Roberson, Crystal Yvette

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

NO. PD-0917-12

CRYSTAL YVETTE ROBERSON, Appellant

v.

THE STATE OF TEXAS

ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW FROM THE FIRST COURT OF APPEALS HARRIS COUNTY

J OHNSON, J., delivered the opinion of the Court in which K ELLER, P.J., and M EYERS, P RICE, K EASLER, H ERVEY, and A LCALÁ, JJ., joined. W OMACK and C OCHRAN, JJ., concurred.

OPINION

Appellant was charged by indictment with aggravated assault by using a deadly weapon,

namely, a knife. The indictment also included allegations that appellant previously had been

convicted of two felony offenses. After finding appellant “guilty of aggravated assault, as charged

in the indictment,” the jury found the enhancement paragraphs true and assessed punishment of thirty

years’ confinement in the institutional division of the Texas Department of Criminal Justice. On

direct appeal, the court of appeals affirmed the judgment of the trial court. We granted appellant’s

petition for discretionary review. Roberson v. State, 371 S.W.3d 557 (Tex. App.—Houston [1st 2

Dist.] 2012). We affirm the judgment of the court of appeals.

On direct appeal, appellant raised several claims, including a claim that the evidence was

legally insufficient to support the jury’s finding that the second enhancement paragraph was true:

that paragraph should not have been used to enhance her punishment range because the alleged

offense did not occur in the sequence alleged in the indictment. The court of appeals held that the

evidence supported the enhancement of appellant’s sentence under the habitual-offender statute and

affirmed the judgment of the trial court. Id.

We granted appellant’s petition for discretionary review, which presented a single question

for review: whether the opinion of the majority of the First Court of Appeals erroneously relied on

an unpublished memorandum opinion as controlling precedent rather than on a published opinion

from the Fourteenth Court of Appeals that involved the same issue regarding enhanced sentences

and finality of the convictions in enhancement paragraphs. Appellant’s question for review also

suggests that the majority opinion in the court of appeals appears to contradict this Court’s

subsequent adoption of the rationale of the Fourteenth Court of Appeals. We affirm the judgment

of the court of appeals.

I. Facts

The record reflects that, at the beginning of the punishment proceedings and outside of the

presence of the jury, appellant’s attorney announced that she had “an objection to the enhancement

paragraph as it’s stated on the indictment.” She stated that her objection was based upon the fact that

the second enhancement paragraph’s conviction date “is actually before the conviction date on the

first enhancement paragraph[.]” After hearing argument from the attorneys representing the parties,

the trial court “duly noted and overruled” appellant’s objection. Thereafter, before the jury, appellant 3

plead “true” to the two enhancement allegations as they were read from the indictment. In so

reading, the prosecutor switched the order of the enhancement paragraphs, first reading the allegation

in the second enhancement paragraph that appellant had committed aggravated assault and was

finally convicted of that offense on August 28, 1989, and then reading the allegation in the first

enhancement paragraph that appellant had committed possession with intent to deliver a controlled

substance and was finally convicted of that offense on July 8, 1991. The prosecutor also stated that

the conviction alleged in the first enhancement paragraph became final after the conviction alleged

in the second enhancement paragraph. After the state presented evidence in support of the prior

convictions—including penitentiary packets, all the testimony and evidence that was presented in

the guilt phase, the reading of the jury charge, and argument to jurors—the jury found both

enhancement allegations true and assessed punishment at thirty years’ imprisonment.

II. Court of Appeals Opinion

On direct appeal, appellant claimed that the evidence was legally insufficient to support the

jury’s finding that the second enhancement paragraph was true because that paragraph should not

have been used to enhance her punishment range because the alleged offense did not occur in the

sequence alleged in the indictment. Appellant stressed that the enhancements, as plead in the

indictment, would have required her to be finally convicted of the felony of possession with intent

to deliver a controlled substance on July 7, 1991, and after that conviction, to have committed and

been convicted of the felony of aggravated assault on August 28, 1989, some two years earlier. Brief

for Appellant on direct appeal at 5. She further asserted, “This is an impossibility; the State’s

chronology or sequence of convictions in the enhancement paragraphs is defective and incapable of

being proved by any standard.” Id. Appellant claimed that the evidence was insufficient to support 4

the jury’s finding of true to the second enhancement paragraph because the offense did not occur,

and could not have occurred, in the sequence alleged in the indictment. Roberson v. State, 371

S.W.3d at 560.

The court of appeals affirmed the judgment of the trial court holding that the evidence was

sufficient to support the enhancement of appellant’s sentence under the habitual-offender statute and

that the trial court did not err in applying the habitual-offender statute to enhance appellant’s

sentence. Roberson v. State, 371 S.W.3d at 560-61. It determined that the record affirmatively

shows that appellant’s prior convictions met the statutory chronology requirements for habitual-

offender punishment and were final and noted that “[t]he order in which the State alleges prior

convictions in the indictment is not an element of the crime and does not determine finality.” Id. at

560. The court of appeals also noted that appellant’s objection at trial to the faulty enhancement

allegations “obviates any contention that she was misled by the error.” Id. at 561.

III. Appellant’s Question for Review

Appellant’s sole question for review asks, “Whether the First Court of Appeals (Majority

Opinion) erroneously relied on an unpublished memorandum opinion as controlling precedent rather

than a published opinion1 from the Fourteenth Court of Appeals involving the same issue regarding

sequencing and finality of enhancement paragraphs, and[] which Majority Opinion appears to be

contradictory to this Court’s adoption of the rationale of Mikel in Ex parte Rich[,] 194 S.W.3d 508

(Tex. Crim. App. 2008).”

IV. Arguments

Appellant points to the wording of the two enhancement paragraphs. The first paragraph

1 Mikel v. State, 167 S.W .3d 556 (Tex. App.— Houston [14 th Dist.] 2005). 5

alleged that

[b]efore the commission of the offense alleged above, (hereafter styled the primary offense), on JULY 8, 1991, in Cause Number 0590710, in the 177TH DISTRICT COURT of HARRIS County, Texas, the Defendant was convicted of the felony of POSSESSION WITH INTENT TO DELIVER A CONTROLLED SUBSTANCE.

The second enhancement paragraph alleged that

[b]efore the commission of the primary offense, and after the conviction in Cause Number 0590710 was final, the Defendant committed the felony of AGGRAVATED ASSAULT and was finally convicted of that offense on AUGUST 28, 1989, in Cause Number 475567, in the 232ND DISTRICT COURT of HARRIS County, Texas.

Appellant also points to the enhancement allegations and asserts that “it is a factual impossibility in

time or chronology for the second previous offense to have been committed and become final in

1989 after the first previous offense alleged to have been committed and become final in 1991.” She

asserts that, because of this factual and chronological impossibility, it was improper for her to be

sentenced with a punishment range of twenty-five to ninety-nine years or life in prison as a habitual

offender. She also suggests that her thirty-year sentence, “which is in excess of the twenty-five year

minimum of the habitual-offender statute, is ‘illegal’ or void.” Appellant’s Brief on the Merits at

13. Appellant also asserts that it is unknowable whether the jury, had it not been permitted to use

the second prior conviction as an enhancement paragraph, would have sentenced her to a thirty-year

term of confinement. She insists that, had the jury been able to use only one enhancement paragraph

in assessing sentence, it is possible that the jury would have sentenced her to a minimum of five

years in prison because her second-degree felony would have been enhanced with only a single prior

felony conviction, thereby expanding the punishment range to that of a non-habitual first-degree

felony—imprisonment for from five to ninety-nine years or life.

Appellant also argues that the court of appeals, in denying her requested relief and failing to 6

address the issue of the legally insufficient evidence regarding the second enhancement paragraph

due to the impossibility of the alleged sequence of prior convictions, erroneously relied on the

unpublished memorandum opinion in Wilson v. State, No. 14-03-00182-CR, 2004 Tex. App. LEXIS

9286 (Tex. App.—Houston [14th Dist.] October 21, 2004, no pet.). Appellant maintains that the

court of appeals should have relied on the published opinion of Mikel v. State, 167 S.W.3d 556 (Tex.

App.—Houston [14th Dist.] 2005, no pet.), which addresses similar issues involving the sequencing

and finality of prior convictions alleged in enhancement paragraphs, for the disposition of her

challenge to the punishment enhancement allegations that did not occur in the sequence alleged in

the indictment. She also suggests that this Court, in Ex parte Rich, 194 S.W.3d 508, 513 (Tex. Crim.

App. 2006), determined that a defendant may raise a claim of an illegal sentence for the first time

on a writ of habeas corpus, despite having plead “true” to the enhancement paragraphs, which should

likewise permit her, by analogy, to raise her complaint about the enhancement paragraphs despite

having plead “true.”

The state acknowledges that “[c]learly the enhancement paragraphs were alleged in reverse

order and appellant’s 1991 conviction did not happen before her 1989 conviction.” State’s Response

to Petitioner’s Brief on Discretionary Review at 8. It asserts that appellant’s plea of true to an

enhancement paragraph forfeits her right to complain that the evidence is insufficient to support it

unless the record affirmatively reflects that the prior conviction should not have been used for

enhancement. It insists that “mere mistakes in the sequencing of enhancement paragraphs is not

evidence that the enhancement could not be used, and the record affirmatively reflected that

appellant’s prior convictions were final and met the sequentiality requirements for enhancement

under that habitual-offender statute.” Id. at 11. Succinctly, the state argues that “[t]he court of 7

appeals properly concluded that pleading the sentencing enhancement paragraphs in reverse order,

although rendering the second enhancement chronologically impossible, did not cause the second

enhancement itself to be improper and preclude the application of the habitual-offender statute[.]”

Id.

The state points out that, prior to trial, appellant was given written notice of its intent to use

appellant’s prior convictions for enhancement purposes, the offenses it intended to use, dates of

conviction, and the county, court, and cause number of each felony conviction. It contends that the

evidence proves that: both of the offenses that were alleged for enhancement purposes were final

before the primary offense was committed; and the offense in the second paragraph, aggravated

assault, was committed and the conviction was final before the offense in the first paragraph,

possession of a controlled substance was committed. It asserts that the evidence at trial proved that

appellant is a habitual offender: both enhancement paragraphs are true and satisfy the statutory

sequence, even though the paragraphs are in the incorrect sequence in the indictment. It maintains

that, because the record does not affirmatively reflect that appellant plead “true” to a prior conviction

that was ineligible for use under the habitual-offender statute, nor that the commission of her second

prior conviction occurred before her first prior conviction became final, nor that her enhancement

under the habitual-offender statute was improper, she forfeited her right to contest the evidentiary

sufficiency of her sentence by pleading “true” to the enhancement paragraphs in the indictment.

Citing Freda v. State, 704 S.W.2d 41, 42 (Tex. Crim. App. 1986) and Hollins v. State, 571

S.W.2d 873, 876-77 (Tex. Crim. App. 1978), the state asserts that the purpose of the enhancement

paragraphs is to provide notice of the prior convictions relied upon by the state for enhancement

purposes and that it is not necessary to allege the prior convictions with the same particularity as 8

must be used in charging the primary offense. It notes that the test is whether the accused has been

misled to his or her prejudice and asserts that appellant was not so misled and has not argued that

she was so misled. The state points out that appellant’s sole objection at trial was that the

enhancement paragraphs were “faulty” and should be “flipped,” and it agrees with the court of

appeals that appellant’s objection “obviates any contention that she was misled by the error.”

Roberson v. State, 371 S.W.3d at 561.

V. Analysis

Appellant’s question for review includes assertions that the court of appeals erroneously

relied on the unpublished memorandum opinion of Wilson v. State, supra, as controlling precedent.

The court of appeals cited and made comparisons to the unpublished Wilson opinion. Roberson, 371

S.W.3d at 560-61. The court of appeals was justified in citing that unpublished opinion, as is

permissible pursuant to Texas Rule of Appellate Procedure 47.7(a), which provides that “[o]pinions

and memorandum opinions not designated for publication by the court of appeals . . . have no

precedential value but may be cited with the notation, ‘(not designated for publication).’” The court

of appeals did include “not designated for publication” in its citation to Wilson, and its discussion

of Wilson appears to have been more comparative and illustrative rather than viewing Wilson as

precedential authority. Appellant’s complaints are directed more at the court of appeals’s holding

that the trial court did not err in applying the habitual-offender statutory enhancement, which was

in agreement with the disposition in Wilson. We see no error in the court of appeals’s treatment of

Wilson in reaching its holding in this case.

Appellant’s legal claim concerns the sufficiency of the evidence of the enhancement 9

allegations, specifically the second one.2 In Ex parte Rich, 194 S.W.3d at 513, we determined that

the applicant’s plea of “true” to enhancement allegations did not preclude him from raising, for the

first time in a writ of habeas corpus, a claim of an illegal sentence based on an improper

enhancement when one of the prior convictions to which Rich plead “true” was actually a

misdemeanor and had been improperly used to enhance his sentence. We noted the general rule that

a plea of true to an enhancement paragraph relieves the state of its burden to prove a prior conviction

alleged for enhancement and forfeits the right to appeal the insufficiency of evidence to prove the

prior conviction, but recognized an exception when the record affirmatively reflects that the

enhancement itself was improper. Id. We recognized that the exception originated in Sanders v.

State, 785 S.W.2d 445, 448 (Tex. App.—San Antonio 1990, no pet.).

In Sanders, following the jury’s guilty verdict, the defendant plead “true” to an enhancement

paragraph that alleged a single prior and final felony conviction. It was subsequently determined that

the alleged prior felony was not final prior to the commission of the charged offense and thus could

not be used to enhance punishment, in spite of the plea of true. Id. at 448.

Nevertheless, we observe that neither Rich nor Sanders involved the sufficiency of the

evidence to prove the alleged sequence of enhancement allegations. In Rich, 194 S.W.3d at 511-12,

we pointed out that, because one of the convictions that had been used to enhance Rich’s punishment

had been reduced to a misdemeanor, as a matter of law that prior conviction could not be used to

2 Appellant suggests that she may have plead “true” to only one of the two enhancement allegations. But the record reflects that the trial court asked whether she plead “true” or “not true” to the enhancement, and both enhancement allegations had just been read. Appellant plead “true,” and the trial court, without objection, confirmed entry of “a plea of true to those enhancements.” (Emphasis added.) At trial, appellant did not make any claim that she had plead “true” to only one of the two enhancement allegations. Therefore appellant failed to preserve for appellate review such a claim, and we decline to address it. See T EX . R. A PP . P. 33.1. And because of our determination that the evidence was sufficient to support the jury’s verdict finding the enhancement allegations to be true, any issue regarding her plea of “true” is moot. 10

sentence him as a habitual offender. He was therefore sentenced in violation of the law, and such

an illegal sentence was challengeable by a writ of habeas corpus. Sanders involved an enhancement

allegation that could not be used to enhance punishment because the conviction was not final before

the charged offense was committed.

In Mikel v. State, 167 S.W.3d at 558-59, the Fourteenth Court of Appeals determined that a

second enhancement paragraph was not true and should not have been used to enhance the

defendant’s punishment range to that of a habitual offender. The court, while acknowledging that

generally a plea of true to an enhancement paragraph relieves the state of the burden of proving such

enhancement and precludes the defendant from complaining on appeal that the evidence is

insufficient to support such enhancement, recognized the narrow exception created by Sanders,

supra, which provides that “[i]f the record ‘affirmatively reflects’ that a prior conviction was not

final, then the conviction cannot be used to enhance punishment, even though the defendant pled

‘true’ to the enhancement paragraph.” Id. at 559. Discussing Sanders, the Fourteenth Court of

Appeals confirmed that, “when a defendant pleads true to an enhancement paragraph, but the record

affirmatively reflects that the prior conviction was not final for enhancement purposes, the ‘interest

of justice’ requires the reviewing court to consider the error.” Id. The Fourteenth Court of Appeals

also noted that another court of appeals, in the unpublished opinion of Cruz v. State, No. 01-00-

00463-CR, 2001 WL 1168273, at *1 (Tex. App.—Houston [1st Dist.] Oct. 4, 2001, no pet.),

expanded the Sanders exception, applying it not only to cases in which a non-final conviction was

improperly used to enhance punishment, but to any case in which a defendant plead “true” to an

enhancement allegation and the record affirmatively reflects that the prior conviction could not have

been used for enhancement purposes. Id. The Mikel court determined that the second enhancement 11

paragraph should not have been used to enhance Mikel’s punishment range to that of a habitual

offender because the offenses did not occur in the sequence alleged in the indictment and considered

Mikel’s sufficiency challenge despite his plea of “true” at punishment. Id. at 560. Ultimately, the

Fourteenth Court of Appeals held that the evidence was legally insufficient to prove the allegations

in the second enhancement paragraph because no rational trier of fact could have found beyond a

reasonable doubt that the allegations in the second enhancement paragraph were true. Id.

We observe that, in Mikel, the first enhancement paragraph alleged that Mikel was convicted

of “the felony of attempted possession with intent to distribute marijuana” on May 23, 2002, while

the second enhancement paragraph alleged that, after the conviction in the first enhancement offense

was final, Mikel committed the felony offense of escape and was finally convicted of that second

offense on February 9, 2000. Id. at 558. The Mikel court pointed out that the indictment for the

attempted-possession offense alleged a date of commission of “on or about” January 30, 2000, but

that Mikel was not finally convicted of the attempted-possession offense until May 23, 2002. The

judgment that supported the escape offense shows that that offense was committed on February 7,

2000, and that the conviction became final two days later, on February 9, 2000. The court of appeals

noted that, although the attempted-possession offense became final after the escape offense, it was

committed before the escape offense, and it was therefore factually impossible for the attempted-

possession offense to have been committed after the escape conviction became final on February 9,

2000. Id. at 559, n.2. Thus, in Mikel, the record evidence, rather than the enhancement-paragraph

allegations, were determinative of the impossibility of the required sequencing of the prior

convictions.

Texas Penal Code section 12.42(d), describing the penalty for habitual felony offenders 12

generally, provides that

if it is shown on the trial of a felony offense other than a state jail felony punishable under Section 12.35(a) that the defendant has previously been finally convicted of two felony offenses, 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 by imprisonment . . . for life, or for any term of not more than 99 years or less than 25 years.

In Jordan v. State, 256 S.W.3d 286, 290-91 (Tex. Crim. App. 2008), which explained how section

12.42(d) operates, we said that the chronological sequence of events must be proved as: 1) the first

conviction becomes final; 2) the offense leading to a later conviction is committed; 3) the later

conviction becomes final; and 4) the offense for which the defendant presently stands accused is

committed. The state has the burden of proving beyond a reasonable doubt that the defendant’s

second previous felony conviction was committed after the defendant’s first previous felony

conviction became final, and when there is no evidence to show that the offenses were committed

and became final in the proper sequence, the defendant’s sentence may not be enhanced under the

habitual-offender statute. Id. at 291.

The record evidence, including penitentiary packets, reflects that the sequence of the alleged

prior convictions did indeed occur in the required order. Thus the state met its burden as the

evidence is sufficient to prove the statutorily required sequence of convictions in order for

appellant’s punishment range to be enhanced to that of a habitual offender. Appellant does not

dispute that the prior convictions did, in fact, occur in the required sequence, but rather complains

about the sufficiency of the evidence based on the facially incorrect wording of the enhancement

allegations in the indictment. While the indictment’s enhancement paragraphs were erroneously

listed in reverse chronological order on the face of the indictment, when the prosecutor read the 13

enhancement allegations at the punishment proceeding, they were read in the proper order of

commission and finality and conformed to the required sequence of prior convictions. And it was

to the allegations as read at the beginning of the punishment proceeding to which appellant plead

“true.”

Evidentiary sufficiency is separate from allegations and notice. Allegations of prior

convictions for the purpose of enhancement give pretrial notice to a defendant that the state intends

to seek greater punishment and allow a defendant to prepare a defense. See, e.g., Villescas v. State,

189 S.W.3d 290 (Tex. Crim. App. 2006); Brooks v. State, 957 S.W.2d 30 (Tex. Crim. App. 1997).

Evidence sufficient to prove those allegations is an issue at trial. Appellant does not claim that she

lacked notice of the state’s intent or that the state’s evidence was not sufficient to prove the

statutorily required sequence; she claims only that the state could not prove the required sequence

because of the way the prior convictions were alleged in the indictment. However, Appellant had

sufficient notice of the details of the enhancement allegations, and as the court of appeals properly

noted, appellant’s objection to the enhancement paragraphs “obviates any contention that she was

misled by the error.” Roberson, 371 S.W.3d at 561. If she was not misled by the error, she was not

harmed by it. See, e.g., Pelache v. State, 324 S.W.3d 568, 577 (Tex. Crim. App. 2010) (“The issue

[of whether appellant’s sentence can be enhanced] is whether appellant received sufficient notice of

the enhancements so that he had an opportunity to prepare a defense to them. . . . In determining

whether appellant received sufficient notice of the State’s intent to enhance punishment, we look to

the record to identify whether appellant’s defense was impaired by the timing of the State’s notice.”)

We also point out that evidentiary sufficiency is measured by the hypothetically correct jury

charge. Gollihar v. State, 46 S.W.3d 243, 252-53 (Tex. Crim. App. 2001); Malik v. State, 953 14

S.W.2d 234, 240 (Tex. Crim. App. 1997). Such a hypothetically correct jury charge is one that

accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the

state’s burden of proof or unnecessarily restrict the state’s theories of liability, and adequately

describes the particular offense for which the defendant was tried. We have held that the

hypothetically correct jury charge need not incorporate allegations that give rise to immaterial

variances. Cada v. State, 334 S.W.3d 766, 773 (Tex. Crim. App. 2011); Gollihar, 46 S.W.3d at 256.

“[S]ometimes the words in the indictment do not perfectly match the proof at trial.” Byrd v. State,

336 S.W.3d 242, 246 (Tex. Crim. App. 2011); Malik v. State, 953 S.W.2d at 240.

In Young v. State, 14 S.W.3d 748, 750 (Tex. Crim. App. 2000), we held that Malik’s

principles apply equally to the affirmative findings necessary to determining whether the state

sufficiently proved the required habitual-punishment facts and thus to sustain the imposition of an

enhanced punishment. “Thus the sufficiency of the evidence in this context should be measured by

the elements of the hypothetically correct jury charge for the enhancement, as defined by statute.”

Id. The statute at issue, section 12.42(d), permits the enhancement of punishment for a habitual

offender upon proof of the prior convictions in the required manner. The evidence did prove the

prior convictions in the required manner, thus the evidence is sufficient to prove the enhancement

allegations and to enhance appellant’s punishment range to that of a habitual offender.

VI. Conclusion

We hold that the evidence in the record provides sufficient evidence to support the jury’s

finding that the prior convictions did occur in the statutorily required sequence for habitual-offender

enhancement. Accordingly we overrule appellant’s “question for review” and affirm the judgment

of the court of appeals. 15

Delivered: November 20, 2013 Publish