PD-0794-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 10/15/2015 4:54:18 PM
Accepted 10/16/2015 7:08:53 AM
October 16, 2015 ABEL ACOSTA
NO. PD-0794-15 CLERK
IN THE
COURT OF CRIMINAL APPEALS
OF TEXAS
**************************
ESSIE D. HOPKINS
Appellant/Petitioner
vs.
THE STATE OF TEXAS,
Appellee/Respondent
*********************************
On Appeal from
the 291st District Court
Dallas County, Texas
Trial Court Cause No. F-13-55764-U
and
The Court of Appeals for the Fifth District of Texas at Dallas
Appellate Cause No. 05-14-00146-CR
***********************************
BRIEF OF APPELLANT
UPON GRANT OF PETITION
FOR DISCRETIONARY REVIEW
Lawrence B. Mitchell
SBN 14217500
P.O. Box 797632
Dallas, Texas 75379
Tel. No. 214.870.3440
E-mail: judge.mitchell@gmail.com
Attorney for Petitioner/Appellant
IDENTITY OF JUDGE, PARTIES, AND COUNSEL
PRESIDING JUDGE: The Honorable Jennifer Balido, 291st District Court
Dallas County, Texas
PARTIES: Essie D. Hopkins, Appellant/Petitioner
The State of Texas, Appellee/Respondent
Counsel: Trial counsel for appellant:
Larry Baraka, 1215 E. McKinney Street, Ste. 203
Denton, Texas 76209
Appellate Counsel for appellant:
Lori Ordiway (now employed by the Dallas County
District Attorney’s Office)
133 N. Riverfront Blvd., Dallas, Texas 75207
Petition for Discretionary Review Counsel:
Lawrence B. Mitchell, P.O. Box 797632,
Dallas, Texas 75379
Trial counsel for the State:
Assistant District Attorneys:
Jeff Matovich and Robin Pittman
133 N. Riverfront Blvd., Dallas, Texas 75207
Appellate and Petition counsel for the State:
Assistant District Attorney Patricia Noble;
Susan Hawk, Criminal District Attorney, Dallas County,
Texas or her designated representative,
133 N. Riverfront Blvd., Dallas, Texas 75207
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TABLE OF CONTENTS
Identity of Judge, Parties, and Counsel......................................................................i
Table of Contents ......................................................................................................ii
Index of Authorities..................................................................................................iii
Statement of the Case ..............................................................................................2
Issue Presented...........................................................................................................2
I.
THE EVIDENCE IS LEGALLY INSUFFICIENT TO
PROVE THE ENHANCEMENT ALLEGATIONS AND TO
ENHANCE APPELLANT’S PENALTY RANGE TO THAT
OF AN HABITUAL OFFENDER
Statement of Facts......................................................................................................3
Summary of the Argument.........................................................................................4
Argument....................................................................................................................5
Prayer for Relief.........................................................................................................9
Certificate of Word-Count Compliance..................................................................10
Certificate of Service...............................................................................................10
ii
INDEX OF AUTHORITIES
Cases:
Derichsweiler v. State, 359 S.W.3d 342 (Tex. App. - Ft. Worth 2012)..................5
Ex Parte Rich, 194 S.W.3d 508 (Tex. Crim. App. 2006)..........................................8
Jordan v. State, 256 S.W.3d 286 (Tex. Crim. App. 2008)........................................6
Mikel v. State, 167 S.W. 3d 556 (Tex. App. - Houston [14th Dist.] 2005)...............8
Roberson v. State, 420 S.W.3d 832 (Tex. Crim. App. 2013)....................................7
Sanders v. State, 785 S.W. 2d 445 (Tex. App. - San Antonio 1990)........................8
Tomlin v. State, 722 S.W.2d 702 (Tex. Crim. App. 1987)........................................5
Wilson v. State, 671 S.W.2d 524 (Tex. Crim. App. 1984)........................................6
STATUTES:
TEX. PENAL CODE §12.42 (d)..................................................................................5
TEX. PENAL CODE §29.03 (a) (2) & (b)..................................................................2
Texas Rules of Appellate Procedure:
TEX. R. APP. P. 9.4 (i) (3)......................................................................................10
TEX. R. APP. P. 9.4 (i) (1).......................................................................................10
TEX. R. APP. P. 9.4 (i) (2) (B)................................................................................10
iii
NO. PD-0794-15
IN THE
COURT OF CRIMINAL APPEALS
OF TEXAS
**************************
ESSIE D. HOPKINS
Appellant/Petitioner
vs.
THE STATE OF TEXAS,
Appellee/Respondent
*********************************
On Appeal from
the 291st District Court
Dallas County, Texas
Trial Court Cause No. F-13-55764-U
and
The Court of Appeals for the Fifth District of Texas at Dallas
Appellate Cause No. 05-14-00146-CR
***********************************
TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:
COMES NOW Essie D. Hopkins, appellant herein, and respectfully submits
this his brief on appeal and petition from his conviction for the offense of Aggravated
Robbery. Judgement was rendered in the 291st District Court of Dallas County, Judge
Jennifer Balido presiding.
1
STATEMENT OF THE CASE
In Cause No. F13-55764-U at trial and Cause No. 05-14-00146-CR on appeal,
appellant was charged by indictment returned by the Dallas County Grand Jury with
the first degree felony offense of Aggravated Robbery. The case was assigned to the
291st Judicial District Court for disposition. The indictment alleged an offense
prohibited by TEX. PENAL CODE §29.03 (a) (2) & (b). The penalty range was
enhanced with allegations of two previous felony convictions. [CR: 14, 17].
Appellant entered a plea of “Not Guilty” before the jury. [RR 3: 9, 12-13]. Based
upon appellant’s plea and the evidence presented, the jury found appellant guilty of
the offense of Aggravated Robbery. [CR: 36: RR 4: 53].
Punishment issues were submitted to the district court. Appellant entered a plea
of “True” to both enhancement allegations. The district court entered a “True” verdict
to each of the enhancement allegations and punishment was set at confinement in the
penitentiary for life. Notice of appeal was timely given. [CR: 43].
ISSUE PRESENTED
I.
THE EVIDENCE IS LEGALLY INSUFFICIENT TO
PROVE THE ENHANCEMENT ALLEGATIONS AND TO
ENHANCE APPELLANT’S PENALTY RANGE TO THAT
OF AN HABITUAL OFFENDER
2
STATEMENT OF FACTS
Appellant was indicted for the first degree felony offense of Aggravated
Robbery. The indictment alleged a single enhancing paragraph containing one felony
conviction. [CR: 14]. In a separate pleading the State alleged another felony
conviction. [CR: 17]. At trial appellant entered a plea of “True” to both enhancement
allegations. [RR 5: 7-8]. The State did not offer penitentiary packets to provide proof
of the prior convictions.
The enhancement allegation in the indictment alleged that the prior conviction,
for aggravated assault, occurred prior to the commission of the offense “...set out
above...” clearly referring to the indicted offense. [CR: 14]. The date alleged was
August 29, 2003 and the convicting court was the 195th District Court of Dallas
County, Texas.
The notice pleading is not so clear as to the date of conviction or the sequence
of the conviction as related to the indicted offense or the indictment’s enhancement
allegation. [CR: 17]. That pleading alleges that “...prior to the commission of the
“aforesaid offense” appellant was convicted of the offense of aggravated assault on
“January 4th” in Criminal District Court No. 3 in Dallas County, Texas. Whether the
“aforesaid offense” is the offense for which appellant was indicted or the offense for
which he was previously convicted is not specifically pled. Beyond question,
3
though, the pleading fails to state the date of the prior conviction other than the
reference to a month and a day without a reference to the year of the conviction.
SUMMARY OF THE ARGUMENT
Even though appellant plead “True” to the two prior convictions alleged for
enhancement of the penalty range, the evidence is legally insufficient to prove the
proper sequencing of the two felony convictions as legally required since the second
enhancement allegation provided a date consisting only of a month (January) and a
day (the 4th). The State’s evidence did not prove that one prior conviction was final
before the other prior conviction or before the primary charged offense.
4
ARGUMENT
The law concerning sufficiency of the evidence to prove enhancement for
habitual felony offenders is well settled. TEX. PENAL CODE §12.42 (d) provides, in
pertinent part:
[I]f it is shown on the trial of a felony offense other than a
state jail felony ... 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 he shall be punished by imprisonment
in the Texas Department of Criminal Justice for life, or for
any term of not more than 99 years nor less than 25 years.
Thus, the statute requires the State to prove this chronological sequence of events:
(1) the first conviction becomes final;
(2) the offense leading to a later conviction is committed;
(3) the later conviction becomes final;
(4) the offense for which the defendant presently stands
accused is committed.
See Tomlin v. State, 722 S.W.2d 702, 705 (Tex. Crim. App. 1987). This proof is
required even though the State need not allege sequentiality in the pleading
documents. See Derichsweiler v. State, 359 S.W.3d 342, 349 (Tex. App. - Ft. Worth
2012).
In the instant cause, the indictment properly alleged that appellant had
5
committed and been convicted of a felony offense prior to the commission of the
primary offense alleged in the indictment. However, the second enhancement
pleading did not allege that a second conviction was committed and final before
either the primary offense or the other enhancement allegation. The plea to the second
enhancement allegation did not prove that it was final before the primary offense or
the other enhancement allegation. Appellant’s plea of “True” to the second
enhancement offense admitted the conviction but not when the conviction was
obtained or became final. Appellant’s pleas of “True,” without other evidence, did
not prove that the two enhancing allegations were sequential [i.e, conviction,
commission, conviction]. See Jordan v. State, 256 S.W.3d 286, 290-91 (Tex. Crim.
App. 2008).
In resolving the issue below, the court of appeals cited to only two prior
decisions by this Honorable Court. The first is irrelevant to the issue presented and
the second, in fact, is favorable to appellant’s complaint.
The first case cited by the court of appeals was Wilson v. State, 671 S.W.2d
524, 526 (Tex. Crim. App. 1984). While the court of appeals correctly notes that the
case stands for the proposition that a plea of “True” is evidentiary in nature and
sufficient to prove an enhancement allegation, it does not resolve the issue presented
by appellant or even address it. Wilson’s information (he was charged with a
6
misdemeanor offense) contained only a single enhancement allegation. The question
as to whether a plea of “True” to two sequential enhancement allegation was
sufficient to prove the sequence of the convictions was not presented nor resolved in
the Wilson appeal.
The court of appeals cited to a second case for the proposition that an appellant
who pleads true to enhancement allegations and and the sequence of the convictions,
relieves the State from the burden of proving the prior convictions. See Roberson
v. State, 420 S.W.3d 832, 838 (Tex. Crim. App. 2013). By implication Roberson
holds that a plea of true, standing alone, is not sufficient evidence to prove the
sequence of the enhancement allegations.
In Roberson the defendant was accused by an indictment with a felony offense
which also contained two allegations of prior felony convictions. However, the
enchantment allegations were transposed: the older conviction was alleged first and
the newer conviction was alleged second. When the indictment allegations were read
to the jury, the prosecutor read them in reverse order so that the newer conviction
was read first followed by the older conviction. The defendant pled “True” to both
allegations as read by the prosecutor.
Roberson argued on direct appeal, and then by way of Petition for
Discretionary Review, that the evidence did not prove the proper sequence of the
7
convictions because of the order in which they were pled in the indictment. The court
of appeals, as did this Honorable Court, found against Roberson. However, the basis
of the rulings was not that the proper sequence of conviction was proven by the
“True” pleas. Rather the court of appeals and this Court looked to the evidentiary
record to determine if the proper sequence had been proven. Both courts held that the
record affirmatively established that Roberson’s prior convictions met the statutory
chronology requirement for the habitual offender punishment range. Roberson’s
record evidence contained penitentiary packets that established that the two
convictions did in fact occur in the required order. “Thus the state met its burden as
the evidence is sufficient to prove the statutorily required sequence of conviction in
order for (Roberson’s) punishment range to be enhanced to that of a habitual
offender.” Roberson, 420 S.W.3d at 840. The pleas of “True” standing alone did not,
in that case, prove the proper chronology.
In Ex Parte Rich, 194 S.W.3d 508, 513 (Tex. Crim. App. 2006) this Court
states the general rule that a plea of “True” to an enchantment allegation relieves the
State of its burden of proving the prior conviction. However, the Court recognized
that there was an exception to that general rule “...when the record affirmatively
reflects that the enhancement itself was improper.” Id; also see Mikel v. State, 167
S.W. 3d 556, 558-59 (Tex. App. - Houston [14th Dist.] 2005) and Sanders v. State,
8
785 S.W. 2d 445, 448 (Tex. App. - San Antonio 1990).
In the instant cause, the enhancing pleading failed to contain a reference to the
year date of the second enhancing conviction. The State did not offer any evidence
into the record that proved the proper chronology of the two convictions. Since the
record affirmatively establishes that the State did not prove the appropriate
chronology of the enhancing offenses, appellant argues that the evidence is
insufficient to prove the second allegation. Therefore, appellant is entitled to a new
punishment hearing.
PRAYER FOR RELIEF
Appellant prays that this Honorable Court find the evidence insufficient to
prove the second enhancement allegation and that the case be reversed and remanded
to the district court for a new punishment hearing.
Respectfully submitted,
/s/Lawrence B. Mitchell
Lawrence B. Mitchell
SBN 14217500
P.O. Box 797632
Dallas, Texas 75379
214.870.3440
judge.mitchell@gmail.com
Counsel for Petitioner/Appellant
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CERTIFICATE OF WORD-COUNT COMPLIANCE
I hereby certify, in compliance with Rule 9.4 (i) (3) of the Texas Rules of
Appellate Procedure, that this document contains 1,604 words, including all contents
except for the sections of the Petition to be excluded by Rule 9.4 (i) (1) of the Texas
Rules of Appellate Procedure, and in compliance with Rule 9.4 (i) (2)(B) of the Texas
Rules of Appellate Procedure.
/s/ Lawrence B. Mitchell
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of this Brief is being served of this
the 15th day of October, 2015 via the service function in eFile Texas, on the
attorneys for the State: (1) Patricia Noble, Assistant District Attorney, Dallas County,
Texas to pnoble@dallascounty.org and (2) the State Prosecuting Attorney at
information@spa.texas.gov.
/s/ Lawrence B. Mitchell
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