Fourth Court of Appeals

San Antonio, Texas

OPINION

No. 04-17-00636-CR

Kevin Roy FOWLER,

Appellant

v.

The STATE of Texas,

Appellee

From the 144th Judicial District Court, Bexar County, Texas

Trial Court No. 2017CR0957

Honorable Laura Lee Parker, Judge Presiding

Opinion by: Marialyn Barnard, Justice

Sitting: Sandee Bryan Marion, Chief Justice

Marialyn Barnard, Justice

Patricia O. Alvarez, Justice

Delivered and Filed: October 17, 2018

AFFIRMED

A jury convicted appellant Kevin Fowler of unlawful possession of a firearm by a felon. 

At sentencing, the trial court found the habitual offender enhancement allegations true and 

sentenced Fowler to twenty-five years’ confinement. In a single issue, Fowler contends the 

evidence is legally insufficient to prove one of the habitual offender enhancements was true, and 

therefore, he should have been sentenced as a repeat as opposed to a habitual offender. We affirm 

the trial court’s judgment.
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BACKGROUND

Fowler was arrested for the offense of unlawful possession of a firearm by a felon. In the 

subsequent indictment, the State charged Fowler with the offense for which he was arrested and 

further alleged Fowler was a habitual offender based on two prior federal, felony convictions —

possession of a machine gun in 2001 and escape in 2008. At trial, the jury found appellant guilty 

of the unlawful possession offense.

During sentencing, the State presented evidence regarding Fowler’s prior federal 

convictions for purposes of establishing the habitual offender enhancement allegations in the 

indictment. The evidence consisted of: (1) testimony from a retired Secret Service agent with 

knowledge of Fowler’s prior escape conviction; and (2) documentary exhibits, i.e., judgments for 

the 2001 possession of a machine gun offense from the United States District Court, Southern 

District of Texas, and the 2008 escape offense from the United States District Court, Western 

District of Texas. Based on this evidence, the trial court found the habitual offender enhancements 

true and assessed punishment at twenty-five years’ confinement.

ANALYSIS

In his sole appellate issue, Fowler contends there was insufficient evidence to support the 

trial court’s finding of “true” with regard to one of the habitual offender enhancement allegations. 

Specifically, Fowler argues the State failed to prove his prior federal conviction for the offense of 

escape is a felony, and therefore, it could not be used for enhancement. Accordingly, he contends 

he was improperly sentenced as a habitual offender. We disagree.

Standard of Review

With regard to enhancement allegations, a trial court considers whether the totality of the 

evidence establishes beyond a reasonable doubt that the defendant was previously convicted of the 

enhancement offense as alleged in the indictment. Wood v. State, 486 S.W.3d 583, 589 (Tex. 
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Crim. App. 2016). When reviewing the evidence to determine whether it is sufficient to support a 

finding that an enhancement allegation is “true,” we consider all of the evidence in the light most 

favorable to the trial court’s finding and determine whether a rational trier of fact could have found 

the essential elements beyond a reasonable doubt. Henry v. State, 509 S.W.3d 915, 919 (Tex. 

Crim. App. 2016) (citing Wood, 486 S.W.3d at 589); Lee v. State, No. 04-16-00770-CR, 2018 WL

2694830, at *5 (Tex. App.—San Antonio Aug. 22, 2018, pet. ref’d) (same). 

Application

Under Section 12.42(d) of the Texas Penal Code (“the Code”), when a “[d]efendant has 

previously been finally convicted of two felony offenses ... 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.” TEX. PENAL CODE ANN. § 12.42(d). This is referred to as the

habitual offender sentence enhancement. When, as here, a defendant’s prior convictions resulted 

from a prosecution in a jurisdiction other than Texas, we must determine how the offense is to be 

classified under Texas law in order to determine the applicability of section 12.42(d). Id. § 12.41. 

The Code classifies a conviction “not obtained from a prosecution” thereunder as a “felony 

in the third degree” if imprisonment in a penitentiary “is affixed to the offense as a possible 

punishment.” Id.; see Ex parte Pue, 552 S.W.3d 226, 232 (Tex. Crim. App. 2018); Ex parte Blume, 

618 S.W.2d 373, 376 (Tex. Crim. App. 1981). Thus, the question in this case is whether Fowler’s 

prior federal conviction for the offense of escape subjected him to imprisonment in a penitentiary 

as a possible punishment. See TEX. PENAL CODE ANN. §§ 12.41, 12.42(d). Accordingly, we must 

review the evidence produced by the State to determine whether it proved Fowler was subject to 

imprisonment for the federal offense of escape. 

The evidence in this case — specifically the federal judgment of conviction for the escape 

offense — establishes Fowler was sentenced to twelve months imprisonment. Therefore, it is self-
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evident that imprisonment in a penitentiary “[was] affixed to the offense as a possible punishment.” 

TEX. PENAL CODE ANN. § 12.41. Accordingly, the federal escape offense was a felony for 

purposes of the habitual offender enhancement statute. See id. §§ 12.41, 12.42(d). Coupled with 

the prior conviction for possession of a machine gun, which Fowler concedes is a felony for 

purposes of the habitual offender statute, the escape conviction subjected Fowler to the rigors of 

the habitual offender enhancement statute — two prior, final felony convictions. 

Fowler seems to suggest the evidence was insufficient because escape can be a 

misdemeanor or a felony under federal law. However, this is not the proper inquiry. The proper 

inquiry is whether the federal offense for which Fowler was previously convicted subjected him 

to possible incarceration. See TEX. PENAL CODE ANN. § 12.41. As discussed above, Fowler was 

sentenced for the federal escape offense twelve months’ imprisonment. Thus, he was obviously 

subject to possible imprisonment for the offense. The State was not required to prove his prior 

escape conviction was a felony under federal law, only that he was subject to possible 

imprisonment. See id. 

CONCLUSION

Based on the foregoing analysis, we hold the evidence is sufficient to prove Fowler was 

previously convicted of two felonies that predated the current offense. Accordingly, we overrule 

Fowler’s sole issue on appeal and affirm the trial court’s judgment.

Marialyn Barnard, Justice

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