## IN THE COURT OF CRIMINA L APP EALS OF TEX AS
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C A R L T O N W O O D , A p p e l l a n t

v . T H E S T A T E O F T E X A S O N S T A T E ’ S P E T I T I O N F O R D I S C R E T I O N A R Y R E V I E W F R O M T H E F O U R T H C O U R T O F A P P E A L S

B E X A R C O U N T Y K E L L E R , P . J . , f

i l e d a d i s s e n t i n g o p i n i o n . The presumptions in R. 44.2(c) addre ss cer tain more-or -less mecha

nical require ments in a 1 trial. Courts employ the rule when an appellant complains for the first time on appea l about things like the failure of the cler k to f ile the jury char g e befor e it is rea d to the jury

. The rule seems to be something of a h o l d o v er from the day s when appellate courts would reve rse a conviction for fundame ntal err or whe n a proc edura l require ment might not have been f ollowed and ther e wa s no complaint at trial. The only provision that cre ates a presumption that evidenc e was introduced is R. 44.2(c) (1), which presumes that venue was proved. Aside from that one subsection, the rule cannot

T E X . R. A P P . P. 44.2(c) 1WOOD DI SSENT - 2

substitut e for

evidenc e that wa s not introduced at tria l. Moreove r, by its wor ding, the rule a llows 2

a presumption that an appellant pled to the char g ing instrument, but it does not even purport to allow

a presumption that he pled “true .” I ag ree with the State that “silence in the rec ord does not amount to an aff irmative showing ,” but the only presumption that the rule allows is that there was a plea; it does not allow a pr esumption that the plea wa s “true.” The State would also rely on the fac t that the judgme nt say s that applicant pled “true ” to the enhanc ement count. Ag ain, though, the case s upon which the State relies do not purport to substitut e

a presumption for the introdu cti on of evidenc e to car ry the State’s burden of proof. Breazeale v. State relied on a statement in the judgme nt (that the defe ndant had waived a jury trial) to establish 3

a presumpti o n that there was such a waiver

. I n Lincoln v. State , the appellate court relied on a 4 statement in the judgme nt that the defe ndant had pled “not g uilty ,” and on Rule 44.2(c) , to overc ome

a claim of fundame ntal err or wher e the rec ord failed to include a plea to the indictment. The issue in these and other cases is not sufficie ncy o f t h e ev i d en ce; the issue is whether cer tain proce dural require ments wer e met
. P re suming that an event occur red at trial (the indictment was rea d, the char g e was filed) preve nts a defe ndant from making an issue of, and g etting relief on, an issue that should not be raised f

or the fir st tim e on appe al. B ut sufficienc y of the e vidence can be raised for the first t ime on appea l, and (ex cept f or venue ) our law

does not purport to allow pre sumptions t o substitut e for the introduction of evidenc e. And, except for venue, the State has no burden of proof

I t is worth noting that venue is not an element of an offe nse, it does no t i m p l i cate 2 sufficie ncy of the evidenc e, and the failure to prove it may be harmless in a g iven case . Schmutz v. State , 440 S.W .3d 29, 34-39 (Te x . Crim. App. 2014). 683 S.W .2d 446 (Tex. Crim. App. 1984). 3 307 S.W . 921 (Tex. App.–Dallas 2010, no pe t.). 4WOOD DI SSENT - 3

on the m atters that may be presumed under R. 44.2(c) ; the State does ha ve the bur den of pr oof on enhanc ement alleg ations. The presumption of reg ularity that applies to judgme nts cannot be used 5 to relieve the State of its burde n to pr ove an enhanc ement alleg ation bey ond a re asonable doubt. The State a lso arg ues that, eve n without the presumptions, the rec ord is suf ficient to prove the enhanc ement alleg ation. I ag ree with the court of appea ls that the evidenc e is insufficient to do

so. I would rema

nd the ca s e fo r a new punishment hear ing, at which the State may once ag ain attempt to prove the e nhance ment alleg ation. 6 I respe ctfully

dissent. Filed: Apr il 6, 2016 Publis h

See Roberson v. Stat e , 420 S.W .3d 832, 838 (Tex. Crim. App. 2013); W ise v. Stat e , 394 5 S.W .3d 594, 599 (Tex. App.–Dallas 2014, no pe t.). See Monge v. Calif

ornia , 524 U.S. 721, 734 (1998); Ex parte Miller , 330 S.W .3d 610, 623 6 n.34 (Tex. Crim. App. 2009).