Lonnie Wooten Jr. v. State

• Court: Court of Appeals of Texas
• Decided: September 30, 2020
• Docket: 09-19-00195-CR
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-19-00195-CR __________________

LONNIE WOOTEN JR., Appellant

V.

THE STATE OF TEXAS, Appellee

__________________________________________________________________

On Appeal from the 356th District Court Hardin County, Texas Trial Cause No. 24922 __________________________________________________________________

MEMORANDUM OPINION

In three issues on appeal, Lonnie Wooten Jr. complains that the evidence is

legally insufficient for the trial court to enhance his punishment and to sustain his

conviction for the state jail felony offense of evading arrest or detention. We affirm

the trial court’s judgment.

Background

Wooten was charged with the state jail felony offense of evading arrest or

detention with a previous conviction. See Tex. Penal Code Ann. § 38.04. Prior to

1 trial, the State filed a notice of its intent to seek an enhanced punishment range of a

second-degree felony, alleging that Wooten had two prior felony convictions other

than a state jail felony. See id. §§ 12.35(a); 12.425(b). In enhancement paragraph

one, the State alleged that before the commission of the primary offense, Wooten

was convicted on February 27, 1997, of the felony offense of delivery of a controlled

substance in cause number 12947 in the 356th Judicial District Court of Hardin

County, Texas. In enhancement paragraph two, the State alleged that before the

conviction of the primary offense and after the conviction in enhancement paragraph

one, Wooten was convicted on June 3, 1999, of the felony offense of escape in cause

number 14778 in the 356th Judicial District Court of Hardin County, Texas. In

enhancement paragraph three, the State alleged that before the conviction of the

primary offense and after the convictions in enhancement paragraphs one and two,

Wooten was convicted on November 16, 2011, of the felony offense of evading

arrest with prior convictions-enhanced to a second-degree felony punishment in

cause number 21168 in the 356th Judicial District Court of Hardin County, Texas.

Wooten filed a motion to dismiss the State’s notice of intent to seek

enhancement, alleging that the State failed to give proper notice in enhancement

paragraphs one and two. According to Wooten, enhancement paragraphs one and

two fail to allege which district court the alleged prior was filed in, what degree of

felony he was finally convicted of, and whether the previous convictions are

2 properly sequenced. At the request of Wooten’s counsel, the trial court carried the

motion to dismiss during the trial.

During the guilt-innocence phase of the trial, the State offered a certified copy

of a judgment dated February 11, 1999, in which Wooten was convicted of

misdemeanor evading arrest in cause number 40159 in the County Court of Hardin

County, Texas, and the trial court admitted the judgment without objection. The trial

court heard testimony from Deputy John Williams of the Hardin County Sheriff’s

Department, who testified that on December 31, 2017, he received a report of an

alleged assault, and the victim reported that Wooten had assaulted him. Williams

testified that Wooten denied the assault allegation, and during his investigation,

Williams determined that he needed to detain Wooten for his safety due to Wooten’s

history of evading. Williams explained that Wooten resisted being handcuffed, and

Deputy Bart Bendy used a taser several times to prevent Wooten from running away.

Williams testified that Wooten was arrested for evading and resisting arrest.

Deputy Bendy of the Hardin County Sheriff’s Department also testified that

he detained Wooten while investigating the assault allegation. Bendy explained that

when he advised Wooten that he was being handcuffed for his safety and the

officers’ safety, Wooten resisted, and Bendy had to use his taser several times to get

Wooten to comply. The trial court found Wooten guilty of evading with a prior

conviction.

3 During the punishment phase, the trial court considered the State’s notice to

enhance. Defense counsel noted that his objection to the notice of enhancement

concerning the degree of the felonies had been cured and the issue was a matter of

proof. Lauren Kemp, a criminal investigator with the Jefferson County District

Attorney’s Office, testified as a fingerprint identification expert. Kemp explained

that she took Wooten’s fingerprint and compared it with the fingerprints on six prior

judgments of conviction, and Kemp determined that Wooten’s fingerprint matched

the fingerprints on all six judgments. The trial court found all three enhancement

paragraphs to be true and sentenced Wooten to six years in prison.

Analysis

We first address issue three, in which Wooten argues that the evidence is

legally insufficient to sustain his conviction for a state jail felony. When reviewing

the sufficiency of the evidence, we view all the evidence in the light most favorable

to the verdict and determine, based on that evidence and any reasonable inferences

therefrom, whether any rational factfinder could have found the elements of the

offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979);

Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011). Under section 38.04 of

the Texas Penal Code, a person commits the offense of evading arrest or detention

if he intentionally flees from a person he knows is a peace officer attempting to

lawfully arrest or detain him. Tex. Penal Code Ann. § 38.04(a). The offense of

4 evading arrest or detention is a state jail felony if the actor has been previously

convicted under section 38.04. Id. § 38.04(b)(1)(A).

The indictment alleges that on or about December 31, 2017, Wooten

intentionally fled from Deputy John Williams, a person Wooten knew was a peace

officer who was attempting to lawfully arrest or detain him, and that prior to the

commission of the charged offense, Wooten was convicted of evading arrest under

section 38.04 on February 11, 1999, in cause number 40159 in Hardin County,

Texas. The State had the two-fold burden to prove beyond a reasonable doubt that

Wooten intentionally fled from Deputy Williams, who Wooten knew was a peace

officer lawfully attempting to arrest or detain him, and to prove that when Wooten

was charged with evading a second time, he had previously been convicted of

evading arrest. See Ex parte Carner, 364 S.W.3d 896, 900 (Tex. Crim. App. 2012).

Wooten complains that the trial court erred by enhancing the primary offense

with the 1999 judgment for evading arrest, because using a Class B misdemeanor

under a prior version of the statute to enhance his punishment to a state jail felony

violates his right to due process. According to Wooten, the evading statute has been

amended several times since its enactment, and the version of the statute that was in

effect when he committed the prior offense provided that to enhance a charge to a

state jail felony, the actor was required to (1) use a vehicle while in flight and (2)

have a previous conviction under the statute. Wooten maintains that using his Class

5 B misdemeanor under the prior version of the statute is not consistent with the plain

reading of the current statute.

Generally, the statute governing an offense is the one in effect when the

defendant allegedly committed the offense. Id. The existence of a prior conviction

for evading arrest is an attendant circumstance to the crime that increases the severity

of the offense from a Class A misdemeanor to a state jail felony. See id. The relevant

question is whether Wooten had a prior conviction for evading arrest. See id. at 898.

Neither the date of Wooten’s prior conviction, the severity of the offense of which

he was convicted, nor the fact that the statute has been amended is relevant to

whether Wooten has a prior conviction. See id. at 897, 900. Interpreting the current

version of the statute to mean that the State cannot use a prior conviction for evading

arrest that is a Class B misdemeanor to enhance a primary offense to a state jail

felony defies the plain language of the statute. See Tex. Penal Code Ann. §

38.04(b)(1); Ex parte Carner, 364 S.W.3d at 900. Reviewing all the evidence in the

light most favorable to the verdict, we conclude that a rational factfinder could have

found the elements of the state jail felony offense of evading arrest or detention

beyond a reasonable doubt. See Jackson, 443 U.S. at 319; Gear, 340 S.W.3d at 746;

Tex. Penal Code Ann. § 38.04(a). We overrule issue three.

In issues one and two, Wooten argues that the evidence is legally insufficient

for the trial court to find enhancement paragraphs one and three to be true and to

6 increase his punishment range to a second-degree felony. In reviewing the

sufficiency of the evidence to support a finding that an enhancement allegation is

true, we consider all the evidence in the light most favorable to the finding and

determine whether a rational trier of fact could have found the elements of the

enhancement beyond a reasonable doubt. Wood v. State, 486 S.W.3d 583, 589 (Tex.

Crim. App. 2016). To prove a prior conviction for enhancement, the State must

prove beyond a reasonable doubt that (1) a prior conviction exists and (2) the

defendant is linked to that conviction. Flowers v. State, 220 S.W.3d 919, 921 (Tex.

Crim. App. 2007). If these two elements can be found beyond a reasonable doubt,

the evidence is legally sufficient to prove a prior conviction. Id. at 923.

Wooten was charged with the state jail felony offense of evading arrest or

detention and faced a punishment range of confinement in a state jail for a term of

not more than two years or less than 180 days and up to a $10,000 fine. See Tex.

Penal Code Ann. §§ 12.35(a), (b), 38.04. However, the range of punishment may be

enhanced to the range applicable to a second-degree felony if it is shown that: (1)

the defendant has previously been finally convicted of two felonies other than a state

jail felony punishable under section 12.35(a); and (2) the second previous felony

conviction is for an offense that occurred subsequent to the first conviction having

become final. Id. § 12.425(b). The punishment range for a felony of the second

7 degree is imprisonment for a term of not more than twenty years or less than two

and a fine not to exceed $10,000. Id. § 12.33.

Wooten contends that the judgment introduced to prove enhancement

paragraph one does not reflect the degree of the offense, and that the State failed to

present any evidence showing that the prior conviction was for a felony offense other

than a state fail felony. Enhancement paragraph one alleges that before the

commission of the primary offense, Wooten was convicted on February 27, 1997, of

the felony offense of delivery of a controlled substance in cause number 12947 in

the 356th Judicial District Court of Hardin County, Texas. The trial court admitted a

certified copy of the judgment revoking probation in cause number 12947, which

identified Wooten by name and bears his right thumbprint, and Kemp testified that

the fingerprint she took from Wooten matched the fingerprint on the judgment. The

judgment indicates that (1) the offense of delivery of a controlled substance was

committed on or about January 22, 1993, (2) the degree of the offense was

“481.123[,]” (3) the original punishment was ten years of unadjudicated probation,

(4) Wooten was placed on probation on January 27, 1994, and (5) the trial court

revoked Wooten’s probation on February 27, 1997, and sentenced Wooten to five

years of confinement.

We note the Pre/Post Sentence Investigation Report includes the drug offense

committed on January 22, 1993, and it indicates that the degree of the charge was an

8 unclassified felony. The Texas Code of Criminal Procedure authorizes the trial court

to order and consider a presentence report when the trial court assesses punishment.

Tex. Code Crim. Proc. Ann. art. 37.07, § 3(d). A judge may take judicial notice of

his own file and thus, unobjected-to facts contained within a presentence report can

be judicially noticed and considered evidentiary when assessing punishment. See

Montgomery v. State, 876 S.W.2d 414, 416 (Tex. App.—Austin 1994, pet. ref’d)

(stating that unobjected-to contents of presentence report constitute record evidence

and are sufficient to establish defendant’s prior convictions for enhancement

purposes). The trial court offered the parties the opportunity to object to the factual

accuracy of the report, and defense counsel did not object to the drug offense

committed on January 22, 1993, as being an unclassified felony.

Although Wooten asserts that the evidence is legally insufficient because the

State failed to introduce evidence that the offense of delivery of a controlled

substance was a felony other than a state jail felony, the state jail felony punishment

classification was not statutorily authorized until September 1, 1994. See Act of June

19, 1993, 73rd Leg., R.S., ch. 900, § 1.01, sec. 12.35, 1993 Tex. Gen. Laws 3586,

3644 (current version at Tex. Penal Code Ann. § 12.35); State v. Wooldridge, 237

S.W.3d 714, 716 (Tex. Crim. App. 2007). Because Wooten committed the offense

before the effective date of the state jail felony punishment classification, we

conclude that the offense could not have been a state jail felony. Viewing the record

9 in the light most favorable to the finding, a rational finder of fact could conclude

beyond a reasonable doubt that enhancement paragraph one is true. See Wood, 486

S.W.3d at 589; Flowers, 220 S.W.3d at 921.

Wooten also complains that the trial court erred by using the judgment of

conviction for a state jail felony introduced to prove enhancement paragraph three,

because the punishment for the state jail felony was enhanced with two prior felony

convictions. According to Wooten, a punishment enhancement of the primary

offense did not increase the primary offense to a second-degree felony. We note that

the trial court found all three enhancement paragraphs to be true, and Wooten’s range

of punishment may be enhanced to the range applicable to a second-degree felony if

it is shown that he has been finally convicted of two felonies other than a state jail

felony punishable under section 12.35(a). See Tex. Penal Code Ann. §§ 12.35;

12.425(b). Wooten does not complain that the evidence is legally insufficient for the

trial court to find enhancement paragraph two to be true, which alleged that before

the conviction of the primary offense and after the conviction in enhancement

paragraph one, Wooten was convicted of the felony offense of escape. Because

Wooten has failed to allege any error concerning enhancement paragraph two and

we have already concluded that the evidence is sufficient to support the trial court’s

finding that enhancement paragraph one is true, we need not consider Wooten’s

complaints about enhancement paragraph three. The trial court only had to find that

10 Wooten had been finally convicted of two felonies to enhance his punishment to the

range applicable to a second-degree felony. See Tex. Penal Code Ann. 12.425(b);

Tex. R. App. P. 47.1.

We conclude the evidence is legally sufficient to support the trial court’s

findings that enhancement paragraphs one and two are true. See Wood, 486 S.W.3d

at 589; Flowers, 220 S.W.3d at 921. Accordingly, we overrule issues one and two.

Having overruled each of Wooten’s issues, we affirm the trial court’s judgment.

AFFIRMED.

_________________________ STEVE McKEITHEN Chief Justice

Submitted on April 17, 2020 Opinion Delivered September 30, 2020 Do Not Publish

Before McKeithen, C.J., Kreger and Johnson, JJ.