Jerome McCoy v. the State of Texas

                          NUMBER 13-20-00041-CR

                            COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI – EDINBURG


JEROME MCCOY,                                                              Appellant,

                                              v.

THE STATE OF TEXAS,                                                         Appellee.


                    On appeal from the 77th District Court
                        of Limestone County, Texas.


                          MEMORANDUM OPINION
            Before Justices Benavides, Longoria, and Tijerina
                Memorandum Opinion by Justice Tijerina

      A jury convicted appellant Jerome McCoy of failure to stop and render aid. See

TEX. TRANSP. CODE ANN. § 550.021. The State enhanced his punishment as a habitual

offender, and the trial court sentenced him to seventy-five years’ imprisonment. See TEX.

PENAL CODE ANN. § 12.42(d); TEX. TRANSP. CODE ANN. § 550.021. By one issue, McCoy

argues that his conviction is not susceptible to enhancement under the provisions of
§ 12.42(d) of the penal code. We affirm.1

                                        I.      BACKGROUND

         McCoy was convicted of failure to stop and render aid that allegedly occurred on

September 19, 2018. See TEX. TRANSP. CODE ANN. § 550.021. The State gave notice of

its intent to punish him as a habitual felony offender. Thereafter, McCoy pleaded true to

three different prior felony offenses of aggravated robbery in the first degree, along with

charges for possession of contraband in a correctional facility, possession of a controlled

dangerous drug substance in a penal institution, felony assault and battery upon an

employee of a private prison, and indecent exposure, each occurring in Oklahoma. The

trial court sentenced him to seventy-five years’ imprisonment. This appeal followed.

                                       II.     VOID SENTENCE

         By his sole issue, McCoy contends that the seventy-five-year sentence is void

because the offense was improperly enhanced with a prior conviction. Specifically, he

argues that the Texas Court of Criminal Appeals’ Childress v. State decision was wrongly

decided, and therefore, we should revisit that decision. 784 S.W.2d 361 (Tex. Crim. App.

1990).

         The Childress Court found that the offense of failure to render aid is susceptible to

the enhancing provisions of § 12.42. Id. We have relied upon Childress, and several of

our sister courts have also done so, concluding that third-degree felonies are subject to

enhancement under the penal code. See id.; Brenes v. State, 488 S.W.3d 384, 390 (Tex.


         1 This appeal was transferred to this Court from the Tenth Court of Appeals in Waco by order of

the Texas Supreme Court. See TEX. GOV’T CODE ANN. §§ 22.220(a) (delineating the jurisdiction of appellate
courts); 73.001 (granting the supreme court the authority to transfer cases from one court of appeals to
another at any time that there is “good cause” for the transfer).

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App.—Texarkana 2016, pet. ref’d) (rejecting appellant’s argument that offenses under the

health and safety code are not offenses under the penal code and therefore not subject

to punishment enhancements under § 12.42 of the penal code); Nixon v. State, 196

S.W.3d 354, 356 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (finding that a conviction

for unlawful labeling of recordings is classified as a third-degree felony and subject to

enhancement under the penal code punishable as a second-degree felony); Ramirez v.

State, 90 S.W.3d 884, 885–86 (Tex. App.—San Antonio 2002, pet. ref’d). (“[T]he trial

court properly classified [appellant’s] offense for failing to stop and render aid as a third

degree felony, which was properly enhanced to a second[-]degree felony.”); see also

Dominguez v. State, No. 13-97-00402-CR, 1998 WL 34202250, at *3 (Tex. App.—Corpus

Christi–Edinburg March 26, 1998, no pet.) (mem. op., not designated for publication)

(applying Childress to reject appellant’s argument that his conviction is not subject to

enhancement under [§] 12.42 of the penal code because the primary offense is found in

the health and safety code); Kirven v. State, No. 10-15-00359-CR, 2015 WL 9256892, at

*2 (Tex. App.—Waco Dec. 17, 2015, no pet.) (mem. op., not designated for publication)

(applying Childress to conclude that the third-degree felony offense of failure to stop and

render aid is subject to enhancement under the penal code).

       Particularly, we find Kirven v. State persuasive. See Kirven, 2015 WL 9256892, at

*1. In Kirven, the defendant’s conviction for the offense of failure to stop and render aid

did not involve an accident involving death or serious bodily injury, so subsection

550.021(c)(2) of the Transportation Code applied, and the offense was considered a third-

degree felony for purposes of chapter 12 of the penal code. Id.; see also TEX. TRANSP.

CODE ANN. § 550.021(c)(2); Childress, 784 S.W.2d at 365–66. The defendant pleaded
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true to the enhancement paragraph alleging a prior felony conviction for possession of a

controlled substance. Kirven, 2015 WL 9256892, at *2. Applying Childress, the court

found that § 12.41 and § 12.42 of the penal code applied to the offense of failure to stop

and render aid stating, “Kirven’s failure-to-stop-and-render-aid conviction, which was a

third-degree felony for purposes of subchapter D of chapter 12 of the Penal Code, was

therefore properly punished as a second-degree felony because he had previously been

finally convicted on March 9, 2006, of felony possession of a controlled substance.”2 Id.

        Like Kirven, McCoy’s conviction for the offense of failure to stop and render aid did

not involve an accident involving death or serious bodily injury, so § 550.021(c)(2) of the

Transportation Code applies, and the offense is considered a third-degree felony. See

TEX. TRANSP. CODE ANN. § 550.021(c)(2); Childress, 784 S.W.2d at 365–66; see also

Kirven, 2015 WL 9256892, at *2; Andrus v. State, No. 05-08-00703-CR, 2010 WL 797196,

at *7 (Tex. App.—Dallas Mar. 10, 2010, no pet.) (mem. op., not designated for

publication); Jordan v. State, No. 08-05-00252-CR, 2007 WL 2385931, at *5 (Tex. App.—

El Paso Aug. 16, 2007, no pet.) (mem. op., not designated for publication); Gates v. State,

No. 14-03-01367-CR, 2005 WL 773947 (Tex. App.—Houston [14th Dist. April 7, 2005,

pet. ref’d) (mem. op., not designated for publication). McCoy pleaded true to the



        2  McCoy asks us to reconsider Childress in light of subsequent changes to the failure to stop and
render statute in the transportation code. See Childress v. State, 784 S.W.2d 361 (Tex. Crim. App. 1990).
However, we presume that the Legislature was aware of Childress and case law that followed, which
interpreted the statute to allow the offense of failure to stop and render aid to be enhanced under § 12.42
of the penal code, when it made amendments to subsection 550.021(c) of the transportation code.
Therefore, we decline to reconsider Childress. Id.; see also Kirven v. State, No. 10-15-00359-CR, 2015 WL
9256892, at *2 (Tex. App.—Waco Dec. 17, 2015, no pet.) (mem. op., not designated for publication)
(declining to reconsider Childress in light of recent amendments because “it is presumed that the legislature
is aware of case law affecting or relating to the statute”) (citing Miller v. State, 33 S.W.3d 257, 260 (Tex.
Crim. App. 2000)).

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enhancement paragraphs alleging several prior felony convictions. Subsection 12.42(d)

of the Penal Code states:

       Except as provided by Subsection (c)(2) or (c)(4), if it is shown on the trial
       of a felony offense other than a state jail felony punishable under Section
       12.35(a) that the defendant has previously been finally convicted of two
       felony offenses, and the second previous felony conviction is for an offense
       that occurred subsequent to the first previous conviction having become
       final, on conviction the defendant shall be punished by imprisonment in the
       Texas Department of Criminal Justice for life, or for any term of not more
       than 99 years or less than 25 years.

TEX. PENAL CODE ANN. § 12.42(d). We therefore conclude that the trial court did not err in

applying § 12.42(d) and assessing punishment at seventy-five years’ imprisonment. See

id. (providing that punishment shall be for a term of not more than ninety-nine years or

less than twenty-five years); Ramirez, 90 S.W.3d at 86; see also Rowe v. State, No. 05-

02-01515-CR, 2005 WL 826083, at *2 (Tex. App.—Dallas April 11, 2005, pet. ref’d) (mem.

op., not designated for publication) (“Upon proof of two prior, sequential felony

convictions, the punishment range for the offense [of failure to stop and render aid] is

confinement for twenty-five to ninety-nine years or life.”). Because the sentence is not

void, we overrule McCoy’s sole issue.

                                   III.    CONCLUSION

       We affirm the trial court’s judgment.

                                                                      JAIME TIJERINA
                                                                      Justice

Do not publish.
TEX. R. APP. P. 47.2 (b).

Delivered and filed on the
21st day of October, 2021.


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