1

United States Court of Appeals,

Fifth Circuit.

No. 94-10934.

Jerry Wayne ABLES, Petitioner-Appellant,

v.

Wayne SCOTT, Director of Texas Department of Criminal Justice

Divisional Institution, Respondent-Appellee.

Jan. 25, 1996.

Appeal from the United States District Court for the Northern

District of Texas.

Before WIENER, EMILIO M. GARZA and BENAVIDES, Circuit Judges.

PER CURIAM:

Jerry Wayne Ables, a Texas inmate, appeals the district

court's denial of his petition for writ of habeas corpus. We

affirm.

I

A grand jury returned two indictments against Ables for

aggravated robbery and burglary of a habitation. One indictment

charged two counts of aggravated robbery, both alleging the use or

exhibition of a deadly weapon. The first count alleged the use of

a handgun, and the second count alleged the use of a knife. The

second indictment charged burglary of a habitation in two different

counts. The first count alleged that when Ables entered the house

he was armed with a deadly weapon—a handgun. The second count of

the burglary indictment alleged burglary of a habitation without

any reference to a deadly weapon. Ables pleaded guilty to the

second counts of both the robbery and burglary indictments, and the
 

1The trial court instructed the jury at the beginning of the

punishment trial, "Ladies and gentlemen, since the Defendant has

entered his plea of guilty to the second count of each of these two

indictments, ... you must find [him] guilty of burglary or [sic] a

habitation and of aggravated robbery." 

 

2Ables argues several other points of error, none of which

have merit. First he argues that his guilty plea was involuntary

and unknowing because the trial judge failed to advise him that if

he was convicted as a repeat offender by the jury, his minimum

punishment would be fifteen years. " "The consequences of a guilty

plea, with respect to sentencing, mean only that the defendant must

know the maximum prison term and fine for the offense charged.' "

United States v. Rivera, 898 F.2d 442, 447 (5th Cir.1990). The

trial judge correctly admonished Ables that the maximum possible

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state waived the first counts of both indictments.

The state court then held a jury punishment hearing. The jury

found Ables guilty of aggravated robbery as charged in the robbery

indictment.1 The court entered judgment on this count and included

the jury's affirmative finding that the defendant used a deadly

weapon. The jury also found Ables guilty of burglary of a

habitation. The court entered judgment on this count and again

included the jury's affirmative finding that the defendant used a

deadly weapon during the commission of the offense.

 The Texas Court of Appeals affirmed Ables' convictions, and

Ables did not file a petition for discretionary review with the

Texas Court of Criminal Appeals. Ables' two applications for state

writs of habeas corpus challenging his convictions were denied.

Ables' petition for federal habeas corpus relief was also denied.

Ables now appeals that denial, alleging, inter alia, that the

indictment did not give him adequate notice that the state would

seek an affirmative finding of the use of a deadly weapon in the

burglary charge.2
punishment for the crimes for which he pleaded guilty was 99 years

to life.

Ables next contends that prosecutorial misconduct

rendered his sentencing trial fundamentally unfair, alleging

that the prosecutor made improper and prejudicial jury

arguments. In habeas corpus proceedings, we review allegedly

improper prosecutorial statements made during a state trial to

determine whether they "so infected the trial with unfairness

as to make the resulting conviction a denial of due process."

Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868,

1871, 40 L.Ed.2d 431 (1974); Ortega v. McCotter, 808 F.2d

406, 407 (5th Cir.1987). We reject this claim, finding that

the prosecutors' statements were fair comments on the evidence

and a proper appeal for law and order.

Ables argues that he was denied effective assistance of

counsel at trial and on appeal. Both claims must meet the

deficiency and prejudice prongs of Strickland v. Washington,

466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See

United States v. Patten, 40 F.3d 774, 776 (5th Cir.1994)

(applying Strickland to claim of ineffective assistance of

counsel on appeal), cert. denied, --- U.S. ----, 115 S.Ct.

2558, 132 L.Ed.2d 811 (1995). For the reasons stated in the

district court opinion, we reject Ables' ineffective

assistance of trial counsel claim. See Ables v. Scott, No.

1:93-CV-0131-C (N.D. Tex. filed Aug. 19, 1994). Because none

of Ables' grounds on appeal have merit, his claim for

ineffective counsel on appeal must also fail.

Finally, Ables' claim that the trial judge did not have

the authority to cumulate his sentences fails because it

concerns state criminal procedure and "does not involve such

a denial of fundamental fairness as to fall within the purview

of federal habeas corpus." Johnson v. Beto, 383 F.2d 197 (5th

Cir.1967), cert. denied, 393 U.S. 868, 89 S.Ct. 153, 21

L.Ed.2d 136 (1968). 

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II

Ables contends that he was denied his rights under the Fifth,

Sixth, and Fourteenth Amendments because he did not receive

adequate notice that the state would seek an affirmative finding

that he used a deadly weapon in the commission of the offense of

burglary of a habitation. Due process requires that a criminal

defendant have notice of the charges against him so he can be
 

3TEX.CRIM.PROC.CODE ANN. art. 42.18, § 8(b)(3) states that a

prisoner who is serving a sentence for certain enumerated offenses,

or one whose judgment contains an affirmative deadly weapon finding

during the commission of or flight from a felony offense under

TEX.CRIM. PROC.CODE ANN. art. 42.12 § 3g(a)(2), "is not eligible for

release on parole until his actual calendar time served, without

consideration of good conduct time, equals one-half of the maximum

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prepared to defend himself at trial. Cole v. Arkansas, 333 U.S.

196, 201, 68 S.Ct. 514, 517, 92 L.Ed. 644, 647 (1948); McKay v.

Collins, 12 F.3d 66, 69 (5th Cir.) (stating that an indictment must

allege the essential elements of the offense but not in any

specific terms), cert. denied, --- U.S. ----, 115 S.Ct. 157, 130

L.Ed.2d 95 (1994). A defendant is also entitled to notice and due

process at sentencing, although to a lesser degree than at trial.

United States v. Rochester, 898 F.2d 971, 981 (5th Cir.1990)

("Although, a defendant must be afforded some degree of due process

at sentencing, the same degree of process is not required at

sentencing as at trial."). In rejecting due process claims under

the federal Sentencing Guidelines, we have said that "if the

government promises not to prosecute a defendant for certain

offenses in exchange for a guilty plea to a different offense, the

sentencing court may nevertheless consider the relevant but

uncharged conduct as long as the punishment selected is within the

statutory range for the offense of conviction." United States v.

McCaskey, 9 F.3d 368, 377 (5th Cir.1993), cert. denied, --- U.S. --

--, 114 S.Ct. 1565, 128 L.Ed.2d 211 (1994).

Under Texas law, a deadly weapon finding is not an element of

the offense of burglary of a habitation; its only relevance is at

sentencing.3 Davis v. State, 684 S.W.2d 201, 208 (Tex.
sentence or 30 calendar years, whichever is less, but in no event

shall he be eligible for release on parole in less than two

calendar years." 

 

4We emphasize that our holding is limited to Texas defendants

because we are only considering the effect of a deadly weapon

finding under Texas law, where such a finding is not an element of

the offense charged. 

 

5The defendant in Davis was convicted by a jury of burglary of

a habitation. At the punishment phase of the trial, the jury made

an affirmative finding that Davis had exhibited a deadly weapon in

the commission of the burglary. 684 S.W.2d at 204. On appeal, the

defendant argued that he was denied his due process right to notice

because the indictment did not allege that he had used or exhibited

a deadly weapon. The court rejected the defendant's challenge

because of the nature of a deadly weapon finding. The court noted

that a deadly weapon finding is not an element of the primary

offense that the state must prove; its relevance is at the

punishment phase of a trial, since its only effect is to lengthen

a defendant's confinement under a sentence, not the sentence

itself. Id. at 206. The court concluded that without a showing of

prejudice, the lack of notice, if any, was harmless. Id. 

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App.—Houston [1st Dist.] 1984, writ ref'd). The effect of a deadly

weapon finding is to lengthen a convicted prisoner's confinement

under a sentence by restricting his ability to obtain good time

credit; it does not affect the actual range of the sentence that

the defendant can receive. Id. at 206. Therefore, because a

deadly weapon finding is simply a sentencing concern that does not

raise the degree of punishment, see id. at 208, we hold that a

Texas defendant is only entitled to the limited degree of notice

that is constitutionally required at sentencing when the state

intends to seek such a finding.4 This holding is consistent with

the Texas Courts of Appeals cases which have considered the nature

of a deadly weapon finding and the degree of notice a defendant

must constitutionally receive when the state intends to seek such

a finding. See id.5; see also Wissinger v. State, 702 S.W.2d 261
 

6The Texas Court of Appeals reaffirmed its holding in Davis in

Wissinger v. State, 702 S.W.2d 261 (Tex.App.1985). The defendant

in Wissinger was indicted for intentionally causing the death of

her husband " "by shooting him with a gun.' " Id. at 264. Under

Texas law a gun was not per se a deadly weapon, and the indictment

did not contain any allegation that the defendant had used a deadly

weapon in committing the murder. Nevertheless, after the defendant

pleaded no contest to the acts alleged in the indictment, the

court, in reliance on findings by the presentence report, entered

a deadly weapon finding. On appeal, the defendant alleged that she

was denied due process because she did not have notice that the

state would seek an affirmative finding of the use of a deadly

weapon. The court noted that "[a] deadly weapon finding is

serious, because it will approximately double the time that an

inmate must serve in order to be eligible for parole." Id. (citing

TEX.CODE CRIM.P.ANN. art. 42.12, sec. 15(b) (Vernon 1979)). However,

the court continued, it does not heighten the range of punishment

a defendant will receive. Id. at 265. The court concluded that

the lack of notice of the state's intent to seek a deadly weapon

finding did not require reversal because it was "not an element of

the offense charged and did not increase the range of punishment."

Id. In addition, the court held that there was no indication that

appellant was surprised by the finding or was unable to defend

herself, nor did appellant claim that she was harmed by any lack of

notice. 

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(Tex.App.—Houston [1st Dist.] 1985, writ ref'd).6

Ables received constitutionally adequate notice of the

possibility that the state might seek a deadly weapon finding at

his sentencing. He was aware of the state's evidence against him

before he decided to plead guilty. He was present at the bond

hearing where the complaining witness described the crimes he

committed against her using both a knife and a handgun. He was

also aware that the state found knives and a handgun in his car

when he was arrested and that they intended to introduce them into

evidence at the sentencing phase of his trial. Through his guilty

plea, Ables admitted using a deadly weapon during the robbery which

arose out of the same events as the burglary. Moreover, Ables did

not object when the trial court instructed the jury on the deadly
 

7Our position is in accord with Texas law. Texas law requires

that a defendant have some form of notice when the state intends to

seek an affirmative finding that the defendant used or exhibited a

deadly weapon during the commission of an offense. Grettenberg v.

State, 790 S.W.2d 613, 614 (Tex.Crim.App.1990) (en banc). In a

case factually similar to ours, the Texas Court of Criminal Appeals

held that a defendant can receive adequate notice of the state's

intention to seek a deadly weapon finding through a dismissed

portion of an indictment. Id. at 614-15. 

7

weapon finding with the burglary count. Most persuasively, the

first count of the burglary indictment alleged that he used a

deadly weapon. The fact that the state waived this count does not

vitiate the notice that the indictment provided that the state

might attempt to obtain a deadly weapon finding in the burglary

count.7 We therefore conclude that Ables' due process claim is

without merit.

III

For the forgoing reasons, we AFFIRM the district court's

opinion.