Roberson v. State

371 S.W.3d 557, 2012 WL 2106552, 2012 Tex. App. LEXIS 4595
Court of Appeals of Texas·Decided June 7, 2012·No. No. 01-10-00907-CR·Published·Cited by 7 cases

Opinions

OPINION

JANE BLAND, Justice.

After a jury found Crystal Yvette Roberson guilty of aggravated assault, Roberson pleaded true to two enhancement paragraphs, based on two prior convictions — an August 28, 1989 conviction for aggravated assault and a July 8, 1991 conviction for possession with intent to deliver cocaine. See Tex. Penal Code Ann. § 22.02(a)(2), (b) (West 2005) (aggravated assault); Act of May 18, 1989, 71st Leg., R.S. ch. 678, § 1, secs. 481.192, 3(D) (cocaine), 481.112(a), (b), 1989 Tex. Gen. Laws 2280, 2928, 2935 (former Tex. Health & Safety Code Ann. §§ 481.102(3)(d), 481.112(a), (b) (since amended)). The jury assessed punishment at thirty years’ imprisonment. On appeal, Roberson contends that: (1) the evidence is insufficient to support the jury’s finding — congruent with her “true” plea — on the second enhancement paragraph as alleged in the indictment; (2) the trial court abused its discretion in granting the State’s motion to cumulate her sentence; and (3) the trial court’s cumulation order is void. We hold that: (1) the evidence supports the enhancement of Roberson’s sentence under the habitual offender statute; (2) Roberson waived her complaint to the trial court’s decision to cumulate her sentence; and (3) the cumulation order is not void. We therefore affirm.

Background

Roberson does not dispute the facts leading to her conviction on the primary offense. In connection with the punishment phase, the State sought to increase Roberson’s sentence by proving two prior convictions to show habitual offender status. The indictment recites the enhancement paragraphs in reverse chronological order, as follows:

Before the commission of the offense alleged above, (herein 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.
Before the commission of the primary offense, and after the conviction in Cause Number 0590710 was final, the Defendant was convicted of 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.

The State’s proof for the second paragraph shows a commission date of May 13, 1987 and a conviction date of August 28, 1989. The State’s proof for the first enhancement paragraph shows a commission date of March 2, 1991 and a conviction date of July 8,1991.

The State also moved to cumulate the sentence with that of Roberson’s preceding conviction. The trial court granted the motion by signing an order that recites: “The foregoing Motion to Cumulate Sentence is hereby GRANTED ... on ... Oct 18,2010....”

Discussion

I. Habitual Offender Status

Roberson first challenges the trial court’s application of the habitual offender statute to enhance her sentence. An habitual offender is a person shown to have “previously been finally convicted of two [560] felony offenses, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final....” Tex. Penal Code Ann. § 12.42(d) (West Supp. 2011). Roberson contends that the evidence is insufficient to support 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.

Generally, a defendant’s true plea to an enhancement paragraph relieves the State of its burden to prove habitual offender status, and the defendant waives any complaint that the evidence is insufficient to support it. See Harvey v. State, 611 S.W.2d 108, 111 (Tex.Crim.App.1981); Cruz v. State, No. 01-00-00463-CR, 2001 WL 1168278, *1 (Tex.App.-Houston [1st Dist.] Oct. 4, 2001, no. pet.) (not designated for publication). Here, however, Roberson relies on the exception initially set forth in Sanders v. State, 785 S.W.2d 445 (Tex.App.-San Antonio 1990, no pet.), that applies when a defendant pleads true to an enhancement paragraph allegation but the record shows that the prior conviction was not final and thus should not have been used for enhancement. See Ex parte Rich, 194 S.W.3d 508, 513-14 (Tex.Crim.App.2006) (citing Sanders, 785 S.W.2d at 448). Roberson specifically relies on the application of the Sanders rule in Mikel nState, 167 S.W.3d 556 (Tex.App.-Houston [14th Dist.2005, no pet.], in which the enhancement paragraphs included an allegation that the second offense was committed before the defendant had been finally convicted for the first offense. See Mikel, 167 S.W.3d at 559.

We find these cases distinguishable. In Sanders and Mikel, the record in' each case affirmatively showed that one of the convictions to which the defendant had pleaded true lacked finality and, as a result, could not apply to prove habitual offender status. See Sanders, 785 S.W.2d at 448; Mikel, 167 S.W.3d at 558-59. Here, the record affirmatively shows the contrary — that both prior convictions met section 12.42(d)’s requirements and were final.

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Roberson v. State, 371 S.W.3d 557, 2012 WL 2106552, 2012 Tex. App. LEXIS 4595 (Tex. Ct. App. 2012).

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