No. 05-02-01745-CR
Opinion Filed May 27, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 296th District Court Collin County, Texas, Trial Court Cause No. 296-80912-02. Affirm.
Before Justices MORRIS, O'NEILL, and LANG
OPINION ON MOTION FOR REHEARING
Opinion By Justice LANG.
Appellant's motion for rehearing is granted in part and overruled in part. The Court's opinion of December 31, 2003 is withdrawn. The following is now the opinion of this Court. Robby Keith Pope appeals his conviction of indecency with a child. After finding appellant guilty, the jury assessed punishment, enhanced by a prior felony DWI, at fifty years' imprisonment. Appellant raises seven issues on appeal. In his first four issues, appellant contends that his sentence was improperly enhanced. In his fifth issue, appellant claims ineffective assistance of counsel and in his sixth issue, factual insufficiency. Finally, in a seventh issue, appellant urges this Court to abrogate the factual sufficiency standard of review in favor of another standard appellant deems to be fair. For the reasons below, we affirm the trial court's judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On February 23, 2002, appellant was in a Galyan's department store when a store employee, Lee Kube, saw appellant "pop up" from the floor just a foot away from a women's dressing room door. Kube alerted John Torres, the head of store security, of appellant's suspicious behavior and continued to observe appellant from the sales floor. Meanwhile, Torres monitored and recorded appellant from the security camera system, zooming in on the appellant and rotating the camera when necessary. Both witnesses observed appellant approach the seven-year-old complainant and her young siblings. They saw appellant reach under complainant's dress and touch her on the thigh, near her buttocks. Both witnesses also observed that appellant had an erection that was evident through his trousers. They saw that as complainant walked by, appellant leaned his hips toward her and bumped her shoulder area with his genitals. After discovering appellant masturbating in a dressing room a few minutes later, Torres detained appellant and contacted the police. Appellant was arrested and charged with indecency with a child. Ten days before trial, the State filed its intent to seek enhanced punishment using appellant's third DWI conviction as a prior felony enhancement. After a jury found appellant guilty, he elected to have the jury assess his punishment and testified to the court that he understood the State intended to ask for enhanced punishment based on a third DWI conviction. The jury found the enhancement true and assessed punishment within the enhanced range. This appeal followed. SENTENCE ENHANCEMENT
In his first four issues, appellant argues that (1) his prior conviction should be treated as a misdemeanor, not a felony; (2) use of the enhancement violated his due process rights; (3) the State introduced the enhancement without leave of the court; and (4) the punishment trial was a nullity because appellant did not plead to the enhancement, or alternatively, the punishment charge was erroneous. A.
Use of Felony Classification for Enhancement Under § 12.42 Texas Penal Code
In his first issue, appellant complains that the 50-year sentence is void because the court improperly classified his 1993 DWI conviction as a felony rather than a misdemeanor. The effect of this classification was to allow enhancement of appellant's punishment range under the habitual offender provision of Texas Penal Code § 12.42(b). Because the court classified appellant's 1993 conviction as a felony, appellant's punishment range for the offense at bar increased to that of a first-degree felony, with imprisonment for 5 to 99 years or life. See Tex. Pen. Code Ann. §§ 12.32(a), 12.42(b) (Vernon 2003 Supp. 2004). If treated as a misdemeanor, appellant's offense at bar would have remained a second-degree felony, with a punishment range of 2 to 20 years imprisonment. See Tex. Pen. Code Ann. §§ 12.33(a), 21.11(d) (Vernon 2003). Appellant interprets § 12.41(1) of the penal code to require that his 1993 conviction be classified as a misdemeanor. Therefore, he contends his punishment range was improperly enhanced because a misdemeanor does not trigger § 12.42(b) sentencing enhancement. 1. Applicable Law Generally a prerequisite to presenting a complaint on appeal is a timely, specific objection at trial. Tex.R.App.P. 33.1(a); Tucker v. State, 990 S.W.2d 261, 262 (Tex.Crim.App. 1999); see Dixon v. State, 2 S.W.3d 263, 265 (Tex.Crim.App. 1998); Etheridge v. State, 903 S.W.2d 1, 14 (Tex.Crim.App. 1994); Little v. State, 758 S.W.2d 551, 563 (Tex.Crim.App. 1988). However, an attack on the ground that a sentence is void can be raised at any time. Levy v. State, 818 S.W.2d 801, 802 (Tex.Crim. App. 1991); Wright v. State, 936 S.W.2d 704, 706 (Tex. App.-Dallas 1996, no pet.). The Texas Court of Criminal Appeals has uniformly held that sentences not authorized by law are void. Heath v. State, 817 S.W.2d 335, 339 (Tex.Crim.App. 1991) (op. on reh'g) (citing court of criminal appeals opinions spanning a century), overruled in part, Ex parte Williams, 65 S.W.3d 656 (Tex.Crim.App. 2001) (unauthorized-by-law probation order was not an illegal sentence); Fortier v. State, 105 S.W.3d 697, 699 (Tex. App.-Fort Worth 2003, pet. ref'd). The habitual offender provision of the Texas Penal Code authorizes enhanced punishment ranges. Section 12.42(b), of Title 3, states, "If it is shown on the trial of a second-degree felony that the defendant has been once before convicted of a felony, on conviction he shall be punished for a first-degree felony." Tex. Pen. Code Ann. § 12.42(b) (Vernon Supp. 2004). When a prior conviction was not obtained from a prosecution under the penal code, the code classifies the conviction as a "'felony of the third degree' if imprisonment in a penitentiary is affixed to the offense as a possible punishment." Id. § 12.41(1). 2. Analysis As a threshold matter, we note appellant did not object at trial to the enhancement paragraph or assert that any part of punishment range could render a void sentence. However, failure to preserve error at trial does not waive an attack on the ground that a sentence is void. Levy, 818 S.W.2d at 802. It can be raised at any time. Id. Therefore, we now consider this issue, which appellant raised for the first time on appeal. The record shows that appellant was convicted of his third DWI on July 18, 1993, before the felony DWI statutory enhancement went into effect on September 1, 1994. See Tex. Pen. Code Ann. § 49.09(b)(2) (Vernon Supp. 2004). Appellant argues that because his third DWI offense occurred before the Legislature designated the offense as a third-degree felony, his offense should be classified as a misdemeanor and may not be used for sentence enhancement. However, the Texas Penal Code classifies offenses outside the code according to § 12.41. This provision reads: For purposes of this subchapter, any conviction not obtained from a prosecution under this code shall be classified as follows: (1) 'felony of the third degree' if imprisonment in a penitentiary is affixed to the offense as a possible punishment. Tex. Pen. Code Ann. § 12.41(1) (Vernon 2003). The statutory language under which appellant was convicted in 1993 reads: if it is shown on the trial of an offense under this article that the person has previously been convicted two or more times of an offense under this article, the offense is punishable by: (1) a fine of not less than $500 or more than $2,000; and (2) confinement in jail for a term of not less than 30 days or more than two years or imprisonment in the state penitentiary for a term of not less than 60 days or more than five years.
Act of May 27, 1983, 68th Leg., R.S., ch. 303 § 3(e), 1983 Tex. Gen. Laws 1568, 1576 (emphasis added). The relevant statute clearly contemplated penitentiary imprisonment as an option for appellant's 1993 offense. Id. Although appellant was not incarcerated in a penitentiary, such a sentence was "affixed" to his offense as a possible punishment. See id. On its face, § 12.41(1) of the Texas Penal Code appears to classify appellant's 1993 conviction as a "felony of the third degree." In conformance with § 12.41(1), the judgment on record also classifies appellant's 1993 conviction as a third degree offense. However, Appellant argues that the § 12.41(1) classification must be based upon the punishment actually imposed for the conviction, not the possible punishment. Appellant directs this Court to § 1.03(b) of the Penal Code, which reads: The provisions of Titles 1, 2, and 3 apply to offenses defined by other laws, unless the statute defining the offense provides otherwise; however, the punishment affixed to an offense defined outside this code shall be applicable unless the punishment is classified in accordance with this code.
Tex. Pen. Code Ann. § 1.03(b) (Vernon 2003) (emphasis added). Interpreting the "however" proviso, italicized above, appellant contends that the language "the punishment affixed to an offense" refers to the actual punishment imposed against a defendant, rather than the possible punishment available under the statute by which a defendant is convicted. If one were to follow appellant's interpretation, § 12.41(1) would classify a defendant's offense according to the actual punishment imposed. Therefore, appellant argues his 1993 conviction is not subject to enhancement because his actual sentence imposed misdemeanor-level punishment, i.e., confinement in the county jail. We disagree with appellant's statutory interpretation. Section 12.41(1) classifies a conviction obtained under a penal statute other than the Penal Code as a "'felony of the third degree' if imprisonment in a penitentiary is affixed to the offense as a possible punishment." Appellant reads "affixed to the offense" to mean that his 1993 conviction can be classified as a felony only if imprisonment in a penitentiary was the actual punishment for his offense. However, in interpreting "punishment affixed to" to mean "the actual punishment for," appellant ignores the § 12.41(1) language, "as a possible punishment." To adopt appellant's interpretation would render the language "as a possible punishment" meaningless surplusage. See Whitelaw v. State, 29 S.W.3d 129, 131 (Tex.Crim.App. 2000). We must reject any interpretation rendering a portion of the statute without meaning. Id. Additionally, appellant's preferred interpretation is contrary to the controlling case law. The Texas Court of Criminal Appeals has defined "punishment affixed to an offense" not as the actual punishment imposed, but as the "ordinary punishment specified by the statute defining the offense." Childress v. State, 784 S.W.2d 361, 363 (Tex.Crim.App. 1990). Texas courts have consistently held that an offense that "may," not "must," be punished by confinement in the penitentiary is a felony, even though punishment is actually by fine or confinement in the county jail. Ragon v. State, 506 S.W.2d 214, 216-217 (Tex.Crim. App. 1974); Middleton v. State, 476 S.W.2d 14, 15 (Tex.Crim. App. 1972); Schmidt v. State, 778 S.W.2d 549, 552 (Tex. App.-Houston [1st Dist.] 1989, pet. ref'd); see also Ex parte Blume, 618 S.W.2d 373 (Tex.Crim.App. 1981) (federal conviction for offense which did not constitute felony under Penal Code could be used to enhance punishment where federal offense carried confinement in penitentiary as possible punishment). Appellant's 1993 conviction, obtained under Act of May 27, 1983, 68th Leg., R.S., ch. 303 § 3, 1983 Tex. Gen. Laws 1568, 1576, was an offense defined by penal statute outside of the Penal Code. The offense carried imprisonment in the penitentiary as a possible punishment. Therefore, it was a felony under § 12.41(1), subject to use for § 12.42 enhancement purposes. Accordingly, we conclude the "felony" classification of appellant's 1993 conviction was not error and appellant's punishment range was not erroneously enhanced. We resolve appellant's first issue adversely to him. B.
Due Process In his second issue, appellant continues his argument that the actual punishment controls classification of his offense. Specifically, he claims to the extent that § 12.41 allows classification based on possible, rather than actual, punishment, the statute constitutes a denial of due process. Based on the preceding analysis, we conclude the application of § 12.41 did not violate appellant's due process rights. We resolve appellant's second issue adversely to him. C.
State's Failure to Obtain Leave to Amend Indictment In his third issue, appellant complains that the State did not obtain leave of the court to amend the indictment. Therefore, he argues, the enhancement paragraph was improper and ineffectual. To preserve a complaint of error involving an indictment amendment, an accused must make a timely objection. See Tex.R.App.P. 52(a); State v. Murk, 815 S.W.2d 556, 558 (Tex.Crim. App. 1991). The record reflects appellant did not object when the State communicated its intent to seek enhancement under § 12.42. Also, appellant did not claim, at that time, that the State's amendment was ineffective. We conclude that appellant presents nothing for review because he did not timely object. Murk, at 558. In his motion for rehearing, appellant asserts that his third issue on appeal complained of error in the charge. According to Almanza v. State, a defendant does not waive error in the charge, even if error is not preserved trial. 686 S.W.2d 157, 171 (Tex.Crim.App. 1985) (op. on reh'g). However, if error is not preserved, a reviewing court may reverse only if the record demonstrates defendant suffered egregious harm. Id. Appellant urges this Court to apply the Almanza test for egregious harm. However, on appeal, appellant briefed this Court on the issue of the State's failure to obtain leave of the court to amend the indictment, not on charge error. Therefore, appellant waived his charge error argument on appeal. See Tex.R.App.P. 38.1(h). Even if appellant had preserved error on a charge error issue, we would determine this issue adversely to him. Article 28.11 of the Texas Code of Criminal Procedure states, "[a]ll amendments of an indictment or information shall be made with the leave of the court and under its direction." However, the Texas Court of Criminal Appeals has held that sentencing enhancements need not be pleaded in the indictment. Brooks v. State, 957 S.W.2d 30, 34 (Tex.Crim.App. 1997). Brooks unambiguously states, "prior convictions used as enhancements must be pled in some form, but they need not be pled in the indictment." 957 S.W.2d at 33-34 (citing Patterson v. State, 740 S.W.2d 766, 776 (Tex.Crim. App. 1987), overruled on other grounds, Ex Parte Beck, 769 S.W.2d 525, 528 (Tex.Crim.App. 1989)). The court held that the purpose of an enhancement paragraph is to provide the accused with notice of the convictions to be used for the enhancement. Id. at 33; see also Brooks v. State, 921 S.W.2d 875, 878 (Tex. App.-Houston [14th Dist.] 1996) aff'd, 957 S.W.2d 30. The Brooks court concluded "the indictment is not the only reasonable method of conveying such notice." Brooks, 957 S.W.2d at 33. Appellant attempts to distinguish Brooks by pointing out that in that case the State obtained leave of the court to add the enhancement paragraph. However, because Brooks has held it is not necessary to include an enhancement paragraph in the indictment, it follows that the State is not required to obtain leave of the court to plead the enhancement. If the enhancement paragraph is not required in the indictment, no amendment is necessary. Consequently, we find appellant's argument that this Court must apply the Almanza egregious harm test is misplaced. The record shows that the State met all notice requirements for pleading the enhancement. Ten days before trial the State notified appellant that it planned to introduce his 1993 conviction for the purposes of § 12.42 enhancement. As Brook requires, appellant had notice of prior convictions to be used for enhancement. See id. at 33. Although the enhancement was not pleaded in the indictment, the requisite notice was conveyed by State's October 4, 2004 pleading, which it filed with the court and served on appellant. See id. at 34. We resolve appellant's third issue adversely to him. D.
Failure to Plead to the Enhancement In his fourth issue, appellant contends that the punishment trial was a nullity because he did not enter a plea to the enhancement paragraph, or alternatively, the punishment charge was erroneous. 1. Applicable Law Reading of the enhancement paragraphs at the punishment phase of trial and a defendant's plea to them are mandatory. See Tex. Code Crim. Proc. Ann. art. 36.01(a) (Vernon Supp. 2004); Turner v. State, 897 S.W.2d 786, 788 (Tex.Crim.App. 1995). Error resulting from failure to read the enhancement and not entering a plea can be cured at trial. Warren v. State, 693 S.W.2d 414, 416 (Tex.Crim.App. 1985). However, when the error is discovered after the trial, error can be preserved by means of a motion for new trial, bill of exception or motion to arrest judgment. Id. 2. Analysis The record shows that at the outset of trial, appellant was aware the State intended to prove his prior felony conviction in order to seek an enhanced sentence. Upon announcing ready for trial, appellant identified himself as the same person charged and stipulated that he understood the charges and intended to plead not guilty. Also, appellant waived further formal arraignment, thereby waiving any complaint that he entered no plea to the enhancement. See Richardson v. State, 508 S.W.2d 380, 381 (Tex.Crim.App. 1974). Appellant did not preserve error at trial by objecting to the failure to enter a plea to the enhancement. Even if it was not until after the trial that appellant "discovered" he had not entered a plea, appellant failed to raise this issue in his motion for new trial. Therefore, we conclude appellant has not preserved any issue for appeal on this point. As for appellant's alternative charge error argument, appellant has not shown that error exists in the charge or that he suffered egregious harm. Under the Almanza harm analysis, when an appellant alleges charge error for the first time on appeal, we first determine whether there is error in the jury charge. See Almanza, 686 S.W.2d. at 171; Tear v. State, 74 S.W.3d 555, 561-62 (Tex. App.-Dallas 2002, pet ref'd). If we conclude there is jury charge error, and a defendant failed to object to the error at trial, we may reverse only if the record shows that the error was so egregiously harmful that the defendant was denied a fair and impartial trial. See Almanza, 686 S.W.2d at 171; Tear, 74 S.W.3d at 561. In deciding appellant's issues one, two, and three, we concluded that appellant's sentence was not erroneously enhanced and the trial court did not err in including the enhancement in the jury charge. Therefore, our analysis of the alleged charge error need go no further. The jury charge did not contain error. Accordingly, we resolve appellant's fourth issue against him. INEFFECTIVE ASSISTANCE OF COUNSEL In issue five, appellant argues that he received ineffective assistance of counsel because trial counsel failed to make the objections necessary to preserve error for his first four issues respecting enhancement. A.
Standard of Review To prevail on an ineffective assistance of counsel claim, appellant must show: (1) counsel's representation fell below an objective standard of reasonableness, and (2) a reasonable probability exists that a different outcome would have resulted but for counsel's error. Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994) (citing Strickland v. Washington, 466 U.S. 668 (1984)). Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. See Mallett v. State, 65 S.W.3d 59, 63 (Tex.Crim.App. 2001) ; Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). In cases where appellant claims an objection was necessary, appellant must identify the specific objection that counsel should have made and provide authority in support of his argument that the objection would have been meritorious. Ryan v. State, 937 S.W.2d 93, 98 (Tex. App.-Beaumont 1996, pet ref'd). It is appellant's burden to prove, by a preponderance of the evidence, there is no plausible professional reason for a specific act or omission. Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). When facing a silent record as to defense counsel's strategy, the court will not speculate as to counsel's tactics or reasons for taking or not taking certain actions. See Jackson, 877 S.W.2d at 771. Without evidence of the strategy and methods involved concerning counsel's actions at trial, the court will presume sound trial strategy. See Thompson, 9 S.W.3d at 814. B.
Application of Law to Facts Appellant did not file a motion for new trial on ineffective assistance of counsel grounds. Thus, the record provides no explanation of the reasoning behind counsel's decisions not to object to the enhancement or appellant's failure to plead to the enhancement. Moreover, in view of our disposition of these issue on the merits we cannot conclude counsel's performance was deficient. Counsel is not required to make meritless objections. Riles v. State, 595 S.W.2d 858, 861 (Tex.Crim.App. 1980); Thacker v. State, 999 S.W.2d 56, 67 (Tex. App.-Houston [14th Dist.] 1999, pet. ref'd). Appellant has failed to meet his burden of proving that there was no plausible professional reason for failing to object. We resolve appellant's fifth issue against him. FACTUAL INSUFFICIENCY In his sixth issue, appellant's contends the evidence is factually insufficient to support the verdict. A.
Standard of Review In conducting a factual sufficiency review, we determine whether a neutral review of all the evidence demonstrates the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, No. 539-02, 2004 WL 840786, *7 (Tex.Crim.App. April 21, 2004). In making this determination, we bear in mind that the trier of fact is the exclusive judge of the witnesses' credibility and the weight of the testimony and may accept or reject all or part of the evidence of either side. Jones v. State, 944 S.W.2d 642, 647-48 (Tex.Crim.App. 1996); Chambers v. State, 805 S.W.2d 459, 461 (Tex.Crim.App. 1989). We will find the evidence to be factually insufficient when the evidence supporting the verdict, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt, or when the contrary evidence is so strong that the beyond-a-reasonable doubt standard could not have been met. Zuniga, No. 539-02, 2004 WL 840786, *7. B.
Applicable Law A person commits the offense of indecency with a child by contact if, with a child younger than seventeen (17) years and not his spouse, whether the child is of the same or opposite sex, he engages in sexual contact with the child. "Sexual contact" means any touching of a child, including touching through clothing, with any part of the genitals of a person, if such contact is committed with the intent to arouse or gratify the sexual desire of any person. Tex. Pen. Code Ann. § 21.11(a),(c) (Vernon 2003); Resnick v. State, 574 S.W.2d 558, 560 (Tex.Crim. App. 1978); Guia v. State, 723 S.W.2d 763, 765 (Tex. App.-Dallas 1986, pet ref'd). C.
Application of Law to Facts Appellant argues that the evidence is factually insufficient to prove contact and intent. The record reveals the contact at issue was observed by two witnesses. Lee Kube, a Galyan's employee, watched appellant from the sales floor. John Torres, head of store security, witnessed appellant's behavior through the store's security camera. From the floor, Kube first noticed appellant when he stood up suddenly from the floor just a foot away from a women's dressing room door. After notifying Torres of appellant's suspicious behavior, Kube watched appellant approach the seven-year-old complainant and her siblings. Kube witnessed appellant reach under complainant's dress and touch her on the thigh, near her buttocks. Watching through the security camera, Torres witnessed the same act. Both witnesses reported that appellant had an erection that was evident through his trousers. They testified that as complainant walked by, appellant leaned his hips toward her and bumped her shoulder area with his genitals. In addition to the witnesses' testimony, the jury saw a videotape of the incident, which was captured by the security cameras. We conclude that the jury was rationally justified in finding beyond a reasonable doubt that appellant engaged in contact with complainant. We turn now to the issue of whether the evidence was factually sufficient to show intent. A jury could infer appellant's intent to arouse or gratify his sexual desire from appellant's conduct alone, his remarks, or all the surrounding circumstances. Robertson v. State, 871 S.W.2d 701, 705 (Tex.Crim.App. 1993); Couchman v. State, 3 S.W.3d 155, 163 (Tex. App.-Fort Worth 1999, pet. ref'd). In addition to the facts above, the witnesses also testified that appellant was fondling himself, he bent down behind some other young girls to stare at their buttocks, he returned to complainant and touched her again on the inner thigh, and then immediately entered the men's dressing room. At that point Torres left the security offices to check the dressing room. There, Torres checked under the doors for feet that would indicate the room was occupied. Instead of seeing appellant's feet, Torres saw appellant on his knees evidently masturbating. The record also shows that appellant ejaculated in the dressing room. We conclude the jury was rationally justified in determining from the appellant's conduct and surrounding circumstances that appellant acted with the intent to arouse or gratify his sexual desire. Thus, the evidence supporting the verdict is not too weak to support the finding of guilt beyond a reasonable doubt. Although appellant argues that the seven-year-old complainant could not recall the contact, and questions the credibility of the witnesses, the jury was the exclusive judge of their credibility and the weight to be given to their testimony. Jones, 944 S.W.2d at 647. After a neutral review of all of the evidence, we conclude the evidence is factually sufficient to show both contact and the requisite intent. D.
Appellant's Challenge to the Standard of Review In his seventh issue, appellant asks this court to abandon the current standard of review for factually sufficiency in favor of a less demanding standard. However, as an intermediate court of appeals we are bound by the decisions of our state's highest criminal court. Purchase v. State, 84 S.W.3d 696, 701 (Tex. App.-Houston [1st Dist.] 2002, pet. ref'd). Under the current standard of review, we have decided the factual sufficiency issue adversely to appellant. We decline to address this issue on a hypothetical basis. CONCLUSION
Having resolved appellant's seven issues adversely to him, we affirm the trial court's judgment.