Diaz, Michael ( 2015 )

PD-0890-15
PD-0890-15 COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 7/16/2015 5:06:40 PM
Accepted 7/17/2015 4:05:00 PM
PD 15-________ ABEL ACOSTA
CLERK
In the Court of Criminal Appeals of Texas
At Austin
♦
No. 01-14-00387-CR
In the Court of Appeals
For the First District of Texas
At Houston
♦
No. 1391077
In the 179th District Court
Of Harris County, Texas
♦
Michael Diaz
Appellant
July 17, 2015 v.
The State of Texas
Appellee
♦
State’s Petition for Discretionary Review
♦
Devon Anderson Clinton A. Morgan
District Attorney Assistant District Attorney
Harris County, Texas Harris County, Texas
State Bar No. 24071454
Chelsea Peterson morgan_clinton@dao.hctx.net
Beth Exley
1201 Franklin St., Suite 600
Assistant District Attorneys
Houston, Texas 77002
Harris County, Texas
Telephone: 713.755.5826
Oral Argument Requested
Statement Regarding Oral Argument
The State is asking for a ruling that limits the reach of a recent,
valid precedent of this Court in order to avoid an absurd result in this
case. Oral argument would allow the Court to better understand how the
parties view the advantages and drawbacks of this limitation. Oral
argument would serve the important function of allowing the parties to
address any of the Court’s concerns, either with the State’s proposed
limitation or with the present rule, that may get overlooked in the
briefing.
i
Identification of the Parties
Counsel for the State:
Devon Anderson
 District Attorney of Harris County
Chelsea Peterson & Beth Exley
— Assistant District Attorneys at trial
Clinton A. Morgan
 Assistant District Attorney on appeal
1201 Franklin St.
Suite 600
Houston, Texas 77002
Appellant:
Michael Diaz
Counsel for the Appellant:
David Garza
— Counsel at trial
102 S. Lockwood Dr.
Houston, Texas 77011-3124
Terrence A. Gaiser
— Counsel at trial
2900 Smith Street, #220
Houston, Texas 77006
Trial Judge:
Pam Derbyshire
 Presiding judge
ii
Table of Contents
Statement Regarding Oral Argument ................................................. i
Identification of the Parties .............................................................. ii
Table of Contents ................................................................................ iii
Index of Authorities ............................................................................. v
Statement of the Case .......................................................................... 1
Statement of Procedural History ....................................................... 1
Question Presented
When the State fails to prove the habitual-offender enhancement
allegations in the indictment, but the evidence conclusively proves
other convictions that would render the appellant eligible for
habitual-offender sentencing, is automatic reversal appropriate
despite the fact that the appellant will receive the same sentence on
remand?............................................................................................................................ 2
I. Factual and Legal Background .................................................................. 3
A. The State pled the wrong prior convictions in the
enhancement paragraphs. ............................................................................... 3
B. The Court of Appeals reversed, based on apparently binding
precedent from this Court that the error in this case was not
subject to any sort of harm analysis. ........................................................... 5
II. Why This is an Absurd Result .................................................................... 6
A. The appellant will not benefit from this reversal because on
remand the State will file a motion to enhance his punishment
with the correct prior convictions. .............................................................. 6
B. Had this error been discovered in the trial court it could have
been easily fixed................................................................................................... 7
C. Had the appellant brought up this error in a habeas
proceeding, this Court would have rejected his claim because he
was “only fictionally harmed.” ....................................................................... 9
iii
III. Argument: The error in this case was harmless, and a reversal
is the sort of absurd result that should be avoided through
application of a harm analysis......................................................................... 10
A. The harm analysis that should apply to this case is
categorically different from the harm analysis this Court rejected
in Jordan, and, despite its overly broad language, Jordan should
not apply here. ................................................................................................... 10
B. Unlike in Jordan, a remand in this case can serve no
legitimate function........................................................................................... 12
Conclusion .......................................................................................... 17
Certificate of Compliance and Service ........................................... 18
Appendix
Diaz v. State, No. 01-14-00387-CR, 2015 WL 3799463 (Tex. App.—
Houston [1st Dist.], June 18, 2015) (mem. op. not designated for
publication)
iv
Index of Authorities
Cases
Cooper v. State
788 S.W.2d 612 (Tex. App.—
Houston [1st Dist.] 1990, pet. ref’d) ............................................................ 8, 13
Diaz v. State
No. 01-14-00387-CR, 2015 WL 3799463 (Tex. App.—
Houston [1st Dist.], June 18, 2015)
(mem. op. not designated for publication) ................................................... 1, 6
Ex Parte Parrott
396 S.W.3d 531 (Tex. Crim. App. 2013) ...................................................... 9, 10
Freda v. State
704 S.W.2d 41 (Tex. Crim. App. 1986) ................................................................. 7
Johnson v. State
995 S.W.2d 926 (Tex. App.—
Waco 1999, no pet.) ................................................................................................. 14
Jordan v. State
256 S.W.3d 26 (Tex. Crim. App. 2008) ..................................................... passim
Pelache v. State
324 S.W.3d 568 (Tex. Crim. App. 2010) ...................................................... 8, 13
Plessinger v. State
536 S.W.2d 380 (Tex. Crim. App. 1976) ...................................................... 8, 13
Roberson v. State
420 S.W.3d 832 (Tex. Crim. App. 2013) .............................................................. 7
Rooks v. State
576 S.W.2d 615 (Tex. Crim. App. 1978) (panel op.)....................................... 8
Saldana v. State
826 S.W.2d 948 (Tex. Crim. App. 1992) ........................................................... 14
Tomlin v. State
722 S.W.2d 702 (Tex. Crim. App. 1987) .............................................................. 3
v
Statutes
TEX. PENAL CODE § 12.42................................................................................................... 3
Other Authorities
George E. Dix & John M. Schmolesky
43A Tex. Prac., Criminal Practice and Procedure § 46:107 (3d ed.) .... 13
vi
Statement of the Case
The appellant was indicted for burglary of a habitation. (CR 9).
The indictment alleged two prior felony convictions, one for an offense
that was committed after the other conviction became final. (CR 9). The
appellant waived his right to a jury trial and pled not guilty to the trial
court. (2 RR 6-7). The trial court found him guilty as charged. (2 RR 101;
CR 30). The appellant pled true to both enhancement allegations. (2 RR
102; CR 30). The trial court found both allegations true and assessed
punishment at thirty years’ confinement. (2 RR 107; CR 30). The trial
court certified the appellant’s right of appeal, and the appellant filed a
notice of appeal. (CR 4, 8).
Statement of Procedural History
On June 18, 2015, a panel of the First Court of Appeals issued a
memorandum opinion affirming the appellant’s conviction but reversing
on punishment because the evidence showed that the enhancement
allegations did not occur in the order alleged. Diaz v. State, No. 01-14-
00387-CR, 2015 WL 3799463 (Tex. App.—Houston [1st Dist.], June 18,
2015) (mem. op. not designated for publication). No motions for
rehearing were filed.
1
Question Presented
When the State fails to prove the habitual-offender enhancement
allegations in the indictment, but the evidence conclusively proves
other convictions that would render the appellant eligible for
habitual-offender sentencing, is automatic reversal appropriate
despite the fact that the appellant will receive the same sentence
on remand?
The Court of Appeals reversed the appellant’s sentence because
the State failed to prove the enhancement allegations in the indictment.
However, if the case goes back to the trial court the State will be able to
file a motion to enhance the appellant’s sentence with other felony
convictions, convictions to which the appellant has already stipulated
and that were admitted into evidence. The appellant will then be subject
to the exact same punishment range as he was the first time. Thus the
appellant has gained a reversal from an error that did not harm him, and
a remand from which he cannot benefit.
While the State believes this reversal is a wasteful absurdity, the
Court of Appeals’s opinion is a seemingly correct application of some
very broad language from Jordan v. State, 256 S.W.3d 286 (Tex. Crim.
App. 2008). Without questioning the fundamental correctness of Jordan,
the State asks this Court to distinguish Jordan to avoid the silly result in
this case and to prevent gamesmanship in similar cases.
2
I. Factual and Legal Background
A. The State pled the wrong prior convictions in the
enhancement paragraphs.
The indictment in this case alleged that in 2008 the appellant was
convicted of felony possession of a controlled substance, and that after
that conviction became final he committed and was convicted of felony
burglary of a habitation in 2009. (CR 9). If true, these allegations would
render the appellant subject to punishment as a true habitual offender
with a punishment range of confinement for 25 to 99 years, or life. See
TEX. PENAL CODE § 12.42(d).1
The appellant pleaded true to these allegations, and he entered a
stipulation to five prior felony convictions (two of which were state-jail
felonies, and thus not relevant to enhancing his punishment in this
case). (State’s Ex. 22). However, the judgments for the two cases alleged
in the enhancement paragraphs show that the prior burglary conviction
was for an offense committed prior to the PCS conviction becoming final
in 2008.
1 To prove a defendant’s status as a true habitual, the evidence must show two prior
felony convictions that occurred in a particular chronological order: “(1) the first
conviction becomes final; (2) the offense leading to a later conviction is committed;
(3) the later conviction becomes final; (4) the offense for which defendant presently
stands accused is committed.” Tomlin v. State, 722 S.W.2d 702, 705 (Tex. Crim. App.
1987).
3
Prior Convictions Alleged in Indictment
Offense Cause Number Date of Offense Date of Conviction
PCS 1154681 2/21/2008 3/26/2008
Burglary 1174687 7/8/2007 6/11/2009
(State’s Ex. 24).
Using those convictions, sentencing the appellant as a true
habitual would be inappropriate. However, if one looks at all the
convictions to which the appellant stipulated (and for which the State
admitted certified judgments), it is apparent that the State could have
pled prior convictions that would have properly established the
appellant as a true habitual.
Second and Third Degree Felonies to Which the Appellant Stipulated
Offense Cause Number Date of Offense Date of Conviction
PCS 1259219 4/14/2010 4/19/2010
PCS 1154681 2/21/2008 3/26/2008
Burglary 1174687 7/8/2007 6/11/2009
(State’s Exs. 22, 23, 24). Had the indictment alleged the 2010 conviction
in conjunction with either of the other two, it would have properly
established the appellant as a true habitual.
4
B. The Court of Appeals reversed, based on apparently
binding precedent from this Court that the error in
this case was not subject to any sort of harm analysis.
In the Court of Appeals, the appellant’s only complaint consisted
of a one-page argument pointing out that the prior convictions alleged
in the indictment did not occur in sequential order. (See Appellant’s
Brief at 9). Citing to Jordan v. State, 256 S.W.3d 26 (Tex. Crim. App.
2008), the appellant asked for a new punishment hearing.
Jordan was another case involving sequence issues with habitual-
offender enhancements. In that case, the State’s evidence did not show
the date on which the second offense was committed, thus the evidence
was insufficient to prove that it was committed after the first conviction
became final. Jordan, 256 S.W.3d at 289.
On appeal, the State asked the Court of Appeals to apply a harm
analysis because Jordan’s life sentence was within the appropriate
statutory range to which Jordan would have been subject without the
finding that he was a true habitual. Id. at 290. This Court held that the
State’s failure to prove the sequence of habitual-offender enhancement
allegations was error not subject to a harm analysis. Id. at 292. To
emphasize its point that automatic reversal was required, this Court
noted that even if such a finding were subject to a harm analysis, “the
5
State’s failure to prove the chronological sequence of punishment
enhancement allegations as required under [Penal Code] Section
12.42(d) … will never be considered harmless.” Ibid.
In this case, the State conceded that the Court of Appeals was
bound by the strong, categorical language in Jordan and the Court of
Appeals agreed. Diaz v. State, No. 01-14-00387-CR, 2015 WL 3799463 at
*3 (Tex. App.—Houston [1st Dist.] June 18, 2015); see also Jordan, 256
S.W.3d at 287 (“We hold that the court of appeals properly rejected the
State’s contention that a harm analysis is appropriate.”).
II. Why This is an Absurd Result
The State does not challenge the fundamental correctness of
Jordan. However, as applied to this case, Jordan has created a truly
absurd result.
A. The appellant will not benefit from this reversal
because on remand the State will file a motion to
enhance his punishment with the correct prior
convictions.
It is typically the case that winning on appeal will help a criminal
defendant in a fairly obvious manner. That is not the case here. Indeed, it
is hard to imagine how the reversal in this case will help the appellant
unless he enjoys repetitive court proceedings.
6
The Double Jeopardy prohibition does not bar the re-use of prior
convictions in a second punishment hearing. See Jordan, 256 S.W.3d 291.
Therefore, if this case is remanded to the trial court the State will be able
to enhance the appellant’s sentence using the 2010 conviction in
conjunction with one of the appellant’s other felony convictions, and
then the evidence will adequately support his punishment as a true
habitual. Unless the appellant has misbehaved while in prison (in which
case his punishment can be increased), he will surely receive the same
sentence.
B. Had this error been discovered in the trial court it
could have been easily fixed.
Applying Jordan’s rule of automatic reversal to this case is
incongruous with this court’s prior holdings that, so long as the
defendant has notice of the State’s intent to enhance his sentence, the
details of those prior convictions that make it into the indictment are
not terribly important. See Roberson v. State, 420 S.W.3d 832, 840 (Tex.
Crim. App. 2013) (evidence sufficient to show habitual status despite
fact that enhancement paragraphs alleged in wrong order); see also
Freda v. State, 704 S.W.2d 41, 43 (Tex. Crim. App. 1986) (incorrect name
for prior offense used in enhancement allegation immaterial); Rooks v.
7
State, 576 S.W.2d 615, 616-17 (Tex. Crim. App. 1978) (panel op.)
(variance regarding court of conviction was not material); Plessinger v.
State, 536 S.W.2d 380, 381-82 (Tex. Crim. App. 1976) (difference
between pleading that prior conviction was named “State of Texas v.
[defendant]” and proof that prior conviction was named “State of
Arizona v. [defendant]” immaterial).
In this case, the State gave pre-trial notice of its intent to introduce
evidence of the 2010 conviction. (CR 23). Therefore, had this error been
pointed out in the trial court, the State could have simply filed a motion
to enhance the appellant’s sentence using the 2010 conviction, even
after trial started and even if the appellant objected. See Pelache v. State,
324 S.W.3d 568, 577 (Tex. Crim. App. 2010). The Court of Appeals has
still-valid precedent holding that it is, at worst, harmless error to allow
the State to correct an error in an enhancement paragraph in the middle
of trial over the defendant’s objection. See Cooper v. State, 788 S.W.2d
612, 616 (Tex. App.—Houston [1st Dist.] 1990, pet. ref’d).
8
C. Had the appellant brought up this error in a habeas
proceeding, this Court would have rejected his claim
because he was “only fictionally harmed.”
In Ex parte Parrott, this Court dealt with a case that was factually
similar to this case, but which came up in the context of an 11.07 habeas
writ. Parrott pleaded guilty to a third-degree felony, with the
punishment enhanced by a prior felony conviction. Ex Parte Parrott, 396
S.W.3d 531, 533 (Tex. Crim. App. 2013). After his conviction became
final, Parrott filed an 11.07 petition noting that the conviction used to
enhance his punishment was actually a state-jail felony, thus it could not
be used to enhance punishment. Ibid.
The record in Parrott, like the record in this case, showed
additional felony convictions that could have been used in lieu of the
inappropriate enhancement. Id. at 533-34. In Parrott, this Court
recognized that if relief were granted, at a new punishment hearing the
State would be able to use those other convictions to enhance Parrott’s
sentence to the exact same degree as it had been enhanced the first
time, thus “relief would serve only to provide [Parrot] an additional
opportunity to contest prior convictions that the trial court … has
9
already determined to be valid.” 2 Id. at 538. This Court denied relief,
deeming habeas relief inappropriate for an applicant who had been
“only fictionally harmed.” Ibid.
III. Argument: The error in this case was harmless, and a
reversal is the sort of absurd result that should be avoided
through application of a harm analysis.
The State believes that the evidence shows, beyond any doubt,
that the error in this case was harmless, and that applying the Jordan
rule of automatic reversal creates an absurd result. Upon close analysis,
it is clear that this Court’s concerns in Jordan are not applicable to this
case. Also unlike Jordan, a remand in this case can serve no legitimate
function.
A. The harm analysis that should apply to this case is
categorically different from the harm analysis this
Court rejected in Jordan, and, despite its overly broad
language, Jordan should not apply here.
In Jordan, this Court broke down the sentencing process into two
parts. Jordan, 256 S.W.3d at 293. First, there is the factfinder’s
determination of historical fact, namely whether the enhancement
2In Parrott’s habeas proceedings, the trial court had made a finding that the prior
convictions were valid. There is no such finding from the trial court in this case;
however, the appellant stipulated to the relevant convictions, thus he would be
estopped from contesting them on remand. If anything, then, a remand in this case
would be marginally more pointless than in Parrott.
10
allegations are true. That determination sets the punishment range. The
factfinder then makes a normative determination of what punishment to
assess from within that range.
The error in Jordan was that there was insufficient evidence to
support the jury’s findings of historical fact, and this led them to select
an incorrect punishment range from which to make the normative
decision. The State’s argument on appeal was that the error was
harmless because the normative decision that the jury made would have
been allowable had the jury been assessing punishment based on the
correct range. Essentially, the State was using the jury’s determination
from the second part of the sentencing process to show that the error in
the first part of the sentencing process was harmless. This Court
rejected that argument because, given the “absence of discrete, objective
facts decided by the jury” in the second part of the sentencing process, it
was impossible to calculate the effect of using the incorrect range, thus it
could not be said that the error in the first part of the sentencing
process was harmless. Ibid.
In this case, the error relates to the first part of the sentencing
process, but so does the evidence that the error was harmless. The total
evidence at trial conclusively shows that the appellant is a true habitual,
11
even if the State’s pleading did not. Thus, the trial court, in assessing
punishment in the second part of the sentencing process, used the
correct punishment range.
The Jordan court’s problem with using the determination from the
second part of the process as a basis for holding harmless an error in the
first part of the process was based on the subjective, normative nature
of the second determination. That is not an issue in this case. The
objective facts show that the finding that the appellant was a true
habitual was correct. Despite Jordan’s broad language that would appear
to make its holding applicable to this case, the reasoning of Jordan does
not apply to this case at all.
The State believes the Court of Appeals was bound by Jordan
because of its overly broad language. This Court, however, should use
this case to show that Jordan’s holding does not extend beyond the
bounds of its reasoning.
B. Unlike in Jordan, a remand in this case can serve no
legitimate function.
The State’s ability, as recognized in the case law, to make mid-trial
corrections to errors in the pleading of enhancement allegations has
created a system where defendants have little, if any, incentive to point
12
out pleading errors in the trial courts. See, e.g., Cooper, 788 S.W.2d at 616
(allowing State to amend enhancement paragraph over defense
objection was, at worst, harmless error); Pelache, 324 S.W.3d at 577
(allowing State to file mid-trial motion to enhance sentence). Indeed, the
low chance of reversal based on pleading errors in enhancement
paragraphs means that, so long as the generalities of the pleading are
correct the parties are likely to pay little attention to minor errors. See
George E. Dix & John M. Schmolesky, 43A Tex. Prac., Criminal Practice
and Procedure § 46:107 (3d ed.) (“No case after [Plessinger v. State, 536
S.W.2d 380 (Tex. Crim. App. 1976)] has determined that a variance
between the allegations of a prior conviction and its proof is fatal.”).
Given the present habits of trial attorneys on both sides, applying a rule
of automatic reversal in this case creates an opportunity for
gamesmanship.
This case provides a good example of how the current state of
affairs works. The indictment gave the appellant notice that the State
was seeking to punish him as a true habitual, and the State’s notice of
intent to introduce extraneous offenses put him on notice that the State
would introduce evidence of enough second- and third-degree felonies
to prove that he was a true habitual. (See CR 22). Had defense counsel
13
pointed out the State’s pleading error in the trial court, the State could
have immediately corrected it and the defense would have gained
nothing. In the absence of defense counsel complaining about the
pleadings in the indictment, the prosecutor probably presumed
everything was in order.
Given the rule of automatic reversal, a wily defense attorney could
easily game the system and give his client two bites at the punishment
apple. Having noticed the error, the wily defense lawyer would proceed
to punishment as though nothing were wrong. If he were reasonably
satisfied with the punishment verdict, he would continue to keep quiet
on appeal. If he disliked the verdict, however, he would raise the matter,
obtain an automatic reversal, and opt for a different factfinder on
remand. See Johnson v. State, 995 S.W.2d 926, 929 (Tex. App.—Waco
1999, no pet.) (citing Saldana v. State, 826 S.W.2d 948 (Tex. Crim. App.
1992)) (defendant entitled to have jury assess punishment on remand
despite fact that trial court assessed punishment at original trial). Or,
had he opted for a jury the first time, he could opt for a jury a second
time and hope for a friendlier panel and a less compelling presentation
of the State’s punishment evidence.
14
The State will grant that such a defendant will still be facing at
least 25 years even after playing such a game, which might seem like a
very low level of winning. But if a defendant has been assessed a
punishment of 75 years or life by a trial court and then gets that
sentence reduced to 40 years on remand to a jury, he will have bumped
up his parole eligibility by ten years and given himself a chance to
discharge his sentence before his dotage. And he will have done so
based not on any unfairness in the original proceeding or any
incorrectness in the original sentence, but on what amounts to little
more than a typo.
In Jordan, the State failed to prove that the defendant committed
one felony after the conviction in another felony become final. On the
appellate record, this Court could not determine with any confidence
whether on remand the State could prove that Jordan was a true
habitual. Jordan was a case where it was altogether possible that the
trial attorneys had overlooked an actual failing in the State’s evidence
and a remand would create a different, more lawful result, with the
possibility of Jordan receiving a sentence (as little as 15 years) that was
below the minimum he could have received in his first punishment
hearing. In this case, without the State introducing additional evidence,
15
the appellant will be subject to the exact same range of punishment as
the first time, and the factfinder will be aware of the exact same prior
convictions as the first time. If the appellant receives a different
punishment on remand it will be due to luck or caprice, and his new
sentence will be not one whit more lawful.
To be clear, the State is not alleging that the appellant or either of
his attorneys has played a game in this case. The appellant received a
sentence of 30 years. Considering that 25 is the minimum he will face on
remand, a prudent man would return to the judge for punishment in
order to receive the same sentence. This should serve to emphasize how
unfortunate it is to apply a rule of automatic reversal to the error in this
case: Either it creates an opportunity for a defendant to game the
system, or it creates an utterly pointless remand, but in no circumstance
does it create a more just result.
16
Conclusion
The State asks this Court to grant discretionary review and hold
that the Jordan rule of automatic reversal does not apply when the
evidence conclusively shows that the factfinder selected a sentence from
the correct punishment range.
DEVON ANDERSON
District Attorney
Harris County, Texas
/s/ C.A. Morgan
CLINTON A. MORGAN
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
713.755.5826
Texas Bar No. 24071454
17
Certificate of Compliance and Service
I certify that, according to Microsoft Word’s word counting
function, the portion of this brief for which Rule of Appellate Procedure
9.4(i)(1) requires a word count contains 3,147 words.
I also certify that I have requested that efile.txcourts.gov
electronically serve a copy of this brief to:
Terrence A. Gaiser
tagaiser@aol.com
Lisa McMinn
State Prosecuting Attorney
information@spa.texas.gov
/s/ C.A. Morgan
CLINTON A. MORGAN
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002-1923
(713) 755-5826
Texas Bar No. 24071454
Date: July 16, 2015
18
Appendix
Diaz v. State, No. 01-14-00387-CR, 2015 WL 3799463 (Tex. App.—
Houston [1st Dist.], June 18, 2015) (mem. op. not designated for
publication)
Opinion issued June 18, 2015
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-14-00387-CR
———————————
MICHAEL DIAZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 179th District Court
Harris County, Texas
Trial Court Case No. 1391077
MEMORANDUM OPINION
Appellant Michael Diaz was charged with burglary of a habitation, with two
paragraphs alleging sequential conviction of two previous felonies enhancing the
punishment range to that of a habitual offender. Diaz waived his right to a trial by
jury and entered a plea of not guilty. After trial to the bench, the trial court found
Diaz guilty of burglary. Diaz pleaded true to the habitual offender enhancements,
and the trial court found the enhancements true and assessed his punishment at 30
years’ confinement. On appeal, Diaz argues that the evidence is insufficient to
prove that the second enhancement paragraph was true, and thus habitual offender
enhancement was improper and he is entitled to a new punishment hearing. We
agree. We affirm Diaz’s conviction, but reverse the portion of the judgment
assessing punishment and remand for a new punishment hearing.
Background
On June 10, 2013, complainants Delores and Rudy Castillo left their house
for work around 7:00 a.m. At 8:15 a.m., Delores received a phone call from their
home alarm security company informing her that the security system had detected
motion in their house. She called Rudy, who drove to the house and found that
police had already arrived. The back door of the house had been kicked in, and
various items had been taken, including a 55-inch television, jewelry, and a Bible.
Lieutenant J. Pedraza of the Harris County Constable’s Office Precinct 6
was dispatched around noon to a pawn shop. A pawn shop employee had called
the police because two men who were trying to pawn some items were behaving
suspiciously. Pedraza located the men’s truck and found Anthony Sustaita asleep
in the passenger seat. Pedraza observed a keyboard, televisions, and a tall jewelry
box in the truck.
2
Pedraza asked Sustaita about the items, and Sustaita told Pedraza that he was
waiting for his boss who was inside the pawn shop. Pedraza went inside and found
Diaz, who gave Pedraza a fake name. Pedraza detained Diaz and, after several
Houston Police Department officers arrived, the officers searched the truck and
found, among other things, the Bible that had been taken from the Castillos’ house
that morning.
Officer M. Hinojosa of the Houston Police Department took Diaz’s custodial
statement. Diaz was given his statutory warnings, waived his rights, and agreed to
talk to Hinojosa. Diaz confessed to burglarizing the Castillos’ house in a recorded
statement.
After the trial court found Diaz guilty of the burglary, Diaz pleaded true to
the indictment’s two enhancement paragraphs:
Before the commission of the offense alleged above, (hereafter styled
the primary offense), on MARCH 26th, 2008, in Cause No. 1154681
in the 232ND DISTRICT COURT of HARRIS County, Texas, the
defendant was convicted of the felony of POSSESSION OF A
CONTROLLED SUBSTANCE.
Before the commission of the primary offense and after the conviction
in Cause No. 1154681 was final, the Defendant committed the felony
of BURGLARY OF A HABITATION and was finally convicted of
that offense on JUNE 11, 2009, in Cause No. 1174687, in the 232ND
DISTRICT COURT of HARRIS County, Texas.
3
The trial court admitted Diaz’s signed stipulation of evidence and copies of the
judgments reflecting the two prior convictions. 1 The trial court found the
enhancements true and assessed punishment at 30 years’ confinement.
Discussion
In his sole issue on appeal, Diaz argues that he is entitled to a new
punishment hearing because the evidence does not support the trial court’s finding
of true regarding the second enhancement paragraph.
A. Standard of Review
A defendant may challenge the legal sufficiency of the evidence supporting
a finding that an enhancement paragraph is true, even if the appellant pleaded true
to the enhancement at the punishment hearing. See Jordan v. State, 256 S.W.3d
286, 292 (Tex. Crim. App. 2008) (finding that enhancement paragraph is true is
subject to legal sufficiency review); Mikel v. State, 167 S.W.3d 556, 560 (Tex.
App.—Houston [14th Dist.] 2005, no pet.) (appellant could challenge sufficiency
of evidence supporting finding that enhancement paragraph was true despite plea
of true to paragraph at punishment hearing). In reviewing such a finding, we view
the evidence in a light most favorable to the trial court’s ruling and determine
whether any rational trier of fact could make the finding beyond a reasonable
1
Diaz also stipulated to the commission of a third felony and two state jail felonies,
and judgments reflecting these convictions were also admitted.
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doubt. Mikel, 167 S.W.3d at 560 (citing McFarland v. State, 928 S.W.2d 482, 496
(Tex. Crim. App. 1996)).
B. Applicable Law
The primary offense in this case, burglary of a habitation, is a second degree
felony. See TEX. PENAL CODE ANN. § 30.02(c)(2) (West 2011) (burglary of a
habitation is a second degree felony). A second degree felony is punishable by a
prison term of 2 to 20 years. See id. § 12.33(a) (West 2011). A second degree
felony may be enhanced and punished as a first degree felony, with a prison term
of 5 to 99 years or life, if it is shown at trial that the defendant has been previously
finally convicted of a felony other than a state jail felony. See id. § 12.32(a) (West
2011) (first degree felony is punishable by imprisonment for 5 to 99 years or life),
§ 12.42(b) (West 2011) (second degree felony is punishable as first degree felony
if it is shown at trial that defendant has been previously finally convicted of a
felony other than a state jail felony). But if a non-state jail felony defendant has
previously been finally convicted of two non-state jail felonies, and the second
conviction is for an offense that was committed after the first conviction became
final, then the Texas Penal Code provides that the defendant may be punished as a
habitual offender. See id. § 12.42(d) (West 2011). In this case, the range of
punishment is enhanced to 25 to 99 years or life in prison. Id. To support habitual
offender enhancement, “‘[t]he [chronological] sequence of events must be proved
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as follows: (1) the first conviction becomes final; (2) the offense leading to a later
conviction is committed; (3) the later conviction becomes final; (4) the offense for
which defendant presently stands accused is committed.’” Jordan, 256 S.W.3d at
290–91 (quoting Tomlin v. State, 722 S.W.2d 702, 705 (Tex. Crim. App. 1987)).
Where “the record affirmatively reflects that [an offense] should not have
been used to enhance [the] punishment range to that of an habitual offender
because the offense did not occur in the sequence alleged by the indictment,” the
evidence is insufficient to support the habitual offender enhancement even if the
appellant pleaded true to the enhancement. Mikel, 167 S.W.3d at 559–60 (citing
Cruz v. State, No. 01–00–00463–CR, 2001 WL 1168273, at *1 (Tex. App.—
Houston [1st Dist.] Oct. 4, 2001, no pet.) (not designated for publication)).
The State bears the burden of proving beyond a reasonable doubt that a
defendant’s second previous felony conviction was committed after the
defendant’s first previous felony conviction became final. Jordan, 256 S.W.3d at
291. Where the State fails to meet this burden, “[a] harmless error analysis should
not be undertaken” and the case should be remanded for a new punishment
hearing. Id. (citing and quoting Russell v. State, 790 S.W.2d 655, 656 (Tex. Crim.
App. 1990)); see also Mikel, 167 S.W.3d at 560 (holding harm analysis
inappropriate where evidence is insufficient to support findings of true to habitual
offender enhancements). This is so because “there is no way to quantify what
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impact the unsupported finding of true had on the [factfinder’s] normative
sentencing function,” and thus, “any attempt to calculate [the impact] would
necessarily entail pure speculation.” Jordan, 256 S.W.3d at 293. “Under these
circumstances, the State’s failure to meet its burden of proof, even if subjected to a
harm analysis, can never be deemed harmless.” Id.
C. Analysis
Diaz asserts, and the State concedes, that the record affirmatively reflects
that Diaz committed the offense alleged in the second enhancement paragraph
before the conviction for the offense alleged in the first enhancement paragraph
became final. Diaz was convicted of the first felony enhancement in Cause No.
1154681 on March 26, 2008, according to the judgment that was admitted into
evidence at the punishment hearing. The second enhancement paragraph alleged:
Before the commission of the primary offense and after the conviction
in Cause No. 1154681 was final, the Defendant committed the felony
of BURGLARY OF A HABITATION and was finally convicted of
that offense on JUNE 11, 2009, in Cause No. 1174687, in the 232ND
DISTRICT COURT of HARRIS County, Texas.
But according to the judgment in Cause No. 1174687, which was also admitted
into evidence during the punishment hearing, the offense was actually committed
on July 8, 2007, over six months before Diaz was convicted of the offense in Cause
No. 1154681. Thus, the offense in Cause No. 1174687 was not committed “after
the conviction in Cause No. 1154681 was final.” Accordingly, “the record
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affirmatively reflects that [the second felony offense alleged] should not have been
used to enhance [the] punishment range to that of an habitual offender because the
offense did not occur in the sequence alleged by the indictment.” Mikel, 167
S.W.3d at 559.
Diaz and the State agree that the Court of Criminal Appeals has held that
“[a] harmless error analysis should not be undertaken” where, as here, the State
fails to meet its burden of showing that a defendant is eligible for habitual offender
enhancement. Jordan, 256 S.W.3d at 291 (citing and quoting Russell, 790 S.W.3d
at 656); see also Mikel, 167 S.W.3d at 560 (holding that harm analysis is
inappropriate where record shows that second enhancement paragraph should not
have been used to enhance punishment to habitual offender range). This is because
the State’s failure to meet its burden “can never be deemed harmless.” Jordan,
256 S.W.3d at 293. The State concedes that we are bound by this precedent, but
complains that this rule results in the waste of judicial resources where, as here,
there is evidence in the record that the appellant has committed other felonies that
could have properly been used to enhance the punishment range to that of a
habitual offender.
Here, a judgment admitted into evidence during the punishment hearing
shows that Diaz committed a third non-state jail felony in 2010 and was convicted
of that charge that same year. Thus, the State could have properly enhanced the
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punishment range to that of a habitual offender if it had alleged the 2010 felony as
the second enhancement offense.
The State argues that if Diaz had raised this issue at trial, it could have
moved to amend the enhancement paragraphs to allege the proper enhancements.
See Pelache v. State, 324 S.W.3d 568, 577 (Tex. Crim. App. 2010) (holding that
State’s motion to enhance punishment filed two days before punishment phase of
trial gave sufficient notice of enhancement and did not violate due process where
defendant did not request continuance, appear surprised by prior conviction
allegations, or argue that he was unprepared to defend against allegations);
Villescas v. State, 189 S.W.3d 290, 294 (Tex. Crim. App. 2006) (“[W]hen a
defendant has no defense to the enhancement allegation and has not suggested the
need for a continuance in order to prepare one, notice given at the beginning of the
punishment phase satisfies the federal constitution.”). The State also notes that
under Ex parte Parrott, 396 S.W.3d 531 (Tex. Crim. App. 2013), if Diaz raised
this claim in a writ of habeas corpus instead of on direct appeal, the Court of
Criminal Appeals would deny relief because he would be unable to show harm
sufficient to warrant the grant of writ relief. See id. at 538 (holding that where
habeas record revealed valid alternative prior convictions that supported
applicant’s enhanced sentence, applicant failed to establish harm sufficient to
warrant grant of writ relief).
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Nevertheless, whether the State could have properly alleged habitual
offender enhancement, it is undisputed that it did not actually do so. And whether
an error may warrant habeas corpus relief is a separate question from the issue we
must resolve here, which is whether we should undertake a harm analysis when
this issue is raised on direct appeal. The Court of Criminal Appeals has explicitly
held that we “should not” undertake a harm analysis in these circumstances and
that the State’s failure to meet its evidentiary burden with respect to habitual
offender enhancement “can never be deemed harmless.” Jordan, 256 S.W.3d at
291, 293. Thus, we hold that the evidence is insufficient to support the trial court’s
finding of true with respect to the second enhancement and the imposition of
punishment as a habitual offender. See Jordan, 256 S.W.3d at 291; see also Mikel,
167 S.W.3d at 560. Accordingly, we will reverse the portion of the judgment
assessing punishment and remand for a new punishment hearing. See Mikel, 167
S.W.3d at 560 (reversing portion of judgment assessing punishment and remanding
for new punishment hearing where record affirmatively reflected that offense in
second enhancement paragraph did not occur before offense in first enhancement
paragraph was final and therefore punishment as habitual offender was improper).
We sustain Diaz’s sole issue.
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Conclusion
We affirm the trial court’s judgment as to guilt, reverse the judgment as to
punishment, and remand for a new punishment hearing.
Rebeca Huddle
Justice
Panel consists of Justices Keyes, Huddle, and Lloyd.
Do not publish. TEX. R. APP. P. 47.2(b).
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