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Preas v. State

Court of Appeals Sixth Appellate District of Texas at Texarkana
Jun 16, 2017
No. 06-16-00216-CR (Tex. App. Jun. 16, 2017)

Opinion

No. 06-16-00216-CR

06-16-2017

JEREMY JAMES PREAS, Appellant v. THE STATE OF TEXAS, Appellee


On Appeal from the 8th District Court Delta County, Texas
Trial Court No. 7495 Before Morriss, C.J., Moseley and Burgess, JJ.
MEMORANDUM OPINION

In Delta County, Texas, Jeremy James Preas was indicted on one count of family violence assault. The indictment included a jurisdictional enhancement allegation that Preas had been previously convicted of family violence assault, which, if proven, would elevate the charged offense to a third degree felony. After a bench trial, the trial court found Preas guilty of the current offense and that he was the subject to the prior conviction used for enhancement. Upon those findings, the trial court sentenced Preas to twenty years' incarceration.

Due to a prior felony conviction, the punishment range was enhanced to that of a second degree felony—two to twenty years' incarceration. See TEX. PENAL CODE ANN. § 12.33 (West 2011), § 12.42(a) (West Supp. 2016), § 22.01(b)(2)(A).

On appeal, Preas argues that (1) the evidence is insufficient to support the jurisdictional enhancement allegation; and (2) the trial court erred in trying the jurisdictional enhancement allegation during the guilt/innocence phase of the trial.

We modify the judgment to reflect the correct plea and degree of offense, and we affirm the judgment as modified because: (1) there is legally sufficient evidence to support the enhancement allegation that Preas was previously convicted of family violence assault; and (2) Preas failed to preserve error regarding when the enhancement was tried.

I. There is Sufficient Evidence to Support the Jurisdictional Enhancement Allegation

Here, the indictment alleged that Preas had previously been convicted of assault

under Chapter 22 Penal Code, against a member of the defendant's family or member of defendant's household or person with whom the defendant has or has had a dating relationship, as described by Section 71.003 or 71.005 or 71.0021(b), Family Code, to wit: on the 30th of August, 2001, in the County Court of Lamar County, Texas, in cause number 39471.
In his first point of error, Preas contends that the evidence is legally insufficient to establish that he had previously been convicted of the jurisdictional enhancement offense alleged in the indictment.

In evaluating legal sufficiency, we review all the evidence in the light most favorable to the trial court's judgment to determine whether any rational jury could have found the essential elements of the offense beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (plurality op.) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref'd). Our rigorous legal sufficiency review focuses on the quality of the evidence presented. Brooks, 323 S.W.3d at 917-18 (Cochran, J., concurring). We examine legal sufficiency under the direction of the Brooks opinion, while giving deference to the responsibility of the jury "to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318-19); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).

Here, State's Exhibit 2 included a certified copy of a County Court of Lamar County judgment in case number 39471, wherein Jeremy James Preas had entered a plea of guilty August 30, 2001, to "ASSAULT CAUSES BODILY INJURY FAMILY MEMBER" and was found guilty of that offense. Preas lodged no objection to the introduction of this exhibit. The misdemeanor complaint and information that formed the basis of the 2001 judgment (certified copies of which were also included in Exhibit 2) alleged that "JEREMY JAMES PREAS . . . did then and there intentionally, knowingly, and recklessly cause bodily injury to DEANA HAINLINE, a member of the defendant's family or household, by HITTING DEANA HAINLINE IN THE FACE AND BITING HER." Preas contends that the evidence in Exhibit 2 is insufficient to support his current conviction because the judgment, complaint, and information fail to make reference to a specific statute. However, Preas admitted that he had "a prior conviction for assault family violence from the 30th of August, 2001, in Lamar County" and that State's Exhibit 2 was a copy of that conviction.

Viewing the evidence in the light most favorable to the judgment, we find that the trial court could have reasonably found beyond a reasonable doubt that on August 30, 2001, in Lamar County, Texas, in cause number 39471, Preas was convicted of assaulting a family member in violation of Chapter 22 of the Texas Penal Code, as alleged in the indictment. Therefore, we overrule this point of error.

II. No Issue Concerning When the Enhancement Was Tried Was Preserved for Our Review

In his final point of error, Preas argues that the trial court erred in considering the indictment's jurisdictional enhancement allegation during the guilt/innocence phase of the trial.

To the extent that Preas' argument can be interpreted to challenge a defect in the indictment, any error was waived because Preas failed to file a timely motion to quash the indictment or otherwise object to it at trial. See TEX. CODE CRIM. PROC. ANN. art. 1.14(b) (West 2005).

To preserve a complaint for our review, a party must first present to the trial court a timely request, objection, or motion stating the specific grounds for the desired ruling if a complaint is not apparent from the context. TEX. R. APP. P. 33.1(a)(1). Further, the trial court must have either expressly or implicitly ruled on the request, objection, or motion or the complaining party must have objected to the trial court's refusal to make such a ruling. TEX. R. APP. P. 33.1(a)(2).

Here, Preas failed to object to either witness testimony or the admission of documentary evidence proving that he had been previously convicted of family violence assault. Further, Preas failed to raise the issue in a motion for new trial or when the trial court found him guilty of the allegation during the guilt/innocence phase. Accordingly, this issue was not preserved for our review. See TEX. R. APP. P. 33.1(a)(1).

III. Modification of the Judgment

The Texas Rules of Appellate Procedure give this Court authority to modify judgments and correct typographical errors to make the record speak the truth. TEX. R. APP. P. 43.2; French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992); Rhoten v. State, 299 S.W.3d 349, 356 (Tex. App.—Texarkana 2009, no pet.). "Our authority to reform incorrect judgments is not dependent on the request of any party, nor does it turn on a question of whether a party has or has not objected in trial court; we may act sua sponte and may have a duty to do so." Rhoten, 299 S.W.3d at 356 (citing Asberry v. State, 813 S.W.2d 526, 531 (Tex. App.—Dallas 1991, pet. ref'd)).

Here, there are two clerical errors in the judgment: (1) Preas entered a plea of not guilty, but the judgment incorrectly lists his plea as "GUILTY" and (2) because Preas was found guilty of the jurisdictional enhancement allegation, the underlying offense was elevated to a third degree felony, but the judgment lists the offense as a "2ND DEGREE FELONY (AS ENHANCED)." See TEX. PENAL CODE ANN. § 22.01(b)(2)(A). Accordingly, we modify the judgment to reflect the degree of offense as a third degree felony and to reflect the plea to the offense as not guilty. We affirm the judgment, as modified.

Bailey C. Moseley

Justice Date Submitted: April 25, 2017
Date Decided: June 16, 2017 Do Not Publish


Summaries of

Preas v. State

Court of Appeals Sixth Appellate District of Texas at Texarkana
Jun 16, 2017
No. 06-16-00216-CR (Tex. App. Jun. 16, 2017)
Case details for

Preas v. State

Case Details

Full title:JEREMY JAMES PREAS, Appellant v. THE STATE OF TEXAS, Appellee

Court:Court of Appeals Sixth Appellate District of Texas at Texarkana

Date published: Jun 16, 2017

Citations

No. 06-16-00216-CR (Tex. App. Jun. 16, 2017)