PD-0061-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS June 5, 2015 Transmitted 6/5/2015 12:54:47 PM Accepted 6/5/2015 1:45:39 PM ABEL ACOSTA NO. PD-0061-15 CLERK ___________________________________________________
IN THE COURT OF CRIMINAL APPEALS ___________________________________________________
CARLTON WOOD, Appellant
VS.
STATE OF TEXAS, Appellee ___________________________________________________
On Petition for Discretionary Review in Cause No. 04-14-00224-CR, Fourth Court of Appeals and On Appeal from Cause No. 2013 CR 3690 226TH Judicial District Court Bexar County, Texas
RESPONDENT’S BRIEF ON THE MERITS FOLLOWING GRANTING OF THE STATE’S PETITION FOR DISCRETIONARY REVIEW
DAVID L. MCLANE 9901 IH-10 West, Ste. 695 San Antonio, Texas 78230 (210) 736-9966 (210) 547-7932 fax dlmclanelaw@yahoo.com State Bar No. 00795517
ATTORNEY FOR APPELLANT
1 IDENTITY OF PARTIES AND COUNSEL
In accordance with TEX. R. APP. P. 38.1(a), and for purposes of
disqualification and/ or recusal of members of this Honorable Court, the
following is a list of those parties involved in the instant cause:
1. Hon. Sid Harle, Judge, 226th Judicial District Court
2. Carlton Wood, Defendant/ Appellant
3. Mr. Edward A. Bartolomei, Attorney for Defendant, SBN: 01852470 420 Baltimore Ave., San Antonio, Texas 78215 (210) 225-0393
4. Ms. Robbie L. Ward, Attorney for Defendant, SBN: 24033435 420 Baltimore Ave., San Antonio, Texas 78215 (210) 225-0393
5. David L. McLane, Attorney for Defendant/Appellant, SBN: 00795517 9901 IH 10 West, Ste. 695, San Antonio, Texas 78230 (210) 736-9966
6. Jay Brandon SBN: 02880500; Stacy Esterak, SBN: 24065743, Nicolas “Nico” LaHood, Bexar County District Attorney, Attorney for State of Texas/ Appellee 101 W. Nueva, Third Floor, San Antonio, Texas 78205 (210) 335-2311
7. Clayton Haden, Attorney for State of Texas/ Appellee, SBN: 24026918 101 W. Nueva, Third Floor, San Antonio, Texas 78205 (210) 335-2311
2 TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL 2
TABLE OF CONTENTS 3
INDEX OF AUTHORITIES 5
STATEMENT OF THE CASE 6
STATEMENT OF PRECEDURAL HISTORY 6
GROUNDS FOR REVIEW 7
GROUND FOR REVIEW ONE: THE COURT OF APPEALS ERRED BY REFUSING TO APPLY A PRESUMPTION THAT THE DEFENDANT PLED TRUE TO THE ENHANCEMENT
RESPONSE TO GROUND FOR REVIEW ONE: THE COURT OF APPEALS PROPERLY HELD THAT A PLEA OF TRUE TO THE ENHANCEMENT PARAGRAPH MUST BE AFFIRMATIVELY REFLECTED IN THE RECORD AND DECLINED TO IMPOSE A PRESUMPTION OF REGULARITY UNDER TRAP 44.2(C) AND RELIEVE THE STATE OF THE BURDEN OF PROVING THE ENHANCEMENT ALLEGATION BEYOND A REASONABLE DOUBT.
GROUND FOR REVIEW TWO: WHERE THE TRIAL COUR FINDS AN ENHANCEMENT TRUE AND THE DEFENDANT DOES NOT OBJECT, THE PRESUMPTION SHOULD BE APPLIED.
RESPONSE TO GROUND FOR REVIEW TWO: THE COURT OF APPEALS CORRECTLY FOUND THAT THE PRESUMPTION OF REGULARITY IN TRAP 44.2(C) APPLIES TO THE PRESUMPTION THAT A PLEA WAS ENTERED UNLESS SUCH MATTERS WERE MADE AN ISSUE IN THE COURT BELOW OR OTHERWISE AFFIRMATIVELY APPEARS TO THE CONTRARY FROM THE RECORD, AND THAT THE APPELLANT HAD NO
3 BURDEN TO OBJECT. AND THAT THE STATE FAILED TO PROVE THE ENHANCEMENT ALLEGATIONS BEYOND A REASONABLE DOUBT OR EVEN PROVE PRIMA FACIE EVIDENCE OF SAME.
GROUND FOR REVIEW THREE: THE EVIDENCE SUPPORTED THE COURT’S FINDING OF TRUE, CONTRARY TO THE COURT OF APPEALS’ HOLDING
RESPONSE TO GROUND FOR REVIEW THREE: THE STATE FAILED TO PROVE THE ENHANCEMENT ALLEGATIONS BEYOND A REASONABLE DOUBT OR EVEN PROVE PRIMA FACIE EVIDENCE OF SAME.
SUMMARY OF THE ARGUMENT 10
ARGUMENT 11
PRAYER FOR RELIEF 23
CERTIFICATE OF COMPLIANCE 24
CERTIFICATE OF SERVICE 24
APPENDIX ATTACHMENT
4 INDEX OF AUTHORITIES TEXAS CASES:
Breazeale v. State, 683 SW2d 446, 450-51 (Tex. Crim. App. 1984)... 18
Campbell v. State, 49 SW3d 874, 878 (Tex. Crim. App. 2001)…….. 15
Ex Parte Miller, 330 SW3d 610, 624 (Tex. Crim. App. 2009)…….. 20, 22
Fletcher v. State, 214 SW3d 5, 9 (Tex. Crim. App. 2007) 13, 16, 17, 19, 22
Flowers v. State, 220 SW3d 919, 921 (Tex. Crim. App. 2007)…. 14, 16, 22
Henry v. State, 331 SW3d 552, 555 (Tex. App.- Houston [14th Dist.] 2011, no pet.)……………………………………………………………...17, 18, 22
Hunt v State, 994 SW2d 206 (Tex. Crim. App. 1999)……………………..19
Jordan v State, 256 SW3d 286, 292- 293 (Tex. Crim. App. 2008)……21, 22
Sharp v. State, 707 SW2d 611 (Tex. Crim. App. 1986)…………………..19
Warren v. State, 683 SW2d 414 (Tex. Crim. App. 1985)……………...…19
Wilson v. State, 671 SW2d 524, 526 (Tex. Crim. App. 1984)……13, 14, 22
Wise v. State, 394 SW3d 594 (Tex. App.- Dallas 2014, no pet.)..12, 14, 17, 18, 22
Wood v. State 453, SW3d 488 (Tex. App.- San Antonio, 2014, pet. filed)..6, 16
TEXAS STATUTES:
Texas Rule of Appellate Procedured 44.2(c)(4)……………..…10, 11, 12, 21 Texas Code of Criminal Procedure Art. 36.01 …………………………….12 Tex. Penal Code Ann. 2.01………………………………………………...12 Tex. Penal Code Ann. 12.42(a). …………………………………………..15 Tex. Penal Code Ann. 12.42(d)…………………..…………………….16, 18
5 STATEMENT OF THE CASE
Appellant Carlton Wood was charged with evading arrest/ vehicle.
The Appellant waived a jury, and tried the case to the bench on February 3,
2014. The indictment, which contained the enhancement paragraph, (CR-5)
was read at the beginning of the trial. Although the enhancement allegation
was not read, Appellant did not object, or raise the failure of the
enhancement paragraph being read as an issue on appeal. Carlton Wood
pleaded not guilty (RR p 3, ln 7-18) to the indictment. Afterward, a bench
trial was had and Appellant was found guilty. The Court held a punishment
hearing on March 26, 2014. At the beginning of the punishment hearing,
prior to any testimony being elicited, without Appellant entering a plea of
true, or any documentary proof being offered by the state, the court
announced that the enhancement count had been found true. A 5-minute
punishment hearing was held and the Court sentenced Appellant to four
years imprisonment.
STATEMENT OF PROCEDURAL HISTORY
On December 17, 2014, the Fourth Court of Appeals reversed the
judgment assessing punishment in this case and remanded the case to the
trial court for a new punishment hearing. The published opinion is by
6 Justice Rebecca Martinez, joined by Justices Alvarez and Chapa. Wood v.
State 453, SW3d 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. The State filed its brief on the
merits on May 7, 2015. This Response to the State’s Brief is timely filed.
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
RESPONSE TO GROUND FOR REVIEW ONE: THE COURT OF APPEALS PROPERLY HELD THAT A PLEA OF TRUE TO THE ENHANCEMENT PARAGRAPH MUST BE AFFIRMATIVELY REFLECTED IN THE RECORD AND DECLINED TO IMPOSE A PRESUMPTION OF REGULARITY UNDER TRAP 44.2(C) AND RELIEVE THE STATE OF THE BURDEN OF PROVING THE ENHANCEMENT ALLEGATION BEYOND A REASONABLE DOUBT.
GROUND FOR REVIEW TWO: WHERE THE TRIAL COURT FINDS AN ENHANCEMENT TRUE AND THE DEFENDANT DOES NOT OBJECT, THE PRESUMPTION SHOULD BE APPLIED.
RESPONSE TO GROUND FOR REVIEW TWO: THE COURT OF APPEALS CORRECTLY FOUND THAT THE APPELLANT HAD NO BURDEN TO OBJECT TO THE COURT’S FINDING OF TRUE TO THE ENHANCEMENT ALLEGATIONS.
GROUND FOR REVIEW THREE: THE EVIDENCE SUPPORTED THE COURT’S FINDING OF TRUE, CONTRARY TO THE COURT OF APPEALS’ HOLDING
7 RESPONSE TO GROUND FOR REVIEW THREE: THE STATE FAILED TO PROVE THE ENHANCEMENT ALLEGATIONS BEYOND A REASONABLE DOUBT OR EVEN PROVE PRIMA FACIE EVIDENCE OF SAME.
OBJECTIONS TO STATE’S BRIEF ON THE MERITS
Appellant objects to the State’s Brief on the grounds that the State
seeks to introduce evidence not contained in the record and have this Court
make its determination by considering such evidence. The State does so on
page 7 of its brief by stating “It is clear from the record that Appellant pled
true to the enhancement paragraph off the record,” and in referencing “a
presentence investigation report, which the court had reviewed (RR3 3), but
which is not in the record.” The state does so again on page 8 by stating
“The PSI report obviously contained information the Court read which is not
in the record.” The State does so again on page 11 stating “Defense counsel
apparently knew as well as the court did that Appellant had pled true off the
record.” The State does so again on page 12 stating “Clearly Appellant
knew he had pled true,” and that “the trial court obviously had evidence in
the presentence investigation report.” The state does so again on page 13
stating “Added to the information available to the court in the PSI report,
this sufficed to prove the prior conviction,” and that “he [Appellant] clearly
knew the conviction the State alleged.” The State does so again on page 15
8 by stating “This case demonstrates the reasons for the presumption 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…Appellant and his counsel knew he had plead to the enhancement
allegation.” Appellant objects to all the above statements as there is nothing
in the record which states this, supports this, or otherwise properly places
these contentions before this Court. The PSI was not admitted into evidence
and is not properly before this Court, is not contained in the record and
should not be considered. The State’s above statements amount to nothing
more than surmise and conjecture and speculation by an appellate attorney
who was not present at the sentencing hearing, and are in fact false
statements of the events that occurred at the sentencing hearing, which is
additionally objectionable as counsel testifying. Appellant moves to strike
all the above statements and references in the State’s Brief and moves for
this Court to completely disregard same as they are not contained in or part
of the record in this case.
SUMMARY OF THE ARGUMENT
The Fourth Court of appeals found that the State failed to prove even
a prima facie case in support of the enhancement allegations in the
indictment. The State seeks to have this Court impose the presumption
9 found in Texas Rule of Appellate Procedure (TRAP) 44.2(c)(4) that
defendant has plead to an indictment, and to make the extraordinary leap that
said plea must be a plea of “True” to the enhancement allegation, when the
plea could have just as likely been a plea of “Not True,” especially in light
of the “Not Guilty” plea entered by Appellant to the indictment which
placed the burden directly upon the state to prove each allegation of the
indictment, including the enhancement paragraph, beyond a reasonable
doubt. The Court of Appeals correctly found that a plea of true to an
enhancement paragraph must be affirmatively reflected by evidence in the
record. This record contains no such evidence.
The State also contends that the Appellant had the burden of objecting
to the Trial Court’s finding the enhancement paragraph True. The Court of
Appeals correctly found that the Appellant in fact had no burden or
obligation to object to the Court’s finding of True.
Finally, the State argues that the Appellant did not suffer any harm by
the State’s failure to read the enhancement count. The State misses the mark
in this argument in that Appellant has not raised issue as to the State’s
failure to read the enhancement paragraph, but instead has raised the issue
that the State has failed to prove the enhancement paragraph beyond a
10 reasonable doubt. Such a failure of proof is not subject to a harmless error
analysis.
ARGUMENT
The Court of Appeals properly held that a plea of True to the
enhancement paragraph must be affirmatively reflected in the record and
declined to impose a presumption of regularity under TRAP 44.2(c)(4) and
relieve the state of the burden of proving the enhancement allegation beyond
a reasonable doubt. The Court of Appeals correctly found that the appellant
had no burden to object to the Court’s finding of True to the enhancement
allegations. The state failed to prove the enhancement allegations beyond a
reasonable doubt or even prove prima facie evidence of same.
The State argues that this Court should apply the presumption found
in TRAP 44.2(c)(4) finding “Unless the following matters were disputed in
the trial court, or unless the record affirmatively shows the contrary, the
court of appeals must presume…(4) that the Defendant pleaded to the
Indictment or other charging instrument” (emphasis added.) It is undisputed
that the Appellant, the Defendant in the underlying cause, plead “Not
Guilty” to the indictment. (RR p 3, ln 7-18). However, the State would
have the Court make the unsupported, mind-bending legal conclusion that
the plea so entered must be therefore be presumed to be a plea of “True” to
11 the enhancement paragraph. The presumption in TRAP 44.2 (c)(4) is that
the Defendant pleaded to the Indictment. However, the plea could be a plea
of Not Guilty, Nolo Contendre, or Guilty and still comply with the
presumption of regularity of TRAP 44.2 (c)(4). Likewise, a plea of Not
True comports with the presumption of regularity as does a plea of True to
an enhancement allegation. However, when the enhancement allegation is
contained in the indictment, and the indictment is read at the beginning of
trial, as was done in this case, and the Defendant affirmatively pleas on the
record “not guilty,” the presumption of regularity is fulfilled and TRAP
44.2(c)(4) is satisfied by proof in the record. Once the Appellant entered his
plea of “not guilty” to the indictment, even though the State failed to read
the entire indictment, the State was put to task to prove the allegations
contained in the indictment beyond a reasonable doubt. See, Texas Code of
Criminal Procedure Art. 36.01 and Texas Penal Code 2.01. Additionally,
the Courts have declined to impose a presumption of regularity under TRAP
44.2(c)(4) and relieve the State of its burden of proving enhancement
allegations beyond a reasonable doubt. Wise v. State, 394 SW3d 594 (Tex.
App.- Dallas 2014, no pet.); Fletcher v. State, 214 SW3d 5, 9 (Tex. Crim.
App. 2007).
12 Additionally, the State complains that the Court should presume, and
therefore find, that Appellant pled true to the enhancement allegation
because Defendant failed to object to the court’s finding of true at
sentencing. However, the State ignores that it failed to provide prima facie
evidence of an enhancement conviction, as expressly stated by the Fourth
Court of Appeals. The State had both the burden and the opportunity to
present prima facie evidence of the Appellants prior conviction for
enhancement purposes, and it wholly failed to do so. Appellant’s plea of
“true” to an enhancement allegation must be affirmatively reflected by
evidence in the record. Wilson v. State, 671 SW2d 524, 526 (Tex. Crim.
App. 1984); Wise, 394 SW3d at 598. (The Court should note that Wilson
has been followed numerous times post the 1986 promulgation of the Texas
Rules of Appellate Procedure, thereby nullifying the State’s argument that
said promulgation overrules Wilson, sub silentio.). No evidence in the
record reflects Appellant’s plea of “True” to the enhancement allegation.
The State clearly recognizes this as fact and thus resorts to attempts to direct
the Court’s attention to allegations of evidence outside the record, to which
Appellant re-urges his objection. See, Objections to State’s Brief, supra. As
noted in the Fourth Court’s opinion, the record does not affirmatively show
that Wood entered any plea at all to the enhancement allegation specifically,
13 only that he pled “not guilty” to the indictment which contained the
enhancement allegation. In light of his plea of “not guilty” to the
indictment, which contains the enhancement paragraph, it legally follows,
and the court should interpret his plea as such, that Wood plead “not true” as
well to the enhancement paragraph. Without a plea of “true” in the record,
the Court must proceed with the analysis as to whether the state met its
burden of proof on the enhancement allegations. See, Wise, 394 SW3d at
600. The State must prove two elements beyond a reasonable doubt: (1) the
existence of a prior conviction; and (2) the defendant’s link to that
conviction. Flowers v. State, 220 SW3d 919, 921 (Tex. Crim. App. 2007).
A Defendant’s plea of True satisfies the State’s burden of proof. Wilson,
671 SW2d at 525. Absent a plea of True, the State must prove the two
elements by introducing evidence such as the defendant’s admission or
stipulation, documentary proof, e.g. a judgment, that contains sufficient
information showing the defendant’s identity as the person convicted of the
offense, or testimony by a person with knowledge of the defendant’s prior
conviction. Flowers, 220 SW3d at 921-22. In absence of a plea of “true” in
the record, appellate court proceeds as if defendant pled “not true” to
enhancement.
14 Based on the record before the Court, the State wholly failed to
establish the September 23, 2002 prior conviction alleged in the
enhancement paragraph of the indictment. Wood’s vague testimony that he
had “one drug conviction” for which he went to prison “in the 2000s” is
insufficient, without more, to prove up the enhancement allegation in the
indictment which was alleged to have been a felony of Possession of
Controlled Substance Penalty Group 1, 1-4 grams, a third degree felony.
The evidence elicited by the State does not rise to proof beyond a reasonable
doubt that the drug offense was a third degree felony or higher. The
evidence elicited by the State could just as likely have proven a State Jail
Felony, or possibly even a misdemeanor, which would not be permitted to
enhance a third degree felony. See, Tex. Pen. C 12.42(a). Campbell v.
State, 49 SW3d 874, 878 (Tex. Crim. App. 2001). The State contends in its
brief that defendant’s admission of “one drug conviction” is prima facie
proof of the offense alleged in the enhancement paragraph. On the contrary,
it does not prove beyond a reasonable doubt the offense alleged in the
enhancement paragraph because it fails to prove what type of drug
conviction, what penalty group to which the controlled substance he was
convicted belonged, whether it was a possession charge, manufacturing and
delivery charge, conspiracy charge, or any other drug related offense; or the
15 amount of the controlled substance of which he was convicted, all of which
are essential elements of the enhancement allegation to be proven by the
State beyond a reasonable doubt in order to classify it as a misdemeanor,
state jail felony, or a felony for enhancement purposes under Tex. Penal
Code 12.42. Although given ample opportunity, and although the State
solely bore the burden of doing so, the State simply failed to meet its burden.
The State’s complaint that the “Fourth Court of Appeals, by contrast, wants
to require evidence of a document” is without merit whatsoever. The Fourth
Court of Appeals wants the State to carry its burden, in conformity with the
holding in Flowers. See , Wood v. State, 453 SW3d 488, 491 (Tex. App.-
San Antonio 2014, pet. filed).
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. Therefore, contrary to the State’s
argument, no presumption of regularity attached to the judgment’s recitals
with respect to the enhancement conviction. Fletcher, 214 SW3d 5 at 8.
(presumption of regularity of a judgment with respect to a prior conviction
does not arise until after the State presents prima facie evidence of a
conviction to be used for enhancement.) When the State fails to make a
prima facie showing of an enhancement conviction, as it did in this case, the
16 Defendant has no obligation to complain or object to any defect in the
judgment concerning the alleged prior conviction. Id.at 7. As in the similar
case, Wise, the Court should not apply a presumption of regularity in the
enhancement proceedings in a way that relieves the State of its burden to
prove the enhancement allegations beyond a reasonable doubt. Wise, 394
SW3d at 599 (citing Fletcher, 214 SW3d at 9).
Additionally, as in Wise, the State asserts the record is silent because
there is nothing in the record to indicate when Appellant’s plea to the
enhancement paragraph was taken by the Court (if it was taken by the Court
at all, which Appellant denies), and because a “silent record will not suffice
as an affirmative showing,” the State maintains the presumption of regularity
is not overcome. However, we do have a transcript of the punishment
hearing at which no plea to the enhancement paragraph was taken by the
court. Cf. Henry v. State, 331 SW3d 552, 555 (Tex. App.- Houston [14th
Dist.] 2011, no pet.) (only indication in record appellant pleaded ‘true” to
enhancement was recitals in court’s judgment, and because record contained
no evidence of plea to enhancement allegation, case analyzed as one in
which appellant pleaded “not true”).
The State argues that because the judgment in this case also recites
that Appellant pled true to the enhancement count, that it creates a similar
17 presumption that the recital is accurate absent direct proof of its falsity and
cites Breazeale v. State, 683 SW2d 446, 450-51 (Tex. Crim. App. 1984).
However, this is in direct contradiction of the holding in Henry, supra, and
is clearly distinguished by the holding in Wise, in that, unlike the State’s
burden here, to prove enhancement allegations beyond a reasonable doubt,
the State bears no burden at trial with respect to the execution of a
defendant’s jury-trial waiver, which was the subject of the holding in
Breazeale. See Tex. Code Crim. Proc. Ann. Art. 1.13(a). Wise, 394 SW3d at
599. If a jury trial waiver is not documented in the record, “nothing more is
implicated…than an alleged failure in the trial court to conform to statutory
prescriptions for showing a waiver of jury trial.” Breazeale, 683 SW2d at
452. In contrast, enhancement allegations, if proved, operate to increase the
punishment range of a defendant. See, Tex. Penal Code Ann. 12.42(d). If
the State’s proof or a defendant’s plea of “true” is not somehow documented
in the record, the defendant’s punishment could be enhanced based on prior
convictions the State does not prove. The Court in Wise, declined to apply a
presumption of regularity in the proceedings in a way that relieves the State
of its burden to prove the enhancement allegations beyond a reasonable
doubt, especially when, as in this case, the State had the opportunity to
18 introduce such proof at the punishment hearing. See, Fletcher, 214 SW3d at
9.
Additionally, the State’s authority for the imposition of the
presumption of regularity are clearly distinguishable from the case at bar in
that the issues decided differed from the argument in this case, specifically
that the State failed to introduce sufficient evidence to prove the
enhancement allegations beyond a reasonable doubt. In support of its
position, the State cites Sharp v. State, 707 SW2d 611 (Tex. Crim. App.
1986); Warren v. State, 683 SW2d 414 (Tex. Crim. App. 1985); and Hunt v
State, 994 SW2d 206 (Tex. Crim. App. 1999). In Sharp, a capital murder
case, the court held that the trial court did not commit reversible error by not
reading the indictment to the jury or taking his plea in the presence of the
jury, because the presumption of regularity requires the defendant to raise
that issue at trial or in a motion for new trial. This case is clearly
distinguishable from the instant case. Appellant in this case does not make
the same complaint regarding the reading of the indictment.
Additionally, Warren is distinguishable in that it again raises the issue
as to whether the enhancement paragraph was read to the jury, which is
not the issue in this case. Hunt is also distinguishable, in that it held that
although the indictment failed to state all of the elements for the firearm
19 offense, defendant failed to preserve such error for appeal by timely and
proper objection since his motion was generalized and failed to specify
which offense was at issue. Moreover, the defect was not so great as to
deprive the trial court of jurisdiction to convict. Although the record was
incomplete, it was presumed, pursuant to Tex. R. App. P. 44.2(c), that the
indictment was read to the jury in its entirety, as required by Tex. Code
Crim. P. Ann. art. 36.01(a)(1). Again, the issue of whether the
enhancement allegation was read to the Appellant in this case is not the issue
presented on appeal, but rather that the State failed to present sufficient
prima facie evidence of the prior conviction for enhancement purposes
beyond a reasonable doubt. The authority cited by the State does not control
these issues.
At the time the Court found the enhancement allegation true, Woods
had not pleaded “true” to the allegation, and at no time did the parties
represent to the Court that he had. On this record, the Court must conclude
that the State failed to meet its burden, and Wood’s punishment was
enhanced based on a conviction the State did not prove. Such a failure of
proof is not subject to a harmless error analysis. Ex Parte Miller, 330 SW3d
610, 624 (Tex. Crim. App. 2009); Jordan v State, 256 SW3d 286, 292- 293
(Tex. Crim. App. 2008).
20 CONCLUSION
As stated by the Fourth Court of Appeals, the State’s argument misses
the mark because Wood is not complaining that he failed to receive proper
notice of the prior conviction to be used for enhancement, or that it was not
read, or that he did not plea to it in open court, or that he was misled in any
way, but, rather, that the State failed to prove the prior conviction for
purposes of enhancement beyond a reasonable doubt. It is the State’s burden
to do so. The State attempts to subordinate its burden by urging the Court to
find through the presumption in TRAP 44.2(c)(4) that the defendant entered
a plea, and to further presume that the plea was a plea of True, which is not
provided for in the presumption of regularity provided by TRAP 44.2(c)(4).
Were the Court to do so, it would venture down a very slippery slope indeed,
wherein the State would be able to obtain and uphold enhancements, and
possibly convictions, without proof beyond a reasonable doubt, simply
because a clerk enters it on a judgment or a defendant does not object when
the State has not even provided prima facie evidence. It was not the intent
of the promulgators of TRAP 44.2(c)(4) that the presumption or regularity
would be able to supplant the State’s burden of proof. The State’s position
does not seek to resolve differences in the holdings of the appellate courts in
21 this state affecting the Jurisprudence of this State. Instead, the State is trying
to have this court relieve them of their Burden of Proof, in contravention of
the uniform holdings of the appellate courts, and the Court of Criminal
Appeals, as held in Wise, Wilson, Henry, Fletcher, Ex Parte Miller, Jordan,
and Flowers.
The State wholly failed to provide prima facie evidence of the
conviction to be used for enhancement. Therefore, contrary to the State’s
argument, no presumption of regularity attached to the judgment’s recitals
with respect to the enhancement conviction. Fletcher, 214 SW3d 5 at 8.
(presumption of regularity of a judgment with respect to a prior conviction
does not arise until after the State presents prima facie evidence of a
conviction to be used for enhancement.) When the State fails to make a
prima facie showing of an enhancement conviction, as it did in this case, the
Defendant has no obligation to complain or object to any defect in the
judgment concerning the alleged prior conviction. Id.at 7. As in the similar
case, Wise, the Court should not apply a presumption of regularity in the
enhancement proceedings in a way that relieves the State of its burden to
prove the enhancement allegations beyond a reasonable doubt. Wise, 394
22 PRAYER FOR RELIEF
The Appellant prays that this Court will uphold the judgment of the
Court of Appeals reversing the punishment judgment of the trial court and
remanding this case to the trial court for a new punishment hearing.
RESPECTFULLY SUBMITTED,
THE MCLANE LAW FIRM 9901 IH 10 West, Ste. 695 San Antonio, Texas 78230 Email: dlmclanelaw@yahoo.com Telephone: (210) 736-9966 Facsimile: (210) 547-7932
By:_/s/ David L. McLane DAVID L. MCLANE State Bar No.: 00795517 ATTORNEY FOR APPELLANT CARLTON WOOD
23 CERTIFICATE OF COMPLIANCE
Pursuant to Texas Rule of Appellate Procedure 9.4 (i)(3), the
undersigned counsel hereby certifies that the Response to State’s Brief on
the Merits Following Granting of Petition for Discretionary Review in the
above styled and numbered cause is in compliance with said rules and has
3434 words included as set forth in TRAP Rule 9.4(i)(1).
SIGNED this 5th day of June, 2015.
/s/ David L. McLane DAVID L. MCLANE
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing
Appellant’s Brief was delivered in accordance with the Texas Code of
Criminal Procedure and Texas Rules of Appellate Procedure, on the 5th day
of June, 2015, on the following:
Bexar County District Attorney 300 Dolorosa San Antonio, Texas 78205
State Prosecuting Attorney, Lisa McMinn 209 W. 14th Street, Ste. 202 Austin, Texas 78701
/s/ David L. McLane________ DAVID L. MCLANE