NO. 07-09-00319-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL C NOVEMBER 9, 2010

DAVID TULIO RODRIGUEZ, APPELLANT

v. THE STATE OF TEXAS, APPELLEE

FROM THE 84TH DISTRICT CO URT OF HUTCHINSON COUNTY; NO. 10,257; HONORABLE WILLI AM D. SMITH, JUDGE

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINION Appellant, David Tulio Ro driguez, was convicted of aggravated assault 1 of a public servant. 2 The jury assessed appellant’s punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice (ID-TDCJ) for 50 years and a fine of $10,000. Appellant appeals contending that the evidence is insufficient to sustain the judgment and that the trial court committed re versible error by not reading

1 See T EX

. P ENAL C ODE A NN . § 22.01(a)(2), § 22.02(a)(2) (Vernon Supp. 2010).

2 See id . § 22.02(b)(2)(B) (Vernon Supp. 2010).2 the enhancement paragraphs to the jury and/or by failing to have appellant enter a plea to the enhancements. Disagreeing with appellant, we affirm.
Factual and Procedural Background
On November 9, 2008, Sergeant Josh Akin s of the Fritch Poli ce Department was on duty conducting traffic patrol in Fritch, Texa s. Akins’s attention was drawn to the Taylor Mart where he observed a male carryi ng a trash can to the fr ont of the store. Since it was 12:30 a.m. and the store was clos ed, Akins found this to be suspicious conduct. As Akins continued to observe t he store, he observed another male throw something through the door, and then the first male went into t he store. R ealizing that he was observing a burglary in progress, Akins called for a backup unit and proceeded without any emergency lights or sir en to go to the front of the st ore. As Akins pulled up to the front of the store, both individuals began running away. Akins proceeded to pursue them on foot while gi ving verbal commands for them to stop. Akins later identified the first man as the co-defendant, Jose Martinez. The second male, the one who entered the store, was ev entually identified as appellant. He eventually stopped Martinez by telling him to stop or he would “t aze” him. As Akins was putting the handcuffs on Martinez, he observed appellant go around the corner towa rd the back of the
store.
While continuing to attempt to get t he hand-cuffs on Martinez, Akins noticed a vehicle, later identified as a golden-colored Pontiac Firebi rd. Akins realized that the dome light in the interior of the vehicl e was on. That struck him as unusual, and he decided that, after cuffing Ma rtinez, he would approach the vehicle. Akins observed3 appellant run from the back of the store to the vehicle and begin searching through the car. Fearing appellant was looking for a weapon and knowing Martinez did not have any weapons on him, Akins approached the vehi cle. Akins began drawing his weapon as he approached the vehicle. While approachi ng the vehicle, Akins told appellant not to move. Akins ended up in front of the driv er’s side of the car looking directly at appellant. Akins testified that the uniform he was wearing at trial was the same uniform he had been wearing during t he encounter with appellant.

At the moment Akins was in front of the car, appellant “gunned” the car. Akins testified that the car spun its tires, and he ju mped to the side to avoid the vehicle. The rear of the car came directly at Akins, and he had to again st ep out of the way. Akins testified that he was afraid that the car was going to hit him. As the car left, Akins fired one round from his service revo lver at the rear tire. Appellant escaped and was not identified and captured until several days late r. Appellant was charged with aggravated assault on a public servant. 3
During the State’s presentat ion of evidence, co-defendant Martinez was called as a witness. Martinez testified that, after he had handed the trash c an to appellant inside the store, he stayed outside to act as a look out. Martinez observed Akins driving toward the store and told appellant, “There is a cop beh ind us.” It was at this time that both Martinez and appellant tried to flee.

3 The original indictment cont ained a second count of burgl ary. However, the trial court granted a motion for directed verdict against the State at the conclusion of the State’s case.4 Prior to the trial, the State filed a notice to seek enhancement of felony punishment range of the aggravated assault on a public servant count in the indictment. In the notice, the State alleges that appellant has three prio r felony convictions. After the jury found appellant guilt y of aggravated assault on a public servant, the State offered evidence to prove up the three prior felony convictions. However, the prior felony convictions were not read to the jury, nor did appellant enter any type of plea to these prior convictions, before the State offer ed proof of the priors. The Court’s Charge on Punishment did contain the allegations of the three prio r felony convictions and an application paragraph as to those prior convic tions. The jury subs equently returned a verdict of confinement in the ID-TDCJ for 50 years with a fine of $10,000.
Appellant has appealed contendi ng that the evidence is both factually and legally insufficient to support the judgment. S pecifically, appellant contends that the evidentiary insufficiency goes to the elemen t of appellant’s knowle dge that Akins was a public servant. Additionally, appellant contends that the failure of the trial court to require the enhancement paragraphs to be r ead and to obtain a plea from appellant render the judgments reversible. We disagree and affirm.
Evidentiary Sufficiency

As an initial consi deration, we observe that appel lant’s appeal contends that the evidence is both legally and factually insuffi cient. Appellant’s brief was prepared and filed before the Texas Court of Criminal Appeals i ssued its opinion in Brooks v. State , No. PD-0210-99, 2010 Tex.Cr im.App. LEXIS 1240 *25-*26 (Tex.Crim.App. Oct. 6, 2010), wherein the court ruled t hat there is no distinction be tween a claim of legal as5 opposed to factual insufficiency of the evidence . Further, the court expressly overruled Clewis v. State , 922 S.W.2d 126 (Tex.Crim.App. 1996), and its purported application to factual sufficiency questions. Id . at *55. What the court appears to do is to urge the reviewing court to apply a more rigorous applic ation of the sufficiency test set forth in Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Id . at *58. Therefore, we will review appellant’s cl aims of evidentiary sufficiency under the standard of review set forth in Jackson . See 443 U.S. at 319.

Standard of Review
In assessing the sufficiency of the evidenc e, we review all the evidence in the light most favorable to the verdict to deter mine whether any rational trier of fact could have found the essential elem ents of the offense beyond a reasonable doubt. Jackson , 443 U.S. at 319; Ross v. State , 133 S.W.3d 618, 620 (Tex.Crim.App. 2004). We measure the legal sufficiency of the evidenc e against a hypothetically correct jury charge. See Malik v. State , 953 S.W.2d 234, 240 (Tex.Crim.App. 1997). Finally, when reviewing all of the evidence under the Jackson standard of review, the ultimate question is whether the jury’s finding of guilt was a rational finding. See Brooks , 2010 Tex.Crim.App. LEXIS 1240 at *37 (discussing Judge Cochran’s dissent in Watson v. State , 204 S.W.3d 404, 448-50 (Tex.C rim.App. 2006) as outlinin g the proper application of a single evidentiary standard of review). 4

4 We note that this Court has at times quoted Moreno v. State , 755 S.W.2d 866, 867 (Tex.Crim.App. 1988) for the proposition that we had to uphold the verdict of the jury unless it was irrational or unsupported by more than a mere modicum of evidence. We view such a statement, insofar as a mo dicum of evidence being sufficient evidence,6 Analysis
To prove the offense of aggravated ass ault on a public servant by use of a deadly weapon, as alleged in the indi ctment, the State must prove:
1) On or about November 9, 2010 2) appellant 3) intentionally and know ingly used a deadly weapon, 4) an automobile, that in the man ner of its use and intended use was capable of causing serious bodily injury or death, 5) and appellant did then and t here, threaten Josh Akins 6) with imminent bodily injury or death 7) and that appellant knew that Josh Akins was a public servant, 8) attempting to lawfully discharge an official duty, 9) attempting to detain appellant.

See T EX

. P ENAL C ODE A NN . §§ 22.01(a)(2), 22.02(a)(2), 22.02(b)(2)(B); Malik , 953 S.W.2d at 240. Appell ant’s evidentiary sufficiency argu ment is focused on whether he had knowledge that Akins was a p ublic servant. Therefore, we will review the record for evidence of that element.
The record shows that on the night in question Akins was on duty as a Fritch Police Department Sergeant. Akins was dr iving a vehicle that had emergency lights and equipment on it when he observed the burglary in pr ogress and proceeded to the

as contrary to a rigorous application of the Jackson standard of review urged by the Court in Brooks

.7 Taylor store without activating his emergen cy equipment. Akins testified that he was wearing the same uniform on the night in questi on that he wore on the day he testified. That uniform was observed by the jury. The co-defendant, Martinez, testified that, while acting as lookout, he saw Akins’s car approac hing the Taylor stor e and stated to appellant, “There is a cop behind us.” At that precise moment, appellant and Martinez fled the store. While pursui ng the two fleeing burglars, Akins yelled, “Stop or I will taze you.” At that instance, Ma rtinez, who was closer to Akins, stopped and went to the ground. After attempting to secure Martinez, Akins saw appellant in the vehicle and went toward him. Akins, while wearing his uniform, stood directly in front of the vehicle being driven by appellant. Further, Akins te stified that he made di rect eye contact with appellant while standing in front of the vehicle. The jury also saw the video of burglary from the security camera in the store. Du ring the examination of Martinez, the DVD was played, and Martinez identified the officer getting out of his patrol vehicle. The jury also observed this.
In light of this record, when viewed in t he light most favorable to the verdict, was the jury acting rationally when it found appellant guilty beyond a reasonable doubt? Jackson , 443 U.S. at 319; Ross , 133 S.W.3d at 620. We think so, and, thus, overrule appellant’s issue regarding the sufficiency of the evidence.
Enhancement Allegations
Appellant’s final point is that the trial court committ ed reversible error when the punishment phase of the trial commenc ed without the reading of the enhancement paragraphs and by failing to requ ire appellant to enter a pl ea to those allegations.8 Appellant defines his issue wi thin the framework of articl e 36.01(a)(1) Texas Code of Criminal Procedure. 5 For purposes of our analysis, we will assume, arguendo, that the trial court erred in not having the enhancem ent document read and in not receiving appellant’s pleas to the allegat ions prior to commencing t he punishment portion of the trial.

Standard of Review
Appellant contends, at least by implication, that we must review the actions of the trial court under an abuse of discretion standard of review. According to appellant’s reasoning, the Texas Court of Criminal Appeals decis ion in Turner v. State , 897 S.W.2d 786 (Tex.Crim.App. 1995), controls the outcome of the case before the court. Turner concerned a charge of driving while license suspended with a prior conviction for the same offense alleged in the information to raise the punishment range from a Class B misdemeanor to a Class A misdemeanor. Id . at 787. In Turner , as in the case before this Court, the trial court di d not have any enhancement allegat ion read, nor did the trial court receive the defendant’s plea to the en hancement allegation. Ultimately, the court in Turner found that the trial court’s action was e rror, and that the error was not subject to a harm analysis. Id . at 789. Appellant asks us to apply the same reasoning.
The State counters that, because the enhan cement allegations were not read to the jury and no pleas were entered, the issues involved in the enhancements were never joined. See Warren v. State , 693 S.W.2d 414, 415 (T ex.Crim.App. 1985).

5 Further reference to the Texas Code of Criminal Procedure will be by reference to “article _____.”9 Further, the State contends since the appellant was punished within the range of a firstdegree felony, the applicable range for the o ffense appellant was convicted of, there was simply no error. Id

. We find that appellant’s reliance on Turner is misplaced. First, Turner involved a fact scenario not present in our case, that is the enhancement allegations were contained in a paragraph within the chargi ng instrument. Second, since Turner was handed down, the Texas Court of Criminal Appeals has determined that enhancement allegations do not need to be contained within the body of the primary charging document. See Brooks v. State , 957 S.W.2d 30 (Tex.Crim.App. 1997). This decision implicates the basic u nderpinnings of Turner : that the trial court wa s required to strictly comply with the terms of article 36.01, and that such compliance was not subject to any harm analysis under Texas Rule of Appellate Procedure 81(b)(2). 6 Finally, under the provisions of Rule 44.2, we are instructed to review alleged error, constitutional or nonconstitutional, for harmlessness. See T EX

. R. A PP

. P. 44.2. 7
We, likewise, do not apply the principles of Warren because the factual scenario does not support the same conc lusion in our case. See 693 S.W.2d 414, 415. In Warren , the defendant objected to the failure to read the enhancement paragraphs after the jury punishment verdict was received but before sentence was pronounced. Id

. The trial court crossed out the references to the enhancements out of the judgment and

6 Texas Rules of Appellate Procedure we re amended effective September 1, 1997, and the current rule 44.2(b) was enacted.

7 Further reference to the Texas Rules of Appellate Procedure will be by reference to “Rule ___” or “rule ___.”10 sentence and took the position that t he issue was not properly raised. Id . However, the Texas Court of Criminal Ap peals said the issue was pres erved, reversed the judgment and sentence, and sent the case back to the trial court. Id . In our case, there is no question about the fact that the issue now co mplained of by appellant was not raised by objection or motion for new trial.
The proper standard for review of this case is as a charge error. See Marshall v. State , 185 S.W. 3d 899, 903 (Tex.Crim. App. 2006). As in Marshall , the jury charge contained specific par agraphs referencing the specific al legations of prior convictions and the application of each to a punishment verdict. Yet, app ellant did not object that there had been no enhancement allegations r ead to the jury and that he had not pleaded to any enhancement all egations. Finally, there was a motion for new trial filed in this case, yet the motion makes no re ference to the enhanc ement allegations. Therefore, we find ourselves reviewing the alleged c harge error pursuant to the egregious harm standard set fort h in Almanza v. State , 686 S.W.2d 157, 171 (Tex.Crim.App. 1984). Id

. Analysis
When evaluating harm, we assess the har m in light of the entire record. Id . Any error caused will be considered egregious error if it affects the very basis of the case and deprived the defendant of a val uable right or vitally affected a defensive theory. Drury v. State , 225 S.W.3d 491, 504 (Tex.Crim.App. 2007) (citing Hutch v. State , 922 S.W.2d 166, 171 (Tex.Cri m.App. 1996)).11 During the presentat ion of the State’s ca se on punishment, th e only witness was the fingerprint expert. The only exhibits we re the “pen packets,” introduced to prove up appellant’s prior convictions. When appellant testified duri ng the punishment phase, he acknowledged the prior convicti ons and, very importantly, he acknowledged that if the jury found the allegations of the prior convictions true he would be facing a minimum sentence of 25 years incarceration in the ID-T DCJ. However, the thrust of appellant’s testimony was that he had always been conv icted of burglary but had never been a violent offender. When the charge was prepar ed the jury was advised of the three priors alleged in the State’s filing of the notice of intent to seek enhancement of punishment pursuant to § 12.42(d). Further, the jury was advised about the application of each factual scenario, a finding of true as to one, two, or all three of the prior felony convictions. Finally, during the argument of the punishment phase, appellant argued he had never been a violent person and the amount of time he would have to serve if the jury found that appellant had commi tted all three prior felonies. Essentially, this case demonstrates that the core or ultimate iss ue before the jury was the appropriate amount of prison time to which appellant would be sentenced. The State and appellant each had a theory of how the jury was to arrive at that term. The failure to read the enhancement paragraphs or receive a plea to t hose paragraphs did nothing to alter this determination. Any supposed harm we c ould outline would be theoretical and, therefore, not the actual ha rm required to be shown. See Dickey v. State , 22 S.W.3d 490, 492 (Tex.Crim.App. 1999). There being no egregious harm shown, we overrule appellant’s last issue.12 Conclusion
Having overruled appellant’s issues, we affirm the tria l court judgment.

Mackey K. Hancock Justice

Do not publish.

Pirtle, J., concurring.