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 PETI TION 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

CLERKii 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 Attorney s
300 E. 26 th Street Bryan, TX

77803

Appellate Counsel for Appellee: Doug Howell

Assistant District Attorney

300 E. 26 th Street Bryan, TX

77803

Trial Judge: Hon. Travis Bryan, III

272 nd District Court Brazos County, Texasiii Table of Contents Page

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

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

Index of Authorities . . . . . . . . . . . . . . . . . . . . . . . . i v

Statement Regarding Oral Ar gument . . . . . . . . . . . . . . . . . . . . . . . . .1

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

Statement of Procedural History

. . . . . . . . . . . . . . . . . . . . . . . . . 2

Question for Review

. . . . . . . . . . . . . . . . . . . . . . . . . 2

Argument in Support of Question for Review

. . . . . . . . . . . . . . . . . . . . . . . . . 2

Is T EX . C RIM . P ROC . C ODE 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

. . . . . . . . . . . . . . . . . . . . . . . . . 9iv 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

C rawford 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)

. . . . . . . . . . . . . . . . . . . . . . . . 6v

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

T EX . C RIM . P ROC . C ODE art. 62.058(a)

. . . . . . . . . . . . . . . . . . . . passim

T EX . C RIM . P ROC . C ODE art. 62.102(a)

. . . . . . . . . . . . . . . . . . . . passim

T EX . C RIM . P ROC . C ODE art. 62.102(b)(2)

. . . . . . . . . . . . . . . . . . . . passim

T EX . C RIM . P ROC . C ODE art. 62.102(c)

. . . . . . . . . . . . . . . . . . . . passim

T EX . G OV’T C ODE § 311.021

. . . . . . . . . . . . . . . . . . . . . . . . 4

T EX . G OV’T C ODE § 311. 026(a)

. . . . . . . . . . . . . . . . . . . . . . . . 4

T EX . G OV’T C ODE § 311.026(b)

. . . . . . . . . . . . . . . . . . . . . . . . 4

T EX . P EN . C ODE § 12.33 . . . . . . . . . . . . . . . . . . . . . . . . 3

T EX . P EN . C ODE § 12.42(d)

. . . . . . . . . . . . . . . . . . . . passimvi

Rule s

T EX . R. A PP . P. 9.4

. . . . . . . . . . . . . . . . . . . . . . . . . 8

T EX . R. A PP . 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 T EX . C RIM . P ROC . C ODE

arts. 62.05 8(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 T EX . P EN . C ODE § 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 Cr awford’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. T he 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 offende r 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 T EX . P EN . C ODE § 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 T EX . C RIM . P ROC . C ODE 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 T EX . P EN . C ODE § 12.42(d).- 3

-

Crawford entered pleas of true to the prior convictions alleged for en hancement 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).

Craw ford 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 T EX . C RIM . P ROC

. C ODE 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

t his 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 T EX

.

C RIM . P ROC . C ODE 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 T EX . P EN . C ODE §

12.33. Crawford submit s 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, th is 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, an d the language therein will

create a just and reasonable result. See T EX . G OV’T C ODE § 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. T EX . G OV’T C ODE § 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 statut e,

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

general provisions prevail. T EX . G OV’T C ODE § 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 convic ted of failing t o- 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 we re 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 offend er. 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. Ap p. 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. Sta te , 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 enha ncement is itself

improper. Th e 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

parag raph 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 p roper 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. Ap p.

- 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 remande d 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 sente nce 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 T EX . R. A PP . P.

66.3(b).

P rayer

Wherefore, premises considered, Milton Ray Crawford prays this Honorable

Court wi ll 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/ R ichard 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 T EX . R. A PP . P. 9.4. According to the word count function of the computer program used to prepare the document, the pleading contains 1, 372 words excludi ng 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 27 th day of September, 2015

.

/s/ Richard E. Wetzel

Richard E. Wetzel

State Bar No. 21236300

AppendixIN 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 convict ions

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 third

degree felony offense of failing to comply with sex

- offender registration. See T EX

. C ODE

C RIM

. P ROC

. A NN

. art. 62.102(b)(2) (West Supp. 20 14 ). The indictment alleged the two

prior convi ctions 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 h ave to register. He also believed that sex

- offender

registrati on 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 no t 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,

Cr awford 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 ra nge of 25 to 99 years or life for habitual offe nders:

(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.

T EX

. P ENAL C ODE A NN

. § 12.42(d) (West Supp. 2 014 ). In his second issue, Crawford

asserts that he was harmed by the improper enhancement because the jury wasCrawford 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 att empt 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.

T EX

. C ODE C RIM

. P ROC

. A NN

. 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) [no w 62.102(c)] provides a very specific exception to the general

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

Appellant also argues that section 12.42(b) cannot be used to en hance his punishment because article 62 .102 includes a unique pu nishment

enhancement 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

fai lure

- to

- register offense. T EX

. C ODE C RIM

. P ROC

. A NN

. 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 con tention

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

section 12.42(b) to enhance a defendant’ s punishment for a failure

- to

register 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 overlapCrawford v. State Page 4

between these statutes. However

, punishment enhancement under article 62.102(c) is not merely r epetitive of that prov ided 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 fo r a failure

- to

register conviction may be enhanced only if the defendant has two prior felony

convictions. Compare T EX

. C ODE C RIM

. P ROC

. A NN

. art. 62.102(c), with T EX

. P ENAL C ODE A NN

. § 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 . A ccordingly, we reject appellants argument

that article 62.102(c) precluded th e State’s use of section 12.42(b) to enhance his punishment. See Reye s v. State, 96 S.W.3d 603, 605 (Tex. App.

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

version of ar ticle 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 fi rst

- degree felony

pursuant to sectio n 12.42(b). See T EX

. P ENAL C ODE A NN

. § 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 n ot 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 punis hment 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 s erved as the sexually violent offense that determined the term and frequency of his duty to register and thus made his failure to comp ly

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 conviction s

.Crawford v. State Page 5

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

prove, i n 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, i n 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 no t used to enhance his

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

Issue s fo u r and five contend that the trial court abused its discretion by failing to

grant a mistrial when the State twice allegedly made improper argu ment s in the

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

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

opposing counsel’s argument; or (4) a plea for law enforcement. York v. State, 25 8 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 con sider

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 punishme nt 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, w e’ re asking for the high end of this sentence; and I'm going to take this time because the question wi ll 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 S tate 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 mis trial 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

bein g 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. 1 3

- 07

- 00 627

- 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 h e’ 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 instr ucted 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 no t 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 w e 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 2 4 , 2015 Do not p ublish
[C RPM]