Wood, Carlton

Opinion

PD-0061-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 5/7/2015 8:54:49 AM Accepted 5/7/2015 8:56:20 AM May 7, 2015 ABEL ACOSTA NO. PD-0061-15 CLERK

CARLTON WOOD, Appellant v.

THE STATE OF TEXAS, Appellee

STATE’S BRIEF ON THE MERITS FOLLOWING GRANTING OF PETITION FOR DISCRETIONARY REVIEW

From the Court of Appeals for the Fourth Court of Appeals District of Texas at San Antonio, No. 04-14-00224-CR, and the 226th District Court of Bexar County, Trial Court No. 2013-CR-3690,

NICHOLAS “NICO” LaHOOD Criminal District Attorney Bexar County, Texas

JAY BRANDON Assistant District Attorney SBN 02880500 101 W. Nueva San Antonio TX 78205 (210) 335-2418 jay.brandon@bexar.org IDENTITY OF PARTIES AND COUNSEL

Carlton Wood - Appellant (defendant in the trial court)

Edward A. Bartolomei - Appellant‟s attorneys at trial Robbie L. Ward

David L. McLane - Appellant‟s attorney on appeal

Stacy Esterak - Attorneys for the State at trial Clayton Head

Hon. Sid Harle - Judge Presiding at trial

Jay Brandon - Attorney for the State on appeal

2 TABLE OF CONTENTS Page PARTIES 2

INDEX OF AUTHORITIES 4

STATEMENT OF THE CASE 5

STATEMENT OF PROCEDURAL HISTORY 5

GROUNDS FOR REVIEW

GROUND FOR REVIEW ONE THE COURT OF APPEALS ERRED BY REFUSING TO APPLY A PRESUMPTION THAT THE DEFENDANT PLED TRUE TO THE ENHANCEMENT. 6

GROUND FOR REVIEW TWO WHERE THE TRIAL COURT FINDS AN ENHANCEMENT TRUE AND THE DEFENDANT DOES NOT OBJECT, THE PRESUMPTION SHOULD BE APPLIED. 6

GROUND FOR REVIEW THREE THE EVIDENCE SUPPORTED THE COURT’S FINDING OF TRUE, CONTRARY TO THE COURT OF APPEALS’ HOLDING. 6

PRAYER FOR RELIEF 15

CERTIFICATE OF COMPLIANCE 16

CERTIFICATE OF SERVICE 16

APPENDIX: Court of Appeals opinion attachment

3 INDEX OF AUTHORITIES Page Breazeale v. State, 683 S.W.2d 446 (Tex.Crim.App. 1984) 11

Brown v. State, No. 14-08-00614-CR (Tex.App.—Houston [14th Dist.] 2011, no pet.) 10

Flowers v. State, 220 S.W.3d 919 (Tex.Crim.App. 2007) 12

Freda v. State, 704 S.W.2d 41 (Tex.Crim.App. 1986) 13

Hazelwood v. State, 838 S.W.2d 647 (Tex. App.—Corpus Christi 1992, no pet.) 10

Hunt v. State, 994 S.W.2d 206 (Tex.App.—Texarkana 1999, no pet.) 10

Lincoln v. State, 307 S.W.3d 921 (Tex.App.—Dallas 2010, no pet.) 11

Linton v. State, 15 S.W.3d 615 (Tex.App.—Houston [14th Dist.] 2000, pet. ref‟d) 14

Osteen v. State, 642 S.W.2d 169 (Tex.Crim.App. 1982) 10

Richardson v. State, 957 S.W.2d 854 (Tex.App.—Tyler 1997, pet. ref‟d) 10

Sharp v. State, 707 S.W.2d 611 (Tex.Crim.App. 1986) 9

Tenner v. State, 850 S.W.2d 818 (Tex.App.—El Paso 1993, no pet.) 13

Warren v. State, 693 S.W.2d 414 (Tex.Crim.App. 1985) 9

Wilson v. State, 671 S.W.2d 524 ([Tex.Crim.App. 1984) 9

Wood v. State, 453 S.W.3d 488 (Tex. App.—San Antonio 2014, pet. filed) 5

4 STATEMENT OF THE CASE

Appellant was convicted in a bench trial of evading arrest/ vehicle. After a

presentence investigation report and brief punishment hearing, the court assessed

punishment at imprisonment for four years.

STATEMENT OF PROCEDURAL HISTORY

On December 17, 2014, the Fourth Court of Appeals handed down an

opinion reversing the punishment in this case and remanding to the trial court for

new punishment hearing. The published opinion is by Justice Rebeca Martinez,

joined by Justices Alvarez and Chapa. Wood v. State, 453 S.W.3d 488 (Tex.

App.—San Antonio 2014, pet. filed).

This Court granted the State‟s petition for discretionary review (oral

argument not permitted) on April 22, 2015. This brief on the merits is timely filed.

STATEMENT OF FACTS

The facts of the offense are not relevant to this appeal. Appellant Carlton

Wood was charged with evading arrest/vehicle. He pled not guilty in a bench trial

and was found guilty. After a subsequent pre-sentence investigation report, the

court held a punishment hearing. At the beginning the court announced in open

court that the enhancement count had been found true. No one responded. The

court assessed punishment of four years‟ imprisonment.

5 GRANTED GROUNDS:

GROUND FOR REVIEW ONE THE COURT OF APPEALS ERRED BY REFUSING TO APPLY A PRESUMPTION THAT THE DEFENDANT PLED TRUE TO THE ENHANCEMENT.

GROUND FOR REVIEW TWO WHERE THE TRIAL COURT FINDS AN ENHANCEMENT TRUE AND THE DEFENDANT DOES NOT OBJECT, THE PRESUMPTION SHOULD BE APPLIED.

GROUND FOR REVIEW THREE THE EVIDENCE SUPPORTED THE COURT’S FINDING OF TRUE, CONTRARY TO THE COURT OF APPEALS’ HOLDING.

SUMMARY OF THE ARGUMENT

The Fourth Court of Appeals has handed down an opinion reversing the

punishment in this case and remanding to the trial court for new punishment

hearing. The court specifically refused to apply the presumption found in Rule of

Appellate Procedure 44.2(c)(4) that a defendant has pled to an indictment. Instead

the court held the exact opposite, that a plea of true to an enhancement count “must

be affirmatively reflected by evidence in the record.” This holding is contrary to

many cases saying the presumption must be applied in the face of a silent record.

Furthermore, the trial court in this case announced at the beginning of the

6 punishment hearing, in front of Appellant and his counsel, that the enhancement

count had been found true. Appellant had an opportunity to make an issue of this

but did not. Appellant also testified during the hearing that he had been convicted

of possession of a controlled substance, the same offense alleged in the

enhancement.

It is clear from the record that Appellant pled true to the enhancement

paragraph off the record. The Fourth Court erred by not applying the presumption.

ARGUMENT

The Enhancement Allegation

Appellant‟s indictment included a paragraph titled “Enhancement

Allegation,” which read as follows:

And it is further presented in and to said Court that, before the commission of the offense alleged above, on the 23rd day of SEPTEMBER, A.D. 2002, in Cause No. 2002CR2129, in Bexar County, Texas, the defendant was convicted of the felony of POSS CS PG1 1 GRAM TO 4 GRAMS…

(CR 5)

The Trial Court’s Finding

Appellant‟s was a bench trial. After the trial court found him guilty of

evading arrest, the court recessed for a punishment hearing. That hearing included

a presentence investigation report, which the court had reviewed (RR3 3), but

which is not in the record. At the beginning of the hearing, the court said, “The

7 enhancement has been found true.” (RR3 3) No one objected to this finding or

commented on it in any way. Then the court heard punishment evidence.

The docket sheet also shows that the enhancement was found true. (CR 66)

The judgment says that Appellant pled true to the enhancement and it was found

true. (CR 56)

Other Evidence

The PSI report obviously contained information the court read which is not

in the record. The court asked Appellant how much of his six-year prison term he

had served. (RR3 4) There was no testimony or other evidence concerning the

length of Appellant‟s previous sentence.

Appellant also testified that he had been convicted of possession of a

controlled substance and served prison time for it. (RR3 60-1) That was the

offense alleged for enhancement. Appellant said this was in “the 2000s,” but he

wasn‟t sure if it was 2002, the date alleged in the indictment. (RR3 61)

The Presumption

Texas Rule of Appellate Procedure 44.2(c) says:

Presumptions. Unless the following matters were disputed in the trial court, or unless the record affirmatively shows the contrary, the court of appeals must presume: (1) that venue was proved in the trial court; (2) that the jury was properly impaneled and sworn; (3) that the defendant was arraigned; (4) that the defendant pleaded to the indictment or other charging instrument; and 8 (5) that the court‟s charge was certified by the trial court and filed by the clerk before it was read to the jury. (emphasis added)

The Court of Appeals’ Holding

The court of appeals acknowledged this presumption, but held, “However, a

defendant‟s plea of „true‟ to an enhancement allegation must be affirmatively

reflected by evidence in the record. Wilson[ v. State], 671 S.W.2d [524] at 525-26

([Tex.Crim.App. 1984)].” Wood, supra, 453 S.W.3d at 491. The court of appeals

then proceeded to hold that the State had not put on sufficient evidence to uphold

the finding of true to the enhancement allegation. Id. at 492.

The Wilson opinion was handed down from this Court in 1984. It does

indeed say what the court of appeals cited it as saying, but cites no authority for

that proposition. The Rules of Appellate Procedure were promulgated by this

Court (and the Supreme Court) to take effect September 1, 1986. Rule 44.2(c), set

out above, seems designed to overrule Wilson, sub silentio. Whatever the

intention, the rule now controls this situation.

Since Wilson, this Court has held that the presumption of regularity in

proceedings controls unless the supposed error was called to the attention of the

trial court or the record affirmatively demonstrates the contrary. Sharp v. State, 707

S.W.2d 611, 616 (Tex.Crim.App. 1986). Warren v. State, 693 S.W.2d 414, 416

9 (Tex.Crim.App. 1985), points out that courts of appeals are to presume that the

defendant was arraigned and that he pleaded to the charging instrument, “unless

such matters were made an issue in the court below, or otherwise affirmatively

appears to the contrary from the record.”

Many courts have applied the various presumptions found in this rule.

Osteen v. State, 642 S.W.2d 169, 171 (Tex.Crim.App. 1982)(based on the

predecessor to Rule 44.2(c); court must presume jury properly empaneled and

sworn); Hunt v. State, 994 S.W.2d 206 (Tex.App.—Texarkana 1999, no pet.)(it is

to be presumed that the defendant pled to the indictment); Hazelwood v. State, 838

S.W.2d 647 (Tex. App.—Corpus Christi 1992, no pet.)(silence in the record does

not amount to an affirmative showing that a plea was not taken); Brown v. State,

No. 14-08-00614-CR (Tex.App.—Houston [14th Dist.] 2011, no pet.)

(memorandum opinion)(“we must presume a defendant was arraigned and pleaded

to the indictment unless these matters were disputed in the trial court or the record

affirmatively shows the contrary”).

One of the most significant of these is Richardson v. State, 957 S.W.2d 854,

856 (Tex.App.—Tyler 1997, pet. ref‟d), which says, “[T]he record must

affirmatively show that the indictment in its entirety was not read, or trial counsel

must have called the omission to the attention of the court. Silence in the record

does not amount to an affirmative showing.” (emphasis added).

10 The record in this case shows only a resounding silence in the record. The

trial court announced in open court that the enhancement had been found true.

Appellant had the perfect opportunity to call any omission in arraigning or

pleading to the trial court‟s attention but did not. Defense counsel apparently knew

as well as the court did that Appellant had pled true off the record. This is the

exact situation Rule 44.2 was designed to cover.

The court of appeals‟ opinion holds, in effect, that there must be evidence in

the record before this presumption may be honored. In other words, a fact may be

presumed true as long as the State proves it true. This misunderstands the nature

of a presumption, which is a fact to be presumed without evidence. If it needed

evidence, it wouldn‟t be a presumption.

Effect of the Judgment

The judgment in this case also recites that Appellant pled true to the

enhancement count. (CR 56) This creates a similar presumption, that the recital is

accurate absent direct proof of its falsity. Breazeale v. State, 683 S.W.2d 446, 450-

51 (Tex.Crim.App. 1984); Lincoln v. State, 307 S.W.3d 921, 922 (Tex.App.—

Dallas 2010, no pet.). It is to be presumed that a defendant pled to an indictment

if the judgment says so. Sharp, supra. This presumption applies to enhancements

as well. Warren, supra, 693 S.W.2d at 415; Hunt, supra, 994 S.W.2d at 206.

11 Again, the defendant must make an issue of this in the trial court in order to

show the presumption is untrue. Id. This Appellant made no issue of any supposed

absence of a plea in the trial court, even given a very direct opportunity to do so.

Clearly, Appellant knew he had pled true.

Sufficient Evidence

Aside from the presumption, there was sufficient evidence before the trial

court to prove that Appellant had been convicted of the prior offense alleged in the

indictment. The trial court obviously had evidence in the presentence investigation

report, to which the court referred when questioning Appellant about how much of

his sentence he had served. Furthermore, Appellant freely admitted that he had

been convicted of possession of a controlled substance, the offense alleged in the

indictment. Given the fact that an enhancement allegation does not have to be

proven with the same precision as guilt, this was sufficient evidence to support the

court‟s finding of true.

To establish that a defendant has been convicted of a prior offense, the State must prove beyond a reasonable doubt that (1) a prior conviction exists, and (2) the defendant is linked to that conviction. No specific document or mode of proof is required to prove these two elements. There is no „best evidence‟ rule in Texas that requires that the fact of a prior conviction be proven with any document, much less any specific document… Just as there is more than one way to skin a cat, there is more than one way to prove a prior conviction.

Flowers v. State, 220 S.W.3d 919, 921-22 (Tex.Crim.App. 2007).

12 Appellant‟s own testimony proved both the existence of a prior conviction

and that he was linked to it. He had, in fact, served time for that conviction.

Added to the information available to the court in the PSI report, this sufficed to

prove the prior conviction.

That Appellant didn‟t remember the exact year of his conviction is

insignificant. He clearly knew the conviction the State alleged. The purpose of an

enhancement allegation is simply to give a defendant notice of the prior conviction

on which the State intends to rely. “It is well settled that it is not necessary to

allege prior convictions for the purpose of enhancement with the same particularity

which must be used in charging on the primary offense.” Freda v. State, 704

S.W.2d 41, 42 (Tex.Crim.App. 1986). Proof has been held sufficient where the

name of the offense, the date, the cause number, or the state of conviction has

varied from the claim in the enhancement count. See, Freda, supra; Woodward v.

State, No. 04-10-00815-CR, 2011 Tex.App. LEXIS 8706 (Tex.App.—San Antonio

2011, no pet.)(not designated for publication)(name of offense of prior conviction

incorrect); Foster v. State, No. 04-01-00040-CR, 2002 Tex.App. LEXIS 1081

(Tex. App.—San Antonio 2002, no pet.)(not designated for publication)

(enhancement count listed wrong date; affirmed). Appellant does not claim he was

unfairly surprised by any variation. Tenner v. State, 850 S.W.2d 818, 820 (Tex.

App. —El Paso 1993, no pet.). In fact, he clearly was not.

13 The court of appeals held, “The State not only failed to prove the conviction

to be used for enhancement beyond a reasonable doubt, it failed to present even

prima facie evidence of the conviction.” Wood, supra, slip op. at 6. This holding is

contradictory to the teachings of Flowers, supra. Flowers says no documentary

evidence is required. The Fourth Court says it is. If a defendant‟s admission that

he was previously convicted of the offense alleged for enhancement isn‟t prima

facie evidence of that conviction, what is? Flowers says, “Texas substantive law

does not require that the fact of a prior conviction be proven in any specific

manner…. Any type of evidence, documentary or testimonial, might suffice.” 220

S.W.3d at 922. The Fourth Court of Appeals, by contrast, wants to require

evidence of a document. Again, this is contrary to the law as stated by this Court.

Harm

In addition to all this, failure to read an enhancement count is harmless

unless this absence misled the defendant into thinking he was not being charged as

a repeat offender. Linton v. State, 15 S.W.3d 615, 620-21 (Tex.App.—Houston

[14th Dist.] 2000, pet. ref‟d). As stated above, the purpose of putting an

enhancement allegation in the charging instrument is to give the defendant that

notice. Reading the enhancement does the same.

Appellant was not misled. His testimony makes clear that he knew he was

being charged as a repeat offender, and he was aware of the prior offense being

14 alleged for that purpose. He acknowledged he had been convicted of that offense.

Appellant was not misled in any way.

Conclusion

This case demonstrates the reasons for the presumptions that should have

been applied. Events happen in court known to all the participants that may not be

obvious to appellate judges who weren‟t there. If anything had been done

improperly in the trial court, the defense had the perfect opportunity to point that

out to the trial judge (which it was required to do to raise this error on appeal). The

defense did not take that opportunity. Appellant and his counsel knew he had pled

to the enhancement allegation.

Nothing refutes what the judge said in court and what the judgment recites.

This is at best a silent record on the issue, which does not provide support for

refusing to presume that Appellant pled to the indictment. In this published

opinion the Fourth Court of Appeals has imposed a requirement on trial courts not

mandated by rules, caselaw, or this Court‟s holdings.

PRAYER FOR RELIEF

The State prays that this Court will reverse the judgment of the court of

appeals and affirm the judgment of the trial court.

Respectfully submitted,

NICHOLAS “NICO” LaHOOD Criminal District Attorney 15 Bexar County, Texas

/s/ Jay Brandon ______________________________ JAY BRANDON Assistant Criminal District Attorney Bexar County, Texas 101 West Nueva, 3rd Floor San Antonio, Texas 78204 (210) 335-2418 jay.brandon@bexar.org State Bar No. 02880500 Attorneys for the State

CERTIFICATE OF COMPLIANCE

I certify, in accordance with Rule 9.4 of the Texas Rules of Appellate Procedure

that this document contains 3,006 words.

/s/ Jay Brandon _____________________________ JAY BRANDON

CERTIFICATE OF SERVICE

I certify that a copy of the foregoing brief was sent by electronic mail to

David L. McLane, Attorney for Appellant, and to State Prosecuting Attorney Lisa

McMinn, 209 W. 14th Street, Suite 202, Austin TX 78701, on the 7th day of May,

2015.

/s/ Jay Brandon ___________________________ JAY BRANDON

16 Page 1

112V9C

Carlton WOOD, Appellant v. The STATE of Texas, Appellee

No. 04-14-00224-CR

COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

453 S.W.3d 488; 2014 Tex. App. LEXIS 13425

December 17, 2014, Delivered December 17, 2014, Filed

NOTICE: PUBLISH tion. The trier of fact weighs the credibility of each piece of evidence and determines whether the totality of the SUBSEQUENT HISTORY: Petition for discretionary evidence establishes the existence of the alleged convic- review granted by In re Wood, 2015 Tex. Crim. App. tion and its link to the defendant beyond a reasonable LEXIS 483 (Tex. Crim. App., Apr. 22, 2015) doubt. In reviewing the sufficiency of the evidence to support a finding that an enhancement is "true," courts PRIOR HISTORY: [**1] From the 226th Judicial consider all the evidence in the light most favorable to District Court, Bexar County, Texas. Trial Court No. the finding and determine whether a rational trier of fact 2013-CR-3690. Honorable Sid L. Harle, Judge Presiding. could have found the essential elements beyond a rea- sonable doubt. A defendant's plea of "true" to an en- DISPOSITION: REVERSED AND REMANDED. hancement allegation must be affirmatively reflected by evidence in the record. LexisNexis(R) Headnotes

Criminal Law & Procedure > Sentencing > Guidelines > Adjustments & Enhancements > General Overview Criminal Law & Procedure > Sentencing > Guidelines Evidence > Inferences & Presumptions > Presumptions > Adjustments & Enhancements > General Overview > Presumption of Regularity Evidence > Procedural Considerations > Burdens of [HN2] A presumption of regularity of a judgment with Proof > Proof Beyond Reasonable Doubt respect to a prior conviction does not arise until after the Criminal Law & Procedure > Sentencing > Appeals > State presents prima facie evidence of the conviction to Standards of Review > General Overview be used for enhancement. When the State fails to make a Criminal Law & Procedure > Preliminary Proceedings prima facie showing of an enhancement conviction, the > Entry of Pleas > General Overview defendant has no obligation to complain or object to any [HN1] To establish a prior conviction for purposes of defect in the judgment concerning the alleged prior con- enhancement, the State must prove two elements beyond viction. a reasonable doubt: the existence of a prior conviction and the defendant's link to that conviction. A defendant's plea of "true" to the enhancement allegation satisfies the Criminal Law & Procedure > Sentencing > Guidelines State's burden of proof. Absent a plea of "true," the State > Adjustments & Enhancements > General Overview must prove the two elements by introducing evidence Criminal Law & Procedure > Sentencing > Appeals > such as the defendant's admission or stipulation, docu- Standards of Review > General Overview mentary proof, such a a judgment, that contains suffi- Evidence > Procedural Considerations > Weight & cient information showing the defendant's identity as the Sufficiency person convicted of the prior offense, or testimony by a Criminal Law & Procedure > Appeals > Standards of person with knowledge of the defendant's prior convic- Review > Harmless & Invited Errors > Evidence Page 2 453 S.W.3d 488, *; 2014 Tex. App. LEXIS 13425, **

[HN3] A failure of proof on an enhancement allegation is In a single issue, Wood argues the finding in the not subject to a harmless error analysis. A sufficien- judgment that the enhancement paragraph is "true" is cy-of-evidence deficiency can never be considered without any basis. Wood asserts that because he did not harmless. enter a plea of "true" to the enhancement on the record and the State failed to present any evidence to prove up COUNSEL: For APPELLANT: David L. McLane, The the prior conviction, the trial court erred in finding the McLane Law Firm, San Antonio, TX. enhancement "true." The State argues that because Wood failed to object in the trial court, [**3] a presumption For APPELLEE: Jay Brandon, Assistant District Attor- applies that he pled "true" to the enhancement as recited ney, San Antonio, TX. in the judgment. During the guilt/innocence phase, Wood testified JUDGES: Opinion by: Rebeca C. Martinez, Justice. that he previously had "one drug conviction" for which Sitting: Rebeca C. Martinez, Justice, Patricia O. Alvarez, he had been to prison "in the 2000's." Wood provided no Justice, Luz Elena D. Chapa, Justice. details concerning that prior drug conviction, and stressed that he had been to prison only once. On OPINION BY: Rebeca C. Martinez cross-examination, the prosecutor questioned Wood about two prior charges for drug-related offenses: (i) OPINION possession of one to four grams of a controlled substance [*489] REVERSED AND REMANDED on October 30, 2000; and (ii) possession with intent to deliver four to 200 grams of a controlled substance on On appeal, Carlton Wood asserts there is insufficient February 7, 2002. Wood did not admit to being convicted evidence to support the enhanced sentence he received of either of those charges and no documentary evidence for evading arrest with a motor vehicle. We agree and was presented by the State with regard to these alleged reverse that portion of the judgment and remand for a charges. The prosecutor did not question Wood about the new punishment hearing. September 23, 2002 conviction for possession of one to four grams of a controlled substance that was alleged in BACKGROUND the enhancement paragraph of the indictment. No docu- Wood was charged by indictment with having com- mentary proof of that conviction was offered or admitted. mitted the third degree felony offense of evading arrest After the trial court found Wood guilty of the evading with a vehicle, for which the punishment range is im- arrest charge, it ordered a pre-sentence investigation re- prisonment for two to ten years. TEX. PENAL CODE ANN. § port to be prepared [**4] before sentencing. 38.04 (West Supp. 2014); id. § 12.34(a) (West 2011). At the beginning of the punishment hearing, the trial The indictment contained an enhancement paragraph court stated on the record, "[t]he enhancement was found alleging that Wood was previously convicted of posses- true." The court did not take Wood's plea of "true" or sion of one to four grams of a controlled substance, Pen- "not true" to the enhancement on the record. During the alty Group 1, on September 23, 2002 in Bexar County, hearing, the court did not specify whether its finding that Texas, a third degree felony. [**2] TEX. HEALTH the enhancement was "true" was based on a plea of &SAFETY CODE ANN. § 481.115(a), (c) (West 2010). If "true" (which does not appear in the record) or on other found true, the enhancement would elevate the punish- proof of the prior conviction alleged in the indictment. ment range for the evading arrest offense to that of se- No objection was raised by Wood. After the court's cond degree felony, i.e., imprisonment for two to twenty statement that "the enhancement was found true," the years. TEX. PENAL CODE ANN. § 12.42(a) (West Supp. following discussion occurred between the trial court, 2014); id. § 12.33(a) (West 2011). Wood pled not Wood, and defense counsel with regard to how much [*490] guilty to evading arrest, waived his right to a time Wood served on the prior conviction: jury trial, and was tried by the court. The trial court found Wood guilty of evading arrest with a vehicle as THE COURT: How long did you actu- charged in the indictment. During the punishment phase, ally serve on that six-year term, Mr. the trial court found that the enhancement allegation was Wood? "true." The court denied Wood's request for probation and sentenced Wood to four years' imprisonment in the DEFENDANT: The full six years, Texas Department of Criminal Justice-Institutional Divi- Your Honor. sion. No fine was assessed. Wood timely appealed. THE COURT: How come? ANALYSIS DEFENSE COUNSEL: No, you were on parole for three years. Page 3 453 S.W.3d 488, *; 2014 Tex. App. LEXIS 13425, **

DEFENDANT: For three. Here, the judgment recites that Wood pled "true" to the enhancement paragraph of the indictment and that the THE COURT: So you did three. enhancement was found "true." The State argues that DEFENDANT: Be specific, yes. "[o]bviously something happened off the record" to sup- Three on parole and three. port the court's finding that the enhancement was "true," and asserts that both sides as well as the court proceeded as if Wood had pled "true." The State contends that, be- cause Wood did not object in the trial court and the rec- The State argues that it is apparent from the above ord does not affirmatively show the opposite, we must exchange that Wood and his counsel were on notice the presume the regularity [**7] of the judgment and its State was seeking an enhancement, were aware of the recital that Wood pled "true;" therefore, the State's bur- details of the prior conviction used [**5] for the en- den of proof was satisfied by the alleged plea of "true." hancement, and were not surprised [*491] or preju- See Wilson, 671 S.W.2d at 525-26; TEX. R. APP. P. diced by the court's finding that the enhancement was 44.2(c)(4). However, a defendant's plea of "true" to an "true" -- as evidenced by Wood's failure to object which enhancement allegation must be affirmatively reflected the State asserts waived any error. See Marshall v. State, by evidence in the record. Wilson, 671 S.W.2d at 526; 185 S.W.3d 899, 902-03 (Tex. Crim. App. 2006) (de- Wise v. State, 394 S.W.3d 594, 598 (Tex. App.--Dallas fendant is on notice that State is seeking greater penalty 2012, no pet.). As noted, the record does not affirma- when enhancement is contained in indictment and not tively show that Wood entered any plea at all to the en- waived, and specific trial objection is necessary to pre- hancement allegation. Without a plea of "true" in the serve error due to court's failure to read enhancement record, we proceed with our analysis by determining allegation and take defendant's plea). The State's argu- whether the State met its burden of proof on the en- ment misses the mark because Wood is not complaining hancement allegation. See Wise, 394 S.W.3d at 600; see that he failed to receive proper notice of the prior convic- also Guyton v. State, No. 04-13-00179-CR, 2014 Tex. tion to be used for enhancement, but, rather, that the App. LEXIS 6766, 2014 WL 2917213, at *1 (Tex. State failed to prove the prior conviction. App.--San Antonio June 25, 2014, no pet.) (mem. op., not [HN1] To establish a prior conviction for purposes designated for publication) (in absence of "true" plea in of enhancement, the State must prove two elements be- the record, appellate court proceeds as if defendant pled yond a reasonable doubt: (i) the existence of a prior con- "not true" to enhancement). viction; and (ii) the defendant's link to that conviction. [*492] Based on the record before us, we con- Flowers v. State, 220 S.W.3d 919, 921 (Tex. Crim. App. clude the State wholly failed to establish the September 2007). A defendant's plea of "true" to the enhancement 23, 2002 prior conviction alleged in the enhancement allegation satisfies the State's burden of proof. Wilson v. paragraph of the indictment. The State did not introduce State, 671 S.W.2d 524, 525 (Tex. Crim. App. 1984). Ab- a certified copy of the judgment for that offense as is sent a plea of "true," the State must prove the two ele- customary, and did not offer any other type of documen- ments by introducing evidence such as the defendant's tary or testimonial proof of the alleged September 23, admission or stipulation, documentary proof, e.g., a 2002 conviction. While the State attempted to get [**8] judgment, that contains sufficient [**6] information Wood to admit to two other drug charges with different showing the defendant's identity as the person convicted dates, he refused to admit to being convicted for those of the prior offense, or testimony by a person with offenses. Finally, Wood's vague testimony that he had knowledge of the defendant's prior conviction. Flowers, "one drug conviction" for which he went to prison "in the 220 S.W.3d at 921-22. The trier of fact weighs the credi- 2000's" was insufficient, without more, to prove up the bility of each piece of evidence and determines whether enhancement allegation in the indictment. See Prihoda, the totality of the evidence establishes the existence of 352 S.W.3d at 808-09 (listing different types of proof the alleged conviction and its link to the defendant be- that have been held sufficient to prove a prior conviction yond a reasonable doubt. Id. at 923. In reviewing the for enhancement purposes). sufficiency of the evidence to support a finding that an enhancement is "true," we consider all the evidence in The State not only failed to prove the conviction to the light most favorable to the finding and determine be used for enhancement beyond a reasonable doubt, it whether a rational trier of fact could have found the es- failed to present even prima facie evidence of the con- sential elements beyond a reasonable doubt. Prihoda v. viction. Therefore, contrary to the State's argument, no State, 352 S.W.3d 796, 807 (Tex. App.--San Antonio presumption of regularity attached to the judgment's re- 2011, pet. ref'd) (citing Isassi v. State, 330 S.W.3d 633, citals with respect to the enhancement conviction. See 639 (Tex. Crim. App. 2010)). Fletcher v. State, 214 S.W.3d 5, 8 (Tex. Crim. App. 2007) ([HN2] presumption of regularity of a judgment with Page 4 453 S.W.3d 488, *; 2014 Tex. App. LEXIS 13425, **

respect to a prior conviction does not arise until after the for a third degree felony with no enhancement. However, State presents prima facie evidence of the conviction to [HN3] a failure of proof on an enhancement allegation is be used for enhancement). When the State fails to make a not subject to a harmless error analysis. Wise, 394 prima facie showing of an enhancement conviction, as it S.W.3d at 600; Ex parte Miller, 330 S.W.3d 610, 624 did here, the defendant has no obligation to complain or (Tex. Crim. App. 2009) (noting a sufficiency-of-evidence object to any defect in the judgment concerning the al- deficiency can never be considered harmless). leged prior conviction. Id. at 7. As in the [**9] similar Based on the foregoing reasons, we sustain Wood's case Wise, we do not apply a presumption of regularity in issue, reverse the portion of the judgment assessing pun- the enhancement proceedings in a way that relieves the ishment and remand for a new punishment hearing. See State of its burden to prove the enhancement allegations. Wise, 394 S.W.3d at 600-01. Wise, 394 S.W.3d at 599 (citing Fletcher, 214 S.W.3d at 9). Rebeca C. Martinez, Justice Finally, the State asserts that any error in the en- PUBLISH hancement proceedings is harmless because the four-year sentence Wood received is within the punishment range 112V9C ********** Print Completed **********

Time of Request: Thursday, May 07, 2015 09:38:50 EST

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