel legal arguments for [an] appellant. Rhoades v. State, 934 S.W.2d 113, 119 (Tex. Crim. App. 1996). In making a novel argument for which there is no authority directly on point, an appellant must ground his contention in analogous case law or provide the court with the relevant jurisprudential framework for evaluating his claim. Tong v. State, 25 S.W.3d 707, 710 (Tex. Crim. App. 2000) (op. on orig. submission).

Although Jackson brings a constitutional due-process issue, Jackson argues, however, only under Family Code Section 54.02. See Tex. Fam. Code Ann. 54.02(b).

The due-process portion of Jackson s argument is inadequately briefed.

Disproportionate Punishment. Next, Jackson argues that the punishment range for his offense constituted punishment disproportionate to the offense.

Although Jackson cites a United States Supreme Court case, he does not suggest how any of the several opinions in that case would apply to the facts of his offense. See Harmelin v. Michigan, 501 U.S. 957 (1991).

The disproportionate-punishment portion of Jackson s argument is inadequately briefed.

Cruel or Unusual Punishment. Lastly, Jackson argues that the use of prior juvenile adjudications to enhance the punishment range for felony convictions constitutes cruel or unusual punishment.

Although Jackson cites Roper v. Simmons for the proposition that evolving standards of decency prohibit executing those who commit crimes when they are under 18 years of age, Jackson does not suggest what the standard of decency is for sentencing persons less than 17 years of age to imprisonment for life, or how those standards are evolving.[4] (See Br. at 14-15 (citing Roper v. Simmons, 543 U.S. 551 (2005).)

The cruel-or-unusual punishment portion of Jackson s argument is inadequately briefed.

Conclusion. Jackson having not shown that the trial court erred in overruling Jackson s motion, we overrule Jackson s fifth issue.

Sixth and Seventh Issues. In Jackson s sixth and seventh issues, he contends that the trial court erred in its punishment charge. In both issues, Jackson contends that the trial court erred in overruling Jackson s requested instructions limiting the jury s consideration of Jackson s offenses and conduct committed when he was less than 17 years of age and Jackson s objections to the charge on similar grounds.

Jackson argues that Code of Criminal Procedure Art. 36.14 mandates that a trial court submit a charge setting for the law applicable to the case. [sic] (Br. at 16); see Tex. Code Crim. Proc. Ann. art. 36.14 (Vernon 2007).

Article 36.14 provides, [I]n each felony case . . . , the judge shall . . . deliver to the jury . . . a written charge distinctly setting forth the law applicable to the case . . . . Tex. Code Crim. Proc. Ann. art. 36.14.

Whenever it appears by the record in any criminal action upon appeal that any requirement of Article[] 36.14 . . . has been disregarded, the judgment shall not be reversed unless the error appearing from the record was calculated to injure the rights of defendant, or unless it appears from the record that the defendant has not had a fair and impartial trial.

Tex. Code Crim. Proc. Ann. art. 36.19 (Vernon 2006). [E]rror that was called to the court s attention will lead to reversal if there was some harm to the appellant, but unobjected-to error calls for reversal only if it was so egregious as to deprive the appellant of a fair and impartial trial. Flores v. State, 224 S.W.3d 212, 213 (Tex. Crim. App. 2007); accord Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh g).

In Jackson s sixth issue, he contends, The Court erred in failing to instruct the jury in its punishment charge how to consider the fact that Appellant was younger than 17 years of age at the time of the commission of the offenses in Count I and Count II in assessing punishment. (Br. at 15.) Jackson argues that the trial court should have given the instruction, In assessing punishment for the offense for which you have found the Defendant guilty, you are instructed that persons under 17 years of age at the time of the offense have diminished moral culpability for their conduct. (Id. at 15-16.)

In Jackson s seventh issue, he contends, The Court erred in failing to instruct the jury in its punishment charge how to consider Appellant s prior juvenile record in assessing punishment. (Br. at 17.) Jackson argues that the trial court should have given the instruction, In considering the Defendant s prior juvenile record, if any, you are instructed that juveniles have a diminished moral culpability for juvenile offenses. (Id. (quoting II C.R. at 225).)

Code of Criminal Procedure Article 37.07 is the law applicable to all non-capital punishment proceedings. Delgado v. State, 235 S.W.3d 244, 252 (Tex. Crim. App. 2007) (quoting Tex. Code Crim. Proc. Ann. art. 36.14); see Tex. Code Crim. Proc. Ann. art. 37.07, 1 (Vernon Supp. 2007); Act of May 30, 2005, 79th Leg., R.S., ch. 660, 1, 2005 Tex. Gen. Laws 1641, 1641 (amended 2007) (current version at Tex. Code Crim. Proc. Ann. art. 37.07, 2(a)-(b) (Vernon Supp. 2007)); Tex. Code Crim. Proc. Ann. art. 37.07, 2(c)-3(b) (Vernon Supp. 2007); Act of May 30, 2005, 79th Leg., R.S., ch. 660, 2, 2005 Tex. Gen. Laws at 1641 (amended 2007) (current version at Tex. Code Crim. Proc. Ann. art. 37.07, 3(c) (Vernon Supp. 2007)); Tex. Code Crim. Proc. Ann. art. 37.07, 3(d)-(i) (Vernon Supp. 2007); Act of May 29, 1993, 73d Leg., R.S., ch. 900, 5.02, secs. (a)-(b), 1993 Tex. Gen. Laws 3586, 3743-44 (amended 2007) (current version at Tex. Code Crim. Proc. Ann. art. 37.07, 4(a)-(b) (Vernon Supp. 2007)); Tex. Code Crim. Proc. Ann. art. 37.07, 4(c)-(d) (Vernon Supp. 2007).

Jackson s requested instructions do not constitute part of the law applicable to the case.[5] Moreover, such instructions also at least run the risk of constituting erroneous comments on the weight of the evidence. See Tex. Code Crim. Proc. Ann. art. 36.14; Brown v. State, 122 S.W.3d 794, 801 (Tex. Crim. App. 2003) (instruction simply unnecessary and fails to clarify the law for the jury ).

The trial court did not err in overruling Jackson s requested instructions and objections to the charge.

We overrule Jackson s sixth and seventh issues.

Eighth Issue. In Jackson s eighth issue, he contends, The Court erred in finding that Appellant used or exhibited a deadly weapon during the commission of the offense, or in immediate flight therefrom. (Br. at 18.) Jackson contends that the trial court erred in entering in its judgment an affirmative finding that Jackson used a deadly weapon.

The Code of Criminal Procedure provides that the factfinder may find that a deadly weapon as defined in Section 1.07, Penal Code, was used or exhibited during the commission of a felony offense or during immediate flight therefrom, and that the defendant used or exhibited the deadly weapon or was a party to the offense and knew that a deadly weapon would be used or exhibited. Tex. Code Crim. Proc. Ann. art. 42.12, 3g(a)(2) (Vernon Supp. 2007). On an affirmative finding . . . , the trial court must enter the finding in the judgment of the court. Id. Affirmative finding means the trier of fact s express determination. Lafleur v. State, 106 S.W.3d 91, 94 (Tex. Crim. App. 2003) (quoting Polk v. State, 693 S.W.2d 391, 393 (Tex. Crim. App. 1985)).

[A] trial court is authorized to enter a deadly weapon finding:

where the jury has 1) found guilt as alleged in the indictment and the deadly weapon has been specifically pled as such using deadly weapon nomenclature in the indictment; 2) found guilt as alleged in the indictment but, though not specifically pled as a deadly weapon, the weapon pled is per se a deadly weapon; or 3) affirmatively answered a special issue on deadly weapon use.

Lafleur, 106 S.W.3d at 93 (quoting Davis v. State, 897 S.W.2d 791, 793 (Tex. Crim. App. 1995)); accord Ex parte Huskins, 176 S.W.3d 818, 820 (Tex. Crim. App. 2005); Polk, 693 S.W.2d at 393-94.

We may modify the trial court s judgment and affirm it as modified. Tex. R. App. P. 43.2(b); see Garner v. State, 214 S.W.3d 705, 706-707 (Tex. App. Waco 2007, no pet.); Rachuig v. State, 972 S.W.2d 170, 178 (Tex. App. Waco 1998, pet. ref d).

Jackson argues that the indictment not having alleged the use of a deadly weapon and the jury not having answered a special issue, the court erred in entering an affirmative deadly-weapon finding in the judgment. The State agrees.

The trial court recited in its original judgment the following FINDINGS ON USE OF A DEADLY WEAPON : THE COURT, PURUSANT TO Art. 42.12, 3g(a)(2), FINDS THAT DEFEN DANT USED OR EXHIBITED A DEADLY WEAPON DURING THE COMMISSION OF THE OFFENSE, OR IN IMMEDIATE FLIGHT THEREFROM. (II C.R. at 244; I Supp. C.R. at 4); see Tex. Code Crim. Proc. Ann. art. 42.12, 3g(a)(2).

The trial court has signed a judgment nunc pro tunc as to Count II.[6] The judgment nunc pro tunc recites the following

Findings on Deadly Weapon:

N/A

(I Supp. C.R. at 11, 17.)

The trial court erred in entering an affirmative deadly-weapon finding in the judgment as to Count I.

We sustain Jackson s eighth issue as to Count I, and overrule it as to Count II.

CONCLUSION. Having overruled Jackson s first seven issues and sustained his eighth issue in part, we modify the judgment so as to delete the trial court s findings on use of a deadly weapon as to Count I and, as so modified, affirm.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

(Justice Vance dissents from the judgment)

Affirmed as Modified

Opinion delivered and filed January 30, 2008

Do not publish

[CRPM]

 

[1] By halo, we understand Jackson to refer to a shadow in his and some of the other photographs.

[2] The Court of Criminal Appeals has stated that it is perhaps preferable to plead punishment enhancement allegations in the indictment. Brooks, 957 S.W.2d at 34.

[3] We assume without deciding that Jackson preserved the complaint for appellate review. See Tex. R. App. P. 33.1(a); Faisst v. State, 98 S.W.3d 226, 227 (Tex. Crim. App. 2003) (citing Tex. Penal Code 8.07; Bannister v. State, 552 S.W.2d 124, 130 (Tex. Crim. App. 1977)).

[4] Jackson does not point to any cases holding that a juvenile may not be constitutionally sentenced to imprisonment for life, and we find no opinions by Texas courts, and readily find the court of last resort of only one state, so holding, and that court so holding for sentences of life without parole. See Land v. Commonwealth, 986 S.W.2d 440, 441 (Ky. 1999); Workman v. Commonwealth, 429 S.W.2d 374, 377-78 (Ky. 1968). We readily find Texas law and that of the courts of last resort of several states holding to the contrary. See Willis v. State, No. 06-04-00172-CR, 2005 Tex. App. LEXIS 7113, at *7-*8 (Tex. App. Texarkana Aug. 31, 2005, no pet.) (not designated for publication) (mem. op.) (decided after Roper, 543 U.S. 551); Vie Le v. State, No. 14-94-01265-CR, 1997 Tex. App. LEXIS 5622, at *37-*38 (Tex. App. Houston [14th Dist.] Oct. 23, 1997) (not designated for publication), rev d on other grounds sub nom. Le v. State, 993 S.W.2d 650 (Tex. Crim. App. 1999); Valenzuela v. People, 856 P.2d 805, 808-810 (Colo. 1993); State v. Mitchell, 577 N.W.2d 481, 488-90 (Minn. 1998); State v. Green, 502 S.E.2d 819, 827-34 (N.C. 1998); State v. Jensen, 1998 SD 52, 59-64, 579 N.W.2d 613, 623-25.

[5] As to the relevant law, Jackson cites only capital cases. See Roper, 543 U.S. 551; Stanford v. Kentucky, 492 U.S. 361 (1989); Thompson v. Oklahoma, 487 U.S. 815 (1988) (plurality op.). Those cases are thus distinguishable. As the Supreme Court has often held, death is different in kind from other punishments. Ford v. Wainwright, 477 U.S. 399, 411 (1986); see Ring v. Arizona, 536 U.S. 584, 606 (2002). Jackson does not suggest how Roper, which generally holds that due process of law does not permit capital punishment for crimes committed when the defendant was a juvenile, tends to hold that a defendant is entitled to an instruction limiting the jury s consideration of convictions and adjudications for conduct committed when the defendant was a juvenile, and we find no authority to that effect.

[6] The State argued that the trial-court clerk would file a supplemental record containing a judgment nunc pro tunc that did not contain the deadly-weapon finding. (See Br. at 29); State v. Ross, 953 S.W.2d 748, 751-52 (Tex. Crim. App. 1997). The supplemental record contains two judgments nunc pro tunc signed on the same date. One is captioned Case No. 2006-357-C2  Count i, and the other is captioned Case No. 2006-357-C2  Count ii. (I Supp. C.R. at 11, 17.) Both however, recite, Offense for which Defendant Convicted: AGGRAVATED ROBBERY COUNT II. (Id.) Recitations in the body of a judgment control over the caption. See Armstrong v. State, 781 S.W.2d 937, 942 (Tex. App. Dallas 1989), aff d, 805 S.W.2d 791 (Tex. Crim. App. 1991); In re N.L.H., No. 07-07-0313-CV, 2007 Tex. App. LEXIS 9606, at *3 (Tex. App. Amarillo Dec. 6, 2007, no pet.) (termination of parent-child relationship); Citgo Ref. & Mktg, Inc. v. Garza, 94 S.W.3d 322, 327 (Tex. App. Corpus Christi 2002, no pet.). We understand both judgments nunc pro tunc as affecting only the deadly-weapon finding as to Count II.