Robert Mark Taylor v. the State of Texas ( 2021 )

Affirmed and Memorandum Opinion filed October 21, 2021.
In The
Fourteenth Court of Appeals
NO. 14-19-00877-CR
ROBERT MARK TAYLOR, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 405th District Court
Galveston County, Texas
Trial Court Cause No. 18-CR-3074
MEMORANDUM OPINION
The sole question in this appeal is whether the punishment was properly
enhanced. Because the answer to that question does not require a comprehension of
the facts underlying the offense, we forego those facts and provide just a brief
procedural history. See Tex. R. App. P. 47.1.
Appellant was charged by indictment with intoxication assault. See Tex. Penal
Code § 49.07(a)(1). He pleaded not guilty, and his case proceeded to a trial by jury.
The jury returned a verdict of guilty, and appellant elected for the trial court to assess
his punishment.
Intoxication assault is a third degree felony, which is ordinarily punishable
between two and ten years’ imprisonment. See Tex. Penal Code §§ 12.34(a),
49.07(c). The prosecution sought to enhance this range of punishment on the grounds
that appellant was an habitual felony offender with two prior felony convictions.
Appellant received notice of the enhancement in the indictment, where both prior
convictions were alleged. Appellant pleaded true to the first enhancement allegation,
but he pleaded not true to the second enhancement allegation. The trial court found
that both enhancement allegations were true, and sentenced appellant to twenty-five
years’ imprisonment, which was the minimum term of imprisonment under the
statute for habitual felony offenders. See Tex. Penal Code § 12.42(d).
Now on appeal, appellant raises a single point of error, which he styles with
the following heading: “Relative to enhancement of punishment, indictment of
defendant was defective on two counts, meaning punishment was enhanced
improperly.” This heading alludes to two separate defects, but the argument section
of appellant’s brief only addresses one defect.
Appellant begins his argument section with the language of the statute for
habitual felony offenders, which provides in material part that a defendant must be
punished to a term of not less than twenty-five years’ imprisonment “if it is shown
on the trial of a felony offense . . . 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.” See Tex. Penal Code § 12.42(d). As he recites the language of this statute,
appellant underlines the phrase “subsequent to.” Then, without discussing the facts
of his individual case, he leaps to the conclusion that his indictment was defective
2
because the second enhancement paragraph “failed to comply with the language of
this statute, making the Enhancement incorrect according to the Penal Code.”
Based on his focus of the “language” of the statute and on the emphasis he
provided through his underlining of certain words, appellant seems to argue that the
indictment was defective because the second enhancement paragraph did not include
the statutory phrase “subsequent to.” Instead of those words, the second
enhancement paragraph alleged that appellant committed a felony “prior to the
commission of the primary offense, and after the conviction in [the first
enhancement paragraph] was final.”1 To the extent that appellant argues that the
indictment was defective because this paragraph used the word “after” in lieu of the
phrase “subsequent to,” the argument must fail for at least two reasons.
First, appellant did not move to quash the indictment or otherwise challenge
the alleged defect before the commencement of trial, which means that his complaint
has not been preserved for appellate review. See Tex. Code Crim. Proc. art. 1.14(b)
(“If the defendant does not object to a defect, error, or irregularity of form or
substance in an indictment or information before the date on which the trial on the
merits commences, he waives and forfeits the right to object to the defect, error, or
irregularity and he may not raise the objection on appeal or in any other
postconviction proceeding.”).
Second, even if we assumed that appellant had preserved his complaint, it
would fail on the merits. Appellant bases his argument on the premise that the statute
for habitual felony offenders “requires pleading with specific language,” but this
premise does not have any textual support. There is nothing in the statute
establishing a minimum standard for pleading. In fact, our case law does not even
1
Emphasis added.
3
require an enhancement allegation to be pleaded in the indictment. See Brooks v.
State, 957 S.W.2d 30, 34 (Tex. Crim. App. 1997) (“Prior convictions used as
enhancements must be pled in some form, but they need not be pled in the
indictment.”). Accordingly, appellant has not demonstrated that the indictment was
defective because it used “after” instead of “subsequent to.”2
Appellant alluded in his heading to a second defect in the indictment, but as
we mentioned earlier, the body of the brief does not contain an argument regarding
this other defect, which is grounds for briefing waiver. See Tex. R. App. P. 38.1(i).
Nevertheless, we note that appellant identified his second alleged defect in the
summary section of his brief, and we choose to address it in the interest of
completeness.
2
During the punishment hearing, defense counsel argued that the prosecution could not
satisfy its burden of proof under the statute for habitual felony offenders. More specifically,
counsel argued that the prosecution could not show that appellant’s second prior felony conviction
occurred before his first prior felony conviction became final because appellant had not yet
completed his sentence for his first prior felony conviction. The trial court implicitly rejected this
argument. Appellant’s counsel on appeal (who is not the same counsel from the trial) has not
expressly reiterated that same argument in his brief. But the State has construed appellant’s brief
in light of defense counsel’s trial argument and considered whether the enhancements were
sufficiently proven. If we were to assume that appellant has challenged whether the evidence was
sufficient (as opposed to whether the indictment was defective), then we would agree with the
State that it had met its burden of proof. The prosecution produced pen packets containing evidence
of appellant’s fingerprints and the prior judgments. The judgment for the first prior felony
conviction was signed in March 2012, and the judgment for the second prior felony conviction
was signed in August 2014 for an offense that occurred in June 2014, which is after the date of the
first judgment. Neither judgment reflects that appellant initiated an appeal. When, as here, the
record is silent regarding whether a judgment has been appealed, we can presume that the prior
conviction is final, notwithstanding whether the sentence was completed. See Johnson v. State,
784 S.W.2d 413, 414 (Tex. Crim. App. 1990) (holding that a court may presume from a silent
record that a prior conviction is final, and that this presumption may be overcome with evidence
that an appeal has been taken); Ashley v. State, 527 S.W.2d 302, 305 (Tex. Crim. App. 1975) (“The
sentence to be served, either actually confined, or on probation or parole, has no effect on the time
at which the conviction becomes final.”); see also Jones v. State, 77 S.W.3d 819, 823 (Tex. Crim.
App. 2002) (“If the judgment of conviction has been set aside, vacated or appealed, the defendant
must offer some evidence to support that fact.”). Thus, we conclude that the evidence is sufficient
to prove the enhancements under the statute for habitual felony offenders.
4
Appellant argued in the summary section that the indictment was defective
because the second enhancement paragraph alleged that he committed a felony in
“La Grange County, Texas,” which, as he correctly points out, is a nonexistent
county. La Grange is a city rather than a county, and it serves as the county seat of
Fayette County, Texas. Despite this defect, appellant is not entitled to relief, and
again for two reasons.
First, error was not preserved. Defense counsel complained to the trial court
that the indictment was fatally defective because “La Grange is the county seat of
Fayette County,” but counsel made his complaint during his opening statements of
the punishment hearing, which was not “before the date on which the trial on the
merits commences,” as required by statute. See Tex. Code Crim. Proc. art. 1.14(b).
Because the objection was not timely, appellant waived his complaint. Id.Second, even if appellant had preserved his complaint, the record does not
establish that he was prejudiced by the defect. The prosecution provided the defense
with a pre-trial notice of intent to introduce evidence of extraneous offenses. Using
a description of the offense, the cause number, and the date of conviction, that notice
identified the same prior felony conviction that was alleged in the second
enhancement paragraph, and the notice correctly identified that the conviction arose
out of Fayette County, not the nonexistent La Grange County. Defense counsel also
knew that La Grange was the county seat of Fayette County. And finally, even
though he pleaded not true to the second enhancement paragraph, appellant took the
stand during the punishment hearing and admitted that he committed the offense
alleged in that paragraph. On this record, we cannot say that the defect in the
indictment impaired appellant’s defense or resulted in any harm. See Plessinger v.
State, 536 S.W.2d 380, 381 (Tex. Crim. App. 1976) (affirming a judgment, even
though an enhancement paragraph alleged that the defendant was convicted in the
5
State of Arizona under a case style that defectively referred to the State of Texas,
because the defendant could not show that he was surprised or misled to his
prejudice).
We overrule appellant’s sole point of error and affirm the trial court’s
judgment.
/s/ Tracy Christopher
Chief Justice
Panel consists of Chief Justice Christopher and Justices Hassan and Poissant.
Do Not Publish — Tex. R. App. P. 47.2(b).
6