ACCEPTED 06-14-00110-CR SIXTH COURT OF APPEALS TEXARKANA, TEXAS 4/27/2015 12:00:00 AM DEBBIE AUTREY CLERK
CAUSE NUMBER 06-14-00110-CR IN THE COURT OF APPEALS FILED IN 6th COURT OF APPEALS SIXTH APPELLATE JUDICIAL DISTRICT OF TEXAS TEXARKANA, TEXAS AT TEXARKANA, TEXAS 4/27/2015 8:36:00 AM DEBBIE AUTREY Clerk
APPEAL FROM THE 8TH JUDICIAL DISTRICT OF FRANKLIN COUNTY, TEXAS
Trial Cause No. 1423904
CODY LANG THOMAS Appellant
V.
THE STATE OF TEXAS, Appellee
BRIEF FOR APPELLANT
Martin Braddy Attorney at Law SBN 00796240 121 Oak Ave., Suite A Sulphur Springs, Texas 75482 (903) 885-2040 (500) 885-2704 fax
1 IDENTITY OF PARTIES
Pursuant to Texas Rule of Appellate Procedure 38(a), the following is a list
of all parties to the trial court’s judgment and the names and addresses of all trial
and appellate counsel:
APPELLANT: Cody Lang Thomas Appellate Counsel Martin Braddy 121 Oak Avenue, Suite A Sulphur Springs, TX 75482 (903) 885-2040 (903) 500-2704 fax
Trial Counsel Wade Forsman Post Office Box 918 Sulphur Springs, TX 75482
APPELLEE: The State of Texas Honorable Will Ramsay District Attorney 8th Judicial District 110 Main Street Sulphur Springs, TX 75482 (903) 885-0641 (903) 885-0640 fax
TRIAL COURT: 8th Judicial District Court Hopkins County, Texas Judge Eddie Northcutt 118 Church St. Sulphur Springs, TX 75482 Phone: (903) 438-4022
2 TABLE OF CONTENTS
Table of Contents 3
Index of Authorities 4-5
Statement of the Case 6
Issues Presented 6
Statement of Facts 6
Summary of Argument 8
Argument 9
I. Trial Court Improperly Increased Appellant’s Punishment Range to a Second Degree Felony 9
A. Standard of Review 9
B. Preservation of Error 10
C. Penal Code Section 12.425(b)
D. Level of Offense vs. Level of Punishment
E. Analysis
Conclusion and Prayer
Certificate of Service 18
3 INDEX OF AUTHORITIES
Cases
Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App.1991) 10 Brooks v. State, 226 S.W.3d 607, 610 (Tex.App.-Houston [1st Dist.] 2007, no pet.) 9 Clinton v. State, 354 S.W.3d 795, 800 (Tex.Crim.App.2011) 9-10
Edwards v. State, 273 S.W.3d 919, 921 (Tex.App.-Houston [14th Dist.] 2009, no pet.) 9 Ex Parte Reinke, 370 S.W.3d 387, 389 (Tex. Crim. App. 2012) 14 Ford v. State, 334 S.W.3d 230, 231 (Tex. Crim. App. 2011) 13-14, 15 Sims v. State, 84 S.W.3d 768, 779 (Tex.App.-Dallas 2002, pet. ref'd) 9 Speth v. State, 6 S.W.3d 530, 532–33 (Tex.Crim.App.1999). 10 State v. Jimenez, 148 S.W.3d 574, 576 (Tex.App.-El Paso 2004, pet. ref'd) 9 State v. Webb, 12 S.W.3d 808, 811–12 (Tex.Crim.App.2000) 14, 15 Williams v. State, 253 S.W.3d 673, 677 (Tex.Crim.App.2008) 9 Statutes Tex. Penal Code Ann. § 12.42(a)(1) (West) 12-13 Tex. Penal Code Ann. § 12.425 (West) 10 Tex. Penal Code Ann. § 12.35(a) (West) 12, 15 Tex. Penal Code Ann. § 30.02 (West). 11-12
4 STATEMENT OF THE CASE
Appellant was indicted in Cause Number 1423904 for Engaging in
Organized Criminal Activity alleging the underlying offense as theft of property
valued at $1,500.00 or more, but less than $20,000.00, a state jail felony.
Appellant pled “guilty” to the lesser included offense of theft and elected the trial
court to set the punishment. Appellant further pled “true” to two enhancement
allegations. The trial court found Appellant guilty and the enhancement allegations
true and set the punishment at twenty years in the Institutional Division of the
Texas Department of Criminal Justice and assessed a fine of $0.00. The trial court
certified Appellant’s right to appeal and Appellant timely filed a Notice of Appeal.
ISSUES PRESENTED
Did the trial court sentence Appellant outside of the applicable punishment
range?
STATEMENT OF FACTS
On March 17, 2014 Appellant was indicted for the felony offense of engaging in
organized criminal activity alleged to have occurred on November 23, 2013. (CR
pg. 4). The indictment does not allege prior felony convictions for purposes of
enhancement. On May 8, 2014, the trial court conducted a pretrial hearing and
admonished Appellant as to the applicable punishment ranges depending on the
5 allegations in the indictment and the possibility of proof regarding previous felony
convictions. (RR Vol. 2 pg. 4-7). Appellant acknowledged his understanding of all
the possible punishment ranges. (RR Vol. 2 pg. 7). The trial court also disclosed
his personal involvement with Appellant, including his personal knowledge with
regards to Appellant’s prior incarceration. (RR Vol. 2 pg. 12-13).
On May 22, 2014, the trial court again admonished Appellant as to the possible
punishment ranges of the charged offense depending on proof and the offense for
which he might be convicted. (RR Vol. 3 pg. 5-6). Appellant pled guilty to the
lesser offense of theft of property valued at $1,500.00 or more, but less than
$20,000.00, a state jail felony. (RR Vol. 3 pg. 11). Appellant further
acknowledged that he had been sentenced to the “penitentiary, non state jail, two
separate times.” (RR Vol. 3 pg. 12). The trial court accepted Appellant’s plea of
guilty and found that Appellant has “two prior non-state-jail-felony convictions
which would enhance the punishment range … to 2 to 20.” (RR Vol. 3 pg. 16).
On June 11, 2014, the State of Texas filed its “Notice of State’s Intent to
Enhance Punishment Range” alleging:
1. Prior to commission of the offense in the indictment, defendant was
finally convicted of the felony offense of Escape While Arrested, on 18th
day of August, 2004, A.D., in the 402nd District Court of Wood County,
Texas;
6 2. Prior to commission of the offense in the indictment, defendant was
finally convicted of the felony offense of Burglary of a Building, on 24th day
of June, 20 10, A.D., in Cause Number 0921040 on the docket of the 8th
Judicial District Court of Hopkins County, Texas. (CR pg. 28). After that, the trial court conducted the punishment trial in the case at
which it inquired of Appellant as to the truth of the enhancement allegations. (RR
Vol. 4 pg. 11-12). At the trial, the State did not offer the “pen packets” or
judgements of the prior conviction, but instead relied upon Appellant’s plea of true
and his testimony. The trial court sentenced Appellant to twenty years and no fine.
(RR Vol. 4 pg. 108). Appellant filed notice of Appeal. (Suppl. CR pg. 1).
SUMMARY OF ARGUMENT
Appellant’s twenty year sentence for a state jail felony, punishable under
12.35(a) of the Texas Penal Code was not authorized by law. The trial court’s use
of Penal Code Section 12.425(b) to increase Appellant’s punishment range was not
permissible. (CR pg. 24). Appellant pled true to having been previously finally
convicted of Burglary of a Building, a state jail felony punishable under 12.35 (a)
of the Penal Code. Appellant’s burglary conviction appears to have been punished
as a third degree felony pursuant to a previous version of Section 12.42 of the
Penal Code. The enhancement did not increase the offense level from a state jail
felony, but merely increased the punishment level to a third degree felony.
Therefore, Appellant’s sentence was outside of the applicable punishment range. 7 ARGUMENT
I. TRIAL COURT IMPROPERLY ENHANCED APPELLANT’S
PUNISHMENT RANGE TO A SECOND DEGREE FELONY The trial court improperly used Penal Code 12.425(b) to increase Appellant’s
punishment range from a state jail felony to that of a second degree. The trial
court’s interpretation of the statute was incorrect. A. Standard of Review Issues of statutory interpretation are reviewed de novo. Williams v. State,
253 S.W.3d 673, 677 (Tex.Crim.App.2008); Edwards v. State, 273 S.W.3d 919,
921 (Tex.App.-Houston [14th Dist.] 2009, no pet.); Brooks v. State, 226 S.W.3d
607, 610 (Tex.App.-Houston [1st Dist.] 2007, no pet.) (citing State v. Jimenez, 148
S.W.3d 574, 576 (Tex.App.-El Paso 2004, pet. ref'd)); see also Sims v. State, 84
S.W.3d 768, 779 (Tex.App.-Dallas 2002, pet. ref'd) (applying de novo review in
considering propriety of prior offense for use in sentencing enhancement). “When
interpreting statutory language, we focus on the collective intent or purpose of the
legislators who enacted the legislation,” starting with the text itself, which
“provides the best means to determine the fair, objective meaning of that text at the
time of its enactment.” Clinton v. State, 354 S.W.3d 795, 800
(Tex.Crim.App.2011) (citing Boykin v. State, 818 S.W.2d 782, 785
(Tex.Crim.App.1991). We construe an unambiguous statute according to its plain
8 meaning, unless such construction creates an “absurd result.” Clinton v. State, 354
S.W.3d 795, at 800. B. Preservation of Error A defendant has an absolute and unwaivable right to be sentenced with the
range provided by law. Speth v. State, 6 S.W.3d 530, 532–33
(Tex.Crim.App.1999). Therefore, no objection at the trial court level was required
to preserve the error for appeal. C. Penal Code Section 12.425(b) The trial court utilized Section 12.425(b) to increase Appellant’s punishment
level. That Section allows for a state jail felony to have its punishment range
increased to that of felony of the second degree under certain circumstances.
Specifically, it states: “(b) If it is shown on the trial of a state jail felony punishable under Section
12.35(a) that the defendant has previously been finally convicted of two
felonies other than a state jail felony punishable under Section 12.35(a), and
the second previous felony conviction is for an offense that occurred
subsequent to the first previous conviction having become final, on
conviction the defendant shall be punished for a felony of the second
degree.” Tex. Penal Code Ann. § 12.425 (West). To have the punishment increased under
this section the State must prove that a defendant, convicted of a 12.35(a) state jail
felony, has been finally convicted of two prior felonies that were not 12.35(a) state
jail felonies. Here, the trial court found that Appellant’s convictions for Escape, a
9 third degree felony, and Burglary of a Building, normally a state jail felony,
satisfied these requirements. The trial court’s reasoning was that since the
Burglary of a Building was enhanced, then it was no longer a “state jail felony
punishable under Section 12.35(a).” (RR Vol. 4 pg. 11-12). However, the trial
court failed to properly apply the analysis set forth by the Court of Criminal
Appeals in determining whether an enhancement increases the level of offense or
merely the level of punishment. D. Level of Offense vs. Level of Punishment The Court of Criminal Appeals has held that the controlling question in
deciding this issue is whether the enhancement provision utilized increases the
level of offense or merely the level of punishment. That question turns on the
language of the enhancement statute utilized. a. Burglary of a Building Burglary of a Building is a state jail offense punishable under 12.35(a) of the
penal code. The record reflects that Appellant was convicted of Burglary of
Building on June 24, 2010 in Wood County, Texas. The Penal Code dictates that
this offense is a state jail felony. Section 30.02 state: “(a) A person commits an offense if, without the effective consent of the
owner, the person: (1) enters a habitation, or a building (or any portion of a building)
not then open to the public, with intent to commit a felony, theft, or an
assault; or (c) Except as provided in Subsection (d), an offense under this section is a:
10 (1) state jail felony if committed in a building other than a
habitation;” Tex. Penal Code Ann. § 30.02 (West). Burglary of a Building, without application of the statutory aggravating
circumstances, would be punishable under 12.35(a) of the Penal Code. Penal Code
Section 12.35 state: “(a) Except as provided by Subsection (c), an individual adjudged guilty of a
state jail felony shall be punished by confinement in a state jail for any term
of not more than two years or less than 180 days.” Tex. Penal Code Ann. § 12.35(a) (West). Subsection (c) provides for aggravating
circumstances that would allow for increasing the punishment level. Tex. Penal
Code Ann. § 12.35(c) (West). The record does not support a finding that
Appellant’s conviction included the type of aggravating circumstances required to
move the punishment out of subsection (a). Therefore, Appellant’s conviction was
a state jail felony punishable under 12.35(a) without consideration of the effect of
enhancement. b. Previous Version of 12.42(a) Appellant’s prior Burglary of a Building conviction was enhanced under the
previous version of 12.42(a) of the Penal Code. The trial court found that due to
Appellant having been twice before convicted of a state jail felony, the punishment
for the Burglary of a Building was enhanced to a third degree and he was
sentenced to three years in prison. (RR Vol. 4 pg. 12, CR pg. 28). The version of
the statute in place at the time of his plea contained the following provision:
11 (a)(1) If it is shown on the trial of a state jail felony punishable under
Section 12.35(a) that the defendant has previously been finally convicted of
two state jail felonies, on conviction the defendant shall be punished for a
third-degree felony.” Tex. Penal Code Ann. § 12.42(a)(1) (West). Therefore, this Court must determine
whether the previous version of 12.42(a) increased the offense level or merely the
punishment level. c. Ford v. State The Court of Criminal Appeals, in Ford v. State, analyzed the enhance
provisions of Article 62.102 of the Texas Code of Criminal Procedure and its
intended meaning. Ford v. State, 334 S.W.3d 230, 231 (Tex. Crim. App. 2011).
The Court held that enhancement statutes differ depending on whether the offense
level or merely the punishment is enhanced. If the enhancement statute merely
increases the punishment, then future use of the conviction for enhancement
purposes is limited by its original offense level. The Court held that the language
used dictates the result of the enhancement. The Court stated, “in Webb we recognized that Penal Code Section 12.42 increases the range
of punishment applicable to the primary offense; it does not increase the
severity level or grade of the primary offense. This construction comes from
the phrase “shall be punished for” that appears throughout Section 12.42.” Ford v. State, 334 S.W.3d 230, 234-35 (Tex. Crim. App. 2011) citing State v. Webb,
12 S.W.3d 808, 811–12 (Tex.Crim.App.2000). The Court held that since Art.
62.102 had similar language, then it merely increases the punishment and does not 12 change the offense level. Ford v. State, 334 S.W.3d 230, 234-35 (Tex. Crim. App.
2011). Therefore, the conviction, enhanced one punishment level pursuant to Art.
62.102, could not be used to then enhance it another punishment level under 12.42
of the Penal Code. In Ex Parte Reinke, the Court of Criminal Appeals reaffirmed its holding in
Ford and Webb that the “shall be punished for” language used in 12.42 increases
the punishment level but does not increase the offense level. Ex Parte Reinke, 370
S.W.3d 387, 389 (Tex. Crim. App. 2012). Therefore, a state jail conviction enhanced pursuant to Section 12.42(a)
remains a state jail punishable under 12.35(a), regardless of the punishment level
increase. E. Analysis Here, Appellant’s previous conviction for Burglary of a Building, enhanced
pursuant to the former version of Section 12.42(a), is a state jail felony punishable
under 12.35(a). As previously discussed, the “shall be punished for” language
contained in the statute does not act to change the level of the offense, but to
merely increase the applicable punishment range. See Ford v. State, 334 S.W.3d
230, 234-35 (Tex. Crim. App. 2011) citing State v. Webb, 12 S.W.3d 808, 811–12
(Tex.Crim.App.2000). Consequently, Appellant’s state jail conviction merely had
its punishment increased, but the “severity level or grade” of the offense remained
the same. Appellant’s Burglary of a Building conviction in 2010 is a state jail
conviction punishable under 12.35(a) and, thus, is barred from being used to 13 increase the future punishment pursuant to 12.425(b) of the Penal Code. Thus,
Appellant’s punishment range was a minimum of one hundred eighty days and a
maximum of 2 years in the State Jail. Tex. Penal Code Ann. § 12.35(a) (West).
Since Appellant’s twenty year sentence far exceed the maximum sentence, the trial
court’s sentence was not provided by law for the offense. Therefore, this Court
should reverse Appellant’s sentence and remand to the trial court to conduct a new
sentencing hearing applying the proper punishment range.
It is for the reasons contained herein that Appellant would respectfully pray
that this Court of Appeals for the Sixth District reverse the judgment of sentence of
the Appellant and remand the case to the 8th Judicial District for retrial of the
punishment phase.
Respectfully submitted,
/s/ Martin Braddy Martin Braddy Attorney for Appellant SBN 00796240 121 Oak Ave., Suite A Sulphur Springs, Texas 75482 (903) 885-2040 (903) 500-2704 fax 14 15 CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing
instrument was forwarded to 8TH Judicial District Attorney, Will Ramsay, on this
the 26th day of April, 2015.
/s/ Martin Braddy Martin E. Braddy
WORD COUNT CERTIFICATION
This document complies with the typeface requirements of Tex. R. App. P.
9.4(e) because it has been prepared in a conventional typeface no smaller than 14-
point for text and 12-point for footnotes. This document also complies with the
word-count limitations of Tex. R. App. P. 9.4(i), if applicable, because it contains
2,211 words, excluding any parts exempted by Tex. R. App. P. 9.4(i)(1).