Arriaga v. State

• Decision Date: 19 December 2019
• Docket Number: No. 02-19-00099-CR,02-19-00099-CR
• Parties: BRYAN ARRIAGA, Appellant v. THE STATE OF TEXAS
• Court: Texas Court of Appeals

BRYAN ARRIAGA, Appellant
v.
THE STATE OF TEXAS

No. 02-19-00099-CR

Court of Appeals Second Appellate District of Texas at Fort Worth

December 19, 2019

On Appeal from the 432nd District Court Tarrant County, Texas
Trial Court No. 1523268D

Before Sudderth, C.J.; Womack and Wallach, JJ.
Memorandum Opinion by Justice Womack

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MEMORANDUM OPINION

I. INTRODUCTION

Appellant Bryan Arriaga appeals his conviction and forty-five-year sentence for aggravated robbery with a deadly weapon (a firearm). In eight points, Arriaga argues (1) that the State failed to provide him with proper notice that it was seeking to enhance the punishment range in this case, (2) that the enhancement statute that allows for some prior juvenile adjudications to be used to enhance punishment violates the Eighth Amendment's prohibition against cruel and unusual punishment, (3) that the trial court imposed his sentence based on an improper sentencing range, (4) that the trial court considered evidence outside the record when it imposed its sentence, (5) that the trial court abused its discretion by admitting certain photographs and (6) by admitting his videotaped confession, (7) that the trial court erred by failing to instruct the jury on the voluntariness of his confession, and (8) that the trial court failed to file written findings of fact and conclusions of law regarding the voluntariness of his confession. We will affirm.

II. BACKGROUND

The primary facts of this case are not in dispute. Thus, we will address the factual background only briefly to give context to Arriaga's points on appeal. In November 2017, Arriaga and his brother lured Jacob Bateman to a park in Arlington under the guise of purchasing Bateman's PlayStation 4 gaming system. Once Bateman arrived at the park, Arriaga and his brother approached him, and Arriaga

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pointed a gun at Bateman as Arriaga's brother knocked Bateman's phone out of his hand and then retrieved the PlayStation 4 from Bateman's vehicle. After grabbing the PlayStation 4, Arriaga's brother ran away. Arriaga then shot Bateman twice, both times in the abdomen area, and one of the bullets grazed a finger on Bateman's right hand before lodging in his side. Arriaga fled after the shooting.

Emergency personnel soon transported Bateman to the hospital where he underwent surgery. Bateman survived the shooting even though surgeons were unable to remove the bullets from his body. Police later arrested Arriaga, and while in custody, he made a videotaped confession.

Later, on February 9, 2018, the State charged Arriaga with aggravated assault with a deadly weapon (a firearm). On May 17, 2018, the State filed a "Notice of Intent to Seek Punishment Enhancement." The notice stated,

REPEAT OFFENDER NOTICE: AND IT IS FURTHER PRESENTED TO SAID COURT THAT PRIOR TO THE COMMISSION OF THE OFFENSE OR OFFENSES SET OUT ABOVE, THE DEFENDANT WAS FINALLY CONVICTED OF THE FELONY OFFENSE OF BURGLARY OF A HABITATION, IN THE 323RD DISTRICT COURT OF TARRANT COUNTY, TEXAS, IN CAUSE NUMBER 103070-J, ON THE 6TH DAY OF JULY, 2016[.]

On February 21, 2019, Arriaga filed a "Motion to Declare Tex. Pen. Code 12.42(f) Unconstitutional and to Quash 'Brooks' Notice." In the motion, Arriaga argued that the State had served him with notice that it was intending to seek enhancement of the penalty range for aggravated assault with a deadly weapon based on a prior juvenile

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adjudication that occurred when he was sixteen years old and that the enhancement violated the Eighth Amendment's prohibition against cruel and unusual punishment.

At trial, as the State requested to introduce the videotaped confession, Arriaga moved to suppress on the theory that the confession was made involuntarily. After conducting the suppression hearing outside the presence of the jury, the trial court denied Arriaga's suppression motion and made oral findings of fact and conclusions of law, which the court reporter recorded. The State introduced and published for the jury Arriaga's confession.

Ultimately, a jury found Arriaga guilty of aggravated assault with a deadly weapon (a firearm). At the punishment phase, the trial court heard punishment evidence, and Arriaga pleaded "true" to the State's enhancement allegation. The trial court sentenced Arriaga to forty-five years' confinement. This appeal followed.

III. DISCUSSION

Because Arriaga's first three points address issues regarding the sentencing range being elevated in this case based on a prior juvenile adjudication, we will address these three points together. We will then address Arriaga's remaining points in turn.

A. The Law Pertaining to Juvenile Enhancements

In 1995, the Legislature provided that under certain circumstances a felony adjudication in juvenile court can be used as a prior felony conviction for enhancement of punishment in later criminal proceedings. See Tex. Penal Code Ann. § 12.42(f); Tex. Fam. Code Ann. § 51.13(d). The provision applies only if the juvenile

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received a commitment or sentence to the Texas Youth Commission for the felony adjudication. See Tex. Penal Code Ann. § 12.42(f); Tex. Fam. Code Ann. § 51.13(d). It does not apply if the felony adjudication was for a state jail felony. See Tex. Penal Code Ann. § 12.42(a).

The juvenile judgment against Arriaga for burglary of a habitation was a conviction of a second-degree felony for enhancement purposes. See Tex. Penal Code Ann. § 30.02(a)(1), (c)(2). Therefore, when the trial court found the alleged juvenile enhancement to be true, the otherwise first-degree felony of aggravated assault with a deadly weapon (carrying with it a sentencing range of not more than 99 years or less than 5 years) became a repeat-first-degree-felony offense with a punishment range of imprisonment for life or a term of not more than 99 years or less than 15 years. See Tex. Penal Code Ann. §§ 12.32, 12.42(c)(1), 29.03.

1. Notice of Enhancement

In part of his first point, Arriaga argues that the State failed to provide proper notice of his former juvenile adjudication for burglary of a habitation, and thus the trial court erred by enhancing the range of punishment on his aggravated robbery conviction.¹ We disagree.²

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The right to notice of the State's intention to use a prior conviction for enhancement purposes is rooted in due process. Villescas v. State, 189 S.W.3d 290, 293 (Tex. Crim. App. 2006). Under a due process analysis, the issue is "whether appellant received sufficient notice of the enhancements so that he had an opportunity to prepare a defense to them." Pelache v. State, 324 S.W.3d 568, 577 (Tex. Crim. App. 2010). When the State seeks to enhance a defendant's punishment with evidence of a prior conviction, "'[t]he accused is entitled to a description of the judgment of former conviction that will enable him to find the record and make preparation for a trial of the question of whether he is the named convict therein. . . . and if possible show there is a mistake in identity, or that there was no final former conviction or the like.'" Villescas, 189 S.W.3d at 293 (quoting Hollins v. State, 571 S.W.2d 873, 875 (Tex. Crim. App. 1978)). Allegations of a prior conviction for enhancement purposes should include the court in which the conviction was obtained, the time of the conviction, and the nature of the offense. See Cole v. State, 611 S.W.2d 79, 80 (Tex. Crim. App. [Panel Op.] 1981); Hollins, 571 S.W.2d at 876. Prior convictions used as enhancements must be pled in some form, but they need not be pled in the

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indictment—although it is permissible and perhaps preferable to do so. Brooks v. State, 957 S.W.2d 30, 34 (Tex. Crim. App. 1997).

Here, the State's enhancement notice indicated the court where Arriaga was adjudicated for burglary of a habitation. The enhancement notice also stated the date on which the conviction occurred, and it identified the conviction by its trial court cause number. Thus, the State satisfied its burden of informing Arriaga of the court of conviction, the time of conviction, and the nature of the offense. See Cole, 611 S.W.2d at 80; see also Hudson v. State, 145 S.W.3d 323, 326 (Tex. App.—Fort Worth 2004, pet. ref'd) ("Here, the State's notice, which included evidence of three prior felony convictions, each specified by cause number, classification of offense, county of conviction, and date of conviction, was a sufficient pleading that gave notice of the prior convictions that would be used for enhancement of punishment.").

Arriaga argues that the State did not properly notify him because the enhancement notice stated that the enhancement felony had been committed "prior to the commission of the offense or offenses set out above," and the notice itself did not contain a description of "the offense . . . set out above." But as the State points out, the only logical offense "set out above" was the charge of aggravated robbery with a deadly weapon that Arriaga was facing in this case. Indeed, the State filed its notice under the cause number associated with the aggravated robbery charge, and the trial court clerk made the notice part of the clerk's record. Furthermore, Arriaga, in his motion to quash the enhancement notice, was able to identify the adjudication

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with enough specificity to challenge the constitutionality of the statute that allowed the use of the prior adjudication. Given that Arriaga was informed enough to attack the use of the prior adjudication, the State adequately informed Arriaga of the prior adjudication which "enable[d] him to find the record and make preparation for a trial on the question of whether he [was] the named convict therein." Villescas, 189 S.W.3d at 293.

Additionally, this court has already held that an enhancement notice with substantially similar language to the language found in the enhancement notice in this case adequately notified the defendant of the prior conviction. Meyer v. State, No. 02-15-00217-CR, 2016 WL 7487756, at *1 (Tex. App.—Fort Worth Dec. 30, 2016,...