                                                                                PD-0061-15
                                                               COURT OF CRIMINAL APPEALS
                                                                               AUSTIN, TEXAS
                                                               Transmitted 5/7/2015 8:54:49 AM
                                                                 Accepted 5/7/2015 8:56:20 AM
May 7, 2015                                                                     ABEL ACOSTA
                            NO. PD-0061-15                                              CLERK

                          CARLTON WOOD,
                                   Appellant
                                v.

                       THE STATE OF TEXAS,
                                  Appellee


                  STATE’S BRIEF ON THE MERITS
                    FOLLOWING GRANTING OF
              PETITION FOR DISCRETIONARY REVIEW



                     From the Court of Appeals for the
                 Fourth Court of Appeals District of Texas
                  at San Antonio, No. 04-14-00224-CR,
                      and the 226th District Court of
               Bexar County, Trial Court No. 2013-CR-3690,


                                 NICHOLAS “NICO” LaHOOD
                                 Criminal District Attorney
                                 Bexar County, Texas

                                 JAY BRANDON
                                 Assistant District Attorney
                                 SBN 02880500
                                 101 W. Nueva
                                 San Antonio TX 78205
                                 (210) 335-2418
                                 jay.brandon@bexar.org
                  IDENTITY OF PARTIES AND COUNSEL

Carlton Wood              -    Appellant (defendant in the trial court)

Edward A. Bartolomei      -    Appellant‟s attorneys at trial
Robbie L. Ward

David L. McLane           -    Appellant‟s attorney on appeal

Stacy Esterak             -    Attorneys for the State at trial
Clayton Head

Hon. Sid Harle            -    Judge Presiding at trial

Jay Brandon               -    Attorney for the State on appeal




                                 2
                        TABLE OF CONTENTS
                                                Page
PARTIES                                         2

INDEX OF AUTHORITIES                             4

STATEMENT OF THE CASE                            5

STATEMENT OF PROCEDURAL HISTORY                  5

GROUNDS FOR REVIEW

GROUND FOR REVIEW ONE
THE COURT OF APPEALS
ERRED BY REFUSING TO
APPLY A PRESUMPTION
THAT THE DEFENDANT PLED
TRUE TO THE ENHANCEMENT.                          6

GROUND FOR REVIEW TWO
WHERE THE TRIAL COURT
FINDS AN ENHANCEMENT TRUE
AND THE DEFENDANT DOES NOT
OBJECT, THE PRESUMPTION
SHOULD BE APPLIED.                                6

GROUND FOR REVIEW THREE
THE EVIDENCE SUPPORTED
THE COURT’S FINDING OF
TRUE, CONTRARY TO THE
COURT OF APPEALS’ HOLDING.                        6

PRAYER FOR RELIEF                                15

CERTIFICATE OF COMPLIANCE                        16

CERTIFICATE OF SERVICE                           16

APPENDIX: Court of Appeals opinion          attachment

                                     3
                          INDEX OF AUTHORITIES
                                                                   Page
Breazeale v. State, 683 S.W.2d 446 (Tex.Crim.App. 1984)             11

Brown v. State, No. 14-08-00614-CR (Tex.App.—Houston
     [14th Dist.] 2011, no pet.)                                   10

Flowers v. State, 220 S.W.3d 919 (Tex.Crim.App. 2007)              12

Freda v. State, 704 S.W.2d 41 (Tex.Crim.App. 1986)                 13

Hazelwood v. State, 838 S.W.2d 647 (Tex. App.—Corpus
     Christi 1992, no pet.)                                        10

Hunt v. State, 994 S.W.2d 206 (Tex.App.—Texarkana 1999, no pet.)   10

Lincoln v. State, 307 S.W.3d 921 (Tex.App.—Dallas 2010, no pet.)   11

Linton v. State, 15 S.W.3d 615 (Tex.App.—Houston [14th Dist.]
      2000, pet. ref‟d)                                            14

Osteen v. State, 642 S.W.2d 169 (Tex.Crim.App. 1982)               10

Richardson v. State, 957 S.W.2d 854 (Tex.App.—Tyler 1997,
      pet. ref‟d)                                                  10

Sharp v. State, 707 S.W.2d 611 (Tex.Crim.App. 1986)                 9

Tenner v. State, 850 S.W.2d 818 (Tex.App.—El Paso 1993,
     no pet.)                                                      13

Warren v. State, 693 S.W.2d 414 (Tex.Crim.App. 1985)                9

Wilson v. State, 671 S.W.2d 524 ([Tex.Crim.App. 1984)               9

Wood v. State, 453 S.W.3d 488 (Tex. App.—San Antonio
     2014, pet. filed)                                              5




                                       4
                          STATEMENT OF THE CASE

      Appellant was convicted in a bench trial of evading arrest/ vehicle. After a

presentence investigation report and brief punishment hearing, the court assessed

punishment at imprisonment for four years.



                  STATEMENT OF PROCEDURAL HISTORY

      On December 17, 2014, the Fourth Court of Appeals handed down an

opinion reversing the punishment in this case and remanding to the trial court for

new punishment hearing. The published opinion is by Justice Rebeca Martinez,

joined by Justices Alvarez and Chapa. Wood v. State, 453 S.W.3d 488 (Tex.

App.—San Antonio 2014, pet. filed).

      This Court granted the State‟s petition for discretionary review (oral

argument not permitted) on April 22, 2015. This brief on the merits is timely filed.

                            STATEMENT OF FACTS

      The facts of the offense are not relevant to this appeal. Appellant Carlton

Wood was charged with evading arrest/vehicle. He pled not guilty in a bench trial

and was found guilty. After a subsequent pre-sentence investigation report, the

court held a punishment hearing. At the beginning the court announced in open

court that the enhancement count had been found true. No one responded. The

court assessed punishment of four years‟ imprisonment.


                                         5
                            GRANTED GROUNDS:

                        GROUND FOR REVIEW ONE
                         THE COURT OF APPEALS
                         ERRED BY REFUSING TO
                         APPLY A PRESUMPTION
                       THAT THE DEFENDANT PLED
                      TRUE TO THE ENHANCEMENT.

                       GROUND FOR REVIEW TWO
                       WHERE THE TRIAL COURT
                     FINDS AN ENHANCEMENT TRUE
                     AND THE DEFENDANT DOES NOT
                       OBJECT, THE PRESUMPTION
                          SHOULD BE APPLIED.

                       GROUND FOR REVIEW THREE
                        THE EVIDENCE SUPPORTED
                         THE COURT’S FINDING OF
                         TRUE, CONTRARY TO THE
                      COURT OF APPEALS’ HOLDING.

                       SUMMARY OF THE ARGUMENT

      The Fourth Court of Appeals has handed down an opinion reversing the

punishment in this case and remanding to the trial court for new punishment

hearing. The court specifically refused to apply the presumption found in Rule of

Appellate Procedure 44.2(c)(4) that a defendant has pled to an indictment. Instead

the court held the exact opposite, that a plea of true to an enhancement count “must

be affirmatively reflected by evidence in the record.” This holding is contrary to

many cases saying the presumption must be applied in the face of a silent record.

      Furthermore, the trial court in this case announced at the beginning of the


                                         6
punishment hearing, in front of Appellant and his counsel, that the enhancement

count had been found true. Appellant had an opportunity to make an issue of this

but did not. Appellant also testified during the hearing that he had been convicted

of possession of a controlled substance, the same offense alleged in the

enhancement.

      It is clear from the record that Appellant pled true to the enhancement

paragraph off the record. The Fourth Court erred by not applying the presumption.

                                   ARGUMENT

The Enhancement Allegation

      Appellant‟s indictment included a paragraph titled “Enhancement

Allegation,” which read as follows:

      And it is further presented in and to said Court that, before the
      commission of the offense alleged above, on the 23rd day of
      SEPTEMBER, A.D. 2002, in Cause No. 2002CR2129, in Bexar
      County, Texas, the defendant was convicted of the felony of POSS CS
      PG1 1 GRAM TO 4 GRAMS…

(CR 5)

The Trial Court’s Finding

      Appellant‟s was a bench trial. After the trial court found him guilty of

evading arrest, the court recessed for a punishment hearing. That hearing included

a presentence investigation report, which the court had reviewed (RR3 3), but

which is not in the record. At the beginning of the hearing, the court said, “The


                                         7
enhancement has been found true.” (RR3 3) No one objected to this finding or

commented on it in any way. Then the court heard punishment evidence.

      The docket sheet also shows that the enhancement was found true. (CR 66)

The judgment says that Appellant pled true to the enhancement and it was found

true. (CR 56)

Other Evidence

      The PSI report obviously contained information the court read which is not

in the record. The court asked Appellant how much of his six-year prison term he

had served. (RR3 4) There was no testimony or other evidence concerning the

length of Appellant‟s previous sentence.

      Appellant also testified that he had been convicted of possession of a

controlled substance and served prison time for it. (RR3 60-1) That was the

offense alleged for enhancement. Appellant said this was in “the 2000s,” but he

wasn‟t sure if it was 2002, the date alleged in the indictment. (RR3 61)

The Presumption

      Texas Rule of Appellate Procedure 44.2(c) says:

      Presumptions. Unless the following matters were disputed in the trial
      court, or unless the record affirmatively shows the contrary, the court
      of appeals must presume:
             (1) that venue was proved in the trial court;
             (2) that the jury was properly impaneled and sworn;
             (3) that the defendant was arraigned;
             (4) that the defendant pleaded to the indictment or other
      charging instrument; and
                                           8
            (5) that the court‟s charge was certified by the trial court and
     filed by the clerk before it was read to the jury.
(emphasis added)

The Court of Appeals’ Holding

      The court of appeals acknowledged this presumption, but held, “However, a

defendant‟s plea of „true‟ to an enhancement allegation must be affirmatively

reflected by evidence in the record. Wilson[ v. State], 671 S.W.2d [524] at 525-26

([Tex.Crim.App. 1984)].” Wood, supra, 453 S.W.3d at 491. The court of appeals

then proceeded to hold that the State had not put on sufficient evidence to uphold

the finding of true to the enhancement allegation. Id. at 492.

Argument

      The Wilson opinion was handed down from this Court in 1984. It does

indeed say what the court of appeals cited it as saying, but cites no authority for

that proposition. The Rules of Appellate Procedure were promulgated by this

Court (and the Supreme Court) to take effect September 1, 1986. Rule 44.2(c), set

out above, seems designed to overrule Wilson, sub silentio. Whatever the

intention, the rule now controls this situation.

      Since Wilson, this Court has held that the presumption of regularity in

proceedings controls unless the supposed error was called to the attention of the

trial court or the record affirmatively demonstrates the contrary. Sharp v. State, 707

S.W.2d 611, 616 (Tex.Crim.App. 1986). Warren v. State, 693 S.W.2d 414, 416


                                           9
(Tex.Crim.App. 1985), points out that courts of appeals are to presume that the

defendant was arraigned and that he pleaded to the charging instrument, “unless

such matters were made an issue in the court below, or otherwise affirmatively

appears to the contrary from the record.”

      Many courts have applied the various presumptions found in this rule.

Osteen v. State, 642 S.W.2d 169, 171 (Tex.Crim.App. 1982)(based on the

predecessor to Rule 44.2(c); court must presume jury properly empaneled and

sworn); Hunt v. State, 994 S.W.2d 206 (Tex.App.—Texarkana 1999, no pet.)(it is

to be presumed that the defendant pled to the indictment); Hazelwood v. State, 838

S.W.2d 647 (Tex. App.—Corpus Christi 1992, no pet.)(silence in the record does

not amount to an affirmative showing that a plea was not taken); Brown v. State,

No. 14-08-00614-CR (Tex.App.—Houston [14th Dist.] 2011, no pet.)

(memorandum opinion)(“we must presume a defendant was arraigned and pleaded

to the indictment unless these matters were disputed in the trial court or the record

affirmatively shows the contrary”).

      One of the most significant of these is Richardson v. State, 957 S.W.2d 854,

856 (Tex.App.—Tyler 1997, pet. ref‟d), which says, “[T]he record must

affirmatively show that the indictment in its entirety was not read, or trial counsel

must have called the omission to the attention of the court. Silence in the record

does not amount to an affirmative showing.” (emphasis added).


                                          10
      The record in this case shows only a resounding silence in the record. The

trial court announced in open court that the enhancement had been found true.

Appellant had the perfect opportunity to call any omission in arraigning or

pleading to the trial court‟s attention but did not. Defense counsel apparently knew

as well as the court did that Appellant had pled true off the record. This is the

exact situation Rule 44.2 was designed to cover.

      The court of appeals‟ opinion holds, in effect, that there must be evidence in

the record before this presumption may be honored. In other words, a fact may be

presumed true as long as the State proves it true. This misunderstands the nature

of a presumption, which is a fact to be presumed without evidence. If it needed

evidence, it wouldn‟t be a presumption.

Effect of the Judgment

      The judgment in this case also recites that Appellant pled true to the

enhancement count. (CR 56) This creates a similar presumption, that the recital is

accurate absent direct proof of its falsity. Breazeale v. State, 683 S.W.2d 446, 450-

51 (Tex.Crim.App. 1984); Lincoln v. State, 307 S.W.3d 921, 922 (Tex.App.—

Dallas 2010, no pet.). It is to be presumed that a defendant pled to an indictment

if the judgment says so. Sharp, supra. This presumption applies to enhancements

as well. Warren, supra, 693 S.W.2d at 415; Hunt, supra, 994 S.W.2d at 206.




                                          11
      Again, the defendant must make an issue of this in the trial court in order to

show the presumption is untrue. Id. This Appellant made no issue of any supposed

absence of a plea in the trial court, even given a very direct opportunity to do so.

Clearly, Appellant knew he had pled true.

Sufficient Evidence

      Aside from the presumption, there was sufficient evidence before the trial

court to prove that Appellant had been convicted of the prior offense alleged in the

indictment. The trial court obviously had evidence in the presentence investigation

report, to which the court referred when questioning Appellant about how much of

his sentence he had served. Furthermore, Appellant freely admitted that he had

been convicted of possession of a controlled substance, the offense alleged in the

indictment. Given the fact that an enhancement allegation does not have to be

proven with the same precision as guilt, this was sufficient evidence to support the

court‟s finding of true.

             To establish that a defendant has been convicted of a prior
      offense, the State must prove beyond a reasonable doubt that (1) a
      prior conviction exists, and (2) the defendant is linked to that
      conviction. No specific document or mode of proof is required to
      prove these two elements. There is no „best evidence‟ rule in Texas
      that requires that the fact of a prior conviction be proven with any
      document, much less any specific document… Just as there is more
      than one way to skin a cat, there is more than one way to prove a prior
      conviction.

Flowers v. State, 220 S.W.3d 919, 921-22 (Tex.Crim.App. 2007).


                                          12
      Appellant‟s own testimony proved both the existence of a prior conviction

and that he was linked to it. He had, in fact, served time for that conviction.

Added to the information available to the court in the PSI report, this sufficed to

prove the prior conviction.

      That Appellant didn‟t remember the exact year of his conviction is

insignificant. He clearly knew the conviction the State alleged. The purpose of an

enhancement allegation is simply to give a defendant notice of the prior conviction

on which the State intends to rely. “It is well settled that it is not necessary to

allege prior convictions for the purpose of enhancement with the same particularity

which must be used in charging on the primary offense.” Freda v. State, 704

S.W.2d 41, 42 (Tex.Crim.App. 1986). Proof has been held sufficient where the

name of the offense, the date, the cause number, or the state of conviction has

varied from the claim in the enhancement count. See, Freda, supra; Woodward v.

State, No. 04-10-00815-CR, 2011 Tex.App. LEXIS 8706 (Tex.App.—San Antonio

2011, no pet.)(not designated for publication)(name of offense of prior conviction

incorrect); Foster v. State, No. 04-01-00040-CR, 2002 Tex.App. LEXIS 1081

(Tex. App.—San Antonio 2002, no pet.)(not designated for publication)

(enhancement count listed wrong date; affirmed). Appellant does not claim he was

unfairly surprised by any variation. Tenner v. State, 850 S.W.2d 818, 820 (Tex.

App. —El Paso 1993, no pet.). In fact, he clearly was not.


                                           13
       The court of appeals held, “The State not only failed to prove the conviction

to be used for enhancement beyond a reasonable doubt, it failed to present even

prima facie evidence of the conviction.” Wood, supra, slip op. at 6. This holding is

contradictory to the teachings of Flowers, supra. Flowers says no documentary

evidence is required. The Fourth Court says it is. If a defendant‟s admission that

he was previously convicted of the offense alleged for enhancement isn‟t prima

facie evidence of that conviction, what is? Flowers says, “Texas substantive law

does not require that the fact of a prior conviction be proven in any specific

manner…. Any type of evidence, documentary or testimonial, might suffice.” 220

S.W.3d at 922. The Fourth Court of Appeals, by contrast, wants to require

evidence of a document. Again, this is contrary to the law as stated by this Court.

Harm

       In addition to all this, failure to read an enhancement count is harmless

unless this absence misled the defendant into thinking he was not being charged as

a repeat offender. Linton v. State, 15 S.W.3d 615, 620-21 (Tex.App.—Houston

[14th Dist.] 2000, pet. ref‟d). As stated above, the purpose of putting an

enhancement allegation in the charging instrument is to give the defendant that

notice. Reading the enhancement does the same.

       Appellant was not misled. His testimony makes clear that he knew he was

being charged as a repeat offender, and he was aware of the prior offense being


                                          14
alleged for that purpose. He acknowledged he had been convicted of that offense.

Appellant was not misled in any way.

Conclusion

      This case demonstrates the reasons for the presumptions that should have

been applied. Events happen in court known to all the participants that may not be

obvious to appellate judges who weren‟t there. If anything had been done

improperly in the trial court, the defense had the perfect opportunity to point that

out to the trial judge (which it was required to do to raise this error on appeal). The

defense did not take that opportunity. Appellant and his counsel knew he had pled

to the enhancement allegation.

      Nothing refutes what the judge said in court and what the judgment recites.

This is at best a silent record on the issue, which does not provide support for

refusing to presume that Appellant pled to the indictment. In this published

opinion the Fourth Court of Appeals has imposed a requirement on trial courts not

mandated by rules, caselaw, or this Court‟s holdings.

                              PRAYER FOR RELIEF

      The State prays that this Court will reverse the judgment of the court of

appeals and affirm the judgment of the trial court.

                                        Respectfully submitted,

                                        NICHOLAS “NICO” LaHOOD
                                        Criminal District Attorney
                                          15
                                         Bexar County, Texas

                                         /s/ Jay Brandon
                                          ______________________________
                                          JAY BRANDON
                                          Assistant Criminal District Attorney
                                          Bexar County, Texas
                                          101 West Nueva, 3rd Floor
                                          San Antonio, Texas 78204
                                          (210) 335-2418
                                           jay.brandon@bexar.org
                                          State Bar No. 02880500
                                          Attorneys for the State


                           CERTIFICATE OF COMPLIANCE

        I certify, in accordance with Rule 9.4 of the Texas Rules of Appellate Procedure

that this document contains 3,006 words.

                                         /s/ Jay Brandon
                                         _____________________________
                                         JAY BRANDON


                             CERTIFICATE OF SERVICE

        I certify that a copy of the foregoing brief was sent by electronic mail to

David L. McLane, Attorney for Appellant, and to State Prosecuting Attorney Lisa

McMinn, 209 W. 14th Street, Suite 202, Austin TX 78701, on the 7th day of May,

2015.

                                         /s/ Jay Brandon
                                         ___________________________
                                         JAY BRANDON


                                           16
                                                                                                                  Page 1




                                                                                                                112V9C




                            Carlton WOOD, Appellant v. The STATE of Texas, Appellee

                                                  No. 04-14-00224-CR

                   COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

                                     453 S.W.3d 488; 2014 Tex. App. LEXIS 13425


                                             December 17, 2014, Delivered
                                               December 17, 2014, Filed

NOTICE:        PUBLISH                                        tion. The trier of fact weighs the credibility of each piece
                                                              of evidence and determines whether the totality of the
SUBSEQUENT HISTORY: Petition for discretionary                evidence establishes the existence of the alleged convic-
review granted by In re Wood, 2015 Tex. Crim. App.            tion and its link to the defendant beyond a reasonable
LEXIS 483 (Tex. Crim. App., Apr. 22, 2015)                    doubt. In reviewing the sufficiency of the evidence to
                                                              support a finding that an enhancement is "true," courts
PRIOR HISTORY:          [**1] From the 226th Judicial         consider all the evidence in the light most favorable to
District Court, Bexar County, Texas. Trial Court No.          the finding and determine whether a rational trier of fact
2013-CR-3690. Honorable Sid L. Harle, Judge Presiding.        could have found the essential elements beyond a rea-
                                                              sonable doubt. A defendant's plea of "true" to an en-
DISPOSITION:         REVERSED AND REMANDED.                   hancement allegation must be affirmatively reflected by
                                                              evidence in the record.
LexisNexis(R) Headnotes

                                                              Criminal Law & Procedure > Sentencing > Guidelines
                                                              > Adjustments & Enhancements > General Overview
Criminal Law & Procedure > Sentencing > Guidelines            Evidence > Inferences & Presumptions > Presumptions
> Adjustments & Enhancements > General Overview               > Presumption of Regularity
Evidence > Procedural Considerations > Burdens of             [HN2] A presumption of regularity of a judgment with
Proof > Proof Beyond Reasonable Doubt                         respect to a prior conviction does not arise until after the
Criminal Law & Procedure > Sentencing > Appeals >             State presents prima facie evidence of the conviction to
Standards of Review > General Overview                        be used for enhancement. When the State fails to make a
Criminal Law & Procedure > Preliminary Proceedings            prima facie showing of an enhancement conviction, the
> Entry of Pleas > General Overview                           defendant has no obligation to complain or object to any
[HN1] To establish a prior conviction for purposes of         defect in the judgment concerning the alleged prior con-
enhancement, the State must prove two elements beyond         viction.
a reasonable doubt: the existence of a prior conviction
and the defendant's link to that conviction. A defendant's
plea of "true" to the enhancement allegation satisfies the    Criminal Law & Procedure > Sentencing > Guidelines
State's burden of proof. Absent a plea of "true," the State   > Adjustments & Enhancements > General Overview
must prove the two elements by introducing evidence           Criminal Law & Procedure > Sentencing > Appeals >
such as the defendant's admission or stipulation, docu-       Standards of Review > General Overview
mentary proof, such a a judgment, that contains suffi-        Evidence > Procedural Considerations > Weight &
cient information showing the defendant's identity as the     Sufficiency
person convicted of the prior offense, or testimony by a      Criminal Law & Procedure > Appeals > Standards of
person with knowledge of the defendant's prior convic-        Review > Harmless & Invited Errors > Evidence
                                                                                                                Page 2
                                 453 S.W.3d 488, *; 2014 Tex. App. LEXIS 13425, **


[HN3] A failure of proof on an enhancement allegation is          In a single issue, Wood argues the finding in the
not subject to a harmless error analysis. A sufficien-       judgment that the enhancement paragraph is "true" is
cy-of-evidence deficiency can never be considered            without any basis. Wood asserts that because he did not
harmless.                                                    enter a plea of "true" to the enhancement on the record
                                                             and the State failed to present any evidence to prove up
COUNSEL: For APPELLANT: David L. McLane, The                 the prior conviction, the trial court erred in finding the
McLane Law Firm, San Antonio, TX.                            enhancement "true." The State argues that because Wood
                                                             failed to object in the trial court, [**3] a presumption
For APPELLEE: Jay Brandon, Assistant District Attor-         applies that he pled "true" to the enhancement as recited
ney, San Antonio, TX.                                        in the judgment.
                                                                  During the guilt/innocence phase, Wood testified
JUDGES: Opinion by: Rebeca C. Martinez, Justice.
                                                             that he previously had "one drug conviction" for which
Sitting: Rebeca C. Martinez, Justice, Patricia O. Alvarez,
                                                             he had been to prison "in the 2000's." Wood provided no
Justice, Luz Elena D. Chapa, Justice.
                                                             details concerning that prior drug conviction, and
                                                             stressed that he had been to prison only once. On
OPINION BY: Rebeca C. Martinez
                                                             cross-examination, the prosecutor questioned Wood
                                                             about two prior charges for drug-related offenses: (i)
OPINION
                                                             possession of one to four grams of a controlled substance
     [*489] REVERSED AND REMANDED                            on October 30, 2000; and (ii) possession with intent to
                                                             deliver four to 200 grams of a controlled substance on
     On appeal, Carlton Wood asserts there is insufficient
                                                             February 7, 2002. Wood did not admit to being convicted
evidence to support the enhanced sentence he received
                                                             of either of those charges and no documentary evidence
for evading arrest with a motor vehicle. We agree and
                                                             was presented by the State with regard to these alleged
reverse that portion of the judgment and remand for a
                                                             charges. The prosecutor did not question Wood about the
new punishment hearing.
                                                             September 23, 2002 conviction for possession of one to
                                                             four grams of a controlled substance that was alleged in
BACKGROUND
                                                             the enhancement paragraph of the indictment. No docu-
     Wood was charged by indictment with having com-         mentary proof of that conviction was offered or admitted.
mitted the third degree felony offense of evading arrest     After the trial court found Wood guilty of the evading
with a vehicle, for which the punishment range is im-        arrest charge, it ordered a pre-sentence investigation re-
prisonment for two to ten years. TEX. PENAL CODE ANN. §      port to be prepared [**4] before sentencing.
38.04 (West Supp. 2014); id. § 12.34(a) (West 2011).
                                                                  At the beginning of the punishment hearing, the trial
The indictment contained an enhancement paragraph
                                                             court stated on the record, "[t]he enhancement was found
alleging that Wood was previously convicted of posses-
                                                             true." The court did not take Wood's plea of "true" or
sion of one to four grams of a controlled substance, Pen-
                                                             "not true" to the enhancement on the record. During the
alty Group 1, on September 23, 2002 in Bexar County,
                                                             hearing, the court did not specify whether its finding that
Texas, a third degree felony. [**2] TEX. HEALTH
                                                             the enhancement was "true" was based on a plea of
&SAFETY CODE ANN. § 481.115(a), (c) (West 2010). If
                                                             "true" (which does not appear in the record) or on other
found true, the enhancement would elevate the punish-
                                                             proof of the prior conviction alleged in the indictment.
ment range for the evading arrest offense to that of se-
                                                             No objection was raised by Wood. After the court's
cond degree felony, i.e., imprisonment for two to twenty
                                                             statement that "the enhancement was found true," the
years. TEX. PENAL CODE ANN. § 12.42(a) (West Supp.
                                                             following discussion occurred between the trial court,
2014); id. § 12.33(a) (West 2011). Wood pled not
                                                             Wood, and defense counsel with regard to how much
[*490] guilty to evading arrest, waived his right to a
                                                             time Wood served on the prior conviction:
jury trial, and was tried by the court. The trial court
found Wood guilty of evading arrest with a vehicle as
                                                                       THE COURT: How long did you actu-
charged in the indictment. During the punishment phase,
                                                                    ally serve on that six-year term, Mr.
the trial court found that the enhancement allegation was
                                                                    Wood?
"true." The court denied Wood's request for probation
and sentenced Wood to four years' imprisonment in the                  DEFENDANT: The full six years,
Texas Department of Criminal Justice-Institutional Divi-            Your Honor.
sion. No fine was assessed. Wood timely appealed.
                                                                         THE COURT: How come?
ANALYSIS                                                                DEFENSE COUNSEL: No, you were
                                                                    on parole for three years.
                                                                                                                 Page 3
                                  453 S.W.3d 488, *; 2014 Tex. App. LEXIS 13425, **


            DEFENDANT: For three.                                   Here, the judgment recites that Wood pled "true" to
                                                               the enhancement paragraph of the indictment and that the
            THE COURT: So you did three.
                                                               enhancement was found "true." The State argues that
           DEFENDANT: Be specific, yes.                        "[o]bviously something happened off the record" to sup-
       Three on parole and three.                              port the court's finding that the enhancement was "true,"
                                                               and asserts that both sides as well as the court proceeded
                                                               as if Wood had pled "true." The State contends that, be-
                                                               cause Wood did not object in the trial court and the rec-
     The State argues that it is apparent from the above
                                                               ord does not affirmatively show the opposite, we must
exchange that Wood and his counsel were on notice the          presume the regularity [**7] of the judgment and its
State was seeking an enhancement, were aware of the            recital that Wood pled "true;" therefore, the State's bur-
details of the prior conviction used [**5] for the en-
                                                               den of proof was satisfied by the alleged plea of "true."
hancement, and were not surprised [*491] or preju-
                                                               See Wilson, 671 S.W.2d at 525-26; TEX. R. APP. P.
diced by the court's finding that the enhancement was
                                                               44.2(c)(4). However, a defendant's plea of "true" to an
"true" -- as evidenced by Wood's failure to object which
                                                               enhancement allegation must be affirmatively reflected
the State asserts waived any error. See Marshall v. State,     by evidence in the record. Wilson, 671 S.W.2d at 526;
185 S.W.3d 899, 902-03 (Tex. Crim. App. 2006) (de-             Wise v. State, 394 S.W.3d 594, 598 (Tex. App.--Dallas
fendant is on notice that State is seeking greater penalty
                                                               2012, no pet.). As noted, the record does not affirma-
when enhancement is contained in indictment and not
                                                               tively show that Wood entered any plea at all to the en-
waived, and specific trial objection is necessary to pre-
                                                               hancement allegation. Without a plea of "true" in the
serve error due to court's failure to read enhancement
                                                               record, we proceed with our analysis by determining
allegation and take defendant's plea). The State's argu-       whether the State met its burden of proof on the en-
ment misses the mark because Wood is not complaining           hancement allegation. See Wise, 394 S.W.3d at 600; see
that he failed to receive proper notice of the prior convic-
                                                               also Guyton v. State, No. 04-13-00179-CR, 2014 Tex.
tion to be used for enhancement, but, rather, that the
                                                               App. LEXIS 6766, 2014 WL 2917213, at *1 (Tex.
State failed to prove the prior conviction.
                                                               App.--San Antonio June 25, 2014, no pet.) (mem. op., not
     [HN1] To establish a prior conviction for purposes        designated for publication) (in absence of "true" plea in
of enhancement, the State must prove two elements be-          the record, appellate court proceeds as if defendant pled
yond a reasonable doubt: (i) the existence of a prior con-     "not true" to enhancement).
viction; and (ii) the defendant's link to that conviction.
                                                                     [*492] Based on the record before us, we con-
Flowers v. State, 220 S.W.3d 919, 921 (Tex. Crim. App.
                                                               clude the State wholly failed to establish the September
2007). A defendant's plea of "true" to the enhancement
                                                               23, 2002 prior conviction alleged in the enhancement
allegation satisfies the State's burden of proof. Wilson v.    paragraph of the indictment. The State did not introduce
State, 671 S.W.2d 524, 525 (Tex. Crim. App. 1984). Ab-         a certified copy of the judgment for that offense as is
sent a plea of "true," the State must prove the two ele-
                                                               customary, and did not offer any other type of documen-
ments by introducing evidence such as the defendant's
                                                               tary or testimonial proof of the alleged September 23,
admission or stipulation, documentary proof, e.g., a
                                                               2002 conviction. While the State attempted to get [**8]
judgment, that contains sufficient [**6] information
                                                               Wood to admit to two other drug charges with different
showing the defendant's identity as the person convicted       dates, he refused to admit to being convicted for those
of the prior offense, or testimony by a person with            offenses. Finally, Wood's vague testimony that he had
knowledge of the defendant's prior conviction. Flowers,
                                                               "one drug conviction" for which he went to prison "in the
220 S.W.3d at 921-22. The trier of fact weighs the credi-
                                                               2000's" was insufficient, without more, to prove up the
bility of each piece of evidence and determines whether
                                                               enhancement allegation in the indictment. See Prihoda,
the totality of the evidence establishes the existence of      352 S.W.3d at 808-09 (listing different types of proof
the alleged conviction and its link to the defendant be-       that have been held sufficient to prove a prior conviction
yond a reasonable doubt. Id. at 923. In reviewing the
                                                               for enhancement purposes).
sufficiency of the evidence to support a finding that an
enhancement is "true," we consider all the evidence in              The State not only failed to prove the conviction to
the light most favorable to the finding and determine          be used for enhancement beyond a reasonable doubt, it
whether a rational trier of fact could have found the es-      failed to present even prima facie evidence of the con-
sential elements beyond a reasonable doubt. Prihoda v.         viction. Therefore, contrary to the State's argument, no
State, 352 S.W.3d 796, 807 (Tex. App.--San Antonio             presumption of regularity attached to the judgment's re-
2011, pet. ref'd) (citing Isassi v. State, 330 S.W.3d 633,     citals with respect to the enhancement conviction. See
639 (Tex. Crim. App. 2010)).                                   Fletcher v. State, 214 S.W.3d 5, 8 (Tex. Crim. App. 2007)
                                                               ([HN2] presumption of regularity of a judgment with
                                                                                                                Page 4
                                  453 S.W.3d 488, *; 2014 Tex. App. LEXIS 13425, **


respect to a prior conviction does not arise until after the   for a third degree felony with no enhancement. However,
State presents prima facie evidence of the conviction to       [HN3] a failure of proof on an enhancement allegation is
be used for enhancement). When the State fails to make a       not subject to a harmless error analysis. Wise, 394
prima facie showing of an enhancement conviction, as it        S.W.3d at 600; Ex parte Miller, 330 S.W.3d 610, 624
did here, the defendant has no obligation to complain or       (Tex. Crim. App. 2009) (noting a sufficiency-of-evidence
object to any defect in the judgment concerning the al-        deficiency can never be considered harmless).
leged prior conviction. Id. at 7. As in the [**9] similar
                                                                    Based on the foregoing reasons, we sustain Wood's
case Wise, we do not apply a presumption of regularity in
                                                               issue, reverse the portion of the judgment assessing pun-
the enhancement proceedings in a way that relieves the
                                                               ishment and remand for a new punishment hearing. See
State of its burden to prove the enhancement allegations.
                                                               Wise, 394 S.W.3d at 600-01.
Wise, 394 S.W.3d at 599 (citing Fletcher, 214 S.W.3d at
9).                                                                Rebeca C. Martinez, Justice
    Finally, the State asserts that any error in the en-           PUBLISH
hancement proceedings is harmless because the four-year
sentence Wood received is within the punishment range
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Send To:   Brandon, Jay
           BEXAR COUNTY CRIMINAL DA'S OFFICE
           300 DOLOROSA FL 5
           SAN ANTONIO, TX 78205-3005
