## COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02 - 14 - 00344 - CR

ANTONIO LEONARD BROW N APPELLANT V. THE STATE OF TEXAS STATE

---------- FROM THE 89TH DISTRI CT COURT OF WICHITA COUNTY TRIAL COURT NO. 53,5 25

- C

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### MEMORANDUM OPINION 1

---------- Appellant Antonio Leonard Brown appeals his seventeen

- year sentence arising from his conviction for assault against Helen Davis, with whom he had a dating relationship

. 2 In three issues, he contends that the evidence is insufficient

1 See Tex. R. App. P. 47.4.

2 See Tex. Penal Code Ann. § 22.01(b)(2)(A) (West Supp. 2014 ). Appellant argues only that there is error in his sentence, not his conviction.2 to support the enhancement of his punishment range and that the trial court erred by omitting instructions about matters related to the enhancement. We affirm

. Background Facts According to statement s that Davis initially made to police and to medical
pers onnel upon her arrival at a hospital , appellant , her boyfriend, cut her with a knife one night in March 2013

. 3 A grand jury indicted appellant for assault against Davis. The indictment alleged that they had a dating relationship and that appellant had be en previously convicted of assault against a member of his family. 4 Appellant filed several pretrial motions and chose the jury to set his punishment if he was convicted

. On the day that the trial began, the State filed a notice of its intent to seek

an enhanced punishment range based on appellant’s 1994 felony conviction from Alabama for unlawfully possessing marijuana. The next day, the State amended that notice. The amended notice stated in part, And it is further presented in and to said Court that

. . . on the 6 th day of January 1994, in the [Circuit] Court of Montgomery County, Alabama in cause number CC

- 93

- 1943 on the docket of said court [,] [appellant] was duly and legally convicted in said last named court of a felony, to wit, unlawful possessi on of marijuana, upon an indictment then legally pending in said last named court and of which said court had jurisdiction; and said conviction was a final conviction for an offense committed by him

. . . prior to the commission of the

. . . offense herein before charged against him.

3 At trial in August 2014 , Davis den ied that the events happened as sh e had originally stated ; she claimed that she had cut her leg by falling off a porch.

4 At trial, appellant stipulated to the truth of this pr evious conviction.3 Appellant filed a motion to quash this enhancement language, alleging that the State would be “unable to prove that [the offense was] committed by [appellant].” 5 Appellant pled not guilty. After hearing evidence and arguments concerning his guilt, the jury found him guilty

. In the punishment phase, appellant pled not true to being convicted of a felony in Alabama. T he State introduced evidence concerning the Alabama conviction (along with appellant’s state and federal misdeme anor convictions) and rested

. Appellant did not testify or call any wit nesses in the punishment phase. After each party rested and closed, appellant contended to the trial court that the Alabama documents did not prove a final conviction, and he asked fo r language regarding the finality of a conviction to be included in the jury charge on punishment. The tr ial court denied that request. After the parties presented arguments concerning appellant’s punishment, the jury found the enhancement allegation to be true and assessed the punishment at seventeen years’ confinement. The trial court sentenced appellant in accordance with the jury’s verdict. Appellant brought this appeal.

5 At a hearing on this motion, appellant’s counsel noted that t he Alabama documents did not contain f ingerprints. Appellant does not argue on appeal that the Alabama documents were not sufficiently linked to him.4 Sufficiency of Enhancement Proof In his first issue, appellant contends that t he evidence is insufficient to prove beyond a reasonable doubt that he had a final felony conviction that could be used to enhance his punishment range. He contends that the State did not offer evidence at trial concerning the qualifications of a final ju dgment under Alabama law, that the records admitted at trial do no t prove a final judgment under Te x as law, and that the Alabama records are therefore “insufficient standing alone for a finding of a prior conviction and penitentiary sente nce beyond a reaso nable doubt.” When a defendant has been previously convicted of assault against someone with whom the defendant has a dating or familial relationship, a subsequent conviction of that offense is a third

- degree felony that carries a punishment range of two to ten years’ confinement. See Tex. Penal Code Ann. § 12.34(a) (West 2011) , § 22.01(b)(2)(A). But when a defendant is on trial for a third

- degree felony and has been “finally” convicted of a nother felony (other than
a state
- jail felony), the defendant fa ces the second

- degree

- punishment range of two to twenty years’ confinement. See id. § 12.33(a) (West 2011) , § 12 .42(a) (West Supp. 2014 ). Convictions obtained outside of Texas are classified as felonies for sentence

- enhancement purposes if imprisonment i n a penitentiary is “affixed to the offense as possible punishment.” Tex. Penal Code Ann. § 12.41(1) (West 2011) ; see Esters v. State , No. 02

- 13

- 00219

- CR, 2014 WL 5492726, at * 3

– 4 (Tex. App.

— Fort Worth Oct. 30, 2014 , pet. ref’d ) (mem. op.,5 not designated for publication) (citing Ex parte Blume , 618 S.W.2d 373, 376 (Tex. Crim. App. 1981) ). To establish a prior conviction for purposes of enhancement, the State
must show the existence of a prior conviction and the defendant ’ s link to that conviction. Flower s v. State , 220 S.W.3d 919, 921 (Tex. Crim. App. 2007). Absent a defendant’s plea of “true” to an enhancement allegation, the State must prove the se two elements. See id. at 921

– 22. The trier of fact weighs the credibility of each piece of evidence and d etermines whether the totality of the evidence establishes the existence of the alleged conviction and its link to the defendant beyond a reasonable doubt. Id. at 923. In reviewing the sufficiency of the evidence to support a finding that an enhancement allegation is true, we consider all the evidence in the light most favorable to the finding and determine whether a rational trier of fact could have found the elements beyond a reasonable doubt. See Forward v. State , 406 S.W.3d 601, 606 (Tex. App.

— Eastla nd 2013, no pet.)

. Appellant argues that the documents relating to the Alabama conviction are insufficient to establish the existence of a final felony conviction because they do not comply with the “[c]ompulsory [c]onditions” of article 42.01 of the Texa s Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 42.01, § 1 (West Supp. 2014 ) (listing various information that a Texas judgment of conviction must reflect). He contends, “ The conviction relied upon by the State cannot be shown to be a v alid final judgment because the judgment is an out

- of

-6 state judgment that fails to comply with Texas law and no evidence was [admitted] of the laws of the State purporting to render judgment. ” We conclude, however, that appellant’s first issue rests on tw o faulty legal propositions and should therefore be overruled. First, the issue rests on appellant’s explicit proposition that the “State must show a valid final judgment” to prove the enhancement allegation. The appellant in Flowers made the same
argume nt, and the court of criminal appeals rejected it. See 220 S.W.3d at 919

– 20 , 924

– 25 (holding that even though the State did not present a judgment related to the appellant’s prior DWI conviction, the evidence, comprising a driver’s license record and a co mputer
- generated printout from the county clerk, was sufficient to prove the enhancement allegation). The court explained, There is no ‘ best evidence ’ rule in Texas that requires that the fact of a prior conviction be proven with any document, much less a ny specific document. While evidence of a certified copy of a final judgment and sentence may be a preferred and convenient means, the State may prove [a prior conviction] in a number of different ways, including (1) the defendant ’ s admission or stipulati on, (2) testimony by a person who was present when the person was convicted of the specified crime and can identify the defendant as that person, or (3) documentary proof (such as a judgment) that contains sufficient information to establish both the exist ence of a prior conviction and the defendant ’ s identity as the person convicted. Just as there is more than one way to skin a cat, there is more than one way to prove a prior conviction. . . . Any type of evidence, documentary or testimonial, might suffi ce. Id. at 921

– 22 (footnotes omitted)

.7 The Alabama documents are not specifically labeled as comprising a judgment, but they reflect, among other information, the case number, appellant’s name, a date of birth, a description of the charge, the date of the indictment, the date of arrest, appellant’s entry of a guilty plea, the trial court’s finding of guilt, a description of the punishment as a partly suspended sentence of three years’ confinement in the penitentiary , and the last four digits of a social se curity number. Assuming that the documents that contain this information do not qualify as a “valid . . . judgment” as appellant defines that term, appellant does not contest that they otherwise provide sufficient information to prove that he was previous ly convicted of a felony and link him to the conviction

. See id. at 921, 924

– 25

. Second, even if the State had been required to present a judgment to prove the Alabama conviction, appellant’s first issue rests on the incorrect legal proposition that the judgment could not provide sufficient proof for enhancement
purposes if it failed to comply with the requirements of article 42.01. Texas authority establishes that a judgment that fails to comply with statutory requirements, including article 42.01’s req uirements , although correctable on direct appeal, is not void and may serve as sufficient proof of a final conviction for enhancement purposes. 6 See Malone v. State , No. 12

- 09

- 00128

- CR, 2010 WL

6 Appellant contends, [T]he Alabama [records], . . . [fail] to comply with [several] portions of Code of Criminal Procedure[,] Article 42.01[,] section 1 .

. . . As a8 702248, at *2 (Tex. App.

— Tyler Feb. 26, 2010, no pet.) (mem. op., not designated for publication) (holding that a prior conviction was not void and could be used for enhancement although contrary to article 42.01, it was not signed); Aurich v. State , No. 02

- 03

- 00412

- CR, 2005 WL 1355991, at *2 (Tex. App.

— Fo rt Worth J une 9, 2005, pet. ref’ d) (mem. op., not designated for publication) (“[T]o the extent the judgments in appellant’s pen packets did not comply with article 42.01, appellant’s convictions were not void, but merely voidable.”) ; Webb v. State , No. 05

- 00

- 02104

- CR, 2002 WL 851730, at *2 (Tex. App.

— Dallas May 6, 2002, no pet.) (mem. op., not designated for publication) (concluding that a prior conviction for delivery of marijuana could be used for enhancement although the judgment related to that conviction did no t comply with article 42.01 because it did not contain certain language or a thumbprint) ; Pereira v. State , No. 05

- 97

- 00116

- CR, 1998 WL 749179, at *1 (Tex. App.

— Dallas Oct. 28, 1998, no pet.) (op. on reh’g) (not designated for publication) (disagreeing tha t the “S tate ’ s proof must comply with all the subsections of article 42.01” to be used for enhancement); Porter v. State , 757 S.W.2d 889, 891 (Tex. App.

— Beaumont 1988, no pet.) (holding that a Florida judgment was not void , was not subject to a collateral attack, and could be used for enhancement even though it did not state the defendant’s plea to the offense, as required by article 42.01) ; s ee also Nowell

direct result of these failures, the sufficiency of the Alabama [records fail] as a matter of law, and use of that conviction to enhance Appellant’s sentencing range is error.9 v. State , No. 02

- 10

- 00479

- CR, 2011 WL 4712009, at *1

– 2 (Tex. App.

— Fort Worth Oct. 6, 2011, no pet.) ( mem. op., not designated for publication) (holding that a prior conviction could be used for enhancement purposes although it was obtained in violation of a nother provision in the code of criminal procedure); Prado v. State , 822 S.W.2d 819, 82 0

– 2 1 (Te x. Ap p. — Eastland 1992, pet. ref’ d) (holding that a DWI conviction could be used for a jurisdictional enhancement although it was obtained in violation of a state statute that required the county attorney to attend court at the time of the plea)

. Appellant prin cipally relies on three cases, including two of our own decisions, to argue that the Alabama records are insufficient to support enhancement because they fail to comply with article 42.01. All three cases are distinguishable. See Langston v. State , 776 S .W.2d 586, 58 7

– 8 8 (Tex. Crim. App. 1989) (concluding that records from Kansas were inadmissible because they did not affirmatively show that the defendant was finally convicted of any offense ); Gaddy v. State , No. 02

- 09

- 00347

- CR, 2011 WL 1901972, at * 5

– 12 (Tex. App.

— Fort Worth May 19, 2011) (mem. op., not designated for publication) (recognizing that judgments that are merely voidable cannot be collaterally attacked but concluding that a defendant could challenge alleged convictions from New Mexico as void because the convictions showed that the defendant’s constitutional right to counsel had been violated), 7 vacated on other ground s , No.

7 Appellant does n ot assert a constitutional violation of his right to counsel with respect to his Alabama conviction ; the records show that he had counsel

.10 PD

- 1118

- 11, 2012 WL 4448757 , at *1 (Tex. Crim. App. Sept. 26, 2012) (not designated for publication) ; Mosqueda v. State , 936 S.W.2d 714, 7 15

– 17 (Tex. App.

— Fort Worth 1996, no pet.) (holding that a prior judgment was insufficient to establish a final conviction and therefore support enhancement when the State introduced an order granting probation explicitly stating that the “verdict and finding of guilty herein shall not be final”)

. In sum, we hold that the predicate upon which appellant bases the argument in his first issue

— that the State was required to present a judgment complying with the various requirements of article 42.01 to sufficiently prove its enhancement allegation

— is erroneous. Because appellant does not otherwise challenge the sufficiency of the evidence to prove the existence of a prior felony conviction and his link to that conviction , we overrule his first issue

. See Flowers , 220 S.W.3d at 921.

Furthermore, appellant does not explicitly argue that any of the alleged violations of article 42.01 in this case re ndered the Alabama conviction void, rather than voidable (and therefore reversible or correctable only on direct appeal)

. We note that one of the Alabama documents contains the following paragraph, below which the trial judge’s signature appears: The defe ndant comes before the Court, with attorney of record. The Court on the record . . . fully explained to Defendant all Constitutional rights. The court is convinced that Defendant comes into the Court voluntarily and unders t ands all Constitutional rights.

. . . [T]he court accepts the guilty plea and finds the defendant guilty a nd enters a judgment of guilt.11 Omitted Jury Charge Instructions In his second issue, appellant argues that the trial court “[e]rred by [f]ailing to [i]nstruct the [j]ury on the [v]alidity of the Alabama [c]onviction” in the punishment

- phase jury charge. Appellant does not propose what instruction concerning the validity of the Alabama conviction should have been given. We construe appellant’s second issue as depending on the contentions he raised within his first issue , in which he argued that t he Alabama conviction is not “valid” because of a lack of compliance with article 42.01

. 8 Because we have overruled appellant’s first issue on the ground that it was based on legally incorrect principles , we likewise overrule his second issue. In his th ird issue, appellant argues that the trial court erred by refusing his request for the inclusion of language in the punishment

- phase jury charge concerning the finality of his Alabama conviction . Appellant refers to the following colloquy that occurred du ring a charge conference in the trial court: [DEFENSE COUNSEL] : Your Honor, I ’ m reading in [a legal treatise] again. It ’ s talking about

-- it says, “ Probation is not final for enhancement purposes unless it ’ s revoked, ”

. . . .

8 In the part of appellant’s reply brief where he discusses his second issue, he contends, “Article 42.01 applied to the case, yet its requirements we re omitted from the jury instr uctions. . . . This is error.” T o the extent that in his second issue, appellant discusses the trial court’s denial of his request for the inclusion of language in the jury charge concerning the finality of his Alabama convic tion, we address that complaint below in our resolution of appellant’s third issue.12 [THE STATE] : Your Honor, that ’ s talking about Texas convictions. We have out

- of

- state convictions here in this case. . . .

. . . . [DEFENSE COUNSEL]: . . . [T here are] different definitions of what final is. The Texas law says [unless probation is revoked] then it is not a final conviction. . . . I would contend to the Court that this is not a final conviction under Texas law. [THE STATE] : Judge, if the Court would like to look over the [Alabama] judgment itself, it specifically states that the Defendant is to be incarce rated in

. . . a penitentiary and that meets the definition for enhancement under any reasonable definition that the Court can consider. [DEFENSE COUNSEL] : Your Honor, under Texas law, you can put
-- send somebody to prison for a period of time and suspe nd that imposition and sentence under a shock probation and that ’ s not a final sentence for enhancement purposes. And I don ’ t know that there ’ s much difference as a matter of language. THE COURT:

. . . The objection is overruled, is denied.

. . . . [ DEFENSE COUNSEL] :
. . . I would request at this time a definition of final for enhancement purposes to be included in the Court ’ s Charge. [THE STATE] : Judge, I don ’ t believe that would be an appropriate definition to include in the Court ’ s Charge. It ’ s -- a final conviction isn ’ t specifically defined to my knowledge in the Code of Criminal Procedure. I think it ’ s not appropriate for the Jury to hear that. [DEFENSE COUNSEL] : It ’ s defined in the caselaw, Your Honor, and I would ask that that would be included in there because they are the ones that determine

. . . when a conviction is final. [If we] don ’ t give them instructions, how do they

. . . know?13 The trial court denied appellant’s final request for a jury charge to contain a defin ition of a “fin al” conviction. In our review of a jury charge, we first determine whether error occurred; if error did not occur, our analysis ends. Kirsch v. State , 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). If error occurred, whether it was preserved determines the degree of harm required for reversal. Id. Error in the charge, if timely objected to in the trial court, requires reversal if the error was “calculated to injure the rights of [the] defendant,” which means no more than that there must be some harm to the accused from the error. Tex. Code Crim. Proc. Ann. art. 36.19 (West 2006); Almanza v. State , 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g); see also Reeves v. State , 420 S.W.3d 812, 816 (Tex. Crim. App. 2013). In other words, a properly prese rved error will require reversal as long as the error is not harmless. Almanza , 686 S.W.2d at 171. Appellant does not direct us to any authority particularly holding that a trial court must instruct a jury about the definition of a “final ” conviction for enhancement purposes

. But appellant argues on appeal that [t] aking into account [the] presumption that the jury follows the law as instructed, had the jury been correctly instructed regarding the finality of the Alabama judgment, the jury would have appl ied the correct sentencing range of 2 to 10 years

. . . and could not have sentenced Appellant to the seventeen

. . . year sentence that he actually received.

. . . .14 In essence, the Court ’s refusal to charge the jury on the finality of the Alabama judgm ent resulted in the removal of the requirement that the Alabama conviction be proven. Without requiring proof of finality of the Alabama judgment, the Court allowed for the Jury to assess enhanced punishment in the absence of sufficient proof of applicabl e law. Contrary to this argument, we conclude that even if instructions had been included to correctly define the finality of the Alabama judgment, the result of the trial would not have been different. F or enhancement of a third

- degree felony to

a secon d

- degree

- felony punishment range, Texas law requires the State to prove that the defendant “ has previously been finally convicted of a felony .” Tex. Penal Code Ann. § 12.42(a) (emphasis added)

. 9 As appellant’s trial counsel argued, a conviction obtaine d in Texas that includes a probated sentence is not “final” for purposes of enhancement unless probation is revoked. See Ex parte White , 211 S.W.3d 316, 319 (Tex. Crim. App. 2007) ; Throneberry v. State , 109 S.W.3d 52, 56 (Tex. App.

— Fort Worth 2003, no pet .) . But when a foreign conviction may be properly used for enhancement purposes in the state in which it arose , it may likewise be used in Texas. See Ajak v. State , No. 07

- 14

- 00018

- CR, 2014 WL 3002811, at *1 (Tex. App.

— Amarillo July 1, 2014, no pet.) (me m. op., not designated for publication) (“ Assuming arguendo that the judgment must be final, the law of Virginia determines whether or not it is so. ” ); M oore v. State , No. 05

- 10

- 01306

- CR, 2012 WL 858606, at *7 (Tex. App.

— Dallas Mar. 15, 2012, pet.

9 The trial court’s punishment

- phase charge to the jury tracked this language but did not inform the jury about how a felony conviction becomes final.15 ref’ d) ( not designated for publication); Ramos v. State , 351 S.W.3d 913, 915 (Tex. App.

— Amarillo 2011, pet. ref’d ) ( stating that appellate courts “ use the law of the jurisdiction from which the conviction arose to determine its finality for purposes of enhancement in Texas ” and therefore allowing California convictions to enhance a Texas sentence because in California, convictions resulting in probation are considered final) ; Skillern v. State , 890 S.W.2d 849, 883 (Tex. App.

— Austin 1994, pet. ref ’ d) ( holding simila rly with regard to a federal conviction ) ; cf. DiRemiggio v. State , 637 S.W.2d 926 , 928 (Tex. Crim. App. [Panel Op.] 1982) (holding that a Virginia conviction could not be used for enhancement because “th e State made no effort whatever to enlighten the tria l
court

. . . that such a conviction was considered to be ‘ final ’ under Virginia law ”). Here, the trial court admitted State’s Exhibit 17, a copy of the Alabama
sentence
- enhancement statute. Cf. Moore , 2012 WL 858606, at *8 (“ In order to determine whethe r the Oklahoma conviction was final and could have been used for enhancement in Oklahoma, we consider Oklahoma ’ s repeat offender
statute. ”). That statute states that enhancement is available when a “criminal defendant has been previously convicted of a fe lony”; the plain language of the statute does not require a “final” conviction or exclude convictions that result in probation. See Ala. Code § 13A

- 5

- 9 (a) ; see also Watson v. State , 392 So. 2d 1274, 127 8

– 7 9 (Ala. Crim. App. 1980) (holding that under secti on 13A

- 5

- 9, a conviction may be used for enhancement even though the defendant receives probation and is never incarcerated) , writ denied sub nom. Ex parte Watson , 39216 So. 2d 1280 (Ala. 1981)

. Thus, appellant’s conviction could be used for enhancement in Alabama, and it may be used for enhancement in Texas. See Moore , 2012 WL 858606, at *7 ; see also Mitchell v. State , No. 05

- 06

- 01706

- CR, 2008 WL 713635, at *1 (Tex. App.

— Dallas Mar. 18, 2008, no pet.) (mem. op., not designated for publication) ( stating tha t “ i f an out
- of

- state conviction may be used for enhancement in the foreign state, it may be used unde r section 12.42 for enhancement”). For these reasons, we conclude that even if the trial court erred by not including language in the jury charge definin g when a conviction is “final” and therefore usable for enhancement under section 12.42 of the penal code , that error was harmless because under the correct standards, appellant’ s Alabama conviction was usable for enhancement

. See Almanza , 686 S.W.2d at 1 71

. We overrule appellant’s third issue. Conclusion Having overruled all of appellant’s issues, we affirm the trial court’s judgment. /s/ Terrie Livingston TERRIE LIVINGSTON CHIEF JUSTICE PANEL: LIVINGSTON, C.J.; GARDNER and MEIER, JJ. DO NOT PUBLISH Tex. R. App. P. 47.2(b) DELIVERED: June 18, 2015