Guillermo Lugo v. State

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 2-08-233-CR

GUILLERMO LUGO APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY

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OPINION

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I. INTRODUCTION

Appellant Guillermo Lugo appeals his conviction for murder. In five

issues, Lugo argues that the trial court erred by admitting trial testimony

regarding his statement made to police; that the evidence is legally and

factually insufficient to sustain his conviction; and that the trial court erred by

overruling his objection to a punishment-enhancement paragraph in the

indictment. We will affirm.
 II. B ACKGROUND

On November 21, 2002, Fort Worth Police Officer Robert Presney went

to a local motel to investigate a homicide. Presney found Ernesto Delgadillo

lying face down on the floor of a motel room with a fatal bullet wound in his

back. Presney learned that Delgadillo was not the registered occupant of the

room. After securing a search warrant, Presney searched the room and found

further evidence that a homicide had occurred. Fort Worth Police Detective

Thomas Boetcher arrived and also searched the room. During his search,

Boetcher discovered pay stubs with Lugo’s name on them. Boetcher then

obtained an arrest warrant for Lugo, but Lugo could not be located.

During his investigation, Boetcher interviewed Marquita Sanchez.

Sanchez said that she had gone to the motel room on November 21, 2002, to

sell Lugo drugs. She also said that she had seen Lugo carry a .38 revolver in

the past. She stated that when she arrived at the motel room, Delgadillo was

knocking on its door. According to Sanchez, Lugo let her in but did not initially

allow Delgadillo to enter. While they carried out a drug deal, Sanchez said that

Delgadillo continued to demand that Lugo let him in by persistently knocking on

the door and verbally insisting to be let in. Lugo eventually let Delgadillo in.

Sanchez said that Delgadillo soon began begging Lugo for drugs. Sanchez said

the two began to argue. Sanchez said that Delgadillo allowed Lugo to beat on

him despite his superior strength because he “want[ed] the drugs so bad[ly].”

By Sanchez’s account, Lugo and Delgadillo began to wrestle over a gun—a
handgun consistent with the .38 revolver Sanchez had seen Lugo carry

previously.

Worried that the quarrel might lead to her being caught with drugs,

Sanchez grabbed her things and walked toward the door. At that time,

Delgadillo was on his knees. As Sanchez reached the door, she heard a

gunshot. She turned back around and saw Delgadillo falling face forward and

Lugo holding the gun. Sanchez said she ran from the motel room and got into

her car. As she prepared to leave, she saw Lugo and two girls run down the

stairs and get into a truck. She then saw Lugo go back up the stairs briefly,

return to the truck with a black duffle bag, and drive away.

More than five years after the initial investigation, Fort Worth Police cold

case file Detective Manny Reyes flew to Columbus, Ohio, to interview Lugo,

who had been apprehended and was being detained. Initially, Lugo denied

being in Fort Worth at the time of the murder; but Lugo eventually admitted

that he was in the motel room when the murder occurred; that some of the

items found in the motel room during the murder investigation belonged to him;

and that he drove a truck at the time of the murder. The State indicted Lugo

for the murder of Delgadillo. The indictment included two felony enhancement

paragraphs.

Lugo moved to have his statement to Reyes suppressed. The trial court

denied the motion. Lugo also made numerous objections, many of which the

trial court sustained, to portions of his recorded statement being admitted—so
much so that the prosecutor, Lugo’s counsel, and the trial court determined

that the best course of action was to allow the prosecutor to develop Lugo’s

statement through questioning Reyes, rather than allowing the recorded

statement to actually be played for the jury.

During the trial, Reyes testified about portions of Lugo’s statement.

Specifically, Reyes testified that Lugo had initially denied being at the motel

room when Delgadillo was murdered, but later in the interview admitted that he

was in the motel room at the time of the shooting; that he had been the victim

of an attempted robbery; and that although he had heard a shot fired during the

alleged robbery, he did not shoot anyone. Reyes also testified that he had

taken buccal swabs of Lugo during the interview. The State introduced

evidence that DNA from these swabs matched DNA taken from the motel room

where Delgadillo was murdered.

The State also called Sanchez as its key witness, and she testified to the

contents of her statement made to Boetcher. Marc Krouse of the Tarrant

County District Medical Examiner’s office testified that Delgadillo died of

internal bleeding from a contact-range gunshot wound and that Delgadillo’s

knees had bruising and scraping consistent with a scenario where Delgadillo

was kneeling when he was shot. Michael Ward, a senior forensic scientist for

the Fort Worth Police Department Crime Laboratory, testified that the bullet that

killed Delgadillo was a .38 projectile that was likely fired from a .38 revolver.
A jury found Lugo guilty and assessed punishment at twenty-five years’

confinement. This appeal followed.

III. A RTICLE 38.22 AND L UGO ’S S TATEMENT

In his second issue, Lugo argues that the trial court erred by allowing

Reyes to testify about statements Lugo made to Reyes during interrogation.

The focus of Lugo’s argument is that Reyes’s being allowed to testify about

information contained within Lugo’s statement, rather than the statement itself

being admitted, violated the statutory requirement that in order for a custodial

statement to be admitted at trial, it must be reduced to writing or electronically

recorded. See Tex. Code Crim. Proc. Ann. art. 38.22, § 3(a)(1) (Vernon 2005).

We conclude that Lugo failed to preserve this complaint for our review.

To preserve a complaint for our review, a party must have presented to

the trial court a timely request, objection, or motion that states the specific

grounds for the desired ruling if they are not apparent from the context of the

request, objection, or motion. Tex. R. App. P. 33.1(a)(1); Mosley v. State, 983

S.W.2d 249, 265 (Tex. Crim. App. 1998) (op. on reh’g), cert. denied, 526 U.S.

1070 (1999). Further, the trial court must have ruled on the request, objection,

or motion, either expressly or implicitly, or the complaining party must have

objected to the trial court’s refusal to rule. Tex. R. App. P. 33.1(a)(2); Mendez

v. State, 138 S.W.3d 334, 341 (Tex. Crim. App. 2004). And the complaint

made on appeal must comport with the complaint made in the trial court or the

error is forfeited. Heidelberg v. State, 144 S.W.3d 535, 537 (Tex. Crim. App.
2004); Vafaiyan v. State, 279 S.W.3d 374, 383 (Tex. App.—Fort Worth 2008,

pet. ref’d).

Although Lugo objected to the admission of portions of his statement and

also objected that his statement was the product of police coercion, none of

these objections comport with the complaint he now brings on appeal—that the

trial court erred by allowing Reyes to testify about statements Lugo made to

Reyes during interrogation. Because the complaint Lugo now makes on appeal

does not comport with any complaint made to the trial court, he has forfeited

this error, if any. See Heidelberg, 144 S.W.3d at 537 (holding that defendant

failed to preserve for appellate review complaint that prosecutor’s use of post-

arrest silence against defendant violated the Texas Constitution because

complaint did not comport with defendant’s trial court objection based solely

on the federal Constitution). We overrule Lugo’s second issue.

IV. V OLUNTARINESS OF L UGO ’S S TATEMENT

In his first issue, Lugo argues that the trial court erred by denying his

motion to suppress and allowing—through Reyes’s testimony—his statement

to be admitted at trial. Lugo argues that Reyes “stepped over the line and

coerced” Lugo’s statement. Although in his brief Lugo combines the analysis

of his first and second issues (the second issue that we have already held was

not preserved), the gist of Lugo’s first issue is that his statement was made

involuntarily because of remarks Reyes made to Lugo during the interview.

Thus, the significance of Lugo’s first issue is whether Reyes’s remarks overbore
the voluntariness of Lugo’s statement. We agree with the trial court that

Lugo’s statement was “voluntarily given.”

We review a trial court’s ruling on a motion to suppress evidence under

a bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex.

Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App.

1997). We give almost total deference to a trial court’s rulings on questions

of historical fact and application-of-law-to-fact questions that turn on an

evaluation of credibility and demeanor, but we review de novo application-of-

law-to-fact questions that do not turn on credibility and demeanor. Amador,

221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App.

2005); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002).

The determination of whether a confession is voluntary is based on an

examination of the totality of the circumstances surrounding its acquisition.

Reed v. State, 59 S.W.3d 278, 281 (Tex. App.—Fort Worth 2001, pet. ref’d).

A confession is involuntary if circumstances show that the defendant’s will was

“overborne” by police coercion. Creager v. State, 952 S.W.2d 852, 856 (Tex.

Crim. App. 1997). In other words, the statement is involuntary if the record

reflects “official, coercive conduct of such a nature” that any statement

obtained thereby is “unlikely to have been the product of an essentially free and

unconstrained choice by its maker.” Alvarado v. State, 912 S.W.2d 199, 211

(Tex. Crim. App. 1995). A defendant’s statement must not have been obtained

by the influence of hope or fear. Creager, 952 S.W.2d at 856 (citing Cain v.
State, 18 Tex. 387, 390 (1857)). Even trickery or deception does not make a

statement involuntary unless the method was calculated to produce an

untruthful confession or was offensive to due process. Id. at 856 (citing

Dotsey v. State, 630 S.W.2d 343, 349 (Tex. App.— Austin 1982, no pet.)).

The ultimate question is whether the suspect’s will was overborne. Id. (citing

Armstrong v. State, 718 S.W.2d 686, 693 (Tex. Crim. App. 1985)).

Lugo claims that his statement to Reyes was coerced because Reyes

made two remarks to him during interrogation. First, Reyes asked Lugo, “[W]hy

don’t you just tell me . . . the truth about what happened and see if we can

prove what you say?” Second, Reyes made the statement to Lugo, “I swear

to you that I will do whatever I can with the evidence, with witnesses[,] or

whatever, with the laboratory, whatever to prove what you told me is the

truth.” Lugo provides no argument as to how these remarks produced an

untruthful confession, were offensive to due process, or otherwise caused his

will to be overborne. We conclude that these statements did not overbear

Lugo’s will and that Lugo’s statement to Reyes was essentially a free and

unconstrained choice. If anything, Reyes’s remarks conveyed a sense that the

veracity of Lugo’s statement would eventually be discovered. See Gomes v.

State, 9 S.W .3d 373, 377–78 (Tex. App.—Houston [14th Dist.] 1999, pet.

ref’d) (reasoning that defendant’s will was not overborne by interrogator’s

remarks that conveyed “a sense of inevitability” that the truthfulness of

defendant’s statements would be discovered). We hold that the trial court did
not err by denying Lugo’s motion to suppress his statement, and we overrule

Lugo’s first issue.

V. S UFFICIENCY OF THE E VIDENCE

In his third and fourth issues, Lugo argues that the evidence is legally and

factually insufficient to convict him of murder. Specifically, Lugo contends that

the only eyewitness who testified “is totally unbelievable” because she is a

convicted felon, her recollection of the murder “changed many times,” and she

admitted under cross-examination that she “was not completely truthful” with

the lead detective during the police investigation.

A. Law on Murder

A person commits murder if he intentionally or knowingly causes the

death of an individual or intends to cause serious bodily injury and commits an

act clearly dangerous to human life that causes the death of an individual.

Tex. Penal Code Ann. § 19.02(b)(1)–(2) (Vernon 2003).

i. Legal Sufficiency Review

In reviewing the legal sufficiency of the evidence to support a conviction,

we view all of the evidence in the light most favorable to the prosecution in

order to determine whether any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt. Jackson v.

Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State,

235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
 This standard gives full play to the responsibility of the trier of fact to

resolve conflicts in the testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at

319, 99 S. Ct. at 2789; Clayton, 235 S.W.3d at 778. The trier of fact is the

sole judge of the weight and credibility of the evidence. See Tex. Code Crim.

Proc. Ann. art. 38.04 (Vernon 1979); Brown v. State, 270 S.W.3d 564, 568

(Tex. Crim. App. 2008), cert. denied, 129 S. Ct. 2075 (2009). Thus, when

performing a legal sufficiency review, we may not re-evaluate the weight and

credibility of the evidence and substitute our judgment for that of the factfinder.

Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999), cert. denied,

529 U.S. 1131 (2000). Instead, we “determine whether the necessary

inferences are reasonable based upon the combined and cumulative force of all

the evidence when viewed in the light most favorable to the verdict.” Hooper

v. State, 214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007). We must presume

that the factfinder resolved any conflicting inferences in favor of the

prosecution and defer to that resolution. Jackson, 443 U.S. at 326, 99 S. Ct.

at 2793; Clayton, 235 S.W.3d at 778.

ii. Legally Sufficient Evidence

Viewing the evidence in the light most favorable to the verdict, the record

demonstrates that there was legally sufficient evidence that Lugo murdered

Delgadillo. The police found Delgadillo, murdered, in Lugo’s motel room. There

was evidence that Lugo occupied the motel room because his personal items,
paperwork, and DNA were found there. Lugo admitted to Reyes that he was

in the room when Delgadillo was murdered. There was testimony that Lugo

and Delgadillo fought over a .38 revolver moments before Delgadillo was killed.

The lead witness testified that she had seen Lugo carry a .38 revolver in the

past. The bullet that killed Delgadillo was a .38 caliber bullet. Sanchez saw

Delgadillo on his knees immediately before she heard a gunshot. After she

heard the gunshot, Sanchez testified that she saw Lugo pointing a gun at

Delgadillo and Delgadillo falling forward. Police found Delgadillo face down

with a fatal gunshot wound to his back. There was also testimony by the

medical examiner that Delgadillo died of a contact-range gunshot wound and

that Delgadillo’s knees had bruising and scraping consistent with a scenario

where Delgadillo was kneeling when he was shot.

Viewing the evidence in the light most favorable to the jury’s verdict, we

hold that a rational trier of fact could have found that the evidence at trial was

sufficient to establish the elements of murder beyond a reasonable doubt. See

Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Clayton, 235 S.W.3d at 778;

see also Tex. Penal Code Ann. § 19.02(b)(1)–(2) (providing elements of

murder). Accordingly, we hold that the evidence is legally sufficient to support

Lugo’s conviction. We overrule Lugo’s fourth issue.

iii. Factual Sufficiency Review

W hen reviewing the factual sufficiency of the evidence to support a

conviction, we view all the evidence in a neutral light, favoring neither party.
Neal v. State, 256 S.W.3d 264, 275 (Tex. Crim. App. 2008), cert. denied, 129

S. Ct. 1037 (2009); Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App.

2006). We then ask whether the evidence supporting the conviction, although

legally sufficient, is nevertheless so weak that the factfinder’s determination is

clearly wrong and manifestly unjust or whether conflicting evidence so greatly

outweighs the evidence supporting the conviction that the factfinder’s

determination is manifestly unjust. Lancon v. State, 253 S.W.3d 699, 704

(Tex. Crim. App. 2008); Watson, 204 S.W.3d at 414–15, 417. To reverse

under the second ground, we must determine, with some objective basis in the

record, that the great weight and preponderance of all the evidence, though

legally sufficient, contradicts the verdict. Watson, 204 S.W.3d at 417.

In determining whether the evidence is factually insufficient to support a

conviction that is nevertheless supported by legally sufficient evidence, it is not

enough that this court “harbor a subjective level of reasonable doubt to

overturn [the] conviction.” Id. We cannot conclude that a conviction is clearly

wrong or manifestly unjust simply because we would have decided differently

than the jury or because we disagree with the jury’s resolution of a conflict in

the evidence. Id. We may not simply substitute our judgment for the

factfinder’s. Johnson v. State, 23 S.W.3d 1, 12 (Tex. Crim. App. 2000); Cain

v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). Unless the record

clearly reveals that a different result is appropriate, we must defer to the jury’s

determination of the weight to be given contradictory testimonial evidence
because resolution of the conflict “often turns on an evaluation of credibility

and demeanor, and those jurors were in attendance when the testimony was

delivered.” Johnson, 23 S.W .3d at 8. Thus, unless we conclude that it is

necessary to correct manifest injustice, we must give due deference to the

factfinder’s determinations, “particularly those determinations concerning the

weight and credibility of the evidence.” Id. at 9. Our deference in this regard

safeguards the defendant’s right to a trial by jury. Lancon, 253 S.W.3d at 704.

An opinion addressing factual sufficiency must include a discussion of the most

important and relevant evidence that supports the appellant’s complaint on

appeal. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).

iv. Factually Sufficient Evidence

Even though Lugo raises a factual sufficiency of the evidence complaint

in his third issue, we agree with the State that Lugo’s factual sufficiency issue

is “simply an attack on the credibility of a witness. “ Specifically, Lugo attacks

the credibility of Sanchez, the State’s key witness and the only eyewitness to

Delgadillo’s murder to testify at trial, by pointing out that she admitted that she

had not been completely truthful to police during their initial investigation and

that her testimony regarding where Delgadillo’s body fell toward the floor in

relationship to Lugo was inconsistent with the medical examiner’s testimony

concerning the proximity of the weapon that killed Delgadillo when it was fired.

Lugo contends that when “her testimony is reviewed as a whole, she is totally

unbelievable.”
 Even if Sanchez’s testimony was inconsistent, it was within the jury’s

purview to determine the credibility of her testimony, and the jury was also free

to believe her trial testimony over her statement made to the police during their

investigation. See Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App.

1991); Sharp v. State, 707 S.W .2d 611, 614 (Tex. Crim. App. 1986), cert.

denied, 488 U.S. 872 (1988); see also Fuentes v. State, 991 S.W.2d 267, 271

(Tex. Crim. App.), cert. denied, 528 U.S. 1026 (1999) (noting that

inconsistency goes to the credibility of the witnesses and the jury is the sole

judge of that issue). Further, the jury was free to disregard any or all of her

testimony, including whether to believe her account of where Delgadillo’s body

fell after he was shot. See Walker v. State, 180 S.W.3d 829, 831–32 (Tex.

App.—Houston [14th Dist.] 2005, pet. ref’d) (holding evidence legally and

factually sufficient to convict for robbery even though sole eyewitness’s

testimony that robbery lasted nearly two minutes was inconsistent with

security tapes indicating that robbery lasted less than one minute); see also

Bowden v. State, 628 S.W.2d 782, 784 (Tex. Crim. App. 1982)

(“Reconciliation of conflicts and contradictions in the evidence is within the

province of the jury.”). We also do not find any infirmity that Sanchez was the

only eyewitness to the murder to testify. See Bowden, 628 S.W.2d at 784.

We have reviewed the evidence in a neutral light, and we find no

objective basis in the record for holding that the jury’s verdict was clearly

wrong or manifestly unjust or that it was contradicted by the great weight and
preponderance of the evidence. See Lancon, 253 S.W.3d at 704; Watson, 204

S.W.3d at 414–15, 417. Rather, the evidence presented at trial was sufficient

to support the verdict, and no contrary evidence exists that would render the

evidence factually insufficient under the applicable standard of review. See

Lancon, 253 S.W.3d at 704; Watson, 204 S.W.3d at 414–15, 417.

Accordingly, we hold that the evidence is factually sufficient to support Lugo’s

conviction. We overrule Lugo’s third issue.

VI. P UNISHMENT R ANGE E NHANCEMENT

In his fifth issue, Lugo argues that the trial court erred by overruling his

objection to the punishment charge because “there is no showing that one of

the habitual offender convictions is a felony.” Specifically, Lugo argues that it

is not clear “from the judgment” whether his previous conviction for driving

while intoxicated (“DWI”) was a felony or a misdemeanor. The State counters

that Lugo waived this objection because he did not object to the

indictment—providing Lugo with notice that the State was seeking to enhance

the range of punishment—prior to trial. The State further argues that, even if

Lugo’s issue is preserved, the “judgment plainly reflects that [Lugo] was

convicted of the felony offense of felony driving while intoxicated.” This court

rejects the State’s argument that Lugo has waived this potential point of error,

but we agree with the State that sufficient evidence exists that the conviction

in the enhancement paragraph Lugo complains of was a felony for purposes of

enhancing the sentence range for his conviction of murder.
 The State’s inclusion of the enhancement paragraphs served to

substantially increase Lugo’s range of punishment. A person with no felony

enhancements who is convicted of murder—a first degree felony—faces a

prison sentence “for life or for any term of not more than 99 years or less than

5 years.” See Tex. Penal Code Ann. §§ 12.32(a), 19.02 (Vernon 2003). But

the minimum prison term a defendant may receive increases to fifteen years

when one felony enhancement is found to be true. See id. § 12.42(c)(1)

(Vernon Supp. 2008). And when two felony enhancements are found to be

true, as is the case here, a defendant found guilty of murder may be assessed

no fewer than twenty-five years’ confinement. Id. § 12.42(d).

First, addressing the State’s argument that Lugo failed to preserve this

error for review: This court acknowledges that the cases cited by the State do

stand for the proposition that failure by a defendant to object to a potentially

defective enhancement paragraph included in an indictment prior to trial

prohibits the defendant from raising any alleged error on appeal. See Goins v.

State, 841 S.W.2d 527, 532–33 (Tex. App.—Houston [1st Dist] 1992, pet.

ref’d) (overruling challenge to enhancement paragraph contained in indictment

for failure to object prior to trial); see also Shaw v. State, 794 S.W.2d 544,

544–45 (Tex. App.—Dallas 1990, no pet.) (overruling challenge to

enhancement paragraph in indictment where objection made after jury returned

a verdict of guilty but prior to punishment). The holdings in this line of cases

are predicated on the language found in Texas Code of Criminal Procedure
article 1.14(b), “If the defendant does not object to a defect, error, or

irregularity of form or substance in an indictment . . . [before trial], . . . he may

not raise the objection on appeal.” Tex. Code Crim. Proc. Ann. art. 1.14(b)

(Vernon 2005). Article 1.14(b) is designed to prevent a defendant from lying

“behind the log” and attacking an otherwise constitutionally valid indictment for

the first time on appeal—it does not relieve the State of its burden to prove that

a defendant is a habitual offender. Compare Teal v. State, 230 S.W.3d 172,

175–78 (Tex. Crim. App. 2007) (discussing legislative-reform package designed

to prevent conviction reversals based on the “fine technical distinctions

between defects of form and those of substance”) with Jordan v. State, 256

S.W.3d 286, 291–92 (Tex. Crim. App. 2008) (holding that State’s burden

under habitual offender statute is an issue of sufficiency of evidence and cannot

be categorized as trial error).

Indeed, the court of criminal appeals has said, “A claim regarding

sufficiency of the evidence need not be preserved for review at the trial level

and is not waived by the failure to do so.” Rankin v. State, 46 S.W.3d 899,

901 (Tex. Crim. App. 2001). The court of criminal appeals has also

“consistently held that where 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 State’s habitual offender statutes.”

Tomlin v. State, 722 S.W.2d 702, 705 (Tex. Crim. App. 1987). Our review of

Lugo’s brief indicates that he is challenging the sufficiency of the evidence to
support one of the indictment’s enhancement paragraphs, not the paragraph

itself. Thus, he can raise this issue on appeal even though he did not object to

the paragraph until after the jury returned a verdict of guilty. See Tomlin, 722

S.W.2d at 705. Therefore, we now address the State’s argument that

sufficient evidence exists that Lugo’s prior conviction for DWI was a felony and

was sufficient to satisfy the habitual offender statute.

Before the State may use enhancement paragraphs to increase a

defendant’s range of punishment, it must prove that they are true beyond a

reasonable doubt. See Williams v. State, 980 S.W.2d 222, 226 (Tex.

App.—Houston [14th Dist.] 1998, pet. ref’d). When the State seeks to punish

a defendant as a habitual offender, and thus includes two felony enhancement

paragraphs in the indictment, the State must show that the defendant

committed each successive felony after the prior conviction was final. See Tex.

Pen. Code Ann. § 12.42(d). Here, the enhancement paragraphs read:

Habitual offender notice: And it is further presented to said court
that prior to the commission of the offense or offenses set out
above, [Lugo] was finally convicted of the felony offense of
possession with intent to deliver a controlled substance . . . in
cause number 0573866D, on the 28th day of August, 1995, and,
that prior to the commission [of 0573866D, Lugo] was finally
convicted of the felony offense of driving while intoxicated and
felony repetition . . . in cause number 0484031D, on the 10th day
of May, 1993.

Thus, for the State to show that Lugo was subject to punishment as a

two-time habitual offender, it was required to show beyond a reasonable doubt

that before commission of the primary offense—murder—Lugo had been finally
convicted of felonies in cause numbers 0573866D and 0484031D and that

they were committed in the proper sequence. See id.; Casey v. State, 708

S.W.2d 914, 916 (Tex. App.—Houston [1st Dist.] 1986, pet. ref’d).

There are several ways that the State may prove that a conviction is final

and is true beyond a reasonable doubt. For instance, generally a defendant’s

plea of true to an enhancement paragraph provides sufficient evidence to find

the paragraph true beyond a reasonable doubt. See Wilson v. State, 671

S.W .2d 524, 525 (Tex. Crim. App. 1984); see also Magic v. State, 217

S.W.3d 66, 70 (Tex. App.—Houston [1st Dist.] 2006, no pet.). A defendant

who has pleaded true to an enhancement paragraph can still contend, however,

that the evidence is insufficient to support proof of the paragraph beyond a

reasonable doubt, but only when “the record affirmatively reflect[s] that the

prior conviction should not have been used for enhancement purposes.” Mikel

v. State, 167 S.W.3d 556, 559–60 (Tex. App.—Houston [14th Dist.] 2005,

no pet.) (quoting Cruz v. State, No. 01-00-00463-CR, 2001 WL 1168273, at

*1 (Tex. App.—Houston [1st Dist.] Oct. 4, 2001, no pet.) (not designated for

publication)); see also Ex parte Rich, 194 S.W.3d 508, 513–14 (Tex. Crim.

App. 2006).

Here, prior to punishment being assessed, Lugo objected to the use of his

conviction for felony DWI in cause number 0484031D for enhancement

purposes because the pen packet reflected he was assessed punishment falling

within the range of punishment consistent with both a misdemeanor or a
felony. Nonetheless, Lugo pleaded true to both enhancement paragraphs.

Thus, Lugo must now show that the record affirmatively reflects that his prior

conviction for DWI should not have been used for enhancement purposes. See

Ex Parte Rich, 194 S.W.3d at 513–14. In other words, he must show that the

record affirmatively establishes that his conviction for DWI was not a felony.

Id.

The pen packet for cause number 0484031D describes the convicted

offense as “Driving while intoxicated and felony repetition.” The pen packet

further describes that Lugo pleaded guilty to DWI as part of a plea bargain, and

that the punishment assessed was for six months’ incarceration in the Tarrant

County Jail and a $500 fine (a punishment within the range for either a

misdemeanor or a felony under the DWI law that existed when Lugo pleaded

guilty.) Act of May 27, 1983, 68th Leg., R.S., ch. 303, § 3, 1983 Tex. Gen.

Laws 1568, 1574–77, repealed by Act of May 19, 1993, 73rd Leg., R.S., ch.

900, § 1.15, 1993 Tex. Gen. Laws 3586, 3704 (codified as amended at Tex.

Penal Code Ann. § 49.09 (Vernon Supp. 2008)). Furthermore, Lugo’s defense

counsel explained to the jury that Lugo had been convicted of “felony DWI and

. . . on two previous occasions [Lugo] was convicted of misdemeanor DWI.”

Considering that Lugo pleaded true to the enhancement paragraph

predicated on cause number 0484031D; that there was evidence in the pen

packet that the conviction was for “felony repetition”; that Lugo admitted he

had been convicted of felony DWI; and that the punishment assessed for cause
number 0484031D was within the range of punishment for a felony, we hold

that Lugo has failed to demonstrate that “the record affirmatively reflect[s] that

the prior conviction’ should not have been used for enhancement purposes.”

See Mikel, 167 S.W.3d at 559–60. We overrule Lugo’s fifth issue.

VII. C ONCLUSION

Having overruled each of Lugo’s five issues, we affirm the trial court’s

judgment.

BILL MEIER
JUSTICE

PANEL: CAYCE, C.J.; DAUPHINOT and MEIER, JJ.

PUBLISH

DELIVERED: October 1, 2009