                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-11-00231-CR

RUSSELL DON SNEED,
                                                             Appellant
v.

THE STATE OF TEXAS,
                                                             Appellee


                           From the 19th District Court
                            McLennan County, Texas
                           Trial Court No. 2010-1505-C1


                          MEMORANDUM OPINION


       Russell Don Sneed was convicted of the offense of Driving While Intoxicated and

sentenced to life in prison as a habitual offender based on pleas of true to two prior

convictions. Sneed complains that the evidence was legally insufficient to establish that

one of the prior convictions was final for purposes of enhancement and that the trial

court erred by overruling his objection to State’s closing argument during the

sentencing phase of trial relating to parole. Because we find that the trial court erred by

overruling Sneed’s objections regarding the State’s closing argument and that the error
was harmful, we reverse the judgment of the trial court and remand to that court for a

new trial on punishment.

Enhancements

        Sneed complains that the evidence was legally insufficient to establish that one of

the convictions used for purposes of enhancement was final because the State offered

into evidence a judgment from that conviction that affirmatively showed that a notice of

appeal had been filed.      As a general rule, the State must prove the finality of a

conviction before the conviction can be used for enhancement purposes. See Fletcher v.

State, 214 S.W.3d 5, 8 (Tex. Crim. App. 2007); Harvey v. State, 611 S.W.2d 108, 111 (Tex.

Crim. App. 1981).      However, if a defendant pleads “true” to the enhancement

paragraph, generally the State’s burden of proof is satisfied, and the defendant cannot

complain on appeal that the evidence is insufficient to support the enhancement. See

Harvey, 611 S.W.2d at 111; Lugo v. State, 299 S.W.3d 445, 455-56 (Tex. App.—Fort Worth

2009, pet. ref’d); Magic v. State, 217 S.W.3d 66, 70 (Tex. App.—Houston [1st Dist.] 2006,

no pet.).

        Sneed contends, however, that this case falls within an exception to that general

rule that occurs when the record affirmatively reflects that the enhancement is

improper. See Ex parte Rich, 194 S.W.3d 508, 513 (Tex. Crim. App. 2006). Sneed argues

that because the judgment in the 1995 case indicates that he filed a notice of appeal, the

record affirmatively reflects that the conviction was not final. Certainly, a conviction


Sneed v. State                                                                       Page 2
that has been appealed is not considered final until it is affirmed by the appellate court

and the appellate court’s mandate becomes final. See Fletcher, 214 S.W.3d at 6 (quoting

Jones v. State, 711 S.W.2d 634, 636 (Tex. Crim. App. 1986)).

         However, we disagree that the 1995 judgment in this case provides no evidence

of the finality of the judgment. A final conviction may be shown by a mandate or by

any other means of proof showing disposition of the appeal. See Johnson v. State, 784

S.W.2d 413, 414 (Tex. Crim. App. 1990). The judgment entered into evidence indicates

that a notice of appeal was filed on December 7, 1995.         Below that notation, the

judgment indicates that the mandate was received on April 14, 1998 and “After

Mandate Received, Sentence to Begin Date is: 12/07/1995.” This is sufficient to meet the

State’s prima facie burden regarding finality. We overrule issue one.

Improper Argument

         The jury is permitted to consider the existence of parole and the fact that a

defendant’s imposed sentence may be shortened by the operation of that system. See

TEX. CODE CRIM. PROC. ANN. art. 37.07 § 4(c) (West 2006).          However, the jury is

prohibited from considering how parole law and good time would be applied to the

particular defendant before them. Hawkins v. State, 135 S.W.3d 72, 84 (Tex. Crim. App.

2004).

         Sneed complains in his second issue that the trial court erred in overruling his

objection to improper comments on parole law made by the State in its opening


Sneed v. State                                                                      Page 3
argument during the punishment phase of his trial. Sneed complains of the following

segment of the State’s argument:

        The State: < We can’t predict how exactly it’s going to be applied in this
        case, but we do know that he will be eligible for parole after he serves one-
        fourth, or 15, whichever is less. We do know that. Like I said, we know
        how it was applied to him last time. Last time he got a 40 year sentence.
        He got out after he did one-fifth. He—not only did he get it at the one-
        fourth, he got good time and got less than one-fourth.

        Sneed:       Your Honor, I’m going to object to him arguing that the
        jurors should apply the parole law to this specific defendant.

        Trial Court: Overruled.

        The State: So we know how it was applied to him last time. Last time he
        only served a fifth of a 40 year sentence. He got eight. So we already
        know 40 doesn’t mean 40. 60 doesn’t mean 60, probably. I mean, they
        could keep him the whole time, but you have to think about, this is a DWI,
        it’s a non-violent crime, prisons are crowded. I mean, who knows what’s
        going to happen? We don’t know. We know he’s eligible after one-
        fourth. I wrote an example up there. Just say, for example, you-all decide
        to give him 60. Okay. One-fourth of 60 is 15 years. That’s if he does one-
        fourth. He’s 52 years old now, plus15, that means he’d be—

        Sneed: Your Honor, I’m going to have to renew my objection. There is a
        specific instruction in the charge that prohibits the jury from applying the
        parole law to this defendant.

        The State: I’m just talking about when he would be eligible, Your Honor.

        Trial Court: Overruled.

        The State: Thank you. So in this case, for example, if you gave him 60, he
        would become eligible when he’s 67 years old. I want to ask you-all, do
        you-all feel safe with that? Do you-all feel safe letting a person who has
        been convicted of DWI, I think it was nine times now, back out driving
        with the rest of us when he’s 67? So now not only is he driving drunk,
        now he’s a worse driver, because now he’s 67 years old. You know, I hate
Sneed v. State                                                                          Page 4
        to say that. You know, my grandma can’t even drive at night now. I
        know it gets harder to drive, the older you get. You know, he’s going to
        be more dangerous when he’s 67 years old than he is now at 52. And you
        saw what happened at age 52. He rolled his Explorer on the interstate,
        you know, flipped it. So I just want you-all to think about that. I think—
        I’m going to tell you-all right now, I don’t think 60 is enough.

        Sneed argues that the State’s argument became improper when it argued that

Sneed would be out driving when he was 67 years old if he were given a 60 year

sentence.

        The jury was properly instructed regarding the existence of parole and good-

time credit and Sneed’s issue does not complain of the trial court’s instructions in the

jury charge. Rather, Sneed complains that the State’s argument discussing Sneed’s

being free to drive at age 67 went beyond the permissible purpose of considering

eligibility for parole and crossed over into an impermissible request to consider how the

parole law would be applied to Sneed in the future. We agree. It is apparent that the

State’s arguments were specifically directed at Sneed and the notion of keeping him in

prison as long as possible because he would be released on parole when the formula is

met. Because we find the objections to that argument were erroneously overruled, we

must determine whether Sneed was harmed by the improper argument.

        Improper jury argument is error of a non-constitutional dimension. See Mosley v.

State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998) (applying Texas Rule of Appellate

Procedure 44.2(b) to improper comments that fall outside of permissible argument). To

determine harm, we must determine whether the improper arguments affected a
Sneed v. State                                                                       Page 5
substantial right. See TEX. R. APP. P. 44.2(b); Martinez v. State, 17 S.W.3d 677, 692 (Tex.

Crim. App. 2000) (holding improper closing argument concerning matters outside

record is nonconstitutional error). A substantial right is affected when the error had a

substantial and injurious effect or influence on the jury’s verdict. King v. State, 953

S.W.2d 266, 271 (Tex. Crim. App. 1997).

        In this harm analysis we balance the following three factors: (1) the severity of

the misconduct (the prejudicial effect); (2) the measures adopted to cure the misconduct;

and, (3) the certainty of punishment assessed absent the misconduct (the likelihood of

the same punishment being assessed). See Hawkins v. State, 135 S.W.3d 72, 77 (Tex.

Crim. App. 2004) (applying balancing factors as set forth in Mosley to punishment

proceedings in a non-capital case).

Severity of the Misconduct

        The complained-of statement was surrounded by proper statements regarding

Sneed’s potential eligibility for parole, which would have been in fifteen years of a sixty

year sentence. However, the State’s arguments relating to Sneed driving on the same

roads as the jurors at age 67, which was 15 years from Sneed’s age at trial, were

moderately severe because the State’s argument regarding punishment then shifted to

an argument for the maximum sentence of life imprisonment, which the jury then

assessed.




Sneed v. State                                                                       Page 6
Curative Measures

        The trial court overruled each of Sneed’s objections to the improper argument,

therefore, the trial court did not directly make any curative measures. Later in its

closing argument, co-counsel for the State briefly touched on the parole law properly

without objection to inform the jury that they could consider the one-fourth rule while

making a plea for life imprisonment as the maximum the jury could impose to do their

part to prevent future intoxication offenses by Sneed. This did little, if anything, to cure

the error.

        We note that the jury charge contained a proper instruction to the jury not to

consider how good-conduct time and parole would be applied to Sneed. See TEX. CODE

CRIM. PROC. ANN. art. 37.07 § 4(c) (West 2006); Hawkins, 135 S.W.3d at 84 (“The law

specifically provides that the jury may consider the existence of parole law and good

time in making its punishment determination; the jury is simply prohibited from

considering how parole law and good time would be applied to a particular

defendant.”). There is a presumption that the jury followed the trial court’s written

instructions regarding parole law and good-conduct time absent any indication to the

contrary. See Rose v. State, 752 S.W.2d 529, 554 (Tex. Crim. App. 1988) (op. on reh’g).

The use of the proper instruction is a factor to consider in determining curative

measures. See Hawkins v. State, 135 S.W.3d 72, 84 (Tex. Crim. App. 2004).




Sneed v. State                                                                        Page 7
Likelihood of Sentence Absent the Improper Argument

        Sneed was sentenced as a habitual offender, having pled true to two

enhancement allegations, and therefore, the range of punishment available to the jury

was twenty-five to ninety-nine years in prison or life. TEX. PEN. CODE ANN. § 12.42

(West Supp. 2011). Sneed was sentenced to the maximum sentence allowed by law. We

agree that there was other evidence to support that determination. Sneed was involved

in a single-vehicle accident and was determined to have a blood alcohol content of .26

grams per 100 milliliters of blood, which was well over three times the legal limit.

Sneed had been previously convicted of the offense of driving while intoxicated eight

times, and had been sentenced to as much as forty (40) years in prison for those

offenses.    Sneed had six other criminal convictions as well for misdemeanor theft,

forgery, driving while license suspended, and unauthorized use of a motor vehicle.

        Sneed and his wife testified during the punishment phase regarding their

stability and plans for the future, Sneed’s alcoholism and parents’ alcoholism, and his

military history as a Navy Seal during punishment in an effort to mitigate the sentence.

In addition, no one was involved or injured in the accident other than Sneed. We

believe that there is some doubt that the same sentence would have been assessed

without the overruling of the objection to the improper argument.

        When we balance the above factors, we cannot say that the trial court’s error in

overruling Sneed’s objection to the State’s improper argument was harmless; that is,


Sneed v. State                                                                    Page 8
that it did not have a substantial effect on the jury’s verdict. See TEX. R. APP. P. 44.2(b).

Issue two is sustained.

Conclusion

        Because the trial court erred by overruling Sneed’s objections to the State’s

improper jury argument and the error was harmful, we reverse the judgment of the trial

court and remand to that court for a new trial on punishment.




                                          TOM GRAY
                                          Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed July 12, 2012
Do not publish
[CRPM]




Sneed v. State                                                                         Page 9
