Hughen v. State, 06-07-00093-CR.

• Decision Date: 05 June 2008
• Docket Number: No. 06-07-00093-CR.,06-07-00093-CR.
• Citation: 265 S.W.3d 473
• Parties: Jeffrey Daniel HUGHEN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

265 S.W.3d 473 Jeffrey Daniel HUGHEN, Appellant,
v.
The STATE of Texas, Appellee. No. 06-07-00093-CR. Court of Appeals of Texas, Texarkana. Submitted March 24, 2008. Decided June 5, 2008. Opinion Overruling Rehearing July 16, 2008.

[265 S.W.3d 476]

Steven R. Miears, Bonham, for appellant.

John Setterberg, Asst. County Atty., Richard Glaser, Dist. Atty., Bonham, for appellee.

Before MORRISS, C.J., CARTER and MOSELEY, JJ.

OPINION

Opinion by Chief Justice MORRISS.

When anger and alcohol intersect, unfortunate results can ensue. Jeffrey Daniel Hughen's alcohol consumption, paired with an angry argument with his girlfriend, was followed by serious injuries inflicted on Barry Milhollon by Hughen, Hughen's jury trial and conviction for attempted murder, the enhancement of his sentence allowed near the end of trial, and his sentence of life imprisonment.

In an argument applicable to this case and its companion,¹ Hughen argues that the trial court reversibly erred by denying his motion to suppress a recorded videotaped interview made after he had invoked his right to counsel and by allowing the State to question a detective for the purpose of explaining to the jury what it had just seen on the video recording. Hughen makes two other arguments, relevant only to this appeal: (a) that the trial court denied him due process by-after closing evidence in the punishment phase of trial but before reading the charge and having final arguments—changing its mind and allowing the State to use a prior conviction for enhancement rather than merely as a "bad act"; and (b) that the evidence is insufficient to support his conviction.

We affirm the trial court's judgment because (1) the trial court's decision at the end of trial to allow sentence enhancement was not reversible error, (2) admitting evidence of Hughen's custodial admission was not error, and (3) legally and factually sufficient evidence supports Hughen's conviction.

(1) The Trial Court's Decision at the End of Trial to Allow Sentence Enhancement Was Not Reversible Error

Hughen contends the trial court should not have allowed the State to enhance punishment of this offense under Section 12.42(b) of the Texas Penal Code because the court—having first excluded use of a particular offense as an enhancement (due to "inadequate"² notice by the State)—

265 S.W.3d 477

changed its mind after both the State and Hughen had rested at the punishment stage of trial.

Until the trial court's change of mind, the punishment phase of trial had been conducted under a prior ruling that no enhancement would be allowed. After the trial court's initial ruling that enhancement would not be allowed, the State asked the court to reconsider its ruling. But, with the jury ready to hear the punishment evidence, the trial court took the request under advisement and proceeded with the punishment phase of trial. Had the trial court maintained its earlier ruling to deny enhancement, the applicable range of punishment would have been between two and twenty years' confinement; with the enhancement, the range of punishment jumped to twenty-five to ninety-nine years or life.

With the enhancement denial in place, but the reconsideration under advisement, the punishment phase of trial was conducted and was near its conclusion. Punishment evidence had been received, witnesses had testified and left, and the case was essentially over. Then, the State reurged its request that the court reconsider its ruling on enhancement. The State argued that, so long as the defendant could reasonably identify the alleged prior conviction, it was not mandatory to provide the actual cause number.³ The State further argued that its mistake in naming an incorrect statute number, was in this case, not material, because it was, after all, still an enhancement provision.⁴ After much discussion and amid a flurry of objections from Hughen, the court reversed its ruling. After the court changed its ruling, the State was allowed to reopen the evidence to reintroduce one piece of evidence, the court instructed the jury with the enhancement allegation, Hughen pled "not true" to the enhancement, and the jury assessed punishment at life imprisonment.

Hughen argues that the trial court denied him due process of law because of its ruling and extends his argument to contend that the court's late decision denied his right to effective assistance of counsel.

The State argues that this issue was waived. The State first argues that the issue is not preserved because defense counsel did not object when the State,

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immediately after the initial ruling, stated that it intended to ask the trial court to revisit its ruling at some later point. Counsel's objection at the time of the court's revised ruling sufficiently preserves error, at least as to the objections expressed to the trial court at that time. See TEX.R.APP. P. 33.1.

The State's alternative waiver argument is that counsel's objection was not specific enough to preserve his current claim on appeal. The State's argument is essentially that counsel was not sufficiently precise in his argument to inform the trial court why the State thought the court's decision was erroneous.

For a contention to be raised on appeal, it must have been raised at trial by objection. Ibarra v. State, 11 S.W.3d 189, 197 (Tex.Crim.App.1999); Harris v. State, 827 S.W.2d 949, 957 (Tex.Crim.App.1992). The objection is sufficient to preserve error for appellate review if the objection communicates to the trial court what the objecting party wants and why the objecting party is entitled to relief, doing so in a manner clear enough for the court to understand the objection and request at a time when the trial court is in a position to do something about it. See Lankston v. State, 827 S.W.2d 907, 908-09 (Tex.Crim. App.1992).

In a lengthy discussion with the trial court before it ruled, Hughen's counsel argued that the State's notice was invalid for a number of reasons,⁵ reiterating his prior argument that the State's act of placing in the State's file its original notice of intent to use the priors for impeachment was insufficient to show an intent to use the prior convictions for enhancement and that the documents were inadequate on their face. He also pointed out that surprise was clearly shown as well because the State had made, and Hughen had rejected, a pretrial plea offer of twelve years' imprisonment. That offer was well below the twenty-five-year minimum of an enhanced sentence. Counsel argued, quite cogently, that the defendant demonstrably had understood for quite some time before trial that he was subject to a two- to twenty-year sentence, not a twenty-five to ninety-nine or life possibility.

Counsel also objected to the trial court's ruling on additional grounds. Counsel argued that procedurally—as opening statements had been made at punishment, all evidence had been offered, and both parties had closed—the right to due process of law should prevent the court from allowing enhancement after the fact. He objected that reopening and tendering of evidence on that issue at this point, and re-creating the jury charge at that stage, denied Hughen due process.

On appeal, Hughen complains, not of the merits of the trial court's ultimate decision to allow the jury to consider sentence enhancement, but of the sequence and timing of that decision: an initial decision

265 S.W.3d 479

at the beginning of the punishment phase of trial not to allow enhancement, followed by a contrary decision, made essentially at the end of trial. Hughen suggests that he was without sufficient notice, but the notice of which he now more understandably complains is the extremely late notice of the trial court's ruling on enhancement, not the State's notice of its intent to seek enhancement.⁶ The record reveals that the State consistently said it wanted to enhance Hughen's sentence, but that the trial court changed its ruling at the end of trial. Because of the remarkable, late-trial, change in the court's ruling, Hughen's plight provokes sympathy. We are charged, however, with following where the law leads us based on the facts in the record.

In this instance, taken individually, the actions taken or allowed by the trial court are not erroneous.

A trial court has plenary jurisdiction to reconsider its interlocutory rulings, like that at bar, and retains that ability until a final judgment or order is entered in the cause and the decree becomes final. See Rodriguez v. State, 852 S.W.2d 516, 520 (Tex.Crim.App.1993); Fruehauf Corp. v. Carrillo, 848 S.W.2d 83, 84 (Tex.1993); White v. Baptist St. Anthony's Hosp., 188 S.W.3d 373, 374-75 (Tex.App.-Amarillo 2006, pet. denied); Orion Enters., Inc. v. Pope, 927 S.W.2d 654, 658 (Tex.App.-San Antonio 1996, orig. proceeding). We hear no suggestion of any reason why the trial court's action in changing its mind was outside its authority.

Trial courts also have explicit authorization to reopen testimony to allow additional evidence. Thus, the court's act of reopening the evidence, though it came at the end of the punishment phase and before the charge was read or final arguments made, is not of itself error. Article 36.02 provides that "[t]he court shall allow testimony to be introduced at any time before the argument of a cause is concluded,

265 S.W.3d 480

if it appears that it is necessary to a due administration of justice." TEX.CODE CRIM. PROC. ANN. art. 36.02 (Vernon 2007); see State v. Cowsert, 207 S.W.3d 347, 351 n. 4 (Tex.Crim.App.2006); see also TEX. CODE CRIM. PROC. ANN. art. 36.16 (Vernon 2006).

But, though the individual acts of the trial court were permissible, did...