Barnes v. State

• Decision Date: 24 January 2002
• Docket Number: No. 2-01-048-CR.,No. 2-01-051-CR.,2-01-048-CR.,2-01-051-CR.
• Citation: 70 S.W.3d 294
• Parties: Marshall Webster BARNES, Appellant, v. The STATE of Texas, State. Ex parte Marshall Webster BARNES.
• Court: Texas Court of Appeals

70 S.W.3d 294

Marshall Webster BARNES, Appellant, v. The STATE of Texas, State Ex parte Marshall Webster BARNES.

No. 2-01-048-CR.

No. 2-01-051-CR.

Court of Appeals of Texas, Fort Worth.

January 24, 2002.

Discretionary Review Refused May 22, 2002.

Casey & Colosi, Terry M. Casey, Michael Logan Ware, Forth Worth, for Appellant.

Tim Curry, Crim. Dist. Atty., Charles M. Mallin, Chief of Appellate Section, Michael R. Casillas, Steve Jumes, Sean Colston, Ass't. Dist. Atty's, Fort Worth, for Appellee.

PANEL B: HOLMAN, GARDNER, and WALKER, JJ.

OPINION

GARDNER, Justice.

INTRODUCTION

Appellant, Marshall Webster Barnes was convicted by a jury of the felony offense of burglary of a habitation.¹ The jury found allegations in the enhancement and habitual paragraphs of the indictment to be true and sentenced Appellant to life imprisonment.² In this consolidated appeal, Appellant seeks review of the trial court's denial of his pre-trial application for writ of habeas corpus relief and appeals from his conviction.

In Appellant's appeal from the denial of his application for habeas corpus relief, he argues that his indictment's enhancement paragraph unconstitutionally utilized an April 30, 1973 conviction for theft that had been previously used for enhancement purposes. Specifically, Appellant argues that the trial court's application of Texas Penal Code 12.46, allowing the unlimited use of a prior conviction for enhancement purposes, violates his ex post facto and double jeopardy rights.

In Appellant's direct appeal, he presents two issues. In his first issue, Appellant argues that the trial court erred by denying his requested jury instruction on the defense of entrapment. In his second issue, Appellant contends the trial court erred in denying his request for a mistrial on the ground that the prosecutor made an improper jury argument by injecting his personal opinion that Appellant lied. We affirm the denial of the relief sought in Appellant's application for writ of habeas corpus and affirm Appellant's conviction and sentence.

PRE-TRIAL FACTS AND PROCEDURAL HISTORY

Appellant's August 9, 1999 indictment for burglary of a habitation contained enhancement and habitual offender allegations. Appellant was placed on notice of the State's intent to prove his prior convictions for burglary in 1994 and theft of corporeal property of $50.00 or more in 1973. Appellant filed a pre-trial application for writ of habeas corpus, arguing that the State improperly used his 1994 and 1973 convictions for enhancement purposes. Appellant argued that his 1994 burglary conviction was improperly used because it had been enhanced with his 1973 theft conviction. Appellant also argued that his 1973 conviction had already been used to enhance his 1994 offense and, therefore, could not have been used to enhance any subsequent offenses.

The trial court denied Appellant's claims for habeas corpus relief. Appellant appeals contending that his 1973 conviction cannot be used to enhance any subsequent offenses because that conviction occurred prior to the enactment of section 12.46 of the Texas Penal Code, allowing for unlimited use of a prior conviction for enhancement purposes.

TRIAL FACTS AND PROCEDURAL HISTORY

In early August of 1999, Fort Worth experienced a string of burglaries, all of which occurred in the same manner. Appellant was developed as a suspect, and a SWAT team of officers began surveillance on him. On August 9, 1999, at approximately 10:30 a.m., police watched Appellant as he left his home in his pickup truck and followed him as he drove through several neighborhoods. Fourteen or fifteen officers monitored his movements, accompanied by a police helicopter. Appellant stopped his pickup truck on several occasions at different houses. On each of these occasions, Appellant would leave his pickup truck and approach the house on foot before returning to his pickup truck.

After visiting several houses, Appellant approached the private residence of Walter Williams and his family. Appellant stayed at the front door for a short period of time. Appellant drove through the neighborhood one more time before returning and parking his truck two blocks from the Williams residence.

After exiting his pickup truck, Appellant approached the Williams residence on foot and entered the backyard. While Appellant was entering the backyard, Officer Richard Gomez was getting permission for access to the backyard of the home next to the Williams residence. While the officer was in the neighbor's backyard, he heard the sound of breaking glass coming from the rear of the Williams residence. Approximately thirty minutes later, the officer saw Appellant exit the Williams residence. As Appellant left to get his pickup truck, the officer approached the back of the Williams residence and noticed two punch holes in a window near the back door's locking mechanism.

Before Appellant returned with his pickup truck, the officer returned to a place where he could observe Appellant as he drove his pickup truck into the Williams garage and closed the garage door behind him. After Appellant closed the garage door, the police decided they would arrest him when the garage door opened again. Appellant opened the garage door a few moments later and officers moved in to make the arrest.

Officer Detrick Jones entered the garage and found Appellant in the bed of the pickup truck. When the officer announced himself as a police officer, Appellant looked surprised and bolted back into the Williams residence. After kicking in the door, the officer quickly apprehended Appellant inside the Williams residence.

Officers found several pieces of the Williams family jewelry in Appellant's pockets and found several pieces of the Williams family personal property stacked in a manner that would facilitate its being stolen. Williams testified that he did not know Appellant, nor did he give Appellant permission to enter his home or take his property.

At trial, Appellant testified in his defense that, approximately two months before, while looking at a house for lease, he had been detained by officers who threatened to arrest him for possession of a burglary tool unless he agreed to help them build cases against two "fences," people who bought and sold stolen property. Appellant claimed that, through his dealings with Sergeant G.M. Pruitt, Officer Gene Jones, and Officer Paul Davis, he had sold property that had been supplied to him by the police to the two fences. Appellant testified that Sergeant Pruitt thereafter told him that he would have to acquire more property on his own to fence "that was recently taken out of a burglary or something" because the property furnished to him by police was too old to trace.

Appellant further testified that Officer Pruitt told him that the police would "cover [his] back" but that he would go to jail if he did not assist them. Appellant also testified that, when he was found in the Williams residence, he was not taking the property of his own intent or design. When cross-examined, Appellant testified that he was not guilty of burglary because the police coerced him into committing the crime.

Officers Pruitt, Jones and Davis testified at trial that they had made no such deal with Appellant, nor had they coerced him into committing the burglary. The officer that had initially detained Appellant two months prior to the day of the Williams burglary testified that he only held Appellant for fifteen minutes and that no one encouraged or coerced him to work undercover with the police. The officer that transported Appellant from the crime scene at the Williams residence testified that Appellant made the statement, "You got me on this one." The same officer also indicated that Appellant said he was not going to "give up his fence." Based on the evidence presented regarding Appellant's activity at the Williams residence, the jury found Appellant guilty of burglary of a habitation.

During the sentencing phase of Appellant's trial the State proved up prior convictions of theft of corporeal personal property, burglary, theft of property over $50.00, burglary of a habitation, two convictions for robbery, and another burglary. Appellant also admitted to a 1993 conviction for misdemeanor theft. Consistent with section 12.42(d) of the Texas Penal Code, penalties for repeat and habitual felony offenders, the jury sentenced Appellant to life imprisonment.

DISCUSSION

I. Appeal from Denial of Habeas Corpus Relief

In Appellant's appeal from denial of his petition for habeas corpus relief, he contends that the State's repeated use of his 1973 conviction for theft for the purpose of sentencing enhancement violates both the Texas and United States Constitutions. Specifically, Appellant argues that the State's repeated use of his 1973 theft conviction to enhance both the 1994 and 2001 sentences violates both his ex post facto and double jeopardy rights.

Habeas Corpus Standard of Review

We have jurisdiction to review the decision of the trial court in denying habeas corpus relief. Tex.R.App. P. 31.1; Ex parte Dixon, 964 S.W.2d 719, 722 (Tex.App.-Fort Worth 1998, pet. ref'd). We review the record as it existed before the trial court at the habeas hearing to determine whether the court erred in failing to grant relief. Ex parte Dixon, 964 S.W.2d at 722. In reviewing the decision of the habeas court, we review the findings in the light most favorable to the ruling and uphold the decision absent an abuse of discretion. Id.; Ex parte Primrose, 950 S.W.2d 775, 777-78 (Tex.App.-Fort Worth 1997, pet. ref'd). The Appellant bears the burden of proof at the habeas proceeding. Ex parte Kimes, 872 S.W.2d 700, 703 (Tex.Crim.App.1993); Ex parte Storm, 49 S.W.3d 401, 402 (Tex.App.-Fort Worth 2000, no pet.).

Ex Post Facto

Appellant initially asserts that the trial court's enhancement of his 2001 burglary conviction with his 1973 theft conviction, which had already been used to...