ACCEPTED
03-17-00271-CR
21259056
THIRD COURT OF APPEALS
AUSTIN, TEXAS
12/13/2017 10:35 AM
JEFFREY D. KYLE
CLERK
No. 03-17-00271-CR
IN THE COURT OF APPEALS FILED IN
3rd COURT OF APPEALS
FOR THE THIRD JUDICIAL DISTRICT OF AUSTIN, TEXAS
TEXAS AT AUSTIN, TEXAS 12/13/2017 10:35:48 AM
JEFFREY D. KYLE
Clerk
*********************************************************
THOMAS RICHIE McBRIDE
VS.
THE STATE OF TEXAS
*********************************************************
ON APPEAL FROM THE 27th DISTRICT COURT
OF BELL COUNTY, TEXAS
Cause No. 76454
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STATE’S BRIEF
**************************
HENRY GARZA
DISTRICT ATTORNEY
27th Judicial District of Texas
BOB D. ODOM
ASSISTANT DISTRICT ATTORNEY
P.O. Box 540
Belton, Tx 76513
(254) 933-5215
FAX (254) 933-5704
DistrictAttorney@bellcounty.texas.gov
SBA No. 15200000
Oral Argument Waived
1
TABLE OF CONTENTS
ITEM PAGE
Index of Authorities………………………………………………………………. 3
Statement Regarding Oral Argument……………………………………… 4
Statement of the Case……………………………………………………………. 4
Statement of Facts………………………………………………………………… 4
Summary of State’s Argument……………………………………………….. 6
Argument and Authorities…………………………………………………….. 7
Issue on Appeal…………………………………………………………… 7
WAS EVIDENCE SUFFICIENT TO PROVE
PRIOR CONVICTION WAS FINAL AND, IF
SO, WHAT IS THE PROPER REMEDY?
Applicable Law…………………………………………………… 7
Application and Analysis…………………………………….. 8
Harm………………………………………………………… 9
Remedy…………………………………………………….. 12
Prayer………………………………………………………………………………….. 13
Certificate of Compliance with Rule 9……………………………………. 14
Certificate of Service…………………………………………………………….. 14
2
INDEX OF AUTHORITIES
CASES PAGE
Bell v. State, 994 S.W.2d 173 (Tx. Cr. App. 1999)…………………….. 12
Culbert v. State, 415 S.W.2d 646 (Tx. Cr. App. 1966)……………….. 11
Fletcher v. State, 214 S.W.3d 5 (Tx. Cr. App. 2007)………………….. 8
Jones v. State, 711 S.W.2d 654 (Tx. Cr. App. 1986)…………………... 8
Jordan v. State, 256 S.W.3d 286 (Tx. Cr. App. 2008)………………… 9-12
Monge v. California, 524 U. S. 721 (1998)……………………………...... 12
OTHER
Texas Penal Code
12.32…………………………………………………………………………… 9-10
12.33…………………………………………………………………………… 10
12.42 (b)……………………………………………………………………… 8, 10
12. 42 (d)……………………………………………………………………… 4, 10
30.02 (c) (2)…………………………………………………………………. 4
Texas Rules of Appellate Procedure
Rule 44.2 (b)………………………………………………………………… 12
3
STATEMENT REGARDING ORAL ARGUMENT
The State does not request oral argument.
STATEMENT OF THE CASE
The appellant, Thomas Richie McBride, was charged by
indictment with the second degree felony offense of burglary of a
habitation.1 The indictment also alleged two prior felony convictions in
proper order for the purpose of enhancement of the range of
punishment to 25 years to 99 years or life.2
The appellant was found guilty by a jury (CR-82; RR9-143). The
same jury found the enhancement allegations in the indictment to be
true and assessed punishment at 99 years in the Texas Department of
Criminal Justice Institutional Division (CR-87, 119; RR10-55, 58).
The appellant gave timely notice of appeal (CR-100) and the trial
court certified his right to do so (CR-123).
STATEMENT OF FACTS
The only issue raised by the appellant on appeal is whether or not
there was sufficient evidence to support the finding of the jury that the
allegations in the second paragraph of the indictment that the appellant
1
Section 30.02 (c)(2), Texas Penal Code
2
Section 12.42 (d), Texas Penal Code
4
had been finally convicted of the prior conviction alleged. Therefore,
the State will not recite the underlying facts of the offense.
The second paragraph of the indictment charged that the
appellant had been previously convicted on the 12th day of June, 1984 in
the 27th District Court of Bell County, Texas of the offense of burglary of
a habitation in Cause Number 32,729 (CR-5).
The third paragraph also alleged that the appellant had been
previously convicted on the 5th day of December, 1979 of the offense of
burglary of a building in the 27th District Court in Cause Number 28,276.
The appellant pled “not true” to both of the enhancement
paragraphs of the indictment (RR10-11, 12).
During the punishment phase of the trial the State offered
penitentiary packets in each case. Fingerprint expert Karl Ortiz had
testified that he had examined rolled fingerprints that he had taken
from the appellant with those contained in the pen packets and they
were all the fingerprints of the same person (RR10-18). Both exhibits,
State’s Exhibits 40 and 41, were admitted before the jury without
objection from the appellant (RR10-18).
State’s Exhibit 40 consists of the penitentiary packet from Cause
No. 28,276 as alleged in the third paragraph of the indictment. The
5
appellant does not contest the jury’s finding of true with respect to the
allegations in that paragraph nor the sufficiency of the evidence to
establish it (Appellant’s Brief at page 10).
State’s Exhibit 41 is the pen packet for Cause No. 32,729 as alleged
for enhancement purposes in the second page of the indictment. That
packet consists of photographs and fingerprints of the appellant as well
as a judgment and sentence in the case. At the bottom of the sentence
there appears this phrase: “DEFENDANT GAVE NOTICE OF APPEAL IN
OPEN COURT ON JUNE 12, 1984”. No other documentation was offered
by the State concerning this prior conviction and it is the issue as to the
sufficiency of the evidence to prove the allegations in that paragraph of
the indictment that is the basis of this appeal.
SUMMARY OF STATE’S ARGUMENT
Because the judgment in the conviction alleged in paragraph two
of the indictment recited that notice of appeal was given it was
incumbent upon the State to offer evidence showing that it was a final
conviction. The State did not do so. Because the maximum punishment
was the same because the State proved, and the appellant does not
contest, the prior conviction alleged in the third paragraph of the
6
indictment, there was sufficient evidence to prove that the appellant
was a repeat offender, as opposed to a habitual criminal. The maximum
sentence in this second degree was the same and the jury assessed
punishment at the maximum of 99 years. The proper remedy is to
reform the judgment to show punishment as a repeat offender. In the
alternative, the remedy is to remand the case to the trial court for a new
trial on the issue of punishment only.
ARGUMENT AND AUTHORITIES
Issue on Appeal
Was the evidence sufficient to prove that the appellant was finally
convicted in Cause No. 32,729 as alleged in the third paragraph of the
indictment and, if not, what is the proper remedy?
Applicable Law
It is axiomatic that when a prior conviction is alleged for
enhancement purposes the State must prove that the conviction is final.
Where there is a plea of “not true” and where there is a notation on the
judgment in the alleged prior conviction that the case was appealed it
becomes the burden of the State to prove that the case was affirmed and
the conviction was final by some evidence, such as a mandate from the
7
appellate court. Fletcher v. State, 214 S.W.3d 5 (Tx. Cr. App. 2007). The
appellant is not required to raise the issue at trial in order to preserve it
for appeal. Jones v. State, 711 S.W.2d 634 (Tx. Cr. App. 1986).
Application and Analysis
The judgment in Cause No. 32, 729, alleged for the purposes of
enhancement for punishment as a habitual criminal in the second
paragraph of the indictment, recites that notice of appeal was given in
open court on the same day that the judgment was entered. There was
no proof offered by the State that the case had been affirmed on appeal
or a mandate issued. Thus the evidence was insufficient to support the
finding of the jury that the allegations in the second paragraph of the
indictment were true.
There was no such problem with the allegation of a previous prior
conviction in the third paragraph of the indictment with respect to
Cause No. 28,276 and the appellant does not contest the sufficiency of
the evidence to support the jury’s finding of true as to that paragraph
and, therefore, that he is a repeat offender as set out in Section 12.42 (b)
of the Penal Code3.
3
Section 12.42 (b) provides that if it is shown on the trial of a second degree felony that
the defendant has been previously finally convicted of a felony offense, other than a state
8
Harm
An error in the proof of a prior conviction alleged for
enhancement purposes is generally not subject to a harm analysis.
Jordan v. State, 256 S.W.3d 286, 293 (Tx. Cr. App. 2008). The Jordan
court observed that where a prior conviction is alleged for enhancement
purposes and the defendant had pled “not true” then the jury charged
with assessing punishment must make two types of deliberations. First
it must engage “in a deductive discrete fact-finding process to determine
whether the State has proved the enhancement allegation.” Then,
second, considering all of the evidence admitted at the guilt-innocence
and punishment phases of the trial, the fact finder “engages in a
normative process that is uninhibited by any required specific fact
determination to decide what particular punishment to assess within
the range provided by law.” Jordan at 291-92. Thus, the court said that
there is no way to quantify what impact the unsupported finding of true
had on the jury’s normative sentencing function is assessing
punishment and that attempting to do so would require pure
speculation. Jordan at 293.
jail felony, then the defendant is to be punished as for a first degree felony. A first degree
felony is punishable by life or a term of years not more than 99 or less than 5 years.
Section 12.32, Texas Penal Code.
9
In reaching that conclusion the Court of Criminal Appeals
observed that in that case:
“Notably, the first enhancement paragraph, by itself,
had no effect on the term of imprisonment available for
the primary offense. But with the jury’s unsupported
finding of true to the second paragraph, the lower end of
the punishment range was increased from fifteen years
to twenty-five years”.
Jordan at 293.
For that reason this case is arguably distinguishable from Jordan.
In this case the primary offense of burglary of a habitation is a second
degree felony with a punishment range of not more than twenty years
and not less than two years.4 Proof of a single prior felony conviction as
alleged results in the imposition of punishment in the range for a first
degree felony, life or not more than ninety-nine and not less than five
years. 5 Proof of two prior felony convictions in proper sequence results
in an enhanced range of punishment to a term of life or not less than
twenty-five and not more than ninety-nine years. 6
The appellant does not contest the sufficiency of the evidence to
prove his guilt of the primary offense nor to prove that the allegation in
paragraph three of the indictment is true. The error here was only in
4
Section 12.33, Texas Penal Code
5
Sections 12.42 (b) and 12.32, Texas Penal Code
6
Section 12.42 (d), Texas Penal Code
10
the failure to prove the conviction, alleged in the second paragraph to
make the offense punishable under the habitual criminal provisions
with a range of life or twenty-five to ninety-nine years. Thus the
evidence is sufficient to support the finding of the jury that the
allegations in the third paragraph are true. Consequently, even setting
aside the unsupported finding as to the third paragraph, the range of
punishment would be life or five to ninety-nine years. In Culbert v.
State, 415 S.W.2d 646 (Tx. Cr. App. 1966), where two convictions were
alleged for enhancement purposes and the evidence was insufficient to
prove one of the allegations, the judgment was modified to show the
punishment for the primary offense as enhanced by the single prior
conviction.
Unlike in Jordan the single prior conviction when proven did have
an effect upon the range of punishment available to the jury. It raised
the range from two to twenty years up to five years to ninety-nine years
or life. That is the same maximum punishment that would have been
applied had both prior convictions be properly proven, although the
minimum available was certainly changed.
Given that the jury assessed punishment at the maximum number
of ninety-nine years as a result of its normative process of determining
11
the punishment to be assessed based upon all the evidence in the case,
should the circumstances allow a harm determination, it could well be
argued that whether the jury believed the minimum to be five years or
twenty-five years clearly had no effect upon the deliberations. The
punishment assessed was within the range provided for the primary
offense with the proof of one prior felony conviction. See Rule 44.2 (b),
Texas Rules of Appellate Procedure. (Non-constitutional error that does
not affect substantial rights must be disregarded).
Remedy
If harm is not an issue, then the appropriate remedy is to remand
the case for a new hearing on punishment only. In that case the State
would not be prohibited from attempting again to prove the prior
conviction subject to the insufficiency defect in this trial. Jordan at 293;
Bell v. State, 994 S.W.2d 173, 175 (Tx. Cr. App. 1999), relying upon
Monge v. California, 524 U.S. 721 (1998) holding that it would not
violate double jeopardy principles to allow the State a second chance to
present its proof of a prior conviction.
12
PRAYER
The State of Texas respectfully prays that the judgment of
conviction herein be reformed and modified to show conviction of the
primary offense as a repeat offender rather than as a habitual criminal
and be in all other things affirmed, or in the alternative that the case be
remanded to the trial court for a new punishment hearing.
Respectfully Submitted,
HENRY GARZA
DISTRICT ATTORNEY
BY: /s/ Bob D. Odom
BOB D. ODOM
Assistant District Attorney
P.O. Box 540
Belton, Tx 76513
(254) 933-5215
FAX (254) 933-5704
DistrictAttorney@bellcounty.texas.gov
SBA No. 15200000
13
CERTIFICATE OF COMPLIANCE WITH RULE
This is to certify that the State’s Brief is in compliance with Rule 9
of the Texas Rules of Appellate Procedure and that portion which must be
included under Rule 9.4(i)(1) contains 1821 words.
/s/ Bob D. Odom
BOB D. ODOM
Assistant District Attorney
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of this brief has been
served upon Justin Bradford Smith, Counsel for Appellant, by electronic
transfer via Email, addressed to him at justin@templelawoffice.com on
this 13th day of December, 2017.
/s/ Bob D. Odom
BOB D. ODOM
Assistant District Attorney
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Thomas Ritchie McBride v. State
Combined Opinion