Affirmed and Opinion Filed December 2, 2020
In The Court of Appeals Fifth District of Texas at Dallas No. 05-19-01324-CR
RICHARD DICK JOLES, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 382nd Judicial District Court Rockwall County, Texas Trial Court Cause No. 2-18-0208
MEMORANDUM OPINION Before Justices Partida-Kipness, Pedersen, III, and Evans Opinion by Justice Partida-Kipness Appellant Richard Dick Joles appeals his conviction for exploitation of an
elderly individual under section 32.53 of the penal code. In a single issue, Joles
contends he is entitled to a new trial because the trial court admitted into evidence a
void prior conviction during the punishment phase of trial. Because we conclude
Joles waived error, we affirm the judgment of conviction.
BACKGROUND
Joles does not challenge the sufficiency of the evidence to sustain his
conviction. We nonetheless provide the following brief recitation of the facts in the light most favorable to the verdict to provide context to the Court’s determination of
the issue presented on appeal. See Banda v. State, 768 S.W.2d 294 (Tex. Crim. App.
1989) (“a brief recitation of the facts in the light most favorable to the verdict is
useful” even where the appellant does not bring a sufficiency challenge); see also
Woodberry v. State, No. 05-00-01823-CR, 2001 WL 1525906, at *1 (Tex. App.—
Dallas Dec. 3, 2001, no pet.) (not designated for publication) (a lengthy recitation of
the facts related to the offenses is unnecessary where appellant does not challenge
sufficiency of the evidence).
The record reflects that, on November 20, 2017, Joles walked into the home
of 82-year-old Edith Granberry and told her that he would repair her roof. Granberry
did not know Joles, did not ask Joles to come to her home, and did not want anyone
to repair her roof that day. Granberry told Joles that she did not want him to do any
repairs and told him to leave, but he refused to leave. Within the hour, Joles had
convinced Granberry to pay him $2,900 via personal check for repairs purportedly
made to her roof.
Granberry called the police about a week later. During the investigation,
Rockwall Police Detective Jalena Page contacted a local roofing company to inspect
the roof. John White of Griffith Roofing inspected the roof of Granberry’s house on
December 1, 2017. White estimated the value of the work performed on Granberry’s
home to be $250 to $275 or, for a company that charges really high prices, $400 or
–2– $500, which would be “extreme.” In White’s opinion, it would not be appropriate in
his business to charge $2,900 for the amount of work that was done.
A grand jury in Rockwall County returned an indictment that charged Joles
with the third-degree felony offense of exploitation of a child, elderly individual, or
disabled individual. See TEX. PENAL CODE § 32.53(b),(c). The case proceeded to trial
before a jury. At the conclusion of the guilt-innocence phase of trial, the jury found
Joles guilty of the third-degree felony offense of exploitation of an elderly individual
as charged in the indictment. See id.
During the punishment phase, the State offered State’s Exhibit 15, which
consisted of court records showing Joles’s 1977 conviction for deceptive trade
practice in Jefferson County, Texas. The trial court admitted State’s Exhibit 15
without objection from Joles. The jury assessed punishment at seven years’
confinement. The trial court signed a final judgment of conviction, and this appeal
followed. In a single issue, Joles contends he is entitled to a new trial because the
1977 judgment is void, was used to enhance punishment, and should not have been
admitted into evidence.
STANDARD OF REVIEW
The standard of review for a trial court’s ruling under the rules of evidence is
abuse of discretion. Sauceda v. State, 129 S.W.3d 116, 120 (Tex. Crim. App. 2004);
Under this standard, an appellate court should not disturb the trial court’s decision if
the ruling was within the “zone of reasonable disagreement.” Page v. State, 213
–3– S.W.3d 332, 337 (Tex. Crim. App. 2006). In other words, we must uphold the trial
court’s ruling if it “was correct on any theory of law applicable to the case, in light
of what was before the trial court at the time the ruling was made.” Id. (quoting
Sauceda, 129 S.W.3d at 120).
ANALYSIS
The Texas Code of Criminal Procedure provides that, during the punishment
phase:
[E]vidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including but not limited to the prior criminal record of the defendant, and . . . any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act.
TEX. CODE CRIM. PROC. art. 37.07, § 3(a)(1). “If a defendant wishes to complain on
appeal about prior convictions admitted as evidence during the punishment phase,
he must make a timely objection to the evidence or waive it.” Ex parte Russell, 738
S.W.2d 644, 647 (Tex. Crim. App. 1986) (op. on reh’g). The State may not, however,
use a void prior criminal conviction to enhance punishment under section 12.42 of
the penal code. Id. As such, when a prior conviction is alleged in the indictment
pursuant to section 12.42 “and used to statutorily raise the range of punishment and
that conviction is based on a fundamentally defective indictment, no objection is
required to preserve error on appeal.” Id.
–4– In his sole issue on appeal, Joles argues that he is entitled to a new trial because
his 1977 conviction for deceptive trade practice was void and, therefore, State’s
Exhibit 15 should not have been admitted into evidence. We overrule this issue
because the State did not use the 1977 conviction as an enhancement, and Joles
waived error by making no objection to admission of the conviction.
The 1977 conviction was not used to raise the range of punishment under
Texas Penal Code § 12.42. The State offered the prior conviction during punishment
only for the jury’s consideration as evidence when assessing punishment. The State’s
indictment included no enhancement paragraph, and the jury did not increase the
range of punishment through its verdict. Rather, the jury assessed punishment at
seven years; within the statutory two- to ten-year range of punishment for the
offense. Further, Joles was convicted of a third-degree felony as charged in the
indictment; he was not punished for a second-degree felony by enhancement under
section 12.42(a) of the penal code. See TEX. PENAL CODE § 12.42(a). The conviction
was, therefore, admissible under TEX. CODE CRIM. PROC. art. 37.07, § 3(a)(1), and
Joles was required to object to the admission of the prior conviction at the time it
was offered by the State. See Ramirez v. State, 89 S.W.3d 222, 231 (Tex. App.—
Corpus Christi–Edinburg 2002, no pet.) (“Texas law long has required a
contemporaneous objection to the admission of a prior conviction during sentencing,
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Affirmed and Opinion Filed December 2, 2020
In The Court of Appeals Fifth District of Texas at Dallas No. 05-19-01324-CR
RICHARD DICK JOLES, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 382nd Judicial District Court Rockwall County, Texas Trial Court Cause No. 2-18-0208
MEMORANDUM OPINION Before Justices Partida-Kipness, Pedersen, III, and Evans Opinion by Justice Partida-Kipness Appellant Richard Dick Joles appeals his conviction for exploitation of an
elderly individual under section 32.53 of the penal code. In a single issue, Joles
contends he is entitled to a new trial because the trial court admitted into evidence a
void prior conviction during the punishment phase of trial. Because we conclude
Joles waived error, we affirm the judgment of conviction.
BACKGROUND
Joles does not challenge the sufficiency of the evidence to sustain his
conviction. We nonetheless provide the following brief recitation of the facts in the light most favorable to the verdict to provide context to the Court’s determination of
the issue presented on appeal. See Banda v. State, 768 S.W.2d 294 (Tex. Crim. App.
1989) (“a brief recitation of the facts in the light most favorable to the verdict is
useful” even where the appellant does not bring a sufficiency challenge); see also
Woodberry v. State, No. 05-00-01823-CR, 2001 WL 1525906, at *1 (Tex. App.—
Dallas Dec. 3, 2001, no pet.) (not designated for publication) (a lengthy recitation of
the facts related to the offenses is unnecessary where appellant does not challenge
sufficiency of the evidence).
The record reflects that, on November 20, 2017, Joles walked into the home
of 82-year-old Edith Granberry and told her that he would repair her roof. Granberry
did not know Joles, did not ask Joles to come to her home, and did not want anyone
to repair her roof that day. Granberry told Joles that she did not want him to do any
repairs and told him to leave, but he refused to leave. Within the hour, Joles had
convinced Granberry to pay him $2,900 via personal check for repairs purportedly
made to her roof.
Granberry called the police about a week later. During the investigation,
Rockwall Police Detective Jalena Page contacted a local roofing company to inspect
the roof. John White of Griffith Roofing inspected the roof of Granberry’s house on
December 1, 2017. White estimated the value of the work performed on Granberry’s
home to be $250 to $275 or, for a company that charges really high prices, $400 or
–2– $500, which would be “extreme.” In White’s opinion, it would not be appropriate in
his business to charge $2,900 for the amount of work that was done.
A grand jury in Rockwall County returned an indictment that charged Joles
with the third-degree felony offense of exploitation of a child, elderly individual, or
disabled individual. See TEX. PENAL CODE § 32.53(b),(c). The case proceeded to trial
before a jury. At the conclusion of the guilt-innocence phase of trial, the jury found
Joles guilty of the third-degree felony offense of exploitation of an elderly individual
as charged in the indictment. See id.
During the punishment phase, the State offered State’s Exhibit 15, which
consisted of court records showing Joles’s 1977 conviction for deceptive trade
practice in Jefferson County, Texas. The trial court admitted State’s Exhibit 15
without objection from Joles. The jury assessed punishment at seven years’
confinement. The trial court signed a final judgment of conviction, and this appeal
followed. In a single issue, Joles contends he is entitled to a new trial because the
1977 judgment is void, was used to enhance punishment, and should not have been
admitted into evidence.
STANDARD OF REVIEW
The standard of review for a trial court’s ruling under the rules of evidence is
abuse of discretion. Sauceda v. State, 129 S.W.3d 116, 120 (Tex. Crim. App. 2004);
Under this standard, an appellate court should not disturb the trial court’s decision if
the ruling was within the “zone of reasonable disagreement.” Page v. State, 213
–3– S.W.3d 332, 337 (Tex. Crim. App. 2006). In other words, we must uphold the trial
court’s ruling if it “was correct on any theory of law applicable to the case, in light
of what was before the trial court at the time the ruling was made.” Id. (quoting
Sauceda, 129 S.W.3d at 120).
ANALYSIS
The Texas Code of Criminal Procedure provides that, during the punishment
phase:
[E]vidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including but not limited to the prior criminal record of the defendant, and . . . any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act.
TEX. CODE CRIM. PROC. art. 37.07, § 3(a)(1). “If a defendant wishes to complain on
appeal about prior convictions admitted as evidence during the punishment phase,
he must make a timely objection to the evidence or waive it.” Ex parte Russell, 738
S.W.2d 644, 647 (Tex. Crim. App. 1986) (op. on reh’g). The State may not, however,
use a void prior criminal conviction to enhance punishment under section 12.42 of
the penal code. Id. As such, when a prior conviction is alleged in the indictment
pursuant to section 12.42 “and used to statutorily raise the range of punishment and
that conviction is based on a fundamentally defective indictment, no objection is
required to preserve error on appeal.” Id.
–4– In his sole issue on appeal, Joles argues that he is entitled to a new trial because
his 1977 conviction for deceptive trade practice was void and, therefore, State’s
Exhibit 15 should not have been admitted into evidence. We overrule this issue
because the State did not use the 1977 conviction as an enhancement, and Joles
waived error by making no objection to admission of the conviction.
The 1977 conviction was not used to raise the range of punishment under
Texas Penal Code § 12.42. The State offered the prior conviction during punishment
only for the jury’s consideration as evidence when assessing punishment. The State’s
indictment included no enhancement paragraph, and the jury did not increase the
range of punishment through its verdict. Rather, the jury assessed punishment at
seven years; within the statutory two- to ten-year range of punishment for the
offense. Further, Joles was convicted of a third-degree felony as charged in the
indictment; he was not punished for a second-degree felony by enhancement under
section 12.42(a) of the penal code. See TEX. PENAL CODE § 12.42(a). The conviction
was, therefore, admissible under TEX. CODE CRIM. PROC. art. 37.07, § 3(a)(1), and
Joles was required to object to the admission of the prior conviction at the time it
was offered by the State. See Ramirez v. State, 89 S.W.3d 222, 231 (Tex. App.—
Corpus Christi–Edinburg 2002, no pet.) (“Texas law long has required a
contemporaneous objection to the admission of a prior conviction during sentencing,
even when the prior conviction was obtained without the defendant having the
benefit of counsel.”) (citing Ex parte Russell, 738 S.W.2d at 647). He did not object
–5– and, therefore, waived this issue on appeal. See Russell, 738 S.W.2d at 647; see also
Ramirez, 89 S.W.3d at 231; McKinney v. State, No. 11-15-00228-CR, 2017 WL
5906887, at *2 (Tex. App.—Eastland Nov. 30, 2017, no pet.) (mem. op., not
designated for publication).
Further, a timely and specific objection is required to preserve an issue for
appellate review. TEX. R. APP. P. 33.1(a); Layton v. State, 280 S.W.3d 235, 238–39
(Tex. Crim. App. 2009). Here, Joles did not assert in the trial court that he contended
the 1977 conviction was void, nor did he object to the State’s proof of the prior
conviction. Joles waived these issues and may not assert them as a basis for
overturning his conviction on appeal. See Russell, 738 S.W.2d at 647; see also
McKinney, 2017 WL 5906887, at *2; TEX. R. APP. P. 33.1(a).
CONCLUSION
When appellant failed to object to admission of the 1977 conviction at trial,
he waived any error as to its admission. We, therefore, overrule his sole issue on
appeal and affirm the judgment of conviction.
/Robbie Partida-Kipness/ ROBBIE PARTIDA-KIPNESS JUSTICE
Do Not Publish TEX. R. APP. P. 47.2(b) 191324F.U05 –6– Court of Appeals Fifth District of Texas at Dallas JUDGMENT
RICHARD DICK JOLES, Appellant On Appeal from the 382nd Judicial District Court, Rockwall County, No. 05-19-01324-CR V. Texas Trial Court Cause No. 2-18-0208. THE STATE OF TEXAS, Appellee Opinion delivered by Justice Partida- Kipness. Justices Pedersen, III and Evans participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 2nd day of December, 2020.
–7–