### TEXA S C OU R T OF A PPEAL S, THIR D DIST R ICT , AT AU STIN

NO. 03-0 5 -00 801 -CR

Ja spe r Ear l F os te r , A ppe lla nt

v. The State of Texas, App ellee

F ROM THE DISTRICT CO URT OF HAY S COUNTY , 22ND JUDICIAL DISTRICT NO. CR-04 -87 0 , HO NORAB LE GARY L. STEEL , JUDGE PRESIDI NG

M E M O R

A N D U M O P I N I O N A j ur y c on vict ed app e lla

nt Ja sp e r E arl F os te r o f m ur de r a nd a sse sse d p un ish me nt, enhanc ed by

three previous fe lony

convictions, at 80 y ear s in pr ison. On appea l, Foster c ontends that the trial cour

t erre d in denying F oster’s r equeste d charge on the lesser included off

ense of manslaug hter a

nd by failing to require the S tate to prove that Foster ’s pre vious convictions refe rre d to i n th e e nh anc e me nt p ara g ra ph s o f t he ind ic tme nt w e re fi na l c on vic tio ns . We a ff ir m. I n November

2000, Foster

w a s in c a r c erated following two convictions for posse ssion of a c ontrolled substance . He wa s re l ea s ed from prison in J une 2004 and r eunited with his wife, T e r r i, an d th e ir 1 7
- y e ar - o ld s o n , E r ic
. A c c o r d in g to E r ic , b e f o r e h is f a th e r r e tu r n e d f r o m pr is o n , “ [i ]t
wa s th e b e s t t

h a t i t h a d e v e r b e e n . ” H e te s ti f

ie d th a t wh e nh is f

a th e r r e tu r n e d h o me , h o weve r, his mot he r became “dep res se d” and “ wa sn ’t re a lly inv olv e d w ithhe r f

ri e nd s a s mu c h a s sh e wa s,2

and we didn’t talk as much af ter he came back, a

nd she just wasn’t the f

un-loving person that she had bee n befor e.”

Foster testified that when he returne d from prison, Terr i admitted that she had be en unfaithful, but that they

ag ree d to rec ommit and “ever y thing wa s water under the bridg e.” Howeve r, on Aug ust 13, Foster w ent to Terr i’s place of employm en t and saw“her and a g entleman hug and then I saw him run his hands down the ba ck—down the ba ck par t of her body .” Jeff I very , a close fr iend of Foster ’s, t estified that a couple of weeks before the mur der, F oster told him that Terri was “ possibly

seeingsomeone” and that F oste r s ee m ed “re ally , rea lly upset.” Ivery

testified that althoug h he had no rea son to believe that there w as a history of phy sical abuse betwee n the couple, he told Foster , “re g ardle ss of what [ y o u ’r e] go i n g throug h, please don’t eve r put y our hands on [Terri] or any

thing.” On the evening of October 1, 2004, Foster and Terr i w ent to Ba b y Ac ap u lco restaur ant with some of Te rri’s c oworke rs. Acc ording to Foster, the re w as “some te nsion” betwe en him and Terr i at Ba

by Aca pulco because Terri wa s arguing w ith her sister. When the couple left the restaur ant, they

picked up Er ic from a

volley ball g ame a

nd returne d home. Eric te stified that when they g ot home, he overhea

rd hi s pare nts “discussing g etting a divorce .” He testified that his mother
came into his room and “told me to c all my aunt
. . . [t ]o come and g et [Foster].” Eric called his a unt
and br ou g ht t he ph on e to F os te r. Er ic te sti fi e d th a t T e rr i to ok the ph on e awa

y fr om F os te r a

nd tol d his aunt t hat Foster “was g oing to kill the t hree of us.” Foster then s lapped the phone out of Ter ri’s hands, and Eric ran outside and called 911. Whil e Eric was outside, Foster stabbed Terr i four times in the back w ith a knife.3 When the police ar

rived, the door to the house wa s locked. Er ic testified that “f rom the door we could hea

r noi ses. . . . I was asking the police officer if he could hurry up, beca use fr om the sounds that [Foster] was making I fig ured that he wa s hurting my mother.” F oster later

told the police that he was cutti ng limes befor e he slapped the phone awa y from Te rri and that he forg ot he had a knif e in hi s hands when he st abbed her. Eric testified, howeve r, t hat his father was not cutting limes at any

time on the night of

the murder
. On No ve mbe r 1 0, 20 04 , F os te r w a s in dic te d f or “ kn ow ing ly

and int e nti on a lly caus[ing] the de at h o f Terri Ly nn Foster by stabbing her w ith a knife.” The indictment conta ined two enhanc ement parag raphs. Parag raph Irec ounted two pre vious felony convictions for posse ssion of a c ontrolled substance on Fe bruar y 7, 2001, and J anuar

y 25, 2001, and Parag raph I Irec ounted a previous fe lony conviction for burg lary of a ve hicle on Oc tober 30, 1989. The State broug ht Foster to trial befor e a jur

y on his plea of not guilty . At the close of the evidenc e, the tria l court denie d Foster ’s re quest for a

n instruction in the char g e on the lesser inc luded offe nse of mansla ug hter. The jury returne d a guilty

verdic t and assesse d punishment at 80 y ear s in prison. I n his f irst issue, Foster contends that the trial court err ed by failing to c harg e the jury on the lesser

included off

ense of manslaug hter. W e review the trial court’s decision for a n abuse of discretion. Thr e ad

gil l v . S tate , 146 S.W .3d 654, 666 (Tex. Crim. App. 2004). A c ha rg e on a le sse r i nc lud e d o ff

e ns e mus t be g ive n if

(1 ) the le sse r i nc lud e d o ff e ns e is i nc lud e d wi thin the pr oo f n e c e ssa ry to e sta bli shthe c ha

rg e d o ff e ns e , a nd (2 ) t he re is some evidenc e in the re cord t h at would permit a jury rationally

to find that, if the def

endant is guilty , he is g uilty

only of the lesse r off

ense. Ro us se au v . S

tate , 85 5 S
. W
. 2 d 6 6 6 , 672-73 (T e x. Cr im. Ap p. 19 93 ); see Tex. Code Crim. P roc. A nn. art. 37.09 (West 2006).4 Manslaug hter is a lesse r included of fense of murder
. Mo or e v . S tate , 969 S.W .2d 4, 9 (Tex. Crim. App. 1998). A person c ommits m anslaug hter if he rec klessly cause s the death of
ano the r. Te x. Pe na l Cod e Ann. § 19 .0 4( a ) (We st 20 03 ). “ A pe rs on a c ts re c kle ssl y , or is r e c kle ss, wi th r e sp e c t to
. . . th e re su lt o f h is c on du c t w he n h e is a wa re of bu t c on sc io us ly di sre gards a substantial and unjustifia b l e ri sk that . . . the result will occur .” Id. § 6.03(c) (West 2003). On appea l, Foster c ontends that his knowledg e of Te rri’s r elat i o n s h ip with another man c reated a “volatile situation” and that he ac ted “r eckle ssly ” at the time he cause d her de ath. Althoug h the
rec ord does c ontain evidenc e that F oster wa s awa re of and upset by

Terr i’s unfaithfulness, F oster te sti fi e d at tr ia l th a t, at th e tim e he sta bb e d T e rr i, h e wa s una

wa re of the re su lt o f h is a c tio ns :
State: All rig ht. You’ve g ot to tell this jury what y ou did ne x t. Mr. Foster ,

wh a t di d y ou

do ne xt? Foster : I

—Istabbed her. I stabbed Terri. Ididn’t rea lly —Ididn’t rea liz e that Iha d a kn if e in my ha nd s. State : Wer e y ou

in c on tr ol o f yours e lf

a t th is p oin t? Foster : No sir. I t happene d in a matter of ten sec onds. I t w as just that quick, te n s e c on ds
. State: Do y ou think it’s—do y ou think it was ten sec onds later that you

rea liz ed what y ou had done? F os te r: Ye s.
There fore , acc ording to his own version of eve nts, Foster w as not aw ar e o f h aving ca used Ter ri’s de a th at th e tim e of

the sta bb ing . The re is e vid e nc e that su pp or ts a n in fe re nc e that F os te r w a s f ull y
awa re of his a c tio ns . N e ve rt

he le ss, e ve n if

on e a ssume d th a t F os te r’ s v e rs ion of e ve nts wa s th e on ly5

evidenc e off

ere d at trial, there would still be no evidenc e that would per mit a jury to rationally

find that, at t he ti me of the s tabbing , Foster was aware of, but consciously disreg arde d, a subst antial and
un jus tif ia ble ri sk that T e rr i w ou ld d ie a s a

re su lt o f h is c on du c t. T he cour t of criminal appe als addre ssed a similar situation in S c h r o e d e r v . Stat e , 123 S.W .3d 398, 401 (Tex. Crim. App. 2003). I n that case , Schroede r appe aled h is murder conviction, ar g uing that the trial court e rre d by failing to instruct the jury on the les s er included of fe ns e of mans la ug hter . A t tr ia l, S c hr oe de r t e sti fi e d th a t a lth ou g h h e re me mbe re d th e e ve nts leadingup to the shooting, he suddenly “blac ked out” a

nd had no re collection of actually shooting the victim. Id. The court held that “[e]vidence of a def endant’ s inability

to remembe r ca

using the d ea t h o f t h e v ictim does not entitle the defe ndant to a cha rg e on the lesse r-include d offe nse of manslaug hter, and the trial court did not err by not submitting such a c harg e to the jury .” Id . The
c ourt of c ri min a l a

pp e a ls h a s n ote d th a t “ it is dif fi c ult to u nd e rs tand ho w a pe rs on may ‘c on sc iou sly disreg ard’ a risk of which he is unawa re.” Id. Acc ording ly , Foster ’s claim that he w as unaw are of his c on du c t and

any ri sk s a sso c iate d w ithhis c on du c t at th e tim e he sta bb e d T e rr i c ann ot s up po rt a char g e on the lesse r included of fense of m anslaug hter based on a claim of rec klessness. Thus, the trial court did not er

r by ref using the manslaug hter instruction. I n his second issue, F oster conte nds that the trial cour t erre d by failing to require the State to prove that the pr evious convictions re fer red to in the first enhanc ement par ag raph of the indictment were final convic tions. The State must prove that a c onviction is final before it can be used for enhanc ement purpose s. Ha rv e yv . S tate , 61 1 S.W. 2d

10 8, 11 1 ( Te x. Cr im. Ap p. 19 81 ); see Tex. P en al Code Ann. § 12.42(b) (West Supp. 2006). Howeve r, a de fenda nt’s plea of

true to an enhanc ement par ag raph r elieves the State of that burde n. Harve y , 611 S.W .2d at 111.6 I n thi s case , Foster

pleade d true to the e nhance ment para g raphs a nd the re cord contains no evide nce a ffirmatively showing that the convictions wer e not f inal. Thus, the State was relieve d of its burden of pr oving the finality of the c onvictions. Ha rri so n v . S tate , 950 S.W .2d 419, 42 2 ( Te x. Ap p. —H ou sto n [1s t D ist .] 19 97 , p e t. r e f’ d) ; se e J oh ns on v . S

tate , 784 S.W .2d 413, 414 (Tex. Crim. App. 1990) (“Af ter the State e stablished that a defe ndant has been previously convicted, this Court wil l presume that a conviction is final when f ace d with a silent rec ord reg ardingsuch.”)
. Foster also contends that the State did not prope rly al l ege that the pre vious convictions in the first enha nceme nt para g raph w ere final convic tions. This enhance ment para g raph of the indictment provided:
I t is further prese nted i n and to said Court at said ter m that prior to the commission by him of the pr ima

ry of fe ns e , th e De fe nd a

nt w a s c on vic te d o f a

fe lony , to wi t:
on or a bo ut F e br ua ry 7, 20 01 , in Cau se No . 7 30 4 in the 8th Di str ic t Co ur

t of F ra nk lin County , Texas, t h e Defenda nt was convic ted of the of fense of Possession of a Controlled Subst ance —coca ine in the amount of at l east 4 g rams but less than 200 g ra ms; on or about January

25, 2001, in Cause No
. 9 9 5 336 in the 167th District Court of Travis County , Texas, the Def endant was c onvicted of the offe nse of Possession of a Controlled Substance—c ocaine in the amount of at least 4 g rams but less than 200 g rams . . . .
This para g raph does not, by its terms, allege that the pre vious convictions in cause numbe rs 7304 and 99 53 36 we re “ fi na l c on vic tio ns .” Ho we ve r, sin c e the purp os e of the e nh anc e me nt p ara g ra ph s is to pr ov ide no tic e , “ it i s n ot n e c e ssa ry to al le g e pr ior c on vic tio ns fo r the purp os e of e nh anc e me nt w ith the same pa

rticularity which must be used in cha rg ing on the primary

offe nse.” W

ill iam s v . S

tate , 980 S.W .2d 222, 226 (Tex. App.—Houston [14t h Dist.] 19 9 8 , pet. re f’d) (quoting Fr e da v . S tate ,Foster seems to ar g ue that the allegations in the indictment wer e def ective be cause he wa s 1 place d on probation in ca

use numbers 995336 and 7304. Howeve r, there is no evidence in the rec ord to t he e ff e c t th a t he wa s pla c e d on pr ob a tio n fo r t he se c on vic tio ns . Ins te a d, the pe n p a c ke ts f or bo th convictions show that Foste r wa s sentence d to five y ear s in prison in cause number 995336 and s e v e nye ar s i np r i s o ni nc a u s e nu mb e r

7 3 0 4 o nJ anu ar

y 2 5 , 2 0 0 1 , an d

F e b r u ar y 2 , 2 0 0 1 , r e s p e c t i v e l y. Th e re is e vid e nc e that F os te r ha d be e n pla c e d on c omm un ity su pe rv isi on fo llo wi ng a

st ate jail felony —possession of a c ontrolled substance —that occur red on A pril 19, 1997, in cause number 09 72 53 3, and

that hi s c omm

un ity su pe rv isi on wa s r e vo ke d o n Jan

ua ry 25 , 20 01
. Ho we ve r, the re is no re fe re nc e to c a

us e number 09 72 53 3 in th e e nh anc e me nt p ara g ra ph s in the ind ic tme nt i n this cause. 7 704 S.W .2d 41, 42 (Tex. Crim. App. 1986)). For example, the date on which the prior convic tions beca me final need not be a lleg ed. Ho lli ns v . S tate , 571 S.W .2d 873, 876 n.1 (Tex. Crim. App. 1978). Nor is it nece ssary

to alleg e the se quence of the prior convictions. Se e J

ing le s v . S tate , 752 S.W .2d 126, 129 (Tex. App.—Houston [14t h Dist.] 1987 , p et
. re f’d) . Rather, the notice must enable the
acc used “to find the record and make prepar ation for a trial of the que stion whether he is the convict named ther ein.” Br own v . S tate , 636 S.W .2d 867, 868 (Tex. App.—For t Worth 1982, no pet.). Her e, the alleg ations in the enhanc ement para g raph include the courts in which the convictions wer e obtained, the cause numbers in which the convictions wer e obtained, the time of the convictions, and the nature of t he offenses. Foster pleade d true to the e nhance ment para g raphs
a t tr ia l, a nd pe n p a c ke ts c on ta ini nginf or matio n f ro m bo th p re vio us c on vic tio ns we re int ro du c e d in to evidenc e without objection. The pen pac ket for c ause numbe r 995336 g ives J anuar y 25, 2001, as the “Date Sentence was Imposed,” a nd the pen pa cket f

or cause number

7304 g ives F e br ua ry 7, 20 01 , a s th e “ Date of Judg me nt. ” On thi s re c or d, we c on c lud e that the a lle g a tio ns in 1 the e nh anc e me nt p ara g ra

phg a ve F os te r a de qu a te no tic e to p re pa re fo r t ri a l.8 Affir med.

__________________________________________ G. Alan Waldrop, Just ice Be fore J ustices Patterson, Pember ton and Waldrop Affir med Filed: May

17, 2007 Do No t Pu

bli sh