In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________
No. 02-23-00220-CR ___________________________
BRADLEY EARL KARR, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 396th District Court Tarrant County, Texas Trial Court No. 1729404D
Before Bassel, Womack, and Wallach, JJ. Opinion by Justice Wallach OPINION
A jury found appellant Bradley Earl Karr guilty of failure to register as a sex
offender, a third-degree felony. See Tex. Code Crim. Proc. Ann. art. 62.102(b)(2). The
trial court found two enhancement paragraphs true and assessed Karr’s punishment at
15 years’ confinement.
On appeal, Karr raises two issues:
• the trial court erred by admitting, over his hearsay objection, a Department of Public Safety (DPS) document that identified which offenses under the Uniform Code of Military Justice corresponded to Texas offenses requiring registration; he maintains that this document was the only evidence showing that he had a conviction from another jurisdiction that required him to register in Texas; and
• the evidence was insufficient to prove that he was a habitual offender because the two prior convictions used to enhance his punishment were not sequential but contemporaneous; he asserts that to qualify as a habitual offender, the convictions had to be sequential.
As for Karr’s first issue, we hold that the DPS document was admissible as a
public record because DPS prepared it for purposes unrelated to any specific
litigation. We thus overrule Karr’s first issue.
Regarding Karr’s second issue, we hold that the trial court did not use the two
prior convictions to punish Karr as a habitual offender. Rather, it erroneously used
one conviction to enhance Karr’s offense, thereby improperly making it a second-
degree felony, and then erroneously used the second conviction to enhance Karr’s
punishment to that of a first-degree felony. Although the trial court assessed a
punishment within the range of a second-degree felony, we nevertheless hold that the
2 error was harmful. We thus sustain Karr’s second issue, reverse the trial court’s
judgment, and remand the case to the trial court for a new trial on punishment.
I. BACKGROUND
Karr was convicted in 2007 of an offense under the Uniform Code of Military
Justice at the Mountain Home Air Force Base in Idaho that required him to register in
Idaho as a sex offender. Specifically, Karr was convicted for possessing child
pornography. When Karr moved to Texas in 2015, DPS determined that the elements
of his military-justice offense were substantially similar to the elements of a Texas
offense requiring registration. Karr thus had to register as a sex offender in Texas as
well.
Thereafter, the State indicted Karr twice for not registering as a sex offender—
once in 2016 and once in 2018. Karr was convicted of both offenses on the same date
in 2018.1 He received concurrent three-year sentences.
In February 2022, Karr called the police because he feared his home was being
burglarized. The police responded but did not find a burglar. During their
investigation, the police determined that Karr had not registered as a sex offender.
In May 2022, the State indicted Karr for failing to register as a sex offender.
The State structured the indictment to use one of Karr’s prior convictions to enhance
his offense and the other prior conviction to enhance his punishment.
Karr had received deferred adjudication community supervision for the 1
2016 indictment. In 2018, the trial court adjudicated him guilty.
3 During the jury trial on guilt or innocence, to prove that Karr had an offense
from another jurisdiction that required him to register as a sex offender in Texas, the
State relied on a DPS document that listed offenses under the Uniform Code of
Military Justice that corresponded to Texas offenses requiring registration. See Tex.
Penal Code Ann. § 12.42(g)(2).
After the jury found Karr guilty, Karr went to the court for punishment.
During the bench trial on punishment, the trial court used Karr’s two prior
convictions for failure to register in the same manner that the State had used them in
its indictment. The trial court used one to enhance Karr’s offense from a third-degree
to a second-degree felony offense and the other to enhance Karr’s punishment range
from that of a second-degree to that of a first-degree felony.
The difference in punishment ranges for second- and first-degree felonies is
substantial. For a second-degree felony, the punishment range is any term of years of
not more than 20 years or less than 2 years and a fine not to exceed $10,000. Id.
§ 12.33. For a first-degree felony, the punishment range is life or any term of years of
not more than 99 years or less than 5 years and a fine not to exceed $10,000. Id.
§ 12.32.
The trial court sentenced Karr to fifteen years in prison. This sentence thus fell
within the punishment ranges of both a first- and second-degree felony.
4 II. FIRST ISSUE
In Karr’s first issue, he contends that the trial court erred by admitting, over his
hearsay objection, the DPS document. See id. § 12.42(g)(2). Karr contends that the
DPS document was the only evidence showing that his military-justice conviction
shared the same elements as a Texas offense requiring registration; therefore, he
concludes, its admission was harmful.
A. Standard of Review
When the trial court admits evidence, we review its ruling for an abuse of
discretion. Wright v. State, 618 S.W.3d 887, 890 (Tex. App.—Fort Worth 2021, no
pet.). Under this standard, we will uphold the trial court’s decision so long as it was
within the zone of reasonable disagreement. Id. We will not disturb the trial court’s
ruling if it was correct under any legal theory. Id.
B. The DPS Document
DPS had a legal duty to compile the document. Tex. Code Crim Proc. Ann. art.
62.003(a). It must annually prepare a document determining which convictions from
other jurisdictions correspond to Texas offenses requiring registration. Id. art.
62.003(a), (b). This document is the only means that the State may use to prove that a
defendant has a conviction from another jurisdiction requiring him to register in
Texas. See Crabtree v. State, 389 S.W.3d 820, 832 (Tex. Crim. App. 2012).
C. Public Records
Karr maintains that the DPS document was inadmissible hearsay. We disagree.
5 One basis for admitting the document was under the public records exception
to hearsay:
The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:
....
(8) Public Records. A record or statement of a public office if:
(A) it sets out:
(i) . . . ;
(ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law- enforcement personnel; or
(iii) . . . ; and
(B) the opponent fails to demonstrate that the source of information or other circumstances indicate a lack of trustworthiness.
Tex. R. Evid. 803(8)(A)(ii), (B).
DPS personnel, Karr asserts, are law-enforcement personnel. See Martinez v.
State, 22 S.W.3d 504, 508 (Tex. Crim. App. 2000) (citing Cole v. State, 839 S.W.2d 798,
803 (Tex. Crim. App. 1990), op. on reh’g, 839 S.W.2d 806 (Tex. Crim. App. 1992)).2
Karr maintains that the DPS document was not admissible under this exception
2 In Martinez, the report in dispute was never offered into evidence but formed one of the bases for an expert’s opinion. Id. The court wrote that the expert “was free to offer his opinion based on [the] report. And since [the defendant] never challenged [the witness’s] expert qualifications, his present opinion regarding the test results was properly admitted over [the defendant’s] hearsay objections.” Id. Cole provides a more analogous evidentiary issue, so we will focus on Cole.
6 because it contained matters “observed by law-enforcement personnel.” See Tex. R.
Evid. 803(8)(A)(ii).
Whether DPS employees are law-enforcement personnel is not dispositive; the
nature of their work is. In Cole, a DPS chemist worked on a specific criminal
investigation; his report was inadmissible under Rule 803(8)(B) for lack of
trustworthiness because it was prepared as part of the adversarial process in a specific
case. Cole, 839 S.W.2d at 804, 809–10. The court in Cole distinguished the chemist’s
reports from other types of reports: “[T]he [chemist’s] reports were not prepared for
purposes independent of specific litigation, nor were they ministerial, objective
observations of an unambiguous factual nature.” Id. at 805, 810.
This distinction is dispositive. Rule 803(8)(A)(ii) allows the admission of law-
enforcement reports that
• are prepared in a nonadversarial setting,
• are unrelated to any specific litigation, and
• record objective, neutral observations.
Emich v. State, No. 02-18-00059-CR, 2019 WL 311153, at *5 (Tex. App.—Fort Worth
Jan. 24, 2019, pet. ref’d) (mem. op., not designated for publication); see Pondexter v.
State, 942 S.W.2d 577, 585 (Tex. Crim. App. 1996) (citing United States v. Quezada,
754 F.2d 1190, 1193–94 (5th Cir. 1985)); Cole, 839 S.W.2d at 804, 810. The rule
excludes the admission of law enforcement’s crime-scene or investigation
7 observations because such observations, opinions, and narrations are made while the
officer is “engaged in the often competitive enterprise of ferreting out crime” and are
thus inherently adversarial and less reliable than other types of public records. Emich,
2019 WL 311153, at *5 (citing Fischer v. State, 252 S.W.3d 375, 382 (Tex. Crim. App.
2008) (quoting Johnson v. United States, 333 U.S. 10, 14, 68 S. Ct. 367, 369 (1948))). In
Karr’s case, the DPS document was prepared independently of any one criminal case.
Therefore, the exception to the exception on which Karr relies does not apply.
Karr does not argue that the DPS document was otherwise untrustworthy
under Rule 803. See Tex. R. Evid. 803(8)(B). We hold that the trial court did not abuse
its discretion by admitting the DPS document as a public record under Rule 803.
We overrule Karr’s first issue.
III. SECOND ISSUE
In Karr’s second issue, he argues that the evidence was insufficient to prove the
State’s habitual offender allegation under Section 12.42(d) of the Texas Penal Code.
See Tex. Penal Code Ann. § 12.42(d). He argues that an enhancement under Section
12.42(d) (two prior convictions, the second offense being committed after the first
conviction became final) would not be possible under his facts because his two prior
convictions were on the same date. See id.
A. Background
Karr’s second issue requires some unravelling. The State’s theory of the case
was that Karr committed a third-degree felony, that the offense was enhanced to a
8 second-degree felony by a prior conviction for failure to register, and that the
punishment for this second-degree felony was further enhanced to that of a first-
degree felony based on a second prior conviction for failure to register. The State’s
indictment tracks this theory of the case.
1. Indictment
In the indictment, the State alleged that Karr had failed to register as a sex
offender in April 2022 and that he was required to register under Article 62.101(a) of
the Texas Code of Criminal Procedure based on a 2007 conviction in the Courts
Martial–United States Military. The State alleged a third-degree felony. See Tex. Code
Crim. Proc. Ann. art. 62.102(b)(2).
In a separate paragraph, the State further alleged that Karr had a prior
conviction for failure to register that occurred on August 17, 2018, under cause
number 1547627D. Significantly, this paragraph was not introduced with a “Repeat
Offender Notice” and was thus intended to enhance Karr’s offense.
In the final paragraph, which was introduced with a “Repeat Offender Notice,”
the State alleged that Karr had a prior conviction for failure to register that occurred
on August 17, 2018, under cause number 1470866D. The “repeat offender” language
indicates that the State thought it was enhancing Karr’s punishment with only one
prior conviction.
The term “repeat offender” in the Texas Penal Code is used when the State
seeks to enhance a defendant’s punishment with only one prior conviction. See Tex.
9 Penal Code Ann. § 12.42(a)–(c). In contrast, when the State seeks to enhance a
defendant’s punishment with two prior convictions—with the qualification that the
second offense occurred after the first conviction became final—the code uses the
term “habitual offender.” See id. § 12.42(d).
Reinforcing the conclusion that the State sought one offense enhancement and
one punishment enhancement, the indictment identifies the offense as “Fail to
Comply Sex Off Duty to Reg w/Prev IAT”3 and includes “Repeat Felony Offender.”
Consequently, the State thought it was alleging a third-degree felony, which was
enhanced to a second-degree offense with one prior conviction, whose punishment
was further enhanced to that of a first-degree felony by a second prior conviction.
2. Trial Court
When informing Karr of his punishment range, the trial court followed the
construct that the State used in the indictment: “You understand for the first called --
for the first offense, that is a[n] enhancement to the -- that would raise it to a second-
3 “IAT” means “if at trial” or “shown at trial.” Cassandra Richey, Understanding Offense Codes, 13–14, https://www.dps.texas.gov/sites/default/files/documents/ administration/crime_records/docs/cjis/2018cjisjjisconf/understandingoffensecodes. pdf (last visited Jan. 25, 2024); see, e.g., Tex. Code Crim. Proc. Ann. art. 62.102(c) (“If it is shown at the trial . . . .”); Tex. Penal Code Ann. § 12.42(a), (b), (c), (d) (“[I]f it is shown on the trial of . . . .”).
10 degree felony. The second enhancement raises it to a first-degree felony. That makes
it a five to 99 offense range.”4 See Tex. Penal Code Ann. § 12.32(a).
3. Judgment
The judgment corroborates the State’s and the trial’s court’s position in three
respects:
• the offense is identified as “Sex Offender[’]s Duty to Register w/Prev Conviction”;
• the degree of felony is identified as “Hybrid Felony”; and
• the second enhancement paragraph is shown as “Waived,” and the finding regarding the second enhancement paragraph reflects “N/A.”
B. Not Tried as a Habitual Offender
To the extent that Karr argues he was improperly tried as a habitual offender
under Section 12.42(d), i.e., he was tried as having previously committed a second
offense after his first conviction had become final, his argument fails. He is correct
that he could not be enhanced under that provision because his two prior convictions
were on the same date. See id. § 12.42(d). The trial court was not, however, proceeding
under Section 12.42(d). Under Section 12.42(d), the punishment range is life or any
term of years of not more than 99 or less than 25 years. Id. When stating the
punishment range, the trial court did not use this one.
4 For an example of how an error, once introduced into a case, can permeate the remaining proceedings, see Hernandez v. State, No. 05-03-00107-CR, 2003 WL 22017228, at *1 (Tex. App.—Dallas Aug. 27, 2003, no pet.) (not designated for publication).
11 C. Article 62.102(c): Enhanced Punishment, Not Enhanced Offense
The Texas Code of Criminal Procedure identifies the failure to register as
required under Article 62.101(a) as a third-degree felony. Tex. Code Crim. Proc. Ann.
art. 62.102(b)(2). It further provides that if the person required to register had been
previously convicted of a failure to register, the person’s punishment is increased to the
next punishment level. Id. art. 62.102(c). This is a punishment enhancement, not an
offense enhancement. See Ford v. State, 334 S.W.3d 230, 235 (Tex. Crim. App. 2011);
Henderson v. State, 582 S.W.3d 349, 355–56 (Tex. App.—Amarillo 2018, pet. ref’d).
Based on the indictment, the State was attempting to use Article 62.102(c) to
enhance Karr’s offense (rather than enhancing his punishment) from a third-degree to
a second-degree felony. The trial court followed the State’s lead by doing the same.
This was error. Article 62.102(c) does not enhance the offense; it enhances the
punishment. See Ford, 334 S.W.3d at 235; Henderson, 582 S.W.3d at 355–56. Under
Article 62.102(c), using one of Karr’s prior convictions, his offense remained a third-
degree felony, but it was punished as a second-degree felony.
For the enhancement to work as the State wanted and as the trial court applied
it, the legislature would have had to write the statute differently. See Samaripas v. State,
454 S.W.3d 1, 7 (Tex. Crim. App. 2014).
D. Section 12.42 Discussion: Section 12.42(a), Not Section 12.42(b)
When enhancing a punishment under Section 12.42, the provision that applies
depends on the degree of the felony being tried:
12 • Section 12.42(a) enhances punishment “if it is shown on the trial of a felony of the third degree.” Tex. Penal Code Ann. § 12.42(a). It raises the punishment range to that of a second-degree felony, i.e, any term of years of not more than 20 years or less than 2 years and a fine not to exceed $10,000. Id. § 12.33.
• Section 12.42(b) enhances punishment “if it is shown on the trial of a felony of the second degree.” Id. § 12.42(b). It raises the punishment range to that of a first-degree felony, i.e., life or any term of years of not more than 99 years or less than 5 years and a fine not to exceed $10,000. Id. § 12.32.
• Section 12.42(c) enhances punishment “[i]f it is shown on the trial of a felony of the first degree.” Id. § 12.42(c). It raises the punishment range to life or any term of not more than 99 years or less than 15 years and a fine not to exceed $10,000. Id.
Because Karr was tried for a third-degree felony, under Section 12.42, his
punishment could be enhanced only under Section 12.42(a). See id. § 12.42(a).
Compared to Article 62.102(c), both provide the same punishment enhancement.
Both Section 12.42(a) and Article 62.102(c) raise the punishment range to that of a
second-degree felony. See Tex. Code Crim. Proc. Ann. art. 62.102(c); Tex. Penal Code
Ann. § 12.42(a). Both use the identical baseline. See Crawford v. State, 509 S.W.3d 359,
363 n.7 (Tex. Crim. App. 2017). Neither offers the State an advantage over the other.
Because Karr was not tried for a second-degree felony, the punishment
enhancement under Section 12.42(b) was not available to the trial court. That,
however, is what the trial court used when it announced that Karr’s punishment range
was for any term not exceeding 99 years or less than 5 years.
Consequently, although we disagree with Karr that his punishment range was
improperly enhanced under Section 12.42(d), we agree that his punishment range was
13 nevertheless improperly enhanced under Section 12.42(b). The State concedes this
point in its brief.
Although improper enhancement under Section 12.42(b), specifically, was not
the thrust of Karr’s original brief, improper enhancement was. In Karr’s reply brief,
he contends his punishment could not have been enhanced under Section 12.42(b)
either.
Briefing rules are to be construed liberally. See Tex. R. App. P. 38.9. Issues “will
be treated as covering every subsidiary question that is fairly included.” See Tex. R.
App. P. 38.1(f). Karr contends that the trial court, when determining his sentence,
applied an incorrect range of punishment. We agree. The State agrees too, but it
maintains that Karr was not harmed.
E. Harm
A sentence outside the statutory punishment range for an offense is void and
must be reversed. Farias v. State, 426 S.W.3d 198, 200 (Tex. App.—Houston [1st Dist.]
2012, pet. ref’d). The fifteen-year sentence that the trial court imposed is not illegal in
the sense that it exceeds the punishment range of a second-degree felony. A fifteen-
year sentence is within the range of a second-degree felony. See Tex. Penal Code Ann.
§ 12.33. Nor is the sentence illegal in the sense that no evidence supports one or both
alleged enhancements. See, e.g., Jordan v. State, 256 S.W.3d 286, 292 (Tex. Crim. App.
2008). Here, Karr pleaded true to both convictions, and both judgments were
admitted into evidence. The evidence thus supports both convictions.
14 Nevertheless, we must determine whether the error was harmful. Fortunately,
the Texas Court of Criminal Appeals has already addressed this issue and determined
that the error is far from a trifling one:
The nature of the right [the defendant] seeks to vindicate leads us to conclude that it is one that is a significant feature of our judicial system and should be classified as a Marin category-two right.[5] In the absence of a defendant’s effective waiver, a judge has an independent duty both to identify the correct statute under which a defendant is to be sentenced and the range of punishment it carries and to consider the entire range of punishment in sentencing a defendant irrespective of a defendant’s request that he do so. And as we have made clear, a defendant “need make no request at trial for the implementation of such rights, as the judge has an independent duty to implement them.” The unfettered right to be sentenced by a sentencing judge who properly considers the entire range of punishment is a substantive right necessary to effectuate the proper functioning of our criminal justice system. The Legislature has defined, by the offense’s degree and possible punishment assigned to it, the punishment all convicted offenders are exposed to for certain offenses. Failing to consider all available punishment carries an unacceptable risk of undermining the principle that the judicial system applies equally the range of punishment to all offenders. A contrary conclusion has the potential of shaking the public’s perception of the fairness of our judicial system and breeding suspicion of the fairness and accuracy of judicial proceedings. The nature of this right is too significant to the judicial system to conclude that it is extinguished by mere inaction.
5 Marin set out the general preservation requirements and separated a defendant’s rights into three categories—absolute, waivable, and forfeitable. Grado v. State, 445 S.W.3d 736, 738–39 (Tex. Crim. App. 2014) (citing Marin v. State, 851 S.W.2d 275, 278–80 (Tex. Crim. App. 1993), abrogated on other grounds by Matchett v. State, 941 S.W.2d 922, 928 (Tex. Crim. App. 1996) (harm analysis), and overruled on other grounds by Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997) (harm analysis)).
15 Grado v. State, 445 S.W.3d 736, 741 (Tex. Crim. App. 2014) (footnote omitted). 6
When first considered by the court of appeals, the appellate court concluded
that the defendant in Grado was harmed:
Given the evidence of [the defendant’s] substantial compliance with the terms and conditions of community supervision for eight and one-half years and his payment of a vast majority of the fine imposed, and considering the likelihood that the trial court misconstrued the applicable penalty group for the controlled substance in question and the appropriate range of punishment, we cannot say that the trial court would not have assessed a lesser sentence had the full range of punishment been properly understood and considered. Having grave doubts the punishment assessed was free from the substantial influence of the error in this case, we find the error to be reversible as to punishment only.
Grado v. State, No. 07-11-00468-CR, 2013 WL 3355743, at *5 (Tex. App.—Amarillo
June 28, 2013), aff’d, 445 S.W.3d 736 (Tex. Crim. App. 2014).
Turning to Karr’s case, during final arguments, Karr requested a 5-year
sentence. The State, in contrast, requested a 15-year sentence. In the context of an
offense punishable as a first-degree felony with the possibility of a life or 99-year
sentence—which was, after all, the framework within which both parties were
operating—both proposed relatively lenient sentences, with Karr advocating for the
more lenient of the two.
6 The Texas Court of Criminal Appeals’s opinion focused on whether the defendant could raise his complaint for the first time on appeal and concluded that he could. Id. at 737, 743. The court did not challenge the appellate court’s conclusion that the error was harmful.
16 Another factor is a defendant’s previous sentences. Although the State had two
prior convictions, the statutory scheme made the second conviction meaningless for
purposes of enhancing the punishment range. That is not to say that the second
conviction could not be used when deciding where to set Karr’s punishment within
the proper range. Previous sentences impact punishment in another way. When
assessing a sentence, a factfinder is not likely to assess a punishment below that which
the defendant previously received, especially if the previous conviction was for the
same offense. The earlier sentence thus might have a ratcheting effect. The State
argued this point during arguments: “Whatever punishment he received in those first
two cases was clearly and wholly insufficient to change his behavior.” Here, for Karr’s
two prior convictions for failure to register, he had received concurrent three-year
sentences. Thus, this was not a circumstance where a prior sentence set a high floor to
any subsequent sentence.
Based on the time-served awarded in the judgment, Karr had spent nearly a
year (357 days) in jail before he was sentenced. The record shows that Karr applied
himself while awaiting trial. Shortly after being indicted, Karr enrolled in the Military
Veteran Program at the Green Bay Facility, attended classes without incident, came
prepared daily, and actively participated in the program. The coordinator for the
program praised Karr’s participation:
Inmate Karr was chosen as a peer mentor inside the pod. He was responsible for making sure everyone received the assignments, understood them and turned them in when due. He also conducted the
17 pod meetings every week. He initially entered this program to gain treatment and rehabilitation and ended up being a leader among his fellow peers. Through my many interactions with him he has left a lasting impression of his involvement and progress made through the Military Veterans Program.
Karr also completed the 40-hour Pathways to H.O.P.E. Prevocational and
Work Readiness Program. Additionally, a Pathfinders coordinator praised Karr for his
participation in a mentoring program:
During this time [in jail], [Karr] has demonstrated personal growth, a desire for change in his future lifestyle, and a willingness to help fellow group members become engaged in group mentoring. He is very energetic and very intelligent. Bradley has a lot to offer the community in general[] and has several business ideas to act on when he is released. Mr. Karr is visibly more positive now than when he initially started the mentoring program. He wants to utilize the resources that have been presented to him through his participation in the group sessions presented by Pathfinders. Advanced employment, r[é]sum[é]s skills[,] and personality assessments and interpersonal assessments are some of the classes that Mr. Karr has attended while in the Pathfinders program. Mr. Karr has been invited to follow up with Pathfinders upon his release from Tarrant County.
The Pathfinders director also praised Karr:
Mr. Karr was extremely interactive in the class; he participated by lending advice and life experiences to fellow classmates that was relative to the topics discussed. He completed all the required necessary requirements within the Student Guide to graduate the course and receive a certificate. Mr. Karr also made sure the conversation stayed on topic and helped guide the class to understanding different aspect[s] that [were] relative to their situations. Mr. Karr continued to add to the course above what was required and learn more from each lesson that he could implement in the next phase of the Pathways Program—“Journey Home[.”]
Mr. Karr completed the Pathways to H.O.P.E. 40[-hour]- classroom-based Pre-Vocational and Workforce Readiness component.
18 Mr. Karr volunteered to take the course. Upon completion of the 40[- hour] course, Mr. Karr is now approved and accepted to attend the 12- month Journey Home program upon his release. The 12-month course is a Vocational and Leadership program which includes a Restorative Justice module.
Karr received Pathfinder certificates for completing its “Financial Coaching Banking”
class and its “Financial Coaching[] and completing a Budget” class.
As for Karr’s original military-justice conviction, it was for possession of child
pornography. In the scheme of legislative child offenses, this is a lesser one. See Tex.
Penal Code Ann. § 43.26(d) (providing that a first conviction for possession of child
pornography is a third-degree felony). Since his military-justice conviction in 2007,
Karr’s criminal history is limited to failure to register.
Fundamentally, the dynamics of assessing a punishment when the competing
ranges are 2 to 20 and 5 years to life are different. When viewed from the perspective
of a possible life sentence, 15 years falls on the relatively light side, but when viewed
from the perspective of a punishment range of 2 to 20 years, 15 years falls on the
relatively harsh side.
In the abstract, we cannot imagine a scenario where the increased range
benefited Karr. Nor can we conclude that the net result of applying the harsher range
was a wash under the circumstances. By design, the increased punishment range was
intended to be prejudicial. See Jordan, 258 S.W.3d at 293. The more likely impact was
that the vastly greater punishment range harmed Karr.
19 Rather than assume that the trial court would have assessed the same
punishment if it had applied the correct range of punishment, we conclude the better
course is to ensure the integrity of the sentencing procedure. See Grado, 445 S.W.3d at
741. To do that, we must insist on a punishment assessed under the correct law. See id.
Thus, we sustain Karr’s second issue and remand his case to the trial court to
conduct a new punishment trial. See Ex parte Gibauitch, 688 S.W.2d 868, 873 (Tex.
Crim. App. 1985); Borrego v. State, 558 S.W.2d 1, 1–2 (Tex. Crim. App. 1977); Van
Flowers v. State, 629 S.W.3d 707, 715 (Tex. App.—Houston [1st Dist.] 2021, no pet.);
State v. Rowan, 927 S.W.2d 116, 118 (Tex. App.—Houston [1st Dist.] 1996, no pet.).
IV. CONCLUSION
We overrule Karr’s first issue. In conjunction with our sustaining Karr’s second
issue, we modify the trial court’s judgment as follows:
• Under the heading “Offense for which Defendant Convicted,” the current judgment reflects that Karr was convicted of “Sex Offender[’]s Duty to Register w/Prev Conviction.” We modify the judgment to reflect that Karr was convicted of “Sex Offender’s Duty to Register.”
• Under the heading “Degree of Offense,” the current judgment reflects “Hybrid Felony.” We modify the judgment to reflect that the offense was a “Third-degree felony.”
• Under the heading “2nd Enhancement Paragraph,” the judgment currently reflects “Waived.” We modify the judgment to reflect “N/A.”
• Under the heading “Punishment and Place of Confinement,” the judgment currently reflects “15 years Institutional Division, TDCJ.” We reverse that portion of the judgment and remand Karr’s case to the trial court for a new trial on punishment.
20 /s/ Mike Wallach Mike Wallach Justice
Publish
Delivered: February 8, 2024