No. PD-_______-15 

IN THE TEXAS COURT OF CRIMINAL APPEALS 

AT AUSTIN, TEXAS 

__________________________________________________________ 

MILTON RAY CRAWFORD, Appellant 

v.

THE STATE OF TEXAS 

_________________________________________________________ 

ON PETITION FOR DISCRETIONARY REVIEW 

FROM THE DECISION BY THE TENTH COURT OF APPEALS 

IN CAUSE NUMBER 10-14-00127-CR 

_________________________________________________________ 

APPELLANT’S PETITION FOR DISCRETIONARY REVIEW 

 

_________________________________________________________ 

 Richard E. Wetzel 

 State Bar No. 21236300 

 1411 West Avenue, Suite 100 

 Austin, Texas 78701 

 (512) 469-7943 - telephone 

 (512) 474-5594 - facsimile 

 wetzel_law@1411west.com - email 

 Attorney for Appellant 

 Milton Ray Crawford 

PD-1283-15

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 9/28/2015 12:00:00 AM

Accepted 9/30/2015 1:28:35 PM

ABEL ACOSTA

CLERK
ii

Identity of Parties and Counsel

Appellant: Milton Ray Crawford 

Trial Counsel for Appellant: Mark Maltsberger 

Attorney at Law

219 E. William J. Bryan Pkwy. 

Bryan, TX 

77803

Appellate Counsel for Appellant: Richard E. Wetzel

Attorney at Law

1411 West Ave.

Suite 100

Austin, TX

78701

Appellee: The State of Texas

Trial and Counsel for Appellee: Jason Goss

Kara Comte 

Assistant District Attorneys

300 E. 26th Street

Bryan, TX

77803

Appellate Counsel for Appellee: Doug Howell 

Assistant District Attorney

300 E. 26th Street

Bryan, TX

77803

Trial Judge: Hon. Travis Bryan, III

272nd District Court

Brazos County, Texas
iii

Table of Contents

Page

Identity of Parties and Counsel . . . . . . . . . . . . . . . . . . . . . . . . ii

Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . iii

Index of Authorities . . . . . . . . . . . . . . . . . . . . . . . . iv

Statement Regarding Oral Argument . . . . . . . . . . . . . . . . . . . . . . . . .1

Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . .1

Statement of Procedural History . . . . . . . . . . . . . . . . . . . . . . . . .2

Question for Review . . . . . . . . . . . . . . . . . . . . . . . . .2

Argument in Support of Question for Review . . . . . . . . . . . . . . . . . . . . . . . . .2

Is TEX. CRIM. PROC. CODE art. 62.102(c) the exclusive enhancement of 

punishment provision for an offender who repeatedly or habitually fails to register 

as a sex offender? 

Prayer . . . . . . . . . . . . . . . . . . . . . . . . .7

Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . .8

Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . .9

Appendix . . . . . . . . . . . . . . . . . . . . . . . . .9
iv

Index of Authorities

Page

Cases

Barker v. State, 335 S.W.3d 731 

(Tex. App.—Houston [14th Dist.] 2011, pet. ref'd) . . . . . . . . . . . . . . . . . . . . . . . . 5

Beck, Ex parte, 922 S.W.2d 181 

(Tex. Crim. App. 1996) . . . . . . . . . . . . . . . . . . . . . . . . 5

Cheney v. State, 755 S.W.2d 123 

(Tex. Crim. App. 1988) . . . . . . . . . . . . . . . . . . . . . . . . 4

Crawford v. State, No. 10-14-00127-CR

(Tex. App. – Waco 2015, pet. pending) . . . . . . . . . . . . . . . . . . . . . . 2, 5

Dillehey v. State, 815 S.W.2d 623 

(Tex. Crim. App. 1991) . . . . . . . . . . . . . . . . . . . . . . . . 4

Ford v. State, 334 S.W.3d 230 

(Tex. Crim. App. 2011) . . . . . . . . . . . . . . . . . . . . . . . . 4

Harris, Ex parte, 495 S.W.2d 231

(Tex. Crim. App. 1973) . . . . . . . . . . . . . . . . . . . . . . . . 6

Heath v. State, 817 S.W.2d 335 

(Tex. Crim. App. 1991) . . . . . . . . . . . . . . . . . . . . . . . . 5

McIver, Ex parte, 586 S.W.2d 851 

(Tex. Crim. App. 1979) . . . . . . . . . . . . . . . . . . . . . . . . 5

Miller, Ex parte, 921 S.W.2d 239 

(Tex. Crim. App. 1996) . . . . . . . . . . . . . . . . . . . . . . . . 5

Mikel v. State, 167 S.W.3d 556 

(Tex. App. - Houston [14th Dist.] 2005, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . 6

Mizell v, State, 119 S.W.3d 804 

(Tex. Crim. App. 2003) . . . . . . . . . . . . . . . . . . . . . . . . 6
v

Reyes v. State, 96 S.W.3d 603 

(Tex. App.—Houston [1st Dist.] 2002, pet. ref'd) . . . . . . . . . . . . . . . . . . . . . 4, 5

Rich, Ex parte, 194 S.W.3d 508 

(Tex. Crim. App. 2006) . . . . . . . . . . . . . . . . . . . . . . . . 7

Sanders v. State, 785 S.W.2d 445 

(Tex. App. – San Antonio 1990, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . 6

State v. Mancuso, 919 S.W.2d 86 

(Tex. Crim. App. 1996) . . . . . . . . . . . . . . . . . . . . . . . . 4

White, Ex parte, 659 S.W.2d 434 

(Tex. Crim. App. 1983) . . . . . . . . . . . . . . . . . . . . . . . . 5

Statutes 

TEX. CRIM. PROC. CODE art. 62.058(a) . . . . . . . . . . . . . . . . . . . . passim

TEX. CRIM. PROC. CODE art. 62.102(a) . . . . . . . . . . . . . . . . . . . . passim

TEX. CRIM. PROC. CODE art. 62.102(b)(2) . . . . . . . . . . . . . . . . . . . . passim

TEX. CRIM. PROC. CODE art. 62.102(c) . . . . . . . . . . . . . . . . . . . . passim

TEX. GOV’T CODE § 311.021 . . . . . . . . . . . . . . . . . . . . . . . . 4

TEX. GOV’T CODE § 311.026(a) . . . . . . . . . . . . . . . . . . . . . . . . 4

TEX. GOV’T CODE § 311.026(b) . . . . . . . . . . . . . . . . . . . . . . . . 4

TEX. PEN. CODE § 12.33 . . . . . . . . . . . . . . . . . . . . . . . . 3

TEX. PEN. CODE § 12.42(d) . . . . . . . . . . . . . . . . . . . . passim
vi

Rules 

TEX. R. APP. P. 9.4 . . . . . . . . . . . . . . . . . . . . . . . . .8

TEX. R. APP. P. 66.3(b) . . . . . . . . . . . . . . . . . . . . . . . . .7

 
- 1 -

Statement Regarding Oral Argument

Argument is requested in the event his petition for discretionary review is 

granted. The question presented on discretionary review is both legally complex 

and factually intensive. Argument would be of assistance to the court in the 

decisional process. 

Statement of the Case

Milton Ray Crawford was indicted by a Brazos County grand jury for 

committing the offense of failing to verify his sex offender registration on an 

annual basis on or about March 9, 2012 (CR 6). See TEX. CRIM. PROC. CODE

arts. 62.058(a), 62.102(a), and 62.102(b)(2). The indictment additionally alleged 

two prior convictions for failing to register as a sex offender for enhancement of 

punishment (CR 6). See TEX. PEN. CODE § 12.42(d). A jury was selected and 

sworn (9 RR 241, 10 RR 31). Crawford entered a plea of not guilty to the indicted 

offense (10 RR 31). The jury found Crawford guilty of the offense alleged in the 

indictment (11 RR 172). Crawford elected for the jury to assess punishment (CR 

157). He entered pleas of true to the prior convictions alleged for enhancement of 

punishment (11 RR 207). The jury found the prior convictions true and assessed 

punishment at 85 years in prison (12 RR 109). Crawford was sentenced in open 
- 2 -

court (12 RR 112). The trial court certified Crawford’s right to appeal (CR 164). 

Notice of appeal was timely filed (CR 196). 

Statement of Procedural History 

Five points of error were presented on direct appeal. The Court of Appeals 

affirmed Crawford’s conviction and sentence in an unpublished opinion. Crawford 

v. State, No. 10-14-00127-CR (Tex. App. – Waco 2015, pet. pending). No motion 

for rehearing was filed. 

Question for Review

Is TEX. CRIM. PROC. CODE art. 62.102(c) the exclusive enhancement of 

punishment provision for an offender who repeatedly or habitually fails to 

register as a sex offender? 

Argument in Support of Question for Review

On direct appeal, Crawford claimed his sentence was illegal because it was 

unlawfully enhanced under TEX. PEN. CODE § 12.42(d). Crawford was indicted 

by a Brazos County grand jury for committing the offense of failing to verify his 

sex offender registration on an annual basis on or about March 9, 2012 (CR 6). 

See TEX. CRIM. PROC. CODE arts. 62.058(a), 62.102(a), and 62.102(b)(2). The 

indictment additionally alleged two prior convictions for failing to register as a sex 

offender for enhancement of punishment (CR 6). See TEX. PEN. CODE § 12.42(d). 
- 3 -

Crawford entered pleas of true to the prior convictions alleged for enhancement of 

punishment (11 RR 207). The court charged the jury the applicable range of 

punishment was 25 to 99 years or life in prison (CR 171). The jury found the prior 

convictions true and assessed punishment at 85 years in prison (12 RR 109). 

Crawford maintains his sentence was improperly enhanced because 

enhancement was only available under the special and specific enhancement 

provision for a repeat or habitual offender found guilty of a failure to register as a 

sex offender under TEX. CRIM. PROC. CODE art. 62.102(c). The statute provides;

If it is shown at the trial of a person for an offense or an attempt to 

commit an offense under this article that the person has previously 

been convicted of an offense or an attempt to commit an offense under 

this article, the punishment for the offense or attempt to commit the 

offense is increased to the punishment for the next highest degree of 

felony. 

Here, Crawford was indicted for a third degree felony offense under TEX. 

CRIM. PROC. CODE art. 62.102(a)(2). In view of his prior convictions for failing 

to report as a sex offender, the applicable range of punishment was that of a second 

degree felony of 2 to 20 years and a fine of up to $10,000. See TEX. PEN. CODE §

12.33. Crawford submits art. 62.102(c) represents a legislative determination that 

those who repeatedly fail to register as sex offenders are subject to increased 

punishment under art. 62.102(c) but not the habitual felon punishment provisions 

of § 12.42(d). Indeed, this Court has recognized that in a prosecution for failing to 
- 4 -

register as a sex offender, a prior conviction of the same nature increases the level 

of punishment to that of the next highest felony degree under art. 62.102(c). See 

Ford v. State, 334 S.W.3d 230, 235 (Tex. Crim. App. 2011). These arguments 

were brought to the attention of the trial court and rejected (11 RR 196-197). 

It is presumed in the enactment of a statute that the entire statute and all 

words in the statute are intended to be effective, and the language therein will 

create a just and reasonable result. See TEX. GOV’T CODE § 311.021. If a general 

provision conflicts with a specific provision, the provisions shall be construed, if 

possible, so that effect is given to both. TEX. GOV’T CODE § 311.026(a); Dillehey 

v. State, 815 S.W.2d 623, 632 (Tex. Crim. App. 1991); Cheney v. State, 755 

S.W.2d 123, 126 (Tex. Crim. App. 1988). If the statutes are unable to be 

reconciled, the specific statute will prevail as an exception to the general statute, 

unless the general statute is the later enactment and the manifest intent is that the 

general provisions prevail. TEX. GOV’T CODE § 311.026(b); State v. Mancuso, 919 

S.W.2d 86, 88 (Tex. Crim. App. 1996). See Reyes v. State, 96 S.W.3d 603, 605 

(Tex. App.—Houston [1st Dist.] 2002, pet. ref'd). 

Crawford maintains art. 62.102(c) can be reconciled with § 12.42 by 

following the legislative mandate within art. 62.102(c) that it is the exclusive 

enhancement of punishment provision for those repeatedly convicted of failing to
- 5 -

register as a sex offender. Alternatively, if the statutes cannot be reconciled, then 

the later enacted specific statute of art. 62.102(c) should prevail as an exception to 

the general enhancement of punishment statute within § 12.42(d). 

In the Court of Appeals, Crawford acknowledges there is authority against 

his current argument in both Barker v. State, 335 S.W.3d 731, 738 (Tex. App.—

Houston [14th Dist.] 2011, pet. ref'd) and Reyes, 96 S.W.3d at 605. Crawford 

submits both cases were wrongly decided and the gratuitous comments concerning 

the interplay between art. 62.102(c) and § 12.42(d) were dicta because the prior 

enhancing convictions in both of those cases were not, as in Crawford’s case, for 

failing to register as a sex offender. In Barker, punishment was enhanced with an 

aggravated assault conviction and in Reyes, punishment was enhanced with 

burglary and aggravated assault convictions. Id. The Court of Appeals disagreed 

with Crawford’s challenges to Barker and Reyes upon finding they do not 

“misstate the law.” Crawford, slip op. at 4. 

A defect which renders a sentence void may be raised at any time. Ex parte 

Beck, 922 S.W.2d 181 (Tex. Crim. App. 1996) (citing Heath v. State, 817 S.W.2d 

335, 336 (Tex. Crim. App. 1991) (opinion on original submission)); see also Ex 

parte Miller, 921 S.W.2d 239 (Tex. Crim. App. 1996); Ex parte White, 659 S.W.2d 

434, 435 (Tex. Crim. App. 1983); Ex parte McIver, 586 S.W.2d 851 (Tex. Crim. 
- 6 -

App. 1979); Ex parte Harris, 495 S.W.2d 231, 232 (Tex. Crim. App. 1973). In 

fact, there has never been anything in Texas law that prevented any court with 

jurisdiction over a criminal case from noticing and correcting an illegal sentence, 

no matter when or how the relief was sought. Mizell v. State, 119 S.W.3d 804 

(Tex. Crim. App. 2003). 

Furthermore, Crawford did not forfeit his claim by pleading true to the 

enhancement paragraphs at the punishment hearing. Despite the general rule that a 

plea of true to an enhancement paragraph relieves the State of its burden to prove a 

prior conviction alleged for enhancement and forfeits the defendant's right to 

appeal the insufficiency of evidence to prove the prior conviction, there is an 

exception when the record affirmatively reflects that the enhancement is itself 

improper. The exception originated in Sanders v. State, in which the Fourth Court 

of Appeals held that a prior non-final conviction could not be used to enhance 

punishment even where the defendant had pleaded true to the enhancement 

paragraph characterizing the prior offense as final. 785 S.W.2d 445, 448 (Tex. 

App. – San Antonio 1990, no pet.). In the interest of justice, the court of appeals 

set aside the defendant’s enhanced punishment and remanded the case to the trial 

court for the proper assessment of punishment. Id. Similarly, the Fourteenth Court 

of Appeals applied this exception to a case in which the offenses used for 

enhancement did not occur in the sequence alleged by the indictment. Mikel v. 
- 7 -

State, 167 S.W.3d 556 (Tex. App. - Houston [14th Dist.] 2005, no pet.) (even 

though the defendant pleaded true at the punishment hearing, the court of appeals 

concluded that the evidence was legally insufficient to prove the allegations in the 

improper enhancement paragraph and remanded the case for a new punishment 

hearing.). The Court of Criminal Appeals has expressed approval of the no 

forfeiture by a plea of true opinions in Sanders and Mikel. See Ex parte Rich, 194 

S.W.3d 508, 514 (Tex. Crim. App. 2006). 

Here, Crawford’s sentence was improperly enhanced under § 12.42(d). A 

sentence of 85 years exceeds the lawful punishment which may be imposed for an 

offense punished as a second degree felony. The Court of Appeals should have 

vacated Crawford’s unlawful sentence and remanded the case for a new 

punishment proceeding in which a lawful sentence within the range of a second 

degree felony could be imposed. 

Crawford submits the question presented in an important question of state 

law that has not been, but should be, settled by this Court. See TEX. R. APP. P. 

66.3(b). 

Prayer

Wherefore, premises considered, Milton Ray Crawford prays this Honorable 

Court will grant this petition for discretionary review, reverse the judgment of the 
- 8 -

Court of Appeals, remand to the trial court for a new punishment hearing, or enter 

any other relief appropriate under the facts and the law. 

Respectfully submitted,

/s/ Richard E. Wetzel

Richard E. Wetzel

State Bar No. 21236300

1411 West Avenue

Suite 100

Austin, TX 78701

(512) 469-7943

(512) 474-5594 – facsimile 

wetzel_law@1411west.com

Attorney for Appellant

Milton Ray Crawford 

Certificate of Compliance

This pleading complies with TEX. R. APP. P. 9.4. According to the word 

count function of the computer program used to prepare the document, the 

pleading contains 1,372 words excluding the items not to be included within the 

word count limit. 

/s/ Richard E. Wetzel

Richard E. Wetzel

State Bar No. 21236300
- 9 -

Certificate of Service

This is to certify that a true and correct copy of the foregoing pleading was 

mailed to counsel for the State, Doug Howell, Assistant District Attorney, at his 

email address of dhowell@co.brazos.tx.us and Lisa McMinn, State Prosecuting

Attorney, at her email address of information@spa.texas.gov on this the 27th day of 

September, 2015. 

/s/ Richard E. Wetzel

Richard E. Wetzel

State Bar No. 21236300

Appendix
IN THE

TENTH COURT OF APPEALS

No. 10-14-00127-CR

MILTON RAY CRAWFORD,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 272nd District Court

Brazos County, Texas

Trial Court No. 13-04461-CRF-272

MEMORANDUM OPINION

In 1984, Appellant Milton Ray Crawford pled guilty to the offense of sexual assault 

and was sentenced to fifteen years in prison. Thereafter, he had two felony convictions 

for failing to register as a sex offender, the second one being in Brazos County in 2009. 

Crawford registered in 2009, 2010, and 2011. In 2013, Crawford was indicted for the thirddegree felony offense of failing to comply with sex-offender registration. See TEX. CODE 

CRIM. PROC. ANN. art. 62.102(b)(2) (West Supp. 2014). The indictment alleged the two 

prior convictions for failing to register as enhancements.
Crawford v. State Page 2

Crawford testified that he thought that sex-offender registration was unfair to him 

because it had not been required in 1984, and that in 2011, he received legal advice from 

a legal-aid line that he did not have to register. He also believed that sex-offender 

registration was not applicable because his conviction was not for the offense of 

indecency with a child. In August of 2011, Crawford told Carla Field, who is responsible 

for sex-offender registration in Brazos County, that he would no longer register, and she 

told him that he was required to register for the rest of his life. Crawford admitted that 

he did not register in March of 2012, which led to the instant charge. A jury found 

Crawford guilty. He pled true to the two prior convictions, and the jury, after finding the 

prior convictions true, assessed an 85-year prison sentence. Asserting five issues, 

Crawford appeals.

In his first issue, Crawford contends that the 85-year sentence is illegal because the 

punishment range was improperly enhanced under Penal Code section 12.42(d), which 

provides a punishment range of 25 to 99 years or life for habitual offenders:

(d) 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. A previous 

conviction for a state jail felony punishable under Section 12.35(a) may not 

be used for enhancement purposes under this subsection.

TEX. PENAL CODE ANN. § 12.42(d) (West Supp. 2014). In his second issue, Crawford 

asserts that he was harmed by the improper enhancement because the jury was 
Crawford v. State Page 3

improperly charged on the punishment range; instead, he asserts that enhancement 

should have been to a second-degree felony. 

Crawford asserts that enhancement could only be done under article 62.102(c), 

which provides:

If it is shown at the trial of a person for an offense or an attempt to 

commit an offense under this article that the person has previously been 

convicted of an offense or an attempt to commit an offense under this 

article, the punishment for the offense or the attempt to commit the offense 

is increased to the punishment for the next highest degree of felony.

TEX. CODE CRIM. PROC. ANN. art. 62.102(c). 

Crawford acknowledges that two of our sister courts have addressed this issue 

adversely to his position but contends that they were wrongly decided or dicta. See Reyes 

v. State, 96 S.W.3d 603, 605 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d) (“As such, 

article 62.10(c) [now 62.102(c)] provides a very specific exception to the general 

enhancement statute, but does not otherwise preclude the application of section 12.42.”).

Appellant also argues that section 12.42(b) cannot be used to enhance 

his punishment because article 62.102 includes a unique punishmentenhancement section. Article 62.102(c) provides that an offender’s 

punishment level is increased to the next highest felony if he is found guilty 

of a failure-to-register offense and has previously been convicted of a 

failure-to-register offense. TEX. CODE CRIM. PROC. ANN. art. 62.102(c). The 

Court of Criminal Appeals recently agreed that article 62.102(c) is a 

punishment-enhancement provision and does not enhance the offense level 

of the charged offense. See Ford, 334 S.W.3d at 231-35. However, article 

62.102(c) is not implicated in appellant’s case because his punishment was 

not enhanced by a prior failure-to-register conviction, but by his prior 

aggravated-assault conviction. Moreover, we reject appellant’s contention 

that inclusion of subsection (c) to article 62.102 precludes the application of 

section 12.42(b) to enhance a defendant’s punishment for a failure-toregister conviction. We agree that a prior failure-to-register conviction could 

have been used to enhance appellant’s punishment to a first-degree felony under 

either article 62.102(c) or section 12.42(b). Thus, there is some overlap 
Crawford v. State Page 4

between these statutes. However, punishment enhancement under article 

62.102(c) is not merely repetitive of that provided by section 12.42. For example, 

although article 62.102(c) provides for punishment enhancement to the next 

highest felony degree when the defendant has one prior failure-to-register 

conviction, under certain subsections of section 12.42, punishment for a failure-toregister conviction may be enhanced only if the defendant has two prior felony 

convictions. Compare TEX. CODE CRIM. PROC. ANN. art. 62.102(c), with TEX.

PENAL CODE ANN. § 12.42(a)(1), (2). Furthermore, nothing in article 62.102(c) 

suggests that it is the exclusive provision governing punishment enhancement for 

a failure-to-register conviction. Accordingly, we reject appellants argument 

that article 62.102(c) precluded the State’s use of section 12.42(b) to enhance 

his punishment. See Reyes v. State, 96 S.W.3d 603, 605 (Tex. App.—Houston 

[1st Dist.] 2002, pet. ref’d) (rejecting similar argument concerning former 

version of article 62.102(c) and expressing “article 62.10(c) [predecessor of 

article 62.102] provides a very specific exception to the general 

enhancement statute, but does not otherwise preclude the application of 

section 12.42”). We conclude that appellant’s offense level for punishment 

was properly enhanced from a second-degree felony to a first-degree felony 

pursuant to section 12.42(b). See TEX. PENAL CODE ANN. § 12.42(b).

Barker v. State, 335 S.W.3d 731, 738 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d)

(emphases added).

We are not persuaded that Barker and Reyes misstate the law. We hold that 

Crawford’s sentence is not illegal and that he was not harmed. Issues one and two are 

overruled.

In issue three, Crawford asserts that the trial court abused its discretion by 

allowing Crawford’s 1984 sexual-assault conviction “to serve quadruple duty in his 

conviction and punishment assessed.”1 Largely relying on Ballard v. State, 149 S.W.3d 693 

(Tex. App.—Austin 2004, pet. ref’d), Crawford contends that “having used Crawford’s 

 

1 Crawford alleges that the “quadruple duty” consisted of the 1984 sexual-assault conviction first serving 

as the reportable conviction that gave rise to his duty to register. Second, it served as the sexually violent 

offense that determined the term and frequency of his duty to register and thus made his failure to comply 

a third-degree felony. The third and fourth duties were its serving as the basis on which prosecution was 

brought for the two prior failure-to-register convictions.
Crawford v. State Page 5

1984 sexual assault conviction to prove that he had a duty to register as a sex offender (to 

prove, in other words, that Crawford had the status of being required to register), the 

State could not also use that conviction or a conviction derived therefrom to enhance his 

punishment.” 

But as the State points out, in Ballard, the court held that the prohibited use of the 

underlying sexual-assault conviction was as one of the two prior felony convictions to 

punish the appellant as a habitual offender under Penal Code section 12.42(d). Id. at 696. 

Crawford’s underlying sexual-assault conviction was not used to enhance his 

punishment, as had been done in Ballard. We thus overrule issue three.

Issues four and five contend that the trial court abused its discretion by failing to 

grant a mistrial when the State twice allegedly made improper arguments in the 

punishment phase. Proper jury argument includes: (1) summation of the evidence 

presented at trial; (2) reasonable deduction drawn from that evidence; (3) answer to the 

opposing counsel’s argument; or (4) a plea for law enforcement. York v. State, 258 S.W.3d 

712, 717 (Tex. App.—Waco 2008, pet. ref’d) (citing Jackson v. State, 17 S.W.3d 664, 673 (Tex. 

Crim. App. 2000)).

The denial of a motion for mistrial, appropriate for “highly 

prejudicial and incurable errors,” is reviewed for abuse of discretion. 

Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003). We consider 

three factors when determining whether the trial court abused its discretion 

in overruling a motion for mistrial during punishment: (1) the severity of 

the misconduct (prejudicial effect); (2) curative measures; and (3) the 

certainty of the punishment assessed absent the misconduct (likelihood of 

the same punishment being assessed). Perez v. State, 187 S.W.3d 110, 112 

n.1 (Tex. App.—Waco 2006, no pet.) (quoting Hawkins v. State, 135 S.W.3d 

72, 77 (Tex. Crim. App. 2004)).
Crawford v. State Page 6

Id. at 716.

In issue four, Crawford alleges that the State improperly argued that the jury 

should apply parole law to any sentence assessed against Crawford. In the punishment 

phase, the prosecutor argued:

So, I'm going to tell you right now, we’re asking for the high end of this 

sentence; and I'm going to take this time because the question will come up 

during your deliberations, I anticipate, what's the difference between 99 

years and life? The difference is that with the 99-year sentence, it is 

mathematically possible that he could get off of parole. With life, it’s not.

Crawford objected, and the trial court sustained the objection and instructed the 

jury to disregard the statement. Crawford then moved for a mistrial, which the trial court 

denied.

Citing an unpublished opinion, the State contends that the argument was not 

improper.2 The State alternatively argues that the instruction to disregard cured any 

error. We assume without deciding that the argument was improper, but we find that, 

because the trial court’s prompt instruction to disregard cured any error, denying the 

motion for mistrial was not an abuse of discretion. See at 716-17. Issue four is overruled.

In issue five, Crawford asserts that the trial court abused its discretion by failing 

to grant a mistrial when the State allegedly made an improper argument about Crawford 

being a danger to every child he is around. In the punishment phase, the prosecutor 

argued:

You know what kind of man he is. You know where he belongs. 

Because on the streets of our community, he is nothing but a danger to 

 

2 Sepulveda v. State, No. 13-07-00627-CR, 2009 WL 1677530 (Tex. App.—Corpus Christi Feb. 12, 2009, pet. 

ref’d) (mem. op., not designated for publication).
Crawford v. State Page 7

every single person he comes into contact with, to every single female that 

walks the streets, to every child that he’s around, he is a danger. Not only 

because - -

The trial court sustained Crawford’s objection that the argument about children 

was outside the evidence and promptly instructed the jury to disregard it. The trial court 

then denied Crawford’s motion for mistrial.

In the punishment phase, Crawford’s niece Kim testified that she had not had an 

objection to Crawford’s possibly living with her in the past and that she would not have 

any concern about Crawford being around her one-year-old daughter because he had 

“never tried anything with us or any other family members.” The State thus asserts that 

the argument at issue was a proper response to this testimony. We agree, and we further 

find that if any error occurred, it was cured by the trial court’s prompt instruction to the 

jury to disregard it. Issue five is overruled.

Having overruled all of Crawford’s issues, we affirm the trial court’s judgment.

REX D. DAVIS

Justice

Before Chief Justice Gray,

Justice Davis, and

Justice Scoggins

Affirmed

Opinion delivered and filed September 24, 2015

Do not publish

[CRPM]