Kyle Nathan Ward v. State

• Court: Court of Appeals of Texas
• Decided: November 13, 2014
• Docket: 02-13-00296-CR
• Status: Published

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-13-00296-CR

KYLE NATHAN WARD APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY TRIAL COURT NO. 1285530D ----------

MEMORANDUM OPINION1

A jury convicted Appellant Kyle Nathan Ward of criminal mischief and, after

finding the enhancement allegations true, assessed his punishment at

confinement in the penitentiary for eleven years and a fine of $5,000. Appellant

brings this appeal complaining in two issues about the admission of his prior

convictions during the punishment trial. We affirm.

1 See Tex. R. App. P. 47.4. I. Background

The State indicted Appellant for the offense of criminal mischief with a

pecuniary loss of $1,500 or more but less than $20,000 that was committed on or

about June 18, 2012. Tex. Pen. Code Ann. § 28.03(a)(1) (West 2011). The

offense was a state jail felony. Tex. Pen. Code Ann. § 28.03 (b)(4)(A). The

punishment range for a state jail felony is confinement in a state jail for any term

of not more than two years or less than 180 days and a fine not to exceed

$10,000. Tex. Pen. Code Ann. § 12.35(a), (b) (West Supp. 2014). A jury found

Appellant guilty of the offense as charged. Appellant raises no complaint as to

his trial on guilt/innocence.

The State also alleged Appellant was finally convicted of the felony offense

of robbery in the 195th District Court of Dallas County, Texas, in cause number

F05-51748N, on March 3, 2006, and, prior to the commission of that offense,

Appellant had been finally convicted of the felony offense of unlawful possession

of a firearm by a felon in the 203rd District Court of Dallas County, Texas, in

cause number F-0256674-QP on February 14, 2004. If found true, these

convictions raised the punishment range for his current offense to that of a

second degree felony. Tex. Pen. Code Ann. § 12.425(b) (West Supp. 2014). A

second degree felony is punishable for any term of not more than twenty years or

less than two years and a fine not to exceed $10,000. Tex. Pen. Code Ann.

§ 12.33 (West 2011). The jury found the enhancements true and assessed

2 Appellant’s punishment at confinement in the penitentiary for eleven years and a

fine of $5,000.

II. The Record

Appellant asserts two issues regarding the admission of his prior

convictions. To understand his complaints, we first set out the relevant exhibits,

which are State’s Exhibits 24, 24A, and 25. State’s Exhibit 24 is an unredacted

version of four Dallas County convictions, including the two that were used for

enhancement purposes. The trial court admitted State’s Exhibit 24 for record

purposes only. State’s Exhibit 24A is the redacted version of the four Dallas

County convictions that the trial court actually admitted for the jury’s

consideration. State’s Exhibit 25 contains a misdemeanor conviction out of

Tarrant County.

III. Appellant’s First Issue

In his first issue, Appellant asserts the trial court erred by admitting State’s

Exhibits 24A and 25 because the prior convictions were not in proper form and

were, therefore, inadmissible.2 Appellant raises two complaints. First, he

complains that the district clerk’s certificates to the judgments appear on

separate, blank pages that do not reference any other pages. Next, he

2 In his brief, Appellant refers to State’s Exhibits 24 and 25. We construe Appellant’s complaint to address the admission of State’s Exhibit 24A, as that was the exhibit the jury considered when assessing punishment.

3 complains that the documents fail to show that a district judge reviewed and

approved the magistrates’ findings.

State’s Exhibit 25

To the extent Appellant complains about State’s Exhibit 25 in his first

issue, State’s Exhibit 25 contains a county court misdemeanor conviction out of

Tarrant County, the county court clerk’s certificate appears on each page of the

document, the judgment is signed by the county judge, and there is nothing

suggesting a magistrate was involved. We overrule any complaint as to State’s

Exhibit 25.

State’s Exhibits 24 and 24A—Authentication

In his brief, Appellant refers to the composite exhibits “24 and 25.” As

described above, State’s Exhibit 24 is the unredacted version of the four Dallas

County convictions that the trial court admitted for record purposes only. State’s

Exhibit 24A is the redacted version of the same four convictions that the trial

court admitted for the jury’s consideration. Unlike the Tarrant County County

Clerk, the Dallas County District Clerk did not place a certification on each page

of the document but, instead, placed the certification on a separate, blank page

behind each judgment. In conjunction with the judgment in F05-51748N,

Appellant’s trial counsel stated, “[I]t’s all stapled together.” Later Appellant’s trial

counsel, when discussing the redactions, stated he wanted the original exhibit,

which contextually appears to be State’s Exhibit 24, to be kept in exactly the

same form with a single staple in it. The exhibit itself shows the documents

4 presented in a fixed order. The certificates affirm: “I, Gary Fitzsimmons, District

Clerk of Dallas County, Texas, do hereby certify that the foregoing is a true and

correct copy as the same appears on record now on file in my office.” State’s

Exhibit 24A contains the same four judgments but not the separate sheets

containing the district clerk’s certificates. To the extent Appellant refers to a

composite of State’s Exhibits 24 and 25, he appears to be referring to a

composite of State’s Exhibits 24 and 24A, because the only way to understand

his complaint regarding the clerk’s certificates is to refer to State’s Exhibit 24.

Appellant relies on Blank v. State, 172 S.W.3d 673 (Tex. App.—San

Antonio 2005, no pet.). The court in Blank specifically stated that a prior

conviction may be proven by certified copies of a judgment and sentence. Id. at

675. In Blank, there was a clerk’s certification of a “Case Synopsis.” Id. The

court concluded a case synopsis was not a judgment and sentence, reversed the

judgment, and remanded the case for a new trial on punishment. Id. at 675–76.

We find Blank distinguishable because Blank does not question the certification

but, rather, the underlying certified document. Appellant’s complaint goes to the

certification, not the underlying document.

Appellant also relies on Martinez v. State, 754 S.W.2d 831 (Tex. App.—

Houston [14th Dist.] 1988, no pet.). There the State tried to prove up a prior

conviction with a mandate of affirmance from a court of appeals. Id. at 833. The

attempted authentication came not from the clerk of the appellate court but from

a Walker County notary public who had received a copy of the appellate court’s

5 mandate. Id. Because there was nothing showing the notary public was the

custodian of the original document, the court ruled the document was not

properly authenticated and reversed the judgment for a new trial on punishment.

Id. at 834–35. We hold Martinez is distinguishable as well. Appellant’s complaint

is not that the wrong clerk attempted to authenticate the judgments and

sentences; rather, Appellant’s complaint is the manner by which the proper clerk

authenticated the judgments and sentences—by placing the certificate on a blank

page following the judgments and sentences and by having the certificate refer

back to the preceding documents.

In Alvarez v. State, twenty-eight pages of a document were stapled

together as one unit with a certification appearing on the back of the last page.

536 S.W.2d 357, 361 (Tex. Crim. App.), cert. denied, 429 U.S. 924 (1976). The

court held the certification was sufficient. Id. Here, the certificates referenced

the “foregoing,” that is, the preceding documents are true and correct; the four

judgments and supporting documents precede each of the four certificates; and

the record shows the documents were stapled together sequentially, so there is

no ambiguity regarding which preceding documents the certificates were in

reference to. We find no merit in Appellant’s authentication complaint. See Tex.

R. Evid. 902(1), (4).

State’s Exhibits 24 and 24A—the Magistrate Issue

Regarding Appellant’s complaints that the judgments failed to show the

district judges reviewed and approved the magistrates’ findings, three of the four

6 judgments in State’s Exhibits 24 and 24A either expressly or implicitly show both

a magistrate’s and a presiding judge’s involvement. The judgment for cause

number F-0256674-QP identifies Terrie McVea as the magistrate and Lana

McDaniel as the judge and is signed by Judge McDaniel. The second judgment,

F05-51748N, identifies Terrie McVea (ostensibly the same Terrie McVea

identified as a magistrate in judgment F-0256674-QP) as the judge but is signed

by John Nelms, “Judge, 195th District Court.” The third judgment, F01-57673-S,

identifies Stephen Halsey as the magistrate and Karen Greene as the judge and

is signed by Karen Greene, “Judge Presiding.”

Regarding the fourth judgment, F-0859342-X, it identifies Jeanine Howard

as the judge and is signed by Jeanine Howard. There is no suggestion of a

magistrate in F-0859342-X, and Appellant does not appear to include this

judgment within his magistrate complaint but, instead, appears to limit his

complaints as to F-0859342-X to the certification issue. We do not construe

Appellant’s magistrate complaint to encompass this judgment, and to the extent it

does, the record does not support his contention that a magistrate was involved.

Appellant complains there is nothing showing the district judges reviewed

the magistrates’ evidentiary findings. A presumption of regularity applies to court

proceedings. Christian v. State, 865 S.W.2d 198, 202 (Tex. App.—Dallas 1993,

pet. ref’d). A defendant has the burden of overcoming the presumption of

regularity by presenting a record affirmatively showing the irregularity about

which he complains. Id. The judgment in F-0256674-QP affirmatively recites the

7 judge reviewed the magistrate’s findings and approved them. The judgments in

F05-51748N and F01-57673-S do not affirmatively show the judges reviewed

and approved the magistrates’ findings, but they do not affirmatively show the

contrary either. Absent the record affirmatively showing the trial judges did not

review the magistrates’ actions, we have no authority to reverse a judgment.

See id.

Furthermore, Appellant’s complaints go to the procedures followed or, as

he argues, not followed by the district judges before signing the judgments of

conviction. Appellant’s complaints are impermissible collateral attacks. Only

void convictions are subject to collateral attack. Id. at 201. Appellant is not

arguing the convictions are void. Noncompliance with procedural requirements is

not fundamental error subject to collateral attack. Id. (relying on Armstrong v.

State, 805 S.W.2d 791, 793 n.3 (Tex. Crim. App. 1991)). Any alleged procedural

error would render the convictions voidable, not void. Cobbins v. State, Nos. 05-

92-02463-CR, 05-92-0264-CR, 1996 WL 404001, at *2 (Tex. App.—Dallas July

15, 1996, no pet.) (not designated for publication). Even assuming Appellant’s

complaints had merit, the errors would render the judgments voidable, not void.

See Christian, 865 S.W.2d at 201. Because Appellant has not affirmatively

shown error and because any error would be an impermissible collateral attack,

we hold that there is no merit in Appellant’s magistrate complaints and overrule

his first issue. Id. at 203.

8 IV. Appellant’s Second Issue

In his second issue, Appellant argues that the State failed to prove that any

of the judgments in State’s Exhibits 24A and 25 were final convictions as alleged

in the indictment.3 Appellant correctly asserts that for enhancement purposes,

the convictions in F05-51748N and F-0256674-QP were required by statute to be

final. See Tex. Pen. Code Ann. § 12.425(b). Appellant complains there is

nothing in the record showing whether these convictions were appealed and,

therefore, whether they were final for enhancement purposes. Appellant

contends his punishment range should thus have remained that of a state jail

felony with a maximum of two years’ confinement.

The crux of Appellant’s complaint is the enhancement of the range of his

punishment from a state jail felony to a second degree felony. The only two

convictions pertinent to that complaint are F05-51748N and F-0256674-QP found

in State’s Exhibit 24A. Those were the two convictions alleged for enhancement

purposes in the State’s indictment. Accordingly, to the extent Appellant’s brief

complains about State’s Exhibit 25 pertaining to the misdemeanor conviction, we

overrule his complaint, as the conviction in State’s Exhibit 25 had no bearing on

the range of his punishment. Similarly, to the extent Appellant complains about

3 Here, again, Appellant’s brief refers to State’s Exhibit 24. For the reasons explained earlier, we construe his brief to reference State’s Exhibit 24A, which was the redacted version the jury actually considered.

9 the other two convictions in State’s Exhibit 24A, we overrule his complaint as to

them because they also had no bearing on the range of his punishment. We limit

our remaining discussion to the convictions in cause numbers F05-51748N and

F-0256674-QP found in State’s Exhibit 24A.

The State carries its burden by introducing copies of the judgment and

sentence for each enhancement and connecting each one to the defendant.

Tinney v. State, 578 S.W.2d 137, 139 (Tex. Crim. App. [Panel Op.] 1979). In

Tinney, the court held the judgments were admissible provided they were

properly certified and provided they were connected to the defendant through

fingerprint evidence. Id. We held in Appellant’s first issue that the exhibits were

properly certified. Additionally, a fingerprint expert testified that he had compared

Appellant’s known fingerprints to those in the judgments and had concluded they

were the same. Under Tinney, these convictions were admissible. See id.

Once the State shows a prior conviction, the burden shifts to the defendant

to show the judgment was not final. Id.; Hamlin v. State, 632 S.W.2d 203, 206

(Tex. App.—Fort Worth 1982, no pet.). Appellant’s brief does not specify where

he complained at trial about the State’s failure to prove the judgments were final.

Appellant directs us to trial counsel’s objections to these documents, but our

review of these objections does not show any such complaint. We hold the State

carried its burden of making a prima facie case, and in the absence of any

objection or evidence to the contrary, we hold the judgments were final. We

overrule Appellant’s second issue.

10 V. Conclusion

Having overruled Appellant’s two issues, we affirm the trial court’s

judgment.

/s/ Anne Gardner ANNE GARDNER JUSTICE

PANEL: DAUPHINOT, GARDNER, and GABRIEL, JJ.

DO NOT PUBLISH Tex. R. App. P. 47.2(b)

DELIVERED: November 13, 2014