TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-02-00171-CR
Lionel D. Murphy, Jr., Appellant
v.
The State of Texas, Appellee
FROM THE CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY
NO. 0809303D, HONORABLE WAYNE F. SALVANT, JUDGE PRESIDING
Appellant Lionel D. Murphy, Jr. was convicted of aggravated assault with a deadly
weapon. Tex. Pen. Code Ann. ' 22.02(a)(2) (West Supp. 2002). He pleaded true to the enhancement
paragraph, and the jury assessed his punishment at twenty-seven years= confinement in the Texas
Department of Corrections Institutional Division. He raises no complaint relating to the guilt-innocence
phase of trial and does not challenge his conviction. In three point of error, appellant complains that at the
punishment phase of trial the district court erred by: (1) failing to instruct the jury that it could consider
evidence of his previous convictions only if it believed beyond a reasonable doubt that appellant committed
those offenses; (2) allowing appellant=s punishment to be enhanced with a previous felony conviction that he
deems void because it violated the Acarving doctrine@; and (3) permitting the State to introduce evidence of
appellant=s misdemeanor convictions based on offenses committed before January 1, 1996. We will affirm
the district court=s judgment.
BACKGROUND
In January of 2002, a jury found appellant guilty of the offense of aggravated assault with a
deadly weapon. At the beginning of the punishment phase of trial, appellant presented two oral motions,
neither of which had been filed in writing. Appellant first requested that the enhancement paragraph in the
indictment be struck because it contained a conviction that appellant believed violated the Acarving doctrine@
and was, therefore, void. The district court denied this motion. Then, with regard to the jury charge,
appellant requested a burden of proof instruction as to the enhancement allegation and as to extraneous
offenses that the State would present. The district court took this motion under advisement but did not rule
and did not include a burden of proof instruction in the jury charge.
Thereafter, appellant pleaded true to the enhancement paragraph, and agreed to the
introduction of evidence of eight previous misdemeanor convictions and the felony conviction set out in the
enhancement paragraph. Appellant also stipulated that he was the person convicted in each instance.
When asked, appellant stated that he had no objection to the court=s charge to the jury.
DISCUSSION
Instruction on State=s Burden of Proof
Appellant contends that he is entitled to a new punishment hearing because the trial court
erred by failing to give a burden of proof instruction relating to the felony conviction contained in the
indictment=s enhancement paragraph and the eight misdemeanor convictions admitted in evidence. He
contends that the jury should have been instructed that it must find beyond a reasonable doubt that he
committed those offenses in order to consider them with regard to his punishment.
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At the punishment phase of trial, the trial court can admit evidence of the defendant=s prior
criminal record. The Texas Code of Criminal Procedure states:
[E]vidence may be offered by the state and the defendant as to any matter the court deems
relevant to sentencing, including but not limited to the prior criminal record of the defendant,
his general reputation, his character, an opinion regarding his character, the circumstances
of the offense for which he is being tried, and, not withstanding Rules 404 and 405, Texas
Rules of Criminal Evidence, any other evidence of an extraneous crime or bad act that
is shown beyond a reasonable doubt by evidence to have been committed by the
defendant or for which he could be held criminally responsible, regardless of whether he
has previously been charged with or finally convicted of the crime or act.
Tex. Code Crim. Proc. Ann. art. 37.07, ' 3(a)(1) (West Supp. 2002) (emphasis added).
Appellant failed to obtain a ruling on his request for an instruction and affirmatively stated
that he had no objection to the charge as given without it. Appellant nevertheless argues that failure to give
the instruction concerning bad acts or extraneous offenses is jury charge error. See Huizar v. State, 12
S.W.3d 479, 484 (Tex. Crim. App. 2000) (holding that if courts admit evidence of extraneous offenses at
the punishment phase, they must give a reasonable doubt charge, even in the absence of a request or
objection). Additionally, appellant contends that his failure to object to this type of omission does not waive
his right to appeal the issue. See Bluitt v. State, 70 S.W.3d 901, 904 (Tex. App.CFort Worth 2002, no
pet.).
The State responds that article 37.07, section 3(a)(1), requires a reasonable doubt
instruction only for evidence of unadjudicated extraneous offenses or bad acts, but not for evidence of a
prior criminal conviction. Sanders v. State, 69 S.W.3d 690, 694 (Tex. App.CTexarkana 2002, pet.
dism=d w.o.j.) (instruction not required for duly recorded convictions); see also Willover v. State, 2002
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Tex. App. LEXIS 5774, at *6 (Tex. App.CHouston [1st Dist.] Aug. 8, 2002, no pet. h.) (concluding that
appellant not entitled to instruction that extraneous crimes and bad acts be proved beyond a
reasonable doubt where prior misdemeanor convictions are not evidence of extraneous crimes
and bad acts). We agree.
In any event, even assuming 37.07 could be construed to include previous convictions as
extraneous offenses, thus requiring a burden of proof instruction, we would have to determine whether the
lack of such an instruction harmed appellant. See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim.
App. 1985). If a defendant fails to object to some claimed error in the court=s charge, the reviewing court
will not reverse unless the record demonstrates that the error was so egregiously harmful that the defendant
did not receive a fair and impartial trial. Id.; see also Poole v. State, 974 S.W.2d 892, 900 (Tex.
App.BAustin 1998, no pet.). Appellant pleaded true to the enhancement paragraph containing his prior
felony conviction. He further agreed to admission of evidence of that conviction and of his eight prior
misdemeanor convictions and stipulated that he was the person convicted of these crimes. We therefore
cannot say he suffered egregious harm. See Fails v. State, 999 S.W.2d 144, 148 (Tex. App.CDallas
1999, pet. ref=d) (holding failure to give instruction harmless when defendant admitted committing
extraneous offense). We overrule appellant=s first point of error.
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Introduction of a Void Prior Felony Conviction
In his second point of error, appellant contends that he is entitled to a new hearing on
punishment because in assessing sentence the district court allowed the jury to consider evidence of a void
felony conviction in which he was convicted in one judgment of both aggravated assault with a deadly
weapon and aggravated assault with serious bodily injury. He asserts the conviction is void for violating the
Acarving doctrine@ because both offenses allegedly arose out of the same incident. Although appellant
makes the assertion, the record contains no evidence to support his contention.
Appellant=s complaint is directed to the form or substance of the indictment. The conviction
about which he complains was alleged in the enhancement paragraph. To preserve error regarding the
indictment, he must raise his complaint before trial or it is waived. Tex. Code Crim Proc. Ann. art. 1.14(b)
(West Supp. 2002); see also Studer v. State, 799 S.W.2d 263, 268 (Tex. Crim. App. 1990); Watson v.
State, 923 S.W.2d 829, 833 (Tex. App.CAustin 1996, pet ref=d). Because he did not assert his complaint
except by oral motion after a finding of guilt, we hold that appellant waived his complaint.
Even assuming appellant preserved his complaint, we nevertheless hold that it lacks merit.
Texas previously adhered to the Acarving doctrine,@ which held that where multiple offenses required the
same evidence to convict, or where multiple offenses were part of the same continuous transaction, the
State could Acarve@ only one conviction from the same criminal transaction. See Jackson v. The State, 43
Tex. 421, 423 (1875); see also Quitzow v. The State, 1 Tex. Ct. App. 47, 53-54 (1876). Texas
abandoned the carving doctrine in 1982. Ex parte McWilliams, 634 S.W.2d 815, 822-823 (Tex. Crim.
App. 1982). However, courts cannot retroactively apply the effect of this abandonment. See Ex parte
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Scales, 853 S.W.2d 586, 588 (Tex. Crim. App. 1993). Appellant argues that because the offenses
underlying the conviction alleged in the enhancement paragraph occurred while the doctrine was in effect,
the district court erred in admitting evidence relating to the offenses during the punishment phase.
We will assume that appellant can raise this complaint in this appeal. See, e.g., Owens v.
State, 851 S.W.2d 398, 399 (Tex. App.CFort Worth 1993, no pet.) (stating that carving violation was
fundamental error that would Acall for review when raised at almost any time,@ and would not have to be
preserved for post-conviction collateral attack). However, appellant has produced no evidence to
demonstrate that his 1976 conviction violated the carving doctrine. The record does not contain the original
indictment from his 1976 conviction or any evidence concerning the circumstances and timing of the
incident leading to this conviction. See Fitzgerald v. State, 722 S.W.2d 817, 821 (Tex. App.CTyler
1987), aff=d, 782 S.W.2d 876 (Tex. Crim. App. 1990). In Fitzgerald, the Twelfth District Court of
Appeals rejected the appellant=s carving doctrine argument on the grounds that it was not supported by the
record. That court wrote:
Fitzgerald argues that . . . the theft conviction in [Cause No.] 182,670 is void under the
now discarded carving doctrine and was unavailable for enhancement purposes. The
record does not support this contention. No copies of the indictments of the theft and
burglary cases were introduced into evidence and their contents were not otherwise
proved. The State, by introducing admissible copies of the judgment and sentence of the
theft conviction, made a prima facie case whereupon the burden of proof shifted to
Fitzgerald in this collateral attack against that conviction demonstrate that such conviction
was void.
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Fitzgerald, 722 S.W.2d at 821; see also Rubino, 770 S.W.2d at 805 (holding that differences in time and
place between appellant=s first assaultive act and then attempted murder were such that incident was one
continuous assaultive transaction). Appellant is in the same situation as the defendant in Fitzgerald.
Furthermore, appellant has only one previous conviction; there is only one judgment. The
enhancement provision and the judgment from appellant=s 1976 conviction both state that appellant was
convicted of Athe felony offense of aggravated assault with a deadly weapon and aggravated assault with
serious bodily injury.@ From this wording, the trial court could conclude that appellant was convicted of one
offense alleging two alternative but consistent theories of commission. In any event, at least one conviction
would be valid. See Owens, 851 S.W.2d at 399. Because appellant has not presented the original
indictment nor any proof of facts regarding the incident underlying this conviction, he has failed to carry his
burden to challenge the State=s evidence of a valid conviction, to which appellant stipulated. We cannot
conclude otherwise as a matter of law, based solely on appellant=s unsupported assertion, that his 1976
conviction is void. We overrule appellant=s second point of error.
Admission of Prior Misdemeanor Convictions
In his third point of error, appellant complains that the district court erred by permitting the
State to introduce evidence of his misdemeanor convictions that occurred prior to January 1, 1996.
According to the code of criminal procedure: AEvidence of an adjudication for conduct that is a violation of
a penal law of the grade of misdemeanor punishable by confinement in jail is admissible only if the conduct
upon which the adjudication is based occurred on or after January 1, 1996.@ Tex. Code Crim. Proc. Ann.
art. 37.07, ' 3(i)(West Supp. 2002).
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Another court of appeals has recently decided this issue. In Freeman v. State, 74 S.W.3d
913, 917 (Tex. App.CAmarillo 2002, pet. filed), the court held that the appellant failed to preserve his
complaint for review because he did not object to the introduction of the questioned evidence. As in this
case, the appellant in Freeman argued that, according to article 37.07, section 3(i), the trial court
committed error by admitting his 1992 misdemeanor conviction into evidence at the punishment phase of his
trial. Id. The court rejected the complaint on the general principle that, to preserve error in admitting
evidence, the petitioning party must make a specific objection at the time the evidence is admitted and
obtain a ruling on that objection. Id.; see also Tex. R. App. P. 33.1(a); Tex. R. Evid. 103(a)(1); Broxton
v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995). Here, appellant not only failed to object to the
admission of his prior misdemeanors at the time they were introduced into evidence, but he also agreed to
their admission and stipulated that he was the one convicted in each instance. He therefore waived his
complaint.
We note that at least one court of appeals has held that the prohibition in article
37.07, section 3(i), is directed to juvenile adjudications, not to misdemeanor convictions. See
Hooks v. State, 73 S.W.3d 398, 402 (Tex. App.CEastland 2002, no pet. h.) (evidence of the
defendant=s past misdemeanor convictions properly admitted because in context section 3(i)
relates to juvenile adjudications);1 see also Freeman, 74 S.W.3d at 917 (concerning evidence of prior
1
Originally, section 3(i) was classified as section 3(h). Section 3(a)(1), which addresses a juvenile
adjudication, references section 3(h) and its prohibition on admission of misdemeanors before 1996. See
Hooks v. State, 73 S.W.3d 398, 402 (citing Act of June 2, 1997, 75th Leg., R.S., ch. 1086, '31, 1997
Tex. Gen. Laws 4179, 4191).
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juvenile adjudications). Because of our disposition of appellant=s complaints, we need not decide that issue.
We overrule appellant=s third point of error.
CONCLUSION
Because we overrule all of appellant=s points of error, we affirm the judgment of the district
court.
Marilyn Aboussie, Chief Justice
Before Chief Justice Aboussie, Justices Patterson and Puryear
Affirmed
Filed: October 24, 2002
Do Not Publish
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